Jharkhand High Court
M/S. Magma Hdi General Insurance ... vs Meena Devi Wife Of Late Kailash Rai on 1 April, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 334 of 2016
----
M/s. Magma HDI General Insurance Company Ltd., through Legal
Manager, Magma House, 24, Park Street, Kolkata, P.O. & P.S. Park
Street, District Kolkata (West Bengal) represented by Rishav Dev son
of Sri Binay Kumar, Deputy Manager (Legal), Magma HDI GIC Ltd.,
having its office at Magma House, 24, Park Street, Kolkata, P.O. &
P.S. Park Street, District Kolkata (West Bengal).
... ... Appellants
-versus-
1. Meena Devi wife of Late Kailash Rai
2. Mamta Kumari daughter of late Kailash Rai
3. Dharamveer Kumar Rai son of late Kailash Rai
4. Pooja Kumari daughter of Late Kailash Rai
5. Karmveer Kumar Rai son of Late Kailash Rai
6. Vishal Kumar Rai son of Late Kailash Rai
Nos.2 to 6 are minor and they are represented through their natural
guardian i.e. respondent No.1.
All resident of Anugrah Nagar, Near Panchayat Bhawan, Dhansar,
P.O. & P.S. Dhansar, District Dhanbad.
7. Mukhlal Prasad Gupta son of late Indradev Saw, at present
resident of Gurudwara Road, Gaya, P.O. & P.S. Nagar, District Gaya
(Bihar), permanent resident of VPO Manaser, P.O. & P.S. Manaser,
District Gurgaon (Haryana).
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Appellants : Mr. Bibhash Sinha, Advocate
For the Respondents : Mr. Arun Kumar, Advocate
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10/01.04.2022 I.A. No.7049 of 2021
This interlocutory application has been filed by the appellant
under Order XLI Rule 27 of the Code of Civil Procedure for production of
additional evidence. The additional evidence, which is sought to be
brought on record is a certified copy of order dated 10.10.2014 passed
by the Deputy Labour Commissioner-cum-Commissioner under the
Employees' Compensation Act, 1923, Magadh Circle, Gaya in Case No.
C.W.C.5 of 2013.
2. Counsel appearing on behalf of the appellant-Insurance
Company submits that this is a very important document, which needs
to be exhibited. As per him, this document will have a great impact on
the final decision of this appeal. It is submitted that Gautam Kumar, who
was the driver of the offending vehicle, was less than 18 years when he
had obtained the driving licence for driving the truck, thus, the licence
was obtained by fraudulent means. He submits that the parents of the
deceased Gautam Gupta filed an application claiming compensation
under the Employees' Compensation Act before the Deputy Labour
Commissioner-cum-Commissioner under the Employees' Compensation
Act, 1923, Magadh Circle, Gaya, who after considering all the aspects,
concluded that the deceased was a minor on the date when the licence
was procured, thus, the claimants are not entitled to any relief. It is the
contention of the counsel for the appellant that since the deceased was
minor on the date when the licence was obtained, the entire procedure
for obtaining the licence is vitiated, as a minor cannot be allowed to
obtain a driving licence to drive heavy motor vehicle. As per him, the
document, which is sought to be exhibited as an additional evidence, is
a public document and can be tendered without formal proof. He
submits that the appellant could not bring the said document despite
due diligence, but since the document has a direct bearing on the
appeal the same should be exhibited.
3. Counsel appearing on behalf of the claimants submitted
that the document, which is sought to be exhibited, has got no relevance
in the instant appeal. As per him, the order, which is sought to be
exhibited, is dated 10.10.2014, whereas the judgment under appeal is
dated 13.05.2016, which suggests that the appellant was knowing about
the said document, but, they did not chose to produce the same before
the Tribunal. That being so, appellant should not be allowed to produce
the document by way of additional evidence. His submission is that in
normal course, additional evidence should not be accepted, but, only if a
case falls within the four corners of the exceptions then only a document
can be exhibited. As per him, the case of the appellant does not fall
within the four corners of the exceptions, thus, this application should be
dismissed. It is his submission that even if the driver was minor at the
time of obtaining licence, on the date of accident, he turned major, thus,
it cannot be said that the licence became invalid.
4. After hearing learned counsel for the parties, I find that the
appellant seeks to introduce the certified copy of the judgment/order
date 10.10.2014 passed by the Deputy Labour Commissioner-cum-
Commissioner under the Employees' Compensation Act, 1923, Magadh
Circle, Gaya in Case No. C.W.C.5 of 2013 by invoking provisions of
Order XLI Rule 27 of the Code of Civil Procedure.
5. From perusal of Order XLI Rule 27 (1) of the Code of Civil
Procedure, I find that in normal circumstances, parties to an appeal are
not entitled to produce additional evidence, be it oral or documentary.
There are exceptions, which are carved out, which are mentioned in
Order XLI Rule 27 (1) (a), (aa) and (b).
Order XLI Rule 27(2) provides that if an evidence is allowed
to be adduced at the appellate stage, the Appellate Court shall record
reasons for its admission. For better appreciation, the provisions of
Order XLI Rule 27 are quoted hereinbelow: -
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 the decree appealed against was passed, or
(b) 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
6. As held earlier, exceptions to the Rule have been provided
in Order XLI Rule 27 (1) (a), (aa) and (b). Three conditions laid down for
exhibiting additional evidence at the appellate stage are:-
(i) The Trial Court has refused to admit the evidence,
which ought to have been admitted;
(ii) Party seeking to adduce the evidence, establishes
that the said evidence was not within the knowledge
after exercise of due diligence, thus, he could not
produce the same before the Trial Court;
(iii) If the Appellate Court requires any document to be
produced or any witness to be examined to enable it
to pronounce the judgment or for any other
substantial cause.
