Judgment:
Sham Sunder (Retd.), President:
1. This application for additional evidence by way of placing on record Annexure A1 to A-21, was moved by the appellant, during the pendency of appeal, stating therein that it (appeal) was remanded back by the National Consumer Disputes Redressal Commission, New Delhi vide order dated 24.2.2014. It was further stated that the National Consumer Disputes Redressal Commission, New Delhi, observed in the order dated 24.2.2014 that the State Commission did not decide the application, for taking on record these documents. It was further stated that though the documents, aforesaid, were annexed with the appeal, yet, no separate application was moved by the appellant, for placing the same on record. It was further stated that the appellant, in para No.9 of the appeal mentioned that the documents were shown to the District Forum, at the time of arguments, but it failed to appreciate the same. It was further stated that the complainant being a layman was not aware that these documents were also to be annexed alongwith the complaint. It was further stated that the complainant was appearing, in person, in the complaint, but at the last stage of arguments, he engaged a Counsel. It was further stated that the aforesaid documents are essential for the just decision appeal. Accordingly the prayer, referred to above, was made.
2. In reply to the application, filed by the respondent/Opposite Party, it was stated that the same was not maintainable in accordance with the relevant Rules. It was further stated that the application, under disposal, was filed by the appellant contrary to the spirit of the orders dated 24.2.2014, passed by the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 2925 of 2008. It was further stated that the Counsel for the appellant/complainant, had submitted before the National Consumer Disputes Redressal Commission, New Delhi, that the application for placing on record as many as 21 documents, was submitted before the State Commission, during the pendency of appeal, but the same was not decided. It was further stated that, in the application under disposal, the appellant/complainant stated that the documents were placed, on record, but no application was filed. It was further stated that, under these circumstances, such an application could not be enterained. It was further stated that even otherwise, the appellant failed to show any sufficient cause as to why these documents were not filed alongwith the complaint. It was further stated that the complaint was duly represented by an Advocate in the District Forum, and the plea taken up, in the application, that he being a layman was appearing, in person, and only at the time of arguments the Counsel was engaged, was incorrect. It was further stated that the documents A1 to A21, if admitted into additional evidence, a great prejudice shall be caused to the respondent. It was further stated that the documents could not be allowed to be produced, just with a view to fill up the lacuna, left in his case. Accordingly, a prayer for dismissal of the application was made.
3. We have heard the Counsel for the parties, and have gone through the record of the case carefully.
4. In the first instance, it may be stated here, that during the pendency of complaint, these documents were not produced by the complainant. The complaint was dismissed vide order dated 15.1.2008 by the District Forum. Aggrieved against the said order of the District Forum First Appeal No.68 of 2008, was filed, by the appellant/complainant. During the pendency of appeal the documents, referred to above, were placed, on record, without any application, for additional evidence, having been moved by the appellant. Ultimately, this Commission without passing any formal order, for admission of these documents into evidence, took the same into consideration and accepted the appeal vide order dated 23.4.2008, resulting into setting aside of the order of the District Forum.
5. Feeling aggrieved, against the order dated 23.4.2008 passed by this Commission, Revision Petition No.2925 of 2008 was filed before the National Consumer Disputes Redressal Commission, New Delhi by the National Insurance Co. Ltd. (now respondent), which was accepted vide order dated 24.2.2014, para No.7 whereof, reads as under:-
œConsequently, revision petition filed by the petitioner is allowed and impugned order dated 23.4.2008 passed by learned State Commission in Appeal No. 68 of 2008 “ Jagan Nath Vs. National Insurance Co. Ltd. is set aside and matter is remanded back to learned State Commission to first decide the application for taking additional documents on record and then decide appeal after giving an opportunity of being heard to both the parties.?
It was in pursuance of the order dated 24.2.2014 of the National Consumer Disputes Redressal Commission that the appeal was remanded back to this Commission for fresh decision.
