Oriental Insurance vs Sudesh Kumari

Arun Kumar Goel,Judge.

This appeal is directed against the award passed by Motor Accident Claims Tribunal, Jammu on 5.8.1994, whereby compensation in the sum of

Rs. 4,80,0007 has been awarded in favour of respondents 1 to 4 together with interest @ 12% per annum from the date of filing of the claim

petition No: 337/Claim i.e. 22nd May '93 till its realization.

Brief facts giving rise to this case are that Tara Chand was the husband of Sudesh Kumari and father of three minors Reena, Meenu and Sumit.

Since he died in a motor accident on 5.12.1992 nearChak Baney on way from Vijaypur to Ramgarh, therefore claim petition came to be filed

before the Tribunal below for the grant of Rupees five lacs as compensation.

Issues no 1 and 2 were found in favour of the claimants, issue no. 3 was found against respondent no. 3 in view of the statement made on

7.5.1994, and while granting relief under issue no. 4, compensation in the aforesaid terms was granted in favour of claimants.

Sh. Choudhary, learned counsel appearing for the insurer, has submitted that the tribunal below has fallen into an error by ignoring the provisions

of Insurance Act, and further the policy being a statutory document having been issued in terms of the provisions of Section 64UC of the said Act,

can be looked into without formal proof thereof. While advancing this submission, Sh. Choudhary also urged that the insurer had reserved to itself

right to contest the claim of the claimants in the name of the owner and as such, all defences are open to his client. On this basis it was pointed out

that the compensation awarded is on higher side. Even if it may be assumed for the sake of argument that the claimants are entitled to any

compensation, the same is subject to proof of their case by the claimants. All these pleas have been repudiated on behalf of the claimants. It was

also urged that appeal is incompetent as no case is there on defences available to the appellant under law.

In order to properly consider the case of the parties as projected in this appeal, it is necessary to examine the evidence produced during the

course of trial by the parties, which is to the following effect. Sudesh Kumari, widow of deceased Tara Chand has appeared as the first witness in

the case. She is a witness who has given the ages of deceased, her own as well as of three minor children and of parents of the deceased, besides

giving monthly income from his business that he was carrying on. As per the statement of this witness, the deceased was earning Rs. 4000/ per

month and was giving Rs. 35007 to her for household expenses. The age of her fatherinlaw has been given by the witness to be 90 years, of her

motherinlaw 85 years. In her crossexamination there is no suggestion questioning the income of the deceased or the business that of milk supply to

the Military. Rather, in her crossexamination, it has come that the deceased was purchasing milk from Ramgarh and was supplying the same to

MES at Kalu Chak.

Other witnesses are Babu Ram, Sat Pa! and Sansar Chand. All three of them were copassengers with the deceased.

Babu Ram has categorically stated that the driver of the bus was driving it at a Fast speed and despite his and other passengers asking, he did

not stop the bus. ^s a result of such driving, the bus got a jump which resulted in opening of the rear window and consequently the deceased fell

down. All passengers alongwith the witness asked the driver to stop the bus, which was stopped at Mauza Kralian. Since it was winter season and

it was dark, as such in the next morning the dead body was found there. Deceased was known to this witness and it was also stated by him n his

crossexamination. In his crossexamination there is no suggestion that the witness was not travelling in the bus on the fateful day and/or the accident

did not take place in the manner suggested by him. Similarly there is nothing to suggest that the vehicle was not on road and or it was not being

driven in a rash and negligent manner which led to the opening of the rear window due to jump and falling down of the deceased.

Similarly when a reference is made to the statement of PW Satpal, it is clear that the deceased as well as witness boarded the bus at Vijaypur.

The witness got down at Chak Salarian, whereas the deceased was to go to Ramgarh. On the next day the witness came to know that fara Chand

had died due to accident and his dead body was found on the road. It nas also been stated by the witness that the deceased was carrying on tea

business in a Khokha at Kalu Chak on the road, as well as supplying milk to Army on profit after collecting it from the village. In addition to this,

the witness has also stated that the income of the deceased was between Rs. 35007 to Rs. 4000/ per month and his age was about 30 years. In

crossexamination the witness has stated that the deceased was known to him since long. To this witness also there is no suggestion in the

crossexamination that either the deceased or the witness was not travelling in the bus, muchless about,the income of the deceased as given by the

witness.

PW Sansar Chand has also supported the case of the claimants by pledging his oath regarding rash and negligent driving of the bus when the

accident took place. He has further gone on record to say that the bus was overcrowded, some people were even sitting on its roof. It was also

stated by the witness that the deceased fell out of the bus at a distance of about 400 yards from Chak Salarian towards Ramgarh. Nothing material

could be extracted from his crossexamination so as to dislodge him

On the other hand, owner examined Surat Singh, as his attorney, besides examining Balbir Singh son of Tara Singh and another Balbir Singh son

of Parkash Singh.

