Zala Ramilaben Wd/O Manilal ... vs Mohamadjamil Mohamadhanif ...
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     C/FA/188/2023                           JUDGMENT DATED: 06/09/2023

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 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/FIRST APPEAL NO. 188 of 2023
                        With
  CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE)
                    NO. 1 of 2022
          In R/FIRST APPEAL NO. 188 of 2023

FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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     Whether Reporters of Local Papers may be
 1                                                                NO
     allowed to see the judgment ?
 2 To be referred to the Reporter or not ?                        NO
     Whether their Lordships wish to see the fair copy
 3                                                                NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution            NO
   of India or any order made thereunder ?

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     ZALA RAMILABEN WD/O MANILAL ATAMSINH
                         Versus
       MOHAMADJAMIL MOHAMADHANIF SHAIKH
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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     C/FA/188/2023                             JUDGMENT DATED: 06/09/2023

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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                          Date : 06/09/2023

                        ORAL JUDGMENT

1. Though served, the respondent Nos. 1 and 2 have failed to

appear before the Court. On behalf of respondent No. 3 - insurance

company, learned advocate Ms. Kirti Pathak is present.

2. Admit. Learned advocate Ms. Pathak waives service on behalf

of the respondent No. 3 - insurance company. Considering the

controversy involved and at the request of the learned advocates for

the parties present, the matter is taken up for final hearing today.

3. Heard, learned advocate Mr. Nishit Bhalodi for the appellants

- original claimants and learned advocate Ms. Kirti Pathak for the

respondent No. 3 - insurance company.

4. Learned advocate Mr. Nishit Bhalodi for the appellants

submits that the appeal has been moved with a prayer to modify the

judgment and award dated 07.10.2022 passed by the learned Motor

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Accident Claims Tribunal (Main) at Lunawada (Tribunal) in Motor

Accident Claim Petition No. 88 of 2021 and to make all the

opponents jointly and severally liable holding respondent No. 3 -

insurance company to pay the total compensation to the appellants

with 9% interest per annum from the date of filing the claim

petition. The learned advocate for the appellants submitted that the

claimants are the widow and the son, aged 17, who had moved the

Tribunal at Lunawada on the death of the head of the family -

Manilal Atamsinh, who, on 08.03.2021, along with opponent No. 1 -

respondent No. 1, was going on a motorcycle bearing registration

No. GJ-07-BG-8638 and between 19:00 to 19:30 hours, they were

passing through Gadhavada Dhori Dungari pick up stand and at that

time, a Nil cow suddenly came on the road and the opponent No. 1

applied the brakes and therefore, both the riders fell down from the

motorcycle; the deceased sustained injuries, and eventually,

succumbed to death.

4.1 Learned advocate Mr. Bhalodi submitted that during the

course of the trial, the widow and the son, could not efficiently bring

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the Driving Licence of the opponent No. 1 on record, as, because of

the accident and the restrictions of the widow, she could not

approach the opponent No. 1 for the copy of the Driving Licence,

while, rest of the documents, as were received from the police, were

produced on record. Learned advocate Mr. Bhalodi submitted that

as per the decision of the Hon'ble Supreme Court in Jai Prakash v.

National Insurance Co. Ltd. & Others, rendered in Special Leave

Petition (Civil) No. 11801-11804 of 2005 on 17.12.2009, the

Tribunal was required to call for the information in Form 54 under

the Central Motor Vehicle Rules, 1989 (Rules of 1989) and that

could have immediately brought the necessary documents on record,

which, the Tribunal failed to do so and further, submitted that the

insurance company, only by making a suggestion that the opponent

No. 1 was not having any Driving Licence at the time of accident

and there being a breach of policy condition, raised an issue that they

were not liable to pay the compensation. Mr. Bhalodi submitted that

in Jai Prakash' case (supra), the Apex Court was conscious of this

fact and therefore, necessary directions have been given to the

Tribunal as well as the police and the insurance company so that the

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claimants would not have to suffer at the hands of others, who were

mandated to produce the necessary documents to support the

Tribunal in granting just compensation.

4.2 Learned advocate Mr. Bhalodi for the appellants further

submitted that as per the decision of the Hon'ble Supreme Court in

National Insurance Co. Ltd. v. Swaran Singh & Ors.,

MANU/SC/0021/2004 : 2004 ACJ 1 (SC), a party pleading the

breach of condition of policy, is required to prove the same,

whereas, in the case on hand, the insurance company has failed to do

so and thus, it could not be absolved from the liability to pay the

compensation.

4.3 The learned advocate for the appellants submitted that it was

only after the judgment and award, the claimants could procure the

copy of Driving Licence of the opponent No. 1 and Annexure 'A' to

the civil application, which is the copy of Driving Licence of the

opponent No. 1, a perusal of which reveals that the licence was

issued to the opponent No. 1 on 30.01.2019, which was valid upto

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29.01.2039 and the opponent No. 1 holds licence for LMV and the

MCWG (Motor Cycle With Gear) from that date and the date of

accident is 08.03.2021 and thus, on the date of accident, the

opponent No. 1 was holding the valid and effective Driving Licence

and thus, it is submitted that the insurance company cannot be

absolved from the liability and accordingly, has made a prayer to

modify the award.

