Gauhati High Court
Oriental Insurance Co. Ltd vs Abdul Rahim & Anr on 18 April, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
MFA 237/2010
Oriental Insurance Co. Ltd. .....Appellant
-Vs-
1. Md. Abdul Rahim
2. Sri D K Bora .......Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Appellant : Mr. S Dutta, Sr. Advocate Ms. M Choudhury, Mr. D Baruah, Mr. D Chakraborty, Mr. M Choudhury ............Advocates Advocates for the Respondents : Mr. A Goswami, Mrs. C K Goswami, Mr. J Rahman, Mr. B Deka, Mr. P Jain, Mr. K Bhardwaj, ............Advocates Date of Hearing : 23.03.2017 Date of Judgment : 18.04.2017 JUDGMENT AND ORDER (CAV) Heard Mr. S. Dutta, learned Senior Advocate for the appellant and Mr. B. Deka, learned counsel for the respondent No.1/ Claimant. None appears for the respondent No.2 on call.
Page 1 of 122) The case of the respondent No.1/ claimant, namely, Md. Abdul Rahim is that in course of employment as a handyman in bus bearing registration No. AS- 01-C-2608, his son Toibur Rahman died in a road traffic accident on 22.12.2002, when at about 9:00 am, due to steering failure, the said bus which was going from Nagaon towards Kaziranga hit a roadside tree and turned turtle at Gumuthagaon under Nagaon Police Station. The driver had a valid licence and the said bus was insured with the appellant.
3) The respondent No.1/ claimant, having lost his 21 year old son in a motor vehicle accident in course of employment, filed a petition before the Commissioner, Workmen's Compensation, Nagaon (hereinafter referred to as the "learned Commissioner" for brevity), claiming compensation. The respondent No.2 herein, namely, Sri D.K. Bora, who was the owner of the bus filed his written statement, but thereafter, did not participate in the case before the learned Commissioner. However, the respondent No.1/ claimant had summoned the Respondent No.1 to give his evidence in the case. He was, however, examined as OP-1. The said claim was allowed by the judgment and award dated 26.11.2008, passed by the learned Commissioner, Workmen's Compensation, Nagaon (now Employees Compensation), by awarding a sum of Rs.3,27,865/- (inclusive of funeral expenses) in favour of the respondent No.1/ claimant, which was directed to be paid by the appellant. The said judgment and award is challenged in this appeal.
4) This appeal was admitted by order dated 20.08.2010 on the following substantial questions of law:-
1. Whether the daily allowance received by the claimant can form a part of the monthly wages?
2. Whether the liability to pay the compensation amount awarded to the Handyman can be fastened upon the assurance of the appellant in absence of policy coverage for him?Page 2 of 12
5) The main ground for challenging the said judgment and award is that the respondent No.2 had not insured the bus in respect of any claim in respect of workman like handyman employed therein. No payment of any extra-premium was paid by the respondent No.2 and, as such, no award for paying any compensation could have been made against the appellant. This is the only short point involved in the present case.
6) In respect of this ground, the learned Commissioner had recorded in the impugned judgment and award that the appellant had argued that the indemnifier may be made liable only if it is satisfactorily proved (i) that there is a proper and valid insurance policy covering the risk of the owner of the vehicle; (ii) that the alleged workman was employed by the owner of the vehicle and the injury was sustained by him in course of and out of his employment; and (iii) that the driver of the vehicle had a valid and effective driving licence at the relevant time of the alleged accident. The appellant had taken a plea in its additional written statement that the appellant had not realized any extra premium from the respondent No.2 for the coverage of the risk of the handyman at the relevant time of accident, as such, the appellant was not liable to pay any compensation to the respondent No.1/ claimant as per certificate of policy conditions.
