Partly allowed

Manohar Lal Bhati v. Smt. Luni Devi and Ors.

Rajasthan HC12 Dec 2018XOBJC/10/2016

Case brief

AI extract

What is this about?

In a batch of appeals regarding a fatal motor accident, the High Court allowed applications by the vehicle owner to produce additional evidence of the driver's valid licence. The Court noted the insurer failed to prove non-licence during ex-parte proceedings. It set aside findings on liability and remanded the cases for afresh decision.

What did the court decide?

Applications under Order 41 Rule 27 CPC allowed; impugned judgments set aside to the extent of findings on liability; matter remanded for de novo decision.

Manohar Lal Bhati Vs Smt. Luni Devi and Ors. — Insurance | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Misc. Appeal No. 2556/2011
Chhagana Ram & Ors.
----Appellants
Versus
Kalyan Singh & Ors.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 982/2011
Smt. Luni Devi & Ors.
----Appellants
Versus
Kalyan Singh & Ors.
----Respondents
S.B. Civil Misc. Appeal No. 983/2011
Rana Ram
----Appellant
Versus
Kalyan Singh Bhati & Ors.
----Respondents
S.B. Civil Misc. Appeal No. 984/2011
Smt. Antri Devi & Ors.
----Appellants
Versus
Kalyan Singh Bhati & Ors.
----Respondents
S.B. Civil Misc. Appeal No. 985/2011
Smt. Jatni Devi & Ors.
----Appellants
Versus
Kalyan Singh Bhati & Ors.
----Respondents

¶3

(2 of 19)

¶4

[CMA-2556/2011]

¶5

S.B. Civil Misc. Appeal No. 1039/2011

Smt. Khatu & Anr.

----Appellants

Versus

Kalyan Singh & Ors.

----Respondents

S.B. Civil Misc. Appeal No. 1472/2011

¶12

Smt. Resi Devi & Ors.

¶13

Kalyan Singh Bhati & Ors.

¶14

----Appellants Versus ----Respondents

¶15

S.B. Civil Misc. Appeal No. 2931/2011

¶16

Miss Shanti & Ors.

¶17

Kalyan Singh Bhati & Ors.

¶18

----Appellants Versus ----Respondents

¶19

S.B. Civil Misc. Appeal No. 3796/2011

¶20

Smt. Hemi & Ors.

¶21

----Appellants Versus

¶22

Kalyan Singh Bhati & Ors.

¶23

----Respondents

¶24

S.B. Civil Misc. Appeal No. 3798/2011

¶25

Smt. Chunni & Anr.

¶26

----Appellants Versus

¶27

Kalyan Singh Bhati & Ors.

----Respondents

(3 of 19)

[CMA-2556/2011]

S.B. Civil Misc. Appeal No. 492/2015

Manohar Lal Bhati

----Appellant

Smt. Tulchhi & Ors.

Versus ----Respondents

¶36

S.B. Civil Misc. Appeal No. 493/2015

¶37

Manohar Lal Bhati

¶38

Bantli & Ors.

¶39

----Appellant Versus ----Respondents

¶40

S.B. Civil Misc. Appeal No. 494/2015

¶41

Manohar Lal Bhati

¶42

----Appellant Versus Raimal Ram & Ors. ----Respondents S.B. Civil Misc. Appeal No. 495/2015 Manohar Lal Bhati ----Appellant Versus Kishna Ram & Ors. ----Respondents S.B. Civil Misc. Appeal No. 496/2015 Manohar Lal Bhati ----Appellant Versus Rawata Ram & Ors. ----Respondents

¶43

(4 of 19)

¶44

[CMA-2556/2011]

¶45

S.B. Civil Misc. Appeal No. 497/2015

Manohar Lal Bhati

----Appellant

Versus

Smt. Phapli & Ors.

