The New India Assurance Co. Ltd vs Smti Mitali Deb & Ors.

Heard Ms. M. Choudhury, the learned counsel for the appellant. Also heard Mr. R. De, the learned counsel for the respondent Nos. 1 to 4 as well as Mr. F. A. Hassan, the learned counsel for the respondent No. 5/Owner.

This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant, New India Assurance Company Limited, impugning the judgment and award dated 30.06.2017, passed by the learned District Judge-cum-Member, Motor Accident Claims Tribunal, Karimganj, in MAC Case No. 1/2015, whereby the present appellant was directed to pay a compensation amount of Rs.5,73,000/- (Rupees Five Lakh Seventy Three Thousand) along with an interest at the rate of 7% per annum to the claimants.

The facts relevant for consideration of the instant appeal, in brief, are that one Rama Kanta Deb, who is the husband of respondent No. 1/claimant and father of other claimants met with an accident when a motorcycle bearing Registration No. AS-10-C-9023 knocked him. As a result of the said accident, the said Rama Kanta Deb succumbed to his injuries.

The present respondent Nos. 1 to 4/claimants approached the Court of learned District Judge-cum-Member, Motor Accident Claims Tribunal, Karimganj, by filing an application under Section 166 of the Motor Vehicles Act seeking compensation on account of death of said Rama Kanta Deb in the aforesaid motor vehicular accident. The owner of the offending motorcycle as well as the Insurance Company i.e., the present appellant contested the claim of the claimants by filing written statements wherein they denied their liability to pay any compensation to the claimants.

On the basis of pleadings of the parties, the Motor Accident Claims Tribunal formulated following issues: -

In support of their contention, the claimants’ side examined the claimant No. 1 as a witness and also exhibited certain documents. The Insurance Company or the owner of the offending vehicle did not adduce any evidence to counter the claim of the claimants. Ultimately, by the judgment and award which has been impugned in this appeal, the Motor Accident Claims Tribunal, Karimganj allowed the claim application of the claimants and directed the present appellant to pay the compensation to the claimants in the manner as already been described in the foregoing paragraphs of this judgment.

Ms. M. Choudhury, the learned counsel for the appellant has submitted that the appeal has been preferred on a very limited ground of breach of policy condition by the owner of the offending vehicle. In as much as the offending vehicle, which is a motorcycle was driven by a person who was not carrying any license to drive a motorcycle, rather, he was carrying driving license to drive only a Light Motor Vehicle (LMV). She submits that the appellant has also filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 which has been registered as I.A.(C) No. 1965/2026, wherein the present appellant has prayed for allowing the appellant/Insurance Company to produce additional evidence in the appellate stage to bring on record the driving license verification report. She submits that though the verification by the Insurance Company regarding driving license possessed by the driver of the offending vehicle was completed during the pendency of the MAC Case No. 1/2015 before the Motor Accident Claims Tribunal, Karimganj. However, the engaged counsel for the Insurance Company had misplaced the said report and, therefore, appropriate steps could not be taken for producing the same before the Motor Accident Claims Tribunal before delivery of the impugned judgment on 30.06.2017. As such, she submits that the Insurance Company may be allowed to adduce additional evidence at the appellate stage.

She further submits that otherwise also from the evidence which is already available on record i.e., Exhibit-4, which is the seizure list and Exhibit-5, which is the MVI report, it is clear that the driving license possessed by the driver of the offending motorcycle was only for driving LMV and as such, he did not carry a valid driving license when the accident had occurred and as such, there is a breach of policy condition. She, therefore, submits that the impugned judgment and award is required to be interfered with only to the extent that the liability for paying the compensation should be cast on the owner of the offending vehicle. She further submits that even in the event the Insurance Company is made to pay the compensation, they may be given liberty to recover same from the owner. In support of her submission, learned counsel for the appellant has cited following rulings: -

On the other hand, Mr. R. De, the learned counsel for respondent Nos. 1 to 4/claimants, has submitted that the Motor Accident Claims Tribunal has correctly assessed the negligence on the part of the driver of the offending vehicle and has rightly directed the appellant/Insurance Company to pay the compensation amount to the claimants.

