National Insurance Company Limited Vs Shivam Sahu

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2025:CGHC:30415

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 180 of 2019

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National Insurance Company Limited Through Its Branch Manager, Branch Office Near Gurudwara, Gill Complex, Station Road Durg District Durg Chhattisgarh

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--- Appellant/ Non Applicant No. 3

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versus

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Tulasiram Sahu S/o Shriram Sahu Aged About 59 Years R/o B. R. P. Chowk, Madauda, Nevai, Bhiali,tahsil And District Durg Chhattisgarh........( Applicant )

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Mukesh Sahu S/o Mohan Lal Sahu Aged About 25 Years R/o Village Sursuli, P. S. Devari, Tahsil Daundilohara, District Balod Chhattisgarh, ............( Non Applicant No. 1 )

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Dron Ram Sahu S/o Mahesh Ram Sahu R/o Village Sursuli, P. S. Devari, Tahsil Daundilohara, District Balod Chhattisgarh, ............( Non Applicant No. 2 )

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Smt. Domeshwari Sahu W/o Jogiram R/o B. R. P. Chowk, Madauda, Nevai, Bhiali, Tahsil And District Durg Chhattisgarh, ............( Non Applicant No. 4 )

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--- Respondents

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WITH

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MAC No. 233 of 2019

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National Insurance Company Limited Through Its Branch Manager, Branch Office - Near Gurudwara, Gill Complex, Station Road, Durg, District Durg Chhattisgarh.

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--- Appellant/Non-applicant No. 3

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Versus

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PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA

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Shivam Sahu S/o Jogiram Sahu Aged About 10 Years (Minor), Through Father Jogiram Sahu, Aged About 40 Years, R/o B.R.P. Chowk, Madauda, Nevai, Bhilai, Tahsil And District Durg Chhattisgarh ……………… Applicant

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Mukesh Sahu S/o Mohan Lal Sahu Aged About 25 Years R/o Village - Sursuli, P.S. Devari, Tahsil Daundilohara, District Balod Chhattisgarh……. Non-applicant No. 1

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Dron Ram Sahu S/o Mahesh Ram Sahu R/o Village - Sursuli, P.S. Devari, Tahsil - Daundilohara, District Balod Chhattisgarh.……. Non-applicant No. 2

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Smt. Domeshwari Sahu W/o Jogiram R/o B.R.P. Chowk, Madauda, Nevai, Bhilai, Tahsil And District Durg Chhattisgarh.……. Non-applicant No. 4

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--- Respondents

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____________________________ For Appellant-Insu. Co.	________________________________ : Mr. Dashrath Gupta, Advocate
For Respondent No. 1 & 4	: Mr. Pravesh Sahu, Advocate
For Respondents No. 2 & 3	: Ms. Sakshi Sharma, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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03/07/2025

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As common ground has been raised in both these appeals, therefore, they are being heard together and being dispose of by this common order.

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Appellant-Insurance Company has filed these appeals under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the award dated 17.09.2018 passed by Learned Seventh Additional Motor Accident

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Claims Tribunal, Durg, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 334/2015 & 335/2015 whereby learned Claims Tribunal allowed the applications filed by applicants therein ie., Respondents No. 1 in both the claim cases under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 2,21,700/- and ₹ 3,16,100/- respectively as compensation.

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Facts of the case relevant for disposal of this appeal are that on 30.04.2015 at 12:45 pm, the applicant Tulsiram Sahu along with his daughter Domeshwari Sahu and her minor son Shivam Sahu were going from Bhilai to Hathaud on a vehicle scooty number CG-07-AL-8816, when they reached near Sursuli Narmada Gate, non-applicant no. 1- driver of motor cycle

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number CG-07-LT-2011 (henceforth “offending motorcycle”), while driving the motorcycle negligently, hit the scooty of applicant from the front and caused accident, as a result of which the applicants suffered serious injuries on the hand, right leg, head and various parts of the body. Applicant was taken to Deori Government Hospital, District Durg, from where looking to the grievous injuries, they were admitted to Appollo Hospital, Bhilai. A report of the said accident was lodged in police station Deori, based on which Crime No. 68/15 was registered against non-applicant No. 1/ Respondent No. 2 for alleged offence under Section 279, 337, 338 of IPC.

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Applicants-Tulsiram Sahu and Shivam Sahu- filed applications under Section 166 of the Act of 1988 seeking compensation of ₹ 4,20,000/- and ₹ 7,00,000/- on the grounds made therein.

