* HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR + M.A.C.M.A.M.P.No.7499 of 2008 and M.A.C.M.A.No.3175 of 2005 % 24-09-2009 M.A.C.M.A. No.3175 of 2005: # National Insurance Company Limited, Rep. by its Branch Manager, Branch Office, Osmangunj, 15-1-503, B-28, Ashok Market, Feelkhana, Hyderabad. .. Appellant/Respondent No.3. Vs. $ Syeda najmunnissa and 4 others. .. Respondents/Petitioners. Harjeet Singh and another .. Respondents/R1 and R2 ! Counsel for the Appellant : Sri T. Mahender Rao. ^ Counsel for Respondents: Sri B. Vijaysen Reddy <Gist : >Head Note: ?Cases Referred: 1. 1997 ACJ 1081 2. 2009 ACJ 908 3. 2009(1) ALT 295 4. 1997 (2) ALT 211 5. 1998(1) ALT 271 6. AIR 1987 SC294 7. AIR 1986 RAJ 44 8. 2009 (3) Supreme 487 HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A.M.P.No.7499 of 2008 and M.A.C.M.A.No.3175 of 2005 COMMON JUDGMENT: (per BCK, J) This Appeal has been filed by the National Insurance Company Limited, represented by its Branch Manager, Osmangunj, Hyderabad, against the Judgment in O.P.No.898 of 2000 passed by the Motor Accidents Claims Tribunal-cum-Chief Judge, City Civil Court, Hyderabad, awarding compensation of Rs.15,37,000/- to the claimants, who filed the claim petition under Section 166 of the Motor Vehicles Act, for the death of one Syed Abdul Wahab Quadri, who died in a motor accident. 2. The sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal. 3. The first claimant is the wife, the second and third claimants are the minor sons and fourth and fifth claimants are the minor daughters of late Syed Abdul Wahab Quadri (hereinafter referred to as ‘deceased’). On 23-05-1999 the deceased was proceeding on his scooter bearing No.AP 12 3237 from Bahadurpura to Tadbund on his way to Idgah Dargah, Zoo Park. When the deceased reached Tadbund cross roads at about 7-30 PM, the Tata Diesel lorry bearing No.AP 11 U 6355, owned by the first respondent, insured with the third respondent, being driven by the second respondent Mohd. Osman, came from opposite direction and moved towards extreme right side and dashed against Mahendra jeep bearing No.AP 22D 6669 and thereafter the scooter of the deceased and also the RTC Bus bearing No.AP 9Z 7898, as a result of which the deceased sustained grievous injuries resulting in multiple fractures and the jeep, bus and scooter were damaged. The deceased was immediately shifted to Yashoda Hospital, Hyderabad, wherein he was treated as inpatient for two days i.e., from 23-05-1999 to 25-05-1999. Then, he was shifted to King koti Government Hospital and was operated and treated there till 17-07-1999. Then he was shifted to NIMS, Punjagutta, Hyderabad. Again he was operated. The deceased was confined to bed for six months three weeks. However, while undergoing treatment in NIMS, Hyderabad, he succumbed to the injuries on 16-121999. The claimants had spent about Rs.6 lakhs towards medical expenses of the deceased. 4. The deceased had been working as Manager for M/s. Harshad Ahmed Khan, Rashid Ahmed Khan, Azfar Ahmed Khan and Shaista Khan and was looking after their affairs and cultivating their lands to an extent of Ac.104-34 guntas in Sy.Nos.339/A, 340/A, 340/B, 341 to 348, 355/A, 355/B, 356/B, 358, 522 and 523 situated at Farook Nagar, Shadnagar Mandal, Mahaboobnagar District. There was an orchard in the said land. The deceased was paid an amount of Rs.4,000/- towards his salary. He was also given 1/3rd of the net income from the agricultural income besides the salary. He used to earn Rs.1,50,000/- to Rs.2,00,000/- per annum towards 1/3rd of the net income by managing the cultivation of the above lands. Due to the untimely death of the deceased, the claimants are put to mental agony. They have lost the only source of their livelihood. The deceased used to spent about Rs.4,000/- per month and used to give Rs.1,50,000/- to Rs.2,00,000/- to his family. 5. The driver of the bus P. Krishna Reddy lodged a complaint with the police, Bahadurpura, basing upon which a case in Crime No.80 of 1999 was registered for the offence under Section 337 of IPC. But subsequently, the section of law was altered to 304-A of IPC. The second respondent driver of the offending lorry was tried in C.C.No.50 of 2000 on the file of the II Metropolitan Magistrate, Hyderabad. He pleaded guilty and accordingly he was convicted and sentenced. 6. The claimants contended that since the accident occurred due to rash and negligent driving of the second respondent and the vehicle was insured with the third respondent-insurance company, the respondents 1 to 3 are jointly and severally liable to pay compensation to the claimants. They claimed a total compensation of Rs.22,00,000/-. 7. The respondents 1 and 2, being the owner and driver of the vehicle involved in the accident respectively, did not contest the matter and they were set ex parte. 