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2023 DIGILAW 328 (KAR)

New India Assurance Co. Ltd. v. Mabubi

2023-02-24

C M JOSHI

body2023
JUDGMENT : C M Joshi, J. These appeals are directed against the common judgment and award in MVC Nos.26/2011, 27/2011 and 28/2011 dated 15.03.2013 passed by the learned Senior Civil Judge and M.A.C.T., Badami (for short "the Tribunal"). The insurer i.e. respondent No.3 before the Tribunal is before this Court as appellant. 2. The parties are referred to as per their ranks before the learned Tribunal for the sake of convenience. 3. The petitioners in MVC Nos. 26/2011, 27/2011 and 28/2011 filed their claim petitions seeking compensation in respect of death of deceased-Davalsab and injuries suffered by the petitioners in a road traffic accident dated 20.06.2010. It was contended that while deceased-Davalsab and the petitioners were traveling in an auto-rickshaw bearing No.KA- 29/6697 owned by respondent No.1 and 2 and insured by respondent No.3-insurance company, the driver of the said auto-rickshaw drove it in a rash and negligent manner and suddenly swerved to the left side of the road and lost control and as such, the vehicle capsized into a pit by the side of the road. As a result, deceased-Davalsab sustained grievous injuries and later succumbed to the injuries in the Government Hospital at Lokapur. His legal heirs are none else than the petitioners in MVC No.27/2011 and 28/2011 who also suffered injuries in the said accident. In all these petitions, on issuance of notice, the insurance company appeared before the Tribunal and raised a defence that the driver of the auto-rickshaw was not having a valid driving licence and he was not holding PSV badge and therefore, the charge-sheet filed by the police reflected that an offence punishable under Section 3 read with 187 of the Motor Vehicles Act was also invoked against him. Therefore there was violation of the conditions of the policy and the driver was not having a valid driving licence to drive the auto-rickshaw and therefore, the liability as against the insurance company has to be absolved. Apart from that it was also contended that the compensation claimed was highly exorbitant and untenable. 4. On the basis of the contentions raised, necessary issues were framed by the Tribunal and evidence was recorded. The owner and insured of the vehicle did not turn up before the Tribunal and as such, they were placed ex-parte. All the three cases were clubbed together and common evidence was led before the Tribunal. 4. On the basis of the contentions raised, necessary issues were framed by the Tribunal and evidence was recorded. The owner and insured of the vehicle did not turn up before the Tribunal and as such, they were placed ex-parte. All the three cases were clubbed together and common evidence was led before the Tribunal. The petitioners examined themselves as PW1 to 3 and Ex.P1 to 8 were marked. After hearing the learned counsels appearing for the parties, the Tribunal proceeded to award compensation of Rs. 1,30,000/- in MVC No.26/2011 and Rs.6,500/- each in MVC Nos.27/2011 and 28/2011. Aggrieved by the same, the insurance company has approached this Court in appeals. 5. The insurance company contends that it had denied the insurance coverage in its written statement and it was yet to produce the copy of the insurance policy and it had appointed an investigator by name Chandrashekhar Lalasangi and he gave a report to the insurance company on 20.03.2013 which was received by the insurance company on 01.04.2013 along with extract of the driving licence of the driver of the auto-rickshaw. However, prior to appellant-insurance company could produce the said extract of the Driving Licence and a copy of the policy before the Tribunal, without affording a reasonable opportunity to the insurance company, the Tribunal went ahead with the matter and passed the impugned judgment and award. Inter-alia it is also contended that the auto-rickshaw, though was having a seating capacity of 1+3, there were seven passengers in the said auto-rickshaw and therefore, the conditions of the insurance policy were also violated. 6. Along with the appeals, the appellant has also filed an application in I.A.No.2/2013 under Order XLI Rule 27 of the Code of Civil Procedure, 1908 contending that he had raised defence that the driver of the auto-rickshaw was not having a valid driving licence and he was not having PSV badge and therefore, the documents sought to be produced by the appellant is of vital importance, which would go to the root of the case. It was contended that the appellant has been unjustifiably rejected of opportunity in producing the documents and adducing the evidence and therefore, the documents sought to be produced by him may be allowed. It was contended that the appellant has been unjustifiably rejected of opportunity in producing the documents and adducing the evidence and therefore, the documents sought to be produced by him may be allowed. It is stated in the affidavit that the documents sought to be produced were not in the hands of the insurance company at the time when the evidence was led before the Tribunal and therefore, the application seeking producing of additional documents as evidence be allowed. 