JUDGMENT : 1. Heard learned advocate Mr.Rahul R. Dholakia for the appellant. Perused the record. 2. The appellant herein is Insurance Company of one of the vehicle involved in the accident being truck trailer No.HR-11-H-0305 which took place on 20.3.2010. In such accident, in all three vehicles were involved including truck trailer No.HR-11-H-0305; so also truck No.GJ-13-V-7405 and car No.DL-3-CBF-3666. 3. Amongst the respondents, respondent No.1 is original claimant in Motor Accident Claims Petition No.268/2011 before the Motor Accident Claims Tribunal (Main), Surendranagar whereas, respondent Nos.2 to 8 are respectively opponent Nos.1 and 2 and 4 to 8. Present appellant was opponent No.3 before the Tribunal. 4. Before the Tribunal, respondent No.1 injured claimant has preferred the claim petition claiming Rs.5,00,000/- u/S.166 of the M.V. Act, 1988 from driver, owner and insurer of two other vehicles; so also from owner and insurer of vehicle which was being driven by him being truck No.GJ-13-V-7405. 5. By impugned judgment and award dated 10.8.2018, the Tribunal has awarded an amount of Rs.4,06,400/- with 9% interest to be paid by the original opponent Nos.2 and 3 being owner and insurer of truck trailer No.HR-11-H-0305 while dismissing the claim petition against opponent Nos.4, 5, 7 and 8. Respondent No.1 being driver of truck trailer No.HR-11-H-0305 has been deleted; so also respondent No.6 being driver of car No.DL-3-CBF-3666 was also deleted before the Tribunal. The respondent Nos.3 and 4 herein being original opponent Nos.2 and 4 respectively were though served remained absent before the Tribunal also. Rest of the respondents were represented by their advocates before the Tribunal who are mainly insurer of all the three vehicles and owner of the involved car. 6. After allowing all the parties to adduce evidence by impugned award dated 10.8.2018 in Motor Accident Claims Petition No.268/2011, the Tribunal has awarded Rs.4,06,400/- to respondent No.1 – original claimant for the injuries sustained by him in such vehicular accident. Such amount is bifurcated under following heads by the Tribunal: - Rs.2,30,400/- Future loss of income considering Rs.8,000/- as monthly income, and 15% disability and applying 16 as suitable multiplier since victim was aged about 32 years. Rs.16,000/- Loss of actual income Rs.12,000/- Pain, shock and sufferings Rs.8,000/- Special diet Rs.1,40,000/- Medical expenses (Bills of medicines are produced on record amounting to Rs.1,38,555/-) Rs.4,06,400/- TOTAL 7. Rs.16,000/- Loss of actual income Rs.12,000/- Pain, shock and sufferings Rs.8,000/- Special diet Rs.1,40,000/- Medical expenses (Bills of medicines are produced on record amounting to Rs.1,38,555/-) Rs.4,06,400/- TOTAL 7. However, at present, the appeal is mainly on the ground that the driver of truck trailer No.HR-11-H-0305 who held solely negligent for the accident was not holding valid driving licence and, therefore, appellant being insurer of such vehicle is not liable to pay compensation to the claimant by indemnifying its insured because of breach of policy condition regarding driving a vehicle without having valid driving licence. 8. On perusal of record, it becomes clear that except for the ground of fake licence, there is no dispute regarding nature of incident, involvement of the vehicles and, therefore those details are not required to be reproduced herein since it is well described in the impugned award and pleading also. So far as issue regarding fake licence is concerned, the appellant has tried to prove on record by producing one letter alleged to be issued by the Licensing Authority and Sub Divisional Magistrate, Phagwara. 9. It is the case of the appellant that driver of truck trailer No.HR-11-H-0305 was not holding a valid and effective driving licence to drive such vehicle. In support of such submission, the appellant has produced xerox copy of driving licence of driver of such vehicle namely Azad Singh S/o Sh. Hukam Singh from the police papers. However, such driver was deleted from the cause list before the Tribunal from claim petition and none including Tribunal; so also present appellant have ever thought it fit either to join him as an opponent or to call upon him to produce licence. It is further submitted by the appellant before the Tribunal that on getting xerox copy of licence in the name of Azad Singh S/o Sh.Hukam Singh, they tried to get it verified from the RTO, Phagwara under RTI and during such exercise, they found that driving licence of the driver of the truck trailer No.HR-11-H-0305 is fake and, therefore, they have produced photo copy of such driving licence and alleged letter received by them from Licensing Authority and Sub Divisional Magistrate, Phagwara at Exhs.81 and 82 before the Tribunal. Copies of both such documents as referred by the appellant are to be taken on record. 10. Copies of both such documents as referred by the appellant are to be taken on record. 