JUDGMENT B.S. Indrakala, J.—MFA Nos. 15186/2007 and 15187/2007 are preferred by the claimants and MFA Nos. 1875 and 1876/2008 are preferred by the insurance company against the common impugned judgment and award, dated 30.7.2007 passed in MVC Nos. 8601 and 8602/2005 on the file of the III Additional Judge, Court of Small Causes and Member, MACT., Metropolitian area, Bangalore (SCCH No. 18). The brief facts of the case areas hereunder: It is alleged by the claimants that they sustained injuries in the motor vehicle accident which occurred on 12.12.2005 at about 12.30 p.m. on Hosur Main Road, near Shanimahatma Temple, Naganathapura Junction by the user of Tata Sumo bearing registration No. KA 06 A 6273 on account of the rash driving of the same by its driver and in the said accident, they suffered grievous injuries. Further it is contended by the claimants that on account of the injuries suffered by them in the said accident, they took treatment as inpatient in the hospital; they also underwent follow up treatment; prior to the accident they were hale and healthy and earning moderate income and they have sustained pecuniary loss and disability and that they have to give up their amenities and enjoyment of life throughout and in the circumstances, they have sought for awarding of compensation in their respective claim petition. 2. In the statement of objections filed by the insurer/respondent No. 1 therein, amongst other pleas, it is pleaded denying the cause of accident, nature of injuries suffered, amount of expenditure incurred, disabilities which are alleged to have been suffered etc. Further it is pleaded that though the vehicle in question is covered under the valid insurance policy, the liability is subject to the terms and conditions therein. Further it is specifically pleaded that the driver of the Tata Sumo alleged to be involved in the accident did not possess a valid and effective licence to drive the same and it is also stated that in the charge sheet filed against the said driver, he is charge sheeted for the offence under Section 3(1) of the Motor Vehicles Act also. 3. 3. On the basis of the said pleadings, the following issues were framed by the Tribunal: i) Whether the petitioners prove that they have sustained injuries in a Motor Vehicle Accident that was taken place on 12.12.2005, at about 12.30 P.M., on Hosur Main Road, near Shanimahatma Temple, Naganathapura Junction, due to user of Tata Sumo bearing No. KA 06 A 6273, being driven by its driver in an actionable negligence? ii) Whether the petitioners are entitled for the compensation as prayed for? If so, whether it is against whom? iii) What Order? 4. Subsequently the claimants in both cases chose to adduce evidence and got themselves examined as P.Ws. 1 and 2 apart from examining the medical officer, who assessed their disability as P.W.3 and got marked Exs.P.1 to 25. On behalf of the respondents, except cross examining the witnesses, they have not adduced any evidence either oral or documentary. 5. The Tribunal on appreciation of the evidence so placed on record, deemed it fit to award a sum of Rs. 2,70,000/- and Rs. 2,10,000/- respectively with interest at the rate of 6% p.a. from the date of petition till realisation and held both respondent Nos. 1 and 2 are jointly and severally liable to compensate the claimants. 6. Aggrieved by the said impugned judgment and award, the claimants preferred MFA N. 15186/2007 and 15187/2007 respectively, seeking enhancement of compensation so awarded. At the same time, the respondent/insurance company also preferred two appeals i.e., MFA 1875/2008 and 1876/2008 interalia contending amongst other grounds that the Tribunal has wrongly fastened the liability on the insurance company; Section 4(2) of the Motor Vehicles Act prohibits a person from driving a transport vehicle under the age of 20 years; and as per the records, the charge sheeted driver was aged only 19 years as on the date of accident. Further it is pleaded that the driver of the vehicle had the driving licence to drive only Light Motor Vehicle (LMV), Non Transport Vehicle and admittedly the vehicle involved in the accident in question is a Transport Vehicle and as such, the fastening of liability on the insurance company by the Tribunal is not proper. 7. Further it is pleaded that the driver of the vehicle had the driving licence to drive only Light Motor Vehicle (LMV), Non Transport Vehicle and admittedly the vehicle involved in the accident in question is a Transport Vehicle and as such, the fastening of liability on the insurance company by the Tribunal is not proper. 7. Along with the memorandum of appeal, the insurer also chose to file I.A.II/2008 under Order 41 Rule 27 of the CPC, seeking permission to produce the extract of the driving licence of the driver of the vehicle - Tata Sumo. In the affidavit filed in support of the said application, amongst other contentions it is contended by the insurer that, the driver of the vehicle was charge sheeted for the offence under Section 3(1) of the Motor Vehicles Act for not possessing a driving licence, but, the insurance company though tried to obtain the extract of the driving licence on the basis of the address mentioned in the charge sheet through the Investigating Officer, in spite of the best efforts, it could not be obtained in time and transmit the same to the Counsel before passing of the impugned judgment and award and after obtaining the driving licence extract, the production of copy of the policy has become necessary to decide the issue on merits. 