MACApp./151/2017
2022 Latest Caselaw 4159 Gua

                                                                             Page No.# 1/11

GAHC010017522017




                           THE GAUHATI HIGH COURT AT GUWAHATI
            (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                              PRINCIPAL SEAT AT GUWAHATI


                                   MAC Appeal No. 151 of 2017


             National Insurance Company Limited,
             Having its registered office at Middleton
             Street, Kolkata and one of the Regional
             Offices known as Gauhati Regional Office,
             G.S. Road, Bhangagarh, Guwahati - 781005,
             Kamrup (Assam).
                                                                  ..................Appellant


                        -Versus-


       1.     Sri Rupjyoti Bordoloi,
             Son of Girindra Bordoloi,
             Resident of Village : Teleria Dekagaon,
             Sonitpur, P.O.-Dekargaon, P.S.-Tezpur,
             District- Sonitpur (Assam).
             Presently residing at C/o Prabin Sarma,
             Mangaldoi Santipur, Ward No. 4,
             P.O. & P.S.- Mangaldoi, District - Darrang,
             (Assam).
                                                           ....Respondent(s)/Claimant(s)

2. Mr Dipankar Bordoloi, Page No.# 2/11

Son of Girindra Bordoloi, Resident of Village : Teleria Dekagaon, Sonitpur, P.O.- Dekargaon, P.S.- Tezpur, District: Sonitpur (Assam) ....Respondent/Owner/ Driver of Vehicle No. AS-12-2656

Advocates for the appellant : Mr R K Bhatra Ms R Gangawat.

Advocate for the respondent          :              Mr J Islam.


                                                 BEFORE
                              HON'BLE MRS. JUSTICE MALASRI NANDI


       Date of Judgment                      :     28.10.2022.




                                 JUDGEMENT AND ORDER (CAV)

Heard Mr R K Bhatra, learned counsel appearing for the appellant/Insurance Company

and Mr J Islam, learned counsel appearing on behalf of the respondents.

2. The Insurance company is on appeal challenging the judgment and award dated

30.06.2014, passed by the learned Member, MACT, Darrang, Mangaldai, in MAC Case No.

252/2012, awarding compensation of Rs. 17,09,790/- (Rupees Seventeen Lacs Nine Thousand

Seven Hundred Ninety ) with 6% interest per annum from the date of filing of the claim

petition, till realization.

3. The brief facts of the case is that on 10,.08.2012, at about 05:30 pm, while the claimant

along with his friend Debashish Kashyap were going towards his home, Teleria through Page No.# 3/11

Kaliabhumura bridge, over NH-52, on foot, the offending vehicle bearing No. AS-12J-2656

(Indigo-ECS), coming from Nagaon side, with a high speed by driving in a rash and negligent

manner, knocked down the claimant, as a result of which, the claimant sustained grievous

injuries on his person. Immediately after the accident, the injured was admitted to Kanaklata

Civil Hospital, Tezpur. Later on, he was referred to GMCH, for better treatment. But due to the

deteriorating health condition of the claimant, he was admitted to GNRC, Guwahati, wherein

he was treated as an indoor patient w.e.f. 11.08.2012 to 20.08.2012. It is alleged that as a

result of the accident, the claimant has become a permanently disabled person and he has

also undergone treatment at Gopinath Bordoloi Mental Hospital, Tezpur. He had incurred Rs. 2

lacs for his treatment at different hospitals. After the accident, one case was registered vide

Tezpur PS Case No. 1175/2012, under Sections 279/427 IPC.

4. During trial, the claimant exhibited certain documents in connection with his treatment

in different hospitals and accident information report. Except the injured, four other witnesses

were examined by the claimant. After hearing the learned counsel for both the parties, the

Tribunal has delivered the judgment, awarding compensation in favour of the claimant as

aforesaid. Hence, this appeal.