----Respondents S.B. Civil Misc. Appeal No. 609/2015 Manohar Lal Bhati ----Appellant Versus Smt. Anchhi & Ors. ----Respondents S.B. Civil Misc. Appeal No. 610/2015 Manohar Lal Bhati ----Appellant Versus Uma Ram & Ors. ----Respondents S.B. Civil Misc. Appeal No. 611/2015 Manohar Lal Bhati ----Appellant Versus Ghama Ram & Ors. ----Respondents S.B. Cross Objection Civil No. 5/2016 Manohar Lal Bhati

¶51

----Appellant Versus

¶52

Antari Devi & Ors. ----Respondents

¶53

(5 of 19)

¶54

[CMA-2556/2011]

¶55

S.B. Cross Objection Civil No. 6/2016

Manohar Lal Bhati

----Appellant

Versus

Rana Ram & Ors.

----Respondents

S.B. Cross Objection Civil No. 7/2016

¶62

Manohar Lal Bhati

¶63

----Appellant

¶64

Smt. Luni Devi & Ors.

¶65

Versus ----Respondents

¶66

S.B. Cross Objection Civil No. 8/2016

¶67

Manohar Lal Bhati

¶68

----Appellant ----Respondents ----Appellant

¶69

Versus

¶70

Smt. Jatni Devi & Ors.

¶71

S.B. Cross Objection Civil No. 9/2016

Manohar Lal Bhati

Versus

Chhagna Ram & Ors.

----Respondents

S.B. Cross Objection Civil No. 10/2016

Manohar Lal Bhati

----Appellant

Versus

Smt. Luni Devi & Ors.

----Respondents

(6 of 19)

[CMA-2556/2011]

S.B. Cross Objection Civil No. 11/2016

Manohar Lal Bhati

----Appellant

Versus

Smt. Hemi & Ors.

----Respondents

S.B. Civ.cros.obj.miscapp No. 18/2016

¶91

Manohar Lal Bhati

¶92

----Appellant

¶93

Versus ----Respondents S.B. Civ.cros.obj.miscapp No. 19/2016

Miss Shanti & Ors.

Manohar Lal Bhati

----Appellant

Versus

Smt. Reshi Devi & Ors.

¶99

----Respondents

¶100

S.B. Civ.cros.obj.miscapp No. 20/2016

¶101

Manohar Lal Bhati

¶102

----Appellant

¶103

Versus Chunni & Ors. ----Respondents For Appellant(s) : Mr. Anil Bhandari in Appeal Nos.2556/11, 982/11, 983/11, 984/11, 985/11, 2931/11, 3796/11, 3798/11. Mr. Suresh Shrimali with Mr. Rishabh Shrimali in Appeal Nos.492/15, 493/15, 494/15, 495/15, 496/15, 497/15, 609/15, 610/15, 611/15 and for Cross-objector in Cross Objections No.5/16, 6/16, 7/16, 8/16, 9/16, 10/16, 11/16, 18/16, 19/16, 20/16.

¶104

(7 of 19)

¶105

[CMA-2556/2011]

¶106

	Mr. K.C. Choudhary in Appeal No. 1472/11. Mr. M.R. Patel for Mr. Rajesh Choudhary in Appeal No.1039/11.
For Respondents(s) :	Mr. Suresh Shrimali in Appeal Nos.2556/11, 982/11, 983/11, 984/11, 985/11, 1029/11, 1472/11, 2931/11, 3796/11, 3798/11.
	Mr. D.K. Joshi in Appeal Nos. 2556/11, 983/11, 984/11, 985/11, 1039/11, 1472/11, 2931/11, 3796/11, 3798/11, 492/15, 493/15, 494/15, 495/15, 496/15, 497/15, 609/15, 610/15, 611/15 and for Non-Cross-objectors in Cross Objections No.5/16, 6/16, 7/16, 8/16, 9/16, 10/16, 11/16, 18/16, 19/16, 20/16. Mr. Anil Bachhawat with Mr. M.P. Goswami in Appeal Nos. 2556/11, 983/11, 984/11, 985/11, 1039/11, 1472/11, 2931/11, 3796/11, 3798/11 and for Non-Cross-objectors in Cross Objections No.9/16. Mr. Suniel Purohitt in Appeal No.494/15.

