JUDGMENT : Kalyan Rai Surana, J. 1. Heard Ms. N. Talukdar, the learned counsel appearing for the appellant, Mr. K.K. Bhatta, learned counsel for the respondent No. 1. Mr. B.J. Mukherjee learned counsel appearing for the proforma respondent Nos. 5, 6 and 7. This is an appeal under section 96 of the CPC. The appeal is directed against the judgment and decree dated 23.07.2008 passed by the learned Civil Judge (Senior Division) No. 3, Guwahati in Money Suit No. 72/2000. For the sake of convenience, the parties are referred as per their respective position in the array of the parties in the plaint. 2. The short facts of the case is that the plaintiff i.e. New India Assurance Company Limited was the insurer of the goods which were sent from Guwahati office of Gujarat Co-operative Milk Marketing Federation Ltd. to its Silchar depot. The said insured are arrayed as proforma defendant in the suit. The goods were transported through Abhiyan Carriers Limited. The said carrier along with its partner/Director were arrayed as defendant Nos. 1 to 4 in the suit. The goods were booked on 06.01.1998. The carrier consignment lot No was 43834 Y685 dated 6.1.98. According to the invoice No. 545 dated 6.1.1998 the value of the goods was Rs. 7,33,528.20p. 3. In course of transit from Guwahati to Silchar, the consignment was lost. Coming to know about the missing consignment, the defendant No. 1 tried to trace out the truck and in the meanwhile an FIR was also lodged with the Dispur Police Station on 19.01.1998. Claiming the loss, the proforma defendants lodged a claim with the plaintiff/insurer claiming the sum of Rs. 8,06,881.02p. The defendant No. 1/transporter admitted the loss of consignment, and also acknowledged the receipt of claim. As the defendant No. 1/transporter did not make payment, the plaintiff/insurer made the payment of the claim of Rs. 8,06,881/- to the proforma defendants. In the meanwhile, the proforma defendants issued a 'letter of subrogation' in the favor of the plaintiff on 20.01.1998, thereby assigning and transferring all their rights to the insurer. Having the full right and authority, the plaintiff filed a suit for recovery of the amount of Rs. 8,06,881/- along with the interest @ 18% from 14.09.1998 till the date of realization. 4. The defendant Nos. 1 to 4 who are the appellants herein contested the suit by filing written statement. Having the full right and authority, the plaintiff filed a suit for recovery of the amount of Rs. 8,06,881/- along with the interest @ 18% from 14.09.1998 till the date of realization. 4. The defendant Nos. 1 to 4 who are the appellants herein contested the suit by filing written statement. On the basis of the pleadings of the parties, the learned Trial Court framed the following issues:- 1. Whether the suit is maintainable? 2. Whether the suit is barred by limitation? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether notice u/s. 10 of the Companies (sic.) act has been served upon the defendant? 5. Whether the defendant No. 1 is a common carrier? 6 whether the defendant company issued Marine Policy No. 21/220701/00029 and said policy was valid from 1.4.97 to 31.3.02? 7. Whether the proforma defendant No. 4 with the defendant No. 1 booked as alleged consignment. 8. Whether the letter on subrogation was executed in favour of defendant? 9. Whether the plaintiff is entitled to get a decree as prayed for? 10. What any other relief or reliefs the pa-ties are entitled to? 5. The plaintiff has examined 3 (three) witnesses and exhibited 13 (thirteen) documents and the defendant side examined one witness. The issue Nos. 1, 2, 3 and 5 appear to be formal. It appears that there is an error in framing the issue No. 4 which ought to be 'whether notice under section 10 of the Carriers Act had been served on the defendant' as the name of the Act has been wrongly mentioned as Companies Act. 6. These issues were answered in favor of the plaintiff by holding that the suit was maintainable and not barred by limitation and not barred by non-joinder of necessary parties and it was held that notice under section 10 of the Carriers Act having been served, the defendant No. 1 was a common carrier. In respect of issue No. 8 it appears that there is a mistake in framing issue and it should have been that 'whether the letter of subrogation was executed in favor of the plaintiff.' This issue was also answered in favor of the plaintiff. Thus, the only two issues which are required to be addressed in this appeal are the issue Nos. 8 and 10. 7. Thus, the only two issues which are required to be addressed in this appeal are the issue Nos. 8 and 10. 