10. Unfortunately, the appellant has failed to realize that how particular fact is to be proved on record against any person. In the present case, it is the stand of the appellant that the licence of driver of the truck trailer No.HR-11-H-0305; who was initially joined as opponent No.1 but, thereafter, deleted from the claim petition and, thereby, he was not present before the Tribunal at the time of trial of such Motor Accident Claims Petition; is fake. 11. The law of evidence is very much clear in our jurisprudence which specifically confirms that when primary evidence is available, only primary evidence is to be produced on the record and not the secondary evidence and that even in that case, unless such documents can be admitted for considering as an evidence on record, those documents are required to be proved on record in appropriate manner i.e. as per the provisions of the law. Whereby, if the appellant wants to rely upon the xerox copy of the driving licence alleged to be received from the police papers, initially, Insurance Company shall call upon the information from the Investigating Agency as per the form No.54 which is prescribed form for the purpose under the M.V. Act and Rules. It is quite clear and obvious from the Statutory provisions that Insurance Company are officially entitled to receive information in such form and Investigating Agency are duty-bound to provide such information to the Insurance Company. If such exercise is not carried out and if the Investigating Officer is not examined before the Tribunal so as to prove that the xerox copy of the so called driving licence in the name of Azad Singh S/o Sh.Hukam Singh was obtained by the Investigating Agency from the competent person who is entitled to produce it before the Investigating Agency during the investigation of crime and, thereby, it may be relied upon. In absence of such specific evidence on record produced, the driving licence produced at Exh.81 is doubtful even as if whether it is actually in existence or not. 12. Whereas, so far as Exh.82 a so called letter by the Licensing Authority and Sub Divisional Magistrate, Phagwara is concerned, there also, same principle would be applicable. In absence of such specific evidence on record produced, the driving licence produced at Exh.81 is doubtful even as if whether it is actually in existence or not. 12. Whereas, so far as Exh.82 a so called letter by the Licensing Authority and Sub Divisional Magistrate, Phagwara is concerned, there also, same principle would be applicable. The perusal of such letter makes it clear that it is not addressed to the present appellant but it is addressed to one, Azad Singh S/o Sh.Hukam Singh. However, it is submitted that though it is wrongly addressed in the name of Azad Singh, the address is that of the Licensing Authority and Sub Divisional Magistrate, Phagwara which is actual address of the appellant company and, therefore, it is only typographical and clerical error. In such state of affairs, it is required for any litigant to call upon the executer of such document/letter either to provide proper document or to call upon such person before the Tribunal for evidence and to prove that the information disclosed in such letter is nothing but the truth and that the address portion is merely a typographical and/or clerical error. It seems that the appellant has tried to call upon the witness from the Licensing Authority and Sub Divisional Magistrate, Phagwara but they could not succeed in examining any person from such office. Therefore, merely because of production of one improper letter, it cannot be considered that particular licence was fake as submitted by the appellant both; before the Tribunal as well as before this Court. 13. It is also settled legal position that if particular documents is fake, it amounts to criminal offence and, thereby, the appellant should have disclosed such fact to the Investigating Agency at the earliest so as to initiate appropriate proceedings against the person who has produced such fake document before the Investigating Agency. In absence of any such activity by the appellant only because appellant has come forward with some document and some information so as to allege that the present document i.e. licence of the driver of particular vehicle is fake, cannot be relied upon when there is no proper evidence to confirm that in-fact licence is fake. 14. In absence of any such activity by the appellant only because appellant has come forward with some document and some information so as to allege that the present document i.e. licence of the driver of particular vehicle is fake, cannot be relied upon when there is no proper evidence to confirm that in-fact licence is fake. 14. In the present case, it is undisputed fact that both these documents are produced and relied upon by the appellant only and, therefore, it is their primary duty to prove the contents of such documents by adducing appropriate evidence. 