National Insurance Company Ltd. vs Debo And Others

Vivek Singh Thakur, J

These appeals preferred against the impugned award, arising out of the same accident which had taken place on 15.5.2010, for involvement of common question of law and similar facts, are being decided together vide this common judgment.

The motor vehicle accident, in present case, took place on 15.5.2010 at a place known as Chamba Chadai near Rohali Tindi, Police Station Udaypur, District Lahaul & Spiti (HP) when Mazda vehicle bearing registration No.HP-45A-0148 being driven by Karam Singh fell in gorge causing death of two persons i.e. 30 years old driver Karam Singh son of Shri Prem Lal resident of village Malihat, PO Killar, Tehsil Pangi, District Chamba and 19 years old Tenzin son of Shri Prem Singh resident of village Sural Bhatori, Tehsil Pangi, District Chamba (HP). With respect to accident, FIR No. 9 of 2010 dated 15.5.2010 was also registered in Police Station Udaypur, District Lahaul and Spiti.

Dependents/legal heirs of Karam Singh filed Motor Accident Case No. 42 of 2010 titled Debo and others vs. National Insurance Company and another before MACT Chamba.

Parents of Tenzin also preferred claim petition i.e. MAC No. 104/12/2010 before the MACT, Chamba, District Chamba for awarding the compensation in their favour.

Both claim petitions were allowed by MACT, Fast Track Court, Chamba and the liability to pay in both cases has been fastened upon the Insurance Company.

In MAC No.42 of 2010, the dependents/legal heirs of Karam Singh have been awarded compensation of Rs.4,28,000/- with interest at the rate of 7.5% per annum from the date of filing of petition till deposit of awarded amount.

The claim petition i.e. MAC No. 104/2012/10 titled Prem Singh vs. National Insurance Company preferred by parents of Tenzin, has also been allowed by the MACT, Fast Track Court, Chamba, District Chamba by awarding compensation to the dependents/legal heirs of Tenzin amounting to Rs.2,99,000/- with interest at the rate of 7.5 % per annum from the date of filing of petition till deposit of said amount.

Being aggrieved by aforesaid Award passed in MAC No. 42 of 2010, appellant/National Insurance Company has preferred FAO No. 26 of 2013 titled National Insurance Company Limited vs. Debo and others, and against Award passed by MACT in MAC No. 104/2012/10, appellant/National Insurance Company has preferred appeal FAO No. 27 of 2013 titled National Insurance Company Limited vs. Prem Singh and others.

Before the MACT, claimants had examined three witnesses in both appeals. PW1 in both appeals was claimant No.1 i.e. Debo Devi in FAO No. 26 of 2013 and Prem Singh in FAO No. 27 of 2013. Other witnesses are common and have deposed similarly in both cases.

PW2 Inder Singh, the police official, has proved on record the FIR No. 9 of 2010 dated 15th May, 2010 registered under Sections 279 and 304-A of IPC.

PW3 Dr. Anchit Wapa has proved the postmortem reports of both deceased which have been placed on record Ext.PW3/A in both cases.

Owner of vehicle Nurbu Ram has appeared in the witness box as RW1, whereas Roop Singh Licencing Clerk of SDM Pangi has been examined as RW2 in both petitions. RW2 has proved the driving licence Ext.D1 of driver Karam Singh.

RW1 Nurbu has placed on record his examination-in-chief Ext.RW1/A and placed on record the copy of driving licence Ext.RW1/B , Insurance Cover Notes Ext.R1 and Ext.R2, as well as registration certificate Ext.R3. No witness has been examined by Insurance Company. Copy of FIR Ex. PW2/A, Copy of MLC/PMR Ex. PW3/A, copy of Pariwar Register Ex. PX, have been proved and placed on record in the evidence of claimants.