7. In respect of the said issues, the learned Trial Court by going through the evidence has held that the proforma defendant No. 4 (sic. should have been proforma defendant No. 5) had booked the consignments with the defendant Nos. 1 and 4 and it was held that the common carrier is responsible for the safety of the goods entrusted to him on all events except those arising out of Acts of God and therefore, the common carrier was bound to deliver the goods safely and when the goods are in his custody, the liability of the transfer is like that of an insurer and therefore lodging an FIR about the missing loaded truck could not absolve the carrier from its liability and therefore, it was held that the plaintiff had successfully proved that because of the negligence of the defendant or their servants or agents, the loss or damage to the consignment has taken place and therefore, the suit was decreed by ordering recovery of Rs. 8,06,881/- with interest @ 18% per annum till the date of decree and future interest @ 6% per annum on the said amount from the date of decree till realization. 8. The learned counsel for the appellant has raised 2(two) short points in support of her appeal. It is stated that exhibit 13, which is the insurance policy was not proved in original, but a photocopy was exhibited and the other submission was that although the consignment/bill/invoice No. 545 dated 6.1.1998 was for a sum of Rs. 7,33,528.20p (exhibit-3) the plaintiff insurer had made payment of a sum of Rs. 8,06,881 on the basis of a subsequently manufactured invoice dated 16.1.98 (exhibit-7). 9. On these two issues, per contra, the learned counsel for the respondent has submitted that the insurance policy, which was proved as exhibit-13 was a certified copy issued by the Regional Manager of Regional Office, Guwahati and it was duly marked as exhibit-13 without any objection. 8,06,881 on the basis of a subsequently manufactured invoice dated 16.1.98 (exhibit-7). 9. On these two issues, per contra, the learned counsel for the respondent has submitted that the insurance policy, which was proved as exhibit-13 was a certified copy issued by the Regional Manager of Regional Office, Guwahati and it was duly marked as exhibit-13 without any objection. Moreover, it was submitted that in respect of exhibit 3 and 7 that while exhibit-3 was a copy of the invoice attached to the consignment, the insurance claim was made on the invoice dated 16.01.1998 (exhibit-7), which was on the basis of the market value of the goods and in the said documents it was mentioned about the invoice dated 06.01.1998 and the consignment note dated 06.01.1998. In respect of exhibit-13, which is the insurance policy, the learned counsel for the respondent has relied on the judgment passed by the Hon'ble Supreme Court of India in New India Assurance Company Ltd. v. Rakesh Talwar, (2000) 9 SCC 229 to project that in the said case the officer of the Insurance company was examined as RW2 and he had proved the certified copy of the note in respect of the insurance policy showing the time when the insurance was issued and it is on the basis of the said observation that the Hon'ble Apex Court had allowed the appeal. 10. It is submitted that in view of the same it would be incumbent on this Court to accept that the insurance Company was authorized to issue a certified copy of the insurance note and there is no infirmity in accepting the exhibit-13 as a due proof of the insurance policy and it should be held that the said document was admissible in evidence. 11. In the same context, reliance is also placed on the judgment of Full Bench of the Hon'ble Punjab and Haryana High Court in the case of United India Insurance Company Limited v. Kamala Rani & Ors., 1997 Legal Eagle 1925. The relevant paragraph 5 is quoted below:- "5. The Insurance Company with which Tempo No. PCN 9097 was insured, took the plea that the maximum liability of the Insurance Company is limited to Rs. 50,000/- under the Motor Vehicles Act. The Insurance Company also raised some other pleas which are not relevant for the purpose of deciding this appeal. The relevant paragraph 5 is quoted below:- "5. The Insurance Company with which Tempo No. PCN 9097 was insured, took the plea that the maximum liability of the Insurance Company is limited to Rs. 50,000/- under the Motor Vehicles Act. The Insurance Company also raised some other pleas which are not relevant for the purpose of deciding this appeal. The parties to the claim adduced evidence and the copy of the Insurance Policy was marked as Exhibit R-1 by the Tribunal on its being produced by the Insurance Company." 