IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :19.6.2008 CORAM: THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.24 of 2002 and C.M.P.No.3247 of 2007 The Branch Manager, M/s Oriental Insurance Co. Ltd., Raja Street, Gobi Taluk. ... Appellant/5th Respondent -vs- 1. A. Sekar ... 1st Respondent/Petitioner. 2. N. Subramanian 3. The Managing Director, M/s. Tamil Nadu State Transport Corporation Limited. (Coimbatore Division II) Erode. 4. Suresh 5. Arrthanareeswaran ... Respondents/Respondents 1 to 4 This Civil Miscellaneous Appeal is filed against the Judgment and decree in M.C.O.P.No.454 of 1997 dated 03.01.2001 on the file of the Motor Accident Claims Tribunal (II Additional District Judge), Erode. For Appellant : Mr. S. Janarthanan For Respondents : Mr. Karthik Raja [for R-1] Mr. G. Munirathinam [for R-3] J U D G M E N T Civil Miscellaneous Appeal No.24 of 2002 is directed against the award passed by the Motor Accident Claims Tribunal (II Additional District Judge), Erode, dated 03.01.2001 made in M.C.O.P.No.454 of 1997. Civil Miscellaneous Petition No.3247 of 2007 has been filed by the appellant in the above said C.M.A. to receive the true copy of the insurance policy as Additional Evidence. https://hcservices.ecourts.gov.in/hcservices/ 2. The first respondent herein filed the above said M.C.O.P. claiming a sum of Rs.4,00,000/- as compensation arraying the appellant herein and respondents 2 to 5 herein as respondents in the above said M.C.O.P. contending that he met with an accident that took place on 9.1.1997 at about 7.30 a.m. near Kondapulipalayam branch road on the Tharapuram – Palani by-pass road; that while he was proceeding in a motor cycle bearing Registration No.TN-51-Z-6707 belonging to one Arthanareeswaran (5th respondent herein), driven by one Suresh (4rd respondent herein), the bus bearing Registration No.TN-33-N-0756 belonging to the Tamil Nadu State Transport corporation Ltd.(3rd Respondent herein) dashed against the Motor Cycle; that the said accident occurred solely due to the rash and negligent driving of the bus by its driver viz., the second respondent herein and that the same resulted in grievous injuries to the first respondent/claimant leading to permanent disability. However, by way of abundant caution, the first respondent arrayed the driver, owner and insurer of the Motor Cycle and also the drier and owner of bus and made the claim against all of them. 3. The claim was resisted by the Tamil Nadu State Transport Corporation (3rd respondent herein) and Oriental Insurance Company Limited (Appellant herein) by filing separate counter statements. Others remained exparte. The Tamil Nadu State Transport Corporation (3rd respondent herein) contended before the Tribunal that the accident occured solely due to rashness and negligence on the part of the rider of the Motor Cycle viz., the fourth respondent herein and that the driver of the bus viz., second respondent herein was not at all at fault. Based on the said contention, the Tamil Nadu State Transport corporation disowned liability to pay compensation based on the theory of fault. The Tamil Nadu State Transport Corporation also contested the claim regarding quantum. Similarly, the Oriental Insurance Company Ltd., (Appellant herein) in its counter statement contended that there was no negligence or rashness on the part of the rider of the Motor Cycle and it was the driver of the bus who acted carelessly and negligently, which resulted in the unfortunate accident. It was also contended therein that the amount claimed as compensation was high and exorbitant. 4. Based on the said pleadings made by the contesting parties the Tribunal framed necessary issues and conducted trial. Including the claimant, two witnesses were examined as P.W.1 and P.W.2 and Exhibits A-1 to A-12 were marked on the side of the petitioner. No witness was examined and no document was marked on the side of the contesting respondents before the Tribunal. At the conclusion of trial, the Tribunal considered the evidence brought on record in the light of the argument advanced on behalf of the contesting parties and upon such consideration, came to the conclusion that the accident was solely due to rash and negligent driving of the rider of the https://hcservices.ecourts.gov.in/hcservices/ Motor Cycle in which the first respondent herein/claimant was travelling as a pillion rider and that there was no fault on the part of the driver of the bus, the second respondent herein. 5. On the basis of the said findings, the Tribunal mulcted the liability to pay compensation to the first respondent/claimant on the Appellant and respondents 4 and 5 herein, who were the Insurer, rider and owner of the Motor Cycle respectively. The Tribunal assessed the damages as follows: Permanent Disability : Rs.50,000.00 Pain and Sufferings : Rs.10,000.00 Extra nourishment : Rs. 1,000.00 Transport Expenses : Rs. 1,000.00 Medicine Expenses : Rs.52,900.00 Lost of earning during treatment : Rs. 3,000.00 Loss of earning capacity : Rs.20,000.00 -------------- Total Rs.1,37,900.00 ============== The above amount was directed to be paid along with an interest at 12% p.a. from the date of the petition till the date of realisation with proportionate costs. 