New India Ass. Co.Ltd Usha Devi & Ors. v. New India Ass. Co.Ltd. V. Foto Bai & Ors.

Order

26.04.2019

1. New India Ass. Co.Ltd Usha Devi and others 2. New India Ass. Co.Ltd. V. Foto Bai and others V. Coram: Hon’ble Mr. Justice Sanjeev Kumar-Judge Appearance: For the petitioner(s) : Mr. Udhhay Bhaskar, Advocate For the respondent(s): Mr. Sudesh Sharma, Advocate for R-1,5 and 7. i/ Whether to be reported in Press/Media? ii/ Whether to be reported in Digest/Journal? Yes/No Yes/No

1. These two appeals arise out of the same Motor Vehicular Accident which took place on 15.03.2006 involving offending vehicle Tata Sumo bearing registration No. JK-14/9448, which was being driven by respondent No.9 herein, rashly and negligently. In the accident Rajinder Kumar and Dhani Ram suffered grievous injuries to which they later succumbed. The legal representatives of the deceased Rajinder Kumar filed a claim petition before the Motor Accident Claims Tribunal, Udhampur (hereinafter referred to as Tribunal) which was registered as File No. 33/claim and another petition filed by MA No. 228/2009 & MA No.226/2009 Foto Bai mother of deceased Dhani Ram. Both the claim petitions were clubbed together by the Tribunal on 27th October, 2006 and decided by a common award which is impugned by the appellant insurance company in these two separate appeals. 2. The claim petitions were contested inter alia by the appellant-

insurance company. On the basis of the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether accident occurred on 15.03.2006 at Umara Morh, Udhampur at about 10.30 PM, due to rash and negligent driving of driver of the offending vehicle bearing registration No.9448/JK14 in which the deceased Dhani Ram and Rajinder died? OPP

2. In case issue No.1 is proved in affirmative how much amount of compensation, the petitioners are entitled to in both these claim petitions and from whom? OPP.

3. Whether the offending vehicle was being driven in violation of the terms and conditions of the insurance policy and the driver of the offending vehicle was not holding a valid and effective driving licence at the time of the accident? OPR-3

4. Relief.

3. The issues No.1 and 2 were held proved by the Tribunal in favour of the claimants and against the appellant insurance company. Similarly, the issue No.3, the onus whereof was on the appellant insurance company, was held not proved on the ground that the appellant-insurance company, though, asserted that the offending vehicle was being driven in violation of the MA No. 228/2009 & MA No.226/2009 terms and conditions of the insurance policy but could not prove the same by leading any evidence. Accordingly, the claimants in file No.33/claim, namely, Usha Devi and others were held entitled to the compensation of Rs.9,30,000/- along with interest @7.5% per annum pendentelite and future till liquidation. Similarly, claimant Foto Bai was held entitled to the sum of Rs.3,33,000/- along with interest as was awarded in the connected claim petition. Aggrieved, the appellant-insurance company is in appeal against the award passed in two claim petitions aforesaid and challenges the same inter alia on the ground that the compensation awarded is exorbitant and not in consonance with law; and, that the insurance company was not liable to indemnify the owner of the offending vehicle for the reasons that the offending vehicle was being driven in violation of the terms and conditions of the insurance policy, in that the driver of the offending vehicle was not holding a valid and effective driving licence.

4. Per contra, learned counsel representing the claimants vehemently urges that the award passed is just and fair and is in conformity with the settled position of law. It is urged that the plea taken by the appellant insurance company that the offending vehicle was being driven contrary to the terms and conditions of the insurance policy was not proved by the insurance company and therefore, the unsubstantiated plea cannot be permitted to be raised in the appeals. MA No. 228/2009 & MA No.226/2009

5. Having heard learned counsel for the parties and perused the record, I am of the considered view that the amount awarded by the Tribunal in both the cases, is just and fair and does not call for any interference. Learned counsel appearing for the appellant insurance company could not point out as to how the amount awarded is exorbitant or inconsistent with the guidelines laid down in the cases of Sarla Verma Vs. Delhi Transport Corporaiton, reported in (2009) 6 SCC 121 and National Insurance Company Limited v. Pranay Sethi and others, reported in 2017 Legal Eagle 960.