Mr. K.C. Choudhary in Appeal No.
1472/11.
Mr. M.R. Patel for Mr. Rajesh
Choudhary in Appeal No.1039/11.

For Respondents(s)
:

Mr. Suresh Shrimali in Appeal
Nos.2556/11, 982/11, 983/11,
984/11, 985/11, 1029/11, 1472/11,
2931/11, 3796/11, 3798/11.

Mr. D.K. Joshi in Appeal Nos. 2556/11,
983/11, 984/11, 985/11, 1039/11,
1472/11, 2931/11, 3796/11, 3798/11,
492/15, 493/15, 494/15, 495/15,
496/15, 497/15, 609/15, 610/15,
611/15 and for Non-Cross-objectors
in Cross Objections No.5/16, 6/16,
7/16, 8/16, 9/16, 10/16, 11/16,
18/16, 19/16, 20/16.
Mr. Anil Bachhawat with Mr. M.P.
Goswami in Appeal Nos. 2556/11,
983/11, 984/11, 985/11, 1039/11,
1472/11, 2931/11, 3796/11, 3798/11
and for Non-Cross-objectors in Cross
Objections No.9/16.
Mr. Suniel Purohitt in Appeal
No.494/15.

¶107

HON'BLE MR. JUSTICE P.K. LOHRA

¶108

Judgment

¶109

12/12/2018

¶110

The Motor Accident Claims Tribunal, Barmer (for short, ‘learned Tribunal’) decided 19 claim cases, arising out of solitary accident, by three separate judgments & awards of even date, 4^th of September, 2010, which are under challenge in these appeals and cross-objections. In 10 appeals, claimants have assailed impugned judgments & awards to the extent of findings recorded by learned Tribunal on Issue Nos.2 & 3 with the prayer for seeking enhancement of quantum of compensation and setting aside the decision absolving the insurer from its liability to pay

¶111

(8 of 19)

¶112

[CMA-2556/2011]

¶113

compensation. The appeals preferred by the owner of the offending vehicle are confined to challenging findings and conclusions of the learned Tribunal regarding Issue No.2 whereby the insurer is exonerated from its liability to pay compensation. Likewise, in 10 cross-objections filed on behalf of owner of the vehicle, finding of the learned Tribunal is questioned pertaining to Issue No.3 with a prayer to fasten liability on the insurer to pay compensation.

¶114

Succinctly stated, the facts are that on fateful day of 16^th of June, 2006, Pick-up vehicle No.RJ-04-G-3327, coming from Barmer to village Band collided with Turbo Truck No.RJ-19-G6466. The occurrence of accident was attributed by claimants to the driver of Turbo Truck with a specific allegation that the same was driven rashly and negligently by its driver. The accident, eventually, resulted in ghastly tragedy and engulfed life of many individuals besides sufferance of grave and serious injuries to others. In all, 12 persons, namely, Omaram, Girdhariram, Chainaram, Lumbaram, Gomaram, Thakararam, Kewalram, Achalaram, Raichand, Dedaram, Bhanwraram and one other person succumbed to the accidental injuries and remaining 10 individuals were seriously injured, who are Kesraram, Rooparam, Gangaram, Kishnaram, Rawtaram, Ranaram, Ghamaram, Dharmaram, Paras and owner as well as driver of Pick-up Bhagwana Ram. The accident was reported to Police Station Sadar, Barmer, whereupon FIR No.159/06 was registered. After investigation, charge-sheet was filed against drivers of both the vehicles for offence punishable under Sections 279, 337, 338,

¶115

(9 of 19)

¶116

[CMA-2556/2011]

¶117

304A IPC. In the claim petitions, respective claimants arrayed drivers of both the vehicles besides owner of Turbo Truck and insurer of both the vehicles as non-claimants. Respective claimants quantified amount of compensation under different heads by highlighting the age, income and occupations of the deceased and injured.