In both appeals, the main and only ground raised is that deceased driver Karam Chand was not having valid driving licence to drive the vehicle in reference involved in the accident with submission that firstly owner of vehicle had produced driving licence of driver Ext.D1 which was issued by Registration and Licensing Authority Pangi at Killar and the same was valid for driving light motor vehicles, non-transport and tractor and as such, there was breach of fundamental frame of Policy by allowing Karam Singh to drive the transport vehicle which was not a light motor vehicle. It has been further argued by Insurance Company that later on Nurbur Ram, owner of the vehicle, appearing as witness as RW1, had placed on record a copy of driving licence Ext.RW1/B of Karam Singh and the said driving licence was produced in evidence for the first time by owner of vehicle on 22nd/23rd June, 2012 and, thereafter, in his cross-examination, he had admitted the issuance of earlier licence Ext.D1 from Registering and Licensing Authority, Pangi. Further that no such licence was ever produced by owner before the police during investigation of FIR Ext.PW2/A. Whereas, licence Ext.RW1/B does not appear to be genuine but forged one with signatures of Authorities as 20th January, 2012 and further that, at a time, a person cannot have two driving licences, whereas as per record Karam Singh was having one driving licence Ext.D1 and, thereafter, his second driving licence Ext.RW1/B was produced for the first time in Court on 22nd/23rd  June, 2012, whereafter inquiry was conducted by Insurance Company wherein it was found that licence in the name of Karam Singh was issued from DTO Thoubal, District Manipur on 29.4.2011 whereas Karam Singh had expired in accident on 15th May, 2010. Therefore, it has been contended that award has been passed on the basis of fake licence.

It is further case of Insurance Company that no opportunity has been granted to Insurance Company to rebut the evidence brought on record as Ext.RW1/B which was shrouded with suspicion with respect to date of issuance mentioned thereon as 29.4.2008 and it appeared that word ‘2011’ was manipulated and substituted to ‘2008’ by tampering. It has been stated that on verification it was revealed that Ext.RW1/B was issued on 29th April, 2011 for two wheeler/LMV/Hill road and it was authorized to drive HTV on 20.1.2012 and it was valid upto 28th April, 2014. The aforesaid dates are post death dates of driver Karam Singh and therefore, it has been submitted that the application filed by appellant under Order 41 Rule 27 CPC deserves to be allowed and thereafter, taking into consideration the evidence led by parties the claim petition should be decided afresh.

There is no other ground urged or reflected in the memorandum of appeal to assail the impugned Award passed by the MACT. The entire case of Insurance Company hinges upon the fate of application under Order 41 Rule 27 CPC.

The application has been vehemently opposed by learned counsel for respondents on the ground that ample opportunities were given to Insurance Company to lead the evidence to cross examine the witnesses and produce the documents, if any intended to be produced by Insurance Company. But Insurance Company did not opt to lead evidence despite having sufficient time to do so even after production of driving licence Ext.RW2/A by owner at the time of his examination as a witness on 22nd/23rd June, 2012.

For the purpose of determining the prayer of Insurance Company seeking permission to lead evidence, provisions of Rule 27 of Order 41 CPC are relevant, which read 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, established 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.”

It was laid down by the Apex Court in N. Kamalam v. Ayyasamy, (2001) 7 SCC 503 = 2001 SCC OnLine SC 905 that the additional evidence cannot be led to fill in the lacuna left before the learned Trial Court. It was observed as under:-

“19. Incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal — it does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008: 67 Bom LR 782] has been candid enough to record that the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In para 9 of the judgment, this Court observed: (AIR p. 1012)

“This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand, what it says is that certain documentary evidence on record supports ‘in a large measure’ the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that, we must point out that the power under clause (b) of sub-rule (1) of Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision.”

Further in Pramod Kumari Bhatia v. Om Prakash Bhatia [(1980) 1 SCC 412: AIR 1980 SC 446] this Court also in more or less an identical situation laid down that since an application to the High Court has been made very many years after the filing of the suit and also quite some years after the appeal had been filed before the High Court, the question of interfering with the discretion exercised by the High Court in refusing to receive additional evidence at that stage would not arise. The time lag in the matter under consideration is also enormous and the additional evidence sought to be produced was as a matter of fact after a period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April 1983 but the application for permission to adduce additional evidence came to be made only in August 1993. Needless to record that the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time. In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the will and in our view contextually, the justice of the situation does not warrant any interference. The attempt, the High Court ascribed it to be a stage-managed affair in order to somehow defeat the claim of the respondents — and having had the privilege of perusal of record we lend our concurrence thereto and the finding of the High Court cannot be found fault with for rejecting the prayer of the appellants for additional evidence made in the belated application. In that view of the matter, the first issue is answered in the negative and thus against the plaintiffs, being the appellants herein.”

A similar view was taken in North Eastern Railway Admn. vs. Bhagwan Das, (2008) 8 SCC 511, wherein it was observed: -

“13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are:

(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (1)], or

(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or

(iii) 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 [clause (b) of sub-rule (1)].