12. It has been held by the said Hon'ble High Court that a certified copy of the insurance policy is admissible under section 74 read with section 77 of the Evidence Act, 1872 without any formal proof. The relevant paragraph 36 and 37 are quoted below:- "36. Section 74 of the Indian Evidence Act provides that the documents forming the acts or records of the acts of public officers, legislative, judicial and executive of any part of India or of the commonwealth or of a foreign country are public documents. The Evidence Act, however, does not define the public officers. Therefore, the meaning of public officers has got to be taken in the ordinary sense. Public officer is defined in Section 2(17) of the Code of Civil Procedure. 37. Under Sub-clause (h) of Section 2(17) of the Code of Civil Procedure, every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty is a public officer. This definition can safely be taken in the ordinary sense to be the definition of a public officer. Therefore when the Governmental company is required to issue the certificate of insurance/policy of the insurance in the form prescribed by the Government and maintain the register of the policies and when the Government is empowered to issue directions to the insurance companies, it can safely be held that policies of insurance or certificate of insurance and cover notes issued by the companies in performance of their statutory duties can be classified as public documents within the meaning of Section 74 of the Evidence Act. When certificate of insurance/policy issued by the insurance company is a public document, the same can be proved by production of a certified copy under Section 77 of the Indian Evidence Act. When certificate of insurance/policy issued by the insurance company is a public document, the same can be proved by production of a certified copy under Section 77 of the Indian Evidence Act. We are, therefore, of the opinion that a certified copy of insurance policy produced by the insurance company which issued it is admissible in evidence without any formal proof of it. If the insured i.e. the owner of the vehicle disputes the correctness of the said certified copy, it is for him to produce the original which will be in his custody only. We are, therefore, of the opinion that certified copy of insurance policy is admissible in evidence under Section 74 read with Section 77 of the Indian Evidence Act without any formal proof. We, therefore, overrule the decisions in Malwa Bus Service (P) Ltd. and Anr. v. Amrit Kaur and Anr., (1987-1)91 P.L.R. 618, and Oriental Insurance Co. Ltd. v. Chandrawati etc., (1989-1)95 P.L.R. 240)." 13. It is therefore submitted that the present appeal is devoid of any merit and the same is directed to be dismissed. 14. Mr. B.J. Mukherjee, the learned counsel appearing for the proforma respondents (i.e. proforma defendants Nos. 5, 6 and 7) submits that he is only for the proforma respondents, therefore, on merit he has nothing to say but in view of the question of law arising out of the acceptance of certified copy of the insurance policy, he supported the arguments made by the learned counsel for the respondent No. 1. 15. On the basis of the submissions made by the parties, the following points of determination have been raised for decision by this Court:- 1. Whether a certified copy issued by the Regional Manager of the Insurer is admissible within the meaning of section 65 of the Evidence Act and under section 74 and section 76 of the Evidence Act and whether the same can be introduced in evidence? 2. Whether by ignoring the invoice dated 06.01.1998 (exhibit-3), the decree can be passed for recovery of an amount covered by invoice dated 16.01.1998 (exhibit-7)? 16. 2. Whether by ignoring the invoice dated 06.01.1998 (exhibit-3), the decree can be passed for recovery of an amount covered by invoice dated 16.01.1998 (exhibit-7)? 16. In the matter of whether the photocopy of the Insurance policy as certified by the Regional Manager can be accepted as a certified copy of a public document and whether it was permissible for the Regional Manager to issue a certified copy, this Court in the quest to understand the law in this regard, has visited the various provision of law in this regard. 17. Section 74 of the Evidence Act, 1872 provides for public document. Section 74 is quoted below:- "74. Public documents.