JUDGMENT
Pareed Pillay, J.
1. Third respondent in O.P. (MV) 1706 of 1985 of the Motor Accidents Claim Tribunal, Quilon is the appellant. First respondnet (claimant) filed the petition claiming Rs. 75,000/- as compensation for the injuries sustained by him in the bus accident on 27-3-1954 near Mundu-kottackal Padi. The Tribunal on evaluation of the evidence held that the first respondent is entitled to compensation of Rs. 49,750/-with 6% interest thereon.
2. Respondents 2 and 3 did not contest the petition before the Tribunal. Appellant filed counter statement contending inter alia that its liability is only as per the statutory limit and as the first respondent has not furnished the insurance particulars Tribunal is not justified in holding the appellant liable for the entire compensation amount.
3. Admittedly the insurance policy was not produced by the appellant before the Tribunal. Attempt was made to produce the same before this Court by filing C.M.P. 26539 of 1989. Appellant’s stand is that its maximum liability is only Rs. 20,000/- as evidenced by the policy. According to the appellant, soon after tracing out the policy it was forwarded to the appellant’s advocate with a covering letter on 6-6-1986, but he failed to produce the same before the Tribunal. Highly belated production of the policy before this Court is stoutly opposed by the first respondent.
4. Under Order 41, Rule 27, C.P.C. a party can produce additional evidence whether oral or documentary in the appellate Court only if the conditions under the rule are satisfied. In a case where the party satisfies the appellate Court that the lower Court has refused to admit evidence which ought to have been admitted additional evidence can be admitted by the appellate Court. That is
not the case here. Under Order 47, Rule 27(1)(aa) it is for the party seeking to produce additional evidence to establish 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. In view of the averments in the affidavit in the C.M.P. obviously the appellant cannot invoke Rule 27(1) (aa) as admittedly the document in question was available with the appellant. The averments in the affidavit do not establish a case that notwithstanding the exercise of due diligence, the documentary evidence was not within the knowledge of the appellant or could not be produced before the Tribunal despite exercise of due diligence. Rule 27(1)(b) has no application as this is not a case where this Court (appellate Court) requires the production of the document to pronounce the judgment. As this is not a case where this Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands there exists no ground to admit additional evidence. Nor could the appellant establish any other substantial cause for the belated production of additional evidence before this Court.
5. Appellant next contended that the first respondent being the claimant ought to have taken steps to produce the policy before the Tribunal and his failure to do so is detrimental to his case. In the claim petition itself the first respondent has stated that the vehicle was insured with M/s. New India Assurance Company Ltd. (appellant). Appellant ought to have produced the insurance policy in support of its contention, especially in view of the fact that the second respondent (owner of the vehicle) remained ex parte. Appellant’s contention is that the owner of the vehicle did not give any intimation to it regarding the policy particulars or other relevant matters and so it could not ascertain details regarding the policy of the vehicle to be supplied to the Tribunal and so far his fault the Insurance Company cannot be held liable. As it is admitted by the appellant that the policy was traced out and that it showed that the vehicle was covered by valid insurance policy during
the relevant period, it ought to have produced the policy before the Tribunal.
6. In National Insurance Co. Ltd., New Delhi v. Jugal Kishore, AIR 1988 SC 719, the Supreme Court emphasised the duty of the insurance company to produce the policy before the Tribunal in unmistakable terms. Supreme Court pointed out that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof and so the duty to produce the same cannot be insisted upon. Of course it is the duty of the party who is in possession of the document to produce the same so as to facilitate the Tribunal to arrive at a proper decision. Respondents 2 and 3 remained ex parte and as it is the specific case of the Insurance Company (appellant) that its liability is limited to Rs. 20,000/- it should have endeavoured to produce the best evidence before the Tribunal in support of its contention. Failure to do so and shelving the responsibility on the claimant cannot be justified. Supreme Court in the cited decision stated (para 10 of AIR) :
“The Supreme Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case in instrumentalities of the State such as the appellant Insurance Company who are under an obligation to act fairly.”
Thus the position is made abundantly clear that in a case where the owner of the vehicle for reasons best known to him did not pro-d uce the policy or a copy thereof it is the duty of the insurance company if it wishes to substantiate its case to produce the policy. Appellant cannot sit tight-lipped taking the stand that it is for the owner of the vehicle to produce the policy before the Tribunal.
7. In a case where the owner of the vehicle remained ex parte for reasons best known to him, Insurance Company has necessarily to produce the insurance policy if it wants to
establish that its liability is limited by the terms of the policy. Appellant should not have adopted a passive role before the Tribunal on the ground that it has issued numerous policies to several vehicles and Herculean effort is necessary to trace out the policy for its production before the Tribunal. As the production of the policy would have very much benefited the appellant, such lame excuse cannot be countenanced.
8. Having not produced the policy, it is futile to contend that the burden to produce the same is with the claimant. As the claimant is not in possession of the insurance policy, he could not have produced the same before the Tribunal. In the claim petition sufficient details with regard to the insurance policy of the vehicle involved in the accident were given. When the appellant received notice in the case, it should have got alerted and taken steps to produce the copy of the policy before the Tribunal. Without doing so appellant cannot harp on niceties of onus of proof.
The Tribunal was justified in awarding the compensation making the appellant also liable for the same. We see no reason to interfere. M.F.A. is dismissed. No costs.