8. The third respondent alone filed counter and denied all the material averments made by the claimants with regard to the manner in which the accident occurred and the occupation and income of the deceased. The third respondent also denied that the accident occurred due to the rash and negligent driving of the second respondent. It is also averred that the deceased might have died due to his negligence for not taking proper treatment. The other averments of the claimants that the deceased was cultivating Ac.104-34 guntas in various survey numbers and that there is an orchard in those lands and that he was paid Rs.4,000/- per month and was getting Rs.1,50,000/- to Rs.2,00,000/- per annum towards his 1/3rd share, have been denied. Thus all the material averments made by the claimants have been denied. However, the third respondent did not come with any specific plea that Harshad Ahmed Khan and others had sold their lands in 1998 and 1999. 9. The Tribunal framed the following issues for consideration: 1. Whether the accident was due to rash and negligent driving of the case driver of the lorry bearing No.AP 11-U 6355? 2. Whether the petitioners are entitled for compensation? If so, to what amount? 3. To what relief? 10. On behalf of the claimants, PWs.1 to 3 were examined and Exs.A-1 to A-9 were marked. On behalf of the respondents, none were examined. However, Exs.B-1, Insurance Policy, and X-1, case History sheet, were marked. 11. The Tribunal, on appreciation of evidence, came to a conclusion on issue No.1 that the principle of res ipsa loquitor is applicable and that the accident occurred due to rash and negligent driving of the lorry driver. 12. On issue No.2, the Tribunal has taken the income of the deceased at Rs.4,000/- towards retaining fee and Rs.5000/- towards his share from agricultural produce per month, total Rs.9,000/- per month and the annual income at Rs.1,08,000/- and after deducting 1/3rd towards personal expenses, determined the dependency at Rs.72,000/- per annum and after applying multiplier ‘15’, calculated the total dependency at Rs.10,80,000/-. The Tribunal also awarded Rs.15,000/- towards loss of consortium to the first claimant, Rs.15,000/- loss of estate, Rs.3,38,914-35 ps towards medical expenses, extra nourishment etc., Rs.63,000/- towards loss of earnings during the period of treatment and Rs.35,000/- towards pain and suffering and thus awarded total compensation of Rs.15,37,000/- to the claimants. 13. The learned Standing counsel for the Insurance Company submitted that the Tribunal erred in assessing the income of the deceased without any evidence. It is further argued that the Tribunal ought not to have accepted the evidence of PWs.1 and 2, who are interested witnesses, in determining the income of the deceased. It is further argued that the Insurance Company appointed a Surveyor and he submitted a report, which reveals that the lands said to be cultivated by the deceased were converted into house plots and they were purchased by M/s. Shadnagar Real Estate Private Limited in 1998 and in February, 1999 and therefore, the contention of the claimants is false. 14. The Insurance Company filed M.A.C.M.A.M.P. No.7499 of 2008 to receive the investigation report of Sri M. Rama Krishna, the Insurance Surveyor, and the certified copies of the pahanies for the year 1999-2000. The contention of the learned Standing Council for the Insurance Company is that the report of the Surveyor and the copies of the pahanies are essential for effective adjudication of the Appeal and therefore, they may be received as additional evidence. 15. The learned counsel for the claimants submitted that the Tribunal has correctly assessed the income of the deceased basing on the evidence adduced by the parties. It is also submitted that the pahanies are not the documents of title and these documents pertain to the period subsequent to the death of the deceased. It is also argued that the deceased worked as Manager till May, 1999 i.e., till the date of accident and that the Insurance Company has not taken any specific plea that M/s. Harshad Ahmed Khan and others had sold their lands in 1998 and 1999 and in the absence of any specific plea, the contention of the insurance company cannot be accepted. It is also argued that the accident occurred on 23-05-1999 and after a period of decade, the Insurance Company cannot be permitted to adduce additional evidence. It is also argued that the evidence on record shows that the deceased was spending Rs.200/- towards school fees, Rs.300/- towards tuition fees i.e., Rs.500/- per month for each child and that the deceased was comfortably maintaining all the claimants and this circumstance also shows the income of the deceased. 16. The learned Standing Council for the Insurance Company, in reply, submitted that the expenditure of the deceased cannot be taken as criteria for determining his income. 17. The points that arise for consideration are: 1. Whether the additional evidence sought to be produced by the appellant-insurance company can be received at this stage; and 2. Whether the compensation awarded by the Tribunal is just and reasonable and whether it is on higher side? 18. The specific case of the claimants is that the accident occurred due to rash and negligent driving of the lorry driver when on 23-05-1999 at about 7-30 PM, the offending lorry, being driven by the second respondent, dashed against the scooter of the deceased, while he was proceeding from Bahadurpura to Tadbund. 