JUDGMENT R. D. Mathur, J.
1. This is an appeal against the judgment and order dated 26.5.1995, passed by the Presiding Officer (IInd Additional District Judge), Motor Accident Claims Tribunal, Sultanpur partly allowing the claim of the claimants/respondent Nos, 1 to 4 and awarding a sum of Rs. 1.60.000 as compensation to the respondents payable by the appellant, National Insurance Company, with pendente lite and future interest at the rate of 10% per annum.
2. The respondent Nos. 1 to 4 had filed a claim petition for grant of compensation for the death of Kaushal Kumar Gupta in an accident which had occurred in the intervening night of 20/21.4.1993 at about 11.00 p.m. on Lucknow-Sultanpur, road infront of Atith Hotel in Jagdlshpur Chatti. Sultanpur by Jeep No. U. P. 65D-8646, owned by respondent No. 5, Meeraz Ahmad.
3. According to respondents. Kaushal Kumar Gupta, who happened to be the husband of respondent No. 1 and father of the respondent Nos. 2 to 4. was a Journalist and General Manager in Golden Forest India Ltd., Ballia. He was earning Rs. 2.125 per month as commission for his service and Rs. 1,000 per month as commission from newspapers.
4. In the intervening night of 20/21.4.1993 at about 11.00 p.m., the deceased Kaushal Kumar Gupta was crossing the road along with Sheo Mandir Sharma after taking meal in Atith Hotel, to board the bus which was parked on the other side. When he was crossing the road, Jeep No. U. P. 65D-8646 came with a high speed and dashed with him. He was taken to the King George Medical College, Lucknow for treatment where he expired. The accident took place due to rash and negligent driving of the Jeep by its driver Lallan Soni. A sum of Rs. 25.000 was spent on the treatment and Rs. 15,000 was spent on funeral rites of Kaushal Kumar Gupta. A sum of Rs. 11.05.000 was claimed as damages.
5. The claim petition was contested by Meeraz Ahmad, respondent No. 5 who admitted that Jeep No. U. P. 65D-8646 belongs to him but he, however, denied that any accident took place by the said Jeep in which Kaushal Kumar Gupta received injuries. He has contended that on 22.4.1993, the driver Lallan Soni had taken his family members to village Magraura in connection with a marriage there and when he was returning back at about 5.00 p.m., his Jeep dashed against a tree at a distance of about 2.00 k.m. from Jagdlshpur in an attempt to save an old man, who was crossing the road.
While the driver was bringing the damaged Jeep after towing it with another Jeep, the police intercepted it at the crossing of Jagdishpur and involved it in an accident in which some person had sustained injuries. That no accident ever took place by his Jeep in which Kaushal Kumar Gupta got injured. The appellant, National Insurance Company also contested the claim petition and contended that the claimants have to prove that there was valid permit and the Jeep was insured with the appellant. That the driver of the Jeep had a valid licence at the time of accident. It was also contended that the amount claimed is highly excessive.
6. Apart from filing documents, the claimants had examined Smt. Shashi Bala Gupta. widow of the deceased and Sheo Mandir Sharma, the respondent No. 5 had examined himself as D.W. 1. Mohd. Ramzan as D.W. 2. Bachnu as D.W. 3. Lallan Soni as D.W. 4, Head driver Madan Singh as D.W. 5 and Suhel Ahmad as D.W. 6.
7. Sheo Mandir Sharma (A.W. 2) has stated that in the intervening night of 20/21.4.1993 at about 11.00 p.m. when after taking meal in Atith Hotel in Jagdishpur Chattl. he and Kaushal Kumar Gupta were crossing the road in order to board the bus which was parked on the other side of the road. Jeep No. U. P. 65D-8646 came there, which was being driven very rashly and negligently by its driver and. it dashed with Kaushal Kumar Gupta injuring him. He took Kaushal Kumar Gupta to Primary Health Centre, Jagdishpur from where he was referred to King George Medical College. Lucknow, where he expired on the third day. The respondent No. 5 had totally denied the accident and had claimed that when his Jeep was being brought in the damaged condition, it was seized by the police at Jagdishpur. The accident had taken place in the intervening night of 20/21.4.1993, whereas in his written statement, the respondent No. 5, Meeraz Ahmad has pleaded that his Jeep had met an accident in the evening of 22.4.1993.
