Allahabad High Court
The Oriental Insurance Co. Ltd. vs Jagdish Chandra Srivastava And Others on 24 October, 2019
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6/Reserved Case :- FIRST APPEAL FROM ORDER No. - 127 of 1999 Appellant :- The Oriental Insurance Co. Ltd. Respondent :- Jagdish Chandra Srivastava And Others Counsel for Appellant :- Anil Srivastava Counsel for Respondent :- Anoop Kumar,Ashok Kumar Hon'ble Rajnish Kumar,J.
1. Heard, Sri Anil Srivastava, learned counsel for the appellant and Sri Anoop Kumar, learned counsel for the respondent nos. 1 to 4. None appeared for the respondent nos. 5 and 6 despite sufficient service.
2. The instant appeal has been filed against the judgment and award dated 12.01.1999, passed by the President, Motor Accident Claims Tribunal, Sitapur in Motor Accident Claim Case No. 43 of 1992(Jagdish Chandra Srivastava and others versus Raj singh and others), by means of which the claim petition has been allowed and an amount of Rs. 1,35,000/- alongwith interest @ 12% per annum has been directed to be paid by the appellant/Insurance Company.
3. Brief facts of the case are that the deceased Abhishek Srivastava was going by rickshaw from transport Chauraha Sitapur towards Lalbagh on 05.03.1992 for filling of gas cylinder and when he reached in front of Nagar Palika, Sitapur towards the Lalbagh, the driver of truck No. H.R. 12/0489, who was driving the truck rashly and negligently, dashed him from the back side. The truck had dashed the rickshaw in front of Lal Kapda Kothi, in which the deceased Abhishek Srivastava suffered serious injuries, on account of which he died. The deceased was studying in B.Sc. Part II and he was a meritorious student. With the aforesaid allegations, the claim petition was filed claiming compensation.
4. The claim petition was contested by the appellant/respondent by filing written statement denying the allegations. The appellant/Insurance Company had also taken a ground that the driver of the vehicle was not having a valid driving license,therefore, Insurance Company is not liable to pay any compensation on behalf of the insurer.
5. The respondent no.1, owner of the vehicle had also filed written statement denying the averments made in the claim petition. However, he had admitted that he is registered owner of the vehicle and the vehicle was insured with the Oriental Insurance Company/appellant and stated that if he is proved to be liable for making the payment of compensation then it is the liability of the Insurance Company to make the payment on his behalf.
6. On the basis of pleadings of the parties, four issues were framed. On behalf of the claimants, Sri Jagdish Chandra Srivastava as P.W.1, Sri Ashok Kumar Shukla as P.W.2 and Sri Ajay Kumar Saxena as P.W.3 were got examined. The photocopy of the First Information Report No.15/92, under Section 279, 304A I.P.C., Police Station Kotwali, District Sitapur, application given for lodging F.I.R. and the photocopy of the post mortem report were filed on behalf of the claimant/respondents. Sri S.R. Rajwanshi was got examined as O.P.W.1. The respondents had filed the documentary evidence, the original letter of Nityanand Sayaricha, certificate of R.T.O.,Cuttack and certified copy of the policy. After hearing learned counsel for the parties and considering the material and documentary evidence available on record, the learned Tribunal allowed the claim petition and awarded an amount of Rs. 1,35,000/- alongwith interest at the rate of 12% per annum w.e.f. 09.01.1998 till the date of payment. The amount of compensation has been directed to be paid by the appellant/Oriental Insurance Company, which is to be paid among the claimants as provided in the order. Hence, the present appeal has been filed challenging the award by the Oriental Insurance Company.