7. From perusal of all these three conditions, which have been
enumerated in Order XLI Rule 27 (1) - (a), (aa) and (b), I find that after
each of the exception, the word 'OR' has been used, which means that
existence of any one of the conditions is sufficient to allow a petition
under Order XLI Rule 27 of the Code of Civil Procedure. It is not
necessary that all the three conditions should coexist.
8. In a very recent decision, in the case of Sanjay Kumar
Singh versus State of Jharkhand reported in 2022 SCC OnLine SC
292 the Hon'ble Supreme Court has held that the parties, as a matter of
right, are not entitled to adduce additional evidence by invoking Order
XLI Rule 27 of the Code of Civil Procedure. The Appellate Court may
permit additional evidence to be adduced, if the conditions laid down in
the Rule are found to exist. The Hon'ble Supreme Court further went on
to hold that where the additional evidence sought to be adduced
removes the cloud over the case and the evidence is important and has
direct bearing on the issues in the suit, in that case additional evidence
may be permitted to be recorded. The Hon'ble Supreme Court further
held that one of the circumstances under which the production of
additional evidence is to be recorded is whether or not the Appellate
Court requires the same for pronouncement of judgment. Hon'ble
Supreme Court, in the aforesaid judgment, while relying upon A.
Andisamy Chettiar versus A. Subburaj Chettiar, reported in (2015)
17 SCC 713, has held that admissibility of additional evidence does not
depend on the relevancy of the issue on hand or on the facts. The main
consideration would be whether the Appellate Court requires the
evidence sought to be adduced to enable it to pronounce the judgment.
As per the Hon'ble Supreme Court, the true test is whether the Appellate
Court is able to pronounce the judgment on the materials without taking
into consideration the additional evidence sought to be adduced. It is
necessary to quote paragraph 4 of the said judgment :-
4. It is true that the general principle is that the
appellate court should not travel outside the record of
the lower court and cannot take any evidence in appeal.
However, as an exception, Order 41 Rule 27 CPC
enables the appellate court to take additional evidence
in exceptional circumstances. It may also be true that
the appellate court may permit additional evidence if
the conditions laid down in this Rule are found to exist
and the parties are not entitled, as of right, to the
admission of such evidence. However, at the same
time, where the additional evidence sought to be
adduced removes the cloud of doubt over the case and
the evidence has a direct and important bearing on the
main issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be
permitted on record, such application may be allowed.
Even one of the circumstances in which the production
of additional evidence under Order 41 Rule 27 CPC by
the appellate court is to be considered is, whether or
not the appellate court requires the additional evidence
so as to enable it to pronouncement judgment or for
any other substantial cause of like nature. As observed
and held by this Court in the case of A. Andisamy
Chettiar v. A. Subburaj Chettiar, reported in (2015) 17
SCC 713, the admissibility of additional evidence does
not depend upon the relevancy to the issue on hand, or
on the fact, whether the applicant had an opportunity
for adducing such evidence at an earlier stage or not,
but it depends upon whether or not the appellate court
requires the evidence sought to be adduced to enable it
to pronounce judgment or for any other substantial
cause. It is further observed that the true test, therefore
is, whether the appellate court is able to pronounce
judgment on the materials before it without taking into
consideration the additional evidence sought to be
adduced.
9. Applying the aforesaid law, I find that the appellant wants to
bring on record certified copy of a judgment/order dated 10.10.2014
passed by the Deputy Labour Commissioner-cum-Commissioner under
the Employees' Compensation Act, 1923, Magadh Circle, Gaya in Case
No. C.W.C.5 of 2013 to prove that the driver of the offending truck was a
minor on the date when he had obtained driving licence. It is the case of
the appellant that the licence could not have been issued in favour of a
minor and obtaining such licence is fraud and fraud vitiates all
subsequent action. It is his contention that if he is able to prove by the
aforesaid judgment that the driver was minor at the time of obtaining
licence, then it will be presumed that he was driving the vehicle without
a valid licence, thereby the Insurance Company would be absolved from
indemnifying the owner of the vehicle. Counsel for the respondents
submitted that this document is of no relevance. Whether the judgment
is of relevance or not, will be seen at the time of final hearing and not at
the stage when the Court is considering whether to admit the document
or not. As per the judgment of the Hon'ble Supreme Court in the case of
Sanjay Kumar Singh (supra), admissibility of certified copy of the
judgment does not depend upon the relevancy to the issue on hand. If I
apply the true test, I find that this judgment is an important document for
considering the entire appeal as the same may have some impact on
the final judgment of this appeal. Thus, by invoking Order XLI Rule 27
(1) (b) of the Code of Civil Procedure, this document is admitted in
evidence.
10. The interlocutory application is, thus, allowed. The appellant
is directed to bring on record the certified copy of judgment dated
10.10.2014 as additional evidence. The document, which is sought to be
exhibited, is a certified copy of judgment dated 10.10.2014 passed by
the Deputy Labour Commissioner-cum-Commissioner under the
Employees' Compensation Act, 1923, Magadh Circle, Gaya in Case No.
C.W.C.5 of 2013, which is a public document. Thus, in view of the
Evidence Act, the said document can be tendered without any formal
proof, therefore, the same is marked as Ext. 'B'. Necessary
endorsement in the document by red ink should be made by the Court
Master of this Court.
(Ananda Sen, J.)
Kumar/Cp-02
