Vimal Kalra vs Madan Lal and Others

Sarojnei Saksena, J.—In this appeal, the appellant has filed four petitions.

Civil Misc No. 11482-CH of 1994

This petition is filed u/s 151 C.P.C for exemption from filing certified copies of Annexures and Civil Misc. No. 11482-CII to 11485-CI/94 Annexures A. 1 to A-3. This is allowed.

Civil Misc. No. ll483-C-II of 1994

This petition is filed u/s 5 of the Limitation Act. From the averments made in the petition, it is apparent that there is a delay of only four days. The reason is explained in the petition itself. This petition is allowed. Delay is condoned.

Civil Misc. No. 11484-C-II of 1994

This petition is filed under Order 41 Rule 5 read with Section 151 C.P.C. for staying the recovery proceedings. This petition is rejected.

Civil Misc. No. 11485-C-II of 1994.

This petition is filed under Order 41 Rule 27 read with Section 151 C.P.C. for permission to lead additional evidence. It is averred that the appellant intends to tender in evidence three documents i.e. registration certificate of the car, insurance certificate and the driving licence of respondent No. 3. Since these documents could not be filed in the trial Court the Insurance Company is exonerated from the liability of paying compensation to respondent No. l. Insurance Company in the trial Court had taken a false plea that one car having identical engine and chassis numbers insured with them but it not the car of the appellant. From a perusal of these documents, it will become evident that the appellant''s car was insured with respondent No. 2 and at the time of accident respondent No. 3 was having a valid driving licence. Appellant''s contention is that he gave these documents to his counsel to be produced before the claims Tribunal but his counsel never appeared and he was proceeded ex-parte. He has submitted his affidavit in support of these contentions.

Respondent No. 2 has vehemently opposed this petition. Under Order 41 Rule 27(1) (99) C.P.C, the appellant is required to plead that notwithstanding the exercise of due diligence this 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. In the aforesaid petition, no such averment is made by the petitioner. At this stage the appellant cannot be allowed to tender these documents in evidence when in the trial Court, after submitting the written statement, he remained absent and failed to produce these documents though they were in his possession. Hence the petition is dismissed.

So far as merits of the appeal are concerned, Motor Accidents Claims Tribunal has held that respondent No. 1 is entitled to recover Rs. 15,300/- as compensation for the injuries sustained by him in the accident, which was caused by respondent No. 3 when he was driving Maruti Car No. PB-ll-C-9800 owned by the appellant. The Insurance Company is not held liable for payment of this compensation, simply on the ground that there was no evidence on record to prove that this Maruti Car was insured with the Insurance Company. The appellant failed to produce the registration certificate of the said car to prove that this very car was in- sured with the Insurance Company. Hence, the trial Court rightly held the appellant liable to pay compensation to respondent No. l.

Appellant''s learned counsel relied on The Oriental Insurance Co. Ltd. Vs. Smt. Paro and Others, wherein it is held that it is the duty of the Insurance Company to prove breach of the conditions. If Insurance Company fails to produce the driving licence of the driver of the offending vehicle, it cannot be exonerated from that liability. By this Division Bench Judgment of this Court, the decision in New India Assurance Co. Ltd. Vs. Surinder Paul and Others, is overruled. The trial Court has relied on Surinder Paul''s judgment, but the appellant failed to produce the registration certificate which was in his possession, and thus there was no evidence before the Claims Tribunal to arrive at a conclusion that the aforesaid Maruti Car was insured with respondent No. 2 Even if it is to be held that it was the duty of the Insurance Company to get the driving licence produced by respondent No. 3 or to adduce its secondary evidence, even then in the absence of the registration certificate of the said Maruti car the Insurance Company could not have been liable for the payment of the compensation awarded to respondent No. l.

In view of the above facts, this appeal being meritless is dismissed. No order as to costs.