Prayer :

Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the judgment and decree made in M.C.O.P.No.114 of 2018, dated 03.02.2021 on the file of the Motor Accident Claims Tribunal/Additional District (FTC)(FAC), Theni.

For Appellant : Mr.K.R.Shivashankari

For Respondents : Mr.V.P.Rajan for R1 & R2 Mr.C.Jawahar Ravindran for R6

No appearance for R3 to R5

JUDGMENT

(By G.R.Swaminathan, J.)

The insurance company is the appellant before us. One Gopal was riding a two wheeler during the midnight on 10.05.2018 in Veerapandi-Vayalpatty road. The two wheeler met with a head-on collision with the van bearing registration number TN 01 AL 4356. The van was insured by the appellant company. Gopal died on the spot. Rajeshwari, the pillion rider also suffered injuries. In this connection, Crime No.201 of 2018 was registered on the file of Veerapandi Police Station for the offences under Sections 279, 337 and 304(A) IPC. The parents of the deceased filed M.C.O.P.No.114 of 2018 claiming compensation to the tune of Rs.30,00,000/-.

2.The insurance company filed counter opposing the claim. The first claimant examined himself as P.W.1. One Velmurugan, an eyewitness to the occurrence, was examined as P.W.2 and Exs.P1 to P16 were marked. On the side of the insurance company, an official from RTO Office was examined as R.W.1. The MV reports were marked as court documents. After considering the evidence on record, the Court below awarded compensation to the tune of Rs.25,54,000/- with interest vide award dated 03.02.2021. Questioning the same, this civil misappropriated appeal has been filed.

3.C.M.P.(MD)No.1731 of 2022 came to be filed along with this appeal under Order XLI Rule 27 of Civil Procedure Code for receiving the rough sketch as additional evidence.

4.The learned counsel appearing for the insurance company strongly contended that the deceased was equally at fault and therefore, some deduction ought to have been made towards contributory negligence.

5.Per contra, the learned counsel for the claimants contended that a reasonable award has been passed and that it does not call for interference. He pointed out that the insurance company failed to examine the driver of the offending vehicle. He added that the document now sought to be received as additional evidence was very much available when the trial took place and that therefore, the insurance company ought not to be allowed to fill up the lacuna. He pressed for dismissal of the appeal.

6.We carefully considered the rival contentions and went through the evidence on record. We will take up the application for reception of additional evidence for consideration. We will adopt the approach set out in Wadi v. Amilal ((2015) 1 SCC 677). The Hon'ble Supreme Court had held therein as follows:-

“4. ….. On the question of admission of that document by the appellate court, it would be necessary to notice the relevant provision of Order 41 Rule 27 of the Code of Civil Procedure:

“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)-(aa) ***

(b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined.”

5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses (a), (aa) and (b). We are concerned here with clause (b) which is an enabling provision. It says that if the appellate