8. The appellant. National Insurance Company has taken the plea that driver Lallan Soni had no valid licence at the time when accident took place and, therefore, the National Insurance Company is not liable to pay any damages as the Jeep was being driven by an unauthorised person at the time of accident.
9. On the pleadings of the parties, learned Presiding Officer. Motor Accident Claims Tribunal, Sultanpur, had framed four issues.
10. Learned Presiding Officer after hearing the learned counsel for the parties came to the conclusion' that deceased Kaushal Kumar Gupta had died in the accident which had taken place in the intervening night of 20/21.4.1993 at about 11.00 p.m. near Atith Hotel in Jagdishpur by Jeep No. U. P. 65-D-8646. The Jeep was being driven by authorised driver Lallan Sonl at the time of accident and he was driving the Jeep very rashly and negligently. He also held that the Jeep No. U. P. 65D-8646 was duly insured with National Insurance Company (appellant) at the time of accident and the driver Lallan Sonl who was driving the Jeep had a valid driving licence. He accordingly held that National Insurance Company and the owner of Jeep were jointly and severally liable to pay the compensation. A sum of Rs. 1,60,000 has been awarded as compensation from the appellant to respondent" Nos. 1 to 4 in equal share with pendente lite and future interest at the rate of 10% per annum, aggrieved by the judgment and order, the appellant has preferred this appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The main contention of the appellant is that at the time of accident, the driver was not holding a valid driving licence, thus there was a breach of condition of policy and. therefore, the appellant is not liable to pay any compensation. Reliance has been placed on two letters said to have been issued by the Regional Transport Officer, Cuttack, saying that no driving licence bearing No. L-26352/87 was issued to Lallan Soni or to any person.
13. The case of the respondents/claimants is that in the intervening night of 20/21.4.1993 at about 11.00 p.m. when Kaushal Kumar Gupta after taking meal in Atith Hotel in village Jagdlshpur Chatti was crossing the road, to board the bus which was standing on the other side of the road, Jeep No. 65D-8646 came there with a high speed and hit Kaushal Kumar Gupta. who got injured and fell down. He was taken to Primary Health Centre, Jagdishpur, from where he was referred to King George Medical College. Lucknow, where he expired after three days. First information report was lodged by Sri Pawan Kumar, the owner of the Atith Hotel. He has corroborated the claimants version and has categorically stated in his report that Kaushal Kumar Gupta was hit by Jeep bearing registration No. U.P. 65D-8646. Sheo Mandir Sharma, who was accompanying the deceased at the time of accident, has also corroborated the claimants' case.
14. The owner of the Jeep has, however, denied the incident in his written statement and has taken the plea that his Jeep had gone to village Magraura on 22.4.1993 and when it was returning back at about 5.00 p.m. it met with an accident and dashed against a tree at a distance of about 2.00 k.m. from Jagdlshpur. The accident had taken place in the intervening night of 20/21.4.1993 whereas Meeraz Ahmad. the owner of Jeep had taken plea that his Jeep got involved in an accident on 22.4.1993 and when it was being brought to Lucknow in a damaged conditions, it was seized by the police in Jagdishpur.
15. Thus, according to the case taken up in the written statement, the Jeep got involved in an accident on 22.4.1993. whereas according to the claimants' case the accident had taken place in the intervening night of 20/21.4.1993. Thus, according to the owner of the Jeep, the Jeep met an accident on 22.4.1993 when it was returning from village Magraura. The driver of the Jeep had moved an application for ball before the learned Chief Judicial Magistrate. Sultanpur. In that ball application, it is mentioned that when the deceased was crossing the road, front portion of his Jeep dashed with the bus which was standing on the road. Thus, different pleas have been taken by the owner of the Jeep at the different stages. On the basis of evidence on record, learned Presiding Officer has rightly come to the conclusion thai in the intervening night of 20/21.4.1993, an accident had taken place by Jeep No. U.P. 65D-8646 in which Kaushal Kumar Gupta had received injuries, and at the time of accident. Lallan Soni. the driver of the Jeep was driving the Jeep very rashly and negligently.
