IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 19 of 2004 Judgment Reserved on 4th May 2011 Date of Decision 13th May,2011 ________________________________________________________ Khiali Ram and another ….Appellants. Versus Yash Pal & others ….Respondents. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ________________________________________________________ For the Appellants: Mr. N.K. Thakur, Advocate. For Respondent No.1: Mr. R.K. Gautam, Sr. Advocate with Mr. Vikrant Chandel, Advocate. For Respondent No. 2: Mr. G.C. Gupta, Sr. Advocate with Mr. Ashish Jamalta, Advocate. ______________________________________________________________ Dev Darshan Sud, J This appeal has been preferred by the claimants who lost his son in motor accident on 26.3.1999. The case instituted was that on the fateful day, the deceased, son of the appellants, aged about 10 years, studying in 5th standard, was standing on the road side with his father when he was hit by a maruti van, 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 belonging to respondent No.1. Respondent No. 3 is the driver, since deceased. 2. On the entirety of evidence, the learned trial Court dismissed the petition holding that it was not established on record that Maruti van bearing No. DL-1CC-7192, the vehicle involved in the accident, caused the death of the son of petitioners. The Court held that in the First Information Report, lodged by the father of the deceased-appellant No.1 herein, there was categorical admission on his part that he did not see the driver and that colour of the vehicle was also red. In fact it was proved on record that the vehicle in question was white. The Court concluded that it was a hit and run case and the petitioners could make their claim under that provision and not by filing a petition under Section 166 of the Motor Vehicles Act. The Court also held that the petitioners have not brought on record anything with respect to the challan which had been filed in a criminal case instituted against the deceased driver Madan Lal, respondent No.3. 3. During the pendency of this appeal, the petitioners placed on record certified copy of the challan filed against the driver (since deceased) to prove that it was the motor vehicle of respondent No.1 which was involved in the accident. This application under Order 41 Rule 27 of the Code of Civil Procedure was registered as CMP No. 745 of 2010. The application has been resisted by the Insurance Company. 4. I have heard learned counsel appearing for the appellants and gone through the record. 3 5. Learned counsel appearing for the appellants has made a number of submissions on the legality of the order passed by the Motor Accident Claims Tribunal. He submits that the Tribunal is wrong in holding that the accident has not been established. Primarily, it is urged by the learned counsel that the accident occurred on 26.3.1999 and it is on that date when he rushed his son to the hospital for treatment. He himself suffered some injuries and his son was in a serious condition when the First Information Report was lodged. His son was referred to the PGI Chandigarh on the same day when he died on the way. In these circumstances, the trauma suffered by the appellant can well be imagined. He was not expected to state with meticulous particularity the entire details of the incident for the reason that his son was dying and his state of mind can well be imagined. 6. Learned Senior counsel appearing for the Insurance Company submits that the petitioner was aware that it is not the vehicle insured by the Insurance Company which is involved in the accident and that the Company is not liable to pay any compensation more especially when the vehicle was itself seized after three/four months after the occurrence. He submits that the First Information Report being the earliest version in point of time wherein details of the accident had been given, whereas in his statement Ext.PA the appellant does not disclose the full details. Improvements made later on have resulted in material contradictions with respect to the accident which cannot be accepted as supporting the case of the appellant. 7. The trauma and distress faced by the petitioners can well be imagined. To say that at that particular point of time, 4 there was only one priority with him and that was to save his son and nothing else would be stating the obvious. His state of mind can well be imagined when he was told by the Doctor to take his son to the PGI for treatment as he was hovering between life and death. His worst nightmare came true when his son died on the way to PGI on the same day. In these circumstances, to treat the First Information Report as a bible of the incident is nothing but a perversion of the principle enunciated under Sections 3 and 5 of the Evidence Act relating to appreciation of evidence. (see Podda Narayana and others v. State of Andhra Pradesh AIR 1975 SC 1252, Surjit Singh alias Gurmit Singh v. State of Punjab AIR 1992 SC 1389 and S. Sudershan Reddy & Ors v. State of Andhara Pradesh AIR 2006 SC 2716) The learned Court should have been alive to this situation but studied expressed ignorance to this stark reality. I cannot agree with the manner in which the evidence has been assessed. The Court should have been aware that even in criminal cases First Information Report is not treated as substantive piece of evidence finally concluding the entire case. What is its value in the present case is, requires a deeper analysis/probe by the learned trial Court. On the question of contradiction, I need remind the Court of the decision of the Supreme Court in Appabhai and another vs. State of Gujarat AIR 1988 SC 696 and in particular to paragraph 11 of the judgment. I am not going into the analysis of the entire evidence. 8. Adverting to CMP No. 745 of 2010, learned counsel appearing for the respondents submits that additional evidence cannot be allowed more especially in view of the pleadings and the judgments in National Ins. Co. v. Bidhi Chand & Ors. (2002) 1 5 HLJ 248 and Basayya I. Mathad v. Rudrayya S. Mathad and others (2008) 3 SCC 120. He submits that allowing this application will amount to violation of the principles as contained in the Code of Civil Procedure. In K. Venkataramia h v. Seetharama Reddy and others AIR 1963 SC 1526, adverting to the ambit of Order 41 Rule 27, a Constitutional Bench of the Supreme Court held: “9. We are clearly of opinion that even if it was found that the High Court erred in taking the additional evidence that would not be a case of lack of jurisdiction but would be an error in the exercise of jurisdiction. As was pointed out however by this Court in Arjan Singh v. Kartar Singh, 1951 SCR 258: (AIR 1951 SC 193). “The discreition to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O. 41, R 27, of the Code of Civil Procedure.” The question wherein the present case the High Court exercised the discretion juridically has therefore to be examined by us. 16 In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy’s age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not have seriously suggested that the Court required any additional evidence “to enable it to pronounce judgment”. The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable “us” to pronounce judgment. Apart from this, it is 6 well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause.” There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment”, it still considers that in the interest of justice something which remans obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence “for any other substantial cause” under R. 27 (1) (b) of the Code. 17. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur, 53 Ind App 254 : (AIR 1931 PC 143) the Privy Council while discussing whether additional evidence can be admitted observed: “It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammitical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.” 18. As the Privy Council proceeded to point out: “It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands.” (at pp 1528, 1530) 7 This judgment has been followed by a Division Bench of this Court in Badi Ram v. M/s R.S. Company, AIR 2002 HP 150. In this view of the fact I have no doubt in my mind that the application, CMP NO. 745 of 2010, requires to be allowed and it is directed accordingly. The case is remanded to the learned Motor Accident Claims Tribunal which shall allow the petitioners herein to adduce evidence as allowed by this Court and an opportunity to the respondent to produce any evidence in rebuttal. The parties shall appear before the learned Tribunal on 2nd June, 2011. After giving opportunity to the parties, as directed above, the learned Tribunal shall decide the case afresh without in any manner being influenced by the previous judgment, which has expressly set aside. The observations made by me do not dispose of the petition on merits finally. The learned Tribunal shall proceed afresh in accordance with law. The remand otherwise being necessitated by the fact that learned counsel appearing for the respondent submits that no findings have been given on issue No.2. Appeal stands disposed of. Records be sent back forthwith. May 13th, 2011 (Dev Darshan Sud), ms Judge 8