Himachal Pradesh High Court
The New India Assurance Company Ltd vs Smt. Indu Bala And Others on 3 June, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
FAO(MVA) No. 472 of 2010.
Judgment reserved on: 1.6.2016 Date of decision: 3rd June, 2016 The New India Assurance Company Ltd. ...... Appellant of Versus Smt. Indu Bala and others rt ..... Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes 1
For the appellant : Mr. Ratish Sharma, Advocate.
For the respondents : Mr. Vivek Sharma, Advocate, for
respondents No. 1 and 2.
Mr. B.S. Chauhan, Senior Advocate,
with Mr. Munish Sharma, Advocate,
for respondent No.3.
Mr. Naresh Verma, Advocate, for
respondent No.4.
Tarlok Singh Chauhan, Judge
The Insurance Company has filed the instant appeal under Section 173 of the Motor Vehicles Act, 1988 questioning therein the award dated 4.8.2010 passed by learned Motor Accident Claims Tribunal, Bilaspur (H.P.) ( for short 'Tribunal') with a prayer that the same be either quashed and set-aside or in the alternative the Insurance Company be exonerated.
2. Briefly stated, facts of the case as alleged by the claimants are that Sh. Ashwani Kumar, husband of claimant/ respondent No.1 and Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...2...
father of claimant/respondent No.2 died in an accident which took place on 5.8.2007 at about 11.00 a.m. near village Kularu on NH-88 in District .
Bilaspur. Deceased was allegedly driving Swaraj Mazda tempo No. HP-
24A-1172, which met with an accident with TATA-1210 Truck No. HP-22- 5912 owned by respondent No.3 and driven by respondent No.4. FIR was registered against the truck driver. Sh. Ashwani Kumar sustained of injuries and breathed his last in hospital on the same day and it is his dependent who filed the claim petition.
3. rt The respondents No. 3 and 4 in their reply averred that truck No. HP-22-5912 driven by respondent No.4 was going to Barnala. At the place of occurrence, there was a turn, the tempo driven by deceased was coming from opposite side, which was being driven in rash and negligent manner and to that side on the turn a tanker was standing. The deceased all of a sudden to over take the tanker, turned his tempo towards right side where the truck was going on opposite side and as such it struck with the truck due to negligence of tempo driver (i.e. deceased) and there was no fault of the truck driver. The insurance company took several defences in their reply, including the defence that the driver of the truck was not having valid and effective driving licence to drive the vehicle and there was violation of the terms of the policy and insurance company is not liable to pay any amount.
4. On 4.7.2008 the learned Tribunal framed the following issues:
1. Whether deceased Shri Ashwani Kumar died in accident on account of rash and negligent driving of respondent No.2 of truck No. HP-22-5912 which occurred on 5.8.2007, at about 11 A.M. near village Kulari on NH-88, District Bilaspur, H.P.? OPP.::: Downloaded on - 15/04/2017 20:34:03 :::HCHP
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2. If issue No.1 supra is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from whom?
.
OPP
3. Whether the accident occurred due to the rash and negligent driving of the deceased? OPR1&2.
4. Whether the driver of the vehicle was not holding a valid and effective driving licence at the time of accident, if so, its effect? OPR-3.
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5. Whether the vehicle was being driven at the relevant time in contravention of the Rules and Regulation of the Motor Vehicles Act? OPR-3.
6. rt Whether the petition is bad for non-joinder of necessary parties? OPR-3
7. Relief.
5. In the instant appeal, this Court is primarily concerned with the findings rendered on issues No. 4 and 5 as the findings on these issues alone have been assailed by the appellant. With regard to issue No.4, the learned Tribunal held that the driving licence of respondent No.4 was fake and thereafter applying the ratio of the judgment of the Hon'ble Supreme Court in United India Insurance Company Ltd. vs. Lehru and others AIR 2003 SC 1292 directed the Insurance Company to indemnify the owner that too without right of recovery and it is this finding which has been questioned in this appeal.
I have heard learned counsel for the parties and gone through the records of the case carefully and meticulously.
6. It is vehemently argued by Mr. Ratish Sharma, learned counsel for the appellant that the judgment rendered in Lehru's case (supra) was not intended to operate as an universal panacea but had to be applied to the facts and circumstances obtaining in a given case. He would vehemently argue that in absence of any pleadings and evidence ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...4...
having been led by the owner regarding the satisfaction of validity of driving licence possessed by the driver, the Tribunal could not have .
relied upon Lehru's case.