16. No appeal has been preferred by the owner of Jeep. We find no sufficient reason to interfere with the finding recorded by the learned Presiding Officer that Jeep No. U.P. 65D-8646 was being driven very rashly and negligently by its driver Lallan Soni when it dashed against Kaushal Kumar Gupta in the Intervening night of 20/21.4.1993 in village Jagdishpur Chatti.
17. The main contention of the appellant is that the Jeep was being driven by an authorised person at the time of accident in breach of condition of policy and as such the appellant is not liable to pay compensation. The appellant has filed two letters purported to have been issued by the Regional Transport Officer. Cuttack. The appellant has not examined any witness to prove those documents. In these documents, this much is written that no driving licence No. L-26352/87 has been issued to Lallan Soni or to any person. The driver, Lallan Soni has produced original driving licence issued to him by the Regional Transport Officer. Cuttack. This licence bears the seal of licensing authority. Cuttack. The contention of the learned counsel for the appellant is that this driving licence is forged. To prove their contention, the appellant has relied upon the letters issued by the Regional Transport Officer. These letters have been addressed to the Administrative Officer, National Insurance Company Ltd., Legal Cell. Divisional Office-1. Cuttack. These letters cannot be termed as public documents under Section 35 of the Indian Evidence Act because these letters have not been written under any statutory rules or are required to be so written. The statement contained in the letters would remain hearsay unless the person who has written appears before the Court to prove it.
18. Learned counsel for the appellant has placed reliance on the case of Kashiram Yadav and another v. Oriental Fire and General Insurance Company and others, 1990 (1) ACC I. In this case. it has been held that onus of the insurer has been discharged from the evidence of the insured himself. In the case of Kashiram (supra) the plea was taken that vehicle was driven by Gaya Prasad at the time of the accident but this fact was not established and the Tribunal held that Raghuraj Singh was driving the tractor and the accident took place due to his rash and negligent driving. In the instant case, the case of the claimants as also of the owner of Jeep is that the Jeep was being driven by Lallan Sont who had a valid driving licence.
19. In the case of Narcinva V. Kamat v. Alfredo Antonio Martins. AIR 1985 SC 1281, while considering the burden of proof and liability of the insurance company, the Supreme Court observed as follows :
"The Insurance Company complains of breach of a term of contract, which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract to not to perform the contract the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fall if no evidence is led.'
20. In the instant case, the driving licence has been produced by the driver and the Insurance Company is disputing that it is not a valid driving licence. The burden of proof was on the Insurance Company to prove that Lallan Soni had no valid licence at the time when the accident took place. As already stated the two letters filed by the Insurance Company before the Tribunal are not public documents and as such they are not admissible in evidence. Section 35 of the Indian Evidence Act reads as follows :
"35. Relevancy of entry in public record, made in performance of duty.--An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept. is itself a relevant fact."
21. The very reading of this provision shows that an entry in public record or register made in discharge of public duty by a public servant is covered by the provisions and when such an entry exists, a certified copy of that entry may be produced under Section 74 read with Section 65 of the Evidence Act. An entry regarding issuance of driving licence to an individual is made in the records/register maintained in the transport department. In the instant case, the appellant has not produced any record to show that no licence was issued in the name of Lallan Soni by the Regional Transport Officer, Cuttack, rather it has filed two letters which have not been proved even. Even this much evidence has not been adduced that these letters were received in response to a query made to the Regional Transport Officer. The appellant has thus failed to adduce any legal and satisfactory evidence to establish that the Jeep was being driven by an unauthorised person in breach of condition of licence at the time of accident.
22. Under these circumstances, the view taken by the learned Presiding Officer that vehicle was being driven by an authorised person at the time of accident and driver Lallan Soni had a valid driving licence is correct and requires no interference. No other point has been pressed. The compensation awarded by the learned Tribunal is quite reasonable.
23. In view of the above discussion, there appears no reason to interfere with the judgment and order of the learned Tribunal. The appeal is therefore, liable to be dismissed.
24. The appeal is dismissed. No order as to costs.