The New India Assurance Company Limited Vs Smt. Rajvindar Kaur

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2025:CGHC:39812

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Digitally signed by ALFIZA ALFIZA BAIG BAIG Date:2025.09.23 13:06:19 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 587 of 2020

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The New India Assurance Company Limited Through Its Divisional Manager, Divisional Office No. 1, Jail Road Fafadi, Raipur, District Raipur, Chhattisgarh (Non- Applicant No. 2)

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... Applicant/Appellant

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versus

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1 - Smt. Rajvindar Kaur Wd/o- Lt. Mengha Singh Aged About 40 Years R/oVeersavarkar Nagar, Hirapur, P.O.- Tatibandh, P.S.- Kabir Nagar, Raipur, Tahsil And District Raipur, Chhattisgarh (Applicant No. 1)

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2 - Sikandar Singh S/o Lt. Mengha Singh Aged About 17 Years (Student), Minor- Through His Mother Smt. Rajvindar Kaur (Respondent No. 1) R/oVeersavarkar Nagar, Hirapur, P.O.- Tatibandh, P.S.- Kabir Nagar, Raipur, Tahsil And District Raipur, Chhattisgarh (Applicant No. 2)

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3 - Smt. Jagir Kaur Wd/o Lt. Makkhan Singh @ Mangtu Singh Aged About 65 Years R/o- Veersavarkar Nagar, Hirapur, P.O.- Tatibandh, P.S.- Kabir Nagar, Raipur, Tahsil And District Raipur, Chhattisgarh (Applicant No. 3)

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4 - Darshan Singh Sohi S/o Sadhu Singh Sohi Aged About 58 Years R/o Mig 248, Near Gurudwara, P.O.- Tatibandh, P.S.- Amanaka, Th. And DistrictRaipur, Chhattisgarh (Non Applicant No. 1)

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... Respondents/Non-applicants

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For Appellant : Mr. Dashrath Gupta, Advocate For Respondents : Unserved

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Hon'ble Shri Justice Parth Prateem Sahu

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Judgment On Board

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08.08.2025

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1. Appellant-Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the impugned award dated 30.11.2019 passed by Learned 2^nd Additional Motor Accident Claims Tribunal, Raipur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 700/2018, whereby learned Claims Tribunal allowed the application filed by the claimants under Section 166 of the Act, 1988, in part and awarded total sum of ₹ 5,00,000/- as compensation in motor accidental death case.

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1. Facts of the case relevant for disposal of this appeal are that on 28.08.2018, deceased- Mendha Singh was coming to Durg in a Truck bearing registration no. CG 04 HX 8013. Due to some mechanical fault in the said vehicle, the vehicle lost its balance and collided with bush, as of which deceased suffered serious injuries and died on spot.

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1. Claimants are widow, children and mother of deceased- Mengha Singh, filed an application under Section 166 of the Act of 1988 seeking compensation of Rs. 21,00,000/- as compensation against the death of Mendha Singh (deceased) pleading therein that on the date of accident deceased was a healthy person aged about 41 years. He was working as a driver and earning Rs. 3,200/- per month.

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1. Owner of the vehicle did not appear before the learned Claims Tribunal and was proceeded ex-parte.

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1. Insurance Company filed its reply to the claim application, denying the facts pleaded therein. It was further pleaded that on the date of accident driver of the offending truck was not possessed with valid and effective driving license and as such, there was a breach of policy

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conditions, thus, if there is any liability, Insurance Company is not liable to satisfy the amount of compensation.

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1. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased -Mengha Singh died because of grievous injuries suffered by him in the accident. Allowed the claim application in part, being driver of the truck, calculated the amount of compensation and awarded Rs. 5,00,000/- as total compensation with interest @7.5% p.a. from the date of filing of claim application till its realization and fastened the liability to satisfy the award upon Insurance Company.

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1. Counsel for the appellant submits that appellant insurance company has challenged the impugned award on the ground that learned Claims Tribunal erred in fastening liability upon Insurance Company to satisfy the amount of compensation ignoring that the owner of offending vehicle does not produce copy of fitness certificate before the learned Claims Tribunal. It was the liability and responsibility of the owner of the offending vehicle to produce all relevant documents of the vehicle before the learned Claims Tribunal, failing which it has to be held that there was breach of policy condition. He contended that appellant insurance company has also filed an application under Order 41 Rule 27 of CPC for taking additional documents/evidence on record. It is the contention of the counsel for the appellant that after decision of claim case it came to the knowledge of appellant insurance company that on the date of accident offending vehicle was not having valid fitness certificate. Fitness certificate was in force from 11.08.2017 to 21.08.2018, whereas accident occurred on 28.08.2018. The additional

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evidence to be taken on record and the finding recorded by the learned Claims Tribunal that breach of policy condition could not be proved be set aside and liability to satisfy amount of compensation be fastened upon non-applicant no. 1, owner of the offending vehicle.

