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2001 DIGILAW 10 (HP)

NEW INDIA ASSURANCE CO. LTD. v. ROSHAN LAL

2001-01-05

KAMLESH SHARMA, M.R.VERMA

body2001
JUDGMENT : M.R. Verma, J. 1. Appellant New India Assurance Co. Ltd. (hereinafter referred to as 'the appellant') has preferred the present appeal against the award dated 30.1.90 passed by Motor Accidents Claims Tribunal, Bilaspur (hereinafter referred to as 'the Tribunal') whereby the respondents-claimant Nos. 1 and 2 (hereinafter referred to as 'the claimants') have been awarded a sum of Rs. 57,600 as compensation along with interest at the rate of 12 per cent per annum from the date of accident till the payment of the compensation amount and costs of the claim petition. 2. Brief facts, leading to the presentation of this appeal are that one Parkash Chand aged about 20 years employed as a peon in the Sub-Treasury at Swarghat was travelling on 2.10.1986 in bus No. CHZ 111 from Shri Naina Devi Ji to Kainchi Mour. The said bus met with an accident at a curve at Shri Naina Devi Ji at about 4.15 p.m. and said Parkash Chand died as a result of the said accident which took place due to rash and negligent driving of the bus by the driver thereof, namely, Harjit Singh, respondent No. 4 herein. The bus was owned by one Narinder Singh initially respondent No. 3 in the present appeal and now having been substituted by his legal representatives consequent upon his death. It is averred in the claim petition that at the time of accident Parkash Chand deceased was earning in all a sum of Rs. 40,000 per year and was maintaining the claimants also. Claimants being father and mother of the deceased and being dependent upon him claimed Rs. 3,00,000. 3. The owner of the vehicle contested the claim of the claimants and in the reply raised the preliminary objections that the deceased was not travelling in the bus, that claimants have no cause of action and the petition as framed does not lie. On merits while denying the contents of the claim petition it was averred that neither the accident took place as alleged nor the deceased died in the bus and thus the claim was denied as a whole. 4. On merits while denying the contents of the claim petition it was averred that neither the accident took place as alleged nor the deceased died in the bus and thus the claim was denied as a whole. 4. The appellant also filed reply to the claim petition wherein it raised the preliminary objections that the claim petition was not maintainable, that the claim petition was incomplete, vague and did not disclose any cause of action, that the petition was not verified, that no policy of assurance/assuring/contracting to indemnify the owner was issued, that the claimants are neither the legal heirs nor dependants of the deceased, that the deceased was neither travelling in the bus nor met with any accident, that the liability of the appellant was limited to Rs. 20,000 per passenger under the standard policy of insurance and Section 95 of Motor Vehicles Act. The appellant also averred in the reply that it took all defences available to it under Sections 95, 96(2), 103(a) and 110-C(2-A) (ii) of Motor Vehicles Act (hereinafter referred to as 'the Act'). In reply on merits the entire claim has been denied and additional pleas regarding the liability of the appellant being limited to Rs. 20,000 per passenger was also raised apart from the want of the driver of the bus having valid driving licence and the vehicle being driven without valid RC, RP and certificate of fitness. 5. On the basis of the respective averments of the parties the Tribunal framed the following issues: (1) Whether death of Parkash Chand, son of Roshan Lal was caused due to rash and negligent driving of bus No. CHZ 111 by respondent Harjit Singh, respondent No. 2. If so, what compensation the petitioners are entitled to and against whom? ... OPP (2) Whether the claim petition is not maintainable as alleged? ...OPR-3 (3) Whether respondent No. 3, insurance company is not liable to pay the compensation as it has not issued any insurance policy to indemnify the respondent No. 1 as alleged? ...OPR-3 (4) Whether the petitioners are the legal heirs of deceased Parkash Chand? ...OPP (5) Relief. 6. By the impugned award issue Nos. 1 and 4 were held in favour of the claimants and issue Nos. 2 and 3 held against the appellant and as a consequence the impugned award came into being. Being aggrieved, the appellant has preferred the present appeal. 7. ...OPP (5) Relief. 6. By the impugned award issue Nos. 1 and 4 were held in favour of the claimants and issue Nos. 2 and 3 held against the appellant and as a consequence the impugned award came into being. Being aggrieved, the appellant has preferred the present appeal. 7. Along with the present appeal the appellant has moved an application under Order 41, Rule 27 read with Section 151 of the CPC praying for permission to lead additional evidence to prove Exhs. R-1 and R-2 which are already on record. It has been averred in the application that the assurance company has raised a specific plea that its liability to indemnify is limited to Rs. 20,000 only per passenger and to substantiate this plea, document R-1 which defines the limit of legal liability for accident to the passengers, and R-2 a photocopy of the motor policy had been tendered in evidence without any objection from the respondents but were not proved and exhibited in accordance with law. It is claimed that no harm or prejudice is going to be caused to the respondents if insurance policy and tariff are allowed to be produced and proved by leading additional evidence. Hence the application. 8. The respondents, however, had not filed any reply to the application. 9. We have heard the learned Counsel for the parties and have also gone through the records. 10. The learned Counsel for the appellant has supported the application on the ground mentioned therein and has submitted that either the documents Exhs. R-1 and R-2, already on record, may be read in evidence or in the alternative, the appellant be permitted to lead additional evidence to prove these documents in accordance with law. 11. On the other hand, the learned Counsel for the respondents has submitted in this regard that these documents cannot be read in evidence as these are not proved in accordance with law nor the appellant can be permitted to lead additional evidence with a view to prove these documents at this belated stage. 12. This is not a case where any new evidence in the form of additional evidence is sought to be brought on record. 12. This is not a case where any new evidence in the form of additional evidence is sought to be brought on record. The documents sought to be proved are not only on the record but are even exhibited but these are not proved in accordance with law inasmuch as-these were tendered in evidence by the Counsel for the appellant before the Tribunal. Exh. R-1 though purports to be an attested copy of the tariff regarding legal liability for accident to passengers but it does not, on the face of it, disclose as to who has formulated this tariff and to which insurance company it would apply. Document Exh. R-2 appears to be a photocopy of an attested copy of the insurance policy and has not been certified to be true copy of the original. Its enclosure is also not attested. In these circumstances, these documents cannot be read in evidence for want of formal proof and the Tribunal has also come to the same conclusion and rightly so. 13. Prima facie, these two documents seem to be material evidence qua issue No. 3 and to assist this court in arriving at a just and right conclusion regarding the liability of the appellant to indemnify the insured. Therefore, in our view, the prayer of the appellant for proving these documents in accordance with law by leading additional evidence must be allowed in the interest of justice. 14. As a result, this application is allowed and the appellant is permitted to lead additional evidence to prove documents Exh. R-1 and Exh. R-2 in accordance with law but subject to payment of costs in the sum of Rs. 500 payable on or before the next date and also subject to the right of the respondents to lead rebuttal, if any. 15. The matter be listed for additional evidence of the appellant on 26.3.2001. Steps, if any, be taken within two weeks.