Chattisgarh High Court
Smt. Chandramani Nishad vs Dinesh Kumar Soni on 16 June, 2025
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2025:CGHC:24541
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1978 of 2019
1 - Smt. Chandramani Nishad W/o Late Suresh Nishad Aged About 28 Years R/o
Village Ravelidih, Police Station Nandini, Tahsil Dhamdha, District Durg,
Chhattisgarh.
2 - Rahul Nishad S/o Late Suresh Nishad Aged About 14 Years Minor Through
Natural Guardian Mother Smt. Chandramani Nishad W/o Late Suresh Nishad, R/o
Village Ravelidih, Police Station Nandini, Tahsil Dhamdha, District Durg,
Chhattisgarh.
3 - Ravi Nishad S/o Late Suresh Nishad Aged About 12 Years Minor Through
Natural Guardian Mother Smt. Chandramani Nishad W/o Late Suresh Nishad, R/o
Village Ravelidih, Police Station Nandini, Tahsil Dhamdha, District Durg,
Chhattisgarh.
4 - Ku. Kaveri Nishad D/o Late Suresh Nishad Aged About 6 Years Minor Through
Natural Guardian Mother Smt. Chandramani Nishad W/o Late Suresh Nishad, R/o
Village Ravelidih, Police Station Nandini, Tahsil Dhamdha, District Durg,
Chhattisgarh.
5 - Smt. Silochani W/o Tek Singh Nishad Aged About 50 Years R/o Village Ravelidih,
Police Station Nandini, Tahsil Dhamdha, District Durg, Chhattisgarh.
6 - Tek Singh Nishad S/o Budharu Aged About 60 Years R/o Village Ravelidih,
Police Station Nandini, Tahsil Dhamdha, District Durg, Chhattisgarh.
... Appellants
Versus
1 - Dinesh Kumar Soni S/o Jeevan Lal Soni Aged About 37 Years R/o Karanja
Bhilai, Police Station Pulgaon, District Durg, Chhattisgarh. (Driver And Owner Of
The Centro Car No. Cg-04, B-8874), District : Durg, Chhattisgarh
SHUBHAM
DEY
Digitally
signed by
SHUBHAM
DEY
2
2 - Ifco Tokyo General Insurance Company Limited Through Branch Manager,
Branch Office, Shop No. 205, Second Floor, M.M. Silver Bhawan, Infront Of Udyog
Bhawan, Ring Road No.1, Mahaveer Nagar, Raipur, Chhattisgarh. (Insurer Of The
Centro Car No. Cg-04, B-8874), District : Raipur, Chhattisgarh
... Non-Appellants
For Appellants : Mr. Praveen Dhrurandhar, Advocate
For Non-appellants : Mr. Pravesh Sahu, Advocate
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
Order On Board
16/06/2025
1. This appeal is filed by the appellant/claimants seeking enhancement of
the amount of compensation awarded by the learned Claims Tribunal in
its award dated 19.08.2019 passed by the Motor Accident Claims
Tribunal, Durg, District - Durg (C.G.) in Claim Case No. 473/2018. The
learned Claims Tribunal while allowing the claim application in part has
awarded a total sum of Rs. 9, 36, 550/-.
2. Facts of the case in brief are that, on 12.02.2018 at about 07:30 P.M.,
when the appellant's husband namely Suresh Nishad (since deceased)
was standing beside the road, at that time, the offending vehicle i.e.
Hyundai Santro bearing registration no. CG 04 B 8874 driven by the
Respondent No. 1 in a rash and negligent manner, dashed Suresh
Nishad and caused accident. In the said accident, Suresh suffered
serious injuries, he was taken to Hospital in the same car for treatment,
but he succumbed to injuries during treatment. Subsequent to the
accident, a crime was registered against the Respondent No. 1 bearing
Crime No. 161/2018 at P.S. Nandini, District – Durg for the alleged
offences punishable under Sections 279, 304 (A), of the Indian Penal
Code, 1860.
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3. Learned counsel for appellant submits that the learned Claims Tribunal
erred in assessing the income of the deceased as Rs. 8,450/- considering the
minimum wages fixed for Unskilled Labourer overlooking the pleadings and
the evidence that the deceased was earning Rs. 350/- to Rs. 450/- per day.
He next contended that the learned Claims Tribunal erred in assessing the
age of the deceased to be more than 50 years on the basis of the copy of the
Aadhar Card produced by the non-appellants. However, it has not been
proved by them as from where and how, they have obtained the said copy of
the Aadhar Card wherein, the date of birth of the deceased is mentioned
15.05.1967 whereas, the date of birth of the deceased is 18.09.1982 as
mentioned in the School Leaving Certificate issued by the Head Master,
Government Middle School, Bodegaon, Block & District – Durg. Claims
Tribunal has exhibited the document placed on record by the non-appellants
putting the question upon Smt. Chandramani Nishad (AW – 1) with respect to
the date of birth mentioned therein which is erroneous.
