MANISH GARG ANR v. UNITED INDIA INSURANCE CO. LTD ANR

Judgment

1. Mr. Shrey Chathly, Adv. for R-2. CORAM HON’BLE MR JUSTICE AMIT MAHAJAN JUDGMENT CM APPL. 934/2023 (application to place the additional evidence on record)

1. The appeal arises out of the judgment and award dated

17.08.2022 (hereafter ‘impugned award’) passed by the learned Motor Accidents Claims Tribunal in MACT No. 72/2019 and MACT Signature Not Verified Signed By:SANJAY KUMAR Signing Date:24.06.2025 13:02:08 MAC.APP. 11/2023 No. 714/2022, whereby the learned Tribunal granted the right of recovery to the insurer — United India Assurance Co. Ltd. — against the driver and owner of the offending vehicle.

2. The present application has been filed by the appellants under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (‘CPC’) seeking to place on record training certificates of Appellant No. 2/driver required for plying hazardous goods vehicle required under Rule 9 of the Central Motor Vehicle Rules, 1989 (‘MV Rules’). The appellants further pray to place on record the affidavits of the appellants to the effect that at the time of the accident the offending oil tanker was not carrying any hazardous substance.

3. The learned counsel for the appellants submitted that the said training certificates had been misplaced and could not be procured even after due diligence by Appellant No. 2/driver. He submitted that it was only after passing of the impugned award, Appellant No. 2/driver found the said certificates in his house.

4. He submitted that at the stage of trial the appellants duly informed their counsel that the offending oil tanker was empty at the time of the alleged accident, however, their counsel advised them that now the Insurance Company will defend the claim petition and there was no need for the appellants to defend their claims separately.

5. He further submitted that the said documents are material and would be required by this Court for the adjudication of the present appeal. Signature Not Verified Signed By:SANJAY KUMAR Signing Date:24.06.2025 13:02:08 MAC.APP. 11/2023

Per contra, the learned counsel for Respondent No. 1/Insurance Company vehemently opposed the arguments raised by the learned counsel for the appellants and consequently prayed that the present application be dismissed.

7. He submitted that the reasons given by the appellants in the present application are an afterthought to reopen an already decided case.

8. He submitted that the learned Tribunal by order dated

05.07.2022 recorded that Appellant No. 2/driver did not wish to lead any evidence and Appellant No. 1/owner was not present to lead any evidence and subsequently the learned Tribunal closed their right to lead evidence. He submitted that in view of aforementioned order it cannot be said that the appellants were not duly represented or were not provided with an opportunity to lead evidence before the learned Tribunal.

9. He further submitted that it was on the appellants to prove that they had been incorrectly advised by their counsel and therefore, failed to lead evidence before the learned Tribunal.

10. I have heard the learned counsel for the parties in respect to the present application. Analysis

11. The short question that falls for consideration before this Court is whether by the present application the documents that the appellant prays to place on record are material for the adjudication of the present appeal. Signature Not Verified Signed By:SANJAY KUMAR Signing Date:24.06.2025 13:02:08 MAC.APP. 11/2023

12. Order XLI Rule 27 of the CPC provides for the scheme of placing additional evidence before the appellate court. The same reads as under: “ORDER XLI APPEALS FROM ORIGINAL DECREES

27. Production of additional evidence 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.”

13. The learned counsel for the appellants contended that by the present application he prays to place on record the training certificates of Appellant No. 2/driver as well as the affidavits of the appellants Signature Not Verified Signed By:SANJAY KUMAR Signing Date:24.06.2025 13:02:08 MAC.APP. 11/2023 stating that at the time of the accident the offending oil tanker was not carrying any hazardous substance.

14. He further contended that the said certificates are material for the adjudication of the present appeal since they were valid at the time of the accident and the learned Tribunal without perusing the same granted recovery rights to Respondent No. 1/Insurance Company.

15. The Hon’ble Apex Court in the case of Union of India vs. Ibrahim Uddin and Ors. : (2012) 8 SCC 148 held that while adjudicating an application under Order XLI Rule 27, the admissibility of additional evidence is not dependent upon the issue of whether the applicant at an earlier stage had an opportunity to lead evidence, but depends upon whether the appellate court requires the said evidence for adjudicating the pending appeal. The relevant portion of the judgment is reproduced hereunder: “49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh [1951 SCC 178 : AIR 1951 SC 193] Signature Not Verified Signed By:SANJAY KUMAR Signing Date:24.06.2025 13:02:08 MAC.APP. 11/2023