-The following documents are public documents:- (1) Documents forming the acts, or records of the acts- (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; of any part of India or of the Commonwealth, or of a foreign country; (2) Public records kept in any State of private documents." Therefore from the plain reading of section 74 of the Evidence Act, 1872 a document forming the acts or record of the acts of (i) sovereign authority, (ii) of official bodies, and Tribunal, (iii) of public officers, legislative, judicial and executives of any part of India or of the commonwealth or of the foreign country, public record kept in any State of private document are only considered to be a public document. Therefore, another question arises whether a Regional Manager of Insurance Company can be termed as a public officer. 18. The Insurance companies are covered by the Insurance Act, 1938. Prior to amendment of the Insurance Act, 1938 by Act 5 of 2015 with effect from 26.12.2014, only the whole time Chairman, whole time Director, Auditor, Liquidator, Manager and any other employees of an Insurer shall be deemed to be a public servant for the purpose of Chapter IX of the IPC. The Chapter DC of the IPC covers the provision of section 161 to 171 which is connected to offences by or relating to public servant. The Chapter DC of the IPC covers the provision of section 161 to 171 which is connected to offences by or relating to public servant. However, this provision has been deleted/omitted by the amending Act i.e. Act 5, 2015 and, as such, this Court is unable to find any other provision contained in the Insurance Act, 1938 to deem a Regional Manager of the respondent No. 1 i.e. New India Insurance Company Limited to be a public officer under the Insurance Act, 1938. The provision of 107-A as existed prior to 26.12.2014 is quoted below - "107-A. Chairman, etc. to be public servants.- Every whole-time Chairman, whole-time director, auditor, liquidator, manager, and any other employee of an insurer shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Public Code." 19. Therefore, in the absence of anything to the contrary this Court is unable to accept that the certified copy can be issued by the Regional Manager of the respondent No. 1. There is no provision in the Insurance Act, 1938 to accept an insurance policy to be a public document within the meaning of section 74 (1) (iii). The public officer referred therein is required to be read as (i) a public officer of the legislative, (ii) public officer of the judicial, and (iii) public officer of the Executive. Thus this Court is unable to accept that a Regional Manager of an Insurance Company can be termed to be a public officer within the meaning of section 74(1) (iii) of the Evidence Act The Insurance policy also cannot be said to be a public record kept of a private document. It would be now relevant to quote section 76 of the Evidence Act, 1872:- "76. It would be now relevant to quote section 76 of the Evidence Act, 1872:- "76. Certified copies of public documents.- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. Explanation.-Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section." 20. As per the requirement of section 76, a public officer having the custody of public document, of which any person has the right to inspect, can give on demand a copy of it on payment of legal fees. In this regard it is well known when one applies for certified copy of the judgment of the Court or a certified copy of the sale deed or certified copy of the public record, one is required to pay the requisite fees/charges as prescribed by law. A reference may be made to Appendix-C of the Gauhati High Court Rules which provide for rules under the Bankers Books Evidence Act, 1891 which prescribes how an application for an order under Banker's Books Evidence Act shall be made and what is the requisite searching fees, keeping charges and fees for a certificate under section 6 of the said Act levied and how such cost are required to be paid. 21. Therefore, under the prescribed procedure only, a certified copy is issued. If any other document is certified as a true copy it takes a character only of an authenticated or self-attested copy. A ready example is free copy of orders passed by Debts Recovery Tribunal. The Insurance Act, 1938 does not prescribe any provisions for issuance of a certified copy under the Insurance Act, 1938. If any other document is certified as a true copy it takes a character only of an authenticated or self-attested copy. A ready example is free copy of orders passed by Debts Recovery Tribunal. The Insurance Act, 1938 does not prescribe any provisions for issuance of a certified copy under the Insurance Act, 1938. Section 110-B of the Insurance Act, 1938 prescribes of the manner in which the signature must be affirmed on the document but on bare perusal of the said provision shows that the signature must be in respect of an authorization under section 42(1) of the said Act, which is a provision for appointment of a person to act as an Insurance agent. The provision of section 110 (B) and sub-section 1 of section 42 of the Insurance Act, 1938 is quoted below:- 110 (B) of the Insurance Act, 1938 "110B. Signature of documents.