Heard Sri Rakesh Bahadur, counsel for the appellant and Sri Surendra Tewari, counsel for the respondent nos. 1 and 2.
In view of the office report dated 22nd December, 1999, service of notice of the appeal on respondent nos. 3 to 7 is deemed sufficient. However, no one has put in appearance on behalf of the aforesaid respondents even though the case has been taken up in the revised call.
The present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act, 1988) has been filed by the Insurance Company, i.e., the New India Assurance Company Ltd., Ghaziabad (hereinafter referred to as, 'the appellant') against the judgment and award dated 5th of June, 1999 passed by the Motor Accident Claims Tribunal/XIth Additional District Judge, Ghaziabad (hereinafter referred to as, 'the Tribunal') in Motor Accident Claim Petition No. 162 of 1995 awarding a compensation of Rs.2,10,000/- to the respondent nos. 1 and 2 (hereinafter referred to as, 'the claimants') and holding the appellant liable to pay the same without any right of recovery from the owner of the vehicle, i.e., respondent no. 4.
The claimants, i.e, the respondent nos. 1 and 2, filed Motor Accident Claim Petition No. 162 of 1995 under Section 166 of the Act, 1988 claiming compensation of Rs.18,40,000/- for the death of their son, aged 22 years, on 31.1.1995 in an accident caused due to rash and negligent driving of Truck No. D.I.G.6439 (hereinafter referred to as, 'the offending vehicle'). It was alleged in the claim petition that at the time of accident, the deceased was driving his Motorcycle No. D.L-1/S.H./5915 which was knocked down by the offending vehicle because of which the deceased fell down and the offending vehicle crushed past over him as a result of which the deceased died. A first information report regarding the incident was lodged in the concerned police station by one Ompal, who at the time of accident, was sitting on the rear seat of the motor cycle. The truck was driven by respondent no. 3 and was initially owned by respondent no. 4 who sold the same to respondent no. 7 on 19.9.1994. The offending vehicle was insured with the appellant. It was stated in the claim petition that at the time of his death, the deceased was earning Rs.43,000/- per month as a tailor. The claimants, i.e., respondent nos. 1 and 2 are the parents of the deceased, respondent no. 5 was the widow of the deceased and respondent no. 6 was the minor daughter of the deceased. However, during the pendency of the case, the respondent no. 5 remarried and filed an application forsaking her right to compensation.
In Motor Accident Claim Petition No. 162 of 1995, the respondent nos. 3 and 4 filed their written statements denying the factum of accident as stated by the claimants. In their claim petition, the respondent nos. 3 and 4 alleged contributory negligence by the deceased and that the accident was caused by a car which had overtaken the offending vehicle when the offending vehicle was stopped by a police constable. In their written statement, the respondent nos. 3 and 4 also brought to the notice of the court that the offending vehicle had been sold to respondent no. 7 and was insured with the appellant. It was also stated by the respondent nos. 3 and 4 that, at the time of accident, the driver of the vehicle held a valid driving licence and there was no breach of insurance policy by the owner of the vehicle. The appellant also filed its written statement wherein it pleaded that at the time of accident, the vehicle was in possession of and being driven by an unauthorized person who had no valid driving licence and, therefore, the appellants were not liable to pay any compensation to the claimants. It is noticeable that in its written statement, the appellant had alleged that their investigator had reported that the relevant licensing authority had informed that the driving licence filed by respondent no. 3, i.e., the driver of the vehicle was fake and no licence had been issued in favour of respondent no. 3. The written statement available in the records of the Tribunal as transmitted to this Court was signed by the Senior Divisional Manager of the appellant on 21st of May, 1997 and appears to have been filed on the same date in the Tribunal as Issues were framed by the Tribunal on 21st of May, 1997 itself.