7. Learned counsel for the appellant has also invited my attention to joint reply filed by the owner and driver and also to the statement of driver of the truck, who appeared as RW-1 wherein it is of established that nowhere in the entire pleadings or evidence has the owner stated that he had checked the licence of the driver before hiring rt him and had prima-facie satisfied himself regarding the genuineness thereof. I fully agree with the submission put forth by learned counsel for the appellant that sympathy can only be with the victim of the accident and not owners or drivers, who violate the law. There can be no dispute with regard to this proposition as laid down by this Court in National Insurance Company Ltd. vs. Amar Chand and others (2005) 4 ACC 674 wherein it was held:
"27. From a perusal of the bare provisions of the Motor Vehicles Act as well as the judgments of the various Courts and especially the observations of the Apex Court in Swaran Singh's case (supra), it is clear that the insurance company can defend an action on the ground that the petitioner was not duly licensed on the date of the accident. Can a person whose license has expired and not renewed within thirty days of its expiry, as provided under Sections 14 and 15 of the Motor Vehicles Act, be considered to be duly licensed on the date of the accident? In my humble opinion, the answer to this question has to be in negative.
28. The Apex Court in Swaran Singh's case (supra) in paras 45 & 46 quoted above has clearly laid down that the license remains valid only for a period of thirty days from the date of its expiry. The question as to what happens if the license is not renewed within thirty days has not been answered in this judgment. From the bare reading of the provisions as well as the interpretation given by the Hon'ble Supreme ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...5...
Court it can be said that after thirty days of the expiry there is no driving license. The driver has neither an effective driving license nor can be said to be duly licensed. It would run counter to the very .
provisions of the Motor Vehicles Act if it is held that though the license had expired and not been renewed even within the time allowed in law, the driver is duly licensed. A driver, who permits his license to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the license is renewed retrospectively. The proviso to Section 15 of the Motor Vehicles Act clearly provides of that if the license is not renewed within thirty days of its expiry, the driving license shall be renewed with effect from the date of its renewal. This renewal can never be retrospective. Therefore, it has to rt be held that if the driving license is not renewed within thirty days it will only be a valid driving license from the date of its renewal. The driver cannot be deemed to be duly licensed on the date of accident if thirty days have already expired from the date of expiry of his license and the same has not been renewed within thirty days.
29. The other contention of Ms. Jyotsna Rewal Dua is that the Insurance Company must not only prove that the driver was not duly licensed but must also prove that he was disqualified from holding such a license. This contention cannot be accepted. The policy condition in the present case is very clear. According to it, the person must hold a valid driving license and should also not be disqualified from holding or obtaining such a driving license. If either of the conditions is not satisfied the Insurance Company can defend the action on the ground that there is violation of the terms of the policy and the provisions of the Motor Vehicles Act. The Apex Court in Swaran Singh's case (supra) has clearly held that Clause (a) of Section 149(2) is disjunctive in nature. The Insurance Company can avoid its liability either by showing that a named person was driving the vehicle or that it was being driven by a person who did not have a duly granted license or that the driver is a person disqualified for holding or obtaining a driving license. Reading both the policy and the Motor Vehicles Act conjointly the only reasonable interpretation is that the Insurance Company could avoid its liability if it could prove any of these three conditions.
30. One can imagine of a situation where even though a person may have a valid license, he, in fact, is disqualified from holding the same. For example, a 16 years old person by misrepresenting his age or filing forged documents obtains the driving license by showing that his ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...6...
age is 18 years. In this case even though the driver had a valid driving license, the Insurance Company can avoid its liability if it shows that the driver in fact was not qualified to obtain such a licence. Similarly, .
even after license has been acquired a person may acquire a disability which would disentitle him to hold such a license. He may suffer physical impairment to such an extent that he is not legally permitted to hold a driving license. Therefore, a disqualification acquired during the validity of the driving license is also sufficient to bring the exclusion clause into operation.
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31. In view of the above discussion, it is abundantly clear that the arguments raised by the Insurance Company have to be accepted. In order to enforce the award against the Insurance Company the Court rt must be satisfied that the driver was duly licensed on the date of accident. Even if he is duly licensed, it is open to the Insurance Company to establish by leading appropriate evidence that he was either disqualified from obtaining such license or that he has been disqualified for retaining such a license due to physical or legal disability. To hold otherwise would amount to giving premium to persons who do not follow the Rule of Law.
32. The next submission made is that since the Motor Vehicles Act is a beneficial piece of legislation it must be construed in favour of the claimant. There can be no doubt that in case two interpretations are possible the one which is in favour of the claimant should be given.