7. The sole argument advanced by learned counsel for the appellant is that the driving license of Driver Roop Kumar/opposite party no.6 of the offending vehicle No. H.R.-12/0489 was not valid on the date of accident, therefore, the appellant-Insurance Company is not liable to make payment. In this regard he submitted that the appellant/Insurance Company had filed verification report from the Licensing Authority, Cuttack, Orissa alongwith a letter of the counsel appointed by the Insurance Company for verification which was proved by oral evidence of the Divisional Manager of the appellant-Insurance company, who was produced as D.W.1, but the learned Tribunal has not relied the same and held that the driving license which was recovered from the driver of the truck was valid and effective on the date of accident.
8. Learned counsel for the appellant has relied on a Division Bench judgment of this Court in the case of Oriental Insurance Company Ltd. versus Smt. Poonam Kesharwani and others; 2008 SCC Online All 1239 and National Insurance Company Ltd. versus Abdul Karim and others: 2013 SCC Online All 2607.
9. The factual finding recorded by the learned Tribunal in regard to the accident has not been challenged. The only argument advanced by learned counsel for the appellant is that the appellant-Insurance Company is not liable to make the payment on account of violation of the terms and conditions of policy, as the driver of the offending Truck No. H.R. 12-0489 was not having a valid and effective driving license on the date of accident. In this regard, he has placed reliance on a letter dated 21.04.1998 of Sri Nityananda Routeraya, Advocate and a certificate issued by the licensing authority, Cuttack which were filed by the Insurance Company as Paper No. 42Ga and 43Ga. The letter written by the Advocate is that on the basis of the certificate dated 02.04.1998 issued by the licensing authority, Cuttack the driving license No.R/4926/Cuttack/86 is fake and forged one. The alleged letter dated 02.04.1998 of the licensing authority states that no such type of driving license number in favour of Roop Kumar has been issued or renewed to anybody by the licensing authority, Cuttack. The photocopy of the license has been annexed in the appeal as Annexure No.1 alongwith an affidavit filed in support of the stay application. Annexure No.1 is the photocopy of the license which indicates that the license No. R/4926/Cuttack was valid from 25.05.1986 to 24.05.1989 and thereafter it was renewed upto 24.05.1992. However, as per the aforesaid certificate this license is fake and forged.
10. Learned counsel for the appellant had submitted that the information issued from the aforesaid letter dated 02.04.1998 is in the nature of Form 54, therefore, it is a public document and was also proved by the evidence of Sri S.R. Rajwanshi/O.P.W.1, the Branch Manager, Oriental Insurance Company, Sitapur but the learned Tribunal has wrongly and illegally held that the same has not been proved.
11. Learned Tribunal after considering the evidence of the Insurance Company has recorded that the witness has stated that he does not know the signatures of Sri Nityanand Routeraya, Advocate and signatures of R.T.O. Cuttack. He further stated that he has got the papers from the Company and on the basis of the same, he is stating that the papers are correct and as to whether any other claim is made on the said vehicle, he has no record. Therefore it is apparent that even the counsel, who had got the verification done, was not produced and the witness produced by the appellant Insurance Company also did not know the signatures of the Advocate. He also did not recognize the handwriting and signatures of the R.T.O. Cuttack. Therefore the Insurance Company has failed to prove that the driver was not having valid and effective driving license which was found at the time of accident.
12. Perusal of the certificate issue by the licensing authority Cuttack indicates that it is not in the form of Form 54, therefore, it cannot be said to be a public document and it is not admissible in evidence without being proved by cogent evidence.
13. The Division Bench of this Court, in the case of Oriental Insurance Company Ltd. versus Smt. Poonam Kesharwani and others: 2008 SCC Online Alld. 1239, has held that the information in the form of a letter written to the Investigator appointed by the Insurance Company cannot be deemed to be a certificate or certified copy in Form 54 of the Rules and it is required to be proved by the insurance company before the Tribunal by oral evidence by examining witnesses. The relevant paragraphs 12 to 14 are reproduced as under:
12.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 section 77 of the Evidence Act, and no further proof of Form-54 by oral evidence by examining witnesses is required.
13.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:
14.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."
