Madhya Pradesh High Court
National Insurance Co. Ltd. vs Ajay Deshmukh And Ors. on 28 August, 1997
Equivalent citations: 1999ACJ1556, 1998 A I H C 5011, (1998) 1 MPLJ 542, (1998) 3 CIVLJ 295, (1998) 2 TAC 254, (1999) 2 ACJ 1556
Author: R.P. Gupta
Bench: R.P. Gupta
JUDGMENT R.P. Gupta, J.
1. This appeal is directed against the award dated 31.8.1995, of Motor Accidents Claims Tribunal, Seoni, whereby a sum of Rs. 59,700 was awarded to the respondent No. 1, claimant, whose house and other property inside the house was damaged by the insured vehicle, namely, truck No. MPJ 3652 driven by one Bhuvanlal, respondent No. 2. The truck belongs to Rajendra Chourasia, respondent No. 3. The award has been passed against the insurance company, the driver as well as the owner of the truck.
2. A preliminary objection has been raised by the counsel for the respondent No. 1 that the appeal is barred by time and there is no good reason to condone the delay. The appeal is said to have been delayed by 19 days over and above the allowable period of 90 days. The award in this case was passed on 30.8.1995 and the appeal was filed on 18.12.1995. If we count from the date of award, limitation period of 90 days would expire on 29.11.95. The plea taken by the appellant in application for condonation of delay is that he did not get copy of award from the Tribunal as was required, that the Tribunal did not give a copy of the award to the company as was required by Section 165(2) of the Motor Vehicles Act. The provision requires that Tribunal shall give copy of award to the parties, while announcing the award. The copy was given only on 19.9.1995. An affidavit to that effect has been filed by an official of the company.
3. The learned Counsel for respondent No. 1 argues that the appellant should have obtained the copy and that copy must have been taken on 30.8.1995 and there is no proof that it was taken on 19.9.1995. No acknowledgement of receipt of copy has been got proved, according to his argument.
4. After giving my attention to the respective contentions and going through the certified copy of the award placed on record, it appears that it does not bear any date as to when the copy was prepared. Apart from this, there is a copy of memo of costs also filed which shows that the application was moved on 15.9.1995 and the appellant was asked to appear on 20.9.1995. But further it shows that the copy was delivered on 15.9.1995 itself. Whatever be the connotation of such entries regarding dates, it appears clear that such a memo was not supplied at least on the date of award and it does not show when the original copy was prepared. Of course, memo of costs is not an essential part of the award but it depicts how the office of the Tribunal has been working regarding the delivery of copies. Under these circumstances, the contention of the appellant that copy was not delivered to them as per Section 168(2) of the Motor Vehicles Act, on the date of the award, cannot be ignored. I find sufficient reason to condone the delay as it is not sure whether the appeal was at all time-barred. So that objection is overruled.
5. The only point mooted at the bar regarding merits of the claim is that the driver Bhuvanlal did not have a valid licence to drive the vehicle and the liability of the insurance company could arise only if he had a valid driving licence. The Tribunal has held that it is not proved that the licence of the driver produced before the Tribunal was forged. There is no dispute that this driving licence was renewed by R.T.O., Seoni, M.P., for a period up to 17.9.95. The Tribunal noted that the insurance company has produced a certificate from R.T.O., Jaipur, that no driving licence had been issued in favour of Bhuvanlal. That certificate was produced in court. The claimant had objected that it was not properly proved and it did not prove its contents as nobody from R.T.O., Jaipur, had been examined or called as a witness.
6. The mere certificate purporting to be obtained from some Regional Transport Office is not a public document under Section 35 of Evidence Act. Such certificate is not issued under any statutory rules nor is required to be so issued. So it does not prove itself. It is a statement about state of affairs in the documents of the Regional Transport Office concerned. That statement would remain a hearsay unless the person who gives a certificate appears before the court with the document.
7. The learned Counsel for appellant urges that the insurance company in such a case had a disadvantage when forged driving licence is produced from far off R.T.O., a thousand or more kilometres away, as they are unable to get the officers of such office produced before the Claims Tribunal by ordinary summons. They do not turn up and no action is taken for their non-appearance. The procedural difficulty may be there, but that would not obviate the necessity of proper proof. The appellant could have got interrogatories issued to examine the R.T.O. before the court at the place where R.T.O. is situated. They did not take this option but that could not mean that the certificate produced by them should be taken as a certificate admissible in evidence without proof. The learned Counsel for appellant has not been able to satisfy that such a certificate can be covered as a public document under Section 35 of Evidence Act. The mere fact that it may have been issued by an official or officer of R.T.O. concerned does not make it a public document within the meaning of Section 35 of Evidence Act. Section 35 of Evidence Act may be noticed as under:
Relevancy of entry in public record made in performance of duty.-An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.
8. A very reading of this provision shows that entry in the public record or register made in discharge of public duties by a public servant is covered by this provision and when such an entry exists, a certified copy of that entry may be produced under Section 74 read with Section 65 of the Evidence Act. It may be that copy of records could not be produced in this case as according to the counsel, the name of the driver did not exist in the record. In such a case, when the onus admittedly lies on the insurance company, it was for them to decide what procedure they could adopt to prove this fact. One of the procedures could be by getting commission by interrogatories issued to the court at the place where the concerned R.T.O. is situated to examine the concerned officer or official of R.T.O., Jaipur.
9. The net result of my discussion is that the certificate produced by the appellant could not be called as an admissible evidence and could not be acted upon by the Tribunal. When admittedly a driving licence had been renewed by R.T.O., Seoni, in favour of this driver, no presumption could arise, without proof, that original driving licence might have been forged. In these circumstances, the objection of the insurance company that the driver had no valid driving licence was rightly rejected by the Tribunal.
10. No other point arises in this appeal. The appeal fails and is dismissed. The award of Claims Tribunal is confirmed. However, in view of the legal question regarding admissibility of the alleged certificate from R.T.O. as evidence, I leave the parties to bear their own costs in this appeal.