IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Appeal From Order No. 230 of 2006 Date of decision: 7th January, 2008 A.F.R. (Approved for Reporting) _____________________________ Not approved for reporting Initials of Judge Date: 07.01.2008 Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Appeal from Order No. 230 of 2006 The Oriental Insurance Company Limited Having its Registered Office at Oriental House at A-25/27, Asif Ali Road, New Delhi Having a Branch at Jawalapur, Haridwar (D.O. Haridwar) Through Divisional Manager, Divisional Office, Bhotia Parao, Nainital Road, Haldwani ......Appellant Versus 1. Shahjad Ahmad S/o Late Shri Mohd. Hanif R/o 125 Nehru Nagar, Roorkee Thana Gangnehar Roorkee, Pargana & Tehsil Roorkee, District Haridwar 2. Shri Prithvi Singh Viksit S/o Shri Pooran Singh R/o 31 Avas Vikas, Roorkee, District Haridwar ..... Respondents Mr. V.K. Kohli, learned Senior Advocate with Mr. Tribhuwan Pandey, Advocate for the appellant. Mr. Pramod Tiwari, Advocate on behalf of Mr. Rajendra Singh, Advocate for the respondent No. 1 Mr. Subhash Upadhyay, Advocate on behalf of Mr. J.P. Joshi, Advocate for respondent No. 2. JUDGMENT Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. This appeal, preferred u/s 173 of the Motor Vehicles Act, 1988, (hereinafter referred as Act of 1988) is directed against the award dated 19.01.2006 passed by the Motor Accidents Claims Tribunal/Additional District Judge/1st F.T.C., Roorkee in M.A.C. Case No. 56 of 2004 whereby the claim of the claimant was allowed for an amount of compensation to the tune of Rs.6,65,800/- and the appellant-Oriental Insurance Company Limited was directed to pay the same. 2. The claimant had filed a claim petition for compensation of Rs. 15,70,000/- before the Tribunal alleging therein that on 18.12.2003 he was going to his shop at Ajad Nagar Chowk by this Scooter bearing No.UP10C-2055. When he reached near his shop at about 5:30 p.m, an Ambassador Car bearing No. UP10C-8711, being driven by its driver rashly and negligently, dashed his scooter resulting multiple injures on the person of the claimant-Shahjad Ahmad. The claimant- Shahjad Ahmad was firstly given medical treatment in Parash Nursing Home, Roorkee and thereafter he remained admitted in the Hospital of Mukesh Jain, Muzaffarnagar from 21.12.2003 to 26.12.2003. It was also alleged in the claim petition that the claimant had also undergone medical treatment in All India Institute of Medical Sciences, New Delhi and had incurred a sum of Rs. 1,25,000/- towards his medical treatment. It was further alleged that the claimant-Shahjad Ahmad was 30 years of age at the time of accident and was earning a sum of Rs. 80,000/- per annum from medical store and STD/PCO. 3. The Insurance Company contested the claim petition. The Insurance Company in its written statement denied the averment made in the claim petition for want of knowledge. However, it was pleaded that the ambassador Car bearing No. UP10C-8711 was insured with it at the time of accident; the accident occurred due to rash and negligent driving of the scooter; the driver of the Ambassador Car was not holding valid driving licence at the time of accident; and the car was being plied against the terms of the insurance policy. 4. The respondent No.2 Shri Prithvi Singh Viksit, owner of the Ambassador Car pleaded in his written statement that the driver of the Ambassador Car was driving carefully; he was holding valid licence at the time of accident; the accident occurred due to rash and negligent driving of the claimant; the claimant had claimed exorbitant and excessive compensation; and the Ambassador Car was insured with the Insurance Company as such, the Insurance Company was liable to pay the compensation, if any. 5. On the basis of the pleadings of the parties, the learned Tribunal framed necessary issues and ultimately, the learned Tribunal held that the claimant sustained the injuries in the accident on 18.12.2003 due to rash and negligent of the car was liable to pay the compensation to the claimant. 6. The Tribunal assessed the income of the claimant at Rs. 36,000/- per annum. By multiplying the annual dependency of Rs. 36,000/- with the multiplier of ‘15’, the compensation was worked out to Rs. 5,54,000/-. The Tribunal had further awarded a sum of Rs. 1,11,810/- towards Medical Expenses. Thus, a total sum of Rs. 6,65,810/- was awarded as compensation to the claimant for his injuries in the motor accident. 7. Feeling aggrieved by the award, the Insurance Company /appellant has preferred the present appeal before this Court. 8. Heard Learned counsel for the parties and perused the record. 