However, it would be too much to hold that violence should be done to the clear and plain language of the statute. The Court can protect the rights of the claimants by asking the Insurance Company to deposit the amount and recover it from the insured. However, there can be no sympathy with the owner or driver who violates the law. Sympathy can only be with the victims of the accident. It is their rights which have to be protected and not the rights of the owners of vehicles. If the contention of the learned Counsel is accepted then people will feel free to drive vehicles without any licence.
33. The last contention raised on behalf of respondent No. 3 is that since the driver had at one time held a valid driving license, therefore, there is no breach of policy on the part of the insured. Reliance is placed upon the judgment of the Apex Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 : AIR 1987 SC 1184; Sohan Lal Passi v. P. Sesh Reddy ; and Swaran Singh's case (supra). No doubt, the law is well settled that the Insurance Company must ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...7...
prove that the insured is guilty of breach of policy. How and in what manner the breach is to be proved is a matter to be decided on the facts and circumstances of each case. The Apex Court in Swaran .
Singh's case (supra) while holding that the breach has to be proved by the Insurance Company also held as follows :
"(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also of establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them.
rt (v) The Court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
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(vii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree."
34. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the license. He must also take reasonable care to see that his employee gets his license renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving license of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving license or had given instructions to his driver to get his driving license renewed on expiry thereof. In the present case, no such evidence has been led.
35. In the present case, the employer is a company and the employee was to drive an ambulance. There is no material placed on record by the employer to show as to when the driver was employed and whether his driving license was checked at the time when he was ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...8...
given employment. These facts were only within the knowledge of the employer and no other person could have proved these facts. The employer led no evidence in this regard and, therefore, adverse .
inference has to be drawn against the employer."
8, There can also be no dispute with the ratio of the judgment rendered by this Court in Bhoop Singh vs. Puran Chand and others (2009) 3 ACC 588 wherein it has been held that once the driving licence of is proved to be fake, then the Tribunal is justified in exonerating the insurance company.
rt But then the moot question is as to whether the driving licence possessed by the driver was in fact proved by the insurance company to be fake?
9. Learned counsel for the appellant would vehemently contend that such plea cannot even be looked with by this Court as the same has attained finality inasmuch as none of the respondents have questioned the award by filing appeal or even cross-objections qua such findings.
10. Order 41 Rule 33 of the Code of Civil Procedure reads as under:
"33. Power of court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised In favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:::: Downloaded on - 15/04/2017 20:34:03 :::HCHP
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Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to .
make such order."
11. It cannot be disputed that the object of the aforesaid rule is to empower the Appellate Court to do complete justice between the parties. This rule gives the Court ample power to make an order of appropriate to the ends of justice. It enables the Appellate Court to pass any decree or order which ought to have been made and to make such rt further order or decree as the case may be in favour of all or any of the parties even though the appeal is as to part only of the decree; and such party or parties may not have filed an appeal. The necessary condition for exercising the power under the rule is that the parties to the proceedings are before the Court and the question raised properly arises out of the judgments of the lower Court. In that event, the Appellate Court can consider any objection to any part of the order or decree of the Court and set it right. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised and each case therefore must depend upon its own facts. Although, the general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily, the Appellate Court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal. But in exceptional cases, the rule enables the Appellate Court to pass such decree or order as sought to have been passed even if such decree or order would be in favour of parties who have not filed any appeal.
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12. The scope of the rule has repeatedly came up for consideration before the Hon'ble Supreme Court, but I need only refer to .
the judgment rendered in Pralhad and others vs. State of Maharashtra and another (2010) 10 SCC 458 wherein it was held:
"18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate Court is empowered to pass any of decree or make any order which ought to have been passed or made, and to pass, or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling rt provisions, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made"
would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (Civil Procedure Code, 15th Edn., p. 2647) observed that this Rule is modeled on Order 59 Rule 10 (4) of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this Rule is to do complete justice between the parties.
20. In Banarsi vs. Ram Phal (2003) 9 SCC 606, this Court construing the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate Court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject matter of the appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...11...
person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the .
decree which has been permitted to become final by a party is reversed to the advantage of that party. (See SCC p. 619, para 15 :
AIR para 15 at p. 1997).
It has also been held by this Court in Samundra Devi vs. Narendra Kaur (2008) 9 SCC 100 SCC (para 21), that this power under Order of 41 Rule 33 CPC cannot be exercised ignoring a legal interdict.
