IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.:95 of 2006 Date of decision: 29.10.2009 Kulwant Singh. …Appellant Versus Banti Devi & Others. …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? For the Appellant: Mr. Vivek Thakur, Advocate. For the respondents No.1 & 2 Mr. T.S. Chauhan, Advocate. For the respondent No.4 Mr. J.S. Bagga, Advocate. Deepak Gupta, J. (Oral) This appeal under Section 173 of the Motor Vehicles Act is directed against the award dated 9th December, 2005 passed by the learned Motor Accident Claims Tribunal, Bilaspur in M.A.C. Case No. 22 of 2003. Briefly stated the facts of the case are that the claimants are the mother and minor brother of deceased Pawan Kumar. They filed a claim petition under Section 166 of the Motor Vehicles Act alleging that deceased Pawan Kumar was travelling in Truck No. HP-24-A-3777, which was owned by Kulwant Singh (appellant herein) and driven by Chaman Lal, (respondent No.3 herein). The vehicle was insured with the Insurance Company (respondent No.4 herein). It was alleged that the deceased boarded the truck in question at village Kunala and was to get down at Bilaspur, but unfortunately when the truck reached near village Kunala, the driver lost control of the vehicle and the vehicle went off the road and Pawan Kumar was crushed under the said vehicle. The owner and the driver filed similar replies alleging therein that the deceased was engaged as second driver-cum-cleaner by the owner with the ill fated truck. It was further alleged that the deceased himself was driving the truck in question since respondent No.2, the main driver, was on leave. It was also alleged in the reply filed by respondent No.2 that he was on leave since his marriage was fixed for 6th February, 2003. The Insurance Company in its reply took the stand that the deceased was an unauthorized gratuitous passenger in a goods carriage vehicle and, therefore, it was not required to cover the liability in respect of his death. Respondents No. 1 and 2 also pleaded that the petition was not maintainable since the claimants had filed a petition under the Workmen’s Compensation Act which had been permitted to be dismissed in default. The petitioner’s evidence was closed on 22.7.2005. The case was then fixed for the evidence of the respondents on 22.8.2005. On 22.8.2005 no evidence of the respondents was present and request for adjournment was made. The same was allowed and the case was fixed for evidence of the respondents on 19.9.2005. On 19.9.2005, learned counsel for respondents No. 1 and 2, i.e. owner and driver, made a statement closing the evidence on behalf of the said respondents. Learned counsel stated that he only wanted to produce the registration certificate of the vehicle, which he would file on the next date. One witness Sushil Kumar who was present from the office of Workman’s Compensation Commissioner was given up. Thereafter the matter was fixed on 18.10.2005 for the evidence of respondent No.3, on which date the evidence of respondent No.3 was also closed. Arguments in the matter were heard on 21.10.2005 and the case was fixed for pronouncement of orders on 28.10.2005. After the arguments were heard, on 26.10.2005, respondents No. 1 and 2 moved an application under Order 8 Rule 1-A(3) for permission to produce certain documents. This application was allowed and the documents were permitted to be produced on record. The learned trial court disposed of the case and held that the accident occurred due to the rash and negligent driving of Chaman Lal and further went on to hold that only the owner and driver were liable to pay the compensation, since the deceased was a gratuitous passenger in the truck the Insurance Company was exonerated of its liability. Aggrieved by the said award, the appellant filed the present appeal. Along with appeal an application under Order 41 Rule 27 has been filed seeking permission to lead further evidence. Two documents have been filed alongwith application and list of witnesses giving the names of nine witnesses has also been filed and these witnesses are now sought to be summoned by invoking the powers of this Hon’ble Court vested in it, under Order 41 Rule 27 CPC. The controversy in brief is that according to the claimants and the insurance company the deceased was travelling as a passenger in the goods carriage vehicle. On the other hand the present appellant alleges that the deceased was employed as a driver on the said vehicle and he was in fact driving the vehicle. According to the appellants, claimant Banti Devi had filed a claim petition claiming compensation under the Workmen’s Compensation Act, in which she had alleged that the deceased was the driver of the truck. It is pertinent to mention that Banti Devi was examined as PW-1 