9. Learned counsel for the appellant contended that the learned Tribunal has erred in awarding the compensation taking into account the disability certificate produced by the claimant; the said certificate was not proved in the evidence as contemplated under law; the learned Tribunal has selected the higher multiplier while calculating the compensation; the learned Tribunal has not considered the fact that the claimant before the accident was doing the business of wholesale and retail Chemist which he is still running after the accident; the claimant has not lost his earning capacity; the learned Tribunal also erred in assessing the monthly income of the claimant; the learned Tribunal erred in relying upon the medical certificates produced in support of claim without the document being proved by the claimant; the learned Tribunal awarded the compensation on the higher side; and the strictures passes against the Divisional Manager of the Insurance Company were unwarranted. 10. The learned counsel for the respondents refuted the contentions and supported the award passed by the learned Tribunal. 11. The claimant-Shahjad Ahmad has examined himself as PW1 and supported the claim petition. It is true that no doctor has been examined before the Tribunal to prove the contents of disability certificate. It is well settled position of law that mere filing of the document is not sufficient to prove the contents of the document. The claimant should have called the doctor before the Tribunal so that his statement could have been recorded and the veracity of the contents of the document could be tested. This Court had already discussed this aspect in detail in Kashmir Singh Vs. Santosh Singh Patiner and another reported in 2006 (2) U.D., 693 by relying upon the judgment of the Hon’ble Apex Court rendered in A.P. SRTC Vs. P. Thirupal Reddy 2005 (12) SCC 189. The Claim Petition had been decided by the Tribunal on 19.01.2006 prior to the delivery of the judgment in Kashmir Singh (Supra). If this Court proceeds to examine the doctor and direct the claimant to examine the doctor who had issued the disability certificate and if any order is passed against the parties to the claim petition after appreciation of such evidence, the parties would be deprived of their right of first appeal against the said finding. The Division Bench of this Court in the case of Kashmir Singh (Supra), has noticed that the parties before the court were not adducing the best evidence so that the courts can come to the just conclusion in awarding the compensation. It was noticed that the Tribunals were accepting the evidence of the disability certificate and the documents without being proved by the doctor. In order to clarify the entire situation, the Division Bench of this Court in the case of Kashmir Singh (supra) has held as follows: - “24. Before parting with the case, we would like to lay down certain guidelines for the Tribunal for hearing of the claim petition. We have noticed during the hearing of some cases that the bills filed by the claimant were not properly proved. Even in some cases the claimants had not produced the direct evidence to prove their claims. When we tried to scrutinize the bills, it was noticed in one case that the claimant had undergone heart surgery and he claimed the amount of such expenses in the claim petition. He did not adduce the evidence as to how the bills are connected with the claim. If we take the view that the connecting and admissible evidence under the principle of Evidence Act is not required, it would encourage the submission of fake bills to take the claim from the opposite parties. It would be just and proper, keeping in view the circumstances prevailing in the society, the parties should adhere the principle of the evidence for proving all the documents as well as for adducing of the evidence. It is made clear that the Tribunal shall adhere the principle of natural justice and the principle of evidence enshrined under the Evidence Act to prove the private and public documents while adducing the evidence. It is also made clear that the function of the Tribunal is quasi judicial and the Tribunal have to adjudicate upon the claims on the evidence of the parties. It is also essential for the Tribunal to take the acceptable evidence. Then the question arises what is the acceptable evidence. We have already answered this question in preceding para 11 of the judgment. For more elaboration, we can say for instance the claimant ahs to prove that he sustained the injury or not in the accident. He did not adduce the oral evidence and he only filed X-ray plate and other reports. The genuineness of the said document was not proved by the claimant. The said document without proof, are worst piece of evidence. The general principle of evidence is that the fact must be proved by direct evidence. Thus, the hearsay evidence cannot be taken into account. If the theory of hearsay rule is accepted in evidence many possible deficiencies, suppressions, sources of error, untrustworthiness and fraudulent acts of the parties would take place. If the rules of the evidence are not adhered, the Tribunals would not come to just and proper conclusion. It may be pointed out that the claimant would be burdened on calling the doctors or other persons to prove the document and it would further burden the liability of the claimants. It is made clear that if the doctors and other person are called in the evidence, their verified bills for the expenses occurred for calling him should be filed before the Tribunal. The Tribunal while awarding the cost against the opposite parties will consider to reimburse such cost to the claimant to the reasonable extent. 