Tej Pal & Anr. v. Hari Singh & Ors.

Learned counsel for the appellants submitted that though there was enough material on record from which it stood proved beyond doubt that the vehicle in question was involved in the accident, however, still on account of some minor discrepancies, the learned Tribunal held otherwise. In fact, the reason therefor was that the learned Tribunal did not appreciate the evidence in totality, where it was admitted by the driver of bus No. HR-38A-4247, which was involved in the accident that he was driving the aforesaid vehicle on that route at that particular time. It was also admitted by him that because of rush on that route, the passengers used to travel on the roof of the bus. He also admitted that even bus No. HR-38A-8438 also used to ply on that route but was not plying on that particular day. He further submitted that Code of Civil Procedure was strictly not applicable. These were summary kind of proceedings. Once it was admitted by the driver of the vehicle himself that his bus was plying on that route, there was no question of recording a finding that the accident did not occur with the bus in question. He further submitted that still in case there is some loose ends in the evidence led by the appellants, along with the appeal they have moved application for permitting them to lead additional evidence. The same should be allowed considering the fact that the appellants are parents of a young child, who lost his life in his youth on account of rash and negligent driving of the bus. The technicalities should not come in the way of substantial justice. Learned counsel for the Insurance Company submitted that it is a clear case in which the appellants have not been able to prove the accident with the vehicle in question. The Investigating Officer in the criminal case was not FAO No. 595 of 2003 [3] produced. Even this was not brought on record that the driver of the vehicle, sought to be implicated in the accident, was being tried for the alleged offence of rash and negligent driving by him. In view of the aforesaid facts, the appellants having failed to lead clinching evidence, the Tribunal did not have any option but to dismiss the claim petition, which does not call for any interference. As regards the prayer of the appellants for permitting them to lead additional evidence to prove the deficiencies pointed out by the Tribunal is concerned, it was submitted that it was too late for the appellants to pray for this, as the same would amount to filling in the lacunae in the evidence. Heard learned counsel for the parties and perused the relevant referred record. The issue as to whether it is appropriate for the Court to consider application for leading additional evidence at the appellate stage is concerned, recently this Court in Ashok Kumar v. Aman Kumar and others, 2010(1) RCR (Civil) 937 opined as under: “4. A wide discretion has been conferred by the Code to refuse or to accept the additional evidence. I am fortified by my this view, from the judgment delivered by the Apex Court in the case of Mahavir Singh and others v. Naresh Chandra and another, 2001(1) RCR (Civil) 454: (2001) 1 Supreme Court Cases 309 wherein it was observed as under: “Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order 41 Rule 27 CPC. The principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are bound to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right to the admission of such evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly. FAO No. 595 of 2003 [4]

5. While further elaborating the section, the Apex Court in the aforesaid case elaborated the words “to enable it to pronounce judgment” as used in Order 41 Rule 27(b) CPC the ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence, therefore, the old perception stating that no additional evidence could be accepted for filling up the lacuna has been removed by the Apex Court in Mahavir Singh's case (supra), rather it observed that words “or for any other substantial cause” must be read with words “requires”, it means that the court could exercise its power of accepting the additional evidence when it requires for any substantial cause.” It is a case in which on account of unfortunate accident, son of the appellants, aged 17 years, died. The appellants are in the present case rustic villagers, who were guided by their counsel before the court below. Merely because in the opinion of the Tribunal some link evidence is missing to prove the involvement of the bus in the accident, as is referred to in the impugned award, and further that the additional evidence sought to be led is in the form of investigation by the Investigating Officer in the FIR registered for the accident and also the prosecution of the driver for rash and negligent driving, where there cannot be any possibility of tampering with, in my opinion, the appellants deserve the permission to lead such evidence even at the appellate stage. After accepting the prayer for leading additional evidence at the appellate stage, one of the options before this court could be to record the evidence here and proceed to decide the case itself but, in my opinion, in the facts and circumstances of the present case, the same would not be appropriate considering the fact that though the learned Tribunal was required to record finding on all the issues, even if it opined on one of the issues that the accident had not been caused due to rash and negligent driving of the vehicle in question, the Tribunal having failed to record any finding on the quantum of compensation, the matter needs to be remitted back to the Tribunal for recording finding on that issue as well. For the reasons mentioned above, the impugned award of the learned Tribunal is set aside. The matter is remanded back to the Tribunal, who shall decide the same afresh while permitting the appellants to lead additional evidence. The parties are directed to appear before the Tribunal on 17.4.2010. Considering FAO No. 595 of 2003 [5] the fact that the accident in the present case took place on 9.8.1999, the Tribunal is directed to expedite the disposal of the claim petition. The appeal is disposed of in the manner indicated above.

4.3.2010 (Rajesh Bindal) Judge