8. In the statement of objections filed to the said application, it is specifically pleaded amongst other pleas that the said application is not maintainable either in law or on facts and the same is liable to be dismissed in limine. Further it is pleaded that the appellant/ insurance company being the author of the insurance policy having custody of the same, ought to have produced the same before the Tribunal at the appropriate stage of the case and without doing so, now intended to produce the same before this Court, is not at all permissible under law. Further it is pleaded that the appellant/ insurance company being the author of the insurance policy having custody of the same, ought to have produced the same before the Tribunal at the appropriate stage of the case and without doing so, now intended to produce the same before this Court, is not at all permissible under law. Further it is pleaded that since the Trial Court has not refused to admit any documents as evidence as it is not produced before the Trial Court and since the existence of driving licence was well within the knowledge of the appellant/insurance company, without exercising due diligence at appropriate stage of the case, they cannot now produce in this appeal, which may cause hardship to the claimants and the documentary evidence which the insurance company intend to produce is not at all necessary and has sought dismissal of I.A. 9. The learned Counsel for the claimants contended that the above application filed by the insurance company cannot be entertained, as the reasons set forth in the affidavit filed in support of the application by itself is not satisfactory to permit them to produce such documents. Further he contended that there was no specific issue as such before the Tribunal with regard to the said issue of driving licence though there is a pleading to that effect and in the absence of such framing of issues in that regard, the claimant was not in a position to concentrate on the said fact of existence of valid licence to the driver. In that context, a reliance is placed on the unreported decision rendered in the case of National Insurance Co. Ltd. -vs- Sri C. Venkatesh and others (MFA 4197/1998 DD 28.10.1998) wherein it is observed as hereunder: Firstly the plea which has been raised here ought to have been raised before the Tribunal in the pleadings filed on behalf of the Insurance Company and it was the duty of the learned Counsel for the appellant to press that issue. If issue would have been framed, then the party, even the claimant could have produced the evidence. If issue would have been framed, then the party, even the claimant could have produced the evidence. When the learned counsel for the appellant did not raise that plea i.e., whether the driver of the truck had a valid licence on the date of accident or not, it has to be presumed that the plea has been waived by the Insurance Company and when it has been waived, it cannot be permitted to be raised at the stage of appeal. When I so observe, I find support for my view from the decision of their Lordships of the Privy Council in the case of Mudanna Virayya -vs- Mudanna Adenna and Others AIR 1930 PC 18 . In that case, their Lordships of the Privy Council observed as under:- It is true that the Limitation Act was mentioned in Adenna's written statement and in his grounds of appeal, but before the trial Judge no issue was directed to bear upon the question, nor does the point appear to have been taken at the Bar during the trial In these circumstances, their Lordships do not think the point was open on appeal. 6. In view of this principle of law, the plea is not open to be raised at this stage. As regards the application for filing the additional documents when the appellant insurance company has not been allowed to raise the plea which he had not raised before the Tribunal, he cannot be allowed to produced additional documents. Secondly, it is no right of the party to fill-up the lacuna in the pleadings and in the evidence particularly in view of the law laid down by the Supreme Court in very many cases. In this view of the matter, the above appeal or application has got no force. The appeal is hereby dismissed. I.A. II is rejected as the appeal has already been disposed of and there is no question of granting any stay. Further he contended that the insurance company had not discharged the burden of establishing that the driver had no licence so as to exonerate it from its liability at the earliest point of time, now they cannot come forward to fill up the lacuna in that case and in that regard he placed reliance on the decision rendered in Rukmani and Others Vs. New India Assurance Co. New India Assurance Co. and Others, JT (1998) 7 SC 473 wherein it is observed as hereunder: 3. We have seen the only evidence which the insurance company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, P.W.1 who was the Inspector of Police, stated in his examination-in-chief, "My enquiry revealed that the respondent No. 1 did not produced the licence to drive the abovesaid scooter. The respondent No. 1 even after my demand did not submit the licence since he was not having it. In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the respondent No. 1 was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the insurance company. It did not summon the driver of the vehicle. No record from the Regional Transport Authority has also been produced. In these circumstances, the insurance company has not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs. 10. Per contra, the learned Counsel for the insurance company contended that there was a specific plea with regard to the non existence of driving licence. Further there was also issue No. 2 framed in the case covering the said aspect. Further she submitted that as the charge sheet is got marked by the appellants as Ex.P.6, which prima facie discloses that, the driver was not having a valid driving licence to drive the vehicle, though the insurance company has not adduced any evidence in that regard, the contents of the same ought to have been accepted. Further she submitted that, when the charge sheet discloses the non-existence of valid driving licence, the burden shifts and as such, the insurance company cannot be saddled with such lacuna. 11. On perusal of the records, it is seen that the cases are of the year 2005 and are disposed of in the month of July, 2007. Further she submitted that, when the charge sheet discloses the non-existence of valid driving licence, the burden shifts and as such, the insurance company cannot be saddled with such lacuna. 