FA/1815/1998 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1815 of 1998 With CIVIL APPLICATION No. 6937 of 1998 In FIRST APPEAL No. 1815 of 1998 With CIVIL APPLICATION No. 6936 of 1998 In FIRST APPEAL No. 1815 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SATYENDRAKUMAR A PATEL - Appellant(s) Versus ABDULLATIF AHMEDHUSAIN SHEIKH & 2 - Defendant(s) ========================================================= Appearance : M/S TRIVEDI & GUPTA for Appellant(s) : 1, UNSERVED-EXPIRED (R) for Defendant(s) : 1, 3, MR RAJNI H MEHTA for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 30/07/2008 ORAL JUDGMENT FA/1815/1998 2/16 JUDGMENT 1. The appellant original opponent No.1 – owner has filed this appeal challenging the award made by the claims tribunal (Aux.) Ahmedabad City in MACP No. 467 of 1988 dated 10th October, 1997 wherein the claims tribunal has partly allowed the claim petition against the owner and driver of the offending vehicle by awarding compensation of Rs.35082.00 with interest thereon at the rate of 12 per cent per annum from the date of application till realization and dismissed the claim petition against opponent no.3 Insurance Company. 2. Along with the appeal, appellant also filed civil application no.6936 of 1998 under Order 41 Rule 27 of the Code of Civil Procedure with a prayer to produce additional evidence. Civil Application No. 6937 of 1998 has also been filed by the appellant for stay. 3. In Civil Application No. 6936 of 1998 for production of additional evidence, applicant has submitted that it had come to the knowledge of the appellant applicant that the insurance company has issued circular / notification to the effect that the standard Motor Cycle Comprehensive Policy should cover liability of pillion passengers treating them as occupants in the motor cycle and provide indemnity to such persons who are not carried for hire or reward. According to the applicant appellant, inspite of exercising due diligence, the applicant could FA/1815/1998 3/16 JUDGMENT not produce the copy of the circular dated 2.6.1986 issued by the Tariff Advisory Committee Bombay before the trial Court. It was contended by the applicant that the copy of the said document is traced out and came in the custody of the applicant recently. Said document is very much relevant for deciding the controversy in the subject appeal. Therefore, based upon the aforesaid contentions, applicant has prayed for permitting him to produce the said document as additional evidence under Order 41, Rule 27 of the Code of Civil Procedure. 4. Learned Advocate Mr. KB Naik has relied upon the aforesaid circular/notification produced at annexure I page 5 of civil application issued by the New India Assurance Co. Ltd. Tariff Advisory Committee Bombay dated 2nd June, 1986. This circular re-warded standard cover under section 2(1)(A) of the policy as under: “Death or bodily injury to any person including person conveyed in or on the Motor Cycle provided such person is not carried for hire or reward.” Under the said circular, insurers were requested to issue necessary instructions to their divisional/branch offices accordingly. 5. Accident occurred on 17.11.1987 and policy period is from 17.9.1987 to 16.9.1988. This civil application has been filed by the applicant original appellant under Order 41, Rule 27 of the Code of Civil Procedure. FA/1815/1998 4/16 JUDGMENT Therefore, Rule 27 of Order 41 is quoted 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 again st 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.” 6. This aspect is considered by the Hon'ble Apex Court in State of Gujarat & Anr. v. Mahendrakumar Parshottambhai Desai (D) by Lrs., reported in 2006 AIR SCW 2169. Relevant observations made by the apex court in para 12 are reproduced as under: “12. Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI, Rule 27 of the Code of FA/1815/1998 5/16 JUDGMENT Civil Procedure cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellants/State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case.” 7. Thus, bare perusal of the provisions of Rule 27 (1) (aa) provides that if 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. Learned Advocate Mr. Naik for the applicant submitted that this contention was not raised before the tribunal by the applicant. Question of production of the document would arise if such contention is FA/1815/1998 6/16 JUDGMENT raised by the applicant before the claims tribunal that the risk of the pillion rider is covered by the aforesaid circular, therefore, when no such contention was raised before the tribunal, now to produce evidence raising new contention before this court which was not raised before the claims tribunal, for that, this provision is not meant to produce additional evidence on the basis of new contention which was not raised before the claims tribunal. Therefore, this application