5. It was urged by the learned counsel for the appellant/ Insurance Company that the

claim petition is an outcome of fraud perpetrated by the claimant and the claimant was

himself driving the offending vehicle, which belonged to his brother and the accident occurred

due to rash and negligent driving by the claimant himself, which reveals from the FIR and the

connected GD Entry, recorded on the date of accident. As such, the claimant is not entitled

for any compensation as because the case was filed under Section 166 of the Motor Vehicles

Act and Judgment and Award passed by the Tribunal is liable to be set aside.

Page No.# 4/11

6. It is also the submission of the learned counsel for the appellant that, he had filed an

application after filing of this appeal under Order 41 Rule 27 of the CPC, with a prayer to

submit additional evidence, which is necessary to decide the real controversy involved in the

appeal and the additional evidence, being in the nature of public documents, should be taken

into consideration in this appeal.

7. In support of his submission, learned counsel for the appellant has placed reliance on

the following case law:-

            (2016)         13        SCC       124;        (Union         of       India       -

Vs- K V Lakshman & Ors.)

8. On the other hand, learned counsel appearing for the respondent/claimant has

submitted that at the appellate stage, the parties to the appeal are not at liberty to file

additional evidence. Additional evidence at appellate stage can be filed, only if the applicant

fulfills the requirements provided order 41 rule 27 of CPC. The appellant has failed to fulfill

the conditions for filing additional evidence. As such, additional evidence filed by the

appellant at the appellate stage cannot be taken into consideration.

9. Learned counsel for the respondent/claimant has also argued that the learned Member,

MACT, after considering the pleadings of the parties, evidence of the witnesses and the

documents available in the record, has rightly delivered the judgment, which needs no

interference and as such, seeks dismissal of the appeal.

10. In support of his submissions, learned counsel for the claimant, cited the following case

law:-

(2012) 8 SCC 148; (Union of India -vs- Ibrahim Uddin & Another) Page No.# 5/11

11. I have considered the submissions of the learned counsel for the parties. I have also

perused the record of MAC Case No. 252/2012, along with the documents available in the

record.

12. There can indeed be no doubt that fraud vitiates every action and no one can take

undue advantage or thrive upon a benefit drawn by committing fraud. Court proceedings are

also not an exception. The question as to whether or not a party to a lis has committed fraud

is purely a question of fact. It is well settled that whosoever alleges fraud, must prove it.

13. In the instant case, the Insurance company was duly served with notice and in its

written statement, a categorical plea was taken that if collusion between the claimant and the

driver/owner of the vehicle was found, the Insurance Company would be able to take the

defence available under Section 170 of the MV Act. But no such application however appears

to have been moved by the Insurance Company and obviously no evidence was led before

the Tribunal to prove that the accident occurred due to rash and negligent driving of the

vehicle AS-12J-2656 (Indigo-ECS). This is the negligence/mistake on the part of the

Insurance Company not to have taken such plea.

14. The documents relating to criminal case might not be in the hands of the Insurance

Company, for which, without any such contrary to the facts of the case, the Insurance

Company did not raise the point before the Tribunal. The Tribunal also had not made any

enquiry and without having such documents relating to the accident, delivered the judgment

in favour of the respondent/claimant.

15. Except Form-54, no any document has been furnished by the claimant in support of his Page No.# 6/11

accident. As per Form-54, a case was registered vide Tezpur PS Case 1175/2012, under

Section 279/427 IPC. In the claim case, the claimant alleged that he sustained injury due to

the alleged accident, but it is to be noted that the case was not registered under Section 337

or 338 IPC, i.e., simple/grievous injuries/hurt. The Tribunal has awarded compensation on the

basis of registration of a case, vide Tezpur PS Case No. 1175/2012, in connection with the

accident, but the documents produced by the Insurance Company before this Court reveals

that ejahar was lodged by one Nityananda Doley, Junior Manager, Tezpur Electrical Sub-

Division., before the OC, Tezpur Police Station, dated 10.08.2012, stating inter alia that a 11

KV PSC Pole on the way to Kaliabhumura Bridge (Bhojkhuwa Chapori) has been damaged by

a Indigo-ECS, bearing No. AS-12J-2656, at around 4:00 pm and requested to verify the

cause of damage as occurred. On the basis of the said FIR, a case was registered vide Tezpur

PS Case No. 1175/2012, under Sections 279/427 IPC.