11. On perusal of the records, it is seen that the cases are of the year 2005 and are disposed of in the month of July, 2007. In the circumstances, the reason given by the insurance company that by the time they could obtain a copy of the extract of the driving licence and produce the same before the Court, the case was disposed of, is not acceptable. Similarly, it is seen that the copy of the extract of the driving licence is obtained as far back in the year 2006 as per the challan bearing No. 245/2006 i.e., very much earlier to disposal on 30.7.2007. In the circumstances, the reasons given by the insurance company is not sufficient to take the documents on record. 12. The learned Counsel for the insurer has also relied upon the decision rendered in the case of New India Assurance Co. Ltd. rep. by the Senior Divisional Manager Vs. Smt. Shanthar W/o N.P. Muddalingaiah and Others, (2009) ACJ 908 wherein it is held as hereunder: Motor Vehicles Act, 1988, Section 173 and Civil Procedure Code, 1908, Order 41, Rule 27(1)(b) - Appeal - Additional evidence in appeal - Appellate court in order to enable it to pronounce judgment and for substantial case suo motu directed the insurance company to produce policy covering the offending vehicle - Insurance company produced the same - No dispute about authenticity and custody of policy - whether the policy can be received on record and considered in deciding the appeal - Held: yes 13. Thus in the light of the said decision and also in view of the provisions of Order 41 Rule 27(1)(b) of the Code of Civil Procedure, 1908, it is clear that, if the Appellate Court requires any additional evidence or document to be produced or any witness to be examined, to enable it to pronounce the judgment or for any other substantial cause, the Appellate Court may allow the additional evidence or document to be produced or any witness to be examined and there is no impediment to accept the documents so filed by the insurer for proper adjudication of the lis. Besides, it is seen that the authenticity of the documents sought to be produced cannot be assailed as the same is in the nature of public documents and even otherwise the policy of insurance is an admitted document. 14. In the foregoing circumstances, only because there is delay in producing the documents and the insurance company has not availed the opportunity before the Tribunal, it cannot be precluded from putting forth its case at this belated stage. However, to meet the ends of justice, I.A. for permission to produce the additional evidence under Order 41 Rule 27 of CPC has to be allowed on payment of costs of Rs. 5,000/- in each of the appeals i.e., MFA Nos. 1875/2008 and 1876/2008 to the respective claimant. 15. Further as all the 4 appeals are preferred against the common impugned judgment and award passed in pursuance of the common evidence let in, the insurer has chosen to file only one application for permission to produce additional evidence only in one of the appeals (i.e., MFA NO. 1875/2008) and has not chosen to file the same in all the appeals and hence, the additional documents sought to be filed in one of the appeal will hold good with regard to rest of the appeals also. 16. Though all the four appeals are preferred questioning the validity of the common impugned judgment and award so rendered as discussed supra, as the entire issue clinches on the documents, which are now filed by the insurer, which is a question of fact, the validity or genuineness can be adjudicated by the Tribunal only on appreciation of the additional evidence to be adduced by giving opportunities to all the parties including the aggrieved parties, the matter has to be remanded to the Tribunal for the limited purpose of deciding the validity or otherwise of the driving licence so produced by the insurer. 17. At this juncture, the learned Counsel for the claimant submits that atleast the appeals with regard to the enhancement of the compensation amount awarded by the Tribunal may be considered. In the circumstances, giving liberty to the Tribunal to consider the question of enhancement or otherwise of the amount so awarded, the matter is remanded to the Tribunal and hence the following: ORDER I.A.2/2008 filed in MFA 1875/2008 for production of additional documents is hereby allowed, on payment of costs of Rs. In the circumstances, giving liberty to the Tribunal to consider the question of enhancement or otherwise of the amount so awarded, the matter is remanded to the Tribunal and hence the following: ORDER I.A.2/2008 filed in MFA 1875/2008 for production of additional documents is hereby allowed, on payment of costs of Rs. 5000/- in each of the appeals i.e., MFA 1875 and 1876/2008 filed by the insurance company, which shall be paid to the claimants, consequent of which, the matter is remanded to the jurisdictional Tribunal to consider the validity of the documents filed by the appellant/insurance company along with the said I.A.2/2008 by providing opportunity to both parties to adduce their respective further evidence in that regard. Further if the parties chose to adduce further evidence with regard to other aspects involved in the case including the question of awarding of compensation, the Tribunal may permit them to do so. However, the Tribunal is directed to take this case on day to day basis and dispose of the same within 3 months from the date of receipt of records along with copy of this order. The amount in deposit before this Court shall be transmitted to the Tribunal and the claimants are at liberty to withdraw the costs of Rs. 5000/- in each of the appeals i.e., MFA Nos. 1875 and 1876/2008 from the amount deposited by the insurance company as ordered by this Court while allowing I.A.2/2008. Office is directed to send the documents filed along with I.A.2/2008 to the Tribunal while transmitting the records forthwith. As the parties are duly represented by their respective Counsel, they are directed to appear before the Tribunal on 29.6.2013 and no fresh notice of posting need be issued to them. Accordingly, the appeals are disposed of.