7) The respondent No.1 entered the witness box as PW-1 to examine himself and he was cross examined by the appellant. The respondent No.1/ claimant summoned the respondent No.2 to give his evidence and he was examined as OP-1. The appellant examined one Bhupen Kumar Bhattacharya, as DW-1, who was working as the Assistant Manager of Nagaon Branch of the appellant. He admitted that the written statement filed by the appellant was signed by one Mr. Yadav, the Assistant Manager of Regional Office of the appellant. The written statement of the appellant was marked as Ext.A and the additional written statement of the appellant was marked as Ext.B. He had filed and marked the certified copy of the insurance policy as Ext.C, which was marked under objection. He had deposed that the said insurance had coverage for basic liability of third party, legal liability for the passengers as per R.C., and extra premium of Rs.15.00 was paid for the liability for Page 3 of 12 paid driver and Rs.75.00 was paid for T.P.PD. for unlimited amount and premium was received for own damage. Except for above, no other premium was received. He stated that the said Ext.C was signed by the Branch Manager. He also stated that in they had not taken any premium in said policy in respect of handyman or conductor. He also stated that the owner of the vehicle is liable for paying compensation. The DW-1 had stated in his cross examination that the original policy was not exhibited. He also stated that he had not brought the proposal form. He also admitted that as per the photocopy of Insurance Policy submitted by the respondent No.2/ owner, his name was written as Deba Kumar Bora. He stated that Ext.C was the xerox copy of the Insurance Policy, which was produced as certified copy. He admitted in his cross examination that blue ink marks in Ext.C was done by him. He denied that he made a false statement that he signed as the Branch Manager. He also deposed to the effect that the name of 'Kanta' of owner in place of 'Kumar' was done by the Branch Manager, but admitted that such correction was made without any initial signature. He admitted that the place for "Premium for Conductor and Workman" was struck out and that the said place for "Premium for Conductor and Workman" was not struck out in the xerox copy submitted by the respondent No.2/ owner. place for "Premium for Conductor and Workman". He also admitted that the policy was not issued as per section 66 of the Motor Vehicles Act. He stated that the insured (sic. Should be insurer) should follow section 66 of the Motor Vehicles Act Policy Covers as per the permit. He stated that he was not aware which Development Officer had written the proposal form. He also admitted that no date was mentioned in correction of 'Kumar' to 'Kanta" in policy copy. In place of premium, there is mention of Driver/ Conductor/ Workman. He also stated that as per the policy, the owner of vehicle had provided details documents. He admitted that the copy of R.C. and Permit were not in the file brought by him. He admitted that they did not inform that they had not taken premium for any other worker apart from insured and driver. He also admitted that the certified copy was made at the time of filing written statement. He stated that as per the R.C., premium was taken for 30 passengers. It contains seating capacity and number of passengers to be carried. The said DW-1 stated that it is not a fact that the statement that the words workman and conductor were struck off knowingly and intentionally is not true. He denied that he Page 4 of 12 intentionally did not bring the original copy. He stated that the coverage endorsement details are not contained in the policy. This is not known to the insurer. He denied that he had manufactured and produced Ext.C. He admitted that the Branch Manager had not authorized him.
8) Thus, the bone of contention is the photocopy of the insurance policy, as produced by the respondent No.2/ owner along with his written statement filed before the learned Commissioner and the certified copy of insurance policy as produced by the appellant as Ext.C. As stated herein before, the Ext.C was introduced in evidence under objection.
9) The learned Senior Counsel for the appellant had argued that unless the insurance policy specifically covers for the liability of the workmen other than the driver, the appellant cannot be compelled to compensate any employee who had suffered any death of injury in course of employment. He relies heavily on the case of Ramashray Singh V. New India Assurance Co. Ltd., (2003) 10 SCC 664, where it has been, inter-alia, held that insurance policy covers for risk of only those persons or classes of persons specified in the policy and on laying down the said ratio, the Hon'ble Supreme Court of India has held that if the employee concerned is neither a driver nor a conductor nor an examiner of tickets, the insured cannot claim that the employee would come under the description of "any person" or "passenger".
