IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.08.2009 CORAM THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN C.M.A.NO.83 OF 2000 United India Insurance Company Limited, Dharmapuri. ... Appellant/3rd Respondent -Vs- 1.N. Krishnamurthy 2.Paramasivam 3.J. Panneerselvam ... Respondents/Petitioner and Respondents 1 and 2 Civil Miscellaneous Appeal preferred under Section 173 of Motor Vehicles Act, 1988 against the Judgement and decree of the learned Subordinate Judge (Motor Accidents Claims Tribunal), Dharmapuri in M.C.O.P.No.907 of 1989 dated 25.08.1999. For Petitioner : Mr.S.Arun Kumar For Respondents : Mr.V.Lakshmi Narayanan for R1 No Appearance for R2 & R3 O R D E R The appeal has been preferred by the Insurance Company against the Award dated 25.08.1999, wherein a sum of Rs.50,000/- was awarded to the first respondent for the injuries sustained by him in the accident that had occurred on 09.03.1988. The appellant insurance Company challenged the claim petition contending that there was no insurance coverage at the time of the accident. In Para-3 of the counter statement, the Insurance company stated that the previous insurance policy of the vehicle expired on 08.03.1988 itself and the subsequent insurance policy was issued on 09.03.1988 from 08.20 A.M. According to the insurance company, the accident took place on 09.03.1988 at 06.20 A.M. From 00.00AM on 09.03.1988 till 08.20AM 09.03.1988 there was no insurance coverage and hence, the company is not liable to pay the amount. 2. On behalf of the claimant before the Tribunal two witnesses P.W.1 & P.W.2 were examined and Exs.A.1 to Ex.A.3 were marked and on behalf of the Insurance Company/appellant one witness R.W1 was examined and Ex.B.1 and Ex.B.2-Policies were marked. On appreciation of facts and circumstances of the case and the evidence available, the Tribunal came to the conclusion that the accident had occurred due to the negligence on the part of the Driver, who drove the lorry. https://hcservices.ecourts.gov.in/hcservices/ 3. As far as his liability to pay the amount is concerned, the Tribunal relied upon the decisions reported in 1990 ACJ 545 (SC) (New India Assurance Company Limited -vs- Ram Dayal), wherein the Honourable Supreme Court held that the insurance policy took effect from the commencement of the day and therefore, the insurance company was liable to pay the amount. Aggrieved by the award passed by the Tribunal against the insurance company is challenged in the present appeal. 4. Mr.S.Arun Kumar, learned counsel for the appellant pointed out that Ex.A.1 was categorical that it was effective from 09.03.1988 at 08.20 AM and the insurance coverage would run from 08.20 AM on 09.03.1988. Whereas the accident had occurred on 09.03.1988 at 06.20 AM on which time there was no insurance coverage. According to him, the Tribunal relied upon a judgement of the Honourable Supreme Court consisting of two Judges reported in 1990 ACJ 545, wherein the Apex Court held that the insurance company was liable. He also relied upon another Judgement of the Supreme Court in Oriental Insurance Company Limited -vs- Sunitha Rathi and others reported in 1998 ACJ 121, wherein it was held by three Judges Bench of the Honourable Supreme Court that the insurance coverage starts from the time mentioned in the policy, especially, when the policy contains Clause regarding the time and commencement of the policy. 5. On the other hand, Mr.V.Lakshmi Narayanan, learned counsel for the first respondent/claimant submitted that the Tribunal rightly found the liability of the insurance company, and Exs.B1 & B2, the Insurance policies, were not properly proved before the Tribunal. According to him, Exs.B1 and B2 are neither primary evidences nor secondary evidences as defined in Sections 63 and 65 of the Indian Evidence Act. According to him, firstly the Original policy was availed with the Owner, who chose not to contest the claim petition. In such circumstances, it is the bounden duty of the insurance company to summon the documents from the owner, and failure of the insurance company to summon the original policy, would make it liable to pay the amount. Secondly, he questioned about the competency of the witness through whom Exs.B1 and Ex.B2 were marked. According to him Exs.B1 and Ex.B2 Policies were not the copies maintained by the insurance company as the original always lies with the owner to whom the insurance coverage is given. If a copy of the original is marked, it can be safely presumed that it is the secondary evidence where as in this case, Exs.B1 and Ex.B2 are the copies made out from the copies maintained by the insurance company. In such a situation, Exs.B1 and Ex.B2 would not satisfy the ingredients given in the secondary evidence as per Indian Evidence Act. He relied upon a Judgment of the Honourable Supreme Court in J.Yashoda -vs- K.Shobha Rani reported in (2007) 5 SCC 730 wherein their Lordships elaborately dealt with the fact that what is meant the Primary evidence and secondary evidence and in Paragraphs 7 and 9 they have held as follows: "7.Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files itself to prove it to be https://hcservices.ecourts.gov.in/hcservices/ valid, the same party is not entitled to introduce secondary evidence of its contents. 8.Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence." 6. In that case, a photostat copy of the document was sought to be marked. With regard to marking of a copy of documents the Honourable Supreme Court held that the appellant failed to explain as and when, where the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time when the photograph was taken. The Supreme Court held that the High Court came to the conclusion that no foundation can be laid by the appellant for leading secondary evidence in the shape of Photostat copy and confirmed the view of the High Court. 7. Relying upon the said Judgment, it was submitted on behalf of the first respondent/claimant submitted that Exs.B.1 and B2 were only the copies made from the copies maintained by the insurance company and the witness RW1 did not explain under what circumstances he was able to produce only the copies from the document maintained by the insurance company and what prevented him from producing the copy maintained by the insurance company. He also relied upon another Judgment in New India Assurance Company -vs- Gulam Rasool and Others reported in 1993 ACJ Page 1132. In that case, the Insurance company did not file the original; but, only a copy was marked. Here also after extracting the Sections the learned Judge in Paras-37, 38, 39 and 48 elaborately dealt as follows: "37.From a perusal of the said insurance policy, it appears that somebody has signed on the first page as certified to be 'true copy'. The witness did prove that signature. There is also no evidence as to that who compares the said document with the original. No such endorsement appeals in the subsequent pages nor it has been proved as to who had filled up the blank portions of the printed forms. Obviously enough, as noticed hereinbefore, the 1st page of the said document was printed in December, 1984, the second page was printed in December, 1979, third page was printed in May, 1985, 4th page was also printed in May, 1985; whereas the last one being the sixth page was printed in November, 1982. 38. Apart from the aforementioned fact, the witness examined on behalf of the appellant categorically admitted that five copies of the insurance policy were prepared together. Thus even assuming that the original copy of the insurance policy was handed over to the owner of the vehicle, there cannot be any doubt whatsoever that four other copies were available with the appellant. https://hcservices.ecourts.gov.in/hcservices/ 39. No person has been assigned nor any explanation has been offered as to why the said other four copies which if had been prepared in the same process and thus would have been an original document, could not be produced by the appellant. ............... 48. It is, therefore,, clear that neither Privy Council nor the Supreme Court has suggested that even if the document is not admissible in evidence under the provision of the Evidence Act, the same can be looked into only because it has been marked as an exhibit." 8. In that case, the additional document was sought to be filed and by the Judgment, it was held that the additional document which was not at all admissible in evidence cannot be looked into. The learned counsel Mr.V.Lakshmi Narayanan relied upon another Judgment in National Insurance Company Limited -vs- V.Bimla Devi and Others reported in 2006 SCJ Page 402 in Para-6, where it has been held as follows: "6. It is a cardinal, basic and established principle of evidence law that documents, other than public documents are tendered in evidence through witnesses who, after taking oath prove the documents appropriately as well as the contents of documents, by way of leading direct evidence. Actually documents are produced and proved through witnesses and their contents also established and proved either by way of primary evidence or secondary evidence but in any event the established and accepted mode of proving documents is by production of witnesses in the Court who testify about the correctness, genuiness and authenticity of the documents as well as their contents, mostly through the medium of proving them as and by way of, primary evidence and in certain given situations through the medium of secondary