Allahabad High Court
The New India Assurance Co. Ltd. vs Smt. Sunita Devi And Others on 10 October, 2012
Bench: Prakash Krishna, Arvind Kumar (Ii)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34
Case :- FIRST APPEAL FROM ORDER No. - 3694 of 2012
Petitioner :- The New India Assurance Co. Ltd.
Respondent :- Smt. Sunita Devi And Others
Petitioner Counsel :- Brijesh Chandra Naik
Hon'ble Prakash Krishna,J.
Hon'ble Arvind Kumar Tripathi (II),J.
Heard Shri Brijesh Chandra Naik, learned counsel for the appellant.
The present appeal has been filed against the award dated 8.8.2012 passed by the Motor Accident Claims Tribunal/Additional District & Session Judge, Court No.14, Aligarh in MACP No.292 of 2010. The said claim petition was filed on the allegations that in a road accident which took place on 18.2.2010, Manoj alias Monu was on his motor cycle and he was crushed by a truck bearing registration no. UP 80 R 9983 coming from the opposite direction. Manoj alias Monu died on the spot. The truck was caught on the spot which was released on 23.2.2010.
In response to the claim petition, the insurer filed written statement on the pleas inter alia that the claimants have no cause of action against the insurer. It was further pleaded that the driver of the truck in question had no valid driving license on the date of the accident and as such the insurer is not liable to pay the compensation amount.
The Tribunal framed as many as five issues in the light of the pleadings of the parties. It has been held that the truck in question was being driven rashly and negligently and it caused the death of Manoj alias Monu. The truck was being driven by a duly licensed driver and the driving license was effective on the date of the accident. The Tribunal has awarded a sum of Rs.4,41,500/- as compensation amount payable by the insurer.
The learned counsel for the appellant submits the following two points for consideration in the appeal.
Firstly, that the finding recorded by the Tribunal with regard to the driving license of the driver of the truck is incorrect. The submission is that the truck was not being driven by a duly driving licensed holder. To buttress the above submission, the learned counsel for the appellant filed an application under Order 41 Rule 27 CPC for taking additional evidence in the appeal. Secondly, that the deceased himself was responsible for causing the accident and he also contributed the accident. In this connection, the reliance was placed on the site plan.
Considered the aforesaid submissions of the learned counsel for the appellant.
Taking the first point first with regard to the driving license, it may be noted that the Tribunal under issue no.3 has found that the Insurer has failed to discharge its burden that the truck was not being driven by a duly licensed driver. To challenge the said finding, the learned counsel for the appellant has placed reliance upon a report of one Jai Singh, Advocate, Legal Investigator, the New India Ass.Co.Ltd. stating that the driving license No.6928/AG/04 was not issued to D.S.Sikarwar. It was issued to one Hitesh Najwani. The said document can be taken as an additional evidence under certain circumstances. The only ground for taking additional evidence in the appeal is that the appellant could not file the said document before the Tribunal. This can hardly be a ground for taking additional evidence in appeal. An additional evidence in the appeal can be taken under certain circumstances as mentioned under Order 41 Rule 27 CPC. In the application for taking additional evidence, none of the grounds mentioned therein has been set out in the application. Under Order 41 Rule 27 CPC, it is mentioned that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. It follows that generally the appellate court should not take the additional evidence on record. There is no explanation as to why the said report could not be obtained earlier. The application for taking additional evidence is therefore, rejected.
So far as the report of Transport Officer dated 27.1.2011 is concerned, the said report has been rejected by the Tribunal as it has not been proved by any witness or in any manner. This being so, we are of the view that the Tribunal has rightly ignored the said report dated 27.1.2011.
So far as the question of contributory of negligence is concerned, neither the insurer nor the insured person has examined any witness to prove the negligence if any of the motorcyclist. In the absence of any material, it cannot be presumed that the motor cyclist was also responsible for causing the accident.
Any other point was not pressed.
There is no merit in the appeal. The appeal is dismissed, summarily.
Rs.25,000/- deposited in this Court shall be remitted by the office forthwith to the concerned Tribunal for payment to the claimant/respondents.
(A.K.Tripathi(II),J) (Prakash Krishna,J)
Order Date :- 10.10.2012
IB
