IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 471 of 2008 Mohamad Hasim S/O Shri Abdul Rashid. … Appellant/Claimant. Versus Sekhar Singh S/O Nathi Ram and others. … Respondents. Mr. Rajendra Singh, Advocate, learned counsel for the appellant. Ms. Neelima Mishra, Advocate holding brief of Mr. Ramji Srivastava, Advocate, learned counsel for the respondent No. 2. Mr. Bhupender Singh Bisht, Advocate holding brief of Mr. D.S.Patni, Advocate, learned counsel for the respondent No.5- Oriental Insurance Company. Date September 27, 2011. Hon’ble B.S.Verma, J. This appeal under Section 173 of the Motor Vehicles Act 1988 (for short the Act) is directed against the impugned award dated 13-10-2008 passed by the Motor Accident Claims Tribunal/Additional District Judge/I F.T.C. Roorkee, district Haridwar (for short the Tribunal) in Motor Accident Claim Petition No. 170 of 2006, Mohd. Hasim Vs. Sekhar Singh and others, whereby a compensation of Rs. 20,233/- has been awarded in favour of the appellant as against the respondent no.5. The claimant-appellant suffered grievous injuries in motor vehicle accident, which took place on 29-5-2006 due to rash and negligent driving by the driver of U.P.S.R.T.C. bus NO. U.P. 12J-8131. According to the claimant appellant, he was travelling by Mahindra Maxx Jeep No. UA-8C-9750 from Roorkee to Chhutmalpur. The offending bus is said to have hit the ill-fated Mahindra Jeep with the result that the passengers of the jeep including the appellant sustained injuries and the left leg bone of the claimant was got fractured and he became disabled due to the injuries. A case crime no. 133/2006 was registered against the driver of the offending bus under Sections 279, 337, 338 and 427 I.P.C. at Police Station Gang Nagar Roorkee. The claimant claimed compensation worth Rs. 17,98,814/- on different counts. 2 The claim petition no. 170 of 2006 was registered against Sekhar Singh and five others before the learned Tribunal. The claim petition was registered by the opposite parties, who filed their separate written statements. The learned Tribunal on the pleadings of the parties framed three issues in the case. Both the parties led oral and documentary evidence in the case and the learned Tribunal, after hearing the parties, on Issue No. 1 has held that the claimant suffered grievous injuries in the vehicular accident on account of rash and negligent driving by the driver of the offending bus. On issue no. 2, the learned Tribunal has held that the driver of the offending bus was having valid and effective driving licence at the time of the accident and the owner of the vehicle was possessing all other valid documents of the vehicle. The vehicle was duly insured with respondent no.5-Oriental Insurance Company. The issue no. 2 was decided in negative and against the insurance company. On Issue No. 3, the learned Tribunal has observed that the claimant has not filed original disability certificate and has also not proved the photocopy of the said certificate by oral evidence, therefore, the disability certificate filed by the claimant was not considered being inadmissible in evidence. Ultimately, on the basis of the medical prescription bills worth Rs. 20,233/-, which were duly proved, the compensation was awarded by the impugned award dated 13-10-2008. Aggrieved by the said award, the claimant has preferred the present appeal. In this appeal, the appellant has also moved Civil Misc. Application No. 8679 of 2011 under Order 41, Rule 27 & 28 C.P.C. to adduce additional evidence in appeal, which could not be produced before the Tribunal. Learned counsel for the appellant has vehemently contended that the original disability certificate was issued by the Chief Medical Officer Haridwar showing that the claimant suffered 45% permanent disability, but the same could hot be produced before the Tribunal and that the claimant could not produce other evidence showing the income of the injured. 3 Having heard the submissions of the learned counsel for the parties on the application moved under Order 41, Rule 27 C.P.C., this Court is of the view that in the interest of justice, the application deserves to be allowed subject to payment of cost of Rs. 500/- payable to the respondent no.5- Insurance Company and the appellant would be at liberty to file and prove the disability certificate before the Tribunal and the respondents would also be entitled to file evidence in rebuttal. So far as the challenge on the point of negligence is concerned, I am of the view that the Insurance Company is not entitled to assail the finding of the Tribunal on this count in view of the Apex Court verdict in the case of National Insurance Co. Ltd. Vs. Nicoletta Rohtagi [(2002) 7 SCC, Page 456]. In this appeal, the respondent no.5-Insurance Company has filed objection against the application under Order 41, Rule 27 & 28 C.P.C. moved by the appellant, but has not filed the permission granted by the Tribunal under Section 170 of the Motor Vehicle Act. Moreover, there is no such finding of the Tribunal that the claimant has been in collusion with the owner of the offending vehicle or any person who is responsible to pay the compensation. It is pertinent to mention that none of the respondents including the respondent no.5 against whom the impugned award has been passed by the learned Tribunal has neither filed any appeal nor cross-objection in this appeal against the impugned award, therefore, so far as the findings recorded by the learned Tribunal on Issue Nos. 1 and 2 are concerned, they have to be upheld in appeal. Accordingly, the appeal deserves to be partly allowed. The appeal is partly allowed. The finding of the learned Tribunal on Issue No. 3 of the impugned award is set aside. The application of the claimant-appellant moved under Order 41, Rule 27 C.P.C. (CLMA No. 8679 of 2011) is allowed subject to payment of costs of Rs. 500/- payable to the respondent no.5 within a period of 15 days before the learned Tribunal. The matter is remanded to the learned Tribunal for decision afresh in so far as the Issue No. 3 is concerned. On payment/deposit of cost, the 4 claimant-appellant would be at liberty to file the original disability certificate and to prove the same before the Tribunal in accordance with law. The learned Tribunal shall afford opportunity to the respondents to rebut the same. Thereafter, the learned Tribunal shall record finding afresh on Issue No. 3 and shall pass fresh award in accordance with law expeditiously as far as possible, after hearing both the parties. The findings recorded by the learned Tribunal on Issue Nos. 1 and 2 are upheld. (B.S.Verma, J.) RCP