5. Per contra, learned advocate Ms. Kirti Pathak for the

respondent - insurance company, relying upon the following

decisions: i) N. Kamalam (Dead) and Ors. v. Ayyasamy and Ors.,

MANU/SC/0422/2001, ii) Union of India (UoI) v. Ibrahim Uddin

and Ors., MANU/SC/0561/2012; iii) K. R. Mohan Reddy v. Net

Work Inc. rep. Tr. M.D., MANU/SC/7978/2007; iv) North Eastern

Railway Administration, Gorakhpur v. Bhagwan Das (D) by Lrs.,

MANU/SC/7481/2008; v) Surendra Kaur and Ors., v. Vivek Gupta

and Ors., MANU/UP/1563/2019, submitted that Order 41 Rule 27

Civil Procedure Code, 1908 (CPC) requires that, only in three

exceptional circumstances, additional evidence can be permitted to

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be adduced before the Appellate Court, as provided under Section

107(1)(d) CPC. She submitted that Section 107 CPC carves out an

exception to the general rule and enables the Appellate Court to take

additional evidence or to require such evidence to be taken subject to

such conditions and limitations as may be prescribed under O.41

R.27 CPC. Ms. Pathak stated that such powers are to be exercised

sparingly and cannot be used to fill up the lacunae and the claimants

cannot be permitted, at this stage, to iron out the crease, which they

have left during the trial. Ms. Pathak for the insurance company

submitted that such a benefit of producing the additional evidence

cannot be granted to the litigants, who have been unsuccessful in the

lower Court, to patch up the weak part of their case and fill the

omission at the Court of appeal. Ms. Pathak submitted that before

admitting the additional evidence, the Appellate Court is bound to

examine the entire evidence on record and has to come to an

independent finding for arriving at a decision that the additional

evidence was necessary.

6. Regard being had to the submissions made and considering the

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issue involved in the appeal, it would be apt to refer to the

observations made in the decision in Jai Prakash (supra), which are

as under:

"Directions to Police Authorities

8. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations:

(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal: (i) The age of the victims at the time of accident; (ii) The income of the victim; (iii) The names and ages of the dependent family members.

(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries).

The names/addresses of injured or dependent family

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members of the deceased should also be furnished to the Tribunal.

(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.

(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.

9. To avoid any administrative difficulties in immediate implementation of sections 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158 (6) of the Act."

6.1 The Charge-sheet had been filed against the opponent No. 1.

The police would have put up the case against him and during the

course of investigation, would have asked for the licence of

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opponent No. 1. Form 54 under Rules of 1989 is, thus, the

requirement which is to be fulfilled by the police and the claims

Tribunal can always treat any report of accident forwarded to it

under Section 158(6) as an application for the compensation under

the MV Act, as provided under Section 166(4). Section 158(6)

provides that as soon as any information regarding any accident

involving death or bodily injury to any person is recorded or report

under this section [158(6)] is completed by a police officer, the

officer in-charge of the police station shall have to froward a copy of

the same within thirty days from the date of recording of information

or, as the case may, on completion of such report to the claims

Tribunal having jurisdiction and a copy thereof has to be provided to

the concerned insurer, and a copy if available to the owner, he shall

also within thirty days of receipt of such report, forward the same to

such claims Tribunal and insurer. By virtue of Sub-section (6) of

Section 158 of the MV Act, the legislature has tried to reduce the

period of pendency of the claim case and quicken the process of

determination of compensation by making it mandatory for the

registration of the motor accident claim within one month from the

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receipt of the receipt of first information of accident without the

claimants having to file a claim petition. As has been laid down in

Jai Prakash' case (supra), the learned Tribunal was required to

verify this fact from the police by complying the provisions of

Section 158(6) of the MV Act.

6.2 At present, a copy of Driving Licence of the opponent No. 1 is

produced on record in Civil Application (For Additional Evidence)

No. 1 of 2022. The liability of paying compensation of

Rs.10,50,000/- with 7% interest has been laid down on the

respondent Nos. 1 and 2 herein - original opponent Nos. 1 and 2 and

the insurance company has been exonerated by the Tribunal. Since

the record suggests that the Driving Licence of the opponent No. 1

was in force on the date of accident, the said document is a relevant

piece of evidence. The rigors of O.41 R.27 CPC would not come in

way as the provision of the MV Act, under Section 158(6) mandated

the police that officer in-charge of the police station to provide the

information to the claims Tribunal which also includes the

information as to the Driving Licence.

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6.3 In view of the above, it would be required that the said

information as to the Driving Licence is brought on record before the

Tribunal so as to provide opportunity to the insurance company or

the other parties on record to challenge the said fact.

7. For the forgoing reasons, the First Appeal No. 188 of 2023 as

well as the Civil Application (For Additional Evidence) No. 1 of

2022 succeed and are accordingly, allowed in part. The impugned

judgment and award is hereby modified to the aforesaid extent, and

the finding exonerating the insurance company from the liability to

pay the compensation, is hereby set aside. The appellants -

claimants are permitted to produce the copy of Driving Licence of

the respondent No. 1 herein - original opponent No. 1 before the

learned Tribunal concerned so as to examine the liability of the

insurance company for the payment of quantum of compensation as

has already been decided. Accordingly, the Motor Accident Claim

Petition No. 88 of 2021 is remanded back to the Tribunal concerned

at Mahisagar at Lunawada for deciding afresh the issue of liability of

paying the compensation already decided as aforesaid. The Tribunal

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is directed to provide due opportunity of hearing and leading

evidence qua the Driving Licence of the opponent No. 1 to both the

sides and shall decide the issue of liability to pay the compensation,

in accordance with law, as expeditiously as possible, but not later

than four months.

[ Gita Gopi, J. ] hiren /SB-5