¶118

The claim petitions were not contested by driver and owner of Turbo Truck bearing registration No.RJ-19-G-6466 and due to their absence, learned Tribunal proceeded ex-parte against them. Rest of the non-claimants including both the insurer contested the claim petitions. The insurance company of Turbo Truck contested the claim by filing its reply. In the reply, it is averred that driver of Pick-up was responsible for the accident inasmuch as he had driven the vehicle rashly and negligently. Apart from that, a specific objection was raised that at the time of accident, driver of Turbo Truck was not holding any valid licence. With these submissions, Insurer claimed for exoneration from its liability to pay compensation by invoking Sections 147 & 149 of the Motor Vehicle Act, 1988 (for short, ‘Act’). Owner and driver of the Pickup also submitted reply to the claim petitions attributing total negligence on the part of Turbo Truck. Likewise, insurer of Pick-up also submitted reply with specific plea that the vehicle was registered as goods vehicle, and therefore, insurance company is not liable to pay compensation for the passengers, who were traveling in it. Objection about valid licence to ply vehicle against the driver of Pick-up was also raised in the reply for seeking absolvement of the insurer from its liability.

¶119

(10 of 19)

¶120

[CMA-2556/2011]

¶121

On the basis of pleadings of rival parties, learned Tribunal settled three issues for determination and the rival parties tendered their oral and documentary evidence. Upon conclusion of the trial, learned Tribunal partly allowed all the claim petitions by three separate judgments and awards. While deciding the claim petitions, learned Tribunal recorded its finding that driver of Turbo Truck was not having a valid licence to ply the same and consequently absolved its insurer i.e., Oriental Insurance Co. Ltd. from liability to pay comepnsation. The details about all the claim petitions, appeals and cross objections with amount of compensation claimed and awarded by the Tribunal is as under:-

¶122

Sr. No.	Claim Case Number	Amount claimed	Amount awarded	CMA Number	Cross Objection Number
1.	95/2006	36,23,000	2,49,600	2556/2011	9/2016
2.	170/2006	27,80,000	4,01,400	982/2011	7/2016
3.	74/2007	6,60,200	92,000	983/2011	6/2016
4.	172/2006	27,00,000	1,81,000	984/2011	5/2016
5.	169/2006	30,60,000	4,11,400	985/2011	8/2016
6.	4/2007	10,37,000	3,24,000	1039/2011	10/2016
7.	176/2006	25,23,000	-	1472/2011	19/2016
8.	136/2006	38,51,000	5,94,960	2931/2011	18/2016
9.	148/2006	39,94,000	5,40,400	3796/2011	11/2016
10.	159/2006	11,41,000	3,00,000	3798/2011	20/2016
11.	163/2006	27,49,000	2,30,200	492/2015	-
12.	22/2007	20,35,000	1,70,700	493/2015	-
13.	138/2006	14,22,000	53,000	494/2015	-
14.	37/2007	7,78,000	15,000	495/2015	-
15.	7/2007	1,45,000	8,000	496/2015	-
16.	139/2006	23,22,000	1,73,200	497/2015	-
17.	142/2006	17,22,000	1,38,000	609/2015	-
18.	164/2006	17,12,000	1,38,000	610/2015	-
19.	173/2006	2,45,000	8,000	611/2015	-

¶123

(11 of 19)

¶124

[CMA-2556/2011]

¶125

It is argued by learned counsel for the appellant-claimants, Mr. Anil Bhandari and Mr. M.R. Patel, that learned Tribunal has seriously erred in exonerating insurance company of Turbo Truck from its liability. Learned counsel have also argued that the deceased and injured persons were traveling in Pick-up with their goods (milk), and therefore, absolving the insurance company from its liability to pay compensation is dehors Section 147(1)(b) (i) of the Act. It is also submitted by learned counsel that statements of witnesses AW1-Chhagna Ram, AW2-Kisna Ram and NAW3-Hanumana Ram are clear and unequivocal to substantiate plea of the claimants. Learned counsel appearing for the appellant-claimants have further contended that amount of compensation determined by learned Tribunal in respective claim petitions is grossly inadequate and not commensurating with the calamity suffered by bereaved families and the gravity of injuries suffered by injured claimants. Romping in Section 168 of the Act, learned counsels for the appellant-claimants have urged that compensation awarded by the learned Tribunal in all the cases is not satisfying the criteria of just and fair assessment. Learned counsels have also argued that learned Tribunal has not awarded any compensation for future prospects of deceased/injured.