10) Per contra, by heavily relying on the cross examination of the DW-1 and inconsistencies in Ext.C, the learned counsel for the respondent No.1/ claimant has argued on the inadmissibility of Ext.C. His pointed argument is five cornered. He submits that (i) the photocopy of insurance policy was exhibited without first complying with the requirement of section 66 of the Evidence Act; (ii) the purported document marked as Ext.C was not the counterpart prepared within the meaning of section 62 or section 62 Explanation-1 and Explanation-2 of the Evidence Act; (iii) the said document was not a copy which was made from the original and, as such, does not fall within the meaning of section 63 of the Evidence Act; (iv) the prerequisites of section 79 of Evidence Act being absent, the document which was Page 5 of 12 marked as Ext.C is inadmissible in evidence; (v) the purported photocopy, which was marked as Ext.C did not retain its status as a mere photocopy because it had unauthorized corrections and markings, for which the said photocopy because otherwise inadmissible in evidence. The learned counsel for the respondent elaborated these legal points as follows:-
i. Before introducing Ext.C in their evidence, the appellant did not issue any notice to the respondent No.2 herein under section 66 of the Evidence Act to produce the original of the Insurance Policy. Hence, the appellant did not avail any opportunity to call for the original. The learned Commissioner had not dispensed with the primary evidence of insurance policy, it was not open for the appellant to adduce secondary evidence of the said insurance policy, notwithstanding that the said secondary evidence was also not admissible. ii. There was no evidence to the effect that the appellant prepared Insurance Policy in several parts of which one part was retained in office. Therefore, it cannot be presumed that Ext.C was a photocopy made from an authentic counterpart. Moreover, if the appellant's office had maintained any office copy of insurance policy in reference, the custodian of such document ought to have produced the same and not the DW-1, who had admitted that he was not having any authority letter from the Branch Manager to represent the appellant in evidence. No evidence was tendered to show that copy was prepared within the meaning of section 62 or section 62 Explanation-1 and Explanation-2 of the Evidence Act. Hence, the document marked as Ext.C, remained inadmissible, as it was admitted under objection. iii. Admittedly, the appellant's office had not made the photocopy from the original insurance policy, which was in the custody of the respondent No.2. Hence, the said Ext.C could not satisfy the requirements of section 63 of the Evidence Act as it was not a certified copy issued under any provisions of law, it was not made from the original, it was not a copy compared with the original, it was not a counter-part of any document. Moreover, he DW-1 did not state Page 6 of 12 in his deposition that he had seen the preparation or contents of the original.
iv. It is submitted that no evidence was tendered by DW-1 to show that Ext.C was obtained from a proper person having custody of the said document. There is no law declaring a insurance policy to be a public document within the meaning of section 74 of the Evidence Act. Hence, the document introduced as Ext.C cannot be termed as a certified copy of public document within the meaning of section 76 of the Evidence Act. Unlike Bankers Books Evidence Act, there is no known law to enable an Insurance Company to issue any certificate to authenticate the entry and contents of any photocopy or printout as is done by banks to prove statement of accounts. Moreover, an insurance company cannot claim to be an authority within the meaning of section 78 of the Evidence Act, whose head of department are authorized to give certificates in photocopied documents. No evidence was given to show that the person writing 'certified copy' on Ext.C had the power or authority under any law in force to issue a certified copy. Therefore, the prerequisites of section 79 of Evidence Act being absent, the document which was marked as Ext.C is inadmissible in evidence.
v. It was argued that if Ext.C is compared with the copy of insurance policy filed with written statement by the respondent No.2, it would be apparent that there are some blue ink marking on the Ext.C, which was not present in the copy filed by Respondent No.2. There was striking out of words "Conductor/Workmen No.1" appearing after the words "Paid Driver" against which premium of Rs.15.00 is shown to have been paid and there is no signature under such striking out mark, which were not present in the copy filed by Respondent No.2. In the copy of insurance policy filed by Respondent No.2, his name appears as "DEBA KUMAR BORAH", but in the Ext.C, after corrections, his name appears as "DEBA KANTA BORA". Thus, the purported photocopy, which was marked as Ext.C did not retain its status as a Page 7 of 12 mere photocopy because it had unauthorized corrections and markings, for which the said photocopy otherwise became inadmissible in evidence.
