Chattisgarh High Court

Naresh Kumar Thakur And Anr vs Rambai And Ors on 6 May, 2022

                                1

                                                           NAFR

     HIGH COURT OF CHHATTISGARH, BILASPUR

                   MAC No. 590 of 2014

               Order reserved on : 24/02/2022

              Order Delivered on: 06/05/2022

1. Naresh Kumar Thakur S/o Jhaggar Ram Thakur, aged about
   41 Years, R/o Devinawagaon, Post- Tekapar, Tah. and P.S.
   Balod, Distt. Balod C.G., Chhattisgarh.

2. Narayan Singh Sonsarve S/o Late Ruhela Sonsarve, Aged
   About 47 Years C/o Dayaluram Sahu, R/o Post- Latabod, Tah.
   And P.S. Balod, Distt. Balod C.G., Thru- Power Of Attorney
   Holder- Gawaskar Prasad, S/o Dayaluram Sahu, Age- 33 Yrs,
   R/o Latabod, Tah. And P.S. Balod, Distt. Balod C.G., District :
   Balod, Chhattisgarh.

                                                 ---- Appellants

                           Versus

1. Rambai D/o Late Pradeep Kumar Sahu Aged About 35 Years
   R/o Latabod, Tah. And P.S. Balod, Distt. Balod C.G.,
   Chhattisgarh.

2. Kumari Kavita Sahu D/o Late Pradeep Kumar Sahu Aged
   About 17 Years Minor, Thru- Mother Smt. Ram Bai, R/o
   Latabod, Tah. And P.S. Balod, Distt. Balod C.G., District :
   Balod, Chhattisgarh.

3. Naveen Kumar S/o Late Pradeep Kumar Sahu Aged About 15
   Years Minor, Thru- Mother Smt. Ram Bai, R/o Latabod, Tah.
   And P.S. Balod, Distt. Balod C.G., District : Balod,
   Chhattisgarh.

4. Deepak S/o Late Pradeep Kumar Sahu Aged About 12 Years
   Minor, Thru- Mother Smt. Ram Bai, R/o Latabod, Tah. And P.S.
   Balod, Distt. Balod C.G., District : Balod, Chhattisgarh.

5. Kaliram @ Ramkishun S/o Late Suklal Aged About 65 Years
   R/o Latabod, Tah. And P.S. Balod, Distt. Balod C.G., District :
   Balod, Chhattisgarh.

6. Smt. Kesar Bai W/o Kaliram (Kalram) @ Ramkishun Aged
   About 62 Years R/o Latabod, Tah. And P.S. Balod, Distt. Balod
   C.G., District : Balod, Chhattisgarh.

7. Branch Manager W/o United India Insu. Co. Ltd., Paras
   Complex, In Front Of S.B.I. Gurudwara Station Road, Durg,
   Distt. Durg C.G., District : Durg, Chhattisgarh.

                                               ---- Respondents

For Appellants : Shri Rajkumar Pali, Advocate For Respondents No. 1 to 6 : Shri Prasoon Agrawal, Advocate For Respondent No.7 :Shri R. N. Pusty, Advocate

Hon'ble Smt. Justice Rajani Dubey

C A V Order

1. This appeal has been filed by the appellants under Section

173 of the Motor Vehicle Act, 1998, challenging the award

dated 05.03.2014 passed in Claim Case No. 78/2013 by the

Second Additional Motor Accident Claims Tribunal, Balod,

District Balod (C.G.)

2. Appellants have filed I.A. No. 03/2020, application for taking

additional documents on record on the ground that appellant

had filed I.A. No. 02/2019 application under order 41 Rule 27

CPC along with copy of permit certificate but due to bona-

fide clerical mistake, the documents has been filed

photocopy version instead of original before this Court. Now

they filed original permit certificate vide Annexure A/3, which

is part and parcel for deciding the present case, therefore,

the appellants prays that the documents may be taken on

record in the interest of Justice.

3. In this case, appellant No. 1 is the driver of the ill-fated

Metador bearing Registration No. CG-07 ZB-0617 and

appellant No. 2 is the owner of the said vehicle. The

prosecution story in brief is that on 04.09.2012 at about 7:00

PM, deceased Pradeep Kumar was going towards bus stand

of Village Latabod from his house on foot, at that time, the

said vehicle, driven by appellant No.1, dashed the Pradeep

Kumar from backside, due to which, he sustained grievous

injuries and died on the spot. The claimants have claimed

that they were dependent upon the deceased and due to

untimely death, have claimed compensation for a sum of Rs.

32,21,000/- from the driver, owner and insurance company

jointly and severally.

4. Appellant No.1 had submitted his reply stating therein that

on the date of incident he was not driving the said Vehicle.

Appellant No.2 had also submitted that on the date of

incident, one Ramesh Kumar, brother of the deceased, was

authorized driver of the said vehicle. The Insurance Company

had taken his defence stating that on the said date, the

driver did not have the valid and effective driving license,

therefore, as there was violation of conditions of insurance

policy, the Company is not liable for the compensation.

5. After hearing the parties, the Tribunal awarded compensation

of Rs. 3,71,000/- with interest @ 6% per annum, in favour of

the claimants from the appellant No.1 Naresh Kumar Thakur

(driver) and appellant No. 2 Narayan Singh Sonsarve

(owner). Feeling dissatisfied with the impugned award, the

appellants have filed the present appeal.

