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2001 DIGILAW 54 (JHR)

Md. Hyder Ali v. Laxmi Devi

2001-01-24

A.K.PRASAD, VINOD KUMAR GUPTA

body2001
ORDER 1. In terms of the order dated 21.12.2000, we are disposing of this appeal at this stage itself. 2. A short question is involved in this appeal and that relates to the extent of the liability of the Insurance Company, i.e. respondent No. 7 in this appeal. The Tribunal held, while passing the Award that the Insurance Company was liable to a limited extent, i.e., Rs. 50,000/-, because the Insurance Company had raised a specific plea to that effect in the written statement. The learned Single Judge, while disposing of the appeal by the judgment impugned before us, concurred with the Tribunal up-holding the aforesaid finding that the Insurance Company was liable to pay the limited amount of Rs. 50,000/- only. 3. We have heard the arguments of the learned counsel for the parties in detail. 4. Mr. Alok Lal, learned counsel for the Insurance Company has very vehemently argued that his client was liable only to pay Rs. 50,000 because of its limited liability and that the onus to prove and establish that the Insurance Company has un-limited liability lay upon the owner of the vehicle, i.e. the appellant before us. He also urged that alternatively we should grant permission to his client in terms of Order XLI, Rule 27 of the Civil Procedure Code to produce in evidence a copy of the Insurance Policy at this stage of the proceedings. 5. After hearing arguments of the learned counsel for the parties, we find ourselves in total disagreement with the view of the learned Single Judge as also the finding of the Tribunal and hold that, in the facts and circumstances of this case, it cannot be said that the liability of the Insurance Company was limited. Undoubtedly, the Insurance Company took up a specific plea in the written statement that in terms of the Motor Vehicles Act, 1939, it has a limited liability. The duty of the Insurance Company did not stop there. If it took the aforesaid specific plea to the aforesaid effect, its duty was to adduce evidence during the trial of the claim petition and to prove and establish, with reference to both oral statement of its witnesses and documents in its possession that its liability was limited. The duty of the Insurance Company did not stop there. If it took the aforesaid specific plea to the aforesaid effect, its duty was to adduce evidence during the trial of the claim petition and to prove and establish, with reference to both oral statement of its witnesses and documents in its possession that its liability was limited. Merely saying that, despite having itself taken the aforesaid plea, the onus of establishing any proving that the Insurance Company had the un- limited liability was upon the owner of the vehicles, is wholly un-tenable in law. It is a well established principle of law that the onus to prove the fact lies upon the party who raises and takes up a specific plea to that effect. 6. In fact, there appears to be a patent contradiction in the judgment of the learned Single Judge. As we have noticed, the Insurance Company requested the learned Single Judge for an opportunity in terms of the Order XLI, Rule 27 of the Civil Procedure Code to adduce additional evidence at the appellate stage by production of a copy of the Insurance Policy. Judgment under appeal clearly informs us that the learned Single Judge refused such permission to the Insurance Company. After he had refused to allow the Insurance Company to adduce evidence in terms of Order XLI, Rule 27 of the Civil Procedure Code, it is not understood as to how did the learned Single Judge go on to hold that the liability of the Insurance Company was limited. There thus appears to be a patent contradiction, on the one hand by refusing to allow the Insurance Company the opportunity to adduce additional evidence and, on the other, without there being any such document on record, to hold that the liability of the Insurance Company was limited. 7. There thus appears to be a patent contradiction, on the one hand by refusing to allow the Insurance Company the opportunity to adduce additional evidence and, on the other, without there being any such document on record, to hold that the liability of the Insurance Company was limited. 7. At the stage of this appeal, in the total absence of any material on record and, in the facts and circumstances of this case, particularly in view of the fact that the claimants being very poor persons have not been able to get the Award executed so far, and also in view of the fact that the insurance Company did not adduce any evidence at the trial of the case, we are not inclined to agree to the oral request of the Insurance Company for permission to adduce additional evidence under Order XLI, Rule 27 of the Civil Procedure Code. Not only that, the request for adducing additional evidence undoubtedly was made before us only orally today by way of a casual mentioning. Had the Insurance Company being serious, it should have come up with a formal application, supported by material facts and particulars to canvass before us as to the reasons why it wanted such an opportunity. As observed above, no such application was made before us and only a casual mentioning was made before Court in course of oral arguments. Such being the case, we cannot grant the aforesaid oral prayer of the Insurance Company at this stage. 8. For the aforesaid reasons, this appeal is allowed. The judgment of the learned Single Judge and that of the Tribunal are set aside to the extent it burdens the appellant with paying the part of the Award amount. The Insurance Company is held liable to pay the entire Award amount, which, we direct, it shall pay to the claimants in terms of the Award along with the interest as determined and fixed by the Tribunal. 9. Appeal allowed.