4. The appellants have filed an application i.e. I.A. No. 01/2024 which is an
application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for
taking additional evidence on record i.e. School Leaving Certificate
mentioning the date of birth of the deceased as 18.09.1982, in view of the
date of birth mentioned in the School Leaving Certificate, age of the
deceased would come to 35 years, 04 months and 25 days on the date of
incident. The age of the Appellant No. 1 i.e. wife of the deceased is also 28
years and therefore, also, the date of birth as mentioned in the School
Leaving Certificate prima facie appears to be correct. It is submitted that the
application I.A. No. 01/2024 filed under Order 41 Rule 27 of the Code of Civil
Procedure, 1908 be allowed and the age of the deceased be taken as 35
years for the purpose of calculating the amount of compensation.
5. On the other hand, learned counsel for the Respondent No. 2 vehemently
opposes the submission made by the counsel for the appellant and
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would submit that learned Clams Tribunal on appreciating the evidence
brought on record has passed the impugned award and rightly
assessed the age of deceased as 51 years which cannot be find
faulted with. The claimants have not submitted any document to prove
the age of the deceased. The copy of the School Leaving Certificate is
filed for the first before this Court along with an application under Order
41 Rule 27 only on 21.02.2024. No reason has been assigned or no
justification has been shown stating as to why, the said document could
not be placed before the Learned Claims Tribunal in proof of the age of
the deceased. In absence thereof, the crucial evidence could not be
taken on record.
6. I have heard learned counsel for the parties and perused the records of
the claim case.
7. So far as the assessment of the income of the deceased is concerned,
the appellants/claimants have not placed on record any admissible
piece of evidence with respect to the nature of occupation and income
of the deceased. In absence thereof, the learned Claims Tribunal
justified in assessing the income of the deceased on notional basis
taking note of the minimum wages fixed by the competent authority
under the Minimum Wages Act, 1948 and therefore, it does not call for
any interference.
8. The learned Claims Tribunal has not added the amount of
compensation towards the loss of future prospects which in view of the
decision of the Hon’ble Supreme Court in the case of National
Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16
SCC 680 is erroneous. The appellants/claimants are also entitled for
addition of the income towards loss of future prospects to the assessed
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income for the purpose of calculating the amount of compensation. The
amount of compensation awarded on other heads is also on lower side
as learned Claims Tribunal has awarded only Rs. 50,000/- towards loss
of spousal consortium to the Appellant No. 1 and Rs. 25,000/- towards
the loss of love and affection to the children, Rs. 25,000/- towards the
funeral expenses. The award of the aforementioned amount of
compensation is contrary to the guideline issued by Hon’ble Supreme
Court in the case of Pranay Sethi (Supra). The claimants being
children and parents of the deceased are also entitled for loss of
parental and filial consortium as held by the Hon’ble Supreme Court in
the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @
Chuharu Ram, reported in (2018) 8 SCC and the amount of
compensation requires re-computation.
9. So far as the submission of the counsel for the appellant with respect
to the assessment of the age of the deceased to be more than 50
years on the date of accident is concerned, admittedly the document
which is relied upon by the learned Claims Tribunal is placed on record
by the non-applicants. They have not proved the said document, but
the document is exhibited based on the evidence of Appellant No. 1
Smt. Chandramani Nishad (AW – 1). This witness only accepted the
mentioning of date of birth in the documents confronted to her. The
applicants/claimants have filed copy of the School Leaving Certificate
along with an application under Order 41 Rule 27 of the Code of Civil
Procedure, 1908. The document which is placed on record is also a
government document said to issued by the school from where, the
deceased is stated to have studied. For award of just and fair
compensation, in the opinion of this Court, the document which is
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placed along with the application under Order 41 Rule 27 requires
consideration and to be proved.
10. Hon’ble Supreme Court in the case of North Eastern Railway
Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRs. (2008)
8 SCC 511, while dealing with the issue of taking additional evidence at
the appellate stage under Order 41 Rule 27 of CPC, has observed
thus:
“13. Though the general rule is that ordinarily the
appellate court should not travel outside the record
of the lower court and additional evidence, whether
oral or documentary is not admitted but Section 107
CPC, which carves out an exception to the general
rule, enables an appellate court to take additional
evidence or to require such evidence to be taken
subject to such conditions and limitations as may
be prescribed. These conditions are prescribed
under Order 41 Rule 27 CPC. Nevertheless, the
additional evidence can be admitted only when the
circumstances as stipulated in the said Rule are
found to exist. The circumstances under which
additional evidence can be adduced are:
(i) the court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted [clause (a) of
sub-rule (1)], or
(ii) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was
not within the knowledge or could not, after the
exercise of due diligence, be produced by him
at the time when the decree appealed against
was passed [clause (aa), inserted by Act 104
of 1976], or
(iii) 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 [clause (b) of sub-rule
(1)].