14. Considering the submission of learned counsel for the appellant and the aforesaid law enunciated by this Court, this Court is of the view that the evidence adduced by the appellant/Insurance Company to prove that the license was fake and forged is not sufficient and on the basis of the same, it cannot be said that the driver was not having the valid and effective driving license on the date of accident.
15. The license of the driver of the offending truck was disputed by the Insurance Company. Therefore it was incumbent upon the owner of the vehicle to produce the original license of the driver but from the impugned judgment and the lower court record it appears that the license was not filed before the Tribunal even after objection was raised by appellant/Insurance Company. The learned tribunal has also without the license, having even placed before it, has recorded a finding that the Insurance Company has failed to prove that the license which was given at the time of accident was not valid and effective, therefore, it is proved that the driver was having valid and effective driving license. The finding recorded by the learned Tribunal is not based on the evidence filed before it. If the license was not filed, owner of the vehicle could have been asked to produce the license and only then such finding could have been recorded.
16. A photocopy of the license has been filed before this Court as Annexure No.1 to the affidavit filed in support of application which indicates that the driver Roop Kumar was having valid license w.e.f. 25.05.1986 to 24.05.1989 which was extended to 24.05.1992 which is said to be forged and fake on the basis of the certificate issued by the licensing authority. However since it was not before the Tribunal, therefore, the finding could not have been recorded that it was a valid and effective driving license because it was required to be produced by the owner before the Tribunal. This Court in the case of National Insurance Company Ltd. versus Abdul Karim and others; 2013 SCC Online All 2607, has held that once Insurance Company alleged that there is a breach of policy for want of driving license by the driver of vehicle, since it is within the knowledge of the driver and the owner of the vehicle that the driver possesses valid driving license, it is upon the owner and the driver of the vehicle to give the details of the driving license and to produce the same before the Tribunal. Thereafter the burden shifts upon the Insurance Company to establish that there was breach of contract. The relevant portion is reproduced as under:
"On the principle laid down above it emerges that burden lies upon the insurance company to prove that there was breach of terms of contract. Once Insurance Company alleged that there is a breach of policy for the want of driving license by the driver of vehicle, since it is within the knowledge of the driver and the owner of the vehicle that the driver possesses valid driving license, it is upon the owner and the driver of the vehicle to give the details of the driving license and to produce the same before the Tribunal. Thereafter the burden shifts upon the Insurance Company to establish that there was breach of contract."
17. In view of above, since the driving license is said to have been fake and forged by the Insurance Company, it was the duty of the owner of the vehicle, who had appeared and filed his written statement and also upon the driver to produce the original and valid driving license before the Tribunal. Therefore this Court is of the view that the finding recorded in regard to the issue no.2 is not sustainable and liable to be set aside with a direction to the claims tribunal to decide the issue afresh after considering the pleadings and material available on record and affording opportunity of hearing to the parties.
18. The judgment and order dated dated 12.01.1999, passed by the President, Motor Accident Claims Tribunal, Sitapur in Motor Accident Claim Case No. 43 of 1992(Jagdish Chandra Srivastava versus Raj singh and others) is set aside only to the extent it directs to the appellant/Insurance Company to make the payment of the compensation. The remaining findings and direction of the impugned judgment and order are upheld. The matter is remitted to the tribunal to decide the issue no.2 and liability to make the payment of compensation afresh after affording opportunity to the parties in accordance with law expeditiously and preferably within a period of three months from the date of this order. In case the issue is decided in favour of the appellant, the liberty can be granted to the Insurance Company to recover from the owner/driver in accordance with law.
19. Since the accident had occurred on 05.03.1992, this Court deems it fit that the amount of compensation be paid to the claimant/respondents.
20. The appeal is, accordingly, partly allowed. No order as to costs.
21. The lower court record and the amount deposited before this Court, if any, alongwith the statutory deposit shall be remitted to the concerned Tribunal within a period of four weeks which shall be released in favour of the claimants forthwith.
(Rajnish Kumar,J.) Order date:24.10.2019 Akanksha