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Non-applicants No. 1, 2 and 4 after causing their apprearance for some hearing decided not to appear and hence they were proceeded ex parte. However, in the reply submitted by non-applicant No. 1/ Respondent No.2, he denied adverse pleadings made therein in the application and further stated that on the date of accident offending motorcycle was not driven rashly and negligently, accident occurred due to negligence on the part of driver of scooty who could not control his vehicle due to turning of the road. It is stated that the offending motorcycle was insured with non-applicant No. 3/ Insurance Company and if there is any liability to satisfy the compensation, it would be of insurance company.

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In the reply submitted by appellant/ non-applicant No. 3-Insurance Company it has been pleaded that on the date of accident offending motorcycle was not insured, it was insured on 01.05.2015, ie. next day of the date of accident 30.04.2015. The driver of the scooty is also responsible for accident as three persons were riding on the vehicle at the time of accident.

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Learned Claims Tribunal upon appreciation of oral and documentary evidence brought on record by the respective parties, recorded a finding that the applicants-Tulsi Ram Sahu and Shivam Sahu suffered grievous injuries in the accident arising out of rash and negligent driving of offending motorcycle by Non-applicant No. 1, resulting in permanent disability to both the applicants-claimants. Breach of conditions of insurance policy and contributory negligence were not found to be proved, calculated the amount of compensation and awarded total sum of ₹ 2,21,700 and ₹ 3,16,100/- and fastened first liability to satisfy the amount of compensation upon nonapplicant No. 3-Insurance Company.

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Learned counsel for appellant-Insurance Company submits that the finding recorded by the Claims Tribunal fastening liability upon the Insurance Company considering that the appellant is the insurer of the offending motorcycle No. CG07LT2011 on the date of accident, is erroneous. On the date of accident the appellant-Insurance company was not the insurer of the aforementioned motorcycle but was the insurer of the scooty which is another two-wheeler involved in the accident on which Respondent No. 1 Tulsi Ram Sahu and Shivam Sahu were travelling as pillion rider. It is contention of counsel for appellant that even if the Insurance company is held liable to indemnify the risk of insured (owner of the scooty) then as the sitting capacity of the scooty is only two including the driver, the insurance company may be held liable for satisfying the award with respect to only one pillion and not both.

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Mr. Pravesh Sahu, learned counsel for Respondent No. 1 would oppose the submission of learned counsel for appellant and would submit that from the issue No. 4 framed by the Claims Tribunal, it is apparent that the Claims Tribunal has considered the appellant-Insurance Company to an insurer of the offending motorcycle against which the claim was filed, the claim was not

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filed against owner and insurer of the scooty. He would submit that while deciding the claim case, Claims Tribunal took note of the fact of seizure of insurance policy of the motorcycle covering the risk for the period from 02.04.2015 to 01.04.2016 has held the insurance company liable to satisfy the amount of compensation awarded, being an insurer of the offending motorcycle. As there is no merit in these appeals, it be dismissed.

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I have heard learned counsel for the parties and perused the record of claim case.

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Perusal of claim application would show that the claimants in the claim application have submitted the claim seeking compensation against the owner, driver and insurer of the offending motorcycle bearing no. CG07LT2011. Claims Tribunal has framed issue No. 4, ‘whether the offending motorcycle was driven by non-applicant No. 1 in breach of conditions of insurance policy’, and decided the issue in negative. Claims Tribunal while deciding the issue No. 4 has considered documentary evidence produced in the claim case, wherein along with copy of chargesheet, seizure memo has also been produced as Ext. P-4. In the seizure memo, there is specific mention that the police seized one motorcycle bearing No. CG07LT2011, RC book, registration certificate of the seized motorcycle, insurance policy of the vehicle for the period from 02.04.2015 to 01.04.2016 and copy of driving licence from possession of Mukesh, nonapplicant No. 1. The final report is produced as Ext. P-1, perusal of which would show that in the list of the documents forming part of the charge-sheet at serial No. 8, there is mention of photocopy of insurance policy.

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In the aforementioned facts of the case, when there is seizure of copy of insurance policy from the owner of the motorcycle, copy of which was also made part of the charge-sheet/ final report and further it might have been submitted before the court of competent jurisdiction. Insurance company has not taken pains or initiative to obtain the copy of insurance policy forming part

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of the charge-sheet. No application in this regard has been produced before this Court. Appellant-insurance company examined one Yashpal Gajbhiye, Administrative Officer as NAW-3-1, in his evidence he stated that on the date of accident on 30.04.2015 the offending motorcycle was not insured with his company. However, no documentary evidence is produced in support of it. Insurance company could have obtained copy of seized photocopy of the insurance policy by the police and forming part of the charge-sheet and could have placed it before the Claims Tribunal for appropriate consideration.