In Motor Accident Claim Petition No. 162 of 1995, the Tribunal framed six Issues. Issue nos. 1 and 2 framed by the Tribunal related to the factum of accident and the negligence of the driver in causing the accident, Issue no. 3 framed by the Tribunal was as to whether the driver of the vehicle held a valid driving licence at the time of accident and the legal implications of the findings on the said issue, Issue no. 4 was as to whether the owner of the vehicle had committed breach of insurance policy, Issue no. 5 was regarding the entitlement of the claimants to compensation and the inter se liability of the defendants to pay compensation to the claimants and Issue no. 6 related to the quantum of compensation to which the claimants were entitled.
The claimants produced two witnesses, namely, one Hukum Chand as PW-1 and Ompal as PW2. Om Pal, i.e, PW-2 was, at the time of accident, sitting on the rear seat of the motorcycle. The appellants also produced two witnesses, namely, Subhash Chandra Srivastava as DW-1 and one Pramod Kumar Arora as DW-2. The aforesaid witnesses of the appellant were officers of the appellant-company. The claimants as well as the owner and the driver of the vehicle filed a photocopy of the licence allegedly held by the driver of the vehicle on the date of accident and the said photocopy showed that the driver of the vehicle was issued a driving licence by the Licensing Authority on 24.5.1989 which was valid from 24.5.1989 to 23.5.1992 and was subsequently renewed with effect from 24.5.1992 to 23.5.1995. The photocopy of the driving licence reflected that the licence was issued and renewed by the Licensing Authority (Motor Vehicle), Ambala and was renewed by the same authority. The number of the licence as reflected in the photocopy was S. 16347/89. The aforesaid document was marked as Paper Nos. 34-Ga and 47-Ga in the Tribunal. A charge-sheet filed by the police against the driver of the offending vehicle was also filed by the claimants and marked as Paper No. 18-Ga while the site map prepared by the Investigating Officer in the case was filed and marked as Paper No. 31-Ga. It appears that the original licence of the driver of the vehicle was seized by the police and the memo regarding the same was filed in the Tribunal as Paper No. 32-Ga. During the proceedings in the Tribunal, summons were issued to the Licensing Authority, Ambala to appear as a witness which was served on him and in response to the summons, the Licensing Authority made a notation dated 25.5.1999 on the summons itself stating that no licence was renewed by his office on 24.5.1992 and his office had not renewed any licence between 13.5.1992 and 25.5.1992. The summon containing the notation was marked as Paper No. 48-Ga(2) in the Tribunal.
In its award dated 5th of June, 1999, the Tribunal held that the son of the claimants died on 31.1.1995 in an accident caused due to rash and negligent driving of offending vehicle by its driver and because the offending vehicle had slammed into the motorcycle of the deceased from behind as a result of which the deceased fell down and was crushed past by the offending vehicle. The incident was proved by PW-2 who, at the time of accident, was sitting on the back seat of the motorcycle. In his testimony, PW-2 had stated that the motorcycle was knocked from behind by the truck when the deceased applied brakes on the motorcycle to avoid a two wheeler which had come in front of the motorcycle. The motorcycle was thrown almost 10-15 ft and the width of the concerned road was 20 ft. The Tribunal also took notice of the postmortem report of the deceased which showed that the head of the deceased was smashed in the accident. Consequently, the Tribunal recorded a finding that the son of the claimants died due to rash and negligent driving of the offending vehicle by its driver and there was no contributory negligence by the deceased in causing the accident.
After considering the income of the deceased and other factors as well as the fact that the widow and minor daughter of the deceased had filed an application withdrawing themselves from the case, the Tribunal awarded a compensation of Rs.2,10,000/- to the claimants after applying a multiplier determined on the basis of the age of the claimants. I am not recording the details of the quantum of compensation awarded to the claimants as no arguments were raised by the counsel for the appellant challenging the quantum of compensation awarded to the claimants.