He submits that the Insurance Company was afforded ample opportunity during the inquiry before the Motor Accident Claims Tribunal to adduce evidence in defence to counter the claim of the claimants; however, it has failed to do so. Now, by filing the interlocutory application under Order XLI Rule 27 CPC, the Insurance Company is seeking to cover up the lacuna in its case. He submits that there is a lack of due diligence on the part of the Insurance Company; hence, at this appellate stage, the Insurance Company may not be allowed to adduce any additional evidence, and the compensation awarded by the Tribunal may not be disturbed in any manner.

He submits that the Insurance Company has failed to fulfill the prerequisite conditions under Order XLI Rule 27 of the Code of Civil Procedure, 1908, before it could be allowed to adduce additional evidence at the appellate stage. He submits that the right to adduce additional evidence at the appellate stage is not an automatic right of the Insurance Company when it remains negligent throughout the inquiry period before the Motor Accident Claims Tribunal, hence, at this belated stage, it may not be allowed to adduce any additional evidence.

He submits that the award of grant of compensation to the claimants by the Motor Accident Claims Tribunal was passed on 30.06.2017, and for the last 9 years, the claimants have been deprived of the fruits of their litigation, in spite of the fact that their husband/father died in a motor vehicular accident due to no fault of his own. Hence, he prays for dismissing the appeal.

Mr. F. A. Hassan, the learned counsel for respondent No. 5/owner, has also submitted that the Motor Accident Claims Tribunal has rightly passed the award on the basis of evidence available on record, directing the Insurance Company to pay the compensation awarded to the claimants. He submits that the Insurance Company did not adduce any evidence during the inquiry, and now, at a belated stage during this appeal, they have filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, to allow them to adduce additional evidence at the appellate stage only to cover up the lacuna of their case.

He submits that the provisions contained in Order XLI Rule 27 of the Code of Civil Procedure, 1908 are not to supplement the deficiencies in the case of the Insurance Company when it had adequate opportunity to adduce such evidence before the Motor Accident Claims Tribunal. He submits that the provision to adduce additional evidence at the appellate stage cannot be availed as a matter of right, but only in exceptional circumstances, that too after fulfilling the prerequisite conditions laid down in the said provision. He accordingly prays for the dismissal of the appeal.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

Before considering the rival submissions made by learned counsel for both sides in this appeal, let me decide the I.A.(C) No. 1965/2026 filed by the Insurance Company/appellant in connection with the instant appeal under Order XLI Rule 27 of the Code of Civil Procedure, 1908 praying for allowing the Insurance Company/appellant to produce additional evidence at the appellate stage.

By filing the aforesaid interlocutory application, the Insurance Company is seeking to produce the verification report of the driving license of the driver of the offending vehicle, wherein it is stated that the driving license of the driver of the offending vehicle was in respect of LMV 3-wheeler, LMV only, and there was no endorsement authorizing him to drive a motorcycle.

The learned counsel for the appellant has submitted that the appellant could not take appropriate steps for adducing the aforesaid verification report during the inquiry before the Motor Accident Claims Tribunal as the said report was misplaced by the engaged counsel of the Insurance Company. As such, there is no negligence on the part of the Insurance Company in not adducing the said evidence before the Motor Accident Claims Tribunal during the inquiry.

Let us now discuss whether the application filed by the insurance company under Order XLI Rule 27 CPC may be allowed under the facts and circumstances of this case. For the sake of convenience, the provisions contained in Order XLI Rule 27 of the Code of Civil Procedure, 1908, are quoted hereinbelow:

On perusal of the aforesaid provision, it appears that an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, for adducing additional evidence at the appellate stage may be allowed only under the following three circumstances; -Firstly, if the Tribunal had illegally refused to admit such evidence that ought to have been admitted by it during the inquiry; Secondly, the party seeking to produce evidence establishes that, despite the exercise of due diligence, the evidence was not within their knowledge or could not be produced by them at or before the time when the award/appeal against them was passed; and thirdly,the appellate court requires any such documents to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

It is pertinent to mention herein that the expression "to enable it to pronounce judgment" has been interpreted by the Apex Court to mean that the Appellate Court must find the existing record inherently lacking or suffering from an inherent lacuna or defect that prevents a clear, just adjudication. It does not empower a litigant to patch up weak points, fill up the gaps, or remedy their own negligence during the inquiry before the Tribunal.