7. When the notice of these appeals were issued to the respondents, who were the petitioners before the Tribunal, they did not appear despite of service of notices. As such objections are not filed to the IA. 8. I have heard the arguments by the leaned counsel appearing for the appellant-insurance company. 9. It is relevant to note that the charge-sheet which has been filed before the Tribunal marked at Ex.P4 unequivocally mentions that the driver of the auto-rickshaw i.e. Abdulsab Muktumsab Bawakhan was not having a valid driving licence. Therefore, he was charge-sheeted for the offence punishable under section 3 read with Section 181 of the Motor Vehicles Act. Despite there was such a mentioning in the charge sheet and it was brought to the notice of the Tribunal, it came to the conclusion that the respondent-Insurance Company has not led any evidence to show that the driver was not having a valid driving licence and therefore, it proceeded to fasten the liability on the insurance company. The order sheet of the Tribunal discloses that the matter was slated for respondent's evidence on 25.02.2013 and then it was posted to 06.03.2013. The evidence of the respondent was taken as closed on 06.03.2013 and it was posted for arguments by 11.03.2013 and heard the arguments on 12.03.2013 and proceeded to pronounce the judgment on 15.03.2013. Thus, it is evident that a reasonable opportunity has been denied to the appellant-insurance company by the Tribunal and it is obvious that the document sought to be produced was received by the insurance company on 01.04.2013. 10. In view of the above facts that may be found from the Tribunal records, it is evident that the documents sought to be produced by the insurance company were in support of the averments made in the charge sheet. It is not that the insurance company had not raised its defence that there was no driving licence. 10. In view of the above facts that may be found from the Tribunal records, it is evident that the documents sought to be produced by the insurance company were in support of the averments made in the charge sheet. It is not that the insurance company had not raised its defence that there was no driving licence. Therefore, when the documents sought to be produced is vital piece of evidence and when it is demonstrated before this Court that the insurance company could not produce the documents at the relevant point of time and it was out of its reach, the reasons assigned by the appellant-insurance company are convincing. The documents sought to be produced are of vital importance and therefore, they are essential for the just decision in the matter. 11. The fact that the reasonable opportunity was not given to the insurance company is also demonstrated by the learned counsel for the appellant by referring to the order sheet of the Tribunal. Under these circumstances, this Court comes to the conclusion that the I.A.No.2/2023 filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 deserves to be allowed, the additional evidence has to be taken on record and in the light of such additional evidence, a proper decision has to be rendered. 12. In the light of the discussions made supra, I.A.No.2/2023 filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 is liable to be allowed and the matter has to be remanded back to the Tribunal to consider the documents sought to be produced by the insurance company. Hence, I deem it proper to allow the appeal by setting aside the impugned common judgment and award passed by the Tribunal in MVC No.26/2011, 27/2011 and 28/2011 and the matter be remanded back to the Tribunal along with additional documents sought to be produced by the appellant-insurance company to the Tribunal for fresh consideration on merits, by giving opportunities to both sides. Hence, the following: ORDER All the appeals are allowed. The impugned common judgment and award dated 15.03.2013 in MVC Nos.26/2011 to 28/2011 passed by the Senior Civil Judge and M.A.C.T., Badami is hereby set aside and the matters are remanded back to the Tribunal for fresh consideration by affording opportunity to the Insurance Company and to the petitioners to adduce further evidence in the matter. The impugned common judgment and award dated 15.03.2013 in MVC Nos.26/2011 to 28/2011 passed by the Senior Civil Judge and M.A.C.T., Badami is hereby set aside and the matters are remanded back to the Tribunal for fresh consideration by affording opportunity to the Insurance Company and to the petitioners to adduce further evidence in the matter. Since the matter is old, the Tribunal is expected to dispose of the matter within three months from the date of receipt of records. The parties are directed to appear before the Tribunal on 04.04.2023 without waiting for any fresh notices. The Tribunal is at liberty to issue notice on the learned counsel for the petitioners before it. The Registry is directed to send back the entire records, forthwith, along with documents accompanying I.A.No.2/2023 by keeping copies of the said documents in these files.