16. During investigation, the IO had seized the said Indigo car bearing AS-12J-2656 and its

documents. It appears that the registration certificate was issued in the name of the owner,

Dipankar Bordoloi, son of Mr Girindra Bordoloi, who is also the father of present claimant and

driving licence was also seized in the name of Dipankar Bordoloi. In connection with the

accident, the IO also seized 11 KV PSC Pole on the date of accident, i.e., 10.08.2012 from

Bhojkhuwa Chapori. Extract copy of GD Entry 602 dated 10.08.2012 also filed by the

Insurance Company in IA case No. 558/2018, which shows that on receipt of an FIR furnished

by one Nityananda Doley, Jr. Manager, Tezpur Electrical Sub-Division, it is learnt that at about

04:00 pm, a 11 KV PSC Pole, on way to Koliabhomora Bridge (Bhojkhowachapori) has been

damaged by a Indigo Car bearing Registration No. AS-12J-2656, at around 04:00 pm.

Accordingly, a case was registered vide Tezpur PS Case No. 1175/2012, under Sections Page No.# 7/11

279/427 IPC.

17. From extract copy of Tezpur PS GDE No. 559 dated 10.08.2012, it reveals that on return

of Traffic S I from the spot, it was reported that the driver of the Indigo ECS bearing

Registration No. AS-12J-2656 drove the vehicle from Tezpur towards Nagaon, in a rash and

negligent manner, and has lost control over the vehicle, and had hit the electric post near the

right hand side road near Koliabhomora Bridge (Bhojkhowachapori) and the vehicle had

turned turtle and fell in a pit. In the accident, the driver, Roopjyoti Bordoloi, son of Girindra

Bordoloi, sustained injuries and he was immediately shifted to Kanaklata Civil Hospital for his

treatment. The other three occupants of the vehicle had fled away and the vehicle was towed

with the help of the recovery van and brought to the Police Station.

18. From the documents submitted by the learned counsel for the Insurance Company in IA

Case No. 558/2018, under Order 41 Rule 27 CPC, for allowing the appellant to adduce

additional evidence and documents in the appeal, it has been formally proved that the

claimant was driving the vehicle at the time of accident and the accident occurred due to his

rash and negligent driving.

19. The Hon'ble Supreme Court in the case of Union of India -Vs- Ibrahim Uddin &

others (supra), while considering the provisions of Order 41 Rule 27 CPC, has held that the

said application is required to be decided along with the appeal and if the Court considers

that the documents are necessary to pronounce the judgment in the appeal in a most

satisfactory manner, the same may be allowed.

20. In the case of Billa Jagan Mohan Reddy & Anr. -Vs- Birla Sanjeeva Reddy and

Ors., reported in (1994) 4 SCC 659, the Hon'ble Apex Court opined that appellate Court Page No.# 8/11

can receive additional evidence if it considers to be needed in the interest of justice. The

Court held as follows:-

"......These documents were not in the possession or custody of the appellants,

but they have obtained certified copies from the Revenue Authorities and sought

to be produced. It is undoubted that there is a delay in production of the said

documents. It is settled law that, if the documents are found to be relevant to

decide the real issue in the controversy, and when the court felt that interest of

justice requires that the documents may be received, exercising the power under

Order 41, Rule 27 CPC the appellate court would receive the documents and

consider their effect thereof. When such is the position, ...the trial court was not

justified in refusing to condone the delay and to receive the documents. The High

Court also committed the same error in not considering the effect in this behalf in

the right perspective. The orders are accordingly set aside and the delay in filing

the documents is condoned. The trial court is directed to receive the documents,

give an opportunity to the parties to prove the documents and if necessary,

opportunity to the respondent to rebut the same and then dispose of the

reference according to law."