cannot be allowed considering relevant provisions of Order 41 Rule 27 (1) (aa) of the Code of Civil Procedure. Therefore, this civil application under Order 41, Rule 27 is rejected by this Court. At this stage, learned Advocate Mr. Naik for the applicant has submitted that this circular was not within their knowledge and, therefore, they could not raise such contention before the claims tribunal. This submission made by the learned Advocate Mr. Naik makes it clear that it is a new contention sought to be raised by the applicant on the basis of circular before this Court for the first time which, according to my opinion cannot be allowed to be raised for the first time before this Court as the applicant is not satisfying the ingredients of Order 41, Rule 27 of the Code of Civil Procedure. Therefore, that contention is rejected and this application stands rejected. FA/1815/1998 7/16 JUDGMENT 8. Now, in appeal, the appellant owner is challenging the award made by the claims tribunal (Aux.) Ahmedabad City in MACP No. 467 of 1988 dated 10th October, 1997 wherein the claims tribunal has partly allowed the claim petition against the owner and driver of the offending vehicle and dismissed the claim petition against opponent no.3 insurance company. Learned Advocate Mr. Naik for the appellant submitted that looking to the insurance policy issued by the insurance company, risk of pillion rider is covered and the claims tribunal has wrongly held that the owner is liable to pay the compensation. He also submitted that no additional premium is required to be paid by the owner for covering the risk of pillion rider who was not taken on hire or reward by the rider of the scooter. Except that, no other contention was raised by the learned Advocate Mr. Naik on behalf of the appellant before this Court. 9. I have considered the contention raised by the learned Advocate Mr. Naik before this Court. Looking to the facts as emerging from record, it appears that on 17.11.1987 at about 1.00 p.m., claimant had gone to Moon Light Detergent Factory situated near Khanwadi near Ramol Road and at about 1.45 p.m., he had left that factory in order to go to his house. While claimant was going to his house, opponent no. 2 passed from there with scooter bearing No. GBL-4154. FA/1815/1998 8/16 JUDGMENT Claimant took lift and on the scooter driven by opponent no. 2, he was going to his house. It was alleged by the claimant that the opponent no.2 was driving the scooter at full speed and negligently and when the scooter came near a pan store near Sindhwainagar, when the scooter came near that place, one buffalo came across the road and opponent no.2 suddenly applied brakes and as a result thereof, scooter was slipped and the clamant was thrown off the scooter and he received injuries as mentioned in column 6 of the claim petition. It was also alleged that he became unconscious and received several mental shock, he was removed to VS Hospital and he lodged complaint about incident with PSI. He remained as indoor patient in VS Hospital from 17.11.1987 to 23.11.1987. He sustained fracture of thigh bone of right leg, he was operated upon and nails were inserted. It was also alleged by him that as a result of the injuries received by him, he is not able to walk without difficulty, unable to sit for a long time, unable to run, facing difficulty in climbing staircase, he experiences difficulty in having coitus and has suffered permanent disability to the extent of 22 per cent. And, therefore, based upon the aforesaid facts, he prayed for compensation of Rs.1,00,800.00 on different heads before the claims tribunal. 10.Before the claims tribunal, replies were filed by the insurance company and owner. The claim FA/1815/1998 9/16 JUDGMENT tribunal has considered one important fact for deciding negligence of opponent no.2 scooterist who has admitted his guilt in criminal complaint before the criminal court and, therefore, as he pleaded guilty, conviction order was passed by the criminal court against opponent no. 2. Age of the claimant was not disputed by the opponent no.1 and 2. Tribunal has examined the question whether the appellant is liable to pay the compensation or the insurance company. This question is examined by the claims tribunal in para 23 of the award. It is necessary to note the averments made in written statement filed by opponent no.1 and 2, owner and driver that they are liable to pay compensation to the claimant, so, considering the averments made by them in their written statement, it is a clear case of admission made by them that they are liable to pay the compensation to the claimant. Apart from that, the said question was examined by the claims tribunal in para 23 of the award which is quoted as under: “23. Opponent no.1 being the owner of the said vehicle and opponent no.2 being the driver of the said vehicle and he was driving the