Karnataka High Court
The Manager vs Chikkatayamma on 1 February, 2024
-1-
NC: 2024:KHC:4715
MFA No. 1691 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.1691 OF 2014(MV-D)
BETWEEN:
THE MANAGER,
IFFCO TOKIO GIC LTD.,
C/O KSCARD BANK,
K.R.ROAD,
VIDYA NAGAR, MANDYA CITY.
NOW REP. BY ITS
LEGAL MANAGER,
IFFCO TOKIO GIC LTD.,
CUSTOMER SERVICE CENTER,
SRI.SHANTHI TOWERS,, 5TH FLOOR,
NO.141, 3RD MAIN, EAST OF NGEF LAYOUT,
KASTURI NAGAR,
BANGALORE - 560 043.
...APPELLANT
(BY SRI. PRADEEP B., ADVOCATE)
Digitally
AND:
signed by
BHARATHI S 1. CHIKKATAYAMMA,
Location: W/O NAJUNDEGOWDA @ THAMMAIAH,
HIGH COURT
OF NOW AGED ABOUT 50 YEARS.
KARNATAKA
2. SAVITHA
W/O K.MAHADEVEGOWDA,
NOW AGED ABOUT 32 YEARS.
3. NANJUDA
S/O LATE NANJUNDEGOWDA,
NOW AGED ABOUT 30 YEARS.
4. V.N. SHIVAMALLU
S/O LATE NANJUNDEGOWDA,
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NC: 2024:KHC:4715
MFA No. 1691 of 2014
NOW AGED ABOUT 28 YEARS,
ALL R/AT VADDRAHALLI VILLAGE,
KASABA HOBLI,
MALAVALLI TALUK,
MANDYA DIST - 571 401.
5. KAVITHA,
W/O DEVARAJU,
NOW AGED ABOUT 26 YEARS,
R/O MESTRADODDI VILLAGE,
GANALU DAKLE, HALAGUR HOBLI,
MANDYA DISTIRCT - 571 401.
6. BASAVARAJU,
S/O CHOWDEGOWDA @ MALLEGOWDA,
MAJOR,
R/AT VADDARAHALLI VILLAGE,
KASABA HOBLI, MALAVALLI TALUK,
MANDYA DIST - 571 401.
...RESPONDENTS
(BY SRI. MOHAN KUMAR D., ADVOCATE FOR R2, R4 AND R5;
SMT. D.R. VIJAYALAKSHMI, ADVOCATE FOR R6;
R1 AND R3 SERVED AND UNREPRESENTED)
THIS MFA IS FIELD U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.01.2014 PASSED IN MVC
NO.1237/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MACT, MALAVALLI, AWARDING COMPENSATION OF RS.4,75,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the insurer challenging the
judgment and award dated 20.01.2014 passed in
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MVC.No.1237/2012 by the Senior Civil Judge and MACT,
Malavalli1.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. The relevant facts necessary for consideration of
the present appeal are that the claimant has filed a claim
petition seeking compensation for the injuries sustained in a
road traffic accident which occurred on 26.01.2012. It is the
case of the claimant that one Nanjundegowda2 and his brother
had engaged the insured Goods auto bearing No. KA-11-9493
for the purpose of transporting cow (Karugalu), when the said
auto was driven in a rash and negligent manner by its driver
which caused the accident in question, wherein the deceased
who was traveling in the said auto succumbed to the injuries
sustained in the said accident. The wife and children of the
deceased filed the claim proceedings arraying the owner and
insurer of the goods auto as Respondents. Respondent No.2 -
insurer entered appearance before the Tribunal and contested
Hereinafter referred to as the 'Tribunal'
Hereinafter referred as 'Deceased'
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the claim proceedings on the ground that the deceased was a
gratuitous passenger in the auto.
4. The claimant No.4 was examined as PW.1 and a
witness was examined as PW.2. Ex.P.1 to Ex.P.7 were marked
in evidence. The representative of the insurer was examined as
RW.1. However, no documentary evidence has been produced
by the insurer before the Tribunal. The Tribunal by it judgment
and award dated 20.01.2014 allowed the claim petition and
awarded a sum of `.4,75,000/- together with interest at 6%
per annum and directed Respondent No.2 - insurer to pay the
compensation awarded. Being aggrieved the present appeal is
filed.
