Research › Search › Judgment

Gauhati High Court · body

2022 DIGILAW 11 (GAU)

Dinesh Debnath v. Urmila Pathak

2022-01-05

MALASRI NANDI

body2022
JUDGMENT : 1. Heard Mr. S.C. Biswas, learned counsel appearing for the appellant/petitioner as well as Mr. R. Mazumdar, learned counsel appearing for the respondents. 2. This appeal has been preferred by the appellant Dinesh Debnath, owner of the truck bearing No. AS-01-C-6739 challenging the judgment and order dated 27.11.2014 passed by the learned Member, Motor Accident Claims Tribunal, Bongaigaon in MAC Case No. 228/2009, awarding compensation of Rs. 2,88,000/- in favour of the claimant/respondent and directed the appellant to pay the awarded compensation. 3. The brief facts of the case is that on 01.09.2009 at about 5.45 p.m. when the son of the claimants/respondents Bhumidahr Pathak was waiting for bus at Chapaguri on N.H. 31(C), at that time, one truck bearing No. AS-01-C-6739 coming in a rash and negligent manner knocked down the son of the claimant/respondents. As a result, he sustained grievous injuries on his person. Though he was taken to Lower Assam Hospital at Bongaigaon, but he died on the same day. 4. The facts of the accident was not denied in the appeal. The only contention raised in the present appeal is that the present appellant did not appear before the Tribunal and as such, the case was proceeded ex-parte against him and on the basis of the driving licence verification report dated 27.07.2012 produced by the Panel Investigator of the Insurance Company without summoning and examining the DTO, Bongaigaon, the Tribunal held that the driver was not in possession of Heavy Motor Vehicle (H.M.V) driving licence at the time of the accident and therefore, the judgment and order dated 27.11.2014 directing the appellant to pay the amount of compensation is not in conformity with law. 5. Learned counsel for the appellant has argued that the learned Tribunal had relied upon the driving licence verification report dated 27.07.2012 produced by the Insurance Investigator but the said report was not proved by the executant of the said report i.e. the DTO, Bongaigaon who was not examined to prove the said contention of the report and as such, the impugned judgment and order directing the appellant to make payment of the compensation awarded to the claimants is illegal. It is further argued that non-exhibition of documents is a procedural lapse. It is further argued that non-exhibition of documents is a procedural lapse. The claimants proved the accident due to rash and negligent manner by driver by oral and documentary evidence and the offending truck was insured with Insurance company and owned by the owner and therefore, the claimant is entitled to compensation and the Insurance company is liable to pay the said amount. In support of his submission, the learned counsel has placed reliance on the following case laws (i) Vimla Devi and Others Vs. National Insurance Company Limited and Another reported in (2019) 2 SCC 186 , (ii) Nirmala Kothari Vs. United India Insurance Company Limited reported in (2020) 4 SCC 49 , (iii) National Insurance Co. Ltd. Vs. Swaran Singh and Others reported in (2004) 3 SCC 297 . 6. On the contrary, learned counsel for the respondents/claimants submitted that the driver of the offending vehicle was having driving licence to drive Light Motor Vehicle (LMV) at the time of accident but the truck which he was driving on the date of accident was a Heavy Motor Vehicle (H.M.V). As such, the driver was not entitled to drive the Heavy Motor Vehicle as no such driving licence was issued to him to drive such vehicle. So the learned Tribunal has rightly passed the order holding that the appellant is liable to pay the compensation awarded as Insurance Company has no such liability as the act of the driver is against the policy of the vehicle. The learned counsel referred the following case law in support of his submissions- Jagdish Kumar Sood Vs. United India Insurance Company Limited and Others reported in (2018) 3 SCC 697 . In the aforesaid case, the definition of Light Motor Vehicle and transport vehicle etc., has been prescribed. 7. Coming to the case in hand and in respect of the evidence adduced in connection with driving licence of the offending vehicle. 8. DW-1 is Bolen Sarma, Assistant Mananger of the Oriental Insurance Co. Ltd. Who deposed in his evidence that the alleged offending vehicle bearing No. AS-01-C-6739 is a goods carriage commercial vehicle and the truck having its unladen weight 16200 K.g, fallen in Heavy goods vehicle. The witness admitted the fact that the vehicle was insured with Oriental Insurance Company Limited at the relevant time of the accident vide policy No. 322300/31/2008/3216 valid upto 20.10.2009. The witness admitted the fact that the vehicle was insured with Oriental Insurance Company Limited at the relevant time of the accident vide policy No. 322300/31/2008/3216 valid upto 20.10.2009. DW-1 further stated that they employed one Investigator i.e. Fatik Ch. Dey to investigate the case. During the course of investigation the investigator visited the District Transport Office, Bongaigaon and enquired about the licence of the driver being No. 237/BNG/proof/06. After due investigation and verification by the concerned District Transport Officer (DTO) Bongaigaon, it was reported that the driver was authorized to drive motorcycle and Light Motor Vehicle w.e.f. 21.01.2006 valid upto 12.01.2012. After getting the verification report from the DTO, Bongaigaon, the said investigator submitted a comprehensive report from which it reveals that at the relevant time of accident the driver of the vehicle was not having an effective and valid driving licence. 