Madhya Pradesh High Court
Oriental Insurance Company ... vs Vinod Kumar on 5 April, 2023
Author: Gurpal Singh Ahluwalia
1 M.A.No.1099/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 5th OF APRIL, 2023
MISC. APPEAL No. 1099 of 2021
BETWEEN:-
ORIENTAL INSURANCE COMPANY
LIMITED TP HUB 1561 NAPIER TOWN DR.
BARAT ROAD RUSSEL CHOWK JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI D.N.SHUKLA - ADVOCATE )
AND
1. VINOD KUMAR S/O LATE SHEETAL
PRASAD BAINS, AGED ABOUT 40
YEARS, R/O VILLAGE GODWALI
CURRENTLY RESIDING AT VILLAGE
MUHER P.S. MORWA TEHSIL AND
DISTT. SINGRAULI (MADHYA
PRADESH)
2. PRAMOD KUMAR S/O LATE SHEETAL
PRASAD BAINS, AGED ABOUT 36
YEARS, R/O VILLAGE GODWALI
CURRENTLY RESIDING AT VILLAGE
MUHER P.S. MORWA TEHSIL AND
DISTT. SINGRAULI (MADHYA
PRADESH)
3. JEETENDRA KUMAR S/O LATE
SHEETAL PRASAD BAINS, AGED
ABOUT 35 YEARS, R/O VILLAGE
GODWALI CURRENTLY RESIDING AT
VILLAGE MUHER P.S. MORWA
TEHSIL AND DISTT. SINGRAULI
2 M.A.No.1099/2021
(MADHYA PRADESH)
4. SANT KUMAR PANIKA S/O DEV
NARAYAN PANIKA, AGED ABOUT 25
YEARS, R/O VILLAGE MEDAULI POST
AND P.S MORWA, DISTRICT
SINGRAULI (MADHYA PRADESH)
5. DEVENDRA RAMAN PANADIYA S/O
RAM KARAN PANADIYA, AGED
ABOUT 34 YEARS, R/O VILLAGE
BARKA POST AND PS SARAI DISTRICT
SINGRAULI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DHARMENDRA KUMAR DWIVEDI - ADVOCATE FOR THE RESPODNENT
NO.4 AND NONE FOR THE RESPONDENTS NO.1 TO 3 & 5, THOUGH REPRESENTED)
This appeal coming on for admission this day, the court passed the
following:
ORDER
Heard on I.A.No.3244/2021, an application for condonation of
delay.
2. As per the office report, the appeal was filed with delay of 83 days.
3. It is submitted by the counsel for the appellant that before filing an
appeal, certain procedural formalities are required to be performed and
accordingly, it consumes some days and the appeal could not be filed
within the period of limitation. Thus the delay of 380 days may be
condoned.
4. The application is vehemently opposed by the counsel for the
respondents.
5. For the reasons mentioned in the application, the same is allowed.
The delay in filing this appeal is hereby condoned.
6. I.A.No.3244/2021 is finally disposed of.
7. This misc.appeal under section 173 of the Motor Vehicles Act has
been filed against the award dated 15.10.2019 passed by the Member,
Motor Accident Claims Tribunal, Singrauli in MACC No.26/2015.
8. It is submitted by the counsel for the appellant that the cover note,
on which the reliance was placed by the owner, was issued from Indore
and earlier Insurance Company could not collect any information with
regard to authenticity of the cover note and, therefore, the objection with
regard to non-insurance of offending vehicle was not raised in the written
statement. However, during the pendency of the claim petition, the
Insurance Company came to know that cover note was never issued by
the Insurance Company, therefore, an application under Order 1 Rule 10
of CPC was filed for deleting the name of the Insurance Company.
9. It is further submitted that by order dated 27.03.2019, the Claims
Tribunal dismissed the application with a stipulation that at the time of
final disposal of the claim petition, it shall also be considered as to
whether the offending vehicle was insured or not ?
10. However, it is fairly conceded that in spite of opportunities, the
appellant did not avail the same and did not produce any witness in
support of its defence and ultimately on 09.07.2019 the right of the
appellant to lead evidence was closed.
11. Under these circumstances, it is submitted that the appellant has
filed I.A.No.3246/2021, an application under Order 41 Rule 27 of CPC
for taking additional evidence on record along with the documents to
show that the offending vehicle was not insured.
12. I.A.No.3246/2021 is vehemently opposed by the counsel for the
respondents/claimants.
13. It is submitted that for seeking leave of this Court for filing
additional evidence, the litigant must prove that despite of due diligence,
he could not discover the evidence during the pendency of the trial.
14. However, in the present case during the pendency of the claim
petition itself the appellant had filed an application under Order 1 Rule
10 CPC alleging that the cover note in question was never issued by the
Insurance Company and although the application filed under Order 1
Rule 10 CPC was dismissed by the Claims Tribunal, but it was held that
the question as to whether the offending vehicle insured by the Insurance
Company or not, is left open and shall be decided after recording the
evidence of the parties. It is submitted that in spite of multiple
opportunities granted to the appellant, the Insurance Company did not
lead any evidence and under these circumstances, the basic ingredients of
Order 41 Rule 27 CPC are not established and thus this application may
not be allowed.
15. Considered the submissions made by the counsel for the parties.
16. Order 41 Rule 27 CPC reads as under :-
"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 exam med.
(2) Whenever additional evidence is allowed to the
produced, by an Appellate Court, the court shall record
the reason for its admission."
17. From the plain reading of the aforesaid provision, it is clear that if
the Court below has refused to admit evidence, which ought to have been
admitted or 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 the Appellate Court requires any document to produce to
enable it to pronounce judgment or for any substantial cause only then
additional evidence can be permitted at appellate stage. If the
ordersheets of the Claims Tribunal are considered, then it is clear that by
order dated 27.03.2019, the application filed by the appellant under
Order 1 Rule 10 CPC was rejected with a clear stipulation that question
as to whether the appellant/Insurance Company is liable or not, shall be
considered after recording of evidence.
18. It is also undisputed fact that in spite of 3 opportunities, the
appellant failed to examine any witness and ultimately the right of the
appellant to lead evidence was closed on 09.07.2019.
19. Under these circumstances, this Court is of the considered opinion
that the appellant has failed to make out the ingredients, which are
necessary for allowing the application under Order 41 Rule 27 CPC.
20. Accordingly, I.A.No.3246/2021 is hereby rejected.
21. Since the appellant has failed to plead and prove that the offending
vehicle was not insured by it, accordingly, the Claims Tribunal did not
commit any mistake by holding the appellant as jointly and severally
responsible for payment of compensation along with the driver and
owner of the offending vehicle.
22. As a consequence thereof, the award dated 15.10.2019 passed by
the Member, Motor Accident Claims Tribunal, Singrauli in MACC
No.26/2015 is hereby affirmed.
23. The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
TG/-
TRUPTI GUNJAL
2023.04.06 10:58:18
+05'30'