said scooter as servant of opponent no.1 as per the case of opponents no.1 and 2 in written statement, they are liable to pay the compensation to claimant. But, the question that is posed for decision is about the liability of opponent No.3 the Oriental Insurance CO. Ltd. to pay the said compensation to the petitioner as opponent no.3 has put forth the case FA/1815/1998 10/16 JUDGMENT that though this vehicle stood insured in the name of opponent no.1 with the said company. That the petitioner being a pillion rider on the said scooter drove by opponent no.2, under the terms of policy, his liability is not covered and, therefore opponent no.3 is not liable. Opponent-3 has not produced and proved that opponent 2 was not holding a valid and effective driving licence inspite of the case of opponents -1 and 2 in written statement that opponent 2 was holding a valid and effective driving licence. In the written statement it is not the case that there is collusion between petitioner and opponent 1 and 2. In the written statement opponent 1 has admitted that opponent 2 was his employee and he drove the said scooter at the time of accident with his consent. Under the circumstances, in view of the pleading of opponent 3, the last ground for disowning the liability or otherwise of the said company to pay the compensation is required to be found. LA Mr. Shaikh for petitioner and learned advocate Ms. Kalpanaben have submitted that under the terms of policy the case of the petitioner being a pillion rider is covered as according to their submission, no separate premium to cover the liability of pillion rider is required to be paid and the petitioner falls under the category of 'third party”. LA Mr. Surti has submitted, inviting my attention to the terms of insurance policy that for covering the liability of petitioner, a pillion rider, additional premium was required to be paid by insured, but he has not paid the additional premium to cover the liability of pillion rider and therefore, the insurance company is not liable top ay compensation to the FA/1815/1998 11/16 JUDGMENT petitioner. I have got the relevant policy exh. 36 admitted in evidence by consent of learned advocate for petitioner and it shows that Rs.48/- for liability to public risk is paid as premium but there is no additional amount paid as premium but there is no additional amount paid for accident benefit to unnamed driver/pillion passenger as per End-Imt-70. IMP-70 reads that “in consideration of the payment of an additional premium as stated in the schedule, it is hereby understood and ag reed that the company undertakes to pay compensation to any unnamed/hirer/driver / any unnamed pillion passenger on the scale provided below for bodily injury caused...” In view of this provisions made in the policy, the payment of additional premium at the scale provided therein was a must tomake the insurance company liable to pay compensation to the pillion rider for the injuries received in the accident. This policy shows no such additional premium to covoer the liability of pillion rider is paid by the insured, the opponent no.1. No authority in support of their contention of any High Court or the Supreme Court of India is cited by l.a. Mr. Shaikh for petitioner of l.a. Ms. Kalpanaben for opponent no.1 and 2. In view of the above discussed reasons, since the opponent-1 has not paid additional premium as required under the terms of this policy to cover the liability of pillion rider, the present petitioner, opponent-3 insurance company is not liable to pay and amount as compensation awardable to the petitioner of this case and I therefore hold so.” 11.Thus, the claims tribunal has, after considering the policy for deciding whether the FA/1815/1998 12/16 JUDGMENT policy covers risk of pillion rider or not, come to the conclusion that the opponent no.1 has not paid any additional premium as required under the policy, therefore, insurance company is not liable to pay the amount of compensation to the claimant in this case. Claims Tribunal has, therefore, made award of compensation against owner and driver of scooter alone and dismissed the claim petition against insurance company. 