Allahabad High Court
Mukesh Kumar Tiwari vs New India Assurance Company Through Its ... on 10 July, 2018
Author: Abhai Kumar
Bench: Devendra Kumar Arora, Abhai Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 897 of 2008 Appellant :- Mukesh Kumar Tiwari Respondent :- New India Assurance Company Through Its Branch Manager Counsel for Appellant :- Manish Jauhari,Mohit Jauhari Counsel for Respondent :- Anurag Tilhari,T.J.S.Makkar Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Abhai Kumar,J.
(1) Heard Mr. Manish Jauhari, learned Counsel for the appellant/owner of the offending vehicle and Mr. T.J.S. Makkar, learned Counsel for the respondent No.1-New India Assurance Company.
(2) Appellant, who is said to be the owner of the offending vehicle, has approached this Court under Section 173 of the Motor Vehicle Act, 1988, assailing the judgment and award dated 2.11.2007 passed by the Motor Accident Claim Tribunal/Court of Additional District & Sessions Judge, Room No.4, Lucknow (hereinafter referred to as the "Tribunal"), in Claim Petition No. 340 of 2004 : Ram Chandra and others Vs. Mukesh Kumar Tiwari and others, whereby the Tribunal, while allowing the claim petition, has fastened liability to pay Rs.1,17,000/- as compensation upon the appellant/owner of the offending vehicle.
(3) Succinctly stated, facts of this case are as under :
On 8.5.2004, deceased Smt. Maya Madhuri was coming to home from Chaupatia by foot and at about 10.30 PM, when she reached in front of Hanumanji Mandir situated at Subhash Marg near Birhana Chauraha, then, driver of the truck, bearing registration No. U.P.78 A.N. 7457, while driving it rashly and negligently, who was going from Naka to Pandeyganj, crushed Smt. Maya Madhuri, as a consequence thereof, Smt. Maya Madhuri died on the spot.
(4) In order to get compensation, husband and son of the deceased approached the Tribunal by means of Claim Petition No. 340 of 2004. The Tribunal, on the basis of pleadings, have framed five issues, which are as under :
"1. Whether on 8.5.2004 at about 10.30 PM, driver of the truck, bearing registration No. U.P. 78 A.N. 7457, while driving it rashly and negligently, hit Maya Madhuri, in front of Hanumanji Mandir situated at Subhash Marg near Birhana Chauraha, Duganwa, by which Maya Madhuri died on the spot.
2. Whether accident occurred due to partial carelessness of Smt. Maya Madhuri as alleged in para-13 of the written statement of respondent No.3-New India Assurance Company Ltd.
3. Whether the driver of the truck, bearing registration No. U.P. 78 A.N. 7457, was not having valid and effective license at the time of accident, as stated in para-14 of the written statement of New India Assurance Company Ltd.
4. Whether the truck bearing No. U.P.78 A.N.7457, was not insured with respondent No.3-New India Assurance Company Ltd. as stated in para-15 of the written statement of respondent No.3.
5. How much amount the claimant is entitled for and from which of the respondents."
(5) The Tribunal has decided issue No. 1 and 2 in favour of the claimants and has recorded a specific finding that the accident occurred due to rash and negligent driving of driver of truck in question. In respect of issue No.3, the Tribunal found that at the time of accident, driver of the truck was having valid and effective driving license. In respect of issue No.4, the Tribunal opined that the owner of the truck in question had produced a copy of the insurance policy (C-13/6), which revealed that the truck was insured with the New India Assurance Company Ltd. and the said policy was valid w.e.f. 22.11.2004 to 21.11.2005. The Tribunal, therefore, recorded a finding that when the accident in question occurred on 8.5.2004, at that time, the Truck was not insured with the New India Assurance Company. Therefore, issue No.4 has been decided against the owner of the truck (appellant herein). In respect of issue No.5, the Tribunal found that at the time of accident, deceased was aged about 50 years and as the claimants have failed to establish the income of the deceased, therefore, the Tribunal assessed the notional income of the deceased as Rs.15,000/- per annum and after deducting 1/3rd amount towards personal expenses, the Tribunal assessed the income of the deceased as Rs.10,000/- per annum. After applying the multiplier of ''11', the Tribunal awarded (Rs.10,000x 11=1,10,000/- + Rs.2000 towards funeral expenses + Rs.5000 towards loss of love and affection=) Rs.1,17,000/- as compensation and directed the owner of the truck (appellant herein) to pay the awarded amount along with interest @7.50 per cent per annum from the date of filing the claim petition till its realization to the claimants, vide judgment and award dated 2.11.2007.