21. In the case of Union of India -Vs- Ibrahim Uddin (supra), the Hon'ble Apex Court

discussed the powers of the appellate Court under Order 41 Rule 27 CPC threadbare and

observed that in the matter of allowing additional evidence, the appellate Court can exercise

its discretion to allow production of in exceptional circumstances. The Court also passed the

word of caution that such power should be exercised judicially and with circumspection, only

where any of the pre-requisite condition provided under Rule 27 exists. Hon'ble Apex Court Page No.# 9/11

has given latitude to the appellate Court for allowing production of additional evidence at the

appellate stage if the additional evidence is found to have important bearing on the main

issue or found to be necessary to remove any lacunae in evidence and in clearing any doubt

for pronouncing judgment and required in the interest of justice.

22. Reverting back to the present case, the appellant Insurance Company is a public

authority and has sought to produce some documents relating to the case in connection with

the accident for which, the claimant has claimed compensation. It is seen that the claimant or

his family members did not lodge any FIR in connection with the accident of claimant. As I

have already stated that the ejahar was lodged by the Junior Engineer of the Tezpur Electrical

Sub-division, alleging damage of the 11 KV Electric Post by the Indigo ECS Vehicle bearing

Registration No. AS-12 J-2656 and on the basis of the said FIR, a case was registered vide

Tezpur PS Case No. 1175/2012, under Sections 279/427 IPC and the claimant has claimed

compensation on the basis of the said FIR, vide Tezpur PS Case No. 1175/2012.

23. It is apparent that there was no allegation in the FIR that while the claimant along with

his friend Debashish Kashyap were going towards his home, Teleria through Kaliabhumura

bridge, over NH-52, on foot, the offending vehicle bearing No. AS-12J-2656 (Indigo-ECS),

coming from Nagaon side, with a high speed by driving in a rash and negligent manner,

knocked down the claimant, as a result of which, the claimant sustained grievous injuries on

his person. The claimant while deposing before the Court had stated so. But in the claim

petition, the claimant did not utter a single word that PW-2 Debashish Kashyap accompanied

him at the relevant time of accident. As per the claim petition, the claimant was walking on

the road, but the offending vehicle bearing Registration No. AS-12J 2656, coming in a rash

and negligent manner knocked him down, as a result of which, he sustained grievous injuries Page No.# 10/11

on his person, but on subsequent production of documents by the appellant at the appellate

stage, it reveals that the claimant himself was driving the vehicle in a rash and negligent

manner, for which the accident occurred by damaging 11 KV Electric Post near Kaliabhumura

bridge and a case was registered vide Tezpur PS Case No. 1175/2012 under Sections 279/427

IPC.

24. It is true that due to the alleged accident, the claimant had sustained injuries on his

person, but the accident occurred due to rash and negligent driving by the claimant himself,

who drove the vehicle, bearing Registration No. AS-12J-2656 at the relevant time of accident.

Though the claimant has filed an affidavit in opposition against the application under Order

41 rule 27 of CPC, filed by the appellant, but nothing has come out from the objection filed

by the claimant to prove that the appellant has filed the application at the appellate stage to

fill up the lacuna. The claimant while filing objection is totally silent why they have failed to

submit those documents, i.e., relating to criminal case in connection with his accident, before

the Tribunal during trial, which documents were very much required for proper adjudication of

the case.

25. In view of the above, I am of the opinion that the claimant has not come with clean

hands and he has failed to prove the fact that he was not driving the vehicle at the relevant

time of accident, but the vehicle was driven by the owner/driver of the offending vehicle, who

is his brother. The claimant is not entitled for any compensation, as awarded by the learned

Tribunal. Hence, the Judgment and order dated 30.06.2014, passed by the learned Member,

MACT, Darrang, Mangaldoi, in MAC Case No. 252/2012, is set aside. The Insurance Company

is at liberty to recover the award/compensation, if any paid earlier.

Page No.# 11/11

26. In the result, the appeal stands allowed.

27. LCR be returned.

28. Statutory amount in deposit be refunded accordingly.

JUDGE

Comparing Assistant