(SIBGHAT ULLAH KHAN,) J. - (1.) HEARD Sri R.K. Porwal, learned counsel for the appellant and Smt. Anita Srivastava, learned counsel for the respondent No.3, Insurance Company. No one appeared for respondents No.1 and 2 at the time of arguments.
(2.) THIS F.A.F.O. has been filed by the motor vehicle/ tractor owner against that part of the award dated 27.08.2004 given by M.A.C.T./ A.D.J. Court No.1, Etawah in M.A.C. Petition No.307 of 1994 through which Oriental Insurance Company, which was opposite party No.2 in the claim petition had been permitted to recover the awarded amount of Rs.50,000/- from the appellant after paying the same to the claimant. Initially the accident with his tractor was denied by the appellant, however in his cross-examination he admitted the same. Under Issue No.2, the Tribunal below held that the appellant who examined himself as P.W.-1 admitted in his cross-examination that the tractor was being driven by one Anil Kumar at the time of accident in which Vasudev died. The Tribunal below further held that neither Xerox copy nor original copy of driving licence of Anil Kumar was filed hence Insurance Company after paying compensation to the claimant was entitled to recover the same from the vehicle owner. (Anil Kumar is son of appellant) For the purposes of this appeal, only this point is relevant. Insurance Company did not file any appeal against impugned award. In this appeal appellant filed application under Order XLI Rule 27, C.P.C. supported by supplementary affidavit for adducing additional evidence on 04.03.2007 annexing therewith copy of driving licence of Anil Kumar, the driver of the tractor. The reason given in the supplementary affidavit for not filing copy of the driving licence before the Tribunal below is that the appellant had given the copy of the driving licence to his counsel before the Tribunal below but as the counsel took up the case of denial of accident with the tractor of the appellant hence driving licence was not filed by the counsel. In this appeal I passed an order on 15.03.2012 (on the order sheet), which is quoted below: "On the direction of Court duplicate copy of the application under Order 41 Rule 27 C.P.C. dated 6.3.2007 has been provided to learned standing counsel containing photo copy of a document purporting to be a driving licence issued on 9.7.1992. The Court wants to verify its authenticity. Learned counsel for the appellant on the inquiry from the Court agrees that if the driving license is found forged or fake, he will not object to the direction of the Court for lodging F.I.R. against the appellant as well as the person in whose name the driving licence is shown to have been issued i.e. Sri Anil Kumar Yadav son of the appellant. List on 22.3.2012. On the next date original driving licence must be shown to the Court. On the next date the name of standing counsel shall also be shown in the cause list. Office is directed to supply a copy of this order free of cost to Sri R.C. Srivastava, learned standing counsel by tomorrow."
(3.) LEARNED standing counsel placed on record communication receipt by him on 14/17.03.2012 from the office of Assistant Departmental Transport Adhikari (Administration), Etawah stating therein the said licence was issued on 09.07.1992 and it was valid until 31.08.2012 (accident took place on 16.05.1994). Learned counsel for the respondent No.3 has filed counter affidavit to the application under Order XLI Rule 27, C.P.C. However in the counter affidavit sworn on 21.12.2011 the correctness of the driving licence has not been questioned. Learned counsel for Insurance Company, respondent No.3 has cited an authority of Supreme Court reported in Haryana State Industrial Vs. M/s Manufacturing Co., AIR 2008 SC 56 in which it has been held that a party cannot be permitted to adduce additional evidence to fill up a lacuna in the evidence. Under Order XLI Rule 27(1)(b), C.P.C., a party is entitled to produce additional evidence if "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". Moreover, in proceedings under Sections 166, 168 and 169, Motor Vehicles Act, 1988, technical principles of C.P.C. do not apply with full force. The correctness of the driving licence has been got verified by the Court from learned standing counsel. However, the fact remains that the driving licence was not filed before the Tribunal below. (According to the own case of the appellant due to the reason that initially appellant and his learned counsel before the Tribunal below decided to deny the accident with the appellant's tractor even though afterwards in his cross examination appellant admitted the accident with his tractor). Accordingly, in the interest of justice I allow the application under Order XLI Rule 27, C.P.C. and take on record the copy of the driving licence on payment of Rs.5000/- as cost.;