# National Insurance Co. Ltd v. Shiva Vishwakarma Minor

- **Citation:** (2025) 5 ILRA 1610
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-01
- **Case number:** First Appeal From Order No. 895 of 2016
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-v-shiva-vishwakarma-minor-53303
- **Pages:** 5

## Headnote

Civil Law- The Code of Civil Procedure,
1908-Order XLI Rule 27--- Nowhere does
the affidavit indicate that the learned trial court
has refused to admit the annexure as an
evidence or notwithstanding exercise of due
diligence by the appellant, he could not get hold
of annexure 1 and neither is the said annexure
accompanied by the application under the said
provision for treating annexure 1 to be an
additional evidence---Appellant has also failed to
indicate as to how the aforesaid verification can
be related with the driving license which had
been filed before the learned Tribunal and thus,
in absence of any evidence being led before the
learned Tribunal of the driving license filed
before it of Shri Hori Lal being fake or forged
and the said driving license not having been
controverted in any manner, consequently, it
cannot be said that the learned Tribunal has
committed any error in holding that the driver
namely Shri Hori lal was having a valid and
effective driving license on the date of the
incident.

Appeal dismissed. (E-15)

List of the cases referred-:

## Text

1610 INDIAN LAW REPORTS ALLAHABAD SERIES
been spending 1/4th part of his income on
himself. Accordingly, after deducting the
same, determined the income and allowed
the compensation. This Court does not find
any illegality or error in the compensation
calculated by the tribunal also and it could
also not be contradicted in any manner.

24. Section 169(2) of the Motor
Vehicles Act 1988 provides that the Claims
Tribunal shall have all the powers of a
Civil Court for the purpose of taking
evidence on oath and of enforcing the
attendance of witnesses and of compelling
the discovery and production of documents
and material objects and for such other
purposes as may be prescribed; and the
Claims Tribunal shall be deemed to be a
Civil Court for all the purposes of section
195 and Chapter XXVI of the Code of
Criminal Procedure, 1973(2 of 1974). The
power of the tribunal as provided under the
statute cannot be disputed but it is to be
examined in accordance with law and
merely because the application moved by
the appellant for summoning and providing
copies of the income tax return on the date
of judgment was dismissed by the tribunal,
it cannot be said that the power has not
been exercised by the tribunal because the
Court has also to see that process of law
may not be misused to delay or stall the
proceedings.

25. The Hon'ble Supreme Court,in
the case of Malarvizhi and Others versus
United Insurance Company Limited and
Another(supra), has held that the tribunal
superimposed a possible value of income
from agricultural land despite a clear
indication in the income tax returns of the
income from agricultural land. This case is
not
applicable
on
the
facts
and
circumstances of the present case as
discussed above.
26. The Hon'ble Supreme Court, in
the case of Gopal, Krishnaji Ketkar versus
Mahomed Haji Latif & Others(supra), has
held that even if the burden of proof does
not lie on a party the Court may draw an
adverse inference if he withholds important
documents in his possession which can
throw light on the facts at issue because
there is a sound practice for those desiring
to rely upon a certain state of facts to
withhold from the Court the best evidence
which is in their possession which could
throw light upon the issues in controversy
and to rely upon the abstract doctrine of
onus of proof. It is not applicable in the
present case because an eye witness has
been produced, who has proved the
accident and income has also been
determined rightly as discussed above.

27.
In
view
of
above
and
considering
the
overall
facts
and
circumstances of the case, this Court does
not find any illegality or error in the
impugned judgment and award passed by
the tribunal. The appeal has been filed on
misconceived and baseless grounds, which
is liable to be dismissed.

28. The appeal is, accordingly,
dismissed. No order as to costs.
----------
(2025) 5 ILRA 1610
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.05.2025
BEFORE

THE HON'BLE ABDUL MOIN, J.

First Appeal From Order No. 895 of 2016
And
First Appeal From Order No. 896 of 2016

National Insurance Co. Ltd. ...Appellant
Versus
Shiva Vishwakarma Minor ...Respondent
5 All. National Insurance Co. Ltd. Vs. Shiva Vishkwakarma Minor
1611
Counsel for the Appellant:
Satyajit Banerjee

Counsel for the Respondent:
-----

Civil Law- The Code of Civil Procedure,
1908-Order XLI Rule 27--- Nowhere does
the affidavit indicate that the learned trial court
has refused to admit the annexure as an
evidence or notwithstanding exercise of due
diligence by the appellant, he could not get hold
of annexure 1 and neither is the said annexure
accompanied by the application under the said
provision for treating annexure 1 to be an
additional evidence---Appellant has also failed to
indicate as to how the aforesaid verification can
be related with the driving license which had
been filed before the learned Tribunal and thus,
in absence of any evidence being led before the
learned Tribunal of the driving license filed
before it of Shri Hori Lal being fake or forged
and the said driving license not having been
controverted in any manner, consequently, it
cannot be said that the learned Tribunal has
committed any error in holding that the driver
namely Shri Hori lal was having a valid and
effective driving license on the date of the
incident.