6. No doubt, no application, for additional evidence, was filed by the appellant/complainant, during the pendency of appeal before this Commission, which was, ultimately, decided vide order dated 23.4.2008. It is evident, from para No.6 of the order dated 24.2.2014, passed by the National Consumer Disputes Redressal Commission, New Delhi, referred to above, that the Counsel for the petitioner therein i.e. the National Insurance Co. Ltd. submitted that the application for taking documents, on record, was not decided by the State Commission, and the same (documents ) were not taken on record, even though the State Commission decided appeal after considering these documents. It is further evident from para No.6 of the aforesaid order that the Counsel for the respondent/complainant, did not dispute this factual aspect. Such statements made before the National Consumer Disputes Redressal Commission by the Cousnel for the parties were factually incorrect.
7. Under these circumstances, it is to be determined as to whether, the appellant could be allowed to file the instant application for additional evidence or not. It may be stated here, that this Commission is to see the import of the order, passed by the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 2925 of 2014. Whether the statements were made before the National Consumer Disputes Redressal Commission, under some misconception or not, is not the question, which requires determination, in this case, at this stage. Once the import of the order passed by the National Consumer Disputes Redressal Commission, New Delhi, in the revision petition, referred to above, is seen, only one and one conclusion that can be arrived at is that the application for additional evidence could be filed and it should be decided in the first instance. Under these circumstances, we are of the considered opinion, that the application for additional evidence now filed by the appellant/complainant being maintainable, is required to be decided.
8. As many as 21 documents Annexures A1 to A21 were produced during the pendency of the appeal. Annexure A-1 is copy of the letter dated 22.3.1999 regarding intimation of claim, made by the appellant/complainant to the Manager of the National Insurance Company Ltd., through registered post. Copy of the receipt is Annexure A-2. Annexure A-3 is a copy of the claim, which was sent vide letter dated 22.3.1999, referred to above. Annexure A-4 is a copy of the letter dated 24.4.1999, which was sent through UPC, to the Divisional Manager of the National Insurance Company Ltd. attaching therewith photocopies of certain documents. Copy of UPC receipt thereof is Anenxure A-5. Annexure A-6 is a copy of another letter dated 22.10.2010, sent through Registered Post to the Divisional Manger of the National Insurance Company and copy of the receipt thereof is attached as Annexure A-7. Annexure A-8 is the information, which was sent to the appellant/complainant, by the Police Station that no clue of the vehicle, had been found. It was also sent to him through UPC. Annexure A-9 is a copy of the letter dated 12.2.2002 sent to the Manager of the National Insurance Company through UPC. Annexure A-10 is a copy of letter dated 20.4.2002 sent to the Manager, National Insurance Company. Annexure-13 is a copy of another letter dated 14.7.2004 sent to the Manager, National Insurance Company. Annexure A-14 is a copy of reminder letter dated 6.4.2005 sent to the Manager, National Insurance Company through UPC. Annexure A-15 is a copy of letter dated 16.4.2005 sent to the Manager, National Insurance Company through UPC. Annexure A-16 is a copy of letter dated 28.10.2005 sent to the Divisional Manager, National Insurance Company through UPC. Annexure A-17 is a copy of letter dated 3.6.2005 sent to the Divisional Manager, National Insurance Company through UPC. Annexure A-18 is a copy of letter dated 22.6.2005 sent to the Divisional Manager, National Insurance Company through UPC. Annexure A-19, is a copy of letter dated nil addressed to the Manager, National Insurance Company, which was duly acknowledged by its Regional Office, Sector 35 B on 13.4.2006, as is evident from the stamp of the National Insurance Company affixed on the same. Annexure A-21 is the letter dated 17.5.2007, which was sent by the National Insurance Company to the appellant/complainant. The authenticity of the documents Annexures A-1 to A-10 and A-13 to A-21 cannot be disputed, as the mode of communication thereof was proved.
