NATIONAL INSURANCE CO. LTD Vs. SUJATHA

JUDGEMENT

(1.) These appeals have been filed against the common award passed by the Additional Motor Accidents Claims Tribunal, Mavelikara dated 30th December 1989 The National Insurance Company Limited, the insurer of the vehicle involved in the accident is the common appellant. The accident occurred at 12.30 p.m. on 1st July 1985. The claimants were passengers carried by the bus and they suffered injuries out of the accident. Therefore they filed claim petitions seeking compensation in respect of the injuries sustained by them. After the inquiry the tribunal has fixed the quantum of compensation and the liabilities have been fastened on the appellant in all these cases.

(2.) Appeal number, claim petition number, compensation claimed and compensation awarded are tabulated hereunder:

(3.) Along with the appeals, appellant filed petitions under Order XLI, R.27 of the Code of Civil Procedure for accepting in evidence copy of the policy in respect of the vehicle involved in the accident. Copies of the petitions were served on the counsel appearing on the other side and they made their submissions. The question primarily concerned is whether the document sought to be produced through the C.M.Ps. can be accepted. Of course, counsel appearing for the respondents submitted that since the appellant has failed to produce the document before the tribunal they shall not be allowed to produce the same before this court invoking the provisions contained in Order XLI, R.27. R.27 authorises the appellate court to receive additional evidence. But sub-rule (1) of R.27 is in the form of a mandatory prohibition. In other words, the general rule is that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. Of course, this general rule has got certain exceptions. In this context, it must be recalled what is provided in sub-rule (2). It provides that whenever additional evidence is admitted to be produced by an appellate court, the court shall record the reasons for such admission. When there are sufficient reasons for accepting the additional evidence then the exception contained in sub-rule (1) shall be invoked. Clause (aa) of sub-rule (1) provides that the party seeking to produce additional evidence, establishes 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. From this provision it is manifest that when an appellant, after the exercise of due diligence could not produce the document before the tribunal at the time when the award was passed, he can apply to the appellate court under clause (aa) of sub-rule (1) of R.27. Such application shall be supported by an affidavit by the appellant. When the appellate court is satisfied from the averments contained in the affidavit and other attendant circumstance that the appellant was prevented by sufficient cause from producing such evidence before the tribunal in spite of his due diligence, it shall admit the same as additional evidence.