NATIONAL INSURANCE CO LTD Vs. SHANTABAI

JUDGEMENT

(1.) THE three claims that are the subject matter of these appeals relate to an incident that occurred on 1. 10. 1986 at 2. 30 A. M. when a truck No. CAA 330 which was carrying stones capsized. Of the three coolies who were travelling in the vehicle, 2 died and 1 was injured giving raise to three claims being filed before the M. A. C. T. , Gulbarga. The case of the claimants was that respondent 1 who was the son of respondent 2 (owner of the truck) was driving the vehicle and that because of his rashness and negligence the accident occurred. It was also contended that respondent No. 3 namely National Insurance Co. was liable because the vehicle was insured by respondent No. 3. The respondents 1 and 2 filed a written statement in which they contended that respondent 1 was not driving the vehicle and that one Murugesh was in fact driving it. It is relevant to point out that respondents 1 and 2 though represented by a lawyer did not participate in the proceedings in so far as neither of them gave any evidence. I have recounted these details because they are of some consequences. As far as Respondent 3 is concerned, the usual plea was taken that the vehicle was not insured by the Company. The learned Counsel who represents the insurance Co. informs me that the reason for this was because no particulars of the policy were set out as a result of which it was extremely difficult for the Company to even trace out the policy in question. More importantly, the respondent 3 took up the defence that it was not liable because Respondent 1 did not possess the requisite driving licence. What is most important is that a notice was served on Respondents 1 and 2 calling upon them to produce the insurance policy and more particularly the driving licence of respondent 1 but they did not comply with either of the requirements. The Tribunal however after hearing the parties quantified the amounts of compensation payable at Rs. 90,100/-, Rs. 27,000/- and Rs. 5600/- respectively with interest at 12% per annum and costs. The Insurance Co, i. e. original respondent No. 3 has challenged the correctness of this award through the present set of appeals.

(2.) I do not propose to go into the question of quantification because that has not been really in dispute in so far as the Insurance Co. totally denies its liability on the ground that the driver of the vehicle did not possess a valid driving licence at the time of the accident. The alternate plea canvassed is that assuming that this defence fails, that the liability of the Insurance Co. is limited to that under the Workmen's Compensation Act in so far as the three persons were only employees and, they were not covered under the terms of the policy.

(3.) IT is necessary for me to dispose of the I. A. for additional evidence which has been filed by the appellant Insurance Co. It has been contended that it was not possible for the Insurance company to trace out the policy documents while the proceeding was pending before the trial court and that the production of this document is vital in so far as it goes to the very genesis or root of the liability, that is cast on the Insurance Company and that therefore this Court should permit the appellant to rely on this document in the form of additional evidence. The I. A. in question has been opposed by the respondents on the ground that it is not permissible to add to the record within the framework of the law and that therefore, I. A. IV should be rejected, Mr. Ramesh, learned Counsel who represents the appellants has drawn my attention to a decision of the Division Bench of this Court reported in 1990 ACJ 736 wherein, under more or less identical circumstances the Court permitted the Insurance Company to produce a copy of the policy document as additional evidence. On a strict construction of the law, the Insurance Company would have been precluded from being permitted to produce the additional evidence before this court particularly because the law is very clear to the effect that if the document could not have been produced despite due deligence or circumstances that prevented the appellant from producing it or if the evidence was something that has emerged at a later point of time, then alone it would be permissible to admit additional evidence. In this case, the registration number of the vehicle was known to the Insurance Company, the Branch of the Insurance Company which had issued the policy namely the Shimoga Branch had been named by the applicant and merely because the policy number was not set out, the Insurance Company could easily have traced out the policy. I do not believe that the Shimoga Branch is' so large or so over burdened that the policy could not have been traced out. The fact of the matter is that the case had been conducted on behalf of the Insurance Company in an extremely cavalier manner before the tribunal and it is very clear to me that the lawyer who conducted the case did not take the trouble to direct his clients to produce the policy. This may not completely exonerate the company's Officers but the fact of the matter is that it is very clear to me from the manner in which the case was conducted that it has gone by default. If this is to be the position, one would have to apply the old maxim that a client cannot suffer for the default of his lawyer and to this extent therefore, I would have to make a concession in favour of the Insurance Company. The company did call upon the insured to produce a copy of the policy which was not done and it is contended that only at a later point of time was the Company able to trace out a copy. This is virtually a border line case and considering the fact that something does turn on the document, I cannot shut out the reception in evidence with regard to the Insurance policy. The I. A. is accordingly allowed but I do propose to penalise the Insurance Company for this lapse because an example will have be to made with regard to the manner in which these cases are conducted and it is therefore directed that costs quantified at Rs. 1000/- will have to be paid by the appellants in each of these appeals to the claimants.