Madhya Pradesh High Court
United India Insurance Co.Ltd. ... vs Mahila Parvati on 2 May, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 2 nd OF MAY, 2023
MISC. APPEAL No. 454 of 2015
BETWEEN:-
UNITED INDIA INSURANCE CO.LTD. THR SR.
DIVISIONAL MANAGER. DIVISION OFFICE AT
CENTRAL POINT COMPLEX, PHOOL BAG, GWALIOR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI BADRI NATH MALHOTRA- ADVOCATE)
AND
1. MAHILA PARVATI W/O LATE SHRI ASHOK
KUMAR
2. KU. VARSHA D/O ASHOK KUMAR, AGED ABOUT
13 YEARS
3. KU. POOJA D/O ASHOK KUMAR, AGED ABOUT 11
YEARS
4. AJAY KUMAR S/O ASHOK KUMAR, AGED ABOUT 9
YEARS
5. KU. SANDHYA D/O ASHOK KUMAR, AGED ABOUT
6 YEARS, NO.2 TO 5 ARE MINOR U/G OF THEIR
MOTHER PARVATI W/O LATE ASHOK KUMAR
ALL R/O VILLAGE BARTHARA, P.S. DAMOH,
PARGANA LAHAR, DISTT. BHIND (MADHYA
PRADESH)
6. RAJESH S/O RAM KISHAN SHARMA, AGED
ABOUT 41 YEARS, R/O VIRENDRA NAGAR, POLICE
STATION DEHAT KOTWALI, DISTRICT BHIND
(MADHYA PRADESH)
7. RAMVEER SINGH GURJAR S/O SHRI UMMED
SINGH GURJAR, R/O AMBIKA GARNIER B9
DUBEY ARKID SHOPPING HIGH SCHOOL CIRCLE,
Signature Not Verified
BABLE, DISTRICT AHMADABAD AT PRESENT 19-B
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 04-05-2023
12:04:08 PM
2
SHASHTRI NAGAR, CHITTORGARH DISTRICT
CHITTORGARH (RAJASTHAN)
.....RESPONDENTS
(SHRI N.K. GUPTA LEARNED SENIOR ADVOCATE WITH SHRI SHATRU
DAMAN SINGH BHADOURIYIA, LEARNED COUNSEL FOR THE
RESPONDENTS NO.1 TO 5)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This appeal under Section 173 (1) of Motor Vehicles Act, 1988 has been
filed against the award dated 28/01/2015 passed by Additional Motor Accident
Claims Tribunal, Lahar, District Bhind (M.P.) in Claim Case No.50/2013.
I.A. No.2027 of 2015, an application under Order 41 Rule 27 of CPC
r/w. Section 169 of Motor Vehicles Act has been filed by the
appellant/Insurance Company for taking Insurance Policy on record.
Learned counsel for the appellant submitted that during the pendency of the
case before the Tribunal, original Insurance Policy was not produced. The
involved vehicle namely, bus bearing registration No.RJ-09-PA-2296 was not
insured with the Insurance Company at the time of accident which is apparent
from the original Insurance Policy, therefore, the Insurance Policy should be
taken on record because the same is necessary to decide the case judiciously
and ascertaining the claim amount, therefore, the application be allowed and the
matter be remanded back to the learned Claims Tribunal for taking Insurance
Policy on record.
On the other hand, learned counsel for the respondents no.1 to 5 has
vehemently opposed the prayer made by counsel for the appellant and argued
that the appellant/Insurance Company has failed to show that despite due
diligence, they were unable to produce such documents. It is further argued that
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 04-05-2023
12:04:08 PM
at the time of trial, photocopy of Insurance Policy was being filed and appellant
had ample opportunity to get it verified, however, the appellant/Insurance
Company did not verify the said policy, therefore, at this stage, the Insurance
Policy cannot be admitted as an additional evidence, hence, the application
should be rejected.
Heard the learned counsel for the parties and perused the record.
The provision of Order 41 Rule 27 of CPC is reproduced below for
ready reference and convenience;
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.
(2) Whenever additional evidence is allowed to the produced,
by an Appellate Court, the court shall record the reason for its
admission.
Thus, the provision of order 41 Rule 27 (b) is very clear that if the
Appellate Court requires any document to be produced or any witness to be
examined to enable it to pronounce judgment, or for any substantial cause, the
Appellate Court may allow such evidence or documents to be produced, or
witness to be examined. In this case, after passing the judgment by learned
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 04-05-2023
12:04:08 PM
tribunal, it is found that the Insurance Policy of offending vehicle is forged and
at the time of accident, the offending vehicle was not insured with
appellant/Insurance Company. The above fact where prima-faice it reveals that
the forged Insurance Policy was filed in respect to the offending vehicle, in the
considered opinion of this Court in order to do complete justice, the documents
should be taken on record as an additional evidence.
Learned counsel for the respondent citing the case of A. Andisamy
Chettiar Vs. A. Subburaj Chettiar [(2015) 17 SCC 713] argued that
allowing a party to adduce additional evidence would be against spirit of CPC if
he does not fulfill the conditions provided under Order 41 Rule 27 of CPC.
The Apex Court in the case of Sanjay Kumar Singh Vs. State of
Jharkhand [(2022) 7 SCC 247] held that admissibility of additional evidence
under Order 41 Rule 27 CPC does not depend upon the relevancy of the issue
on hand, or whether the applicant had an opportunity for adducing such
evidence at an earlier stage or not, but it depends upon whether or not appellate
court requires the evidence sought to be adduced to enable it to pronounce
judgment or for any other substantial cause that is whether such additional
evidence has a direct bearing on pronouncement of the judgment. In the case of
Sanjay Kumar Singh (supra), the Apex Court has referred A. Andisamy Chettiar
(supra).
In view of above, I.A.No.2027 of 2015 is allowed and the award dated
28/01/2015 passed by Additional Motor Accident Claims Tribunal, Lahar,
District Bhind (M.P.) in Claim Case No.50/2013 is hereby set aside and the
matter is remitted back to the Claims Tribunal for limited purpose of taking
Insurance Policy filed alongwith this application. The learned Tribunal shall take
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 04-05-2023
12:04:08 PM
into consideration Insurance Policy filed by the appellant/Insurance Company
with the application any evidence adduced by the appellant/Insurance Company
and after giving opportunity to the opposite party for cross-examination and
evidence in rebuttal, if the opposite party seeks to produce, pass award afresh.
It is made clear that merely because the Insurance Policy has been taken
on record, should not be construed that the appellant/Insurance Company is
relieved of its responsibility to prove the Insurance Policy.
Let the aforesaid exercises be completed within a period of four months
from the date of appearance of the parties before the Tribunal. The parties are
directed to appear before the Tribunal on 12/06/2023 and thereafter, as
directed by the learned Claims Tribunal.
The office is directed to immediately send back the record of the Claims
Tribunal alongwith the copy of this Order.
With the aforesaid observation, this miscellaneous appeal is finally
disposed of.
(SUNITA YADAV)
JUDGE
vpn
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 04-05-2023
12:04:08 PM