9. DW-2, Fatik. Ch. Dey, the investigator of the Oriental Insurance Company Limited, deposed in his evidence that he has been deputed by the Oriental Insurance Company Limited to investigate the accident case vide MAC Case No. 228/2009 and accordingly, he investigated the same. He approached the DTO, Bongaigaon to verify the licence of the driver of the offending vehicle. The offending vehicle was a truck which was driving by the driver at the time of accident and the said vehicle was a Heavy Motor Vehicle. He also verified the driving licence of the driver which was issued by the DTO, Bongaigaon on 21.01.2006 and the said licence was issued to drive motorcycle and Light Motor Vehicle. The driving licence was valid upto 12.01.2012 and the said licence was renewed on that day and valid upto 11.01.2015. At the time of the renewal of the driving licence of the driver, he was allowed to drive Light Motor Vehicle, MMV and Heavy Motor Vehicle (H.M.V). The accident occurred on 01.09.2009. On the day of accident, the driver was not allowed to drive Heavy Motor Vehicle vide Exhibit-C, which is the report of the DTO, Bongaigaon and the DTO, Bongaigaon put his signature in his presence, vide Exhibit-C-(2). 10. In his cross-examination, P.W.-2 replied that Exhibit-C was written in his personal pad and in Exhibit-C there was no official sign or signature of O.P. No. 1. 11. 10. In his cross-examination, P.W.-2 replied that Exhibit-C was written in his personal pad and in Exhibit-C there was no official sign or signature of O.P. No. 1. 11. From the evidence of DW-1 and DW-2, it reveals that the Insurance Company examined its Assistant Manager to prove the documents submitted by their investigator. The report of Surveyor is not proved on record and endorsement of licensing Authority given to the investigator. The driving licence of the driver is not available on record. The driving licence was not exhibited in the trial Court but one photocopy of the driving licence of the driver is available on record which shows that the driving licence was issued on 21.01.2006 and valid upto 12.01.2012 permitting to drive motorcycle, Light Motor Vehicle (L.M.V), MMV and Heavy Motor Vehicle (H.M.V) in connection with PSV only. But submission of Insurance Company is not enough so as to discharge the Insurance Company from its liability because no witness was examined from the office of the Transport Authority to prove the report of Transport Authority. No initiative was taken by the Insurance Company to summon witness from the Transport Authority to prove the report. Since the report of the Transport Authority was not proved in accordance with law and the same is not available on evidence, it cannot be taken into consideration. 12. Section-67 of the Indian Evidence Act lays down the mode of proof of a document which is extracted herein below:- “Proof of signature and handwriting of person alleged to have signed or written document produced.- if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Thus, any document including public document has to be proved as provided under Section 67 of the Evidence Act. 13. Section-61 of the Evidence Act lays down that the contents of documents may be proved either by primary or by secondary evidence. Section-62 thereof defines primary evidence as meaning of the document itself produced for the inspection of the Court. Thus, any document including public document has to be proved as provided under Section 67 of the Evidence Act. 13. Section-61 of the Evidence Act lays down that the contents of documents may be proved either by primary or by secondary evidence. Section-62 thereof defines primary evidence as meaning of the document itself produced for the inspection of the Court. In other words, the primary documentary evidence of a transaction is the document itself which should be produced in original to prove the terms of the contract/transaction, if it exists and is obtainable. Since Sections - 61 to 66 of the Evidence Act deal with the mode of proving the contents of the documents, either by primary evidence or by secondary evidence.” 14. Then comes the most important question viz. the genuineness of a document produced in evidence i.e. is a document what it purports to be and this is dealt with in Section-67 to 73 of the Evidence Act. Section-67 refers to documents other than documents required by law to be attested. It simply requires that the signature of the person alleged to have signed a document (i.e. the executants) must be proved by evidence that the signature purporting to that of the executants is in his hand-writing. Further it requires that if the body of the document purports to be in the hand-writing of someone, it must be proved to be in the hand-writing to that person. However, Section-67 does not in terms prescribe any particular mode of proof and any recognized mode of proof which satisfies the Judge will do. Thus, the execution/authorship of a document may be proved by direct evidence i.e. by an expert or by the opinion of a non-expert who is acquainted with the hand-writing in any of the ways mentioned in Explanation to Section 47 or even by comparison etc.