In the High Court of Judicature at Madras Dated 03.11.2010 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.69 of 2009 and M.P.Nos.1 and 2 of 2009 and 1 of 2010 National Insurance Company Ltd., Branch No.4, No.930, Sakthi Road, Coimbatore. ..Appellant/3rd Respondent ..vs.. 1. Kannan @ Sampoorna Kannan 2. V.Subramaniam 3. Sun.Lavanyan ..Respondents/Claimant and Respondents 1 & 2. (R2 and R3 were set exparte before the Court below) Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988, against the award and decree dated 04.07.2007 made in MCOP.No.248 of 2006 on the file of Motor Accidents Claims Tribunal (Additional District-cum-Sessions Court), FTC No.2, Coimbatore. For Appellant : Mr.K.Padmanabhan For Respondents: Mr.S.Makesh for R1 JUDGMENT Challenging the liability fixed on the part of the insurance company in paying the compensation amount to the claimant in and by an award dated 04.07.2007 in M.C.O.P.No.248 of 2006 passed by the Motor Accidents Claims Tribunal (Additional District and Sessions Judge), Fast Track Court No.2, Coimbatore, the insurance company has filed this appeal. 2. The brief facts, which are necessary to decide the issue involved in the appeal, are as follows: The 1st respondent herein filed a claim petition before the Tribunal stating that on 04.11.2004, while he was riding a Yamaha motor cycle bearing registration No.TN-38 X 8220 along with his friend on Mettupalayam to Coimbatore road keeping left side of the road, a lorry bearing registration No.TN-55-7173 came in a rash and https://hcservices.ecourts.gov.in/hcservices/ negligent manner from behind and hit the motor cycle on its back side and as a result of which, the claimant and his friend fell down from the motor cycle and they sustained injuries. Hence, he made a claim as against the owner of the lorry and its insurer who are the 3rd respondent and the appellant in this appeal. 3. Resisting the said claim, the insurance company filed a counter, denying the negligence aspect on the part of the driver of the lorry. Subsequently, by way of filing an additional counter, the appellant insurance company has made a specific averment that the lorry bearing registration No.TN 55 7173 which was insured with them, was sold by the 3rd respondent herein, viz., Sun Lavanyan in favour of one Prabhakar on 26.05.2004 i.e. earlier to the date of the accident. But, suppressing the sale of the vehicle, the insurance policy was taken in the name of Sun Lavanyan. Since at the time of the accident, the 3rd respondent was not the owner of the vehicle, the insurance company cannot be held responsible to pay the compensation. 4. In order to prove the claim on the side of the claimant, he examined himself as P.W.1 besides examining one doctor as P.W.2 and marked Exs.P-1 to P-15. But, on the side of the insurance company, no oral and documentary evidence was produced. The Tribunal, after analysing the entire evidence, came to the conclusion that the accident had occurred due to the result of rash and negligent driving of the driver of the lorry and thereby directed the insurance company to pay the compensation amount by indemnifying the owner of the vehicle. Moreover, the Tribunal has also rejected the defence put forth by the insurance company in their additional counter on the conclusion that the they had not taken any steps to prove their defence by examining the witnesses on their side. Aggrieved over the same, the present appeal is filed. 5. Learned counsel for the appellant insurance company submitted that the accident had taken place on 04.11.2004, but the 3rd respondent had sold the vehicle on 26.05.2004 itself to one Prabhakaran, much earlier to the the date of the accident and hence, the 3rd respondent Sun Lavanyan was not the owner of the vehicle. Moreover, the cheque issued by the 3rd respondent dated 11.06.2004 towards the premium for renewal of the policy was dishonoured on 15.06.2004 for 'insufficiency of funds'. This fact was intimated to the office of the Regional Transport Officer by letters dated 23.06.2004 and 24.06.2004 to the 3rd respondent. Therefore, on the date of the accident, namely, 04.11.2004, there was no policy coverage for the vehicle since the policy was cancelled five months prior to the date of the accident. In support of his contention, the learned counsel for the appellant has taken out an application (M.P.No.2 of 2009) under Order 41 Rule 27(1)(b) of C.P.C.for reception of documents as additional evidence. Along with the said application, the copies of the policy, the cheque which was dishonoured, the copy of the cheque memo issued by the bank and https://hcservices.ecourts.gov.in/hcservices/ letters sent by the insurance company to the office of the Regional Transport officer were filed. The learned counsel further submitted that by accepting the said documents as additional evidence, the finding arrived at by the Tribunal has to be set aside and consequently the matter has to be remanded to the Tribunal for fresh consideration. In support of his contention, the learned counsel has also relied upon the judgments reported in the case of SRINIVASAM PILLAI ..vs.. ALAGAPPA CHETTIAR (AIR 1938 MADRAS 372), SYED ABDUL KHADER ..vs.. RAMI REDDY (AIR 1979 SC 553) and NEW INDIA ASSURANCE CO.LTD., ..vs.. V.S.SAIPRABHU (2010 (1) TN MAC 85). 