Appeal dismissed. (E-15)

List of the cases referred-:

1. Sanjay Kumar Singh Vs St. of Jharkhand 2022
(7) SCC 247

2. Shivajirao Nilangekar Patil Vs Dr. Mahesh
Madhav Gosavi & ors. 1987 (1) SCC 227

3. Jagdish Prasad Patel(D) Thr. Lrs. Vs Shivnath
2019 (6) SCC 82

4. U.O.I. Vs Ibrahim Uddin & anr.2012 (8) SCC
148

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Shri Satyajit Banerji, learned
counsel for the appellant.

2. Learned counsel for the appellant
states that the instant appeal as well as
F.A.F.O. No.896 of 2016 pertain to the
same accident and commons ground have
been taken in both the appeals and as such,
both the appeals can be heard and decided
together.

3. Accordingly, the Court proceeds
to hear and decide both the appeals by way
of a common judgment. For the sake of
convenience, the facts of F.A.F.O. No.895
of 2016 are being taken.

4. Under challenge is the judgment
and award dated 19.05.2016 passed in
Claim Application No.206 of 2016 in Re:
Shiva Vishwakarma and Others vs. Rafiq
Khan and Others by the learned Motor
Accident Claims Tribunal / Additional
District Judge, court no.5, Unnao, whereby
the learned Tribunal has awarded a sum of
Rs.4,04,000/- to the claimants along with
interest at the rate of 7% per annum.

5. In F.A.F.O. No.896 of 2016, the
learned Tribunal has awarded an amount of
Rs.4,52,000/- along with interest at the rate
of 7% per annum.

6. The contention of learned
counsel for the appellant is that an accident
is said to have occurred on 17.05.2015 in
which Shri Sunil Kumar and his wife Smt.
Madhuri died, who are the parents of the
claimant No.1 Shiva Vishwakarma and the
son and daughter-in-law of claimants No.2
& 3.

7. The accident is said to have
occurred when Shri Sunil Kumar along
with his wife were going on a motorcycle
on the Lucknow-Kanpur road at 09:30 a.m.
and a truck no. UP 78 BT 3046 hit them
1612 INDIAN LAW REPORTS ALLAHABAD SERIES
from behind with the result that both of
them were grievously injured and died.

8. Upon filing of the claim
application, the learned Tribunal by means
of the award has awarded the amount, as
aforesaid, to the claimants.

9. Specific finding has been given
that the driver of the truck namely Shri
Hori Lal was having a valid driving licence
and the truck was also insured and thus, it
is the insurance company / appellant who
has been directed to pay the above awarded
amount.

10. Raising a challenge to the
award to the extent that the learned
Tribunal has held that the driver of the
truck namely Shri Hori lal was having a
valid driving license, it is argued that Shri
Hori Lal was not having a valid driving
license for the purpose of driving the
transport vehicle, in this case the truck,
and, thus, it is argued that the learned
Tribunal has patently erred in holding that
the driver of the truck was having a valid
driving
license
and
consequently,
considering the aforesaid error committed
by the learned Tribunal, it is contended that
the insurance company is not liable to pay
the aforesaid amount of award rather the
owner of the truck should pay the same.

11. In support of his arguments,
Shri Banerji has placed reliance on the
extract of driving license and verification
of Form 54, a copy of which has been filed
as annexure 1 to the stay application.

12. Shri Banerji categorically states
that the extract of the driving licence and
verification of form 54, as filed as annexure
1 to the stay application, was never filed
before the learned Tribunal and the same
has been filed for the first time in the
instant appeal. He states that the appeal
being a continuation of proceedings, he is
perfectly empowered to file the said
evidence in the instant appeal which in fact
he has done.

13. It is argued that a perusal of the
aforesaid report would indicate that on the
date of the accident i.e. 17.05.2015, Shri
Hori lal, the driver of the truck, was not
having a valid and effective driving license
for a transport vehicle as emerges from a
verification of the driving license as done
from the Transport Authority Hamirpur
which indicates that his driving license was
having an endorsement for transport
vehicle
earlier
w.e.f.
30.03.2009
to
19.03.2012
and
after
renewal
from
30.10.2015 to 29.10.2018 meaning thereby
that on the date of the accident i.e.
17.05.2015, the driving license of Shri Hori
lal was not valid for driving a transport
vehicle which fact has not been appreciated
by the learned Tribunal and consequently,
the insurance company is not liable to pay
the awarded amount to the claimants rather
it is the owner who is liable to pay the said
amount.

14. No other argument has been
urged.

15. Having heard the learned
counsel for the appellant and having
perused the record, it emerges that upon
filing of the claim application, the learned
Tribunal had framed various issues of
which issue no.2 was as to whether on the
date and time of accident, the driver of the
truck was having a valid and effective
driving license? The finding in this regard
has been given by the learned Tribunal
after
examining
driving
license
No.9112003573
issued
on 26.05.2007
5 All. National Insurance Co. Ltd. Vs. Shiva Vishkwakarma Minor
1613
having
an
old
license
No.
H879/Hamirpur/2007 which was valid from
30.10.2012 to 29.10.2015 and the same is
also available on record as paper No.
10ga/6.