- 15. The question of proof of a public document came up before Bombay High Court in C.H. Shah Vs. S.S. Mappathak & Ors., AIR 1973 Bom.14, where it was held as under:- “ 4..... The question of proof of a public document came up before Bombay High Court in C.H. Shah Vs. S.S. Mappathak & Ors., AIR 1973 Bom.14, where it was held as under:- “ 4..... In all cases of secondary evidence under Section 65 read with Section 63 of the Evidence Act when a copy or an oral account of a document is admitted as secondary evidence, the execution of the original is not required to be proved but if the original itself is sought to be tendered it must be duly proved and there is no reason for applying a different rule to public documents. Secondly, in the case of a certified copy, before a presumption of its genuineness can be raised under Section 79, as laid down by the Supreme Court in Bhinka’s case already referred to above it must be shown that the certified copy was executed substantially in the form and in the manner provided by law. There would therefore, be a check or safeguard in so far as the Officer certifying it in the manner required by law would have to satisfy himself in regard to the authenticity of the original and in regard to the accuracy of the copy which he certified to be a true copy thereof. On the other hand if the original of a public document is to be admitted in evidence without proof of its genuiness, there would be no check whatever either by way of scrutiny or examination of that document by an officer or by the Court. The third and perhaps the most important reason, for not accepting Mr. Shah’s argument on the point which I am now considering is that neither Section 67 nor Section 68 of the Evidence Act which lay down that the signature and the handwriting or a document must be duly proved do not make any exception in the case of public documents. In view of the provisions of the said section all documents whatever be their nature must be therefore be proved in the manner provided by Section, 45, 47 or 73 of the Evidence Act....” 16. Thus the certificate purported to be issued by the Transport Authority could not be admitted in the evidence unless signature thereon proved by the witness. 17. From the record of MAC Case No. 228/2009, it reveals that Exhibit-C, the letter written by the Investigator Shri Fatik Ch. Thus the certificate purported to be issued by the Transport Authority could not be admitted in the evidence unless signature thereon proved by the witness. 17. From the record of MAC Case No. 228/2009, it reveals that Exhibit-C, the letter written by the Investigator Shri Fatik Ch. Dey to DTO, Bongaigaon for verification of the driving licence No. 237/BNG/proof/06 issued in the name of Paban Das. In the said letter of the Investigator it was written by the DTO, Bongaigaon, Assam by putting his initial dated 27.07.2017, which reads as follows:- “Return in original with the intimation that the D/L No. 237/BNG/proof/06 stands in the name of Paban Das S/o Kamala Das, residence of Vill-Thuribari, W/No.3 Dist- Chirang issued on 21.01.2006 from this office authorized to drive M/C, LMV w.e.f 21.01.2006 and MMV, HMV, PSV only w.e.f 12.01.2012, last renewal done on 12.01.2012 valid upto 11.01.2015 as per this office records.” 18. From Exhibit-C, it reveals that the person who put his initial as District Transport Officer, Bongaigaon was not examined in this case. It cannot be ascertained what is the name of the person who put his initial as DTO, Bongaigaon. The Investigator who was examined as DW-2 also did not refer the name of the person who put his initial as DTO, Bongaigaon in Exhibit-C. As such, Exhibit-C cannot be taken into consideration as proved to be report of DTO, Bongaigaon regarding licence verification of the driver of the alleged offending vehicle. Since, the report of the Transport Authority was not proved in accordance with law, the same is not admissible in evidence. 19. Under such backdrop, I am of the opinion that to fasten the liability on the driver/owner of the vehicle to pay compensation it is required to be proved that the driver was not having valid and effective driving licence on the date of accident. Hence, the case (MAC Case No. 228/2009) is remanded back to the concerned Tribunal with a direction to examine the person who put his signature as DTO, Bongaigaon to prove the report submitted by him. Otherwise, the Insurance Company has the option to collect fresh report from the DTO, Bongaigaon on proper verification of the driving licence of the driver of the alleged offending vehicle and on receipt of the report, the learned Tribunal will proceed as per provision of law as referred aforesaid. 20. Otherwise, the Insurance Company has the option to collect fresh report from the DTO, Bongaigaon on proper verification of the driving licence of the driver of the alleged offending vehicle and on receipt of the report, the learned Tribunal will proceed as per provision of law as referred aforesaid. 20. With the aforesaid observations, the appeal stands disposed of. LCR be returned back.