Gauhati High Court
The National Insurance Company Limited vs Smti Sulekha Das And 2 Ors on 1 August, 2024
Page No.# 1/5
GAHC010124772020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. :
I.A.(Civil)/1752/2024
THE NATIONAL INSURANCE COMPANY LIMITED
REGISTERED HEAD OFFICE AT 3
MIDDLETON STREET
CALCUTTA- 700071
REP. BY THE DEPUTY MANAGER
GAUHATI REGIONAL OFFICE
BHANGAGARH
GUWAHATI- 781005
KAMRUP(M)
ASSAM.
VERSUS
SMTI SULEKHA DAS AND 2 ORS
W/O- LATE RAMESH CHANDRA DAS
R/O- VILL.- NIZ KATIGORAH
PT.-III
P.O. AND P.S. KATIGORAH
DIST.- CACHAR
ASSAM
PIN- 788805.
------------
Advocate for : MS. R D MOZUMDAR
Advocate for : MR. M TALUKDAR appearing for SMTI SULEKHA DAS AND 2
ORS
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In
MFA Case No. 112/2023
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
01.08.2024
1. Heard Ms. R.D. Mozumdar, learned counsel for the petitioner. Also
heard Mr. S. Dutta, learned Senior Counsel, assisted by Mr. M. Talukdar,
learned counsel for the respondents.
2. This application under Order XLI, Rule 27 of the Code of Civil
Procedure, 1908 has been filed by the appellant/applicant praying for
allowing the appellant to exhibit the Insurance Policy.
3. The applicant has filed the connected MAC Appeal No. 112/2023,
wherein, it has impugned the Judgment and Award dated 19.11.2019,
passed in MAC Case No. 137/2017, by the learned Member, Motor
Accident Claims Tribunal, Cachar at Silchar.
4. The learned counsel for the applicant has submitted that as per the
Insurance Policy of the vehicle, which was involved in the accident, the
personal accident cover for 5 persons with liability of Rs. 1 lakh for
each passenger has been mentioned in the policy. Hence, it is
submitted by the learned counsel for the petitioner that the liability of
the insurance company may not exceed Rs. 1 lakh in terms of the
Insurance Policy. However, she submits that the Insurance Policy was
not exhibited by either the claimants or the respondents before the
learned Tribunal when the inquiry in MAC Case No. 137/2017 was going
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on.
5. The learned counsel for the applicant has submitted that though
the Insurance Policy in question has been annexed by the
applicant/appellant, along with the Memo of Appeal. However, as same
was not exhibited during the inquiry the applicant/appellant is desirous
of exhibiting the same, more so, when there is no dispute regarding
the existence or the terms of the policies.
6. On the other hand, learned Senior Counsel appearing for the
Opposite Parties/claimants has vehemently opposed the prayer for
exhibiting the Insurance Policy by the appellant at this stage.
7. The learned Senior Counsel for the Opposite Parties has submitted
that a prayer for taking additional evidence at the appellate stage may
be allowed only under exceptional circumstances, as provided in Order
XLI, Rule 27 of the Code of Civil Procedure, 1908.
8. The learned Senior Counsel for the Opposite Parties/claimants has
submitted that the general principle in respect of an application under
Order XLI, Rule 27 of the Code of Civil Procedure, 1908 is that the
Appellate Court should not travel outside the records of the Trial Court
and cannot take any evidence in Appeal. The exception to the general
rule has been provided in Order XLI, Rule 27 (1) (a), (aa) and (b) of
the Code of Civil Procedure, 1908.
9. The learned Senior Counsel for the respondents has also submitted
that the Appellate Court should not allow new materials to be produced
before the Appellate Court to enable a party to raise a new point in
Appeal which it had not taken before the Tribunal when the inquiry was
pending before it.
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10. The learned Senior Counsel for the Opposite Parties has also cited
a ruling of the Apex Court of India in the case of " Union of India v.
Ibrahim Uddin and another" reported in "(2012) 8 SCC 148,"
wherein the general principles of adducing additional evidence at
appellate stage has been thoroughly discussed by the Supreme Court
of India.
11. I have considered the submissions made by the learned counsel
for both the sides as well as perused the materials available on record.
12. It is no longer res integra that the general principles in respect of
adducing of additional evidence or production of a document at the
appellate stage is that the parties to an appeal shall not be entitled to
produce additional evidence in the Appellate Court unless and until any
of the circumstances as enumerated in Order XLI, Rule 27 (1) (a), (aa)
and (b) are there. Any of the circumstances mentioned in the aforesaid
provisions must exist before an application under Order XLI, Rule 27
may be allowed.
13. In the instant case, the appellant has annexed the policy in
question as Annexure-2 to the memo of appeal filed by the appellant.
However, no reason has been shown by the appellant as to why the
said Insurance Policy was not exhibited by the appellant before the
Motor Accident Claims Tribunal, when the inquiry in MAC Case No.
137/2017 was pending before it.
14. Certainly, the recourse to the provisions of Order XLI, Rule 27
cannot be taken for filling up of lacunae by either of the parties or for
setting up a new point at the Appellate stage. Regarding the necessity
of perusing the Insurance Policy by this Court is concerned, as the
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policy in question has already been annexed in the memo of appeal,
this Court may go through the same as and when required while
considering the instant appeal.
15. However, this Court is constrained to hold that the applicant has
failed to satisfy this Court that the condition required to be fulfilled for
allowing an application under Order XLI, Rule 27 are present in this
case. Hence, the application for exhibiting the policy in question by the
appellant at this stage is hereby rejected.
16. This Interlocutory Application is accordingly disposed of.
JUDGE
Comparing Assistant