in the present case. When she was cross- examined by respondents No. 1 and 2 she denied the suggestion made to her that the deceased was employed by the owner of the truck. She categorically stated that the deceased was not employed as a cleaner by the owner of the vehicle. She also denied that she had filed any petition for grant of compensation under the Workmen’s Compensation Act. After her statement which was recorded on 11th November, 2003, the case was adjourned a number of times for recording the statements of remaining witnesses of the petitioner. The case was fixed for the evidence of the respondents on 22.7.2005 i.e. almost one and a half years after the statement of Banti Devi had been recorded. The appellant and his counsel knew very well what Banti Devi has stated. If they wanted to confront her with the petition allegedly filed by her before the Workmen’s Compensation Commissioner, the proper course available to them was to summon the record from the office of the Workmen’s Compensation Commissioner and confront Banti Devi with the petition which allegedly bore her thumb impression. No such attempt was made. On the other hand learned counsel for the appellant and the driver of the vehicle voluntarily made a statement closing the evidence on behalf of the owner and driver on 19.9.2005. It is also alleged that since the father of the appellant was unwell and was hospitalized from 29th August, 2005 to 19th September, 2005 the appellant could not impart instructions to his counsel. This explanation cannot be accepted. As pointed out above the statement of Banti Devi was recorded on 11.11.2003 and the case was fixed for the evidence of the respondents on 22.7.2005 and then on 22.8.2005. List of witnesses was required to be filed within 15 days from the date of framing of issues, but even if the time was to be reckoned from 22.7.2005, the list of witnesses should have been filed within the period of 5 days granted by the Tribunal. There is no material on record to show that the appellant’s father was ill during the period from 22.7.2005 to 27.7.2005. Even otherwise on 19.9.2005 no request for adjournment was made on behalf of the appellant. In case such a request had been made the learned Tribunal in all probability would have granted an adjournment since the request for adjournment made on behalf of the Insurance Company was allowed and the case was adjourned to 18.10.2005 for the evidence of the Insurance Company. Once the case was being adjourned if request had been made on behalf of the appellant or the driver, the Tribunal would have definitely given them another opportunity. It is not that the Tribunal closed the evidence of the appellant but the learned counsel for the appellant himself made a voluntary statement closing their evidence. The matter does not end here. After the arguments were heard, the learned counsel for the appellant moved an application for placing on record certain documents. The Court even allowed this application. No prayer was made even at that time to recall Banti Devi or to examine any witnesses. The only prayer made was that the appellant wanted to produce certain documents. Production of the documents was allowed and the documents were marked in evidence. Mere exhibition of the documents will not prove the contents of the documents. No evidence was led to prove the contents of the documents. The main document is the petition allegedly filed by Banti Devi under the Workmen’s Compensation Act. No effort was made to summon the original record or to confront Banti Devi but only the certified copy of the alleged petition was placed on record. Whether this petition was actually filed by Banti Devi or not could not have been decided by mere production of this document especially when Banti Devi had categorically stated in no uncertain terms that she had never filed a petition under the Workmen’s Compensation Act. The appellant took a chance by only filing the documents without confronting Banti Devi with the same and without formally proving them in accordance with law. The learned Tribunal rightly did not place reliance on these documents and passed the award. After the award was passed the appellant realizing his mistake has now filed application under Order 41 Rule 27, wherein as many as nine witnesses are sought to be examined and other documents are sought to be placed on record. Even now no prayer has been made to recall Banti Devi to confront her with the petition allegedly filed by her or the power of attorney allegedly executed by her. Without such requests being made, examining the other witnesses and recording other evidence is meaningless and futile. Even otherwise the provisions of Order 41 Rule 27 are not meant to fill in the lacunae in the case. These