On the issue as to whether the driver of the offending vehicle held a valid driving licence at the time of accident, the Tribunal relied on the photocopies of the licence which were marked as Paper Nos. 34-Ga and 47-Ga to hold that at the time of accident, the driver of the vehicle held a valid driving licence. In its award, the Tribunal took notice of the fact that the appellants had not produced any officer or record of the Licensing Authority to prove that the licence filed by the driver was fake and not issued by the Licensing Authority. The Tribunal also took notice of the fact that the name of the Incharge or the Licensing Authority who transcribed the noting on Paper No. 48-Ga was not disclosed by the appellants and, therefore, refused to accept that the notations on the summons were made after examining the records. In its award, the Tribunal also reasoned that the driver of the vehicle had not been disqualified from holding a driving licence and therefore the appellant-company could not be absolved of its liability to pay compensation even if it was assumed that the licence was not validly renewed with effect from 24.5.1992 as the appellant had not been able to prove that the driving licence was fake and was never issued in favour of respondent no. 3. Consequently, the Tribunal held that the appellant-company had not been able to prove that at the time of accident, there was any breach of insurance policy. The Tribunal held that the insurance company was liable to pay compensation to the claimants without any right to recover the same from the owner of the vehicle as at the relevant time, the offending vehicle was insured with the appellant-insurance company.
It is evident that the appellant had failed to establish in the Tribunal its plea that the driving licence was fake or did not stand renewed at the time of accident. To overcome the defects in its defence while contesting the claim petition, the appellant has, in the present appeal, filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as, 'CPC') bringing on record the letter dated 3.3.1997 written by its alleged investigator to the Regional Transport Authority/D.T.O., Jaipur (Rajasthan) whereby information was sought regarding the validity of the driving licence No. S-16342/1989 dated 24.5.1989. The letter contains an undated note allegedly made by the Licensing Authority, Jhalana Dungri (Goods), Jaipur stating that no such licence had been issued to respondent no. 3. The aforesaid letter containing the notes of the Licensing Authority were sent to the Regional Manager of the appellant-company through a letter dated 8.3.1997 which is annexed with the application filed under Order 41 Rule 27 CPC. It has been prayed that the aforesaid documents be taken on record as additional evidence in appeal and be considered while deciding the appeal.
As the appeal is pending in this Court since 1999, I have heard arguments on the application filed under Order 41 Rule 27 CPC as well as on the merits of the appeal and the appeal as well as the application are being decided through a common judgment.
Sri Rakesh Bahadur, the counsel for the appellant has argued that in view of the averments made in paragraph nos. 4, 5, 6, 7 and 8 of the affidavit annexed with the application filed under Order 41 Rule 27 CPC, the application is liable to be allowed and the documents annexed with the same, i.e, the letters dated 3.3.1997 and 8.3.1997 should be considered while deciding the present appeal. Further, challenging the impugned award dated 5th of June, 1999, the counsel for the appellant has argued that it was evident from the records that at the time of accident the deceased was not wearing a helmet and had also not maintained a safe distance from the offending vehicle and the accident occurred because the deceased had suddenly applied the brakes on his motorcycle. It was argued that in light of the said evidence, the findings of the Tribunal that there was no contributory negligence on the part of the deceased in causing the accident is contrary to evidence on record and is liable to be set-aside. It was argued that the accident resulted in fatal injuries on the head of the deceased due to omission on his part to wear a helmet and, therefore, the amount of compensation awarded by the Tribunal was liable to be reduced and the award was liable to be modified accordingly. It was also argued by the counsel for the appellant that Paper No. 48-Ga containing the notes of the Licensing Authority shows that the licence of the driver of the vehicle did not stand renewed at the time of accident. It was argued that Paper No. 48-Ga was a public document and, therefore, the notations on it deserved to be admitted as evidence without any further proof and should have been considered while recording any finding on the issue regarding the driving licence of the driver. It was further argued that the documents annexed with the application filed under Order 41 Rule 27 CPC are also liable to be admitted as additional evidence in appeal. It was argued that it was evident from the notings on Paper No. 48-Ga as well as the documents annexed with the application filed under Order 41 Rule 27 CPC that the alleged driving licence of the driver was a forged document and in any case did not stand renewed at the time of accident and, therefore, at the time of accident, the offending vehicle was being operated in breach of the insurance policy. It was argued that in view of the aforesaid, the owner of the vehicle was liable to pay compensation to the claimants and the appellant was entitled to recover from the owner of the vehicle the compensation paid by it to the claimants and the findings of the Tribunal on the said issue are contrary to law and liable to be set-aside and the award of the Tribunal is liable to be modified accordingly. In support of his arguments, the counsel for the appellant has relied on the judgment of the Kerala High Court in Siby Paul vs. Praveen Kumar (2009) ACJ 2322 and a Division Bench judgment of this Court dated 15.12.2017 delivered in First Appeal From Order No. 648 of 2001.
