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2019 DIGILAW 476 (ALL)

New India Assurance Company Ltd. v. Ram Babu

2019-02-21

KAUSHAL JAYENDRA THAKER

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JUDGMENT : Dr. Kaushal Jayendra Thaker, J. 1. Heard Sri. Arvind Kumar, learned counsel for the appellant and perused the judgment and order impugned. 2. This appeal, at the behest of the New India Assurance Company Limited, has been preferred against the judgment and award dated 31.5.1994 passed by Motor Accident Claims Tribunal/IVth Additional District Judge, Jhansi in M.A.C.T. Case No. 119 of 1991 awarding a sum of Rs. 1,08,000/- in favour of the claimants and fixing the liability of payment upon the appellant. 3. Except the fact that the driving license of the driver was fake, no other ground is raised. Skeletal facts which gave rise to this litigation is that one Tulsi Ram sustained fatal injuries and he succumbed to the said injuries in the accident which took place on 30.4.1991. The accident is not in dispute. The compensation awarded in M.A.C.P. No. 119 of 1991 is not in dispute. The insurance being in vogue is not in dispute. The only issue is regarding the factum of the license of the driver which is sought to be canvassed to be fake driving license. 4. The appellant challenges the finding of fact namely that the driver of the insured vehicle was not possessing valid driving license at the time of accident. It is submitted that on the basis of photocopy of the driving license produced by the driver holding that it shows that the driver possessed valid driving license at the time of accident is the finding of the Tribunal which is against the evidence led by the appellant herein. It is submitted that the photocopy of any document is not admissible under law. 5. It is a cardinal principle that the burden lies on the driver to prove the fact that he posses the valid driving license. The photocopy, though not admissible, was rebutted by the licensing authority i.e. the Transport Department, Kanpur who had mentioned this fact that the Licence No. N-1140/87 (Old No. 44596/KP/86) was issued in the name of Nand Kishore Azad and Licence No. 1140/KP-90 was issued by licencing Authority in the name of Nizamuddin. 6. Just by producing certificate of R.T.O. without any rebuttal evidence will not be permitted to be held that the finding is perverse and it has not been proved that the owner was aware about the fact that the license produced by the driver was fake. 6. Just by producing certificate of R.T.O. without any rebuttal evidence will not be permitted to be held that the finding is perverse and it has not been proved that the owner was aware about the fact that the license produced by the driver was fake. In absence of proving the same, the Insurance company cannot claim that they are not liable to pay any compensation. I am supported in my view by the decision in Oriental Insurance Company Limited v. Poonam Kesarwani and others, 2008 Law Suit (All) 1557 wherein the Court has held as under: "9. The question is whether the letter/certificate issued by Regional Transport Officer, Raipur (Chhatisgarh) can be considered to be a public document as defined in section 74 of the Indian Evidence Act, 1872, which required no proof or it was required to be proved by the person producing it before the tribunal by examining witnesses? A public document is a document that is made for the purpose of the public making use of it. When a public officer is under a duty to make some entries in the official book or register, the entries made therein are admissible in evidence to prove the truth of the facts entered in the official book or register. The entries are evidence of the particular facts which was the duty of the officer to record. The law reposes confidence in the public officer entrusted with public duties and the law presumes that public officers will discharge their duties with responsibility. A driving licence is issued under Chapter II of the Act. Section 26 of the Act makes it mandatory for the State Government to maintain a register known as State Register of Driving Licence. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of licence and the licence holder are entered by the Regional Transport Officer/the licensing authority in discharge of their official duty enjoined by law. The State Register of Driving Licence is record of the acts of public officers. The State Register of Driving Licence is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licence is a public document as defined by Section 74 of the Evidence Act. 10. The State Register of Driving Licence is record of the acts of public officers. The State Register of Driving Licence is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licence is a public document as defined by Section 74 of the Evidence Act. 10. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee. A certified copy of the entries made in the public record is required to be issued on payment of fee in Form-54 as laid down by Rule 150(2). Form-54 being a certified copy of a public document, namely, the State Register of Driving Licence, need not be proved by examining a witness. Once a certified copy of the entries made in the register maintained under section 26(1) read with Rule 23 is issued in Form-54 it is admissible in evidence under 77 of the Evidence Act, and no further proof of Form-54 by oral evidence by examining witnesses is required. 11. In the case in hand the information has not been furnished by the registering authority in Form-54. It had been provided in the following manner which is extracted below:- "(Hindi matter omitted) Sri M. Ibrahim 12. The aforesaid information is in the form of a letter written to the investigator appointed by the insurance company. It cannot be deemed to be a certificate or certified copy in Form-54 of the Rules. Deposit of fee would not convert the letter into a certificate under Rule 150. Therefore, the aforesaid letter issued by Regional Transport Officer, Raipur (Chhatisgarh) was required to be proved by the insurance company before the tribunal by oral evidence by examining witnesses. The insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the tribunal. The tribunal rightly refused to place reliance on the letter dated 20.4.2005. 13. The learned counsel for the appellant has urged that the application filed by the insurance company before the tribunal on 19.7.2008 was illegally rejected. The insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the tribunal. The tribunal rightly refused to place reliance on the letter dated 20.4.2005. 13. The learned counsel for the appellant has urged that the application filed by the insurance company before the tribunal on 19.7.2008 was illegally rejected. The application filed by the appellant under Order 12, Rule 2 of the Code of Civil Procedure to the effect that the claimant and the owner of the vehicle may be directed to either admit or deny the letter dated 20.4.2005 was rightly rejected by the tribunal on 19.7.2008 as the burden of proof was on the insurance company to prove that the driving licence of the driver of the offending truck was fake but the insurance company failed to discharge its burden. There is yet another to uphold the order of the tribunal dated 19.7.2008. Under Rule 221 of The Uttar Pradesh Motor Vehicle Rules, (1998) only some of the provisions of the Code of Civil Procedure had been applied to the summary proceedings before the Motor Accident Claims Tribunal. The provisions of Order 12, Rule 2 having not been made applicable to the proceedings before the tribunal, the application filed by the insurance company was not maintainable. 14. The learned counsel for the appellant has lastly urged that the application filed by the appellant under Section 170 of the Act had illegally been rejected on 2.9.2006 by the tribunal and the appellant is also challenging this order in the appeal. We have examined the relief claimed in this appeal but we do not find that order dated 2.9.2006 had been challenged by the appellant. After the application under Section 170 was rejected it was open to the appellant to challenge the order under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. But the order dated 2.9.2006 cannot be challenged in an appeal, as an appeal under Section 173(1) of the Act lies only against the award of the Motor Accident Claims Tribunal and the order under Section 170 not being an award, no appeal would be maintainable against such an order. 15. For the aforesaid reasons, we do not find any merit in this appeal. The appeal fails and is accordingly dismissed." 7. 15. For the aforesaid reasons, we do not find any merit in this appeal. The appeal fails and is accordingly dismissed." 7. I am even supported in my view by the decision in Ram Chandra Singh v. Rajaram and others, AIR 2018 SC 3789 wherein it has been held that the Insurance Company did not examine and did not come out with a case that the owner of the vehicle was aware that the license of the driver was a doubtful license and, therefore, it cannot be said that there was any breach of policy condition as envisaged in Section 147 of the Motor Vehicles Act, 1988. 8. No other ground has been orally urged as it appears that the compensation is on proper appreciation of evidence. The counsel has made oral submission, the finding on compensation is not disturbed. 9. The appeal fails and is dismissed. The interim relief shall stand vacated. The amount if yet not deposited, be deposited within 12 weeks from today. 10. This Court is thankful to Sri. Arvind Kumar, learned counsel for the appellant for getting this very old matter disposed of.