¶126

Learned counsels would urge that even if driver of an insured vehicle is possessing a fake driving licence, the burden lies on the insurer to prove that insured had knowledge about the fact that driver is having no valid licence or the licence possessed by him is

¶127

(12 of 19)

¶128

[CMA-2556/2011]

¶129

fake. Elaborating their submissions in this behalf, learned counsels contended that in absence of furnishing requisite evidence to this effect, the insurer cannot claim absolvement from its liability to pay compensation. Learned counsel for the appellants Mr. K.C. Choudhary in CMA No.1472/11 has urged that learned Tribunal has grossly erred in dismissing the claim petition in absence of evidence inasmuch as appellants were not allowed reasonable opportunity to tender their evidence. In support

¶130

of their arguments, learned counsels for the appellants have placed reliance on following judgments:

¶131

Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors.[2018 (2) RAR SC 241]

¶132

Sureshchandra Bagmal Doshi & Anr. Vs. New India Assurance Company Limited & Ors. [2018 (2) RAR 286 (SC)]

¶133

Anita & Ors. Vs. Arun Yadav & Ors. [2018 (4) MACT 313 (SC)]

¶134

Bhogireddy Varalakshmi & Ors. Vs. Mani Muthupandi & Ors.[2018 (1) RAR 8 (SC)]

¶135

Ramrao Lala Borse & Anr. Vs. New India Assurance Company Ltd. & Anr. [2018 (1) RAR 52 (SC)]

¶136

Shri Nagar Mal & Ors. Vs. Orienal Insurance Company Ltd. & Ors. [2018 (1) RAR 84 (SC)]

¶137

Ram Chandra Singh Vs. Rajaram & Ors. [2018 (2) RAR 235 (SC)]

¶138

National Insurance Co. Ltd. Vs. Tulna Devi & Ors. [2009 RAR 25 SC]

¶139

Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors.[2017 ACJ 1031]

¶140

Shivawwa & Anr. Vs. Branch Manager, National India Insurance Co. Ltd. & Anr.[2018 (1) RAR 97]

¶141

Shamanna & Anr. Vs. Divisional Manager, Oriental Insurance Co. Ltd. & Ors.[2018 (2) RAR 255]

¶142

Chollamandalam M.S. General Insurance Company Limited Vs. Smt. Chuki Devi & Ors. [2018 (2) RAR 584 (Raj)]

¶143

National Insurance Co. Ltd. Vs. Yogesh & Ors. [2010(2) WLN 181]

¶144

Mangla Ram Vs. Oriental Insurance co. Ltd. & Ors. [2018 (1) RAR 135 (SC)]

¶145

Jetha Ram & Anr. Vs. Thanwar Lal & Ors. [2017 (1) RAR 119 (Raj)]

¶146

Khenyei Vs. New India Assurance Co. Ltd. & Ors. [2015 (2) RAR 193 (SC)]

¶147

(13 of 19)

¶148

[CMA-2556/2011]

¶149

Learned counsel, Mr. Suresh Shrimali, appearing for the appellant-owner of Turbo Truck, has vehemently argued that the finding of learned Tribunal on Issue No.3 is erroneous inasmuch as the driver of Turbo Truck was having a valid licence at the time of accident. The same argument is advanced by the learned counsel for the owner of Turbo Truck in some cross-objections submitted on his behalf for fastening liability on the insurer to pay compensation. Learned counsel Mr. Shrimali further submits that notices issued by the learned Tribunal were not personally served on the owner of Turbo Truck and he was also never asked to furnish driving licence of the vehicle driver. He, therefore, argued that learned Tribunal even in absence of the owner of Turbo Truck ought to have called upon insurer to furnish requisite proof about non-availability of the driving licence with the driver of the vehicle.