The counsel for the claimant-respondent nos. 1 and 2 has supported the award of the Tribunal. It was argued by the counsel for the claimants that the alleged contributory negligence of the deceased in causing the accident was not proved from the oral and documentary evidence on record and in any case the appellant being the Insurance Company is not entitled to raise the said plea in appeal. The counsel for the claimant also argued that the application filed under Order 41 Rule 27 CPC was not maintainable and in any case the claimants cannot be made to suffer and the appellant is liable to satisfy the award passed by the Tribunal.
I have considered the submissions of the counsel for the parties.
So far as the application filed by the appellant under Order 41 Rule 27 CPC is concerned, the appellant has stated in the affidavit that the letters dated 3.3.1997 and 8.3.1997 had been received in the office of the appellant but had been misplaced and, therefore, could not be immediately placed in the relevant file. It has been stated in paragraph no. 4 of the affidavit that the documents were not within the knowledge of the officer dealing with the above case at Ghaziabad and, therefore, could not be filed in the Tribunal despite exercise of due diligence and the said fact came to the knowledge of the officers of the appellant-company only at the time of preparing the present appeal. For reasons to be stated presently, the averments in the affidavit cannot be relied upon while considering the application filed under Order 41 Rule 27 CPC.
It was held by the Privy Council in Kachireddi Nagireddi vs. Sakireddi Chinna Narayanaredii & Others AIR 1927 Privy Council 27 that when an application was made at a late stage in the case to put in evidence res noviter ad notitiant preventa, one of the primary duties of the applicant was to show that it was owing to no want of diligence on his part that the matter was not discovered before. In Narain Das vs. IInd Additional District Judge, Moradabad & Another AIR (1999) Allahabad 74, this Court held that Order 41 Rule 27 CPC could not be taken recourse to merely because a party at the stage of appeal finds that some material which could have tilted the decision in its favour had not been produced but should have been and the party had a right to produce additional evidence only if it satisfies the court that he exercised due diligence and the evidence was not within his knowledge.
In paragraph no. 19 of its written statement filed in the claim petition, the appellant has stated that, after verification, their investigator had informed that the driving licence was fake and that the licence was not issued to the driver of the offending vehicle, i.e., respondent no. 3. It was on the basis of the aforesaid fact that the appellant has pleaded breach of insurance policy by the owner of the vehicle and consequently denied its liability to pay compensation. The written statement was signed on 21.5.1997 and the documents annexed with the application filed under Order 41 Rule 27 CPC are dated 8.3.1997 and 3.3.1997. The written statement was signed and verified by the Senior Divisional Manager of the appellant-company. It is apparent from the recitals in the written statement that the documents annexed with the application filed under Order 41 Rule 27 CPC were in the knowledge and in possession of the officer of the appellant-company who signed the written statement as well as the counsel for the appellant-company who had drafted the written statement. The averments made in the affidavit annexed with the application filed under Order 41 Rule 27 CPC cannot be relied upon as the said averments are inconsistent with the factual foundations stated by the appellant in its written statement in support of its plea of breach of insurance policy by the appellant. It has also not been explained in the affidavit as to how and when the documents or their contents came to the knowledge of any officer of the appellant-company and whether during the proceedings before the Tribunal any attempt was made by the staff of the appellant-company to trace out and search the documents annexed with the application filed under Order 41 Rule 27 CPC. The appellant has not been able to show that there was no want of diligence on its part and the documents could not be discovered earlier and filed in the Tribunal despite exercise of due diligence by the appellant.
