Delhi High Court
National Insurance Company Ltd. vs Neeraj Patney & Ors. on 21 November, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st November, 2012
+ MAC.APP. 259/2010
NATIONAL INSURANCE COMPANY LTD. ...... Appellant
Through: Mr. Pradeep Gaur, Adv.
versus
NEERAJ PATNEY & ORS. ..... Respondents
Through: Respondent No.3 in person.
+ MAC.APP. 268/2010
NATIONAL INSURANCE COMPANY LTD. ...... Appellant
Through: Mr. Pradeep Gaur, Adv.
versus
MAHESH CHANDER PATNEY & ORS. ..... Respondents
Through: Respondent No.3 in person.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM APPL.7556/2010 (Additional Evidence) in MAC.APP. 259/2010
CM APPL.7641/2010 (Additional Evidence) in MAC.APP. 268/2010
1. The Appellant Insurance Company seeks permission to produce evidence
to prove that the cheque issued by the Respondent (insured) was
dishonoured on presentation and thus it had no liability to pay the
compensation.
2. Learned counsel for the Appellant urges that the plea with regard to
dishonour of the cheque was taken in the written statement. However, the
Appellant did not produce any evidence as it was under the impression
that it had no liability, as the name of the Insured was deleted from the
array of parties.
3. Admittedly, no effort was made by the Appellant to produce any evidence
with regard to dishonour of the cheque or cancellation of the policy. In
order to make out a case for producing additional evidence a party
seeking production thereof must give satisfactory reason. The party must
prove that in spite of due diligence evidence could not be produced before
the Trial Court. The power under Order XLI Rule 27 CPC has to be
exercised judicially with circumspection only where the conditions
provided under Rule 27 of Order XLI CPC are satisfied. The Appellant
has not been able to make out a case where he could be granted
permission to lead evidence with regard to dishonour of the cheque and
cancellation of the policy at this stage after more than nine years of the
accident.
4. The Applications seeking permission to lead additional evidence in both
the Appeals are accordingly dismissed.
MAC.APP. 259/2010 and MAC.APP. 268/2010
5. A compensation of `14,000/- was awarded in favour of the First
Respondent in MAC APP.259/2010 and a compensation of `2,37,104/-
was awarded in favour of the First Respondent in MAC APP.268/2010
for having suffered injuries in a motor vehicle accident which occurred
on 25.04.2003.
6. The quantum of compensation is not challenged by the Appellant
Insurance Company. The only ground of challenge is that the cheque
paid towards premium of the insurance was dishonoured and
consequently, the Insurance Policy was cancelled. The Appellant
Insurance Company sought permission to lead additional evidence to
prove this fact. The Applications for additional evidence have been
dismissed as stated earlier. Thus, the Appellant has failed to prove that
the cheque issued towards premium was dishonoured or that the
Insurance Company policy was cancelled because of the same.
7. In this view of the matter, the Appellant Insurance Company cannot avoid
its liability.
8. The Appeals, therefore, have to fail; the same are accordingly dismissed.
9. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
10. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 21, 2012
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