NEW INDIA ASSURANCE CO vs VISHAL SPUN PIPES

THE challenge in this appeal is to the order of the learned District Forum, Una, dated 9.4.96, whereby the District Forum has awarded a sum of Rs. 2,16,000/-to the respondent/complainant (hereinafter to be referred to as the complainant) alongwith interest @ 15% per annum with effect from 1.9.91 i.e., since after one year of the date of accident till actual payment and a compensation of Rs. 4,000/-for mental agony etc. and also costs of Rs. 1,000/-.

THE brief relevant facts necessary to be mentioned for determining the point in controversy in the present appeal are that the complainant was the holder of a truck-vehicle Bearing Registration No. HIU-1491 and the same was insured by the complainant with the appellant/ opposite party (hereinafter to be referred to as the Assurance Company) vide Policy No. 313519031833 dated 15.6.90 with effect from 17.6.90 to 16.6.91. This insured vehicle met with an accident on 2.9.90 when the insurance policy, admittedly, was in force. At the relevant time, the vehicle was being driven by one Mr. Gurnam Singh, driver, from Kalgon, District Sirmour to Parwanoo. The Assurance Company has resisted the claim mainly on the ground that the driver of the truck, at the relevant time, when the truck met with an accident, was not having a valid driving licence. Such ground has been repelled by the District Forum.

Mr. Deepak Gupta, learned Counsel for the Assurance Company has reiterated this argument with great force that the driver of the vehicle when it met with an accident, was not having a valid driving licence and according to him, there is violation of the contract of insurance and the complainant is not entitled to any claim, whatsoever. He has drawn our attention to some letter dated 3.2.94 (page 87 of the District Forum file), whereby it has been stated by the Regional Transport Officer, Cuttack that the driving licence No. 7678/79 dated 8.1.79 alleged to have been issued to Shri Gurnam Singh, infect has not been issued to anybody from his office. From this document, Mr. Gupta, learned Counsel for the Assurance Company has tried to substantiate that the licence is fake and the fake licence even if renewed, cannot clothe it with legal validity.

THERE is no doubt that in case it is proved on record that the driving licence issued to Shri Gurnam Singh was fake one, it can safely be said that such a licence was not a valid licence. THERE is no material on record to show that the driving licence of Shri Gurnam Singh was a fake one and not a genuine licence. From the letter dated 3.2.94, we may notice at the very outset that this letter of the Regional Transport Officer, Cuttack is not an original. It is a Photostat copy. THERE is nothing to show that this copy or the contents thereof have been compared with the original one and it is the true copy of the original. It is again not clear as to who has attested the copy and no stamp of the officer has been affixed on such attestation. It goes without saying the contents of the documents may be proved either by primary or by secondary evidence. Primary evidence means the production of documents itself for the inspection of the Court and the secondary evidence can be the copy made from or compared with the original. In normal circumstances, the document has to be proved by primary evidence except in certain cases, for example, when the original has been destroyed or lost or is in possession or power of the person against whom the document is sought to be proved.

AS discussed above, having regard to the fact that the copy relied upon is neither the original one nor is the copy compared with the original, such letter cannot be considered either as primary evidence or as secondary evidence. Furthermore, the person who could have proved such documents, is the Regional Transport Officer, Cuttack, who has not filed any affidavit in support of the letter dated 3.2.94. Merely the production of this letter on the basis of affidavit of the ASsurance Company leaves us nowhere as it was the Regional Transport Officer, Cuttack alone who could have testified that the driving licence was not issued to Shri Gurnam Singh. This so-called fact was specifically within his knowledge. Furthermore, the aforementioned letter of the Regional Transport Officer, Cuttack, again cannot be relied upon as the so-called statement of the Regional Transport Officer contained in this letter suffers from inherent improbabilities. It is not clear whether the Regional Transport Officer, Cuttack had the authority to inspect the record. In case, any person is authorised by him to inspect the record, who that person was and what is his report on the basis of which he has come to the conclusion mat no such driving licence was issued to Shri Gurnam Singh. The letter dated 27.1.94 with reference to which the Regional Transport Officer, Cuttack, has written the letter dated 3.2.94 is also not available on the record and the contents thereof, we are not aware. Even the Divisional Manager, New India ASsurance Company, Cuttack, with reference to whose letter dated 27.1.94, the present letter dated 3.2.94 has been written by the Regional Transport Officer, Cuttack, has not filed any affidavit to the effect that in pursuance of his letter dated 27.1.94, the letter dated 3.2.94 was written to him by the Regional Transport Officer Cuttack. We may again notice that it is the Regional Transport Officer, Cuttack. who has written the letter dated 3.2.94 to the Divisional Manager of New India ASsurance Company and it is the Registering and Licensing Authority, Cuttack who could have verified whether or not the driving licence, in dispute, has been issued to Shri Gurnam Singh and not the Regional Transport Officer, Cuttack. There is no material on record to show that the Regional Transport Officer, Cuttack is the same person as Registering and Licensing Authority, Cuttack. From whatever angle, we may examine this letter of the Regional Transport Officer, Cuttack dated 3.2.94, we are of the firm opinion that this document cannot be acted and relied upon for the reasons stated above. It is settled principle of law that the burden lies on the Assurance Company to substantiate that the driving licence of the driver was not a genuine licence, rather it was a fake one. Having regard to the aforementioned circumstances stated above, we have no hesitation to hold that the Assurance Company has failed to substantiate that the driving licence of Shri Gurnam Singh was fake and not genuine one.

MR. Deepak Gupta, learned Counsel for the Assurance Company next contends that there was no deficiency in service on the part of the Assurance Company as on the basis of the letter of the Regional Transport Officer, Cuttack dated, 3.2.94 aforementioned they have repudiated the claim bona fide.

THIS argument is equally unacceptable. We have already held that the letter dated 3.2.94 of the Regional Transport Officer, Cuttack cannot advance the case of the Assurance Company as this document does not substantiate that the driver Shri Gurnam Singh was not having a valid driving licence. In the face of this, the Assurance Company could not have repudiated the claim and the repudiation of the claim, therefore, is wholly arbitrary and unreasonable in the eyes of law. THIS case, therefore, squarely falls within the deficiency of service and the Assurance Company is liable to pay the claim of the complainant. No other points were raised.

In view of the foregoing, the appeal fails and is accordingly dismissed with no orders as to costs. Appeal dismissed.