22. In view of the aforesaid interpretation given to Order 41 Rule 33 CPC by this Court, we are of the opinion that the High Court denied rt the relief to the appellants to which they are entitled in view of the Constitution Bench decision in K.S. Paripoornan vs. State of Kerala, (1994) 5 SCC 593.by taking a rather restricted and narrow view of the scope of Order 41 Rule 33 CPC and also on a misconstruction of the ratio in Paripoornan."
13. It is vehemently argued by Mr. B.S. Chauhan, Senior Advocate, assisted by Mr. Munish Sharma, Advocate that there is no evidence worth the name whereby it can even remotely be suggested that the driving licence possessed by the driver has been proved to be fake and, therefore, the findings of the learned Tribunal to this effect deserves to be set-aside.
In order to appreciate this plea, it would be necessary to advert to the evidence led by the Insurance Company.
14. The insurance company has examined A.K. Tiwari, Clerk in the office of Licencing Authority, Agra (U.P.) as RW2, who has stated that the licence No. 23093/AG/04 dated 31.12.2004 as possessed by driver of the offending vehicle was not issued by their office and has also exhibited one paper purported to be the complete report and the same is Ext. RW-2/A. In his cross-examination, this witness has clearly stated that he has not brought any record pertaining to 31.12.2004 and has ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...12...
further admitted that there are two RTOs in Agra, one being RTO, Enforcement and the other being RTO Office. Now, in absence of there .
being any record, could it be held that the licence possessed by the driver was fake?
15. Though, Mr. Ratish Sharma, learned counsel for the appellant would vehemently contend that in addition to the statement the of insurance company has also proved on record the detailed report pertaining to the licence Ex.RW-2/A, but I am afraid I cannot agree with rt such submission as this report cannot be said to be a public document and being per se not admissible cannot be read in evidence under the Indian Evidence Act.
15. Sections 35, 74 and 76 of the Indian Evidence Act, read as under:
"35. Relevancy of entry in public 1[record or an electronic record] made in performance of duty.--An entry in any public or other official book, register or 1[record or an electronic 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 1[record or an electronic record] is kept, is itself a relevant fact.
74. Public documents.--The following documents are public documents :--
(1) Documents forming the acts, or records of the acts--
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country; [of any part of India or of the Commonwealth], or of a foreign country;"
(2) Public records kept [in any State] of private documents.
76. Certified copies of public documents.--Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...13...
the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by .
such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation.--Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section."
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16. RW-2 admittedly is not the author of this document nor has the same been prepared by him from the official records. In such rt circumstances, the so called report is only a waste paper having no evidentiary value.
17. In Sushil Kumar vs. Rakesh Kumar (2003) 8 SCC 673, the Hon'ble Supreme Court was confronted with the admission register vis-à-
vis its admissibility under Section 35 of the Indian Evidence Act and it was observed as under:
"33. Under Section 35 of the Indian Evidence Act, a register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact. Had such a vital evidence been produced, it would have clinched the issue. The respondent did not choose to do so.
34. In the aforementioned backdrop, the evidences brought on record are required to be considered. The admission register or a transfer certificate issued by a primary school do not satisfy the requirements of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person."
18. In Ravinder Singh Gorkhi vs. State of U.P. (2006) 5 SCC 584, the proof of school leaving certificate under Section 35 of the Indian Evidence Act, which was not an original one was considered and the Hon'ble Supreme Court held as under:
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" 17. "The school leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that .
the appellant was said to have been admitted on 01.08.1967 and his name was struck off from the roll of the institution on 06.05.1972. The said school leaving certificate was not issued in ordinary course of business of the school There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act. No statement has further been made by the said of Head Master that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The rt entries made in the school leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Head Master that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school; there was no reason as to why the same had not been produced.
19. The school leaving certificate was not an original one. It was merely a second copy. Although it was said to have been issued in July 1972, the date of issuance of the said certificate has not been mentioned. The copy was said to have been signed by the Head Master on 30.04.1998. It was accepted before the learned Additional Sessions Judge, Bulandshahr on 27.01.1999. The Head Master has also not that the copy given by him was a true copy of the original certificate. He did not produce the admission register.
23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business 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, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder : (i) it should be in the nature of the entry in any public or official register;; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...15...
performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto.
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35. We have not been shown as to whether any register was required to be maintained under any statute. We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person of had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was rt admitted therein, cannot be relied upon."
19. In Subhash Maruti Avasare vs. State of Maharashtra (2006) 10 SCC 631, it was held by the Hon'ble Supreme Court that by mere filing of a document, its contents are not proved and it was further held that a certificate issued by an expert should be brought on record by examining him.
