1 2025:CGHC:13985 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 408 of 2020 1 - National Insurance Company Ltd. Through Branch Manager, Branch No. 1, Ranchi (Jharkhand) Regional Division Office - Taha Complex, Priyadarshani Nagar, Bilaspur, District Bilaspur Chhattisgarh Insurance Company Of Offending Vehicle, District : Bilaspur, Chhattisgarh ... Petitioner Versus 1 - Smt. Sumati Bai W/o Late Humesh Ram Chouhan Aged About 30 Years Caste - Cheek, R/o Bankombo, Thana - Narayanpur, Tehsil - Kunkuri, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh 2 - Ku. Varsha Chouhan D/o Late Humesh Ram Chouhan Aged About 17 Years Minors Through- Natural Guardian Mother Smt. Sumati Bai, Caste - Cheek, R/o Bankombo, Thana - Narayanpur, Tehsil - Kunkuri, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh 3 - Tarun Chouhan S/o Late Humesh Ram Chouhan Aged About 13 Years Minors Through- Natural Guardian Mother Smt. Sumati Bai, Caste - Cheek, R/o Bankombo, Thana - Narayanpur, Tehsil - Kunkuri, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh 4 - Tejbir Chouhan S/o Late Humesh Ram Chouhan Aged About 11 Years Minors Through- Natural Guardian Mother Smt. Sumati Bai, Caste - Cheek, R/o Bankombo, Thana - Narayanpur, Tehsil - Kunkuri, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh 5 - Heera Nath Ram Chouhan S/o Kandru Ram Chouhan Aged About 54 Years Caste - Cheek, R/o Bankombo, Thana - Narayanpur, Tehsil - Kunkuri, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 6 - Smt. Sonafulo Chouhan W/o Hiranath Ram Chouhan Aged About 52 Years Caste - Cheek, R/o Bankombo, Thana - Narayanpur, Tehsil - Kunkuri, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh 7 - Goverdhan Ram Nageshiya S/o Dasrath Ram Aged About 28 Years Caste - Nageshiya, R/o Bankombo, Thana - Narayanpur, Tehsil - Kunkuri, District - Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh ... Respondents For Petitioner : Mr. Sanjay Patel, Advocate For Respondents : None though served. S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 24/03/2025 1. This appeal is filed by the appellant insurance company challenging the impugned award dated 17.10.2019 passed by the learned Additional Motor Accident Claim Tribunal, Kunkuri, District – Jashpur (C.G.) in Claim Case No. 09/2015 whereby, the learned Claims Tribunal allowed the application filed under Section 163 – A of the Motor Vehicles Act, 1988 and awarded a sum of Rs. 1,00,000/- to the claimants who are the legal representatives of the deceased driver of the offending vehicle. 2. Facts relevant for disposal of this appeal are that, on 04.12.2014 at about 05:50 P.M., when the deceased i.e. Humesh Ram Chauhan along with Goverdhan Ram Nageshiya (Respondent No. 7) was going towards Charaidand in his motorcycle i.e. Bajaj Platina bearing Registration No. CG 14 MC 6427, at that time, when they reached near Anees Dhaba, Village Khatanga, the brakes of the motorcycle failed and the Humesh Ram and Goverdhan Ram Nageshiya met with an accident due to which, the Humesh Ram died on the spot. Subsequent to the said accident, the incident was reported to the concerned police station and based upon which, Crime No. 129/2014 (Ex. A-4) was registered for the alleged offences punishable under Section 279, 337, 304-A of the Indian Penal Code, 1960. 3 3. Learned counsel for appellant submits that that the learned Claims Tribunal erred into awarding the amount of compensation of Rs. 1,00,000/- overlooking the fact that the deceased is not the owner of the motorcycle with which, he met accident and succumbed to his injuries, but only driver of the motorcycle and had borrowed the motorcycle from the original owner of the vehicle. He contended that the premium paid for own damage is for the owner and not for the borrower. 4. He also submits that the learned Claims Tribunal recording a finding that the driving license possessed by the deceased Humesh Ram Chauhan, driver of the motorcycle to be valid and effective. However, subsequent to passing of the award, the appellant has obtained the information under the Right to Information Act, 2005 in which, it was informed that as per the records, license is not issued from the office of Regional Transport Authority, Bilaspur. Appellant has also filed an application under Section 41 Rule 27 of the Code of Civil Procedure, 1908 for taking additional evidence on record. He contended that even if the own damages is to be given as per the terms and conditions of the insurance company to the driver of the vehicle, then, he should possess valid and effective driving license and then only, the insurance company will be liable to satisfy the risk covered under the policy. 