evidence. The purpose of course is twofold: firstly, that such a witness appearing in the court is sworn and under oath testifies about a particular document, its genuiness and authenticity as well as its correctness; and secondly, once under oath and examination, this witness is subject to cross- examination by the opposite party so that the opposite party through the mechanism of cross-examination of such a witness can elicit appropriate information concerning the document itself with respect to its veracity, truthfulness, background, correctness, etc., etc. Enough indication of such requirement of law is found in Section 62 of the Evidence Act which refers to the documents as 'primary evidence' and clearly suggests that such documents can be produced for the inspection of the court meaning thereby that through witnesses alone the documents have to be brought on record of the courts. Similarly, under Section 63 of the Evidence Act, 'secondary evidence' has been defined an reading together these two sections, it can be safely said that the documents, either by way of https://hcservices.ecourts.gov.in/hcservices/ 'primary evidence' or by way of 'secondary evidence' or otherwise have to be appropriately and properly proved by their production in the courts through witnesses alone." 9. In that case, it was held that as per law of evidence, the document has to be proved as per the procedures even it is a public document. It was further held that the insurance policy is only a private contract and it cannot be presumed or called as a public document. If the insurance company wants to rely upon the clauses contained in the insurance policy, it is the bounden duty of the Insurance company to prove the same according to law. 10. The learned counsel for the first respondent relied upon a Judgment of the Delhi High Court in New India Assurance Company Limited -vs- Mohinder Kumar Ahuja and Others reported in 1998 ACJ 787. In that case, it was held that merely because the document Ex.A.1 was marked without objection, it did not mean that the said document could be relied upon without proving the same in accordance with law. By relying upon the said Judgment, the learned counsel would contend whether the claimant objected to the marking of the document or not, it has to be seen whether the document was properly proved before the Tribunal and submitted that Exs.B1 and Ex.B2 Policies were not proved even though there was no objection. In fact by reading the evidence of RW1 he submitted that at the threshold itself, marking of the document was objected and hence Exs.B1 and Ex.B2 were not proved. 11. With regard to breach of policy condition, the learned counsel contended that the person who pleads breach has to prove the same and he relied upon the Judgement of the Supreme Court in Narcinava V Karat and Another -vs- Alfredo Antonio Doe Martins and Others reported in (1985) 2 SCC 574. He relied upon the Judgment of the Delhi High Court in New India Assurance Company Limited -vs- Smt. Krishna Sharma and Others reported in 1997 ACJ 1081, wherein it was held that the insurance policy is not a public document under Section 74 of the Indian Evidence Act. 12. In nutshell the learned counsel submitted that (1) the insurance policy is only a private document and private contract (2) the appellant did not prove the document as per law of evidence (3) Exs.B1 and Ex.B2 were neither primary evidence nor secondary evidence as they are certified copies made from the copies maintained by the insurance company (4) when the insurance company did not prove the policies as per law of evidence, the same cannot be relied upon especially when the claimant was the 3rd party to the contract. 13. Mr.S.Arun Kumar, learned counsel for the appellant submitted that (1) at the time of accident there was no insurance coverage (2) the accident occurred in the time gap between the previous policy and subsequent policy and hence, the appellant is not liable to pay compensation for the accident. As per the Judgment of the Supreme Court in National Insurance Company Limited -vs- Smt.Sobina Lakai & Others reported in 2007 (7) SCC 786, the insurance coverage starts from the time which was mentioned in the policy and https://hcservices.ecourts.gov.in/hcservices/ other Judgments relied on are in New India Assurance Company Limited -vs- Bhagwati Devi reported in 1998(6) SCC 534, in Kalaivani and others -vs- V.K.Sivashankar and others reported in J.T. 2001 (10) SCC 396, in New India Assurance Company Limited -vs- Sita Bai reported in (1999) 7 SCC 575 and in National Insurance Company Limited -vs- Chinto Devi Smt and Others reported in (2000) 7 SCC 50 follow the same dictum. 