20. In Oriental Insurance Company Ltd. vs. Poonam Kesarwani and others (2010) ACJ 1992, the learned Division Bench of Allahabad High Court like in the present was dealing with the fake licence wherein a letter issued by RTO was sought to be read in evidence, but the Court did not permit it as the same not the public document. In this context, it is apt to refer to the necessary observations, which reads thus:
"3. The questions which arise for consideration in this appeal are whether the letter/certificate issued by Regional Transport Officer, Raipur (Chhattisgarh) 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; whether under rule 150 (2) of the Central Motor Vehicles Rules, 1989 insurance company can also receive information in Form 54; whether in an appeal under ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...16...
Section 173 (1) an order passed under Section 170 of the Motor Vehicles Act, 1988 can be challenged?
9. The question is whether the letter/certificate issued by the Regional .
Transport Officer, Raipur (Chhattisgarh) 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 public making use of it. When a public officer is under a duty to make some of 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 rt 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 Licences. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of the 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 Licences is record of the acts of public officers. The State Register of Driving Licences is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licences 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 Licences 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 Section 77 of the Evidence Act, and no further proof of Form 54 by oral evidence by examining witnesses is required.
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.
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Therefore, the aforesaid letter issued by the Regional Transport Officer, Raipur (Chhattisgarh) was required to be proved by the insurance company before the Tribunal by oral evidence by examining .
witnesses. 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."
21. Identical issue came up before learned Punjab and Haryana of High Court in New India Assurance Company Ltd. vs. Sunita Rani and others (2014) ACJ 1964 wherein a report from the Licensing rt Authority, Gwalior was sought to be relied upon as evidence and the Court held:
"3. A perusal of Ext. R-2 would show that it is a report coming from Licensing Authority, Gwalior. It is not evident as to by what mode it came and in the absence of anyone to prove that this report was made by the Licensing Authority after consulting the record of the Authority, it cannot be held admissible in evidence.
4. A document, even if received by post, cannot be presumed to have been received from the Licensing Authority and cannot be believed to be a genuine document. The requirement of proving the said document was still there. I cannot agree with the decision in Jagmohan Singh's case, Civil Revision No. 5768 of 2001; decided on 31.1.2002 (P&H), in this regard. The insurance company could not be absolved of its liability to prove this report, Ext. R-2, and merely putting of exhibit on the same, would not prove it."
22. Adverting to the facts of the case, it would be noticed that the Insurance Company has none to blame except itself because instead of calling for the records from the Licensing Authority, Agra, it only choose to summon the record of driving licence possessed by the respondent as would be evident from the application filed by the insurance company, the relevant portion whereof reads as under:
"....Licence Clerk of Licensing Authority, M.V. Deptt. Agra, Utter Pradesh (U.P.) alongwith complete record of driving licence No. ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...18...
23093/AG/04 dt. 31.12.2004 issued to Rashid Mohammed S/o Sh. Jan Mahommed, including record of Learning Licence issued to him by your office or any other office."
.
23. As already observed earlier, the witness RW-2 did not bring any record of driving licence issued on 31.12.2004 as the same were never sought for by the appellant. Apart from the above, even when this of fact came to appellant's knowledge it did not choose to defer the statement of the witness (RW-2) and rather proceeded to get his statement recorded.rt
24. Above all, the appellant even while filing the instant appeal has not cared to file an application for additional evidence to prove that the licence possessed by the driver of offending vehicle was fake. There can be no denial of the fact that evidence means legally admissible evidence which in the instant case is conspicuously absent.
25. It cannot be disputed that it is for the insurer to prove that the insured owner has committed the breach of insurance policy and that the driver was not having a valid and effective driving licence. (Refer National Insurance Company Ltd. versus Swaran Singh and others, AIR 2004 Supreme Court, 1531 and Pepsu Road Transport Corporation versus National Insurance Company, (2013) 10 Supreme Court Cases, 217).
26. Having held so, I am of the considered view that the findings regarding the licence Ex.RW-2/A recorded by the learned Tribunal with respect to the driving licence being fake are unsustainable in the eyes of law as the appellant has failed to lead evidence in this behalf and even the evidence so led, was not legally admissible evidence and is, therefore, required to be discarded and rejected. Once the appellant has ::: Downloaded on - 15/04/2017 20:34:03 :::HCHP ...19...
failed to prove that the driving licence was fake, then the findings to this effect recorded by the learned Tribunal cannot be sustained.
.
27. In view of the aforesaid discussion, though for a different reason, the findings recorded by the learned Tribunal call for no interference. There is no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to of bear their own costs.
3rd June , 2016
(GR)
rt (Tarlok Singh Chauhan),
Judge
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