Thus, the case of the appellant is not covered by Order 41 Rule 27 (aa) CPC. It is not the case of the appellant that the present case would be covered under Order 41 Rule 27 (a) of the CPC and for reasons to be stated while considering the findings of the Tribunal on the issue regarding driving licence, the present case is also not covered by Order 41 Rule 27 (b) of the CPC. For the aforesaid reasons, the application under Order 41 Rule 27 CPC filed by the appellant is liable to be dismissed and is, thus, rejected.
The first argument raised by the counsel for the appellant challenging the impugned award was that, at the time of accident, the deceased was not wearing a helmet and was driving his motorcycle in the middle of the road. It was argued that it was evident from the evidence on record that the offending vehicle hit the motorcycle of the deceased because the deceased had not maintained a proper distance from the offending vehicle and had applied sudden brakes on the motorcycle. It was argued that it was apparent that there was contributory negligence on the part of the deceased in causing the accident and, therefore, the findings of the Tribunal holding that there was no contributory negligence of the deceased is contrary to the evidence on record and the compensation awarded to the claimants is liable to be reduced to the extent of the contributory negligence of the deceased.
The issue regarding contributory negligence by a pillion rider because of his omission to wear helmet while driving his vehicle and for the consequential head injuries caused in the accident is no more res integra. The aforesaid issue was for consideration before this Court in New India Assurance Company Ltd. vs. Smt. Sharda Devi & Others 2012 (4) ADJ 449 wherein this Court, relying on the observations of the Supreme Court in Sudhir Kumar Rana vs. Surinder Singh & Others AIR 2008 (SC) 2405, held that the failure to not wear a helmet and allowing the children to ride on the back seat common with most lower middle class families travelling on two wheeler cannot be taken as composite or contributory negligence on the part of the deceased when it is found that he was not liable for any wrong doing in driving or otherwise on account of which the accident was caused. The Division Bench of this Court further observed that the breach of rules in driving two wheeler without helmet and driving it with three pillion rider by itself cannot be treated as composite or contributory negligence on the part of the victim of the accident. Thus, merely because the deceased was not wearing a helmet while driving his motorcycle cannot be treated as contributory negligence in causing the accident so as to reduce the compensation awarded to the claimants. In view of the Division Bench judgment of this Court referred above, I am not able to follow as precedent, the judgment of the Kerala High Court in Siby Paul (supra).
The other argument relating to contributory negligence which was raised by the counsel for the appellant was that the deceased while driving his motorcycle had not maintained a safe distance from the offending vehicle. The motorcycle was hit by the offending vehicle from behind. Evidently, the motorcycle was ahead and was followed by the offending vehicle. It is the duty of the vehicle moving behind to maintain a safe distance from the vehicle in front. The distance to be maintained by the vehicle moving behind should be such so as to avoid collision if the vehicle which is ahead suddenly slows down or stops. It was the duty of the offending vehicle to maintain a safe distance from the motorcycle of the deceased and it was not the duty of the deceased to maintain a safe distance from the offending vehicle. The driver of a motor vehicle which is ahead cannot be expected to continuously look back to ensure a safe distance from the vehicle following it. The observations of the Supreme Court in Paragraph no. 12 of its judgment in Nishan Singh & Others vs. Oriental Insurance Company Ltd. through Regional Manager & Others 2018 (6) SCC 765 are relevant for the purpose and are reproduced below:
"12. The finding so recorded by the Tribunal has been affirmed by the High Court, by observing that the evidence was clearly indicative of the fact that the Maruti car was being driven in a rash and negligent manner, which was the cause for accident of this nature and resulting in death of one of the passengers in the Maruti car. The Maruti car was driven by none other than PW-2 Manjeet Singh. In his evidence, he has admitted that the subject truck was running ahead of the Maruti car for quite some time about one kilometre and at the time of accident, the distance between the truck and Maruti car was only 10-15 ft. He has also admitted that the law mandates maintaining sufficient distance between two vehicles running in the same direction. It is also not in dispute that the road on which the two vehicles were moving was only about 14 ft wide. It is unfathomable that on such a narrow road, the subject truck would move at a high speed as alleged. In any case, the Maruti car which was following the truck was expected to maintain a safe distance, as envisaged in Regulation 23 of the Rules of the Road Regulations, 1989, which reads thus:
"23. Distance from vehicles in front. - The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop."
