Manoj Kumar Mantri vs Meghraj Choudhary and Others

Amitav Kumar Gupta, J.—This appeal has been preferred against the judgment and order dated 14.08.2008 passed in Claim Case No. 58 of 2001 passed by 1st Additional District Judge -Cum- M.V.A.C.T., Giridih.

I.A. No. 2403 of 2010. It is submitted by the learned counsel for the appellant/owner of the vehicle that the learned Tribunal without affording any opportunity to the appellant, has passed the judgment on the basis of ''Ext.-D'' holding that the driver, Sanjay Kumar Kujur possessed license to drive L.M.V only and not H.M.V. Accordingly it has held that since there was violation of condition of Section 149(2) of the M.V. Act, it has fixed the liability on the appellant/owner of the vehicle with a direction to the Insurance Company to pay the awarded compensation amount with right to recover the same from the owner, i.e., appellant. It is argued that the finding of the learned Tribunal is erroneous, as Sanjay Kumar Kujur-driver was holding a valid and effective driving license with an endorsement dated 19.03.1994 for driving of H.M.V. That the accident took place on 10.01.2001, and the driver had a valid license to drive the vehicle in question. That the appellant had applied for the information before the District Transport Officer, Lohardaga and the particulars of driving license of Sanjay Kumar Kujur being D.L. No. 1185 of 1991 was provided subsequently, after passing of the order.

It is submitted that since the owner-appellant was denied the opportunity to bring on record the said driving license for proper adjudication of the issue hence owner-appellant be given an opportunity with liberty to adduce the evidence under Order 41 Rule 27 of the C.P.C. by remitting the case to the court below.

Learned counsel appearing for the United India Insurance Company has vehemently opposed and submitted that the appellant has made false assertion in the affidavit stating that no opportunity was given. It is argued that the owner/appellant had appeared and filed his written statement but did not take any steps in the case as is evident from the recital of the judgment. It is urged that when the liability was fixed on the owner with right to recovery granted to the respondent/owner the present application has been filed false assertion that he was not given an opportunity by the learned Tribunal not be allowed due to lack of bonafide document. It is contended that in the case of Union of India (UOI) Vs. Ibrahim Uddin and Another, (2012) 6 JT 466 : (2012) 4 RCR(Civil) 727 : (2012) 6 SCALE 476 : (2012) 8 SCC 148 : (2013) AIRSCW 2752 : (2012) 4 Supreme 585 , the Apex Court has observed and held that in the case of additional evidence for lack of due diligence of party seeking production of additional evidence the party who is guilty of remissness in not producing evidence in the Court cannot be allowed to produce subsequently. That there must be satisfactory reasons for non-production of the evidence in trial Court and in the facts of the present case, the interlocutory application deserves to be rejected.

Learned counsel for the respondent-United India Insurance Company has further submitted that Ext.-D which was the judgment passed in claim Case No. 57 of 2001 arising out of the same accident has not been challenged and it has attained finality and the appellant has not challenged it and he cannot be permitted to bring in the additional evidence at this stage.

Heard the learned counsels. It is evident from the judgment that the owner of the vehicle has not participated in the proceeding after the filing of the written statement.

However in the decision in the the case of Union of India Vs. Ibrhim Uddin (Supra) relied on by the learned counsel for the respondent it has been observed an application for taking additional evidence at a belated stage cannot be filed as a matter of right and the court has to consider such application with circumspection and the discretion has to be exercised judiciously on consideration of the relevancy of the document to the issues involved in the matter and the circumstances the evidence could not be brought on record.

The owner- claimant had filed the written statement pleading that the driver had a valid driving license. In the supplementary affidavit before the court it has been stated that immediately after the accident the driver Sanjay Kumar Kujur left the job, therefore where about the driving license was not in the custody or knowledge of the owner hence he could not trace the driving license. He tried to contact the driver but the driver remanded traceless. That he applied before the District Transport Officer, Lohardaga for getting the particulars of the Driving License No. 1185/91 which was provided by the D.T.O on 05.06.2009 which is Annexure-1. Since the appellant/defendant had pleaded that all the papers were valid and possession of a valid driving license was an issue to be adjudicated by the court, hence the document has relevancy for proper adjudication in fixing the liability for compensation and satisfactory reasons have been brought forth for non-production of the said driving license during trial, hence, considering the beneficial object of the legislation of the Motor Vehicle Act, thus with the purpose to meet the ends of justice, the application is allowed on condition of payment of cost of Rs. 5,000/- to be paid by the owner-appellant to the claimants/respondents.

It is also pertinent to mention that the Insurance Company is also under a legal duty to investigate and report and judicial notice of the fact can be taken that every Insurance Company appoints a surveyor for making investigation and reporting as to the details of the accident, validity of the vehicular documents and the driving license. No effort was done in this regard by the Insurance Company as well.

The matter is remitted to the court below which shall allow the owner-claimant to adduce evidence/document of the driving license with liberty to the Insurance Company to lead evidence in rebuttal, if any.

The Tribunal shall decide the issue whether the driver had a valid driving license on the date of the accident. The parties are directed to appear before the Tribunal (Court below) on 11.08.2015 and the Tribunal shall return a finding within two months from 11.08.2015 without giving any unnecessary adjournment to the parties.

The impugned order/judgment dated 14.08.2008 passed in Claim Case No. 58 of 2001 by Additional District Judge-Cum-M.V.A.C.T., Giridih is hereby set aside, to the extent noted above for adjudication on the issue and fixing the liability on the concerned party to pay the compensation.

Let the lower court records be sent to the court below with a direction to return the finding by October, 2015.

With the aforesaid direction and observation the appeal and I.A. o. 2403 of 2010 is hereby disposed of.