Order 41, Rule 27 CPC cannot be used to fill in lacunae left during the proceeding before the subordinate court.

1. - Heard on application under Order 41, Rule 27 CPC.

2. The learned counsel for the appellant has contended that during the course of the proceeding before the learned Tribunal, the appellant could not produce the driving licence of the driver. Therefore, the learned Tribunal had concluded that the driver did not have a valid licence for driving the offending vehicle. Thus, it has granted the recovery rights in favour of the Insurance Company. The learned counsel pleads that a copy of the driving licence is being produced along with the application and the same should be taken on record.

3. In the case of State of Gujarat and Anr. v. Mahendra Kumar Parshottam Bhai Desai (Dead) By LRs., [(2006) 9 SCC 772] , the Hon'ble Supreme Court has clearly held that the power under Order 41, Rule 27 CPC cannot be used to permit a party to fill in the lacunae left by the party during the proceeding pending before the Subordinate Court. Furthermore, the learned counsel for the appellant has not been able to give any cogent reasons for the appellant's inability to produce the driving licence during the proceeding before the learned Tribunal. Thus, he cannot be permitted to fill in the lacunaes at the appellate stage. Therefore, this Court is not inclined to take the driving licence on record.

4. The application is, therefore, dismissed.

5. With the consent of the learned counsel for the appellant, this case is being decided at this stage.

6. Aggrieved by the award dated 26.7.2007, passed by the Motor Accident Claims Tribunal, Dausa, whereby the learned Tribunal has granted a compensation of Rs. 40,000/- to the claimant-respondent No.1, while granting the recovery rights to the Insurance Company, the owner of the offending vehicle, the appellant, has approached this Court.

7. Mr. Ritesh Jain, the learned counsel for the appellant, has vehemently contended that the reason for giving the recovery rights to the Insurance Company is that according to the learned Tribunal the driver did not have a valid driving licence for driving a tractor. Through an application under Order 41, Rule 27 CPC, the learned counsel has tried to bring the driving licence of the driver on record. According to the driving licence, the driver was permitted to drive MCY with gear, Tractor. Thus, according to the learned counsel, the driver did have a valid licence when the alleged accident took place. Hence, the learned Tribunal was not justified in drawing its conclusion that the driver did not have a valid driving licence. Therefore, the learned Tribunal is unjustified in giving the recovery rights to the Insurance Company.

8. Heard the learned counsel for the appellants and perused the impugned award.

9. Since the said driving licence was not submitted before the Tribunal, the said driving licence cannot be taken on record at the appellate stage. In the absence of the driving licence, the learned Tribunal was certainly justified in concluding that the driver did not possess a valid driving licence. Therefore, the recovery rights have rightly been given to the Insurance Company.

10. Thus, this Court does not find any infirmity or illegality in the impugned award. Hence, this appeal is devoid of any merit. It is, hereby, dismissed.Appeal Dismissed.

*******