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In absence of taking such steps and producing evidence, in the opinion of this Court, Claims Tribunal justified in observing that the appellant-Insurance Company failed to bring in evidence to prove that on the date of accident offending motorcycle was not insured, moreso when copy of insurance policy was seized by the police and forming part of the charge-sheet.

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An application under Order 41 Rule 27 CPC filed by the Insurance company along with copy of insurance policy of the offending vehicle valid from the period from mid night of 02.05.2015 to mid night 01.05.2016 bearing policy No. 285202/31/15/6200001472 to make submission that for the first time the insurance policy of the offending vehicle was issued on 02.05.2015 and was valid till 01.05.2016, whereas the accident was prior to the date ie., 30.04.2015.

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Law with regard to admissibility of the additional evidence at appellate stage is well settled by the Hon’ble Supreme Court. In the application filed under Order 41 Rule 27 CPC, no explanation is offered as to why the document which is available in the office of insurance company could not be produced before the Claims Tribunal in evidence. They have not pleaded any specific reason in this regard. Application under Order 41 Rule 27 CPC can be considered and allowed if only when the parties seeking production of additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the

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exercise of due diligence, be produced by him at the time when the decree appealed against was passed. In absence of such explanation by the appellant-Insurance company in the application under Order 41 Rule 27, in the opinion of this Court, it will not be accepted that too when the appellant is a company who is maintaining the record online also.

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Hon’ble Supreme Court in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRs. reported in (2008) 8 SCC 511 , while dealing with the issue of taking additional evidence at the appellate stage under Order 41 Rule 27 of CPC, has observed thus:

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“ 13. Though 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 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 may be prescribed. These conditions are prescribed under Order 41 Rule 27 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:

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( i ) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause ( a) of subrule (1)], or

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( 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 [clause ( aa), inserted by Act 104 of 1976], or

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( iii ) 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 [clause ( b) of sub-rule (1)].

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14. It is plain that under clause ( b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it “requires” to enable it to

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pronounce judgment “or for any other substantial cause”. The scope of the Rule, in particular of clause ( b) was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143] . While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows : (AIR p. 148)

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“… Under clause (1)( b) it is only where the appellate court ‘requires’ it (i.e. finds it needful) that additional evidence can be admitted. 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 grammatical reading of the subclause. 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

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‘when on examining the evidence as it stands some inherent lacuna or defect becomes apparent’.”

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15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526 : (1964) 2 SCR 35] a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case [AIR 1931 PC 143] pointed out 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 remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.”

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17. In the case of Sanjay Kumar Singh Vs. State of Jharkhand reported in

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(2022) 7 SCC 217 , Hon’ble Supreme Court held as under :-

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“ 7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

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8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [ A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514] , the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.”

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The Insurance Company even today has not made any effort to prove the copy of the insurance policy seized by the police mentioning the period covering the risk was issued to be forged or fabricated document. The

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insurance company appoints Investigator to investigate into accident who collects all documents and based on which submits report with the insurance company but no efforts was made to ascertain the veracity of the document came to their notice. In the application under Order 41 Rule 27 CPC also no cogent ground is pleaded/ raised as per requirement under the provision of Order 41 Rule 27.

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For the foregoing discussion, the application under Order 41 Rule 27 is bereft of merit, it is accordingly dismissed.

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Claim cases are to be decided on preponderance of probability. As in the record of claim case it is appearing from the seizure memo and the final report that the police has seized the documents of the offending motorcycle along with motorcycle from possession of non-applicant No. 1/ Respondent No. 1, owner of offending vehicle. The police has seized the registration certificate of the vehicle and also it is mentioned that the insurance policy with a validity from 02.04.2015 to 01.04.2016 was also seized and therefore the finding recorded by the Claims Tribunal that on the date of accident offending vehicle was insured, in absence of rebuttal evidence brought on record by the insurance company before the Claims Tribunal cannot be said to be erroneous.

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In the aforementioned facts of the case, when the claim of the appellantInsurance Company is only based on the additional documents which they want to file along with application under Order 41 Rule 27 CPC, the additional evidence is having no merits and it is liable to be and is dismissed accordingly.

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Accordingly, the appeals being sans merit are liable to be and are hereby dismissed accordingly.

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Sd/(Parth Prateem Sahu) Judge

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pwn

National Insurance Company Limited v. Shivam Sahu

Case brief

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National Insurance Company Limited v. Shivam Sahu

Case brief

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