19. The wife of the deceased was examined as PW-1. One Harshad Ahmed Khan, one of the owners of the land, was examined as PW-2. Dr. L. Narendranath, Professor of Orthopedics, NIMS, Hyderabad, who treated the deceased, was examined as PW-3. Though no eyewitness is examined, the Tribunal applying the principle of res ipsa loquitur held that the accident occurred due to rash and negligent driving of the lorry driver. Ex.A-1 is the certified copy of the FIR. Ex.A-2 is the C.C. of the Judgment in C.C.No.216 of 1999. The contents of Ex.A-1 shows that the driver of the bus by name P. Krishna Reddy filed a report to the police and that the lorry, being driven by R-2 in a rash and negligent manner, came towards extreme right side and first dashed against the Mahindra Jeep and then hit the scooter of the deceased and then the RTC Bus, being driven by P. Krishna Reddy. Ex.A-2 shows that one Ahmed Osman lorry driver pleaded guilty and accordingly he was convicted for the offence punishable under Section 337 and 338 of IPC. The very fact that the lorry dashed against three vehicles i.e., jeep, scooter and bus shows that the principle of res ipsa loquitor applies and establishes that the accident occurred due to the rash and negligent driving of the lorry driver. Moreover, the admission of a driver before the Criminal Court is a strong circumstance, which is corroborated by the contents by Ex.A-1 and thus the evidence clinchingly establishes that the accident occurred due to rash and negligent driving of the driver of the lorry. Moreover, since the finding of the Tribunal on this point is not argued, there is no need to discuss the same. 20. The evidence of PWs.1 to 3 shows that the deceased sustained injuries and died while undergoing treatment in the hospital. The evidence of PW-3 shows that the deceased sustained multiple fractures and he was operated and continuously treated, but ultimately succumbed to the injuries on 16-12-1999 while undergoing treatment in NIMS hospital. Thus the evidence of PW-3 shows that the deceased died as a result of the injuries sustained by him and due to development of cardio respiratory while undergoing treatment. Since the death of the deceased and the cause of the death are not in dispute, further discussion is not required. POINT NO.1: 21. The main point that arises for consideration is whether the additional evidence sought to be produced by the Insurance Company can be received at this stage. It is necessary to refer to the relevant provisions of the Motor Vehicles Act, 1988, to ascertain the procedure and powers of the Tribunal. Chapter 12 of Motor Vehicles Act deals with the compensation. Section 165 deals with the constitution of the Claims Tribunal. Section 166 deals with the filing of the application for compensation. Section 167 gives option to the claimants either to claim compensation under the provisions of M.V. Act or under the provisions of Workmen’s Compensation Act, 1923. Section 168 deals with the award of the Tribunal. Section 169 deals with the procedure and powers of the Claims Tribunals, which reads as follows: “169. Procedure and powers of Claims Tribunals:-- (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material object and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.” A reading of above provision makes it clear that the Tribunal shall follow such summary procedure as it thinks fit. Let us examine what is summary procedure. 22. Summary procedure has been prescribed under Order 37 of C.P.C. A reading of Order 37 C.P.C. and the Rules made therein shows the intention of the legislature to dispose of the matters as early as possible. Rule 3 of Order 37 envisages that the plaintiff shall, together with summons under Rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him. 23. The procedure prescribed under Order 37 C.P.C. shows that the defendant may at any time within ten days of service of summons shall enter in appearance and file an address for service of notices on him. Then the plaintiff shall serve on the defendant a summons for Judgment and leave to defendant such suit. If the defendant has not applied for leave to defend, the plaintiff shall be entitled to Judgment forthwith. If the defendant is permitted to defend as to the whole or any part of the claim, he may be asked to give such security and Court may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering in appearance and for applying leave to defend the suit. 24. Thus the thrust appears to be to dispose of the suits filed under summary procedure as early as possible. 25. As far as the powers of the Tribunal are concerned, the Tribunal shall have the powers of Civil Court (1) for the purpose of taking evidence on oath and (2) enforcing the attendance of witnesses (3) compelling the discovery and production of documents and material objects; and (4) for such other purposes as maybe prescribed. 