Rakhi Nandi Vs. Babul Dutta and ors. - Court Judgment

Excerpt:
- - according to the learned counsel for the appellant/claimant, the victim was an unmarried woman and due to the accident she had become physically disabled and as such was not in normal health to go and procure the duplicate of the original discharge certificate from the silchar medical college for her treatment for the period from 3.2.01 to 3.3.01 which had already been lost and despite her best endeavour she could not procure the same from silchar medical college to satisfy the requirement of the learned tribunal. r.b. misra, j.1. heard mr. p.r. barman, learned counsel for the appellant. also heard mr. a. lodh, learned counsel for the respondent-insurance company.2. the present appeal has been preferred under section 173 of the motor vehicles act, 1988 against the judgment and award dated 3.10.02 passed by the learned member, motor accident claims tribunal (for short, 'tribunal'), west tripura, khowai in ts (mac) no. 68 of 2002. it appears that the claimant-appellant preferred a petition before the learned tribunal for compensation in reference to the accident which took place on 1.10.2000 at about 6 pm when the claimant was travelling with her brother to teliamura market on a rickshaw when she was dashed by a speedy vehicle bearing no. as-14-0036. as a result, the claimant sustained fracture on.....

Judgment:

R.B. Misra, J.

1. Heard Mr. P.R. Barman, learned Counsel for the appellant. Also heard Mr. A. Lodh, learned Counsel for the respondent-Insurance Company.

2. The present appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 3.10.02 passed by the learned Member, Motor Accident Claims Tribunal (for short, 'Tribunal'), West Tripura, Khowai in TS (MAC) No. 68 of 2002. It appears that the claimant-appellant preferred a petition before the learned Tribunal for compensation in reference to the accident which took place on 1.10.2000 at about 6 pm when the claimant was

travelling with her brother to Teliamura market on a rickshaw when she was dashed by a speedy vehicle bearing No. AS-14-0036. As a result, the claimant sustained fracture on her left leg and she was hospitalized and had undergone treatment. On the basis of the materials available on record, issues were framed and the claim petition was adjudicated upon. It appears that the discharge certificate in respect of her treatment of fracture on left tibia and right collar bone issued to the claimant from GB. Hospital, Agartala for the period from 1.10.2000 to 21.10.2000 was taken into consideration by the learned Tribunal and the photocopy of the discharge certificate issued by the Silchar Medical College for the period from 3.2.01 to 3.3.01 was not accepted as despite granting sufficient time, original document and certificate could not be produced before the learned Tribunal.

3. It appears that the learned Tribunal has taken into consideration the First Information Report (FIR), Discharge certificate issued from G.B. Hospital, other materials on record and arrived at a finding that the appellant-claimant had sustained injury by the said vehicle bearing No. AS-14-0036 on the said date by the rash and negligent driving of the said vehicle and accordingly, an amount of Rs. 30,000/- was awarded as compensation towards medical expenses, Rs. 10,000/-towards suffering and bodily pain and Rs. 20,000/- for impairing the power of the left leg and right collar bone. In total, Rs. 60,000/ - was awarded as compensation.

4. During the course of argument, it has been brought to the notice of the court by the learned Counsel for the petitioner that a separate petition, namely, CM. Application No. 74 of 2007 has been preferred in the present appeal with a prayer to allow additional documents, evidences and necessary documents under Order XLI, Rule 27 of the Civil Procedure Code for taking into consideration for finalisation of claim petition for compensation. According to the learned Counsel for the appellant/claimant, the victim was an unmarried woman and due to the accident she had become physically disabled and as such was not in normal health to go and procure the duplicate of the original discharge certificate from the Silchar Medical College for her treatment for the period from 3.2.01 to 3.3.01 which had already been lost and despite her best endeavour she could not procure the same from Silchar Medical College to satisfy the requirement of the learned Tribunal. According to her, she could not, at the relevant time, travel to Silchar to collect other documents, prescription and discharge certificate and to her bona fide belief, if were considered, the verdict of the learned Tribunal could have been different in respect of awarding compensation. For convenience, Order XLI Rule 27 of Civil Procedure Code is reproduced below:

27. Production of additional evidence in Appellate Court (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if--

(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) 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, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate court may allow such evidence or document to be produced, or witness to be examined.

(2) Whether, additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for its admission.

5. Order XLI, Rule (aa) provides that the party seeking to produce additional evidence has to show that despite diligence, such evidence was not within his/her knowledge or could not, after the exercise of due diligence, be produced by him/her at the time when the decree appealed against was passed, then the appellate court may consider for allowing the documents so produced for consideration to meet the ends of justice. Since the discharge certificate issued by the Silchar Medical College for the period from 3.2.01 to 3.3.01 i.e treatment for about a month was a material document along with other prescriptions and medical documents pertaining to claim of the appellant, therefore, to meet the ends of justice, it is necessary that the prayer for and on behalf of the appellant to produce additional documents including the discharge certificate, medical prescriptions and other documents are to be allowed to be produced and examined by the learned Tribunal in order to incorporate the same while finalizing the claim for awarding compensation in favour of the claimant.

6. From this point of view, the C.M. Application No. 74 of 2007 is being allowed and the impugned order dated 3.10.02 is liable to be set aside wherein the documents so intended to be produced for an on behalf of the appellant-claimant materially effecting the impugned order were not considered. Accordingly, such order is not legally sustainable and consequently, the same is sweet aside and the T.S. (MAC) No. 68 of 2002 is relegated back to the learned motor Accident Claims Tribunal, Khowai so that the same may be adjudicated upon afresh in view of the above observations. Accordingly, T.S. (MAC) No. 68 of 2002 shall be adjudicated upon afresh within four months from the date of receipt of the records along with a copy of this order on merits after notifying all the parties.

Accordingly this appeal is disposed of.