JNTHE HIGH CQURTJ>F^HHATnSGARH AT BILASPUR MISC. APPEAL fCI N0. ^O ^72010 MISC. APPEAL UNDBR SECTION 173 OF THE MOTOR APPELLANT INSURER ,^°-^ ^•":. •• ^<...-- \^"' ^•'•y; -!;>'• RESPONDENTS CLAIMANTS DRIVER VEHICLES ACT, 1988 ICICI Lombard, General Insurance Company Limited, Registered office: ICICI Bank Towers, Bandra-Kurla, ^ompiex, Ivrumbai, 4000 51, through its Legal Manager, ICICi ^omDaru General Insurance Company Limited Lal Ganga Shopping Mall, 3rd Floor, G.E. Road, Raipur (C.G.). VBRSUS :- 1. Shiv Kumar Nishad S/o Shri Beer Singh , aged about 28 years, R/o village village Singhanpur, Police Station Pithaura, Tahsil 85 District Mal'Lasamuna (C.(J.) ^- 2. Jai Lal Sahu S/o Pachkaud Sahu, R/o village Singhanpur, Police Station - Pithaura, Tahsil 8s District Mahasamund (C.G.) OWNER <^ 3. Mohit Kumar Sahu S/o Banshi Lal Sahu, R/o Chawla Complex, Devendra Nagar, Raipur, at Present village Singhanpur, Police Station - Pithaura, Tahsil 85 District Mahasamund (C.G.) HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (C) No. 201 of2010 ^N^- Appellant/ Insurer Respondents/ Claimants ICICI Lombard General Insurance Company Limited. Versus Smt. Shakuntala & Others Misc. Appeal (C) No. 202 of2010 Appellant/ Insurer Respondents/ Clajmants ICICI Lombard General Insurance Company Limited. Versus Shiv Kumar Nishad & Others A Misc. Appeal (C) No. 204 of 2010 Appellant/ Insurer Respondents/ Claimants ICICI Lombard General Insurance Company Limited. Versus Shiv Kumar Nishad & Others & Misc. Appeal (0 No. 206 of 2010 AppelEant/ Insurer Respondents ICICI Lombard General Insurance Company Limited. Versus Ku. Sarita Nishad & Others Misc. Appeal under Section 173 ofthe MotorVehicles Act SB: Hon'ble Shri Justice N. K. Aaarwal. Present : Shri Sourabh Sharma, Advocate for the appellant. ShriVikas Pradhan, Advocate for respondenVOwner. Shri Rishi Rahul Soni, Advocate for respondent/Driver. Shri Vikram Dixit, Advocate for respondent No. 1 to 3 in MA(C)-No. 206/10. Shri J.A. Lohani, Advocate for respondent No. 1 & 2 in MA(C)No. 201/10. ,,^^^,,, ^.^ ORAL ORDER (Passed on 13th day ofJuly, 2010) By this common order, MA(C) Nos. 201/10, 202/10, 204/10 and 206/10 are being disposed of as the common facts & issues are involved in all these appeals and are arise out of same accident. These appeals have been directed by the ICICI Lombard General Insurance Company Limited against the award dated 10.11.2009, passed by Chief Motor Accident Claims Tribunal, Mahasamund (for short 'the Tribunal') inclaim casespreferred by the legal representatives of deceased persons under Section 166 of the Motor Vehicles Act, 1988 (for short 'MV Act'). As perclaimants' version in all the claimcases, on 08.10.2008, Mangturam Koshreya, Shanti Bai, Malti Bai & Sumrit Bai Nishad (since deceased), while watching Ram Leela, were dashed by the driver of Pickup Van bearing registration No. CG-04-J-7604, as a result of which two persons died on spot and remaining two personswere died later on due to multiple injuries sustained by them in the said accident. Apart from above, various persons were also injured in the said accident. The claimants in all the claim petitions are legal representatives/dependent of the deceased persons. The claimants in all the cases have preferred claim petitions claiming compensation for the loss occurred to them due to death of their bread-earner against the driver, owner and insurance company ofthe Pickup Van in question. „ ^», "^sy ~'^^tK-''-!^:'i' s 8. Driver of the offending vehicle Jailal Sahu remained exparte and did not contest the matter before the claim Tribunal; The owner of the vehicle i.e. Mohit Kumar Sahu filed his written statement pleading inter alia that the vehicle was insured with the appellant/insurance company at the time of accident and therefore, the insurance company cannot escape from its liability to pay compensation. The appellanVinsurance company also filed its written statement denying its liability to indemnify the insured inter alia on the following grounds: i. The driver of the offending vehicle was not having any license containing endorsement of transport vehicle. ii. The vehicle was plied without there being any valid permit in terms of Section 66 of the MV Act. iii. The vehicle was used for carrying artists of Ram Leela which is not permitted under the