6. In order to repel the contentions urged on the side of the appellant, the learned counsel for the 1st respondent/ claimant submitted that the documents now sought to be marked were already in possession of the appellant and they had not assigned any valid reason for non-production of the same at the time of trial before the Tribunal. Under such circumstances, now this application for additional evidence cannot be entertained. Further, the learned counsel, by inviting the attention of this Court to the additional counter, submitted that there was no pleading to the effect that the policy was cancelled as early as on 15.06.2004. Hence, in the absence of such pleading, the application for the receipt of the documents as additional evidence cannot be entertained. In support of his contentions, the learned counsel has relied on the decisions reported in the case of RAMESH BEJOY SHARMA ..vs.. PASHUPATI RAI (1979) 4 SCC 27), CHINNAMMAL ..vs. KANNAGI (AIR 1989 MADRAS 185), CHANCELLOR .. vs.. DR.BIJAY ANANDA KAR (1994(1) SCC 169), NATIONAL INSURANCE CO.LTD., ..vs.. HURMA DEVI (AIR 2004 RAJASTHAN 269) and NATIONAL INSURANCE CO.LTD., ..vs.. BIDHI CHAND (2002 A I H C 3773). 7. Heard the learned counsel for both sides and perused the materials available on record. 8. In view of the submissions made by the learned counsel on either side, this Court has to decide, whether the application filed by the appellant under Order 41 Rule 27 C.P.C.could be entertained at this stage for the purpose of remanding the matter to the Tribunal to prove the present defence of the insurance company that the policy was cancelled much earlier to the date of the accident ? 9. Learned counsel for the appellant has relied upon the judgments in support of his contention that in the interests of justice, the matter could be remanded to the Tribunal, giving liberty to the appellant to adduce additional evidence. Per contra, the learned counsel for the 1st respondent produced a number of judgments and submitted that when the party is in possession of the documents they should adduce proper reason sfor non- producing the said documents as exhibits at the time of trial. https://hcservices.ecourts.gov.in/hcservices/ 10. On a perusal of the application filed by the appellant, I find that, absolutely, no valid reason was given for not marking the documents before the Tribunal at the time of trial. Moreover, as contended by the 1st respondent, absolutely, there is no averment in the counter statement or additional counter statement with regard to the dishonouring of the cheque relating to the premium amount and the subsequent cancellation of the policy by the insurance company. Therefore, in my considered opinion, in the instant case, the application filed by the appellant has to be dismissed not only for not assigning any valid reason for non-marking of the documents before the Tribunal but also for that there was no averment with regard to the cancellation of the policy in the additional counter filed by the appellant before the Tribunal. Therefore, I am of the opinion that the application (M.P.No.2 of 2009) as well as the appeal are liable to be dismissed. Accordingly, the civil miscellaneous appeal fails and the same is dismissed, confirming the award passed by the Tribunal. Consequently, M.P.No.2 of 2009 is also dismissed. In view of the said finding, the appellant insurance company is directed to deposit the entire award amount with interest, if the same has not been deposited so far, within a period of six months and on such deposit, the 1st respondent is permitted to withdraw the entire amount. No costs. Connected other M.Ps.are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To The Additional District & Sessions Judge, (Motor Accidents Claims Tribunal) Fast Track Court No.2, Coimbatore. Copy to the Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.K.Padmanabhan, Advocate, SR.79367 1 cc To Mr.S.Makesh, Advocate, SR.79707 C.M.A.No.69 of 2009 ck(co) pmk.29.11.2010 https://hcservices.ecourts.gov.in/hcservices/