-Every document which is required by this Act or by any rule made thereunder to be signed by the [Chairperson of the Authority] or by any person subordinate to him or by any officer authorised by him under sub-section (1) of section 42 shall be deemed to be properly signed, if it bears a facsimile of the signature of such Chairperson of the Authority, person or officer printed, engraved, lithographed or impressed by any other mechanical process approved by the Central Government." Sub-section 1 of section 42 of the Insurance Act, 1938 "42. Licensing of insurance agents. Licensing of insurance agents. (1) The Authority or an officer authorised by it in this behalf shall, in the manner determined by the regulations made by it and on payment of the fee determined by the regulations, which shall not be more than two hundred and fifty rupees, issue to any person making an application in the manner determined by the regulations, a licence to act as an insurance agent for the purpose of soliciting or procuring insurance business: Provided that,- (i) in the case of an individual, he does not suffer from any of the disqualifications mentioned in sub-section (4); and (ii) in the case of a company or firm, any of its directors or partners does not suffer from any of the said disqualifications: Provided further that any licence issued immediately before the commencement of the Insurance Regulatory and Development Authority Act, 1999 shall be deemed to have been issued in accordance with the regulations which provide for such licence." 22. Therefore, if the respondent No. 1 has put a signature on the document as done by the Regional Manager in Exhibit-13, going by the provisions of section 110(B), it was incumbent on the plaintiff to also prove that the process of affixing the signature on the document was done in a manner 'approved' by the Central Government. 23. The further requirement of section 76 of the Evidence Act that the officer issuing the certified copy must be authorized by law to make use of a seal and therefore it becomes incumbent for the insurer to also show that the Regional Manager of the respondent No. 1 was authorized to use his signature and seal to issue a certified copy. For e.g. when a certified copy is issued by this Court, there is a High Court Rule under Part 4 Chapter 13 of the Gauhati High Court Rules authorizing a person to issue a certified copy and their authority, so far as this Court rules are concerned, are delegated under Rule 35 of Chapter XIII. Therefore, there is a prescribed manner for issuance of a certified copy. It may be also relevant to state that there appears to be no provision in the Insurance Rules, 1939 for issuing a certified copy of Insurance policy. 24. Therefore, there is a prescribed manner for issuance of a certified copy. It may be also relevant to state that there appears to be no provision in the Insurance Rules, 1939 for issuing a certified copy of Insurance policy. 24. In view of the discussions made above, with all humility and with greatest respect the Hon'ble Punjab and Haryana High Court, this Court is unable to accept the view taken by the said Hon'ble Court in the case of Kamala Kari and others (supra). This Court is inclined to hold that the Regional Manager, New India Insurance Company Limited is not the prescribed authority to issue a certified copy of the Insurance policy and therefore, exhibit-13 remains to be a photocopy of the said Insurance policy and therefore, unless the condition precedent as provided in section 63 and 65 of the Evidence Act are existing and proved, the secondary evidence in photocopy and/or copy 'certified by some officer of the insurer' remains as a secondary evidence and is inadmissible in evidence in view of failure to produce primary evidence. 