provisions are not meant to help a person who has been negligent in prosecuting his litigation. Order 41 Rule 27 reads 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 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) Whenever, additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” A bare perusal of this provision shows that the Court can allow additional evidence only where the trial court has refused to admit evidence which ought to have been admitted. This case does not fall under Clause (a). Under Clause (aa) the party seeking to produce additional evidence must establish 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. In the present case as pointed out above, in the written statement itself a defence had been raised that claimant No.1 Banti Devi had filed a petition under the Workmen’s Compensation Act and, as such, was not entitled to file the claim petition. It was the stand of the appellant as well as his driver that Banti Devi had filed a claim petition under the Workmen’s Compensation Act. Therefore, at this stage itself efforts should have been made to procure the copy of the power of attorney and claim petition allegedly filed by the claimant. A period of two years elapsed between the statement of Banti Devi recorded on 11.11.2003 and the last date given to the appellant to produce his evidence. Till that date he did not want to produce any such evidence. Even when the witness from the office of the Workmen’s Compensation Commissioner was present he was given up and evidence was closed voluntarily. Thereafter, the appellant filed application for producing documents on record but still did not make any prayer to recall Banti Devi or to prove the alleged claim petition and Vakalatnama from the original file of the Workmen’s Compensation Commissioner. At the stage of appeal no ground has been made out for permitting the appellant to lead additional evidence. The appellant has totally failed to show that he acted diligently while prosecuting the case. The documents in question are not necessary to enable me to pronounce judgment, since the material already on record is sufficient to prove that the deceased was traveling in the truck which facts stand established on the record. Therefore, the application for leading additional evidence is rejected as being highly belated and not within the purview of Order 41 Rule 27 of the CPC. This Court cannot come to the rescue of a negligent litigant who does not care to properly prosecute his case. As far as the issue of negligence is concerned, the admitted fact is that the truck in question went off the road. The principle of res ipsa loquitur is clearly applicable since the accident speaks for itself. A truck is supposed to remain on the road and if the truck goes off the road it is for the driver of the truck or the owner thereof to appear in the witness box and explain why the truck went off the road. Since the driver and owner did not appear in the witness box, an adverse inference has to be drawn against them. This issue was rightly decided by the learned Tribunal. As far as compensation is concerned, the learned Tribunal assessed the income of the deceased at Rs.3,000/- per month and further assessed the dependency of the family at Rs. 2,000/- per month and applying a multiplier of 12 awarded compensation on account of loss of dependency at Rs.2,88,000/-. He also awarded Rs.10,000/- for loss of living being of the family and Rs.5,000/- for expenses of post death ceremony i.e. a total award of Rs.3,03,000/-. The Apex Court in Sarla Verma vs. DTC 2009(6) SCALE 129 has clearly held that in case of a bachelor that the claimant is the mother normally 50% of the income is to be assessed towards the dependency of the mother. The Tribunal in my view has correctly assessed the income of the deceased at Rs.3,000/- per month. Admittedly the deceased has a licence to drive heavy vehicle. He could have been employed as a driver and the assessment of income at Rs.3,000/- is extremely reasonable. In case of 50% actual loss the annual loss works out to Rs.18,000/- per annum. The learned Tribunal has applied the multiplier of 12. In my opinion this is on the lower side. Keeping in view the age of the deceased and the claimants the appropriate multiplier would have been 14 and the loss of dependency works out to Rs.2,52,000/-. The claimants are also awarded Rs.10,000/- as conventional damages and Rs.8,000/- on account of funeral expenses etc. The total compensation works out is Rs.2,70,000/-. In view of the above, the appeal is partly allowed and the compensation is reduced from Rs.3,03000/- to Rs.2,70,000/-. The claimant is entitled to interest on this amount from the date as awarded by the learned Tribunal. 29th October,2009 (Deepak Gupta), Judge (VT)