5. I have heard learned counsel for the appellant and also perused the records of the learned Claims Tribunal. 6. So far as the ground raised by the counsel for the appellant that the risk of the borrower of the vehicle is not covered under the policy is concerned, this issue is now well settled by the Hon’ble Supreme Court in the case of Ramkhiladi & Anr. Vs. United India Insurance Company & Anr. reported in (2020) 2 SCC 550 wherein, the Hon’ble Supreme Court has laid down the principle that the borrower of the vehicle steps down into the shoes of the owner of the vehicle while driving the vehicle insured by the insurance company and therefore, the driver of the vehicle will be entitled for the risk 4 covered under the policy for the owner-cum-driver under the own damage. Risk of owner-cum-driver is covered under policy to the extent of Rs. 1,00,000/-. The relevant clause under the insurance policy is extracted below for ready reference:- “Limitation as to use: The Policy covers use of the Vehicle for any purpose other than (a) Hire or Reward (b) Carriage of Goods (other than samples or personal luggage) (c) Organized racing (d) Pace Making (e) Speed Testing and Reliability Trials (f) Use in connection with Motor Trade Drivers Clause : Any person including insured Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner’s Licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicles rules, 1959. Limits of Liability Clause : Under Section II 1 (i) of the policy-Death or bodily injury, Such amount as is necessary to meet the requirements of the Motor Vehicle Act, 1988 under Section II 1 (ii) of the policy-Damage to third party property is Rs. 6000 P.A. cover under Section 3 for owner- driver is Rs. 1.0 Lakhs. “ 7. Hon’ble Supreme Court in the case of Ramkhiladi (Supra) considering the risk covered of the owner and driver under the insurance policy has observed thus:- “9.1. The learned Tribunal held that even in absence of the driver, owner and the insurance company of another vehicle involved in an accident and whose driver was solely negligent, the application under Section 163-A of the Act would be maintainable against the owner and the insurance company of the vehicle which was driven by the deceased himself, firstly on the ground that the deceased was in employment of the owner of the vehicle which was driven by him and secondly, in an application under Section 163-A of the Act, the negligence is not required to be established and proved and it is enough to establish and prove that the deceased has died in a vehicular accident and while driving a vehicle. The High Court has not agreed with the same and by the impugned judgment and order has held that as the 5 claimants have not filed the claim petition against the owner of another vehicle whose driver was in fact negligent, even as per the claimants and the claim petition should have been filed by the claimants against the owner of another vehicle to seek the compensation, the application under Section 163-A of the Act against the insurance company of the vehicle driven by the deceased himself is liable to be dismissed. 9.3. While answering the finding recorded by the learned Tribunal on Issue 2, it appears that, as such, the learned Tribunal has not at all answered the aforesaid issue. While answering Issue 2, there is no specific finding whether the deceased-driver was in employment of the opponent-owner Bhagwan Sahay or not. Even otherwise, no evidence is led by the claimants to prove that the deceased-driver was in employment of the opponent-owner Bhagwan Sahay. Despite the above, while answering Issue 4 there is some observation made by the learned Tribunal that the deceased- driver was in employment of the opponent-owner Bhagwan Sahay, which is not supported by any evidence on record. Under the circumstances, the deceased-driver cannot be said to be in employment of the opponent-owner Bhagwan Sahay and, therefore, he can be said to be permissible user and/or borrower of motor vehicle owned by the opponent-owner Bhagwan Sahay. With these findings, the main question posed for consideration of this Court referred to hereinabove is required to be considered. 9.6. In view of the above and for the reasons stated above, in the present case, as the claim under Section 163-A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163-A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle. 9.8. However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs 1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs 1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs 5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs 5 lakh. The same cannot be accepted. In 6 the present case, the accident took place in the year 2006 and even the judgment and award was passed by the learned Tribunal in the year 2009, and the impugned judgment and order has been passed by the High Court in 10-5-2018 [United India Insurance Co. v. Ramkhiladi, 2018 SCC OnLine Raj 3264] i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs 1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.” 