14. It is seen from the records that Exs.B1 and Ex.B.2, which are the disputed documents before this Court, are admittedly the certified copies of the copies of the insurance policies maintained by the appellant insurance company. Admittedly, the original insurance policy was available with the owner/the third respondent. The appellant insurance company did not take any step to summon the original document from the owner, nor did call upon him to produce the original document. There was no explanation from RW1 as to why the copies of the originals maintained in the insurance office were not produced before the Court. Moreover, RW1 did not give any reason as to why he could not produce the Ledger maintained in this regard. In the absence of any explanation and production of copy of the policy maintained in the office, copies of the insurance copies viz., Exs.B.1 and B2 cannot be termed as secondary evidence and they are not admissible in evidence. Hence the said Ex.B.1 & B2 cannot be looked into. 15. The burden of proof regarding the policy originally lies on the claimant. Once the details regarding the policy and the company are given, it is the duty of the insurance company to make a search in the office and produce necessary evidence, through admissible evidence, to prove its stand taken in the counter statement. This is the dictum laid down by the Division Bench of this Court in United India Insurance Company -vs- R.Venkatesan and another reported in 2003 1 Law Weekly 31. In the case on hand, even though an attempt was made by the insurance company to produce certified copies of the copies of the policy maintained by the insurance company, as already observed, they cannot come under the category of secondary evidence. 16. As rightly pointed out by the learned counsel for the claimant, the insurance coverage in this case was only a 3rd party insurance coverage, whereas Exs.B.1 and 2 were meant for commercial vehicle and they were comprehensive policies. The learned counsel also pointed out that "make and year of manufacture" column in the insurance policy, the manufacturer's name alone was given and the year of manufacture was not given. He also pointed out that to determine the insurance premium, the year and the month of manufacture of vehicle are important. The learned counsel by pointing out the above defects, rightly stated that there was a possibility of fabrication. No doubt, the public insurance company like the appellant Insurance company would not indulge in fabrication of document. However, when such a contention was raised, it has to be suitably met. Mr.S.Arun Kumar, learned counsel for the appellant pointed out that the plea of fabrication of Ex.B.1 & Ex.B.2 was not raised before the Tribunal. Even in the absence of plea of fabrication of documents, the Appellant has to prove the documents as per law. However, with regard to nature of the document, merely https://hcservices.ecourts.gov.in/hcservices/ because the other side does not object it is not automatic that the document relied upon is as per the law of evidence. Marking of document is not enough to prove the same. As already observed Exs.B.1 and 2 are neither primary evidence nor secondary evidence. In the absence of any explanation from RW1, it is not necessary that the claimant should put a question with regard to the nature of document as to whether Ex.B.1 & Ex.B2 primary evidence or secondary evidence. It is only the insurance company who relies upon the said documents has to prove the said documents according to law. 17. The insurance policies are private contracts and they are exclusively within the knowledge of insurance company and the insured (owner). The 3rd party like claimant may not have any access to the policy. In that event, the burden of proof on the insurance company is heavy with regard to conditions of the policy and it has to be proved as per law of evidence. When the original policy is exclusively in the possession of the owner, it is the bounden duty of the insurance company to summon the document. In the absence of that, Exs.B.1 and B2 are considered to be not proved before Court and the same could not be treated as evidence. 18. For the reasons stated above, the Appellant did not prove that there was no policy at the time of accident and accordingly the contentions of the appellant are negatived. 19. As there is no challenge in respect of quantum, the same is confirmed. Accordingly, the appeal is dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar mps To 1. The Subordinate Judge, (Motor Accidents Claims Tribunal), Dharmapuri. 2. The Record Keeper, V.R.Section, High Court, Madras. + 1 cc to Mr.S.Arun Kumar,Advocate,SR.37137 + 1 cc to Mr.V.Raghavachari,Advocate,SR.37347 C.M.A.No.83 of 2000 JRG(CO) EM/6.11.09 https://hcservices.ecourts.gov.in/hcservices/