1995 Supreme(MP) 1170

IN THE HIGH COURT OF MADHYA PRADESH
Shacheendra Dwivedi, J.
National Insurance Co. Ltd. - Petitioner
Vs.
Shankar Singh - Respondent
MA No. 185 of 1993 (G)
Decided On : 20-09-1995

Headnote:Civil Procedure Code, 1908 – O.41 R.27 and 25 – additional documentary evidence allowed in appeal – case remitted to trial Court for fresh decision after considering such additional and other evidence.

        Short Note

       The Insurance Company has preferred this appeal against the award passed by the Tribunal constituted under M.V. Act, 1988.

       2. The learned Tribunal was moved by the claimants – respondents 1 and 2 with the allegations that Truck No. MPI 4959 owned by respondent No.3 and ensured with the appellant dashed the cycle on which respondent No.1 was carrying respondent No. 2 on Ashoknagar – Guna road. For the injuries sustained by respondents 1 and 2, the learned Tribunal allowed the compensation of Rs.70,000/ – with the interest at the rate of 15 per cent per annum.

       3. Before the Tribunal, the appellant – Insurance Company in para 10 of its reply had not objected to the offending vehicle being insured, but due to non – availability of the above insurance policy, had reserved its right of complete reply. In reply to the claim petition of para 10(A), the Insurance Company had denied the allegations of the truck being ensured with the company. The learned Tribunal on the documentary and the oral evidence tendered by both the parties, found that due to the negligence of respondent No.4, the accident had taken place and it was further found that since the truck was ensured with the appellant, the award was passed for the above stated amount of compensation against the appellant and respondents 3 and 4 making them jointly and severally liable for the payment of the amount of compensation.

       4. As against that award, the Insurance Company has preferred this appeal.

       5. The appellant in this appeal preferred an application on 22nd November 1993 under Order 41, Rule 27 of C.P.C. for taking certain documents on record as additional evidence. The documents include the cheque, which was issued by respondent No.3, the memorandum issued by State Bank of Indore informing the Company that the attached cheque could not be encashed for the reason "not arranged for". The photo copy of the bill issued by the Bank in relation to the above said cheque and a letter issued by the appellant – insurance dated 30.3.87 to the insured respondent No.3 informing him of the cancellation of insurance policy/cover note. The documents are material and necessary for the just decision of the case as the contention raised is that no insurance could be effective or presumed under the law unless the premium was paid to the Company in advance. It is contended that since the cheque issued by respondent No.3 was bounced by the Bank and no payment was made in lieu of premium to the appellant – insurance company, there was no insurance of the stated vehicle and no liability on the Insurance Company could be fastened in the circumstances. Respondents 3 and 4 filed an application under Order 41 Rule 27 that a document, i.e. the certificate issued by State Bank of Indore and a postal acknowledgement in order to show that the payment was made subsequently to the Insurance Company by the respondent.

       6. For fixing the liability on the Insurance Company at first it shall have to be held whether the offending vehicle could be deemed to be insured on the date of the accident or not. The learned tribunal in the absence of the documents, which have been filed in this appeal had concluded that the Insurance Company which issued the cover note, was under liability to pay the compensation. The offending vehicle being insured with it. The documents filed in this Court materially are of much importance for deciding the issue whether offending truck was ensured or could be deemed to be ensured with the appellant on the relevant date. The application of the appellant, therefore, deserves to be allowed. Respondents 3 and 4 have filed the application with two documents to show that the Bank draft was sent to the appellant – insurance company by the respondents and therefore, liability of the Insurance Company had continued from the date of the issuance of cover note. The application of the respondents also deserves to be allowed.

       7. Allowing the applications, the disputed question was required a fresh consideration on the evidence that may be led by the parties and the claimants would deserve an opportunity to lead the evidence for meeting the case of the respondents.

       8. The appeal, therefore, deserves to be remanded to the learned Tribunal.

       9. In the facts and circumstances, the appeal is allowed taking the documents filed by the appellant and also the respondents under Order 41, Rule 27 of C.P.C. as additional evidence and setting aside the impugned award. The matter is remitted back to the Tribunal for its fresh decision after affording proper opportunity to the parties of leading evidence. However, in the facts and circumstances, there shall be no order as to the costs.