Act and terms of the policy of insurance. The Tribunal, on a close scrutiny of the evidence led, material placed and submissions made by the parties, awarded Rs. 2,92,000/-, 2,03,600/-, 2,05.600/- & Rs. 2,03,600/- respectively in favour of claimants jointly and severally payable by the appellant and driver/owner of the offending vehicle along with interest @ 6 percent from the date of application till its payment. The appellant filed these appeals on 08.02.2010, assailing the award inter alia on the ground that the vehicle is goods carrying vehicle which was used for transporting persons in breach of terms of condition of insurance policy; the driver was not having ..,..^1-^-. ^ my^ ,; '^, -^^ ' Sl ^iy valid and effective driving license to drive the transport vehicle, and therefore, the insurance company cannot be held liable for payment of compensation to the claimants. 10. During pendency of appeal, on 18.02.2010, the appellant field an application under Order 41 Rule 27 of CPC read with Rule 242 (3) of the Chhattisgarh Motor Vehicles Act, 1994, for admitting one document as additional evidence which is issued by the Regional Transport Authority (RTO), Raipur (CG) on 22.01.2010. 11. Shri Sourabh Sharma, learned counsel appearing for the appellant/insurance company vehemently argued that the offending vehicle was used for carrying gratuitous passenger in violation of terms of the policy, and therefore, the insurance company cannot be held liable for payment of compensation. The document annexed with application filed under Order 41 Rule 27 of CPC would reveal that the license of driver was fake and forged. This fact was not within the knowledge of appellant when the case was pending before the Tribunal, nor this document was in possession of the appellant at that time. The appellant applied under Right to Information Act and in pursuance thereof thesaid document has been received. The above document goes to the root of the matter and deserves to be allowed as additional evidence and the case needs remand for appropriate adjudication so as to enable the appellant to take its defence effectively. -f ^M •\, 12. On the other hand, learned counsel appearing for the respondents vehemently argued that the deceased were not traveling in thesaid vehicle, looking to the entire facts and circumstances of the case, driver of the offending vehicle was guilty of negligent driving due to which the said accident has occurredand four persons have lost their lives. The documents sought to be admitted as additional evidence is dated 22.01.2010. The same has not been filed at the time of filing of the appeal and such ground also not taken by the appellant either before the Tribunal or ih the memo of appeal, no due diligence has been shown by the appellant/insurance company, the said application deserves to be rejected and consequently, the appeal also deserves to be dismissed. 13. I have heard the counsel appearing for the parties, perused the award impugned and records ofthe Tribunal. 14. Let us first deal with the application filed by the appellant under Order 41 Rule 27 of CPC. The document sought to be admitted as additional evidence on record reads as under: "^rafcpr ^^i 4Rci6"i sri^RpT^, ^ray »^fl<ti'«ie ^^Tfcp 5815/^T3T/2009 ^Tqy. R<1I'<*» 22.1.2010 ^. <ft ^t^F f^T? ^vIT, 3rrf^iq<KII, ^t-60. ^^?-5. vt^i'Hciid ••rRf^T ^hr ^ ^. ^^[ ^FR, >nTqyi f^pT-^prr ^ 3Tf^ra>K a.ri^ppT ^ ^?n uii'icfri^ ^TGRT i ^T^f-am^r an^^r y^f f^rr^ 21.8.09 ^q<(1<W f^PT ^ '?ra'ET ^' ^3 t f^ aTPT^ ST'fT ^Fff ^T 3irf^R 2005 ^ ^RcT ^TgT ^PTT ^TcT-T 3T^rfT<T ^.-v^/389/aTR/96 uTT^t f^. 13.11.96 ^S-TT cTPr^'^T STR^ uPT cTTcT ^HT^ ^T ^TPraf'^T ^ff 4»l^[d^l fiTRT Pl^^ft^^"! ^ cfrl4c||^| c^ ^hpT ITPTT ^rqr ^ ~>^Rt ^nTcT^ 3T5^rf^[ <frl^l[d^l-l ^rrf^^T^TR ^fNt ^MT Tr^t 1(TPTT 7PTT I ^t ul-I^Tl-11 3rf^R)pft T^" ^F^T 4Rc|^^| ^rfSROTff ^i^i^ y^Tt^4i<o" 15. The appellant has not filed the copy of driving license, therefore, document in question, if taken on its face value, will not be sufficient to hold that the driver of the offending vehicle was not having valid and effective driving license since. Moreover, the above document was obtained by the appellant on 22.01.2010 but the same has not been filed alongwith memo of appeal. The only defence taken in the written statement by the appellant was that the driver of offending vehicle was not holding driving license enabling him to driver transport vehicle. It was nowhere said that the driver of offending vehicle was not having valid and effective driving license or was having forged and fake license. 