VIMAL KALRA Vs. MADAN LAL

JUDGEMENT

(1.) IN this appeal, the appellant has filed four petitions.

(2.) RESPONDENT No. 2 has vehemently opposed this petition. Under Order 41 Rule 27(1) (99) C.P.C, the appellant is required to plead that notwithstanding the exercise of due diligence this 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 the aforesaid petition, no such averment is made by the petitioner. At this stage the appellant cannot be allowed to tender these documents in evidence when in the trial Court, after submitting the written statement, he remained absent and failed to produce these documents though they were in his possession. Hence the petition is dismissed.

(3.) APPELLANT 's learned counsel relied on The Oriental Insurance Co. Ltd. v. Smt. Paro wherein it is held that it is the duty of the Insurance Company to prove breach of the conditions. If Insurance Company fails to produce the driving licence of the driver of the offending vehicle, it cannot be exonerated from that liability. By this Division Bench Judgment of this Court, the decision in New India Assurance Co. Ltd. v. Surinder Paul is overruled. The trial Court has relied on Surinder Paul's judgment, but the appellant failed to produce the registration certificate which was in his possession, and thus there was no evidence before the Claims Tribunal to arrive at a conclusion that the aforesaid Maruti Car was insured with respondent No. 2 Even if it is to be held that it was the duty of the Insurance Company to get the driving licence produced by respondent No. 3 or to adduce its secondary evidence, even then in the absence of the registration certificate of the said Maruti car the Insurance Company could not have been liable for the payment of the compensation awarded to respondent No. l.