IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.199 of 2004. Judgment reserved on: 12.11.2008 Date of decision: 21.11.2008 New India Assurance Company …….Appellant Vs. Jagdish Ram Gupta and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. K.D. Sood, Advocate. For the Respondents : Ms. Shilpa Sood, Advocate, for respondents No.3 and 4. Mr. Hamender Chandel, counsel for respondent No.5. None for respondents No.1 and 2. Kuldip Singh, Judge. The insurer of truck No.HPH-227 has come in appeal against award dated 23.3.2004 passed by learned Motor Accident Claims Tribunal, Hamirpur in M.A.C. Petition No.54 of 2001, awarding Rs.5,15,000/- compensation to respondents No.1 and 2 along with interest at the rate of 9% per annum from the date of filing of the petition till deposit of the entire amount. Out of Rs.5,15,000/- Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… respondent No.1 was awarded Rs.1,65,000/- and respondent No.2 Rs.3,50,000/-. 2. The facts in brief are that Anup Gupta son of respondents No.1 and 2 was a pillion rider on scooter No.HP-40-2506 on 8.3.2000 at about 10 p.m. which was being driven by respondent No.5 Manoj Kumar. It has been alleged that the scooter was knocked down at Anu chowk near degree college, Hamirpur by truck bearing registration No.HPH-227 which was being driven rashly and negligently by respondent No.4 Suresh Kumar. Anup Gupta sustained multiple injuries on his person. He was treated at Zonal Hospital, Hamirpur, PGI, Chandigarh but he succumbed to his injuries on 15.3.2000. The deceased had completed four years degree course in the discipline of Electronics and Communication Engineering. He was interviewed for placement in H.P. Futuristic Company, Solan. Respondent No.3 Bhag Singh was the owner of offending truck, respondent No.6 Shashi Bhushan was the owner of scooter in question at the time of accident. The respondents No. 1, 2, the parents of the deceased filed petition claiming compensation on account of loss suffered by them due to the death of their son Anup Gupta. 3. The petition was contested by respondents No.3 and 4 owner and driver of the truck by filing reply, they admitted the accident and the death of Anup Gupta in the accident. They denied rash and negligent driving on the part of the driver of the truck. They have pleaded that two scooters and one motorcycle came from opposite side in rash and negligent manner and driver of scooter …3… No.HP-40-2506 struck the scooter against the standing truck and the accident took place due to negligent act on the part of scooter driver. The insurer of truck contested the petition by filing separate reply. It has denied the liability to indemnify the owner and driver of the truck in view of terms and conditions of the insurance contract. It was pleaded that Suresh Kumar was not holding valid and effective driving licence at the time of accident, the vehicle was not having fitness certificate to ply on the road. The accident took place due to composite and contributory negligence on the part of deceased and other occupants of scooter No.HP-40-2506. Three persons were riding on a scooter in violation of the seating capacity. The claimants filed separate rejoinder to the replies of owner, driver of the truck as well as insurer of the truck and reiterated their stands. The learned Tribunal framed the following issues:- 1. Whether Anup Gupta died in the accident of truck No.HPH-227 and scooter No.HP-40-2506 due to the rash and negligent driving on the part of respondent No.2 as alleged? OPP 2. If issue No.1 is held in the affirmative, to what amount of compensation the petitioners entitled and from whom? OPP 3. Whether respondent No.2 was not having valid and effective driving licence at the time of accident. If so, to what effect? OPR-3 4. Whether the accident occurred due to composite and contributory negligence on the part of the deceased and other occupants of scooter No.HP- 40-2506, if so to what effect? OPR-3 …4… 4. I have heard Mr. K.D. Sood, learned counsel for the appellant, Ms. Shilpa Sood, learned counsel for respondents No.3,4, Mr. Hamender Chandel, learned counsel for respondent No.5 and gone through the records. The learned counsel for the appellant has confined his submissions on issue No.3 with respect to validity of licence of respondent No.3 Suresh Kumar at the time of accident. In support of his submissions Mr. Sood has relied Ex.RW-1/A verification report made on the reverse of mark-A letter dated 3.7.2002 written by S.B. Kakra Insurance consultant & investigator to Registering and Licensing Authority, Hamirpur. He has also referred to statement of RW-1 Desh Raj, Licence Clerk, SDM Office, Hamirpur. The verification report Ex.RW-1/A was allegedly made by Registering and Licensing Authority, Hamirpur showing that driving licence No.490-H dated 14.10.1997 was issued in the name of Suresh Kumar for L.M.V which was valid upto 13.10.2000 and it was endorsed on 4.4.2001 for L.M.V. (TPT). On the basis of Ex.RW-1/A, Mr. K.D. Sood has submitted that on the date of accident on 8.3.2000 Suresh Kumar was not holding valid and effective driving licence to drive heavy goods vehicle. 5. The onus of issue No.3 was on appellant-insurer which has not been discharged. The verification report Ex.RW-1/A has not been proved in accordance with law and therefore, it can not be looked into evidence. The verification report Ex.RW-1/A could have been proved either by the author of the report or by way of other modes of proof available in law. RW-1 has not produced extracts of relevant record which he had brought and placed on record. The …5… oral statement of RW-1 in absence of documentary evidence would not prove that Suresh Kumar was holding LMV licence only at the time of accident. RW-1 Desh Raj has nowhere stated that he had worked under the Registering and Licensing Authority, Hamirpur who had made the verification report Ex.RW-1/A or he is otherwise conversant with the hand writing and signature of the Registering and Licensing Authority, Hamirpur. Mere putting exhibit mark on the document will not prove the document nor it will dispense with the proof of the document. In Charan Singh vs. Joginder Singh & Anr. Latest HLJ 2002 (HP) 789, a Division Bench of this Court has held that because a document is exhibited that does not dispense with its proof. In the present case also verification report Ex.RW-1/A has not been proved in accordance with law and therefore, it is of no help to the insurer in support of its case that the driver of the truck was not holding valid and effective driving licence at the time of accident. Similar is the position with respect to report dated 7.7.2002 Ex.R-2 which was allegedly given by S.B. Kakra, Insurance Consultant & Investigator. RW-2 Bhag Singh was the owner of truck No.HPH-227. He has stated that he had engaged Suresh Kumar as driver who was driving the truck for the last 2/3 years and he was a good driver. He had seen his driving licence when he was engaged which was of heavy goods vehicle. The said driver had left the job after the accident. This witness was cross-examined on behalf of the insurer and a suggestion was given to him that the driver was not having H.G.V licence. He was not cross-examined that infact the witness had not seen the H.G.V licence of the driver before his …6… engagement and he was a good driver. The onus of proof that the driver of the truck at the time of accident was not holding valid and effective driving licence was on appellant-insurer which has not been discharged. Infact the insurer has miserably failed to prove issue No.3. The learned Tribunal has properly appreciated the material on record after taking into consideration the legal position and has rightly decided issue No.3 against the insurer. The insurer has failed to make out any case to reverse the findings on issue No.3. 6. No other point was urged. 7. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh) Judge November 21, 2008 (sks)