IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO Nos.397 of 2008 and 576 of 2008. Date of decision: 13.5.2011 1. FAO No.397 of 2008. Oriental Insurance Company Ltd. … …Appellant Versus Rajinder Singh & Others … …Respondents 2. FAO No.576 of 2008. H.R.T.C and Another … …Appellants Versus Rajinder Singh & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. FAO No.397 of 2008. For the Appellant: Mr.G.C. Gupta, Senior Advocate with Mr.Ashish Jamalta, Advocate. For Respondents No.2 & 3: Mr.N.K. Thakur, Advocate. For Respondent No.4: Mr.Satyen Vaidya, Advocate. For Respondent No.5: Mr.V.D. Khidtta, Advocate. FAO No.576 of 2008. For the Appellants: Mr.N.K. Thakur, Advocate. For Respondent No.2: Mr.V.D. Khiddta, Advocate. For Respondent No.4: Mr.G.C. Gupta, Senior Advocate with Mr.Ashish Jamalta, Advocate. For Respondent No.5: Mr.Satyen Vaidya, Advocate. Dev Darshan Sud,J. Both these appeals arise out of the same judgment and are being disposed of by a common order. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. The appellant has sustained injuries on the allegations made as proved before the Tribunal which resulted in amputation of his right leg which resulted in severe handicap and he seeks to establish this disability by certificate Ex.PW-4/A certifying that he has suffered 70% disability. 3. On the evidence on record, learned trial Court adverting to the decision in Kaushnuma Begum and Others vs. New India Assurance Co.Ltd. and Others, 2001 ACJ 428, has apportioned the liability between drivers of the offending vehicle, namely, Himachal Road Transport Corporation bus, in which the deceased was traveling, as also other vehicle owned by respondent No.4 Rameshwar Singh and driven by Lokinder alias Tashi. 4. A number of submissions have been made by learned counsel appearing for the parties on the rival contentions. Adverting to the first primary objection, it is urged that the medical certificate Ex.PW-4/A has not been proved on the record in accordance with law. It is urged by learned counsel appearing for the Insurance Company that in terms of the law laid down by Supreme Court as also this Court, the certificate cannot be accepted as relatable to the accident, more especially, since the doctor, who actually examined the petitioner, has not been produced in evidence. PW-4 Dr.Dinesh Rana has only stated that he is familiar with the signatures of Dr.Ravinder Mokta, Dr.B.L. Arya and Dr.Sulkashna Puri. In order to substantiate his 3 submissions, learned counsel has placed reliance on the decision of the Supreme Court in Rajesh Kumar vs. Yudhvir Singh and Another, 2008 ACJ 2131, holding:- “9. The certificate in question in this case was obtained after two years. It is not known as to whether the civil surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60 per cent was calculated on the basis of the provisions of Workmen’s Compensation Act or otherwise is not known.… … … … … …” (p-2133) 5. This Court in CMPMO No.227 of 2009, titled: Oriental Insurance Company vs. Sh.Parveen and Others, decided on 9.3.2011, followed this decision, holding:- “6. I am constrained to observe that the learned Tribunal totally loss sight of various judgments rendered by this Court and by the Apex Court. In National Insurance Company vs. Nant Ram and Others, Latest HLJ 2005 (HP) 153, this Court held as follows:- “15. 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 the documents, by way of leading direct 4 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, genuineness 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 two fold; firstly that such a witness appearing in the court is sworn and under oath testified about a particular document, its genuineness 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. 5 Similarly under section 63 of the Evidence Act, secondary evidence has been defined and reading together these two Sections, it can be safely said that documents, either by way of 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. 16. There is only one exception to the aforesaid rule of evidence law with respect to proof of documents and that exception relates only to the proof of public documents by production of certified copies of such documents, Section 74 of Indian Evidence Act defines public documents which include documents forming the acts or records of the acts of the sovereign Authority and of the official bodies and Tribunals and also include documents from Public Officers, Legislative, Judicial as well as Executive. Under Section 76 of the Evidence Act every Public Officer having the custody of a pubic document, which any person has a right to inspect, has duty to give to such a person on demand a certified copy of such document. Under Section 77 of the Evidence Act, the certified copies of Public documents issued in the manner prescribed by Section 76 may be produced in proof of the contents of the public documents. The practice of allowing such documents to be brought on record by their mere production by a counsel and then even marking them as Exhibits is very very unhealthy, very dangerous and the same 6 is totally opposed to all principles of Evidence law. 17. Even though undoubtedly, proceedings under Section 166 of the Motor Vehicles Act, 1988 may be summary in nature and the strict procedural laws may not be attracted in such proceedings, yet in so far as the requirement of the proof of disputed documents is concerned, the Tribunals should be well advised to keep in mind that the established norms emanating from the principles of Evidence law must be followed even such proceedings with a law must be followed even in such proceedings with a view to ensuring that the documents of suspicious or doubtful character or documents which are liable to be disputed character or documents which are liable to be disputed by the opposite party must not be allowed to be brought on record unless they are proved in accordance with the well established and well accepted norms and principles of Evidence law.” 6. There is no doubt about the established principle of law. I also note from the evidence that in cross-examination PW-4 has stated in no uncertain terms that he has not examined the patient. In these circumstances, obviously proof of disability is required to be established on the record, more especially, when the disability certificate is of the year 2005 which has been signed on 6.9.2005 whereas the accident has taken place on 27.11.2000. 7 7. This petition is, therefore, allowed to the limited extent that the certificate of disability has not been proved in accordance with law. It will be open to the parties on remand to prove this fact in accordance with law. The claimant cannot be thrown out solely on this ground as urged. The principles of law noticed by me, have been pronounced at a later point of time and in these circumstances it would be inequitable to non suit the claimant to do so. 8. The decision of Supreme Court in Kaushnuma Begum’s case invokes the principle of strict liability as explained/distinguished/reiterated and re-affirmed in subsequent cases. Applying this principle, what the learned Tribunal holds is that though the evidence of the claimant does not in so many words attribute negligence to the driver of the Transport Corporation bus driver, but when considered in conjunction with the First Information Report Ex.PW-2/A alleging negligence of drivers of both the buses, he had apportioned liability equally between two offending vehicles. 9. In these circumstances, I do not find anything wrong in the Tribunal coming to the conclusion of contributory negligence. If the statement of the claimant is accepted, in its totality then the Transport Corporation is exonerated of all wrong doing and if his statement is rejected, he is left remediless. This situation cannot be allowed to stand. I hold that the Tribunal has rightly applied the 8 principle of contributory negligence holding that the accident was the result of negligence of both the vehicles. 10. I am alive to the principle that a remand cannot be made after such a long period of time and that it is but in exceptional circumstances that such a course of action is to be followed. But at the same time, I am also alive to the situation that the law with respect to the proof of disability was only settled by the Supreme Court and this Court in the judgments noticed above. In these circumstances, I hold that it will be in the interest of justice that the case is remanded to the learned trial Court for consideration on the question as to whether the disability pursuant to Ex.PW-4/A is a result of the accident and whether such disability has been proved in accordance with law. For this purpose all the parties to this petition shall be at liberty to lead evidence. The award is accordingly set aside to this limited extent. The parties are directed to appear before the learned trial Court on 30th June, 2011. May 13, 2011 (Dev Darshan Sud) (aks) Judge.