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Rajasthan High Court · body

2017 DIGILAW 1571 (RAJ)

Oswal Cargo Movers (M/s. ) v. Bhera Ram

2017-07-14

ARUN BHANSALI

body2017
JUDGMENT : ARUN BHANSALI, J. This appeal by owner of the vehicle is directed against the judgment and award dated 7.8.2001, passed by the Motor Accident Claims Tribunal, Bikaner (‘the Tribunal’), whereby, the Tribunal has awarded a sum of Rs. 48,600/- alongwith interest @ 9% per annum from the date of application i.e. 10.12.1998 to the claimant, the driver and the owner of the vehicle have been held jointly and severally liable and the application against the respondent-Insurance Company, has been rejected. 2. The application for compensation was filed by Bhaira Ram for the injuries suffered by him on account of an accident, which took place on 8.5.1998, between the truck RJ-07-G-1901 and scooter, on which the injured was a pillion rider. 3. It was alleged that the accident occurred on account of rash and negligent driving by driver of the truck, which resulted in the accident and compensation to the tune of Rs. 4,14,000/- was claimed. 4. Reply to the application was filed by the Insurance Company, inter alia, indicating that the amount of compensation claimed was imaginary, the accident did not occurred on account of the negligence on part of the driver of the truck and that the driver was not in possession of valid driving licence regarding which, the insured was aware and on account of violation of policy conditions, the Insurance Company was not liable. 5. The driver and owner of the vehicle also filed replies and disputed that the accident occurred on account of negligence of driver of the truck. It was also claimed that the liability for payment of compensation, if any, was that of the Insurance Company. 6. Based on the averments of the parties, the Tribunal framed four issues. 7. Bhera Ram, the claimant was examined as AW/1 and on behalf of the Insurance Company one Subhashchandra Sharma was examined. 8. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the truck, in which, the claimant suffered grievous injuries. 9. While deciding the issue of liability of the Insurance Company, it was found that vide cover note-Ex. 14 and policy-Ex. NA-1, the vehicle in question was a heavy vehicle and as per the conditions of the policy, the driver of the said vehicle was required to possess driving licence to driver ‘heavy motor vehicle’. 10. 9. While deciding the issue of liability of the Insurance Company, it was found that vide cover note-Ex. 14 and policy-Ex. NA-1, the vehicle in question was a heavy vehicle and as per the conditions of the policy, the driver of the said vehicle was required to possess driving licence to driver ‘heavy motor vehicle’. 10. The Tribunal after looking at the driving licence (Ex. 13), came to the conclusion that the driver was authorized to drive ‘light motor vehicle’ and on that count the condition of the policy was violated and held that the Insurance company was not liable. 11. Thereafter, while assessing the amount of compensation, it was directed that a sum of Rs. 48,600/- be paid to the claimant and Insurance Company was exonerated. 12. It is submitted by learned counsel for the appellant that with the memo of appeal the appellant has produced a certified copy of the licence of the driver. Based on which, it was submitted that before the Tribunal, when the licence (Ex. 13) was exhibited only seven pages of the licence were there, whereas the licence in fact contains nine pages and on page nine of the licence, the driver has been authorized to drive ‘heavy motor vehicle’ for the period 19.11.1997 to 18.11.2000 and as the accident had occurred on 8.5.1998, the driver in fact was in possession of a valid driving licence and, therefore, the exoneration of the Insurance Company was not justified. Subsequently, an application under Order XLI Rule 27 CPC has also been filed. 13. It was submitted that subsequently, the appellant has also obtained a verification report from the DTO-cum-Licensing Authority, Jodhpur, pertaining to the driving licence of the driver of the vehicle, wherein, the said facts are further fortified about the driver being in possession of a driving licence to drive ‘heavy motor vehicle’ on the day of accident. 14. Based on the said submissions, it was submitted that the application filed under Order XLI Rule 27 CPC deserves to be accepted and that the order passed by the Tribunal deserves to be set aside to the extent that the Insurance Company has been exonerated. 15. Reliance was placed on judgment of Hon'ble Supreme Court in Jayaramdas and Sons. 14. Based on the said submissions, it was submitted that the application filed under Order XLI Rule 27 CPC deserves to be accepted and that the order passed by the Tribunal deserves to be set aside to the extent that the Insurance Company has been exonerated. 15. Reliance was placed on judgment of Hon'ble Supreme Court in Jayaramdas and Sons. Appellants v. Mirza Rafatullah baig: (2004) 10 SCC 507 : AIR 2004 SC 3685 and this Court in Dariya Singh v. Darshan Singh : 2008 R.A.R. 132 (Raj.) and Saroj v. A Palni Swami: 2009 (2) DNJ (Raj.) 1020. 16. Learned counsel appearing for the respondent — Insurance Company submitted that though on verification of the copy of the licence produced by the appellant as well as the verification report, it is not in dispute that the driver was in possession of a valid driving licence on the date of accident, it is contended that the appellant has failed to make out any case for grant of application under Order XLI Rule 27 CPC and, therefore, the application deserves to be rejected and on rejection of application, once the additional evidence sought to be produced by the appellant is not taken into consideration, no case for interference is made out. 17. Submissions were made that the application is highly belated and no reasons have been indicated for delay in filing the application and, therefore also, the application deserves to be rejected. 18. Reliance was placed on judgment of this Court in National Insurance Co. v. Mansa Ram: 2002 (2) WLC (Raj.) 161. 19. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 20. A bare look at the copy of the licence of the driver, which was produced as Ex. 18. Reliance was placed on judgment of this Court in National Insurance Co. v. Mansa Ram: 2002 (2) WLC (Raj.) 161. 19. