Point of Law: Accident claim – Compensation - Offending vehicle had insurance coverage and the Insurance Company is liable to pay the compensation

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act against the award, dated 20.01.2017 passed in MCOP No.648 of 2016 on the file of Motor Accident Claims Tribunal (Special District Court), Thanuavur.)

1. Challenge made in this appeal is to the award passed by the Motor Accident Claims Tribunal (Special District Court), Thanjavur, in MCOP No.648 of 2016, dated 20.01.2017. Along with this appeal, CMP(MD)No.10370 of 2017 has been filed to receive the additional documents.

2. The short facts of the case is that on 16.02.2016 at 07.30 pm, while the claimant was talking with one Jayaraj, after parking his two wheeler TVS Camp on the left side of the road near the house of Jayaraj at Kanikkaipuram Main Road, at that time, the Taurus Lorry TN-46-H-1543 came in a rash and negligent manner and dashed against the claimant. In that process, the claimant sustained grievous injuries and immediately, he was taken to Ariyalur Government Hospital for first aid and subsequently, he was referred to Thanjavur Medical College Hospital and thereafter, he was taking treatment in Kannan Hospital, Thanjavur, where he underwent surgery. A claim petition was filed by the claimant seeking compensation of Rs.25,00,000/- for the injuries sustained in the accident.

3. The Appellant Insurance Company filed a counter affidavit denying the allegations made in the claim petition and they also disputed the manner of accident and to pay the compensation.

4. Before the Tribunal, on the side of the claimants, 2 witnesses were examined and marked Exs.P1 to P11. On the side of the appellant Insurance Company, no witness was examined and no document was marked.

5. The Tribunal, upon consideration of oral and documentary evidence, came to the conclusion that the driver of the offending vehicle was responsible for the accident and awarded compensation of Rs.9,16,074/- with interest @ 7.5% p.a. Aggrieved by the award of the tribunal, the appellant Insurance Company is before this court with this appeal.

6. Heard both sides and perused the materials available on record.

7. On the side of the appellant Insurance Company, it is stated that on the date of the accident, the offending vehicle had no insurance coverage and they came to know the above fact only at the time of filing the appeal and hence, the petition mentioned document can be accepted.

8. It is vehemently opposed on the side of the respondents stating that this plea was taken before the tribunal and the condition contemplated under Order 41 Rule 27 CPC were not complied with and hence, the petition mentioned documents cannot be accepted.

9. The main contention of the learned counsel appearing for the appellant is that at the time of accident, the offending vehicle has no insurance coverage and hence, the Insurance Company is not liable to pay the compensation. The reasons stated for non filing of the petition mentioned documents is that they came to know the above fact only at the time of filing the appeal. The records in respects of the accident was maintained only by the Insurance Company. It is their bounden duty to verify whether the offending vehicle had insurance coverage at the time of accident. At this juncture, it is necessary to refer Order 41 Rule 27 CPC, which would run thus:-

27. Production of additional evidence in Appellate Court-(1)The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to