6. Aggrieved by the said award dated 03.01.2001, the Insurer of the Motor Cycle alone has come forward with the present Civil Miscellaneous Appeal on various grounds set out in the memorandum of appeal including one that the first respondent/claimant being a pillion rider could not be construed to be a third party and that hence the appellant Insurance Company is not liable to pay compensation to the injured claimant. 7. To substantiate the contention that the appellant driver not being a third party cannot claim, the insurance company/Appellant has come forward with the petition viz., Civil Miscellaneous Petition No.3247 of 2007 seeking leave of the Court to adduce additional evidence. The additional documentary evidence sought to be produced is nothing but an alleged true copy of the Insurance Policy issued in respect of the above said Motor Cycle. 8. This Court heard the arguments advanced by Mr. Janarthanam on behalf of the appellant/Insurance Company, Mr. Karthik Raja reprsenting Mr. Rajaraman on behalf of the first respondent and Mr.G. Munirathinam on behalf of the third respondent. The materials available on record were also perused. 9. In respect of a road accident in which two motor vehicles were involved, the claim was made by the injured person arraying the https://hcservices.ecourts.gov.in/hcservices/ owners of both the vehicles, driver/rider of both vehicles and the insurer of one of the vehicles (the other vehicle being an exempted one). The claim was contested only by the owner of the bus and the Insurer of the Motor cycle involved in the accident. Both of them took diametrically opposite plea, regarding the question of negligence. According to the Tamil Nadu State Transport Corporation viz., the owner of the bus, it was due to the rash and negligent driving of the Motor Cycle by its rider the accident took place. According to the Appellant/Insurance Company, due to the rash and negligent driving of the bus driver the accident occurred. Even the claimant (first respondent herein) has stated in his petition before the Tribunal that the driver of the bus was at fault. However, by way of abundant caution he has chosen to make the claim against all the respondents in the M.A.C.T.O.P. The Tribunal, on appreciation of evidence, came to the conclusion that it was the rider of the Motor Cycle who acted with rashness and negligence caused the accident and there was no negligence or fault on the part of the driver of the bus. The said finding of the Tribunal is sought to be challenged by the appellant/Insurance Company in this Appeal. 10. Learned counsel for the first respondent/claimant pointed out the fact that the insurer of the Motor Cycle did not get permission under Section 170 of the Motor Vehicle Act before the Tribunal to resist the claim on the grounds of defence available to the insured in addition to the grounds available to the insurer under Section 149 of the Motor Vehicles Act and argued that the appeal preferred by the insurer on the question of negligence as well as quantum was not maintainable. In a catena of cases, it has been repeatedly held that the insurer of the vehicle against whom a claim is made have a right to take the defence enumerated under Section 149 of the Motor Vehicles Act. In case, the owner of the vehicle insured with the insurer fails to contest the claim or in case of collusion between the claimant and the insured, an additional opportunity has been provided to the insurer under Section 170 of Motor Vehicle Act to seek leave of the Court to avail the grounds of defence available to the insured. Unfortunately, in this case, no such permission was sought for by the appellant and no such permission was granted by the Tribunal. Therefore, this Court comes to the conclusion that the above said submissions made by the learned counsel for the first respondent/claimant have got to be accepted and that the challenge made to the award on the question of negligence as well as quantum of compensation in this appeal has got to be discountenanced. 11. So far as the next contention raised on behalf of the appellant is concerned, at the outset, it may look like a tenable one. But on the other hand if the same is considered in the light of the pleadings made before the Tribunal, according to the considered view of this Court, the said contention has also got to be rejected. https://hcservices.ecourts.gov.in/hcservices/ Learned counsel for the appellant relying on the Judgement of the Honourable Supreme Court in United India Insurance Co.Ltd., Shimla vs. Tilak Singh and Others reported in 2006(4) Supreme Court Cases 404 would contend that a gratuitous passenger carried in a private vehicle need not be compulsorily insured as per the provision found in section 147 of the Motor Vehicles Act; that a pillion rider of the Motor Cycle occupies the position of a gratuitous passenger of a private vehicle and hence not compulsorily insurable; that the policy issued in respect of the Motor Cycle involved in the accident was an "Act only" policy covering third party risk and that hence the award of the Tribunal directing the appellant/insurer to pay the compensation to the first respondent/injured claimant, holding the insurer absolutely liable was quite erroneous and hence liable to be set aside. It is true that the Honourable Apex Court, in the above cited case relied upon by the learned counsel for the appellant, held that section 147 of the Motor Vehicles Act does not require a policy to cover the risk involved to gratuitous passengers carried in a private vehicle and that such gratuitous passengers