25. Referring to the case of Rakesh Talwar (supra), in the humble opinion of this Court the reference 'that the certified copy was proved' was not the issue decided. The issue before the Hon'ble Supreme Court of India was whether the policy was issued prior to the time of incident or later on at the time of incident and therefore it was the inquiry by the Hon'ble Supreme Court was only with regard to the time when the policy was taken. The Hon'ble Supreme Court was neither dealing with nor had it decided the issue whether the copy which was on record was a photocopy and marked as a certified copy or whether the copy of the policy was a certified copy within the meaning of section 76 of the Evidence Act. 26. Therefore, the said observation by the Hon'ble Supreme Court on 'certified copy' is neither an 'dicta' nor has an essence of an 'obiter'. 26. Therefore, the said observation by the Hon'ble Supreme Court on 'certified copy' is neither an 'dicta' nor has an essence of an 'obiter'. Therefore, as this Court has not found any provision in the Insurance Act, 1938 that a Regional Manager was authorized to issue a certified copy, this Court is not inclined to accept the argument advance by the learned counsel for the respondent No. 1 and supported by the learned counsel for the proforma respondent that photocopy of the Insurance policy which was referred as certified copy marked as Exhibit-1 is admissible in evidence, as it is not a certified copy under section 74 and section 76 of the Evidence Act. Therefore, the first point of determination is answered in the negative, in favor of the appellant and against the respondent No. 1 by holding that the Exhibit-13, which was a photocopy of the Insurance policy is not admissible in evidence. 27. Coming to the second point of determination, from the evidence of PW-1 Ajit Kr. Paul, AAO of New India Insurance Company Limited as well as PW-2, Ujjal Baruah, Senior Executive, Accounts, Gujarat Co-operative Milk Marketing Federation Limited and Parul Chandra Borgohain (PW 3), Deputy Manager Legal, of respondent No. 1's they are in unison by stating that the goods booked by consignment lot 691 1988 (exhibit -2) was in respect of the goods covered by invoice No. 545 dated 06.01.1998 (exhibit-3) which was valued at Rs. 7,33,528.20p, and the consignment was covered by the marine policy (exhibit-13). However, there is no evidence as to why when the value of goods in the consignment was Rs. 7,33,528.20p, the respondent No. 1/insurer entertained a claim for Rs. 8,06,881/- vide (exhibit-7) which is dated 16.01.1998. There is no evidence to show how the value of goods transported on 6.1.1998 supported by exhibit-3 which is invoice dated 6.1.1998 could change on 16.1.1978, and why bill dated 16.1.1998 was prepared at all during the subsistence of bill dated 06.01.1998. 28. Goods like milk, ghee, etc. which are transported was definitely not the goods having speculative market value like gold, silver, shares etc. for which the market value prevailing on the date is to be reckoned. Therefore, when the declared value of the goods as per the exhibit-3 was Rs. 7,33,528.20p, the claim based on exhibit-7, which is invoice dated 16.01.1998 for an amount of Rs. 8,06,881.02p is not sustainable. for which the market value prevailing on the date is to be reckoned. Therefore, when the declared value of the goods as per the exhibit-3 was Rs. 7,33,528.20p, the claim based on exhibit-7, which is invoice dated 16.01.1998 for an amount of Rs. 8,06,881.02p is not sustainable. This Court being the First Appellate Court is the last Court of facts and therefore, this Court has the power to look into this aspect of the matter despite objection by the learned counsel for the respondent that these issues were never raised by the appellant before the learned Trial Court. 29. This Court finds that the aforesaid matter were not appreciated by the learned Trial Court. On considering the fact that the respondent No. 1 is a public institution, this Court deems it fit to remand the matter back to the learned Civil Judge No. 3, Kamrup (Metropolitan), Guwahati (as it is now known) for a fresh adjudication. The matter would be adjudicated afresh by giving opportunity to the parties to prove their respective case in accordance with law. 30. This order of remand is made in the provision of Order XLI Rule 23-A CPC. 31. The appeal, therefore stands allowed. The parties are directed to bear their own costs. Send back the LCR forthwith. 32. As the suit is of the year 2000, in order to avoid further delay, the parties who are duly represented by the learned counsel are directed to appear before the learned Civil Judge No. 3, Kamrup(M), Guwahati on 30.10.2017 without any further notice. And by producing a certified copy of this order, shall seek further instructions from the said learned Court. The parties are left to bear their own costs.