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1. Heard counsel for appellant-Insurance Company and also perused the claim case.

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1. Upon putting question to learned counsel for appellant whether the objection/defence has been taken by appellant insurance company in reply to claim application that the offending vehicle was plied on road without there being any valid fitness certificate or not, he after going through the reply filed by the Insurance company before the learned Claims Tribunal fairly submitted that no specific plea has been taken in this regard in reply submitted by the insurance company. He however submits that in the pleadings of the reply there is specific ground taken that the owner of the offending vehicle, non-applicant no. 1, has not complied with provisions of Section 158(6) of the Act of 1958.

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1. Learned Claims Tribunal while deciding issue “whether the offending vehicle was being plied in breach of policy conditions” after discussing pleadings and evidence available on record concluded that the insurance company failed to prove the defence taken by it that the driver of the offending vehicle was not possessed with effective and valid driving license and decided the said issue in negative.

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11)Learned Claims Tribunal took note of photographs of relevant documents of the offending vehicle available on record including registration certificate, particulars of the vehicle issued by the

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Registering Authority, Raipur. However, even after having the particulars of the vehicle, the insurance company has not taken any steps to verify the fitness certificate or obtain details of the dates of which the fitness certificate was issued in favor of offending vehicle during pendency of the claim case.

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1. In the aforementioned facts of the case it cannot be said that the learned Claims Tribunal erred in arriving at the conclusion that the appellant insurance company failed to prove the breach of policy conditions.

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1. It is the burden upon the insurance company to prove plea of breach of policy conditions in accordance with law when some attending facts and particulars of vehicle license are available on record. The appellant insurance company utterly failed to do so.

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1. So far as application filed under Order 41 Rule 27 of CPC is concerned for accepting additional evidence at this stage some rider has been put by the law framers under Order 41 Rule 27 of CPC. The aforementioned provision provides that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary, but if the parties seeking to produce additional evidence establishes that notwithstanding 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 in appeal was passed.

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1. In the application filed under Order 41 Rule 27 of CPC it is only mentioned that due to bonafide mistake the document could not be obtained before passing of the impugned award. Ground as pleaded and raised in application for Order 41 Rule 27 of CPC for taking additional

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evidence on record is not satisfactory to allow the additional evidence at appellate stage. Hon’ble Supreme Court in case of Jagdish Prasad Patel (Dead) Through Legal Representatives and Another Versus Shivnath and Others, reported in (2019) 6 SCC 82 , while considering the application under Order 41 Rule 27 of CPC has observed thus in para 29 & 30, which as under:-

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“29. Under Order 41 Rule 27 of CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are:

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(I) where the trial Court had refused to admit the evidence though it ought to have been admitted;

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(II) the evidence was not available to the party despite exercise of due diligence; and (III) the appellate Court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents.

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30. Union of India Versus Ibrahim Uddin & Another, (2012) 8 SCC 148 , this Court held as under (SCC pp.167-68 & 170, paras 36-37, 40 & 47) :-

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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 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a

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satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. ( Vide K. Venkataramiah versus A. Seetharam Reddy, AIR 1963 SC 1526, Municipal Corpn., Greater Bombay versus Lala Pancham, AIR 1965 SC 1008, Soonda Ram versus Rameshwarlal, (1975) 3 SCC 698 and Syed Abdul Khader versus Rami Reddy (1979) 2 SCC 601).

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The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq versus Mohd. Iqbal and Mohd. Ali and Co., (1978) 2 SCC493).”

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1. In view of the aforementioned facts of the case, and decision of Hon’ble Supreme Court, I do not find any good ground to allow application filed under Order 41 Rule 27 of CPC for taking additional evidence on record.

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1. Accordingly, the application is dismissed.

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1. For the reasons as discussed above, I do not find any merits in this appeal which is liable to be and is hereby dismissed.

sd/-

(Parth Prateem Sahu)

JUDGE

alfiza

The New India Assurance Company Limited v. Smt. Rajvindar Kaur

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The New India Assurance Company Limited v. Smt. Rajvindar Kaur

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