25. It should be the practice in the Tribunals that while framing the issues, the Presiding Officer of the Tribunal should ask the parties to admit or to deny the document produced by the other party before the court. The Presiding Office should also indicate in the ordersheet that the parties had filed so many documents in support of his claim and he should also satisfy how many documents had been admitted by the other side and how many documents have not been admitted by the opponent. 26. A document the genuineness of which is admitted by the party against whom it is sought to be used does not require to be proved, and if admitted to be relevant and otherwise admissible should be endorsed in the manner prescribed by Order XIII, rule 4 of C.P.C. and marked with an exhibit mark. 27. If the admissibility of a document is denied on the ground of irrelevance or for any other cause (e.g. want of registration or of proper stamp, etc.) the court should proceed at once to determine the question. If the document is held to be admissible it should be retained, subject to proof being given of it in cases where its genuineness has been denied. When such proof has been given the document should be admitted. 28. When a certified copy of any private document is produced in court, inquiry shall be made form the opposite party whether he admits that it is a true and correct copy of the document which he also admits, or whether it is a true and correct copy of the document which he denies, or whether it is a true and correct copy of the document the genuineness of which he admits without admitting the truth of its contents, or whether he denies the correctness of the copy as well as of the document itself. 29. Admission of the genuineness of a document is not to be confused with the admission of the truth of its contents or with the admission that such document is relevant or sufficient to prove any alleged fact. 30. Admission of a document by a party shall be indicated by the endorsement “Admitted by the “claimants” or “Admitted by the respondent”. Admission of a document in evidence by the court shall be indicated by the endorsement “Admitted in evidence”. 31. Documents produced by a claimant and duly admitted in evidence shall be marked with a number, and documents produced by a respondent shall be marked with a number and the letter A, or, whether there are more than one set of respondents, by the letter A for the fist set of respondents, by the letter B for the second, and so on. Where a document is produced by order of the court and is not produced by any party, the serial number shall be preferred by the words “Court Exhibit” or an abbreviation of the same. 32. The Presiding Officer of the Tribunal should record that which documents has not been admitted. If any public document has been denied by any party, the Presiding Officer of the Tribunal will record that it being the public document though not admitted does not require proof and it should be exhibited. While appreciating the evidence, the Tribunal should adhere the general principles of the natural justice and evidence enshrined under the Evidence Act. However in the proceeding of the Motor Accidents under the Motor Vehicles Act the technicalities of the Evidence Act will not stand in the way of Tribunal in giving appropriate relief to litigant. But at the same, it does not mean that the Tribunal will not follow the principle of natural justice and evidence. For instance, the principle of exclusion of hearsay evidence as provided under the Evidence Act is, however, not a technical rule of evidence, but this principle of exclusion of hearsay evidence is based on the general principle of evidence that the evidence must be direct whose version will be forced to pay the amount of compensation must face the cross examination of the party against whom such evidence will be used. If the private documents filed by the parties are taken into evidence without is proper proof it will be worst than the hearsay evidence. The other party if denies the existence of any relevant fact, he should specifically deny the fact in his evidence. If the documents are private documents within the meaning of Evidence Act, these documents should be proved by cogent and credible evidence in accordance with law.” 12. The Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Meena Variyal & others reported in 2007 A.C.J. 1284 has held that:- “9 Before we proceed to consider the main aspect arising for decision in this Appeal, we would like to make certain general observations. It may be true that the Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficent piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure in dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all basis principles of law in determining the claim for compensation. Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made. Therefore, under general principles, one would expect the driver to be impleaded before an adjudication is claimed under Section 166 of the Act as to whether a claimant before the Tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver. Why should not a Tribunal insist on the driver of the vehicle being impleaded when a claim is being filed? As we have noticed, the relevant provisions of the Act are not intended to jettison all principles of law relating to a claim for compensation which is still based on a tortuous liability. The Tribunal ought to have, in the case on hand, directed the claimant to implead Mahmood Hasan who was allegedly driving the vehicle at the time of the accident. Here, there was also controversy whether it was Mahmood Hasan who was driving the vehicle or it was the deceased himself. Surely, such a question could have been decided only in the presence of Mahmood Hasan who would have been principally liable for any compensation that might be decreed in case he was driving the vehicle. Secondly, the deceased was employed in a limited company. It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer Company? Is there anything in the Motor Vehicles Act which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think no. here again, the position that the Motor Vehicles Act vis-‘ -vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer company to produce the relevant documents to show the income that was being derived by the deceased from his employment. Of course, in this case, the above two aspects become relevant only if we find the insurance company liable. If we find that only the owner of the vehicle, the employer of the deceased was liable, there will be no occasion to further consider these aspects since the owner has acquiesced in the award passed by the Tribunal against it.” 13. The learned Tribunal has awarded the compensation to the claimant on the ground of disability. The Insurance Company has also challenged that the claimant has not lost his earning capacity due to the accident, as such, the compensation computed on the basis of the disability certificate is not sufficient to award the compensation. The true fact would come before the Court only when the evidence of the doctor would be recorded and he would be cross-examined. 14. It is evident from the perusal of the record that the claimant had produced the medical bills and other voucher for the purchase of medicine and his treatment but these bills have not been proved by credible and cogent evidence. 15. Considering the facts and circumstances of this case, it would be just and proper to set aside the award dated 19.01.2006 passed by the Motor Accidents Claims Tribunal/Additional District Judge/ 1st F.T.C., Roorkee in M.A.C. Case No. 56 of 2004; and remand the matter to the learned Tribunal for the hearing of the case. The Tribunal will provide the opportunity to the claimant to adduce the evidence in support of his claim based on the disability of the claimant. It would also be just and appropriate to further direct the Tribunal to provide the opportunity to both the parties to adduce their evidence before the Tribunal in support of their pleadings. 16. As we have come to the conclusion to set aside the award dated 19.01.2006 passed by the Motor Accidents Claims Tribunal/Additional District Judge/ 1st F.T.C., Roorkee in M.A.C. Case No. 56 of 2004, the strictures passed against the Divisional Manager stand expunged automatically from the record. 17. In view of the foregoing discussion, the appeal is allowed and the award dated 19.01.2006 passed by the Motor Accidents Claims Tribunal/Additional District Judge/ 1st F.T.C., Roorkee in M.A.C. Case No. 56 of 2004 is set aside. The matter is remanded back to the learned Tribunal with the direction to dispose of the claim petition in the light of the observation made above expeditiously, preferably within a period of three months from the date of receipt of the record. The amount, if any, deposited by the appellant before the M.A.C.T. concerned or paid to the claimant shall be adjusted at the time of final disposal of the claim petition. The Registry is directed to release the amount of Rs. 25,000/-, deposited as mandatory deposit, in favour of the appellant Insurance Company immediately. 18. No order as to costs. (J.C.S. Rawat, J.) (Rajeev Gupta, C.J.) Dated 7th January, 2008 Shiv