An insurer cannot evade liability by introducing an unpleaded policy as additional evidence without due diligence.

The deceased, Purushothaman, died in a motorcycle accident while travelling as a pillion passenger. His legal heirs claimed compensation, alleging that the motorcycle rider’s rash and negligent driving caused the accident.

The Tribunal found the rider negligent and awarded Rs.57,78,369 with interest at 7.5% per annum.

The insurer appealed, disputing negligence and alleging that the deceased contributed to the accident by travelling on a two-wheeler carrying three persons. In the appeal, the insurer also sought to produce a photocopy of the policy to argue that it was an “act-only” policy that did not cover the pillion passenger’s risk.

Whether the insurer could produce the policy as additional evidence in appeal under Order XLI Rule 27 CPC.

Whether the evidence supported the Tribunal’s finding that the rider’s negligence caused the accident, or established that the accident was a “no fault” case or that the deceased was contributorily negligent.

Whether the insurer was liable to satisfy the award in the absence of a pleaded policy-based defence before the Tribunal.

Order XLI Rule 27 CPC permits additional evidence in appeal only when its requirements are met, including a sufficient basis for the failure to produce the evidence before the trial forum despite due diligence; additional evidence cannot be used to introduce an unpleaded case or repair weaknesses in a party’s case.

Negligence in a motor accident claim is determined on the evidence before the Tribunal, and closure of a criminal case does not prevent the Tribunal from independently deciding negligence.

Mere proof that three persons travelled on a two-wheeler does not, by itself, establish contributory negligence; the party alleging it must prove that overloading caused the accident.

The judgment identifies no specific precedent.

The insurer did not show that it had exercised due diligence to produce the policy before the Tribunal, despite possessing it, and offered no satisfactory explanation for producing only a photocopy. Nor had it pleaded that the policy was an “act-only” policy excluding pillion-passenger risk. The Court therefore rejected the application to introduce the policy as additional evidence.

On liability, the eyewitness testified that the rider’s rash driving caused the accident and denied that a tyre burst caused it. The Tribunal was entitled to assess negligence independently of the criminal case’s closure; the insurer produced no independent evidence that overloading caused the tyre burst or accident. The Court also held that the insurer could not rely on an unpleaded policy defence to avoid liability.

The claimants may withdraw the amount in the proportions fixed by the Tribunal. The application to produce additional evidence was dismissed; the connected miscellaneous petition was closed. No costs were ordered.