It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it “requires” to enable it to pronounce judgment “or for any other substantial cause”. The scope of the Rule, in particular of clause (b), was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143]. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow the litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows : (AIR p. 148)

“… Under clause (1)(b) it is only where the appellate court ‘requires’ it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the court to pronounce judgment or for any other substantial cause, but in either case, it must be the court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ‘when on examining the evidence as it stands some inherent lacuna or defect becomes apparent’.”

Again in K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526: (1964) 2 SCR 35] a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case [AIR 1931 PC 143] pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment”, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.”

With reference to the issue of additional evidence, pronouncement of the Apex Court in Union of India vs. Ibrahim Uddin and another, (2012) 8 SCC 148, would be relevant wherein it has been held as under:

“Order 41 Rule 27 CPC

The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526 ; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., (1975) 3 SCC 698; and Syed Abdul Khader v. Rami Reddy & Ors., (1979) 2 SCC 601).

The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not  require  any  additional  evidence  to  enable  it  to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., (1978) 2 SCC 493).

Under Order 41, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. (Vide: Lala Pancham).

It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the nonproduction 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. (Vide: State of U.P. v. Manbodhan Lal Srivastava , AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).

The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.

Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule.

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 in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed.

To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.”

Pronouncement of the Apex Court in Lekhraj Bansal vs. State of Rajasthan and another, (2014) 15 SCC 686, is also relevant wherein it has been observed as under:-

“The parties to an appeal shall not be entitled to produce additional evidence in the appellate court unless the conditions stipulated under Order 41 Rule 27 CPC are satisfied. It is not the case of the appellant that the trial court had refused to admit the said evidence which ought to have been admitted. It is also not the case of the appellant that the said evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him during pendency of the suit before the trial court. On the other hand it is vehemently contended that the said evidence, namely, the document was filed but was omitted to be tendered in evidence and got exhibited in the suit. The lower appellate court elaborately considered the factual matrix and held that the appellant has not satisfied any of the conditions stipulated under Order 41 Rule 27 and hence is not entitled to produce additional evidence. In our view the said finding has rightly been confirmed by the High Court.”

The observations of the Apex Court in Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82: (2019) 3 SCC (Civ) 112 are as under:-

“29. Under Order 41 Rule 27 CPC, the production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are:

(I) where the trial court had refused to admit the evidence though it ought to have been admitted;

(II) the evidence was not available to the party despite the exercise of due diligence; and

(III) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

An application for the production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents.”

It was held by the Apex Court in Sopanrao v. Syed Mehmood, (2019) 7 SCC 76: (2019) 3 SCC (Civ) 467: 2019 SCC OnLine SC 821 that:

“13. At this stage, it would be pertinent to point out that the appellant-defendants, during the course of this appeal, have filed a number of applications to place on record certain documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked into and entertained at this stage. The defendants did not file these documents before the trial court. No application was filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order 41 Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected and the documents cannot be taken into consideration.”

It was laid down by the Apex Court in Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247 that:

“7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, 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 in the suit and the interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514], the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or 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. It is further observed that 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.”

From the aforesaid pronouncements read with provision of Order 41 Rule 27 CPC, it is apparent that additional evidence can be led when there is refusal of Court to admit the evidence, the evidence was not available despite exercising due diligence and/or evidence is required by Court to adjudicate the dispute effectively.

The Appellate Court generally should not travel beyond the record of the Trial Court. Provision of Order 41 Rule 27 CPC is an exception. Where no evidence has been led, no prayer has been made to lead evidence or no application has been filed for leading the additional evidence, the documents cannot be taken on record by invoking Order 41 Rule 27 CPC.

Unless a case is governed under Clause (a) or Clause (b) of Order 41 Rule 27 CPC, it has to be necessary ingredient, to lead evidence under Clause (aa), to prove that evidence was not available with applicant and despite exercising due diligence, the evidence could not be produced before the Trial Court. Without satisfying the necessary ingredients, additional evidence cannot be permitted to be led in appeal.

It is also settled that additional evidence cannot be led to fill-up the lacuna left before the Trial Court.

In present case, owner of vehicle had produced driving licence Ext.RW1/B on 22nd/23rd June, 2012 along with original driving licence. There was cross-examination on behalf of appellant/Insurance Company. There is no suggestion that this licence was fake and there was tampering with respect to date of issuance and date of expiry of licence. The only suggestion put is that the date under signatures of attesting Authority is mentioned as 25.1.2012.