15. The perusal of letter at Exh.82 which is dated 7.8.2014 also makes it clear that the statement in such letter may not be perfectly true and correct and, thereby it can be said that it may either a half truth or otherwise. It is quite surprised to note that without disclosing that there was no licence No.5/NDL issued by such office and that such licence number was issued not in the name of Azad Singh S/o Sh.Hukam Singh but in the name of some other person and, thereby, non disclosure of the name of such other person and simple statement that they have not issued this licence in the name of Azad Singh and that too without disclosing the record, the appellant wants to rely upon such story, which would not be the correct position of law since unless such officer confirms it on oath before the Tribunal wherein claimant would have a chance to cross examining of such witness by asking him so as to confirm that such licence was certainly not issued in the name of Azad Singh S/o Sh.Hukam Singh. Similarly, the statement in such letter that such licence is hand written and they were issuing computerized licence only and, therefore, appellant has submitted to presume that xerox copy of licence produced at Exh.81 by them is fake licence has also no force. Suffice to say that there is every possibility that at given point of time because of nonfunctioning of computer system, licence may have been issued in hand writing in such book-let format. By all probabilities in the year 2009, there may not be 100% computerization in the office of Licensing Authority and Sub Divisional Magistrate, Phagwara. 16. Suffice to say that there is every possibility that at given point of time because of nonfunctioning of computer system, licence may have been issued in hand writing in such book-let format. By all probabilities in the year 2009, there may not be 100% computerization in the office of Licensing Authority and Sub Divisional Magistrate, Phagwara. 16. Therefore, Tribunal has relied upon the submissions by the advocate of the claimant that when there is no clarity in such letter that copy of driving licence which is placed before the Court is a fake licence only, it cannot be believed that the driver was not holding a valid and effective driving licence so as to exonerate the Insurance Company considering that it is breach of terms and conditions of the policy. 17. In alternatively, learned advocate for the claimant has submitted before the Tribunal that since the claimant is 3rd party and since the dispute is between the insured and insurer of the offending vehicle regarding valid licence of the driver of such vehicle, there may be an order to pay and recover an amount of compensation from its insured. 18. Therefore, though there is no substance in the appeal as per the above discussion, there is certainly reason to modify the award so as to confirm that principle of pay and recover would certainly apply to such case. 19. For doing so, there is need to call upon either of the respondent/s. However, since respondent No.1 has already submitted to pass such order before the Tribunal whereas rest of the respondent/s are either absent though duly served before the Tribunal or their liability has been exonerated by impugned award. Therefore, I do not hesitate to dispose off this appeal at such admission stage by modifying the award so as to confirm that appellant is entitled to the benefit of the concept of pay and recover the amount of compensation that may be paid by it, from its own insured, who was though served remained absent before the Tribunal. 20. The fact remains that unfortunately, Tribunal has failed to consider the basic principle of jurisprudence that taking a plea is not enough by any of the litigant, but any such plea or defence needs to be proved by the litigant, who is coming forward with such defence or plea. 20. The fact remains that unfortunately, Tribunal has failed to consider the basic principle of jurisprudence that taking a plea is not enough by any of the litigant, but any such plea or defence needs to be proved by the litigant, who is coming forward with such defence or plea. In the present case, it is a case of Insurance Company alone in its pleading that driver of the vehicle is not holding valid driving license. Learned advocate for the Insurance Company has submitted that Insurance Company has in fact taken efforts to prove such facts on record by producing several documents, copies of such list and relevant documents are to be taken on record. However, perusal of such documents clearly discloses that though Insurance Company has produced two documents on record, such documents cannot be admitted in evidence without proper proof or evidence regarding its existence, so also without proper proof or evidence regarding contents of such documents. However, in absence of any evidence regarding contents of such documents as evidence on record, such documents cannot be considered as properly proved on record and thereby, they cannot be relied upon. This may be the reason that why the Tribunal has not discussed any such document in impugned judgment and award. When there is specific provision in law to call for any person either to produce the document alone without adducing oral evidence or calling on the witness with original documents and to disclose it to the court about the record of any Government office but when the Insurance Company does not follow the basic principle of jurisprudence that how to prove particular facts before the court, such documents cannot be relied upon only because of tis production on record. There is specific provision in Evidence Act so also in Civil Procedure Code that how particular fact can be proved before the court. If such procedure is not followed and thereafter, only because such documents are exhibited on record, it is certainly irregularity in proceeding before the Tribunal and therefore, only because such documents are exhibited, it cannot be said that it is properly proved on record so as to rely upon it for coming to any conclusion that in fact license is fake. 21. 