11) The learned counsel for the respondent No.1 submits that as per the record received from the learned Commissioner, the appellant did not file the copy of Ext.C along with their written statement and, as such, by introducing Ext.C along with evidence of DW-1, the appellant had tried to take the respondent No.1/ claimant by surprise. Hence, he made an oral prayer to allow him to prove the original copy of the Insurance Policy under Order XLI Rule 27 of the Code of Civil Procedure. The learned counsel for the respondent No.1 relied on the following case law citations:-
a. Union of India V. Ibrahim Uddin, (2012) 8 SCC 148 [from print-out from Legal Eagle = 2012 Legal Eagle (SC) 329]. b. Billa Jagan Mohan Reddy & Anr. V. Billa Sanjeeva Reddy & Ors., (1994) 4 SCC 659.
c. K. Venkataramaiah V. A. Seetharama Reddy & Ors., AIR 1963 SC 1526 d. Akash Ganga Builders & Engineers Pvt. Ltd. V. G.P Seth, HUF & anr., 1999 Legal Eagle (Del) 420.
12) The first substantial question of law has already been well settled by this court in a catena of decisions, by holding that the daily allowance of a workman is a part of his salary. In the present case in hand, the respondent No.1/ claimant had projected that his deceased son was drawing a salary of Rs.1,500/- per month and a daily allowance of Rs.80/- per day, which amounted to Rs.3,900/- as total salary received from the respondent No.2 herein. Moreover, the respondent No.2 had also proved by his oral statement that the deceased was drawing a salary of Rs.3,900/- per month, inclusive of daily allowance. However, the learned Commissioner had held that the monthly earning of the deceased was Rs.3,000/- per month. Hence, the first substantial question of law is held in favour of respondent No.1/ claimant and against the appellant by holding that the daily allowance received by the claimant formed a part of the monthly wages.
Page 8 of 1213) This court having heard the learned counsels for the parties and upon perusal of the materials on record, it appears that on 11.12.2003, the appellant had filed their written statement. The PW-1 was examined, cross examined and discharged vide order dated 29.11.2005. The DW-1 was examined, cross examined and discharged vide order dated 04.01.2007. The learned Commissioner then allowed the OP-1 i.e. Respondent No.2 herein to be examined vide order dated 06.09.2007. Notice to appear was sent to the Appellant vide Memo No. NWC.11/03/246 dated 08.11.2007 and upon the Respondent No. 2 herein vide Memo No. NWC.11/03/247 dated 08.11.2007. As per the said two notices, both the parties were required to produce the Insurance Policy. However, pursuant to the said notice when the Respondent No.2 herein appeared as Witness No. OP-1 without bringing the original insurance policy, he was allowed to be examined and discharged vide order dated 29.11.2007. However, after discharging Respondent No.1 (Witness No.OP-1), the learned Commissioner by the same order dated 29.11.2007, required the appellant herein to produce the Policy copy and Proposal form. Similar orders were passed on 29.01.2008, 21.02.2008, 03.04.2008, 07.05.2008, 07.05.2008, 04.06.2008 and thereafter, vide order dated 05.08.2008, the chance to the appellant herein to produce the said documents was closed and the case was fixed for argument. There is no order by the learned Commissioner showing that any prayer was made to allow the appellant to file an additional written statement. The additional written statement does not reflect the date of filing and there is no order mentioning the filing of such additional written statement by the appellant. Therefore, from the perusal of the order-sheet, it is not clear when the said additional written statement has come on record. Nonetheless, the copy of Ext.C is not found to be attached to the additional written statement.
14) In the present case in hand, it is seen that the Ext.C was admitted under objection, as to admissibility of an otherwise inadmissible document, being a photocopy. At this juncture, it would be relevant to refer to section 3 of the Evidence Act, relating to interpretation clause defining 'court'. It provides that "Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to Page 9 of 12 take evidence. Thus, the provisions of Evidence Act, 1872 is applicable before the Commissioner, Workmen's Compensation.