The expression ''sufficient distance" has not been defined in the Regulations or elsewhere. The thumb rule of sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond. The distance of 10-15 ft between the truck and Maruti car was certainly not a safe distance for which the driver of the Maruti car must take the blame. It must necessarily follow that the finding on the issue under consideration ought to be against the claimants."
(emphasis added) The above observations of the Supreme Court also answer the argument of the counsel for the appellant that the accident had occurred because the deceased had suddenly applied the brakes on his motorcycle. Evidently, the driver of the offending vehicle did not maintain a safe distance from the motorcycle of the deceased so as to avoid any collision in case the motorcycle of the deceased suddenly slowed down or stopped.
It was also argued by the counsel for the appellant that the deceased was driving his motorcycle in the middle of the road and, therefore, there was contributory negligence on his part in causing the accident. In the Tribunal, PW-2 who was sitting on the back seat of the motorcycle testified that the motorcycle was being driven in the middle of the road. However, the said fact cannot in itself be decisive to hold that there was any contributory negligence by the deceased in causing the accident. The eye-witnesses of the accident had testified that the offending vehicle was being driven rashly and negligently by its driver. In the Tribunal, the owner and the driver of the vehicle and the appellant-Insurance Company did not plead the case that the accident would not have occurred if the motorcycle had been on the extreme left side of the road. The owner of the vehicle or the appellant-Insurance Company did not suggest to PW-2 that the accident could have been avoided if the deceased had not been driving his vehicle in the middle of the road. It is also evident from the testimony of PW-2 that the road on which the accident occurred was 20 ft wide and, therefore, even though the deceased was driving his motorcycle in the middle of the road, the driver of the offending vehicle could have easily avoided the accident had he taken due care while driving. In the Tribunal, the owner had taken up the case that the offending vehicle was not involved in the accident and the motorcycle was hit by a car which had overtaken the offending vehicle. It is apparent from the argument of the counsel for the appellant that the accident occurred because the vehicles were not at a safe distance from each other though the counsel for the appellant has argued that the deceased did not maintain a safe distance. It has been held earlier that the responsibility to maintain a safe distance is of the driver of the vehicle moving behind and not of the vehicle which is ahead. In case, a safe distance had been maintained by the driver of the offending vehicle, the accident could have been avoided despite the fact that the deceased was driving his motorcycle in the middle of the road. The position of the motorcycle on the road was not the cause of the accident and, therefore, there was no contributory negligence of the deceased in causing the accident.
It was also argued by the counsel for the appellant that the injuries to the deceased would not have been fatal had he been wearing a helmet and, therefore, there was contributory negligence on the part of the deceased so far as the injuries were concerned. The eye-witnesses of the accident had proved before the Tribunal that the offending vehicle had crushed past the deceased smashing his head. A postmortem of the body of the deceased was conducted and a perusal of the anti-mortem injuries shows that the head, skull and brain of the deceased were completely smashed and split open with protrusion and laceration of their contents. The injuries, as reflected in the post-mortem report, cannot be the effect of the impact caused due to the head of the victim hitting the road. The fatal nature of the injuries was due to the fact that the offending vehicle had crushed past the deceased after he fell down from his motorcycle. It is inconceivable that the injuries caused to the deceased would have been any different if the deceased had been wearing a helmet at the time of accident. The offending vehicle had crushed past the deceased and in such circumstance, the helmet would not have made any difference.
