Madhya Pradesh High Court
Kalusingh vs Ashok on 30 May, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 30th OF MAY, 2024
MISC. APPEAL No. 391 of 2019
BETWEEN:-
KALUSINGH S/O RAMESHCHANDRA VASKALE, AGED ABOUT 27
YEARS, OCCUPATION: SERVICE 613, KHATIWALA TANK, INDORE /
CURRENT POSTED- ABKARI VIBHAG, MAHIDPUR, DISTT. UJJAIN
(MADHYA PRADESH)
.....APPELLANT
(SHRI HIMANSHU PALIWAL, LEARNED COUNSEL FOR THE APPELLANT).
AND
1. ASHOK S/O MUNNALAL BALAI, AGED ABOUT 44 YEARS,
NEAR LAL MANDIR, MAHIDPUR, DISTT. UJJAIN (MADHYA
PRADESH)
2. HARINARAYAN JAISWAL AND CO. THROUGH
HARINARAYAN S/O KAMTAPRASAD JAISWAL ADD. SANT
NAGAR, SANWER ROAD, UJJAIN (MADHYA PRADESH)
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 5/31/2024
6:08:47 PM
2
3. THROUGH DIVSIONAL OFFIE UNITED INDIA INSURANCE
CO.LTD. ADD. - C-22/13, MAHAKAL VANIJYA KENDRA NEW
TREASURY BAZAR, NANAKHEDA, UJJAIN (M.P.), LOCAL
ADD. - 5TH FLOOR IDA BUILDING RACE COURSE ROAD,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PRADIP KUMAR GUPTA, LEARNED COUNSEL FOR THE
RESPONDENT [R-3].
-------------------------------------------------------------------------------------------------------
This appeal coming on for orders this day, the court passed the
following:
ORDER
This appeal by the claimant under section 173(1) of the Motor
Vehicles Act is arising out of the award dated 16.08.2018 passed by
IInd Additional Member, M.A.C.T, Mahidpur, district Ujjain in
Claim Case No.45/18 on account of inadequacy of compensation
and seeking enhancement of compensation.
2. Short facts relevant and necessary for the disposal of this
appeal are that on 01.10.2014 at about 04.55 A.M when appellant
along with other Kalali worders were coming back towards
Mahidpur from Gogapur in a jeep bearing registration no.MP-13-
CA-3174 and when they reached near Choti pulia, Mahidpur Road
the jeep which was being driven by respondent No.1, owned by
respondent no.2 and insured with respondent no.3, hit on a culver on
account of rash and negligent driving of the driver/respondent no.1,
due to which appellant got grievous injuries. The appellant had filed
a claim petition before the Claims Tribunal. The Tribunal after
considering the entire evidence came on record awarded a total
compensation of Rs.8,31,578/- along with interest from the date of
application till its realization. Being aggrieved by the said award,
the appellant/claimant has filed this appeal seeking enhancement of
compensation.
3. During the pendency of this appeal, the appellant/claimant has
filed an application under Order 41 Rule 27 CPC (IA No.8626/2019)
seeking to take on record certain documents as additional evidence
as per the list of documents i.e. medical certificate (Annexure A/1),
Estimate (Annexure A/2), Physiotherapy certificate and bills
(Annexure A/3), Medical Bills (Annexure A/4) and leave certificate
(Annexure A/5). It is further submitted that these documents are
medical certificates, estimate, bills of phyiotherapy, certificate by
physiotherapist, some other medical bills and the copy of the order
of Assistant Commissioner (Excise) district Ujjain allowing the
leave of 120 days i.e. from 02.10.2014 to 29.01.2015 and the letter
of Commissioner, Excise Department, Gwalior. The order and letter
issued by the Excise Department allowing the leave of appellate is of
the time during which the appellant was under treatment and was on
leave just after the accident. Due to lack of knowledge the same was
not produced before the learned tribunal during the pendency of the
claim petition. The claimant is entitled for payment of salary
received during this leave period as compensation but as this letter
and order were not produced before the tribunal amount under the
said head could not be awarded. Hence, prayed for remanding back
the matter to the Claims Tribunal along with these additional
evidence for deciding the matter afresh on the question of quantum
of compensation.
4. On the other hand, learned counsel for the
respondent/Insurance Company opposes the application and prayed
for its rejection.
5. I have heard learned counsel for the parties and perused the
record.
6. 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.
7. Perusal of the aforesaid provision makes it clear that the
appellate Court may allow such evidence to be taken as additional
evidence if the documents are necessary for proper adjudication of
the case. The documents produced by the appellant are medical
certificates, estimates, bills of physiotherapy, certificate by
physiotherapist, medical bills and copy of the order of the Assistant
Commissioner (Excise), district Ujjain allowing the leave of the
appellant and letter of the Commissioner, Excise Department,
Gwalior which he were unable to produce before the Tribunal. In
the considered opinion of this Court, the said documents are
essential documents for calculating the just and proper amount of
compensation in the case.
8. 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
quantum of compensation amount. Accordingly, IA No.8626/2019
is allowed and the documents which are filed by the appellant are
taken on record. The finding regarding compensation amount
assessed by the Claims Tribunal is set aside and the matter is
remanded back to the Claims Tribunal along with the documents
which are filed along with the application under Order 41 Rule 27
CPC and are taken on record along with the record of the Tribunal
for deciding the matter afresh on the question of quantum of
compensation. Needless to say that opportunity of hearing shall also
be given to both parties before deciding the said issue afresh. Since
the matter has been remanded back to the Tribunal, the Court fee
paid by the appellant, if any, be refunded in accordance with law.
9. In view of above, this appeal stands disposed of.
(HIRDESH)
JUDGE
hk/