5. Learned counsel for the Appellant vehemently
contends that the Tribunal erred in directing the insurer to pay
the compensation awarded, having regard to the fact that the
seating capacity of the insured vehicle i.e., goods auto is only
one person and admittedly three persons were traveling in the
said goods vehicle. Hence, he seeks for allowing of the above
appeal and exonerating the insurer from payment of the
compensation.
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6. Along with the above appeal Appellant has filed
IA.No.2/2014 under Order 41 Rule 27 of C.P.C to permitt the
Appellant to produce the true copy of the insurance policy and
to registered extract of the insured vehicle.
7. Per Contra learned counsel for the Respondent-
claimants submits that the finding of the Tribunal is just and
proper and that the insurer has not made out any ground
seeking for production of additional documents. Hence, he
seeks for dismissal of the application as well as the appeal.
8. The submissions of both the learned counsels have
been considered and the material on the record have been
perused. The questions that arises for consideration are that:
i) Whether IA.No.2/2014 filed by the insurer is required
to be allowed?
ii) Whether the finding of the Tribunal fastening the
liability on the insurer is erroneous and liable to be interfered
with?
Reg. Question No.(i):-
9. The insurer has filed IA.No.2/2014 under Order 41
Rule 27 read with section 151 of C.P.C seeking to produce two
documents along with the said application. In the affidavit filed
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in support of the application, it is deposed that the insurer has
taken the contention that the deceased was an unauthorized
passenger in the goods vehicle and that the seating capacity is
only one and that the insurer has also adduced the evidence
before the Tribunal. However, the contention of the insurer has
been set aside by the Tribunal. It is further deposed at the
time of adducing the evidence that the Appellant has not
produced the documents, filed along with the said application.
10. Order 41 Rule 27 of the C.P.C read as follows:
"27. Production of additional evidence in
Appellate Court.-(1) The parties to an appeal
shall not b 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 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 required 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
documents to be produce, or witness to be
examined.
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(2) Where additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission."
11. It is clear and forthcoming that if the Appellant was
desirous of producing additional evidence, it is required to be
demonstrated that the Tribunal has refused to admit the
evidence or notwithstanding the excise of due diligence, the
additional evidence was within its knowledge or after exercise
of due diligence, the same could not be produced before the
Tribunal.
12. In the present case, although the Appellant has
deposed that the requisite contention has been taken and the
evidence has also been adduced before the Tribunal, the
Appellant has not stated as to why the additional evidence
could not be produced before the Tribunal. Hence, it is clear
that the Appellant has failed to demonstrate the requisite
criteria for the purpose of adducing additional evidence, as
contemplated under Order 41 Rule 27 of the C.P.C. Hence,
IA.No.2/2014 is dismissed. Accordingly, question No.(i) is
answered in the negative.
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Reg. Question No.(ii):-
13. It is forthcoming from the statement of objections,
that the insurer has taken a plea that the deceased and his
brother were traveling as gratuitous passengers and that the
insurer is not liable to pay the compensation. The Tribunal after
appreciating the relevant fact situation recorded the findings
that the deceased had hired the goods auto and hence, cannot
be termed as a gratuitous passenger.
14. The insurer has not taken any specific plea in the
statement of objections before the Tribunal with regard to the
seating capacity of the goods auto. Further it is forthcoming
that the insurer has not produced any documentary evidence
before the Tribunal to demonstrate the seating capacity of the
insured vehicle as well as the restriction contained in the policy
of insurance. In fact the policy of insurance itself has not been
marked before the Tribunal.
15. Hence, it is clear that the insurer has not taken such
a plea before the Tribunal and the said contention is sought to
be urged for first time before this Court.
16. Having regard to the aforementioned, the appellant
has failed to demonstrate that the finding of the Tribunal is any
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manner erroneous and liable to be interfered with by this Court
in the present appeal. Hence, question No.(ii) framed for
consideration is answered in the negative.
17. In view of the aforementioned, the following order
is passed:
ORDER
i) The above appeal and IA.No.2/2014 are dismissed.
ii) The judgment and award dated 20.01.2014 passed
in MVC.No.1237/2012 by the Senior Civil Judge and
MACT, Malavalli, is affirmed.
iii) The amount deposited by the Appellant before this
Court shall be transmitted to the Tribunal for
disbursement in terms of the award of the Tribunal.
iv) The Appellant - insurer shall deposit the balance
compensation in terms of the award of the Tribunal within
six weeks from the date of receipt of copy of this order.
v) No costs.
sd/-
JUDGE
PNV
CT:SNN