In the instant case, the only ground stated for non-production of the verification report of the driving license of the driver of the offending vehicle during the inquiry before the Motor Accident Claims Tribunal was that the same was misplaced by the counsel for the Insurance Company. Such a plea was never taken by the Insurance Company before the Tribunal that it could not produce the verification report during the inquiry. Rather, when the opportunity of leading evidence was given to the insurance company, it simply did not adduce any evidence. As such, at this belated stage, the appellant Insurance Company may not be allowed to fill up the gap in their case by curing the evidentiary deficiency and covering up the poorly conducted defense of their case before the Tribunal. There is an apparent lack of due diligence on the part of the Insurance Company.

As such, this Court is of the considered opinion that this is not a fit case where the appellant Insurance Company may be allowed to adduce additional evidence at the appellate stage for the grounds stated by them in the Interlocutory Application (C) No. 1965/2026.As such, the prayer for adducing additional evidence at the appellate stage by the appellant/Insurance Company is hereby rejected, and I.A. (C) No. 1965/2026 is hereby dismissed.

Now, let us discuss as to whether there was any breach of policy condition by the owner of the offending vehicle and whether for such breach, the Insurance Company may be exonerated from the liability of paying compensation to the claimants. In this regard, the observations, made by the Apex Court in the case of “National Insurance Company Limited Vs. Swaran Singh” reported in “(2004) 3 SCC 297”, wherein it has discussed the circumstances when the person has been granted license for one type of vehicle but at the relevant time, he was driving another type of vehicle, are relevant. The said observations of the Apex Court are quoted herein below: -

From the above observations, it becomes clear that in a case where the driver of the offending vehicle was holding license to drive a particular kind of vehicle, say LMV in this case, however, he was found driving another kind of vehicle on the date of accident, say a motorcycle, the Insurance Company will not be allowed to avoid its liability merely on the said ground unless it has adduced evidence to show that the fact that the driver of the offending vehicle was not having the license to drive such type of vehicle was the main or contributory cause of the accident. If on the facts, it is found that the cause of accident does not have any nexus with the driver of the offending vehicle not possessing requisite type of license, the insurer may not be allowed to avoid its liability to pay compensation merely for technical breach of conditions concerning driving license.

In the instant case, it appears from the materials on record that the Insurance Company did not adduce any evidence before the Tribunal to show that the fact of driver of the offending vehicle, not possessing driving license to drive a motorcycle was the main or contributory cause of accident.

In the I.A.(C) No. 1965/2026 also which was dismissed by this Court, for the reasons stated herein above, the Insurance Company only sought to exhibit the driving license verification report and nothing more. Even for argument’s sake, if it is assumed that the said verification report would have been allowed, it would have only shown that the driver of the offending vehicle was holding a license to drive LMV vehicle only. It would not have shown that said fact was the main or contributory cause of the accident. For that, something more has to be established by the Insurance Company to avoid its liability, however, no evidence was adduced by the Insurance Company before the Tribunal, during the enquiry.

In view of the discussions made and reasons stated in the foregoing paragraphs, this Court is of considered opinion that the appellant/Insurance Company has failed to establish by adducing reliable evidence that non-possessing of driving license to drive a motor cycle by the driver of the offending vehicle was the main or contributory cause for the accident, as required for avoiding its liability to pay compensation to the claimants. As such, this appeal is liable to be dismissed.

This appeal is accordingly dismissed.

The Insurance Company is directed to deposit the amount of compensation awarded by the Tribunal to the claimants, before the Registry of this Court, within a period of six weeks from the date of this judgment.

In the event of such deposit, same shall be disbursed to the claimants after proper verification.

Send back the records of MAC Case No. 1/2015 to the concerned Tribunal along with a copy of this judgment.