6. Learned counsel for the appellants submitted that the

learned Tribunal committed error in passing the impugned

award as learned Tribunal did not consider the fact that, at

the time of incident, one Ramesh Kumar, brother of the

deceased was authorized driver of the said vehicle. He next

contended that the findings of learned Tribunal with regard

to violation of conditions of insurance policy is perverse to

the material available on record. Furthermore, learned

Tribunal has ignored the fact that the appellants have been

acquitted in the criminal case from the charge under Section

304-A of IPC, by the Criminal Court. Based on the aforesaid

ground, counsel for the appellants has prayed for setting

aside the impugned award dated 05.03.2014. In support of

their case, counsel for the appellants placed reliance on

Vijay Kumar Ojha Vs. Sushila Yadav decided on

23.03.2021 in FA No. 131/2010, Union of India Vs. K.V.

Lakshman & Others (2016) 13 SCC 124, Oriental Fir &

General Insurance Co. Ltd. Vs. Madhuben Shanabhai &

Others (2008) 1 TAC 857.

7. On the other hand, respondent No. 7 opposes the application

filed by the appellants and submits that the authenticity of

the document is doubtful and I.A. No. 03/2020, is not liable to

be accepted as the appellants has not given any reasonable

reason as to why the so-called permit could not be adduced

in evidence before the claims Tribunal. Mere filing of

document before this Court is not sufficient, the appellants

have to prove the same according to law. Since, the

appellants have breached the conditions of policy, the

application and appeal are liable to be dismissed. In support

of his submission learned counsel appearing for the

Insurance Company has placed reliance in the matter of

Vikas Kumar Verma Vs. Lachiya Devi & Others (2012)

3 CGLJ 585.

8. Heard, counsel for the parties and perused the material

available on record.

9. Learned claims Tribunal has framed the following issues in its

judgment as under:-

Þ1- D;k ?kVuk fnukad 4-09-2012 le; 7 cts 'kke fnu eaxyokj dks

vukosnd dzekad 1 ds pkyd us VkVk 407 eSVkMksj okgu dzekad lhth 07

tsM- ch- 0617 dks rsth ,oa ykijokghiwoZd pkyu dj xzke ykVkcksM y{eh

VzsMlZ ds lkeus Ckkyksn nqxZ jksM esa iznhi dqekj lkgw dks ihNs ls Bksdj ekj

fn;k] fslls iznhi dqekj dh e`R;q gks xbZ\

2- D;k ?kVuk ds le; e`rd iznhi dqekj dh vk;q 44 o"kZ Fkh] tks ds

Hkxorh VzkaliksVZ LVs'ku jksM rsy?kkuh ukdk jk;iqj esa Mzk;ojh dk dk;Z

djds izfrekg 10]800 ¼nl gtkj vkB lkS½ #i;s osru izkIr djrk Fkk\

3- D;k chek 'krZ dk mYya?ku gS] ;fn gka rks izHkko\

4- D;k vkosndx.k] vukosndx.k ls {kfriwfrZ djus ds vf/kdkjh gSa] ;fn gka

rks fdlls vkSj fdruk\

5-okn O;; ,oa lgk;rkAß

10. Learned claims Tribunal has decided issue No. 3 against the

appellants by recording the finding that appellant No. 1

Naresh Kumar Thakur, driver of the ill-fated vehicle, did not

have the valid license and permit at the time of incident, and

as such, in absence of permit insurance company is not

liable for compensation. Now, the question for consideration

is whether the appellant has the valid license and permit and

can it be admitted for further consideration of the case?

11. Order 41 Rule 27 of CPC provides 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, establishes 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 decree appealed against was passed, or]

(c) 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

12. Appellants have filed application under Order 41 Rule 27 on

the ground that the appellants are poor villagers and

illiterate persons. During trial they had to submit certificate

of valid permit but due to bona-fide mistake they filed

acknowledgement of receipt of online tax payment from

Transport office, Durg, instead of certificate of valid permit.

The learned claims Tribunal found that appellants did not file

valid permit, as such, they breached the conditions of

insurance company and exonerated the insurance company

51 Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977)

from compensation. The appellants have filed Annexure A/3,

original permit certificate issued by the Transport Officer,

Raipur which shows that the permit was effective from

12.02.2009 till 11.02.2014 and the date of incident was

04.09.2012 thus, it is clear that at the time of incident as

well as at the time of proceedings of claims Tribunal, the

appellants had valid permit.

13. While dealing with the issue, Hon'ble Supreme Court, in the

matter of Jayaramdas & Sons Vs. Mirza Rafatullah Baig

and others, (2004) AIR SC 3685 has held that:-

"additional evidence whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule (1) OF Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause(b)".

14. Thus, it is clear that this document is related to valid permit

of the offending vehicle which is necessary to decide the

matter of compensation. Since this document was not

produced before the claims Tribunal, this document was not

considered.

15. Upon due consideration, I.A. No. 2/2019, application under

Order 41 Rule 27 of CPC & I.A. No. 03/2020, application for

taking additional documents on record, are allowed and the

documents are taken on record as an additional evidence.

The findings of award dated 05.03.2014 passed by the 2nd

Additional Motor Accident Claims Tribunal, Balod, District

Balod (C.G.) with regard to issue Nos. 3, 4 & 5 are set-aside.