High Court of Chhattisgarh
Case Details
1 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR MAC No. 953 of 2015 Judgment Reserved on 01.04.2025 Judgment Pronounced on 17.04.2025 Oriental Insurance Company Limited Raigarh, District- Raigarh, Chhattisgarh, ... Appellant 1 – Mohan, S/o Sainath Aged About 42 Years, 2 - Smt. Baijanti W/o Shri Mohan, versus Both Caste Chik, r/o Bataikela, Thana Kansabel, District- Jashpur, Chhattisgarh, (Claimants) Digitally signed by ANJANI KUMAR ALLENA Date: 2025.04.17 17:23:37 +0530 3 - Dilip Kumar S/o Girdhari Lal Age Aged About 22 Years Caste Uranv, Resident Fuleta, Thana Patthalgaon, District- Jashpur, Chhattisgarh, 4 - Sanjay Kumar Agrawal S/o Ramkaran Agrawal R/o Patthalgaon (Ambikapur Road), District- Jashpur, Chhattisgarh, ... Respondent(s)
Legal Reasoning
For Appellant For Respondents 1 & 2 : None, though served. For Respondents 3 & 4 : Shri Sanjay Agrawal and Ms. Vidhi Matlani, : Shri Sudhir Agrawal, Advocate. Advocates. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) C A V Judgment 1. This appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the Act, 1988’) is by the insurer – Oriental Insurance Company Limited seeking exoneration from liability to pay compensation awarded by the Additional Motor Accident Claims Tribunal (FTC), Jashpur, Dist.Jashpur vide its award dated 31.03.2015 passed in claim case No. 18/2014. 2. As per the claim petition, the accident occurred on 10.12.2012, on which date, near the shop of Manbahal Chouhan, Pick-up vehicle bearing registration No.CG-15-A.C-0864 (for brevity, the offending vehicle) being driven by its driver 2 Dilip Kumar (Non-applicant No.1) in a rash and negligent manner, dashed the deceased Nandkumar. Owing to accident, deceased received serious injuries and died while he was being brought to the Kansabel Hospital. A claim petition was moved by respondents No.1 & 2/claimants, parents of the deceased boy Nandkumar, seeking compensation to the tune of Rs.42,10,000/- on various heads, pleading, inter alia, that deceased Nandkumar was a brilliant student and at the time of accident, he was 14 years of age. 4. The claim petition was resisted by the Non-applicants on various grounds including Non-applicant No.3/insurance company filed its written statement and denied the averments of the claim petition and pleaded that there is breach of terms and conditions of the insurance policy. 5. The learned Tribunal, on a close scrutiny of the evidence led, held the non- applicant No.1/driver of the offending vehicle liable for accident; the deceased Nandkumar has died due to accident caused by Non-applicant No.1 and that the offending vehicle was not being plied in violation of insurance policy, assessed and awarded a sum of Rs.2,62,000/- with interest @ 9% per annum from the date of claim petition till its realisation in favour of claimants/respondents No. 1 & 2, while fastening liability upon the Non-applicant No.3/Oriental Insurance Company Limited. Hence, this appeal by the insurer. 6. Learned counsel for the appellant/insurance company would submit that though the offending vehicle Pick-up was insured with the appellant/insurance company on the date of accident, but at that time, the driver/Non-applicant No.1 Dilip Kumar was not having valid and effective driving licence and for proving the said fact, he has filed I.A.No.02/2015, which is an application filed under Order 41 Rule 27 of CPC for taking additional evidence on record i.e. letter dated 06.04.2015 issued by the Office of Regional Transport Officer, Raipur and certified copies of property seizure memo, showing that Non-applicant No.1 – Dilip Kumar, who was holding driving licence No.CG04-00564102007 was not issued from the R.T.O., Raipur, thereby meaning that licence which was held by Non-applicant No.1 at the 3 time of accident was fake and forged one. Therefore, it is prayed by him that I.A. No.02/2015 may be allowed and the relevant documents annexed therewith may be taken on record and the appellant/insurance company be exonerated from its liability by allowing the appeal. Lastly, he would submit that the amount of compensation awarded by the Tribunal is also on higher side, which needs to be reassessed suitably. In support, he placed reliance upon the decision of this Court in the matter of Oriental Insurance Company Limited vs. Hari Prasad and Others reported in 2010 (1) T.A.C. 1002 (Chhatt.), MAC No. 263 of 2015 (The Oriental Insurance Company Limited vs. Smt. Jhangli Bai and others) passed by the High Court of Chhattisgarh on 16.03.2021 and Order dated 04.04.2018 passed by the Supreme Court in Civil Appeal No. 4762/2016 (The Oriental Insurance Company Limited v. Surinder Kaur & ors.). 7. On the other hand, learned counsel for the respondents 3 & 4 would support the impugned award and submit that the burden to prove the fact that at the time of accident, the Non-applicant No.1 – Dilip Kumar, driver of the offending vehicle was holding a fake and forged licence was upon the appellant/insurance company, but before the learned Claims Tribunal, it has failed to adduce any evidence regarding the authenticity of the driving licence despite there being ample opportunities given by the Tribunal and in turn, at the appellate stage, the appellant / insurance company has filed the application under Order 41 Rule 27 of CPC for taking additional evidence on record without assigning any sufficient reason or ground for delay in filing the documents. He further submits that the certified copies of the seizure memo and that of driving licence of Non-applicant No.1 were already obtained by it on 11.12.2013 and despite that the appellant/insurance company did not make any effort. Therefore, it is prayed by him that the said I.A.No.2/2015 may be dismissed while rejecting the appeal. In support, he placed reliance on the decision of the Supreme Court in the matter of Union of India v. Ibrahim Uddin and another reported in (2012) 8 SCC 148 wherein the Supreme Court has held in para 39 as under: 4 It is not the business of the appellate Court to supplement the “39. evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (VideState of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M.Armugam reported in AIR 1957 SC 912 and AIR 1969 SC 101)” 8. I have heard learned counsel for the parties and perused the award impugned including the record of the Tribunal. 