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Judgment
K. Sampath, J.—The Civil Miscellaneous Appeal has been filed by the second respondent-Insurance Company Limited in M.A.C.T.O.P.
No. 1314 of 1990 before Motor Accidents Claims Tribunal (VI Judge, Court of Small Causes), Madras. An award has been passed against the
appellant for a sum of Rs. 33,000/- with interest at 12 per cent per annum from the date of petition till date of realisation. The first respondent-
claimant filed the Original Petition alleging that while he was proceeding in his scooter as pillion rider, the driver of the jeep bearing Registration
No. TMV 9654 belonging to the second respondent herein, drove the jeep in a rash and negligent manner, dashed against the first respondent, as
a result of which, he sustained grievous injuries.
The second respondent-the owner of the vehicle remained ex parte before the tribunal. The appellant-first respondent filed counter-affidavit
contending that the jeep involved in the accident had not been shown to be insured with the appellant company and it was up to the claimant to
prove the same subject to verification by the company. It was further contended that it was only the rider of the scooter who drove the scooter at a
dangerous speed in order to over-take the bus which was going ahead and on seeing the jeep coming in the opposite direction, he lost his control
and dashed against the deep and thus involved himself in the accident. The appellant further contended that there was no privity of contract
between the appellant and the second respondent, the owner and, therefore, there was no question of indemnifying the insurer in the case, in the
event of compensation being awarded to the first respondent.
The Tribunal found that the accident was caused entirely due to the rash and negligent driving of the jeep by its driver and quantified the
compensation at Rs. 33,000/- and passed an award for the said amount making the appellant-Insurance Company liable to pay the same.
Aggrieved, the Insurance Company has filed the appeal.
The appellant has filed an application in C.M.P. No. 15731 of 1994 for reception of the Insurance Policies for the periods 8.4.1989 to
7.4.1990 and 28.4.1989 to 27.4.1992. The allegations in support of the Civil Miscellaneous Petition for the reception of additional evidence are to
the effect that the documents pertaining to the coverage of the vehicle in question were all made available to it after strenuous enquiries conducted
in respect of the coverage and the same could not be filed before adjudication of the claim by award dated 5.11.1993.
Both the respondents have filed counter affidavits opposing the petition for reception of additional evidence. In this connection, the respondents
also relies on the judgment of this Court reported in Oriental Fire and Genl. Ins. Co. Ltd. Vs. J.P. Sahayanathan (insane) represented by next
friend Karibavathy and Another, So far as the negligence on the part of the jeep driver is concerned, the finding by the Tribunal is not seriously
challenged and in any event, the Tribunal has considered all the materials on record and found that the accident was entirely due to rash and
negligent driving of the jeep by its driver. The finding in this regard is confirmed.
As regards the quantum of compensation, it is also not seriously challenged. The Tribunal has fixed the quantum taking into consideration the
relevant data available. Hence, this quantum aspect is also confirmed. The only question remaining is with regard to the reception of the additional
evidence.
It is found that no plea regarding the insurance coverage in respect of the vehicle with the appellant was raised before the Tribunal. It is alleged
in the affidavit filed in support of the petition for reception of additional evidence that this had been stated in the additional written statement filed by
the appellant before the Tribunal. There is no such additional written statement available on record and it is fairly conceded by Learned Counsel for
the appellant that no additional written statement was filed before the Tribunal. It has been held by the Supreme Court time and again that parties in
possession of the material documents should make them available to the Courts to enable the Courts to make a proper adjudication of the case.
The Supreme Court in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, has held as follows:
If a party in possession of best evidence which would throw light on the issue in controversy withholds it then the Court ought to draw an adverse
inference against him notwithstanding that onus of proof does not lie on him.
Learned single Judge of this Court in Oriental Fire and Genl. Ins. Co. Ltd. Vs. J.P. Sahayanathan (insane) represented by next friend
Karibavathy and Another, has referred to the Supreme Court decision in National Insurance Co. Ltd. v. Jugal Kishore ( 1988 ACJ.270 (SC), and
observed as follows:
...where the insurance company concerned wishes to take a defence in a Claim Petition that its liability is not in excess of the statutory liability it
should file a copy of the insurance policy along with its defence."" (The emphasis is on the production of the Insurance Policy)
In the case before the learned Single Judge, the Insurance Company had not expressed any desire to take a defence in the Claim Petition that its
liability was not in excess of the statutory liability. The defence of the appellant in the Claim Petition as per the pleadings filed by it was not one
questioning the liability. In the instant case also, the defence set up by the Insurance Company-appellant did not dispute the insurance coverage of
the vehicle. In the circumstances, to enable the appellant-Insurance Company to file the policy of Insurance to prove a case which was not pleaded
by it before the Tribunal will result in injustice and the lacuna cannot be allowed to be filled up at the appellate stage. The Civil Miscellaneous
Petition is, therefore, dismissed. Civil Miscellaneous appeal is also dismissed.