¶150

At this stage, before proceeding to examine the rival contentions, it would be just and appropriate to take up the applications submitted by owner of Turbo Truck under Order 41 Rule 27 CPC in various appeals and cross-objections. By the aforesaid applications, owner of the Turbo Truck appellant/crossobjector has prayed for producing additional evidence, i.e., driving licence of the driver on record. For seeking indulgence of the Court, it is inter-alia averred in the applications that notices issued by learned Tribunal of various claim petitions were not personally served on him, and therefore, he could not appear before the learned Tribunal to defend the cause. It is further averred that at no point of time driver of Turbo Truck or owner, i.e.,

¶151

(14 of 19)

¶152

[CMA-2556/2011]

¶153

appellant/cross-objector, was asked to produce driving licence. Lastly, it is also averred in the applications that as the learned Tribunal has passed ex-parte awards against owner and driver of the Turbo Truck, it would be just and appropriate in the interest of justice to permit the owner of Turbo Truck to produce driving licence possessed by the driver. The applications are duly supported by affidavits of the owner of Turbo Truck. No formal reply to the applications is filed by other contesting parties.

¶154

I have heard learned counsel for the rival parties.

¶155

In support of his arguments, learned counsel for the owner of Turbo Truck has placed reliance on following legal precedents:

¶156

Dariya Singh Vs. Darshan Singh & Ors. [2008(1) DNJ (Raj.) 194] 2. National Insurance Co. Ltd. Vs. Yogesh & Ors. [2010(2) WLN 181 (Raj.)]

¶157

It is trite that appeal is an extension of the suit, and therefore, appellate Court has same powers as that of a Court of original jurisdiction. Section 107(1)(d) of the CPC empowers the appellate Court to admit additional evidence. The grounds for taking additional evidence at the appellate stage are provided under Order 41 Rule 27 CPC. Essentially, the applications submitted on behalf of owner of the Turbo Truck (appellant/crossobjector) is founded on clauses (aa) & (b) of sub-rule (1) of Rule 27 of Order 41 CPC. There remains no quarrel that owner of the Turbo Truck has not contested the claims and the judgments & awards are passed ex-parte against him. The non-participation of

¶158

(15 of 19)

¶159

[CMA-2556/2011]

¶160

him in the proceedings before the Tribunal, for whatsoever reason, has obviously prevented him from submitting the driving licence, which eventually entailed exoneration of insurer from its liability to pay compensation. The factum of Turbo Truck being insured is undisputed, and therefore, the insurer which has indemnified on behalf of the insured to pay compensation as per contract of insurance, then, it cannot be allowed to claim immunity from its liability to pay compensation sans violation of any terms of the insurance policy. For his absence before the learned Tribunal in all the claim cases, owner of the Turbo Truck has also pleaded that notices were not personally served on him. That apart, Court also feels that the additional evidence, which is sought to be placed on record, is very much required so as to enable the Court to pronounce judgment in the appeal.

¶161

The solemn object of provisions under Order 41 Rule 27 CPC is to do real, effective and substantial justice or to prevent miscarriage of justice by permitting a party to produce additional evidence. Discretionary power of the appellate Court under aforesaid provision is also liable to be exercised for deciding the dispute in more satisfactory manner.

¶162

Supreme Court in the matter of Jayaramdas & Sons Vs. Mirza Rafatullah Baig & Ors. [(2004) 10 SCC 507], while construing various clauses of sub-rule (1) of Rule 27 held:

¶163

“It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to Clause (a) or (aa) of Sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for

¶164

(16 of 19)

¶165

[CMA-2556/2011]

¶166

any other substantial cause within the meaning of Clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties.

¶167

In Shyam Gopal Bindal & Ors. Vs. Land Acquisition Officer & Anr. [(2010) 2 SCC 316], Supreme Court, while considering the true purport of Order 41 Rule 27, held:

¶168

“It appears that the documents which were sought to be produced by the appellants formed the very basis of the claim made by the appellants in the civil suit. Their consideration by the Court was necessary for a just decision of the case.”