9. In Sabha Singh Vs. Jeet Singh 1996(2) CCC 339 (SC) and K. Venkataramiah Vs. A Seetharama Reddy and Ors 1963 AIR 1526(SC) the principle of law, laid down, was to the effect that the Appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for œany other substantial cause. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence œto enable it to pronounce judgment.? It can still consider that in the interest of justice, something which remains obscure should be filled up, so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Order XLI Rule 27(1)(b)of the Code of Civil Procedure. In Sunderlal and Sons Vs. Bharat Handicrafts (P) Ltd. 1968 AIR 406 (SC) the principle of law laid down was to the effect that where the Appellatte Court requires any document to be produced or witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Court may allow such document to be produced or witnesses to be examined. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. In this case, the complaint was dismissed by the District Forum on the ground of non-production of documents and being barred by limitation. We are of the considered opinion that these documents are essential for the just decision of appeal, to impart justice between the parties, and to enable this Commission to pronounce the judgment, in a satisfactory manner. Keeping in view the principle of law, and considering the factum that authenticity of these documents cannot be disputed, in any manner, the application under disposal deserves to be partly accepted.
10. Coming to the fatum as to whether any plausible explanation was furnished by the appellant/complainant for not producing these documents, at the relevant time,, it may be stated here, that it is established from the District Forum record that at the time of admission of the complaint, the complainant appeared in person, and again on the next date i.e. 10.8.2007 he appeared in person and the case was adjourned to 25.9.2007. On that date none appeared on behalf of the appellant/complainant. The complainant even did not appear on 28.9.2007. It was only on 27.11.2007, that the complainant appeared with his Counsel Sh. Gaurav Bhardwaj, Advocate when already the complaint was fixed for arguments. It means that before the complaint was fixed for arguments the complainant was appearing in person. He had not engaged any Counsel by that time. Under these circumstances, we are of the considered opinion, that he could not produce these documents, though made a mention thereof, in the complaint that he filed the claim and sent the intimation to the Opposite Party from time to time for settling the same. The complainant being a layman, did not know the intricacies of law. No layman can be expected to know the provisions of law. It was, under these circumstances, that the complainant failed to produce these documents into evidence. Had he engaged the Counsel, in the first instance, when the complaint was filed and the same was admitted, he would have been able to produce these documents into evidence, which are now sought to be adduced by way of additional evidence. It is settled principle of law that the Consumer Foras are meant to advance the cause of justice, than to thwart the same. When the substantial justice, and the hyper-technicalities, are pitted against each other, then the former shall prevail over the latter. Substantial justice cannot be sacrificed at the altar of procedural wrangles. The explanation furnished by the appellant/complainant, as to why he could not produce the documents, at the relevant time, therefore, could be said to be partly satisfactory. No prejudice, whatsoever, would be caused to the respondent/Opposite Party, on account of partly allowing the application for additional evidence, particularly when it would be afforded an opportunity to lead evidence in rebuttal. At the most for delaying disposal of the appeal, on account of non production of the documents, at the relevant time, before the District Forum, the appellant/complainant can be burdened with costs.
11. So far as the remaining documents Annexures A-11 and 12 are concerned, the same, in our considered opinion, cannot be admitted by way of additional evidence. There is nothing on the record as to by which mode these documents were sent to the Opposite Party. Under these circumstances, authenticity thereof cannot be vouchsafed. The fabrication of these documents, therefore, could not be ruled out. The application for admitting the documents Annexures A-11 and A-12 into additional evidence, deserves to be dismissed.
12. For the reasons recorded above, the application for additional evidence is partly accepted. The documents Annexures A-1 to A-10, and Annexures A13 to A-21, are taken on record, by way of additional evidence subject to payment of cost of Rs.10,000/- by the appellant/complainant.
13. The application for taking on record Annexures A-11 and A-12, by way of additional evidence is, however, dismissed.
14. For payment of cost by the appellant, affidavit if any, in support of the documents Anenxures A-1 to A-10 and Anenxures A-13 to A-21, with a copy in advance to the Counsel for the respondent, and rebuttal evidence, on behalf of the respondent/Opposite Party, to come up on 14.5.2014.
15. Certified copies of this order be sent to be parties, free-of-charge.