(6) Not satisfied with the judgment and award dated 2.11.2007, the appellant has filed the present appeal inter alia on the ground that though the truck was insured with the New India Assurance Company Ltd. (respondent No.1) and there was no violation of terms and condition of the insurance policy, therefore, liability to pay the amount of compensation so awarded lies upon the New India Assurance Company Ltd.
(7) Submission of the learned Counsel for the appellant is that he is not disputing the factum of the accident and quantum of compensation. His ground is that the reason for awarding compensation against the appellant is only that the insurance policy of the relevant time was not produced before the Tribunal. He submits that during the pendency of the present appeal, appellant has filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 read with Section 151 of the Code of Civil Procedure (C.M. Application No. 46346 of 2018) annexing therewith a copy of the insurance policy, bearing No. 422200/ 31/03/11720.
(8) Learned Counsel for the appellant submits that though his Counsel before the Tribunal had filed the written submission but due to bona fide mistake, he could not bring the copy of the insurance policy on record while filing written submission. It is not in dispute that at the time of accident, the truck was insured with the New India Assurance Company Ltd.
(9) Per contra, Mr. T.J.S. Makker, learned Counsel for the respondent No.1 submits that he has filed objection to the application preferred by the appellant under Order XLI Rule 27 of the Code of Civil Procedure, stating therein that insurance policy annexed as Annexure No.SA-1 by the appellant has been verified from the concerned branch and the verified copy has been brought on record as Annexure SCA-1 to the affidavit. His further submission is that though the appellant possessed the valid insurance policy of the truck in question but the ground for not placing the same before the Tribunal is not sustainable, therefore, the same cannot be appreciated at the appellate stage as he did not fulfill any of the ingredient of Order XLI Rule 27 of the Code of Civil Procedure.
(10) We have examined the submission of the learned Counsel for the appellant and learned Counsel for the Insurance Company and perused the record.
(11) Factum of accident, resultant death of the deceased Smt. Maya Madhuri on account of accident and quantum of compensation have not been disputed by either of the parties.
(12) The only issue raised before us by the appellant is that though the appellant was having insurance cover of the vehicle in question at the time of the accident but on account of mistake of his Counsel, the insurance policy was not brought on record before the Tribunal, therefore, the liability to pay the compensation has to be fastened upon the respondent-Insurance Company and not the owner of the truck/appellant. Controverting the aforesaid submission, though the respondent-Insurance Company has admitted the fact that at the time of accident, the appellant was having valid insurance policy of the truck in question but due to slackness on the part of the appellant, he did not produce the same before the Tribunal, therefore, the Tribunal has rightly fastened the liability upon the appellant for the payment of compensation.
(13) From the analysis of the aforesaid submissions and perusal of the affidavit filed in support of application under Order XLI Rule 27 of the Code of Civil Procedure as well as perusal of the affidavit filed in support of objection to the application under Order XLI Rule 27 of the Code of Civil Procedure, one thing is clear that at the time of accident, the truck of the appellant was duly insured with the New India Assurance Company Ltd., Transport Nagar, Kanpur which has been verified by the office of the New India Assurance Company Ltd.
(14) Now, the question whether the said document i.e. insurance policy contained in Annexure No. SA-I can be taken into consideration at this stage i.e. appellate stage and as to whether the ingredients of Order XLI Rule 27 of the Code of Civil Procedure are available in the circumstances stated above.