6. The only question which was seriously pressed by the learned counsel for the appellant and strenuously argued is that the driver of the offending vehicle was not holding any valid route permit. It is stated that as per the investigation got conducted by the appellant insurance company, the offending vehicle was issued the Route Permit No.649/ARTO/U, which was valid upto

24.04.2005 and had not been renewed thereafter. The accident took place on 15.03.2006 and on which date, there was no valid route permit issued for the offending vehicle. It is urged by the learned counsel for the appellant insurance company that with a view to place on record the original route permit verification certificate, the appellant insurance company had moved an application before the Tribunal, which was entertained and the original route permit verification certificate was taken on record, but, the same does not find any discussion or mention in the order impugned. It is contended that the said certificate issued MA No. 228/2009 & MA No.226/2009 by the ARTO concerned was a public document and therefore, admissible in evidence. Per contra, learned counsel appearing for the respondents-claimants urges that even the route permit verification certificate, which claims to have been placed on record by the appellant insurance company, was required to be proved by leading proper evidence.

7. With a view to appreciate the rival contentions urged on the question, I went through the objections filed by the appellant insurance company before the Tribunal minutely. The appellant insurance company has, undoubtedly, taken a specific objection that the offending vehicle was not possessing a valid RC, fitness and route permit at the time of alleged accident. This, as claimed by the appellant insurance company, was substantiated by placing on record certificate of ARTO with regard to the validity of the route permit of the offending vehicle. It may be noted that with a view to place on record the aforesaid certificate, the appellant insurance company had moved a formal application but the same was rejected by the Tribunal vide its order dated

15.11.2018 observing that the appellant insurance company could not be permitted and allowed to lead additional evidence after the matter had been adjourned for pronouncement of the judgment. The aforesaid order of the Tribunal has attained finality having not been assailed by the appellant insurance company. That apart, the certificate issued by the ARTO concerned, which was sought to be placed on record by the appellant insurance company cannot, by any stretch of MA No. 228/2009 & MA No.226/2009 reasoning, be called a „public document‟ as envisaged under Section 74 of the Evidence Act. For facility of reference, the certificate may be reproduced hereunder:- OFFICE OF THE ASSTT. REGIONAL TRANSPORT OFFICER, UDHAMPUR. CERITIFICATE. Certified that R/P No. 649/ARTO/U pertaining to Sh. Altaf Hussain S/O Sh. Ab. Gani R/O Udhampur covering Vehicle No.JK14-9448(Make) Tata Sumo is valid upto 24.04.2005 as per ledger record of this office. Asstt. Regional Transport Officer Motor Vehicle Department, Udhampur. Sd/-

8. A bare look at the certificate makes it abundantly clear that this is a certificate issued by the ARTO, Udhampur and is not the document forming the acts or records of the acts- of the sovereign authority, official bodies and tribunals, and of public officers, legislative, judicial and executive or public records kept in the State of private documents. This certificate issued by the ARTO is not a certified copy of any document available in the record of RTO and therefore, cannot be said to be a certified copy of public document which may be taken as proof of the contents of a particular public document of which it purports to be a copy. This is a certificate issued by the ARTO pure and simple and unless a person, who has issued the certificate, enters the witness box and admits its execution, it cannot be taken admissible in evidence. MA No. 228/2009 & MA No.226/2009

9. For the foregoing reasons, I am not persuaded to accept the contention of the learned counsel for the appellant insurance company that the appellant insurance company had discharged its burden of proving that on the date of accident, the vehicle was not covered by a valid route permit and therefore, the appellant insurance company is absolved of its liability to indemnify the owner of the vehicle and pay the compensation to the claimants. This obviates the necessity of deciding the question of law raised by the learned counsel for the appellant insurance company with regard to the liability of the insured vis- à-vis the offending vehicle, which is driven by its owner/driver without holding a valid route permit. The conspectus of judicial opinion also affirms that even if the contention of the appellant insurance company is accepted in its entirety, this would not still absolve the appellant insurance company to pay compensation to the claimant in the first instance. It may, however, be entitled to recover the same from the owner on the principle of “Pay and Recover”.

10. For the foregoing reasons and discussion made above, I find no merit in these appeals. The same are, accordingly, dismissed along with connected IA(s). (Sanjeev Kumar) Judge Jammu 26.04.2019 „Madan-PS‟ MADAN LAL VERMA 2019.04.29 14:30 I attest to the accuracy and integrity of this document MA No. 228/2009 & MA No.226/2009