Kulwant Singh vs Oriental Insurance Co. and Others

Kailash Gambhir, J.—This order shall dispose of the present appeal filed by the owner of the offending vehicle assailing the impugned award dated 26.9.2005 and also the application moved by the appellant under Order 41 Rule 27 read with Section 151 CPC vide CM No. 8711/2006 seeking permission to lead additional evidence. Brief summary of facts relevant for dealing with the contentions raised by the appellant are as under:

On 16/3/2003 at about 9:15 am the deceased Sh. Vinod Raturi was going to his house on a two wheeler scooter and reached near Pardesi Papri. At that moment a truck bearing registration No. DL 1GB 3515 driven by its driver in a rash and negligent manner and at a high speed, struck against the said two wheeler. Consequently, Sh. Vinod received fatal injuries. Immediately, he was rushed to the hospital and ultimately he died on 21/3/2002.

Ms. Aruna Mehta, counsel appearing for the appellant strongly contended that the appellant duly proved on record the duplicate copy of the driving licence as Ex. R3W2/2 issued by the Licencing Authority, Agra, but ignoring the same, the Tribunal fastened the liability to pay the compensation amount upon the owner of the offending vehicle. Contention raised by the counsel for the appellant is that the said duplicate copy of the driving licence could not be placed by the appellant as the counsel engaged by the appellant remained negligent and did not effectively pursue his case before the Tribunal. Counsel, thus, contended that due to negligence of the counsel appearing before the tribunal, the appellant cannot be made to suffer. Counsel for the appellant also contended that the appellant is entitled to lead additional evidence as envisaged under Order 41 Rule 27 so as to summon the relevant records of Licencing Authority, Agra so as to prove that the duplicate attested copy of the driving licence proved by the appellant was a genuine and authentic one. Another contention which has been canvassed by the counsel before this Court is that even otherwise the insurance company i.e. the respondent No. 1 failed to prove any breach of terms and conditions on the part of the appellant which could give advantage to the insurance company to claim exoneration from its liability. Counsel also contended that the insurance company also failed to summon the driver and even no records from the Transport Authority, Gauhati were summoned and in the absence of the same, no reliance could be placed on the report of the DTO, Gauhati exhibited as R3W1/4, application of the Investigating Officer to the DTO exhibited as R3W1/5, report of the Investigating Officer exhibited as R3W1/6 and the letter forwarding the report of the Investigating Officer exhibited as Ex. R3W1/7.

Contention thus raised by the counsel for the appellant is that the insurance company failed to discharge its burden by not establishing on record that the driver of the offending vehicle had any fake licence or forged licence and consequently the appellant/owner cannot be held liable to pay the compensation amount.

Counsel for the appellant placed reliance on the following judgments in support of his contentions:

United India Insurance Company Ltd., Kurnool Vs. Madiga Thappeta Ramakka and others,

Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, ;

Sukh Dev Vs. Bhagwati Devi and Others, ;

Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, ;

United India Insurance Company Ltd. Vs. Lehru and Others, ;

National Insurance Co. Ltd. v. Bhagwati Devi and Ors. IV (2006) ACC 329 (Del);

National Insurance Co. Ltd. Vs. Ishroo Devi and Others, ;

United India Insurance Company Limited Vs. Raj Rani and Others, ; and

National Insurance Co. Ltd. Vs. Swaran Singh and Others, .

Refuting the said submissions made by the counsel for the appellant, Mr. J.P.N. Shahi, the counsel appearing for the respondent strongly urged that the Tribunal has rightly given recovery rights to the insurance company to recover the award amount from the appellant owner of the offending vehicle as the driver of the offending vehicle was not in possession of the valid driving licence which was fake and fabricated. Counsel also submitted that no reliance can be placed upon the attested duplicate copy of the driving licence as produced by the appellant during his evidence before the Tribunal as the same was never produced by the appellant, earlier. Counsel, thus, sought to urge that the validity and genuineness of such a duplicate copy of the driving licence is totally doubtful and had the same been a genuine driving licence, the appellant ought to have placed it on record at the appropriate stage at least before the commencement of trial and having not done so, the appellant cannot put blame on the insurer of the vehicle in not taking steps to challenge the authenticity of the said driving licence.