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 20. A bare look at the copy of the licence of the driver, which was produced as Ex. 13 by the claimant before the Tribunal reveals that the said copy though was issued by the Court of District & Sessions Judge, Bikaner, apparently from the record of the criminal case, the same contained only seven pages, however, the copy, which is now produced by the appellant, which also has been issued from the Court of District & Sessions Judge, Bikaner from the same case, the document in question contained nine pages and on page nine of the said driving licence, there is an endorsement about the driver of the vehicle being authorized to drive ‘heavy transport vehicle’ for the period 19.11.1997 to 18.11.2000. 21. Apparently, the said error in filing of the document and accepting an incomplete document by the claimant occurred on account of issuance of an incomplete copy by the Court resulting in the Tribunal coming to the conclusion that the driver was not in possession of a valid driving licence to drive ‘heavy motor vehicle’. 22. So far as the delay in filing the application under Order XLI Rule 27 CPC as well as the maintainability of such an application for producing the document, which was already in know/possession of the party is concerned, as already noticed hereinbefore, it is apparent that once a certified copy issued by the Court was produced before the Tribunal, apparently there was no reason for the appellant to doubt the veracity of the said document/driving licence. However, when this fact about the copy being incomplete came to the notice and a copy thereof was obtained by the appellant, the said facts came to the notice and though the document was filed alongwith the appeal itself, to bring the process of complete the requirement of law, the application under Order XLI Rule CPC has been filed belatedly at the directions of a Co-ordinate Bench of this Court. 23. 23. In view thereof, apparently it cannot be said that either the appellant was negligent in filing the document and/or that there was any malafides involved in filing the said application, Hon'ble Supreme Court in case of Jayaramdas (supra) has laid down as under:— “8. It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties. 9. As already pointed out both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the certified copies were at variance with the originals or were not complete copies that they thought of securing another set of certified copies and then seeking leave of the Court for producing the certified copies obtained by them as an additional evidence in Appellate Court. The case of the appellants for production of additional evidence falls within clause (aa) of sub-rule (1), abovesaid. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the First Appellate Court could also have had the provisions of clause (aa) of sub-rule (1) in its mind for dealing with the appellants' application. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the First Appellate Court could also have had the provisions of clause (aa) of sub-rule (1) in its mind for dealing with the appellants' application. However, still we feel that the ends of justice demand the additional evidence being allowed to be produced de hors the deficiency in the application filed by the appellants.” In the said case, Hon'ble Supreme Court has laid down that where certified copies of public documents already on record were at variance with the originals or were not complete copies thereof, appellants securing another set of certified copies of the said documents and seeking to produce those copies as additional evidence when said fact came to their knowledge, their case falls under the provisions of Order XLI Rule 27(1)(aa) CPC. The said judgment applies on all force to the facts of the present case. 24. Similarly in the case of Dariya Singh (supra) this Court on coming to the conclusion that genuineness of document sought to be produced under Order XLI Rule 27 CPC, which was a registration certificate of the vehicle, which was not produced before the Tribunal, the document could be taken on record. 25. In the case of Saroj (supra) also where the driving licence was not even produced before the Tribunal and the same was sought to be produced under the provisions of Order XLI Rule 27 CPC before the Appellate Court, the application was allowed. 26. So far as the judgment in the case of Mansa Ram (supra) cited by the respondent is concerned, the facts of the said case were different, wherein, it was not a case of filing of an incorrect copy of the document, inasmuch as, the Insurance Company only relied on the fact that the driver was not in possession of a valid driving licence before the Tribunal, however, in appeal by way of application under Order XLI Rule 27 CPC, the Insurance Company wanted to place on record the licence and to contend that though the driver was in possession of a driving licence to drive ‘light motor vehicle’ he was not entitled to drive ‘heavy motor vehicle’. In those circumstances the Court laid down that such an exercise was not permissible. 27. In those circumstances the Court laid down that such an exercise was not permissible. 27. As already observed hereinbefore, the facts of the said has no application to the facts of the present case. 28. Further as already noticed hereinbefore, the respondent — Insurance Company has specifically submitted that the driving licence which is sought to be produced now by the appellant its veracity is not in dispute. 29. In view of overall facts and circumstances of the case, the application filed by the appellant under Order XLI Rule 27 CPC deserves to be and is, therefore, allowed. The certified copy of the driving licence of the driver is taken on record. 30. As already noticed hereinbefore, the driving licence clearly authorizes the driver of the offending vehicle — Ashu Singh to drive ‘heavy transport vehicle’, as on the date of accident and in view thereof, the finding record by the Tribunal based on the incomplete copy of document (Ex. 13) regarding violation of policy conditions on issue No. 3, cannot be sustained, the same is, therefore, set aside and it is held that the Insurance Company would be jointly and severally liable alongwith the appellant as well as the driver of the vehicle. 31. It is submitted by learned counsel for the appellant that the appellant has made payment of amount of compensation as awarded by the Tribunal to the claimant. 32. In view of the above discussion, the appeal is allowed. The judgment and award dated 7.8.2001 passed by the Tribunal is modified to the extent that alongwith the appellant and the driver — Ashu Singh, the respondent — Insurance company would also be jointly and severally liable. 33. As the amount of compensation has already been paid by the appellant to the claimant, the appellant would be entitled to reimbursement of the said amount alongwith interest @ 8% per annum from the date, the amount was paid by the appellant to the claimant, from respondent No. 2 - Insurance Company. Appeal allowed.