¶169

In Dariya Singh (supra), learned Single Judge of this Court allowed application under Order 41 Rule 27 CPC against the judgment and award passed by Tribunal dismissing the claim solely on the ground of non-production of registration certificate of the vehicle and remanded the matter back.

¶170

While it is true that the insured has not produced driving licence of the driver of vehicle but then the learned Tribunal in absolving the insurer from its liability to pay compensation has utterly failed to notice that onus lies on the insurer to prove the same by tendering relevant evidence. Moreover, when both owner and driver did not appear before the learned Tribunal and ex-parte proceedings were taken against them, the insurer ought to have

¶171

(17 of 19)

¶172

[CMA-2556/2011]

¶173

tendered cogent evidence for proving violation of terms of insurance policy by the insured.

¶174

My aforesaid view finds support of a Supreme Court judgment in case of Tulna Devi (supra), wherein Supreme Court, while relying on its earlier judgment in National Insurance Co. Ltd. Vs. Swaran Singh [(2004) 3 SCC 297], held:

¶175

“(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained sub-sec.(2)(a)(ii) of Sec.149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to driver at the relevant time.”

¶176

The additional documents, which the owner of Turbo Truck wanted to produce is the driving licence of respondent-driver Kalyan Singh, issued by Government of Nagaland on 29.04.2004 for ten years, whose copy was obtained under Right to Information Act. If the date of accident is examined in that background, then, it would ipso facto reveal that the same falls in the interregnum period during which validity of the licence was in vogue.

¶177

Therefore, considering all these aspects and for facilitating just decision in all these appeals and cross objections, in the interest of justice, it would be just and appropriate to allow

¶178

(18 of 19)

¶179

[CMA-2556/2011]

¶180

applications under Order 41 Rule 27 CPC and accordingly same are allowed. The additional evidence, in the form of driving licence of driver of Turbo Truck, is taken on record.

¶181

Learned counsels appearing for appellants-claimants have advanced many arguments for seeking enhancement of compensation besides harping on fastening liability on the insurer to first pay compensation and then recover the same from insured but in the considered opinion of the Court it would not be appropriate to make this exercise at this stage. The Court is also dissuaded to consider these arguments at this stage precisely for the reason that applications submitted by the owner of the Turbo Truck under Order 41 Rule 27 CPC in various appeals and crossobjections are allowed and additional evidence is taken on record.

¶182

It is also note-worthy that learned Tribunal has proceeded ex-parte against owner and driver of Turbo Truck and the insurer had no opportunity to rebut the factum of valid licence being possessed by the driver of Turbo Truck, further requires this Court to exercise power under Order 41 Rule 23 & 23A CPC for remanding all these matters back to decide afresh. Remanding all the matters for decision afresh is also essential because the additional evidence taken on record would have effect of materially altering the final decision of the learned Tribunal in all the claim cases.

¶183

(19 of 19)

¶184

[CMA-2556/2011]

¶185

In view of foregoing discussion, the appeals filed by the appellant-claimants, appellant-owner of Turbo Truck and crossobjections filed on his behalf are allowed in part and the impugned judgment & awards are set aside to the extent of finding and conclusion recorded pertaining to Issues No.2 & 3 and the learned Tribunal is directed to permit the rival parties to adduce additional evidence, if they so desire, and decide both these issues de novo , strictly in accordance with law. The Tribunal may also examine the issue relating to quantum of compensation afresh in light of the judgments relied upon by the learned counsel for appellantclaimants.

¶186

As the accident relates to the year 2006, learned Tribunal is expected to decide all the claim petitions afresh, in light of the directions issued supra, without any delay, preferably within a period of four months from the date of receipt of records of all the cases.

¶187

The Registry is directed to send back records forthwith to learned Tribunal.

¶188

Let copy of this order be placed in each file.

¶189

106-Bharti/-

Manohar Lal Bhati v. Smt. Luni Devi and Ors.

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Manohar Lal Bhati v. Smt. Luni Devi and Ors.

Case brief

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