Surat Singh has not produced any document so as to show that he was in fact a duly constituted attorney when he appeared in the witnest box.

As per this witness the bus was first got serviced on 5.12.1992 and then was sent to Guru Nanak Body Builders & Repairers on 5.12.1992.

Nothing has been proved, muchless produced either from the records of the owner or from that of Balbir Singh, owner of Guru Nanak Auto Body

Builders and Repairers, Digiana. Balbir Singh son of Tara Singh is a witness to show that he had been engaged by the attorney during the period

5.12.1992 to 12.12.1992 when the bus had been taken off the road for service and its repairs. Similarly other Balbir Singh son of Parkash Singh is

a witness to show that the bus had been brought to his workshop for repairs of its floor and remained parked there at Digiana from 5.12.1992 to

12.12.1992. He has further gone on record to state that during the said period the bus did not move out of his workshop.

This is the entire evidence examined by the parties during the course of trial. In addition to this, the claimants placed on record copy of the FIR

as well as of challan etc. to show that the driver is being prosecuted under section 304A of the RPC for the offence in question and the insurer

placed on record a copy of the Insurance Policy.

Fact remains that neither the Insurance Policy nor the FIR have been proved during the course of proceedings before the tribunal below.

So far strict rigorous of Evidence Act as well as of CPC in relation to production and proof of documents, those do not apply in strict terms of

the proceedings before a tribunal constituted under the provisions of Motor Vehicles Act. It is also well known that the Tribunals are constituted to

provide just compensation with utmost expedition to the dependants of a deceased victim or to an injured, as the case may be. Thus for

adjudicating the claim petition the tribunal can even evolve its own procedure so that the matter is expeditiously decided. It may also be

appropriate to notice that to some extent the proceedings can be termed as summary in nature. Still the fact remains that while evolving summary

procedure, I am of the confirmed opinion that the procedure underlying the provisions of Evidence Act and CPC is a proper procedure, of course,

without insisting upon the technicalities of such laws. 14. In the instant case the original policy was to be in the custody of the owner as is evident

from his defence as well as on the admission by Surat Singh that the bus was fully insured. He has not cared to produce the same. The insurer

could have asked the court to call upon the owner to produce the original policy and on his failure to do so, it could further prove the copy of

policy in its possession. No crossexamination in that behalf was directed against the socalled attorney of the owner RW Surat Singh. Merely

tendering of a document is of no significance. Not only this, but even when a document is exhibited without objection from the opposite side, still it

does not dispense with the mode of proof of proving such a document. For taking this view, reference can be made to AIR 1971 SC1865

SaitTarajee Khimchand and others Vs Yelamatri Satvam & others"", as well as to a judgement of this court in CIMA No: 133/93 ""Abdul Rehman

Naik & another Vs Anil Kumar & others"" decided on 4.2.1998. It may not be out of place to point out here tha* alongwith the pleadings or during

the course of trial in civil proceedings, number of documents are produced by the parties. The question that needs to be seen is whether all of them

are to be read in evidence or only those documents are to be taken note of which stand duly proved.

Besides this, all the exclusions are to be proved by the insurer and if any authority in that behalf is required, the reference can usefully be made

to 1987 ACJ 411 Skandia Insurance Co. Ltd. Vs Kokilaben Chandravadan & others. That being so the contention urged by Sh. Choudhary that

the policy was placed on record during the course of proceedings before the tribunal and production whereof was not objected to, is hereby

rejected.

Now coming to the question that the policy is a statutory document and can be looked into without proof on the basis of provisions of

Insurance Act, referred to hereinabove. When a reference is made to the provisions of Section 64 DC of this Act, it is clear that it only speaks of

the powers of the Advisory Committee to regulate rates advantage etc. and a decision of the Tariff Advisory Committee in pursuance of the

provisions of the said section being final. It does not in any manner affect the requirement of proving a document during the course of legal

proceedings. It may also be appropriate to notice that since policy has not been proved, therefore it cannot be said that the insurer could defend

the case on all available grounds in the name of the owner. As a consequence of this, the contentious urged on behalf of the insurer on the quantum

of compensation also does not hold good, because its defences are limited to those as contained in the provisions of Motor Vehicles Act. This

position was not controverted by Sh. Choudhary, who submitted that he can urge the case on quantum only when the insurer is permitted to take

advantage of the terms of the policy.

In the context of proof of FIR, tribunal below has followed 1990 ACJ 542, Mehta Printing Industry Vs Leela Devi, a decision by Rajasthan

High Court and, thus has hefd that the copy of the FIR does not require formal proof. An appeal under the Workmen Compensation Act, 1923

was being examined by the said court. After placing reliance on AIR 1925 Allahabad 303, Chittar Singh Vs Emperor, it was held by the Rajasthan

High Court that it is a document which falls within the meaning of Section 35 of the Evidence Act.

