Calcutta High Court
Sri Mahadeb Roy vs Sikiha Das & Ors. on 16 June, 1998
Equivalent citations: II(1998)ACC774, I(1999)ACC415, 1999ACJ1042, (1998)2CALLT330(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal is directed against a Judgment and Award dated 6th February, 1995 passed by Sri N. K. Saha, learned Judge, Bench No. X and acting as Judge, Motor Accident Claims Tribunal in M.A.C. No. ' 167/87, whereby and whereunder claim petition filed by the respondents No. 1 to 4 was allowed. The basic fact of the matter is not in dispute. On 24.10.86 at about 11-00 a.m. In the morning Sunil Das, a self-employed person was riding his bicycle along Meyo Road from east to west. A private Bus bearing No. WBS 5007 was proceeding along the said road. The said bus was allegedly driven negligently and dashed with the cycle from behind, as a result whereof the aforementioned Shri Das sustained serious bodily injuries and was removed to S.S.K.M. hospital. He was, however, discharged after first aid and had been to his house at Jadavpur, but in the afternoon, he was started vomiting blood and having been refused admission at the S.S.K.M. Hospital, he was taken to and admitted fn Chittaranjan Medical College Hospital but he died on the following day. It also stands admitted that in relation to the aforementioned incident. First information Report was lodged on 25.12.8 at 3-15 P.M. On the basis of the said First information Report, a Motor Crime Register was also registered. However, it appears that therein wrongly in stead and place of Bus No. WBS 5007, WBS 5005, was mentioned.
2. Before the learned Tribunal below, four witnesses were examined. P.W.1, Shikha Das was the wife of the deceased. She stated that her husband had been hit by a private Bus bearing No. WBS 5007. She also stated that her husband was aged about 40 years and he used to pay a sum of Rs. 1500/- per month towards family expenses and he was a hall and hearty. She was not cross-examined by the appellant or by the insurer. P.W. 2, Dilip Kumar Das is an eye-witness. He categorically stated the mode and manner of the occurrence of the said accident. He also gave out the number of bus as also the route in which it was being plied. He was also not cross-examined. The learned Tribunal, however, appears to have put certain questions to him. P.W.3, proved the bed head ticket to show that Sunil Das died on 25th December, 1986 at 3-p.m. who had been admitted in the hospital at 4-00 p.m. on the previous day. P.W.4 is also one of the witnesses who had heard about the accident and the manner in which the same took place from the deceased himself. According to the said witness, the deceased told him that the number of the bus was WBS 5007 and the said was in route No. 47A. This witness was cross-examined on behalf of the opposite parties No. 1 and 2 but apart from giving certain suggestions, no other question was put to him. The evidence adduced on behalf of the claimants, therefore, went wholly-unrebutted and thus the said statement must be held to be correct.
3. The learned Tribunal below in view of the aforementioned materials on record, inter alio, held that the claimants were entitled to a sum of Rs. 1,25,000/- by way of compensation. He further granted interest at the rate of 12% per annum. However, keeping in view the nature of the insurance policy, it was directed that the insurer shall be liable to pay to the extent of Rs. 50,000/- and the balance Rs. 75,000/- would be payable by the appellant.
4. Mr. Samanta, learned counsel appearing on behalf of the appellants, submitted that from a comparison of the documents which have been placed on record, it would appear that in the Crime Control Report, number of bus has been mentioned as WBS 5005 and from the M.C.R. It would appear that there had been some interpulation in so far as the figure '7' has been made '5'. The learned counsel place before us an application for adduction of additional evidence, inter alia, on two grounds, namely, (1) that the driver in question who was prosecuted for commission of an offence under sections 279, 337 and 304A of the indian Penal Code, had been acquited by reason of a judgment passed by B.K. Dutta, learned Sessions Judge in Criminal Appeal No. 37 of 1992. The learned counsel further submitted that from the time schedule fixed by the route committee of route No. 47, 47A and 47B, it would appear that at the relevant time the said bus could not have been at the place of occurrence.
5. The learned counsel appearing on behalf of the claimants, however, opposes the prayer of the appellant in respect of adduction of additional evidence. Order 41 Rule 27 of the Code of Civil Procedure reads thus :--
27. Production of additional evidence in appellate court--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary. In the appellate court. But if--(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produce by him at the time when the decree appealed against was passed, or
(b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, or for any other substantial cause.
the appellate court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission."
6. Before the learned Tribunal below, the appellant has filed his written statement. Paragraph 6 of the written statement reads thus :--
"That with reference to the allegations made in columns No. 15 to 17 of the said application, this opposite party state that the opposite party No.1 is the owner of the vehicle No. WBS 5007 (Private Bus) and only admits that at the material time of the accident, the use of the said vehicle was covered by Policy of the insurance with-- Opposite Party No.2 herein, subject to the terms and conditions limitations and exceptions as mentioned therein."
7. Nowhere in the said written statement the plea was taken that a vehicle bearing No. WBS 5005 was involved in the said accident. No statement has been made in the appellant's application under Order 41 Rule 27 of the Code of Civil Procedure that the alleged documents produced before this court for the first time for the purpose of showing that at the relevant time the Bus was at Kalindi was not within the knowledge of the appellant and the same has been discovered subsequently. It is, however, well known that no party can be permitted to adduce additional evidence for the purpose of filing up lacuna in his case. Furthermore, a judgment of acquittal passed by a criminal court is not very much relevant for the purpose of grant of compensation in motor accident case filed under section 110A of the Motor Vehicles Act 1939. We also keeping in view the conduct of the appellant to the effect that neither any cross-examination has been directed nor any plea had been taken, are of the opinion that such evidences are also not required for the purpose of passing Judgment in this appeal. It is now well settled principle of law that before an appellant can be permitted to adduce additional evidence, he must show that he comes within the purview of one or the other factors enumerated in Order 41 Rule 27 of the Code of Civil Procedure. The appellant has not established that notwithstanding exercise of due diligence, evidence which is sought to be placed before us was not within his knowledge or could not after exercise of due diligence be produced by him at the time when the Award appealed against was passed. There does not also in view of the conduct of the appellant, existence of any substantial clause for taking such evidence on record, particularly, in view of the fact that the occurrence has taken place as for back as on 24.12.86 and the application for adduction of additional evidence was affirmed on 24.4.98 and is being filed before us today,
8. We have noticed that in the First information Report the correct number of the vehicle in question had been given. All other documents which were prepared by the police authorities were made on the basis of the same. Even if is mistake has been committed in one of such documents in registering the number of the Bus, claimants-respondents cannot suffer therefor particularly, when no such plea had been taken in the written statement.
9. Keeping in view the facts and circumstances of this case, we are of the opinion that the learned tribunal below was right in holding that the claimants-respondents were entitled to the compensation to the extent of Rs. 125,000/- (Rupees One lac twenty-five thousand) and no interference therewith is called for.
This appeal is, therefore, dismissed with costs. Counsel fees assessed at 100 Cms.
R.K. Mitra, J.
10. I agree.
11. Appeal dismissed with cost