NATIONAL INSURANCE CO LTD Vs. PUSHPA

JUDGEMENT

(1.) By this appeal, the appellant has assailed order dated 19th January, 2010 whereby the learned Tribunal awarded a compensation of Rs.13,56,000/- to the dependents of the deceased in a petition under Section 166/140 of Motor Vehicles Act.

(2.) The award has been assailed on the ground that the Tribunal erred in taking future prospects of the deceased and the Tribunal failed to appreciate that it was a case of composite negligence and the liability of the insurance company, therefore should have been 50 per cent of the award. Along with appeal, an application under Order 41 Rule 27 CPC, being C.M. Appl. No.7289 of 2010 is made to permit the insurance company to place on record additional evidence to show that the deceased was member of ESIC and had received claim from ESIC.

(3.) The appellant had sufficient opportunity before the Tribunal to lead evidence. What made the appellant not to lead evidence in respect of deceased being member of ESIC before the Tribunal? Perusal of award shows that this stand was not even taken before the Tribunal. Under Order 41 Rule 27 CPC, the appeal court can permit additional evidence to be adduced only where despite due diligence, the appellant could not come to know of the evidence, which came to its knowledge later on, and that the appellant had made all efforts to produce evidence. It is not the case of the appellant. I, therefore, consider that this application under Order 41 Rule 27 was not maintainable and is dismissed as such.