15) Seen in the light of section 3 of Evidence Act, defining court, this court is of the view that the document which was proved as Ext.C was not admissible in evidence. Notwithstanding the marking of photocopy of insurance policy as Ext.C under objection, by subsequent orders dated 29.11.2007, 29.01.2008, 21.02.2008, 03.04.2008, 07.05.2008, 07.05.2008 and 04.06.2008, the learned Commissioner had directed the appellant to produce the Policy copy and Proposal form. Thus, it is apparent that the learned Commissioner did not place any reliance on Ext.C, i.e. purported certified copy of the insurance policy. This court is of the opinion that the document marked as Ext.C did not qualify to be a "primary evidence" within the meaning of section 62 of the Evidence Act and, as such, the argument advanced in this regard is found sustainable. Hence, this court finds force in the argument advanced by the learned counsel for the respondent No.1/ claimant that the photocopy of the insurance policy was exhibited as Ext.C without first complying with the requirement of section 66 of the Evidence Act. In the present case in hand, not only the appellant failed to take steps for issuance of notice to produce, but also failed to comply with the above referred 7 (seven) orders passed by the learned Commissioner to produce the Policy Copy and the Proposal Form. The document marked as Ext.C does not fall within the meaning of a public document within the meaning of section 74 of the Evidence Act and, as such, the marking of document as "certified copy" by the appellant's officer, per se, cannot make the photocopy of insurance policy to be a "certified copy of public document" within the meaning of section 76 of the Evidence Act. The appellant did not make any effort to show an officer of the Insurance Company has the legal power and lawful authority to issue any certified copy as envisaged under section 78 of the Evidence Act. Therefore, the prerequisites of section 79 of Evidence Act being absent, the document which was marked as Ext.C is inadmissible in evidence. Ext.C did not retain its status as a mere photocopy because the PW-1 had admitted that it contained corrections and markings, which cannot be seen in the copy of the same Insurance Policy, filed before the learned Commissioner by the respondent No.2 herein. For the said Page 10 of 12 reasons as indicated above, the said Ext.C, not only by virtue of being a photocopy but it contained marks and striking out line, which cannot be seen in the written statement filed by the respondent No.2 herein before the learned Commissioner. Hence, the said photocopy is held to be otherwise inadmissible in evidence, as it is not the true copy of the original and does not match with the photocopy thereof, which was filed by the respondent No.2 along with his written statement.
16) It would be pertinent to mention here that the respondent No.2 had entered the witness box on being summoned by the respondent No.1, but he was not cross examined on the blue pen marks and struck out words "Conductor/ Workmen No.1" appearing after the words "Paid Driver" against which premium of Rs.15.00 is shown to have been paid as per Ext.C. At this stage, it would be relevant to quote paragraph 12 of the case of H. Siddiqui (Dead) by LRs. V. A. Ramalingam, (2011) 4 SCC 240, where the Hon'ble Supreme Court of India has held as follows:-
"12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon."Page 11 of 12
17) This court has no hesitation to hold that that the appellant herein has not been able to prove that they did not take premium of additional workman because the document marked as Ext.C is inadmissible and the appellant did not avail of the opportunity to produce the Policy copy and Proposal form as already stated herein before.
18) In view of above, the second substantial question of law is answered by holding that in the present case in hand, the liability to pay the compensation amount awarded to the Handyman can be fastened upon the appellant as they had received a premium of Rs.15.00 for Driver/ Conductor/ Workmen No.1, without striking out the non-covered persons in the insurance policy which was filed by the respondent No.2 along with his written statement. Therefore, the case law cited by the learned counsel for the respondent No.1 are not found applicable under the facts of this case as this is not a case warranting either a remand or for permitting the respondent No.1 to lead additional evidence in this case.
19) Accordingly, the judgment and award dated 26.11.2008 passed by the learned Commissioner, Workmen's Compensation, Nagaon (now renamed as Employees Compensation, Nagaon) is upheld. Resultantly, the appeal is dismissed. The parties are left to bear their own cost. Return back the lower court records.
JUDGE Basumatary Page 12 of 12