Another judgement relied by in this case was 1971 Criminal Law Journal 875 ""Panchanan Modal Vs State"", wherein it was held that the

accused was entitled to a certified copy of the FIR as it was a public document. However, the question whether the FIR requires formal proof or

not was not directly involved in this judgement before Rajasthan High Court nor was involved in the two cases on which reliance was placed to

hold the FIR being a public document does not require formal proof, firstly it was out of context and secondly the observation was purely obiter.

As such I have not able to persuade myself to accept the view propounded by the Rajasthan High Court in the case of Mehta Printing

Industries (Supra). In my considered view a copy of the FIR if produced on record needs to be proved like any other document unless of course,

the contents thereof are admitted by the opposite side.

Another judgement on which reliance was placed by Sh. Choudhary is 1988 ACJ 270, National Insurance Co. Ltd. Vs Jugal Kishore and

others"". In this case Hon'ble Supreme Court had permitted a copy of the policy to be taken on record to which no objection had been raised by

the respondents and secondly, it is not laid as a principle of law that whenever a copy of policy is tendered it has to be accepted without formal

proof. In fact, the substance of the observations made by the Hon'ble Supreme Court in Paragraph 9 of this judgement is that it is the duty of the

party who is in possession of the document to produce it and said party should not be permitted to take shelter under the abstract doctrine of

burden of proof. It was further observed that this duty is greater in case of instrumentalities of the State who are under an obligation to act fairly.

Hon'ble Supreme Court has also insisted that Insurance Company should place a copy of the policy of insurance alongwith its defence in a case

where it wants to take up a defence that its liability is not in excess of statutory law.

Sh. Choudhary also placed reliance on 1993 ACJ 1104 ""Oriental Insurance Co. Ltd. Vs Indra Rani & others"". In this judgement, amongst

other things, a learned judge of this court held that when a document is placed on record without there being any dispute about its genuineness or

admissibility having been raised, it would be unjust to brush it aside on technical requirement. In this behalf it appears that the judgement reported

in AIR 1971 SC 1865 (Supra) was not brought to the notice of learned single judge and reliance was placed on 1988 ACJ (supra) for coming to

this conclusion. As already noticed in the latter case it has not been laid as a principle of law that whenever a copy of the policy of insurance is

produced, it has to be read in evidence without formal proof. At the risk of repetition it may be pointed out here that firstly the Apex Court allowed

the copy of policy of insurance to be produced by the Insurance Company before it which was not objected to by the opposite side and, secondly,

it was emphasised on the Insurance Companies to file such copies alongwith their defence where they intended to raise a plea of limited liability in

terms of such policy. A perusal of this judgement shows that after having allowed the Insurance Company to produce copy of the policy without

such production being objected by the opposite side, the case was decided. In this context order passed at the time of issuing notice by Hon'ble

Supreme Court needs to be noticed.

Before granting special leave this court required the appellant to deposit Rs. 1,00,0007, namely, the amount of compensation awarded by the

High Court and permitted respondent No: 1 to withdraw the same. Special leave was granted on 14th September, 1984 by the following order of

this court: Under the order of this court the appellant has deposited Rupees one lac, which is the amount of compensation awarded to the

claimants. The claimants have withdrawn the amount without furnishing security. Special leave granted on condition that in the event of reversal of

the decision of the High Court, the said amount shall not be refunded by the claimants. Stay of further execution of the award confirmed.

In the light of these facts, it is clear that the question adjudicated upon was not whether a policy of insurance can be read in evidence without

proof.

In this view of the matter, this decision of a learned judge of this court does not in any manner improve the case of the insurer.

The evidence of the claimants regarding the income and age of the deceased Tara Chand has remained unquestioned as well as

uncontroverted. Similarly even after excluding the FIR and other documents from criminal file produced by the claimants, there is enough oral

evidence of copassengers as discussed in the preceding paras to hold that the accident had occurred on 5.12.1992 due to rash and negligent

driving on the part of driver. Such evidence has also remained uncontroverted on the part of owner. Owner has not stepped into the witness box.

There is nothing on record to suggest that Surat Singh was a duly constituted Attorney.

On the other hand, there is a statement of RW Balbir Singh, owner of Guru Nanak Auto Body Builders and Repairers that Surat singh is the

owner of Bus No: JKU 7087 which was not the case even of Surat Singh. Best person in this case to prove that the bus was off the road or that it

was not being driven, was driver Balwant Singh. Though he was proceeded against exparte, still the owner could have got him. summoned through

the process of court, but he was not summoned as a witness, the consequence where of is natural. On this count also case of the appellant must

fail.

No other point has been urged by the learned counsel for the parties.

As a consequence of the aforesaid discussion, there is no merit in this appeal which is accordingly dismissed. Costs on the parties.