Madhya Pradesh High Court
National Insurance Company Ltd. vs Urmila on 2 August, 2024
Author: Hirdesh
Bench: Hirdesh
1 MA-727-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 2 nd OF AUGUST, 2024
MISC. APPEAL No. 727 of 2015
NATIONAL INSURANCE COMPANY LTD.
Versus
URMILA AND OTHERS
Appearance:
Shri Sudhir Dandwate, learned counsel for the appellant.
Shri Himanshu Joshi, learned counsel for the Respondents.
ORDER
This appeal by the insurance company under section 173(1) of the Motor
Vehicles Act is arising out of the award dated 11.11.2014 passed by Addl.
Member, MACT, Narsinghgarh in Claim Case No.119/13 seeking reduction in
the compensation amount awarded by the tribunal.
2. The date of accident, negligence and the issue of liability are not in
dispute and the findings recorded by the Tribunal in this regard are also not in
question. As per the findings of the Tribunal, for the death of Sundarlal Yadav,
the Tribunal has awarded a total compensation of Rs.82,20,380/- along with
interest from the date of claim petition till realization.
3. The appellant/insurance company has filed this appeal on the ground
that the tribunal has failed to consider the aspect that the passport which has been
placed on record do suggest that deceased had been visiting Dubai and Iraq
frequently but immigration check which was dated 20.02.2006 has an
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endorsement in which it has been stated that emigration clearance required is
suspended for Sri Lanka from 15.03.2006 which has been mention of "not for
employment". He further submits that the matter which is in dispute is whether
the deceased at the time of accident was in the service of Maitha General Trading
(LLC), Dubai, UAE. As per the passport and Visa of the deceased, he migrated
back to India on 05.05.2011 and after about 9 months of his stay in India i.e. on
03.02.2012 the accident took place. Thus, it appears that the deceased after
returning back to India in May, 2011 was not having any intention to join again
his job in Iraq as Safety Officer. No evidence was adduced by the claimants to
show that the deceased was still continuing in job and he was in India on leave.
So it is clear that at the time of accident the deceased was not working in Maitha
General Trading (LLC), Dubai, UAE, therefore, the tribunal has wrongly assessed
the income of the deceased on the basis of salary in the said company. Hence,
prayed that the income of the deceased must be assessed notionally based on
minimum wages.
4. On the other hand, learned counsel for the claimants/respondents
supported the impugned award and prayed for rejection of the appeal.
5. During the pendency of this appeal, respondents/claimants have filed a
cross objection seeking enhancement of compensation, however, no Court fee has
been paid on the said cross objection. At this stage, counsel for the respondents
submits that he does not wish to press the said cross objection. Accordingly, the
cross objection is dismissed as not pressed.
6. During the pendency of this appeal the respondents/claimants have
also filed an application under Order 41 Rule 27 CPC (IA No.6275/24) seeking to
take on record certain documents (Ex.A/1 to A/3). Counsel for the
respondents/claimants submits that in this appeal the counsel for the insurance
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company has raised doubts regarding the veracity of the documents regarding the
employment of the deceased due to the absence of company seal on the said
documents, therefore, the respondents sent e-mail to the company seeking
clarification in this regard. Thereafter, in response to the said e-mail
communication the company has issued a fresh employment certificate of the
deceased dated 08.07.2024 and these documents are essential for the proper
adjudication of this appeal and deciding the issue of employment of the deceased.
7. On the other hand, learned counsel for the respondent/Insurance
Company opposes the application and prayed for its rejection.
8. I have heard learned counsel for the parties and perused the record.
9. Order 41 Rule 27 of the 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 examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court,
the Court shall record the reason for its admission.
10. Perusal of the aforesaid provision makes it clear that the appellate
Court may allow such evidence to be taken as additional evidence if the document
is necessary for proper adjudication of the case. The documents produced by the
respondents/claimants are the email communication and employment certificate
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of the deceased dated 08.07.2024 which they were unable to produce before the
Tribunal. In the considered opinion of this Court, the said documents are
essential documents for deciding the issue of employment of the deceased.
11. Accordingly, considering the above provision of law, in the
considered opinion of this Court, the documents produced by the appellant are
essential documents for adjudication of the issue of employment of the deceased.
Accordingly, IA No.6275/24 is allowed and the documents which are filed by the
respondents are taken on record. The finding given by the tribunal regarding
employment of the deceased is set aside and the matter is remanded back to the
Claims Tribunal along with the said documents which are filed along with the
application under Order 41 Rule 27 CPC with the record of the Tribunal for
deciding the matter afresh on the question of employment of the deceased in the
light of the additional evidence produced by the respondents/claimants which is
taken on record. Needless to say that opportunity of hearing shall also be given to
both parties before deciding the said issue afresh.
12. In view of above, the appeal stands disposed of.
(HIRDESH)
JUDGE
hk/