would not come within the term "third party". But whether the appellant herein is entitled to rely on the said judgement is the question to be decided in this Case. 12. As rightly pointed out by the learned counsel for the first respondent/claimant, the appellant insurer did not take any defence before the Tribunal to the effect that the policy issued in respect of the Motor Cycle was "Act only" policy and hence the risk involved to the pillion rider was not covered. Even in the grounds of Appeal, it has been stated that the first respondent/Claimant was not a third party and hence he was not entitled to claim compensation from the insurer. Averments are lacking in this regard since there is no clear-cut averment to the effect that the policy issued by the appellant was "Act only" policy and not a comprehensive policy. It is trite law that a party cannot be permitted to lead evidence without making necessary plea and that any amount of evidence adduced without there being any plea shall not be looked into. In the instant case, in addition to the absence of such a plea in the counter statement filed before the Tribunal, there is no iota of evidence adduced on the side of the appellant to the effect that the policy was an "Act only" policy. When such is the position, the order of the Tribunal mulcting the liability on the insurer to pay the compensation on behalf of the insured to the first respondent (claimant) does not suffer from any kind of defect or infirmity. For the same reason the petition filed in C.M.P.No.3247 of 2007 for reception of Additional Evidence also cannot be sustained. https://hcservices.ecourts.gov.in/hcservices/ 13. Learned Counsel for the appellant relied on the Judgment of a Division Bench of this Court in Kullappan Vs. Meenakshi and Others reported in 1982 A.C.J. (Supp.) 543 to show that even in an appeal a party can be allowed to adduce additional evidence invoking the power of the Court under Order 41 Rule 27(1)(b) of Civil Procedure Code. There cannot be any second opinion that the Court has such a power under the said rule. But how far the said judgment relied on by the learned counsel for the appellant is helpful to the appellant herein is questionable. In the said case, the Insurer took a stand before the Tribunal itself that the liability of the Insurer under section 95(2)of the then Motor Vehicles Act, 1939 was limited to the extent of Rs.50,000/- in the aggregate. However, the Insurer before the Tribunal in the said case did not produce even a copy of the Insurance Policy to show that the liability of the Insurer was limited to the above said extent. Despite such an absence of evidence, the Tribunal therein had held that the insurer's liability was limited to the extent of Rs.50,000/-. Therefore, the claimant therein preferred an appeal in which the appellant/claimant sought permission to produce the insurance policy to disprove the contention of the insurer. When the coverage of insurance is admitted by the insurer and plea is made by the insurer that the liability of the insurer is limited to certain extent, the burden is on the insurer to prove such a limitation. Even if the insurer was able to adduce some evidence in support of such a contention that the liability of the Insurer is limited to a particular amount, the opposite party viz., claimants or the owner of the vehicle shall have a right to adduce rebuttal evidence. Only in such circumstances, though the insurer had not come forward to produce documents to prove the contention that the liability of the insurer was limited in the light of the fact that the Tribunal without any evidence had chosen to hold that the insurer's liability was limited, permission was granted by the Division Bench to the Appellant/ claimant therein to produce the policy to show that the liability of the Insurer was not limited as claimed. As the best evidence which was available with the insurer was not produced, always the opposite party shall have the right to produce it invoking the provision under Order 41 Rule 27(1)(b) of Civil Procedure Code. But the facts of the case on hand are different. In this case, as pointed out supra, there is no plea made by the appellant/insurer that the policy was an "Act only" Policy and that policy did not cover the risk involved to any person other than those who are to be covered compulsorily as per Section 147 of the Motor Vehicle Act. Under such circumstances, the present request seeking permission to adduce additional evidence without there being necessary plea, is bound fail and hence C.M.P.No.3247 of 2002 deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 14. For all the reasons stated, this court comes to the conclusion that there is no merit either in the appeal or in the C.M.P. seeking permission to adduce additional evidence in the appeal. The C.M.A. as well as C.M.P. are liable to be dismissed and accordingly dismissed. In view of the peculiar facts and circumstances of the case, there shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ggs To 1.The Managing Director, M/s. Tamilnadu State Transport corporation Limited,(Coimbatore Division II),Erode. 2.Motor Accident Claims Tribunal, (II Additional District Judge) Erode. + 1 CC To Mr.G.Muniratnam, Advocate SR NO.31388 + 1 CC To Mr.T.R.Rajaraman, Advocate SR NO.31054 C.M.A.No.24 of 2002 and C.M.P.No.3247 of 2007 JSV {CO} TP/21.7.08 https://hcservices.ecourts.gov.in/hcservices/