For the aforesaid reasons, the argument of the counsel for the appellant regarding the contributory negligence of the deceased stands rejected.
The other argument of the counsel for the appellant related to the findings of the Tribunal regarding the inter se liability of the appellant-Insurance Company and the owner of the vehicle to pay compensation to the claimants. It was argued by the counsel for the appellant that, at the time of accident, the driver of the vehicle did not have a valid driving licence and, therefore, there was breach of insurance policy by the owner. It was argued that from the noting on Paper No. 48-Ga, it was evident that the driving licence did not stand renewed on the date of accident and had expired almost two and a half years before the date of accident. It was further argued that from the documents annexed with the application filed under Order 41 Rule 27 CPC that the driving licence filed in the Tribunal by the claimants and the driver were forged documents and, thus, the appellant cannot be held liable to pay compensation to the claimants. It was argued that Paper No. 48-Ga was a public document and its contents including the notation of the Licensing Authority were proved by the production of the document itself. It was argued that the Tribunal had erred in not relying on the notings of the Licensing Authority recorded on the summons while deciding the issue regarding the driving licence and consequently the inter se liability of the appellant and the owner of the vehicle to pay compensation to the claimants.
The photocopy of the licence filed in the Tribunal showed that it was issued on 24.5.1989 and was valid from 24.5.1989 to 23.5.1992 and subsequently, after renewal, from 24.5.1992 to 23.5.1995. The plea of the appellant-Insurance Company that at the time of accident, the driver of the vehicle did not have a valid driving licence either because it did not stand renewed at the time of accident or no licence was ever issued in his favour by the Licensing Authority, Ambala and the licence filed in the Court was fake and a forged document could have been proved only by the Licensing Authority after examining his records. The Licensing Authority, Ambala did not appear as a witness in the case. On a summons issued to him by the Tribunal, a note was made that no licence was renewed by the Licensing Authority on 24.5.1992. The name and designation of the authority who made the notations were not disclosed by the appellant. The notations are followed by a scrawl and not by any legible signature of the concerned authority. Merely because the notations are accompanied by the stamp of the Licensing Authority does not in itself prove that the notings were made by the Licensing Authority or that the same were made by the concerned Licensing Authority after examining the relevant records. The notings though recorded on a public document i.e. the summons were not themselves a public document. The notations cannot be considered to be a public document as defined in Section 74 of the Indian Evidence Act, 1872 and were also not a memorandum of any evidence as contemplated in Section 80 of the Indian Evidence Act, 1872. The Tribunal rightly refused to rely on the notations without the appropriate authority having appeared as a witness to testify that the notations were made by him and were made after examining the original records. In Inam Ali Khan vs. Mohd. Idris & Others 1986 (2) ARC 92, this Court held that a letter written by a postal authority to a Tribunal although on the basis of public records in his charge cannot be said to be a public document. Even if the notings on the summons were made by the Licensing Authority and were made after examining the original records available with him, the notings cannot be held to be a public document. The relevant observations of this Court in Paragraph no. 9 of Inam Ali Khan (supra) are reproduced below:-
"9. Incidently, one more question was raised during the argument regarding a letter sent by the Post Master in response to an enquiry made about the money order of Rs.70. The document has been exhibited, it is urged, rightly as it was a public document. Reliance in this regard had been placed on a single Judge decision of this Court reported in 1981 ARC 680. I have been taken through that decision but I have my serious doubts about the correctness of the legal position as spelt out there. All documents that are required to be maintained by the Post Office in a particular manner either by law or under the rules may certainly be public documents but a letter written by a Postal Authority although on the basis of public records in his charge, cannot be said to be a public documents. Neither under Section 25 nor under Section 74 of the Evidence Act can such a letter be held to be a public document. However, since nothing turns upon this documents I leave the matter here and I would prefer not to express any final opinion on this question."
