IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.08.2009 CORAM: THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN C.M.A.No. 1505 of 2000 United India Insurance Co. Ltd, Branch Office-III 137/D, Cheri Road, Salem-1. .. Appellant vs. 1.N.A.Narayanasamy 2.P.Murugesan 3.C.Shanmugam 4.United India Insurance Co. Ltd., Branch Office-II 67, Tiruchy Main Road, Salem-1. .. Respondents The Civil Miscellaneous Appeal against the Judgement and decree dated 12.04.1999 made in M.C.O.P No.669/1995 on the file of the Motor Accidents Claims Tribunal, (Principal Subordinate Judge) at Salem. For Appellant : Mr.N.Mala For Respondents : Mr.T.P.Manoharan for RR1-R3 ORDER
The appeal has been preferred by the Insurance Company against the award of Rs.31,950/- to the first respondent/claimants.
2. The case of the first respondent/claimant before the Tribunal was that he was driving in Bajaj M80 which was hit by Scooter belonging to the second respondent driven in a rash and negligently on 14.04.1994 and as a result of which claimant sustained grievous injury namely metatarsal bone in right leg got fracture. It resulted in permanent disability which made him not to walk, run, sit in normally and he took continuous treatment. Hence claim petition was filed and the said claim petition was resisted by appellant/Insurance Company.
3. On appreciation of pleadings and evidence available on record, the Tribunal came to the conclusion that the accident occurred because of the negligent driving of Scooter belonging to the second respondent and directed the appellant herein to pay the amount as insurer of the said vehicle. Assessing the disability caused to the claimant, the Tribunal awarded a sum of Rs.25,000/- and including other amounts a sum of Rs.31,950/- in toto. Against the said award only the present appeal has been preferred by the appellant- Insurance company.
4. Mrs.N.Mala the learned counsel for the appellant attacked the award contenting that the claimant did not prove the existence of the Insurance policy in respect of the offending vehicle and that in the absence of any evidence with regard to the Insurance policy, the Tribunal ought not to have awarded the compensation to be paid by the appellant. Secondly she submitted that the Insurance company filed C.M.P No.14277/99 to receive a copy of the proposal form and the copy of the policy as additional evidence in the above appeal Under Order 41 Rule 27 of the CPC. She submitted the accident occurred on 14.04.1994 and the policy was taken only on 29.04.1994 and contented on the date of the accident, there was no Insurance policy in respect of the offending vehicle.
5. Mr.K.P.Jotheeswaran representing Mr.T.P.Manoharan learned counsel for the respondent contented that the additional documents cannot be received in evidence and opposed the same and supported the award passed by the Tribunal.
6. As far as negligent aspect is concerned, the Tribunal relying upon PW-1 evidence and Exs.P-1 to P-4 rightly found that the accident occurred because of rash and negligence driving of the scooter. In any event the appellant Insurance company did not challenge the said finding and hence it became final and there is no necessity for this court go in to the negligent aspect.
7. Regarding the contention of the appellant that at the time of accident there was no insurance policy, this Court has to see whether such stand was taken before the Tribunal.
8. A perusal of the counter statement filed by appellant herein along with the fourth respondent-Insurance company would show that in paragraph4 of the counter, the appellant generally denied of the contention raised in the claim petition and there are general and usual denials and they cannot be called as specific denials. If the claimant gives the detail in the claim petition like crime no. details of the Insurance company, the Police Station, details regarding the vehicle, it is bounden duty of the Insurance company to search in the office and find out the correct position and file a counter statement denying the context of the claim petition before the Tribunal. However, in this case it is seen from the records no such attempt was said to have been made and only a general denial was made in the counter statement which was filed on 18.03.1996. It has been decided by this Court in United India Insurance Company Ltd Vs.R.Venkatesan and anothers reported in 2003 (1) Law weekly 31 that it is duty of the Insurance company to make a search in the office and produce necessary evidence, in case it takes a stand that on that particular date there was no policy.
Applying the said Judgement to the facts of the case, the appellant Insurance company miserably failed to do the exercise which had to be done by it.
9. Hence based on the evidence available on records, in the absence of any valid evidence from the Insurance company, the Tribunal fastened the liability on the appellant-Insurance company and the same cannot be found fault with.
10. After the appeal was filed, the CMP No.14277 of 2000 was filed under order XI Rule 27 of the C.P.C to receive the proposal form and copy of the policy as additional evidence. The learned counsel for the Appellant submitted in paragraph -3 of the affidavit, the Insurance Company had given the details stating that it again made a search in the office once again and found the vehicle was insured only subsequent to the accident. Hence she sought leave of the Court to receive those documents as additional evidence so that the issue can be adjudicated properly.
11. On the other hand, the counsel for the respondent submitted the document which was sought to be received as additional documents and the certified copies of the copies maintained by the Insurance Company in their office, as the original always with the owner. A certified copy of the copy maintained by the Insurance company would be termed as “primary evidence” as defined on in the evidence Act 1872. Admittedly, the original of the proposal form and copy of the Insurance Policy would be available with the Insurance company. Hence, the documents which are sought to be filed as additional evidence are only secondary evidence. More over, the appellant did not explain as to why the copies made from the originals could not be produced before the Court in spite of availability of the same with the Appellant. Hence there is no explanation from the appellant to lead the secondary evidence, inspite of availability of “Primary Evidence”. In a similar circumstances, the Hon’ble Supreme Court in J.Yashoda Vs Shobha Rani reported in 2007 (5) SCC 730 continued the Judgment of the such Court which concluded that no foundation can be laid by the appellant for leading secondary evidence in the shape of Photostat copy. Under these circumstances this Court rejects the petition to receive the additional evidence.
12. As far as the quantum is concerned, it is not much challenged by the appellant and hence the appeal fails and the same is dismissed continuing the award of the Tribunal. There will be no order as to costs.
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