16. The Court has perused paper
No. 10ga/6 from the records of the learned
trial court.

17. A perusal of the aforesaid paper
would indicate that it is a form of driving
license duly signed by the Licensing
Authority and the driving license bears the
No.9112003573 having been issued on
26.05.2007 and valid up to 29.10.2015. The
license also indicates that the holder of the
licence is licensed to drive throughout India
the vehicles of the following descriptions
which also includes Light Motor Vehicle,
Medium Good Vehicle, Medium Passenger
Motor Vehicle, Heavy Good Vehicle and
Heavy Motor Passenger Vehicle. The
accident having occurred on 17.05.2015
and the license being valid up to
29.10.2015 makes it apparent that the
driver of the vehicle involved in the
accident was having an effective and valid
driving license on the date of the accident
for driving a Heavy Good Vehicle, in this
case a truck, and thus, it is apparent that a
specific finding of fact had been given by
the learned Tribunal.

18. Incidentally, it is not the case of
the appellant that the driving license filed
before the learned Tribunal is either fake or
forged and no case was also set up by the
insurance company in this regard before the
learned Tribunal.

19. So far as the extract of driving
licence and verification of form 54 is
concerned, as is sought to be filed as an
additional evidence in the instant appeal,
whether for the first time the same can be filed
would have to be considered.

20. Order 41, Rule 27 of C.P.C.
pertains to production of additional evidence
in appellate court. The said provision provides
that the parties to an appeal shall not be
entitled to produce additional evidence but if -

(a) the court from whose decree the
appeal is preferred has refused to admit
evidence, 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 then the appellate
court may allow such evidence or document to
be produced.

21. Sub rule (2) of Rule 27 of Order
41 of C.P.C. also provides that wherever
additional evidence was allowed to be
produced by an appellate court, the court shall
record the reason for the said admission.

22. Although, in his argument, Shri
Banerji has urged that annexure 1 to the stay
application is being filed as an additional
evidence in the instant appeal but a perusal of
the affidavit along which annexure 1 has been
filed would indicate that the said document
has not been filed as an additional evidence
rather has only been made an annexure to the
stay application. Interestingly, the entire
affidavit in support of the stay application
only talks about the driving license that had
been filed before the learned Tribunal.

23.
Even
if,
considering
the
arguments as urged by the learned counsel
1614 INDIAN LAW REPORTS ALLAHABAD SERIES
for the appellant, the said annexure is said
to be taken as an "additional evidence" as
provided under Order 41, Rule 27 of
C.P.C., the fact would remain that nowhere
does the affidavit indicate that the learned
trial court has refused to admit the
annexure as an evidence or notwithstanding
exercise of due diligence by the appellant,
he could not get hold of annexure 1 and
neither is the said annexure accompanied
by the application under the said provision
for treating annexure 1 to be an additional
evidence and consequently, this Court is
not impressed with the argument of the
learned counsel for the appellant for
treating annexure 1 filed along with
application of stay as an additional
evidence.

24. In this regard, it would be apt to
refer to the judgments of the Hon'ble
Supreme Court in the case of Sanjay
Kumar Singh vs. State of Jharkhand
2022 (7) SCC 247, Shivajirao Nilangekar
Patil vs. Dr. Mahesh Madhav Gosavi &
Ors. 1987 (1) SCC 227, Jagdish Prasad
Patel(D) Thr. Lrs. vs. Shivnath 2019 (6)
SCC 82 and Union of India vs. Ibrahim
Uddin & Another 2012 (8) SCC 148.

25.
However,
considering
the
insistence on the part of learned counsel for
the appellant to consider the said document,
the Court proceeds to consider the said
document also.

26. So far as the document which
has been filed along with the appeal is
concerned, which is said to be the
verification from the Transport Authority
Hamirpur,
it
emerges
that
the
said
verification does not pertains to the driving
license which has been filed before the
learned Tribunal i.e. having driving license
No.9112003573.
27.
Learned
counsel
for
the
appellant has also failed to indicate as to
how the aforesaid verification can be
related with the driving license which had
been filed before the learned Tribunal and
thus, in absence of any evidence being led
before the learned Tribunal of the driving
license filed before it of Shri Hori Lal
being fake or forged and the said driving
license not having been controverted in any
manner, consequently, it cannot be said that
the learned Tribunal has committed any
error in holding that the driver namely Shri
Hori lal was having a valid and effective
driving license on the date of the incident.

28. Keeping in view of the
aforesaid
discussion,
no
case
for
interference is made out.

29. Accordingly, the appeal is
dismissed.

30. Let the trial court record of the
appeal be sent back as per rules.
----------
(2025) 5 ILRA 1614
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 2495 of 2016

Waqf Madarsa Qasimul Uloom ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Kumar Singh, Ashish Kumar Singh,
Janardan Mishra, Rajni Kant Chaube

Counsel for the Respondents:
C.S.C.