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14. It is plain that under clause (b) of sub-rule (1) of
Rule 27 Order 41 CPC, with which we are
concerned in the instant case, evidence may be
admitted by an appellate authority if it “requires” to
enable it to pronounce judgment “or for any other
substantial cause”. The scope of the Rule, in
particular of clause (b) was examined way back in
1931 by the Privy Council in Parsotim Thakur v. Lal
Mohar Thakur [AIR 1931 PC 143] . While observing
that the provisions of Section 107 as elucidated by
Order 41 Rule 27 are clearly not intended to allow
litigant, who has been unsuccessful in the lower
court, to patch up the weak parts of his case and fill
up omissions in the court of appeal, it was observed
as follows : (AIR p. 148)
“… Under clause (1)(b) it is only where the
appellate court ‘requires’ it (i.e. finds it
needful) that additional evidence can be
admitted. It may be required to enable the
court to pronounce judgment or for any other
substantial cause, but in either case it must be
the court that requires it. This is the plain
grammatical reading of the sub-clause. The
legitimate occasion for the exercise of this
discretion is not whenever before the appeal
is heard a party applies to adduce fresh
evidence, but
‘when on examining the evidence as it stands
some inherent lacuna or defect becomes
apparent’.”
15. Again in K. Venkataramiah v. A.
Seetharama Reddy [AIR 1963 SC 1526 :
(1964) 2 SCR 35] a Constitution Bench of this
Court while reiterating the aforenoted
observations in Parsotim case [AIR 1931 PC
143] pointed out 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 “any
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 “to
8enable it to pronounce judgment”, it still
considers 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. Thus, the
question whether looking into the documents,
sought to be filed as additional evidence,
would be necessary to pronounce judgment in
a more satisfactory manner, has to be
considered by the Court at the time of hearing
of the appeal on merits.”
11. In the case of Sanjay Kumar Singh Vs. State of Jharkhand (2022) 7
SCC 217, Hon’ble Supreme Court held as under :-
“7. It is true that 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
27CPC enables the appellate court to take additional
evidence in exceptional circumstances. It may also be
true that the appellate court may permit additional
evidence if the conditions laid down in this Rule are
found to exist and the parties are not entitled, as of
right, to the admission of such evidence. However, at
the same time, where the additional evidence sought
to be adduced removes the cloud of doubt over the
case and the evidence has a direct and important
bearing on the main issue in the suit and interest of
justice clearly renders it imperative that it may be
allowed to be permitted on record, such application
may be allowed. Even, one of the circumstances in
which the production of additional evidence under
Order 41 Rule 27CPC by the appellate court is to be
considered is, whether or not the appellate court
requires the additional evidence so as to enable it to
pronounce judgment or for any other substantial
cause of like nature.
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8. As observed and held by this Court in A. Andisamy
Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar
v. A. Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5
SCC (Civ) 514] , the admissibility of additional
evidence does not depend upon the relevancy to the
issue on hand, or on the fact, whether the applicant
had an opportunity for adducing such evidence at an
earlier stage or not, but it depends upon whether or
not the appellate court requires the evidence sought
to be adduced to enable it to pronounce judgment or
for any other substantial cause. It is further observed
that the true test, therefore is, whether the appellate
court is able to pronounce judgment on the materials
before it without taking into consideration the
additional evidence sought to be adduced.”
12. Considering entirety of the facts of the case, the object of the Motor
Vehicles Act, 1988 being a beneficial piece of legislation and further,
the decision of the Hon’ble Supreme Court in the case of Sarla Verma
& Ors. Vs. Delhi Transport Corporation & Anr. reported in 2009 (6)
SCC 121 that the claimants/members of the deceased’s family are to
be awarded just and fair compensation and therefore, I find it
appropriate to allow the application filed under Order 41 Rule 27 of the
Code of Civil Procedure, 1908. It is ordered accordingly. Consequently,
the impugned award is set-aside.
13. As the document and the copy of the School Leaving Certificate filed
along with the application i.e. IA No. 01/2024 filed under Order 41 Rule
27 of the Code of Civil Procedure, 1908 is required to be proved by
bringing cogent evidence on record, I find it appropriate to set-aside the
impugned award passed by the learned Claims Tribunal and to remit
back the case before the concerned Claims Tribunal to grant
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opportunity to the parties to prove the School Leaving Certificate in
accordance with law.
14. The learned Claims Tribunal after granting opportunity to prove the
School Leaving Certificate to the respective parties shall pass an
award afresh considering the entire evidence, keeping in mind the
decision of the Hon’ble Supreme Court in the case of Sarla Verma
(Supra), Pranay Sethi (Supra) and Nanu Ram (Supra). Parties are
directed to appear before the Claims Tribunal on 06.08.2025.
15. Registry is directed to send the records of the claim case forthwith
along with copy of order.
16. Certified copy as per rules.
Sd/-
(Parth Prateem Sahu)
Judge
Dey