On 17th August, 2011, the case was fixed for evidence of respondents on 2nd September, 2011. Insurance Company was respondent No.1. On 25th May, 2012, matter was adjourned for recording the evidence of respondent on 22nd June, 2012. On 22nd June, 2012/23rd June, 2012 evidence of owner was recorded as RW1 and on that day, driving licence Ext.RW1/B was produced by owner.

On 22nd/23rd June, 2012, claim petitions were adjourned for recording evidence of respondents on 20th July, 2012. On 20th July, 2012 RW2 Roop Singh was examined on behalf of Insurance Company who had proved the issuance and genuineness of driving licence Ext.D1. Thereafter, evidence on behalf of Insurance Company was closed on the basis of separate statement recorded by the MACT on that date i.e. 20th July, 2012.

Thereafter, matter was listed for argument on 3rd August, 2012 on which date arguments were heard and matter was adjourned for passing final order on 31st August, 2012. On 31st August, 2012 impugned Awards were pronounced by MACT.

Along with applications, CMP Nos. 44 and 46 of 2013 filed under Order 41 Rule 27 CPC, photocopy of a document, claiming it application for verification of driving licence Ext.RW1/B along with report of District Transport Officer, Thoubal, District Manipur, has been annexed. Perusal of this document depicts that application was sent on 3.7.2012 and submitted on 5.7.2012 whereupon alleged report of DTO was supplied on 5.7.2012. Therefore, after production of driving licence dated 23.6.2012, but before the next date fixed for recording of evidence of respondent i.e. 20th July, 2012, on which date, a witness was also examined on behalf of Insurance Company, the Insurance Company was in possession of documents now proposed to be led in additional evidence. It is also apt to record that after recording of statement of owner and verification of driving licence by appellant, neither any step was taken to summon the witness or to examine the witness from DTO Thoubal, District Manipur nor any oral request was ever made to adjourn the matter to grant the opportunity to Insurance Company to rebut the licence Ext.RW1/B. The only step taken was to summon the concerned Dealing Hand from R&LA Pangi. After leading evidence on 20th July, 2012, no request was made to lead further evidence on behalf of appellant-Insurance Company, instead the evidence on behalf of Insurance Company was closed on its own by making statement by the counsel representing the Insurance Company. It is not a case that request of Insurance Company was rejected or evidence was closed by the Court/MACT.

Matter was not decided on the same day, i.e. 20.7.2012, but it was adjourned for arguments on 3rd August, 2012. On that day also, no request to adjourn the matter, to enable the Insurance Company to lead evidence, was made. Neither any application in writing for leading additional evidence nor any request orally was ever made before the MACT despite the fact that document purported to be received from DTO Thoubal, District Manipur was very much available with Insurance Company on 5th July, 2012. It is also apt to record that the Award was not passed till 31st August, 2012, but during this period also no efforts were made by Insurance Company. It is a fit case where due diligence, which is an essential ingredient to allow application under Order 41 Rule 27 CPC, in the given facts and circumstances of the case, is lacking. For laxity and callous attitude on behalf of Insurance Company, the Company has to suffer.

In aforesaid facts and circumstances, the averment made in application that document could not be produced despite exercise of due diligence is not substantiated. The due diligence must be apparent from the act, conduct and commission of applicant from the facts and circumstances on record, whereas exercise of due diligence in present case is completely missing. In such circumstances, additional evidence cannot be permitted to be led only to fill-up the lacuna by Insurance Company which left on account of failure in exercising due diligence. Therefore, there is no merit in applications CMP Nos. 44 and 46 of 2013 and same are dismissed.

Insurance Company is claiming breach on the part of insurer by allowing vehicle to be driven by a person having no valid driving licence. It is settled that breach alleged against insured must be established by insurer particularly when preliminary onus has been discharged by owner by leading evidence, in present case, by proving on record the documents of vehicle i.e. insurance and driving licence of driver. The Insurance Company is miserably failed to discharge its onus to establish the breach on the part of insured.

No other ground has been either taken in the grounds of appeal or urged during hearing of matter. Therefore, for dismissal of applications CMP Nos.44 and 46 of 2013, there is no merit in appeals.

Accordingly, appeals are dismissed.

Pending miscellaneous application(s), if any, also stand disposed of accordingly.