21. It goes without saying that in addition to calling such officer from Licensing Authority and Sub Divisional Magistrate, Phagwara, there are simple means available to the Insurance Company to prove that driver was not holding valid driving license, in the form of copy of statutory Form No.54 to be issued by the investigating agency; so also charge-sheet against the driver for driving the vehicle without license. Even if it is stated that driver has already produced the license before the investigating agency and therefore, it cannot be confirmed that whether it is a fake license or not, the fact remains that in such cases, it was the primary duty of the Insurance Company to convey to the investigating agency that, look, a person has produced fake document before you, which is a serious punishable offence under Indian Penal Code and therefore, in absence of following any such legal way to prove particular fact in accordance with law, the attempt by the Insurance Company would not result into any fruitful benefit in its favour so as to exonerate its liability from making payment to the victim of road accident, who is otherwise third party and not concerned with the license of the driver, who was tortfeasor. Therefore, if at all any remedy is available to the Insurance Company, in view of their pleading and an attempt to prove that license produced by the driver before the investigating agency was fake, they may avail such remedy in appropriate proceedings in accordance with law, but they cannot be exonerated from making payment of compensation to the victim of road accident. 22. 22. In 2008 (12) SCC 426 = 2008 (14) SCC 392 = 2008 AIR(SC) 1837 between NATIONAL INSURANCE CO LTD V/S GEETA BHAT Hon’ble the SUPREME COURT OF INDIA has, after relying upon other decisions on the issue, while dealing with question in regard to statutory obligation on part of an owner of a vehicle with insurance policy to cover a third party risk, vis-a-vis possession of a fake licence by a driver who had been employed bona fide by owner thereof; in a claim for death of passenger traveling in three wheeler under Sec 166 of the Motor Vehicles Act, 1988; when insurer refusing its liability on ground that license was fake held that so far as a driving licence of a professional driver is concerned, owner of vehicle, despite taking reasonable care, might have not been able to find out as to whether licence was a fake one or not and that he is not expected to verify genuineness thereof from Transport Offices and that legal set up does not absolve insurer from liability merely on ground that licence was not genuine. Thus ordered to pay compensation as awarded by Tribunal with liberty to recover the same from owner. 23. In view of above facts and circumstances and relying upon following decisions for the principle of ‘pay and recover’, the impugned order needs to be modified suitably. Therefore, the First Appeal is allowed, whereby the impugned award is modified to the extent that though Insurance Company shall make the payment of compensation to the victim of the road accident i.e. claimant, their liability is limited to that extent only and therefore, they are entitled to recover the amount of compensation deposited or paid by them as per award from the owner of the vehicle by appropriate execution proceedings. 1. National Insurance Co. Ltd. vs. Challa Bharathamma & Ors. reported in AIR2004 SC 4882; 2. National Insurance Co. Ltd. vs. Baljit Kaur & Ors. reported in (2004) 2 SCC; 3. Judgment dated 06.03.2018 in Civil Appeal No.2103 of 2018 between Singh Ram vs. Nirmala; 4. Judgment and order dated 27.03.2018 In Civil Appeal No.3315 of 2018 between U.P.S.R.T.C. vs. National Insurance Co. Ltd.; 5. Judgment and order dated 17.05.2018 in Civil Appeal No.2253 of 2018 between Amrit Paul Singh & Ors. vs. TATA AIG General Insurance Co. Ltd. & Ors.; 6. Judgment and order dated 27.03.2018 In Civil Appeal No.3315 of 2018 between U.P.S.R.T.C. vs. National Insurance Co. Ltd.; 5. Judgment and order dated 17.05.2018 in Civil Appeal No.2253 of 2018 between Amrit Paul Singh & Ors. vs. TATA AIG General Insurance Co. Ltd. & Ors.; 6. National Insurance Company Ltd. vs. Swaran Singh reported in 2004 (3) SCC 297 . 24. In view of above facts and circumstances, the appeal is disposed of but with an observation that pursuant to defence and pleading by the appellant, it would be appropriate to modify the impugned award so as to make it clear that appellant is entitled to recover the amount of compensation that may be paid by it pursuant to the impugned award from their insured and the driver in accordance with law. However, since driver was not party before the Tribunal, he would be entitled to take all defence that may be available to him in such proceedings so as to prove that the copy of licence produced at Exh.81 is either not a fake document or that he was holding valid driving licence on the date of accident. 25. The appeal is partly allowed to the above effect. Record & Proceedings, if any, be sent back to the concerned Court at the earliest.