9. To appreciate the submissions of learned counsel for the parties, I shall now deal with the I.A.No.02/2015. By way of said application, the appellant/Insurance Company prayed for taking the additional documents on record. Perusal of the record would reveal that the claim application has been filed by the claimants on 14.02.2014 and after completion of claimants’ evidence on 24.02.2015, the case was fixed for Non-applicants’ evidence on 17.03.2015, on which date, time was granted to the Non-applicants to conclude their evidence and thereafter, matter was fixed on 30.03.2015 and on that date, Non-applicant No.3, on its own, declared to conclude its evidence and after that, the matter was fixed for final judgment on 31.03.2015. Further, perusal of record would show that neither Insurance Company was willing to file any evidence nor it examined any witness or filed any documents, despite the appellant / Insurance Company, being granted time to lead its evidence. It is pertinent to mention here that despite sufficient time has been granted to the appellant/insurance company by the Tribunal, it could not lead any evidence nor could file any such documents with regard to driving licence of Non-applicant No.1, however, at the appellate stage, the appellant/insurance company has filed application (I.A.No.02/2015) under Order 41 Rule 27 of CPC for taking additional evidence on record on 24.06.2015, i.e., after three months of passing of impugned award. 10. The provisions contained in Order XLI of the First Schedule of the Code of 5 Civil Procedure, 1908 have been made applicable mutatis mutandis to the appeals preferred to the High Court under Section 173 of the Motor Vehicles Act by virtue of sub-rule (3) of Rule 242 of the M.P. (C.G) Motor Vehicle Rules, 1994. Rule 27 of Order XLI provides for production of additional evidence in Appellate Court in the following circumstances : 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reasons for its admission. 11. When the present case is examined in the light of above referred matters and that of provision, this Court finds that the appellant/insurance company got ample opportunities to lead evidence before the Tribunal, but the insurance company neither adduced any evidence nor willing to examine any witness on its behalf or filed any documents. This apart, the insurance company has already received the copy of seizure memo on 11.12.2013 regarding driving licence of Non-applicant No.1, but the insurance company did not do so and kept silent before the Tribunal. Moreover, by way of application (I.A.No.02/2015) dated 24.06.2015, the appellant/insurance company produced the letter dated 06.04.2015 issued by the R.T.O. Raipur showing that at the time of accident, Non-applicant No.1 – Dilip Kumar, who was holding driving licence No.CG04-00564102007 was not issued from the said Office, but from whose name the said licence was issued has not been disclosed by the insurance company. It is also pertinent to mention here that 6 the burden of proving the fact that there was any breach of policy conditions by the Non-applicant No.1 was upon the insurance company, but the insurance company has failed to do so and that, no witness has been examined by it nor any document has been produced by it to verify the fact that Non-applicant No.1 was having the fake driving licence at the time of accident, rather it appears that the insurance company was not vigilant in proving the fact about the driving licence, despite having ample opportunity granted to it before the Tribunal. Therefore, in the absence of satisfactory reasons for the non-production of the evidence in the Tribunal, additional evidence should not be admitted at the appellate stage. Thus, looking to the above observation and considering the facts and circumstances of the case, I do not find any substance in the said application (I.A. No.02/2015) which is accordingly rejected. The case laws cited on behalf of the appellant, being distinguishable to the facts of the present case, are of no help to the insurance company. In that view of the matter, the learned Claims Tribunal, after evaluating the evidence, was justified in fastening the liability upon the insurance company. 12. As regards the compensation, the learned Claims Tribunal, considering the pleadings and evidence led by the claimants, has held that at the time of accident, the deceased by name Nandkumar was a student, aged about 16 years and on notional basis, assessed the income of the deceased at Rs.36,000/- per annum and after considering the evidence on record, awarded total compensation of Rs.2,62,000/- along with interest @ 9% per annum from the date of filing of claim petition till its realization, which in the considered opinion of this Court, is not on higher side. 13. In view of what has been stated above, the appeal filed by the insurance company, being without any substance, is liable to be and is hereby dismissed. Sd/- (Radhakishan Agrawal) JUDGE Anjani