16. A careful reading of the evidence adduced by the parties in the case would reveal that the single question has not been asked by the appellanVinsurance company to any witnesses examined by the claimants aswell as by the owner of the vehicle, nor its own witness has deposed anything regarding invalidity of the license of driver. Even the above plea regarding fake and forged license has not been taken as ground in the memo of appeal. 17. Order 41 Rule 27 of CPC reads as under : "ORDER 41: APPEALS FROM ORIGINAL DECREES XX XX XX 27. Productlon ofadditional 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 /'f— (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 pmnounce 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." 18. The general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 of CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as prescribed under Order 41 Rule 27 of CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are: /^^. li, i1 1 11 J »^' fw li^»-.<^;" i. The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. ii. The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. iii. The appellate court requires any document to be produced or any witness to be examined to enable it to pronouhce judgment, or for any other substantial cause. 19. In the instant case, neither the document sought to be admitted was refused by the Tribunal to admit in the evidence nor this court requires to enable it to pronounce judgment, or for any other substantial cause. The only ground taken is that the document sought to be admitted as additional evidence in the appeal was not within their knowledge despite exercise of due diligence at the time when the award appealed against was passed. 20. Now, as discussed earlier, even if the document is taken on record, the same will not be sufficient in order to prove the defence that the driver of offending vehicle was not having valid and effective driving license and the owner of the vehicle in willfut disobedience of the policy conditions allowed the driver to drive the vehicle without valid and effective driving license. 21. The contents of the documents even are not sufficient to hold that it relates to the same driver Jailal who was driving the ;-"u^?<-- .^""%. ^. ! 1 l'^?,,; ^.^:'r S6 offending vehicle. Further, neither such plea has been taken nor evidence has been adduced nor any witness has been cross-examined by the appellant on the ground of invalidity of driving license on the ground that the driver was not having valid and effective driving license. 22. It is trite law that burden to prove its defence is upon the appellant/insurance company for which the appellant ought to have taken specific plea ih the reply and should have adduced cogent and clinching evidence therefor. Merely because a document at appellate stage if admitted as additional evidence may help the appellanf to some extent in taking defence will not be sufficient ground to admit such document as additional evidence at appellate stage. 23. In such circumstances, in the considered opinion of this court, the application filed by the appellant/insurance company under Order 41 Rule 27 of CPC does not fulfill the requirements of Order 41 Rule 27 of CPC and the same deserves to be rejected and is hereby rejected. 24. Although, Shri Sharma has not stressed upon other pleas taken in the memo of appeal but suffice it to say that the reading of the evidence would reveal that at the time of accident none of the persons either artistsof Ram Leela or deceased were sitting in the offending vehicle. The appellant failed to prove that the offending vehicle was used in violation of condition of policy i.e. it was used for carrying gratuitous passengers. Therefore, the other plea taken has also rightly been rejected by the Tribunal. A- ' T ';^.:T\:^ '-- v \' e'':.' V4... ~^—' Sahu 10 25. For the reasons mentioned hereinabove, 1 do not find and substance in the appeals. The appeals being devoid of substance are liable to be and are hereby dismissed. 26. No order asto costs. — Sd/- N.K. Agarwal Judge