8. In view of the decision of the Hon’ble Supreme Court, the driver of the offending motorcycle who has borrowed the vehicle has stepped into the shoes of the owner and therefore, the liability of the insurance company covering the risk of the driver-cum-owner under the personal accident coverage shall also apply to the driver of the offending vehicle (borrower) subject to he is possessed with a valid and effective driving license. 9. So far as, the application filed under Order 41 Rule 27 for taking additional evidence on record is concerned, the claimants have produced the copy of the driving license and proved as Annexure A/1 issued under the seal and signature of the Regional Transport Authority, Bilaspur. Copy of the license based upon which, the claimants pleaded and stated that on the date of accident, the driver of the offending vehicle (deceased) was possessed with a valid and effective driving license which was part of record and within the knowledge of the appellant. However, they have not taken any steps to obtain particulars of the license from the competent authority during pendency of the claim case before Tribunal, if they have any suspicion over the copy of the license produced and proved by the claimants, they were not diligent to their right to produce the particulars of the license in their evidence. The application under Right to Information Act, 2005 seeking information with regard to license produced by claimants, was filed by appellants only on 02.12.2019, the application is dated 18.11.2019 i.e. after 7 passing of impugned award by learned Claims Tribunal on 17.10.2019. No sufficient reason is assigned for not producing the evidence sought to be produced as additional evidence. 10. Hon’ble Supreme Court considering the application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for taking additional evidence on record in case of Jagdish Prasad Patel & Anr. vs Shivnath & Ors., reported in (2019) 6 SCC 82 while dealing with issue of admissibility of additional evidence in appellate Court not adduced in the Court of original jurisdiction, has observed thus: 29. Under Order 41 Rule 27 CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: (I) where the trial court had refused to admit the evidence though it ought to have been admitted; (II) the evidence was not available to the party despite exercise of due diligence; and (III) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents. 30. In Union of India v. Ibrahim Uddin [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362] , this Court held as under : (SCC pp. 167-68 & 170, paras 36-37, 40 & 47) “36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy [K. Venkataramiah v. 8 A. Seetharama Reddy, AIR 1963 SC 1526] , Municipal Corpn., Greater Bombay v. Lala Pancham [Municipal Corpn., Greater Bombay v. Lala Pancham, AIR 1965 SC 1008] , Soonda Ram v. Rameshwarlal [Soonda Ram v. Rameshwarlal, (1975) 3 SCC 698] and Syed Abdul Khader v. Rami Reddy [Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601] .) 37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali & Co. [Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali & Co., (1978) 2 SCC 493] .) Considering the fact that the appellant insurance company has failed to place the evidence which is sought to be placed before this Court as additional evidence along with application under Order 41 Rule 27 was not produced before the learned Tribunal, appellant was not diligent and therefore, in view of the decisions of the Hon’ble Supreme Court and the facts and circumstances of the case, I do not find any good ground to allow the said application. Accordingly, the application filed Order 41 Rule 27 of the Code of Civil Procedure, 1908 is dismissed. 11. Further, taking into consideration the entirety of the facts and circumstances of the case and also considering the decision of the Hon’ble Supreme Court in the case of Ramkhiladi (Supra), I do not find any error in the view taken by the learned Claims Tribunal considering the conditions of the insurance policy wherein, the risk of the owner-cum-driver is covered to the extent of Rs. 1,00,000. 12. Accordingly, the appeal being sans merit is liable to be and hereby dismissed. Certified copy as per rules. Sd/-/--/-/--------/--/- (Parth Prateem Sahu) Judge Dey