I have heard learned Counsel for the parties and perused the record. Perusal of the record shows that the appellant and the driver of the offending vehicle were duly served before the Claims Tribunal and time was sought on 8.4.2004 Both the respondents were proceeded ex parte vide order dated 2.8.2004, when none appeared on their behalf before the Tribunal. Prior thereto, the Tribunal gave three opportunities to the appellant and the driver of the offending vehicle to file their written statement and vide order dated 6.7.2004 last opportunity was granted to them to file their written statement subject to costs of Rs. 300/-. It is, thus, apparent that the appellant and the driver failed to contest the case and did not come forward to place the said driving licence, duplicate copy of which was produced by the appellant during his evidence after he was summoned by the insurance company as RW3. The appellant was, thus, totally reckless and negligent in contesting the compensation case and for his own negligence of not placing the said document at the earliest opportune time he is trying to make the counsel a scapegoat. The provisions of Order 41 Rule 27 also cannot come to the aid of the appellant as the said provision is an exception to the general rule and cannot be applied unless the person seeking to include the said provision fully satisfy the essential ingredient of the same. The owner made no efforts at the appropriate stage to place the correct licence before the Tribunal and it is only after the directions are made to recover the amount from the owner by the insured, the owner got awakened. No plausible or cogent reasons have been disclosed in the application moved under Order 41 Rule 27 CPC which can satisfy the Court to permit the appellant to place the driving licence of HTV at this stage. An application under Order 41 Rule 27 shall not be allowed by the appellate Court unless one of these conditions is satisfied: (a) improper refusal of evidence by trial court which ought to have been admitted, or (b) non-production of evidence notwithstanding exercising of due diligence, or (c) requirement of the appellate court itself for pronouncing judgment, i.e., impossibility to produce judgment with the additional evidence, or (d) any other substantial cause. The said provision is reproduced as under:

Production of additional 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 if-

(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 pronounce 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.

In the present case, the appellant in a very casual and cavalier fashion has placed the blame on his counsel for not conducting his case properly before the Tribunal. The least, the appellant could do was to place the copy of the driving licence before the commencement of the trial which could have provided enough opportunity to the insurance company to verify the correctness and genuineness of the driving licence. There cannot be any dispute that it is for the insurance company to prove and establish on record that the driver was in possession of fake or forged licence so as to claim breach of the policy condition on the part of the insured but at the same time the owner cannot escape from its liability when he willfully and consciously avoids to set up a case contrary to the case set up by the insurance company.

In the facts of the present case, it would be apparent that the insurance company has duly proved on record the report of the DTO, Gauhati exhibited as R3W1/4; the application of the Investigating Officer to the DTO exhibited as R3W1/5; report of the Investigating Officer exhibited as R3W1/6 and the letter forwarding the report of the Investigating Officer exhibited as Ex. R3W1/7. The testimony of the witness who proved all these documents remained unrebutted, therefore, the creditworthiness of the said documents proved on record cannot be doubted. Furthermore the seizure memo of driving licence was also proved as Ex. R3W1/2, which document was seized by the police at the earliest opportune time. Above all the appellant himself failed to place on record the attested duplicate copy of the driving licence purported to have been issued from the Transport Authority, Agra before commencement of the trial. Considering the totality of these facts, I am of the view that the Tribunal has correctly given the insurance company recovery rights to recover the award amount from the appellant. The judgments cited by the appellant are of no help because of the peculiarity of facts in the present case. There is no merit in the appeal as well as in the application moved by the appellant under Order 41 Rule 27 read with Section 151 CPC. The same are hereby dismissed.

The appellant shall pay and satisfy the entire award amount with upto- date interest, thereon in terms of the impugned award. The amount, if any, already deposited by the appellant shall be released forthwith in favour of the claimants strictly in terms of the impugned award.

With these directions, the present appeal is disposed of.