(15) Under the scheme of Code of Civil Procedure, 1908 (for short "the Code"), it is the trial court before whom parties are required to adduce their evidence. But in three exceptional circumstances, additional evidence can be adduced before the appellate court, as provided under Section 107 (1) (d) read with Rule 27 of Order XLI of the Code. Rule 27 of Order XLI reads as under: -
"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 produced 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
(16) From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, except in three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27.
(17) In the case at hand, the appellant has specifically averred in the affidavit filed in support of application under Order XLI of Rule 27 of the Code that the appellant appeared before the Tribunal in the claim petition through his Counsel and filed his written statement but due to some mistake of the Counsel appearing in the lower Court, copy of the insurance policy of 2003-2004 prevailing at the time of accident has not been produced before the Tribunal and due to the absence of Insurance Policy of the relevant period, in which the accident took place, the Tribunal passed the award dated 2.11.2007 holding that the vehicle was not insured on the date of accident and fixed liability upon the appellant for payment of the claim being the owner of the vehicle.
(18) It is true that the authenticity of the Insurance Policy filed by the appellant for taking as additional evidence has been verified by the respondent-Insurance Company and the same has been proved as a genuine and correct document. It is not the case of the respondent-Insurance Company that the said document is fake rather its genuineness has been accepted. Thus, it is clear that document, which has been filed as an additional evidence, is a genuine document.
(19) Considering the above peculiar facts and circumstances of the case, particularly the fact that the appellant asserted that due to the fault of his Counsel who appeared before the Tribunal, the document i.e. Insurance Policy prevailing at the time of accident cannot be produced before the Tribunal and it is the slackness on the part of his Counsel, we are of the view that the document which is sought to be taken as an additional evidence in this case is an admitted document and the reason for not producing the said document before the Tribunal, is satisfactory. Therefore, application for taking additional evidence on record is allowed. The document i.e. Insurance Policy is taken on record.
(20) It may be added that the client should not be made to suffer for the negligence and mistake of his Advocate. Moreover, we cannot allow the client to suffer injustice merely because of the fault of the Advocate as Indian legal system, the client after engaging a lawyer, remains supremely confident that his interest will be look after seriously by his Counsel and usually acts as per his advice. In this MACP's case, bringing of Insurance Policy on record to prove that the vehicle was duly insured at the time of the accident was a primary duty and the appellant was going to gain nothing by suppressing or withholding the said document when it is known that after insurance of his vehicle in case of any accident, the compensation will be paid by the Insurance Company. Suffice it to say that adducing additional evidence at the appellate stage is in order to secure the ends of justice.
(21) At this juncture, it is important to mention that the vehicle was insured with the respondent Company and not with any other Insurance Company. It was onerous duty of the Insurance Company to verify about the Insurance details of the vehicle in question from the record of the Company and further to assist the Court accordingly to secure the ends of justice. Therefore, there was no occasion for the respondent to raise such a plea as the provision to grant compensation to a social piece of legislation.
(22) It may be observed that where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue and interest of justice clearly renders it imperative, then, it may be allowed to be permitted to be taken on record. Therefore, the assertion of the respondent-Insurance Company is misconceived and untenable.
(23) A perusal of the impugned award reveals that the Tribunal has fastened the liability to pay compensation upon the appellant-owner of the truck only on the ground that the appellant has failed to produce the insurance policy of the period of the accident. However, now it is established beyond doubt that at the time of accident, truck was validly insured with the respondent-Insurance Company. Thus, the liability to pay the amount of compensation under award is upon the respondent-Insurance Company and not on the appellant.
(24) For the reason aforesaid, the First Appeal From Order is partly allowed. The impugned judgment and award dated 2.11.2007 passed in Claim Petition No. 340 of 2004 is modified to the extent that the respondent No.1-New India Assurance Company Ltd. is directed to pay the amount of compensation along with the interest as awarded by the Tribunal under impugned award to the claimants within two months from today. In case the respondent-Insurance Company failed to pay the amount during the above period, the claimants are entitled for 9% interest on delayed payment.
(25) Office shall return the statutory amount deposited by the appellant to the appellant forthwith.
(26) Costs easy.
Order Date :- 10.7.2018 Ajit/-