26. Section 173 deals with the Appeals, which reads as follows: 173. Appeals:--(1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty percent, of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. 27. Rule 473 of the A.P. Motor Vehicles Rules, 1989 (Rules Made by the State of Andhra Pradesh under the provisions of Motor Vehicles Act, 1988), reads as follows: 473. Code of Civil Procedure to apply in certain cases:-- The following provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall so far as may be, apply to proceedings before the Claims Tribunal namely, Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXVIII, Rules 1 to 3. 28. The first schedule of C.P.C. deals with various forms. Order V deals with issue and service of summons. Order 9 deals with the appearance of parties and consequence of non-appearance. Rules 9 to 13 of Order IX deals with the non-appearance of the parties and consequences thereof and passing of ex parte order and decree and setting aside the ex parte decree. Order 13 deals with production, impounding and return of documents. Order 16 deals with the summoning and attendance of witnesses. Order 17 deals with granting of adjournments. Order 28 deals with suits by or against military or naval men or airmen. 29. A reading of Sections 169 and 173 of the Motor Vehicles Act and Rule 473 of the A.P. Motor Vehicles Rules, 1989 shows that there is no reference to Rule 27 of Order 41 of C.P.C. obviously. Rule 27 of Order 41 of C.P.C. is not made applicable to the appeals filed under Section 173 of the Motor Vehicles Act. Anyhow, since the Tribunal can follow it’s own procedure, in given circumstances, the Appellate Court i.e., High Court may receive additional evidence in the interest of justice. Let us examine whether the claimants have fulfilled the conditions enumerated under Order 41 Rule 27 of C.P.C. or not. 30. Rule 27 of Order 41 of C.P.C. reads as follows: R. 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.” 31. I n UNITED INDIA INSURANCE COMPANY LTD. v. KAMLA RANI [1], the Punjab and Haryana High Court held that the Tribunal established under the Motor Vehicles Act is not governed by the Rules or procedure envisaged by the Civil Procedure Code and the Evidence Act. The Tribunal is entitled to evolve its own procedure to meet the ends of justice based on the principles of justice, equity and good conscience. The settled legal position is strict principles of C.P.C. and the Evidence Act are not applicable to the enquiries to be made in the claim petitions. 32. The issue of receiving additional evidence came up in NEW INDIA ASSURANCE CO. LTD. v. SHANTHA [2], wherein the Karnataka High Court, considering the provisions under Rule 27 (1) of Order 41 of C.P.C., observed that if it is the requirement of the Court to enable it to pronounce Judgment or for any other substantial cause, the Court may receive additional evidence. 33. This Court in AJRA AZMATH v. KURRA PRAMEELA [3], held as follows: “IT is needless to say that unless any one of the conditions specified in the said provisions of Order 41, Rule 27 of the Code is satisfied, the question of allowing such application would not arise. It is no doubt true that instead of deciding such application the same may be postponed and at the time of hearing of the appeal the said application also may be considered along with the appeal and while deciding the appeal if the court is satisfied that such documents produced at the stage of appeal also are necessary for proper adjudication of questions in controversy, the same may be received or the court may not be inclined to receive, depending upon the facts and circumstances of a given case.” 34. I n AFSAR KHAN V. COL. GOVINDACHARYULA NARSING RAO [4], this Court held that the Court has to see whether a document sought to be produced would prima facie advance the cause of the party producing them. 35. In S. RAMA RATHNAMMA V. G. LAVANYAVATHI [5], this Court held that the appellate Court has to give valid reasons for taking the document on record. 36. Thus the summary of the above discussion is that the Tribunal has to follow the summary procedure while dealing with the claim petitions and strict rules of evidence and pleadings is not necessary. Any amount of evidence without the basis pleading has no value in the eye of law. Therefore, first of all there should be foundation of pleading basing upon which the evidence should be adduced. Where there is no pleading, the question of permitting to adduce additional evidence on a plea not taken does not arise. It is also the settled law that a party cannot be allowed to fill up lacunas and the Court will not come to the rescue of a party who sleeps over his rights. Under Rule 27 of Order 41 of C.P.C., the specific conditions prescribed are that the parties to Appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. However the Court may permit to adduce additional evidence in the Appellate Court where in a case the Court, from whose decree the Appeal is preferred, has refused to admit the evidence which ought to have been admitted or where 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