(emphasis added) Similarly, the letters dated 3.3.1997 and 8.3.1997 written by the alleged investigator of the appellant-Insurance Company to the Regional Transport Authority, Jaipur and to the Regional Manager of the appellant-Insurance Company, Jaipur and the notings allegedly made by the Licensing Authority on the letter dated 3.3.1997 stating that no licence No. S-16342/89 dated 24.5.1989 had been issued to Sri Satbir Singh, i.e, the driver of the offending vehicle can not be considered to be public documents and the notings are not evidence as contemplated in Section 80 of Indian Evidence Act, 1872. It is for this reason that the aforesaid documents annexed with the application filed under Order 41 Rule 27 CPC cannot be helpful in deciding the issues raised in the present appeal and the application is not covered by Order 41 Rule 27 (b) CPC. Thus, the argument of the counsel for the appellant that Paper No. 48-Ga was a public document and the notings made by the Licensing Authority on the same were admissible in evidence and should have been considered by the Tribunal is not acceptable and is rejected.
The Division Bench judgment of this Court delivered in First Appeal From Order No. 648 of 2001 and relied upon by the counsel for the appellant is not applicable in the present case in as much as in the aforesaid case, the Senior Assistant in the R.T.O. Office, Agra appeared as a witness and on the basis of original records available with him, had stated that the driving licence had not been issued by the office of the R.T.O., Agra. As recorded earlier, no witness or no evidence admissible in law could be produced by the appellant to substantiate its plea that the driving licence filed by the driver and the claimants was either a forged document and not issued by the concerned Licensing Authority or did not stand renewed on the date of accident.
Apart from the above, the Supreme Court in National Insurance Company Ltd. vs. Swaran Singh & Others 2004 (3) SCC 297 held that mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. It was held by the Supreme Court that to avoid its liability towards the insured, the insurer had to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. It was further held by the Supreme Court in the aforesaid case that the question as to whether the owner had taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. The Supreme Court held that the insurer would be entitled to raise a defence that the licence produced by the owner of the vehicle was fake but the insurer will have to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. The relevant observations of the Supreme Court in Paragraph nos. 101, 110 (iii) and 110 (vii) are reproduced below:
"101. The submission of Mr. Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver.
110 (iii). The breach of policy condition e.g., disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
110 (vii). The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case."
(emphasis added) In its written statement, the appellant-Insurance Company had not taken the plea that the driving licence was fake and the owner of the vehicle either knew about it or had not taken reasonable care and caution to verify the genuineness of the driving licence possessed by the driver. In their written statement, the appellant-Insurance Company did not plead that the owner/insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of insurance policy regarding use of vehicle by a duly licensed driver. No evidence was produced by the insurance company to discharge its burden to prove the absence of reasonable care on the part of the owner of the vehicle as stated above. It is evident from a reading of the judgment of the Supreme Court in Swaran Singh (supra) that even if the licence possessed by the driver of the vehicle was fake, the insured cannot be held liable and the insurer cannot be absolved of its liability unless the insurer pleads and proves absence of reasonable care on the part of the owner in fulfilling the condition of insurance policy relating to use of vehicle by a duly licensed driver. Thus, even if the driving licence of the driver of the offending vehicle produced before the Tribunal was fake and forged, the appellant cannot be absolved of its liability to pay compensation to the claimants and cannot be held to be entitled to recover from the owner the compensation amount.
For all the aforesaid reasons, there is no illegality in the impugned award dated 5th June, 1999 passed by the Tribunal. The appeal and the application filed by the appellant under Order 41 Rule 27 CPC are liable to be dismissed and are, hereby, dismissed.
Order Date :- 25.2.2019 Satyam