12.Recently, in case of S. Jayamma and others v. Oriental Insurance Co. Ltd. And others, reported in 2008 ACJ 376, Andhra Pradesh High Court has considered this question whether the pillion rider is third party or not and whether the statutory policy is covering the risk of the pillion rider or not. Relying upon the decision of the apex court in United India Insurance Co. Ltd. v. Tilak Singh, 2006 ACJ 1441 (SC), the questions were answered in the negative by the Andhra Pradesh. Para 3,4 and 5 of the judgment in case of S. Jayamma and others (supra) are, therefore, reproduced as under: “3. CMA No. 135 of 2000 was allowed by this Court on 8.9.2003 which reads as under: ”This appeal is preferred by Oriental Insurance CO. Ltd., Hyderabad against the order of the Motor Accident Claims Tribunal, Nalgonda in OP NO. 759 of 1991. The deceased by name Sailoo died in a mtor cycle accident by falling from the motor cycle while travelling as a pillion rider on 11.10.1990. His wife, minor son and FA/1815/1998 13/16 JUDGMENT parents made an application under section 166 of the Motor Vehicles Act, claiming compensation of Rs.1,50,000.00. The Tribunal awarded Rs.1,50,000 as prayed, making the owner and insurance company liable to pay the compensation amount. The insurance company being aggrieved by the order of the Tribunal preferred this appeal challenging its validity. The learned counsel for the appellant submitted that the deceased while travelling as a pillion rider slept during the running of the motor cycle due to which he slipped from the motor cycle and succumbed to the injuries received in the accident. The learned counsel for the appellant further submitted that since the pillion rider cannot be treated as a third party to the vehicle and as the owner of the vehicle obtained an Act policy, the risk of the pillion rider cannot be covered under the policy. Therefore, the appellant is not liable to pay any amount. The learned counsel for the appellant relied upon a judgment of Orissa High Court in New India Assurance Co. Ltd. v. Ashok Kumar Acharya, 1995 ACJ 189 (Orissa), wherein the High Court held that the insurance company cannot be made liable for the risk of the pillion rider as he is not a third party in respect of the motor cycle. After verification of Exh. B1, copy of the insurance policy, I am convinced that it is an Act policy. The accident occurred due to slip of the deceased on the road, while the motor cycle was proceeding. The claimants attributed rashness and FA/1815/1998 14/16 JUDGMENT negligence on the part of the driver of the motor cycle, but since the insurance covered is only under the Act policy, the risk of the pillion rider cannot be fastened to the insurance company, Therefore, I find sufficient force in the contention of the learned counsel for the appellant.” 4. Now, learned counsel for the claimants has relied on a judgment of this court in United India Insurance CO. Ltd. v. Parpudi Krishna Kumari, 2004 ACJ 624 (AP), wherein a learned single judge of this court held that deceased pillion rider being a gratuitous passenger is covered under the policy and directed the insurance company to pay compensation and requested to dismiss the appeal by confirming the order of Motor Accident Claims Tribunal, Nalgonda. 5. On the other hand, learned counsel for the insurance company relied on a judgment of the Supreme Court in United India Insurance Co. Ltd. v. Tilak Singh, 2006 ACJ 1441 (SC), wherein the Apex Court held that the insurance company has no liability towards the injuries suffered by the pillion rider as the insurance policy was a statutory policy and did not cover the risk of the death or bodily injury to a gratuitous passenger.” 13.In view of the aforesaid observations made by the Andhra Pradesh High Court following the decision of the apex court in United India Insurance Co. Ltd. v. Tilak Singh, 2006 ACJ 1441 (SC),and also in view of the admission of the appellant in written statement, liability of FA/1815/1998 15/16 JUDGMENT the owner now cannot be disputed by the appellant for paying compensation to the claimant. The tribunal has examined the question in detail and awarded compensation of Rs.35082/- in favour of the claimant by writing award running in 30 pages which itself go to suggest that the tribunal has applied mind and cogent reasons have been given by the claims tribunal for conclusions drawn by it. The reasons given and conclusions drawn by the claims tribunal are as per the law laid down by the apex court in aforesaid decision, therefore, according to my opinion, tribunal has rightly come to the conclusion that the risk of pillion rider is not covered by the policy. The appellant has not raised contention before the claims tribunal that the risk of pillion rider is covered as per the circular dated 2.6.1986 issued by the Tariff Advisory Committee Bombay, therefore, that aspect has been rightly examined by the claims tribunal in para 23 of the award and has rightly come to the conclusion that the insurance company is not liable to pay compensation to the claimant. Therefore, there is no substance in this appeal and same is required to be dismissed. 14.Accordingly, for the reasons recorded above, this appeal is dismissed with no order as to costs. 15.Consequently, Civil Application No. 6937 of 1998 for stay also stands dismissed. Interim FA/1815/1998 16/16 JUDGMENT relief, if any, shall stand vacated with no order as to costs. Amount, if any, deposited by the appellant in the registry of this Court be transmitted to the Claims Tribunal immediately. (H.K. Rathod,J.) Vyas