IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE SEVENTH (7TH) DAY OF DECEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA Nos.724 & 725 of 2010 Between: United Insurance Company Ltd., Secunderabad … Appellant And: Smt. P. Nagamma & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA Nos.724 and 725 of 2010 COMMON JUDGMENT: MA CMA No.724 of 2010 is directed against the order in OP No.204 of 2007 and MA CMA No.725 of 2010 is directed against the order in OP No.205 of 2007, both dated 06.01.2010 on the ﬁle of the MACT cum XX Additional Chief Judge, City Civil Court, Secunderabad, wherein the said applications ﬁled by the respondents 1 to 3 herein under section 166 of the Motor Vehicles Act, for compensation was allowed in part, awarding Rs.5,02,600/- and Rs.4,00,000/- respectively, with interest at 7% per annum from the date of petition. 2. Both the appeals are ﬁled by the insurer. As both the appeals arise out of the same accident, between the same parties, they are heard together and are being disposed of by this common judgment. Heard both sides. Perused the record. 3. The deceased in OP No.204 of 2007 is the father and the deceased in OP No.205 of 2007 is the mother of the claimants 2 and 3-minor daughters. The ﬁrst claimant in both the matters is the paternal grand mother of the claimants 2 and 3. According to the claimants, on 08.03.2007 at about 8 p.m. when the two deceased were proceeding in the auto bearing No.AP 15 P 4438 from Danthanapaly village towards Toopran, the tractor-trailer bearing No.AP 24 L 6702 and AP 23 G 7843 respectively, driven in a rash and negligent manner by its driver, dashed against the auto, resulting in the death of both the deceased on the spot. A case in Cr.No.25 of 2007 was registered against the driver of the tractor-trailer. It is further pleaded that the deceased in OP No.204 of 2007 was agriculturist and was also running a dairy farm and earning Rs.10,000/- per month and the deceased in OP No.205 of 2007 was doing tailoring work and was earning Rs.4,000/- per month. 4. The 4th respondent herein-owner of the tractor- trailer and the appellant-insurer ﬁled separate counters in both petitions, opposing the claim and denying their liability to pay the compensation. The insurer further contended that the driver of the tractor-trailer was not having any licence to drive the tractor as on the date of the accident and therefore, there was clear breach of terms and conditions of the policy by the owner of the vehicle. 5. During enquiry in OP No.204 of 2007, PWs.1 and 2 were examined and Exs.A.1 to A.6 were marked on behalf of the claimants and RW.1 was examined and Exs.B.1 to B.3 were marked on behalf of the insurer. In OP No.205, PWs.1 and 2 were examined and Exs.A.1 to A.4 were marked on behalf of the claimants and RW.1 was examined and Exs.B.1 to B.3 were marked on behalf of the appellant-insurer. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the tractor by its driver. The Tribunal further held that the insurer failed to establish that there was any breach of terms and conditions of the policy. The Tribunal awarded a sum of Rs.5,02,600/- in OP No.204 of 2007 and Rs.4,00,000/- in OP No.205 of 2007, with interest at 7% per annum. Aggrieved by the same, the insurer filed the present two appeals. 7. The main contention of the learned counsel for the appellant-insurer in both the appeals is that the driver of the tractor is none else than the son of the owner of the vehicle and he was not having any licence at all to drive the tractor and thus there was clear breach of terms and conditions of the policy and therefore, no liability can be fastened on the appellant-insurer. 8. The 4th respondent-owner of the tractor-trailer filed counter, admitting that his son was the driver at the time of the accident. He however contended that the accident occurred entirely due to the rash and negligent driving of the auto by its driver and therefore, the owner of the auto and insurer of the said vehicle ought to have been impleaded as parties. The insurer seeks to rely upon the Ex.B.2 extract of the driving licence and Ex.B.3 copy of the Motor Vehicle Inspector’s report in support of their contention that the driver was not having any driving licence. Ex.B.2 shows that the driving licence was issued in favour of A.Shivakumar, who is said to be the driver of the tractor on 15.06.2007. The accident occurred on 08.03.2007. Based on Ex.B.2, insurer would contend that the driving licence was obtained only about three months subsequent to the accident by the driver of the tractor. Ex.B.3 Motor Vehicle Inspector’s report mentions against Col.No.17 regarding the particulars of the driving licence as “without driving licence”. Based on Ex.B.3 the insurer would contend that as on the date of the accident, the driver of the tractor was not having any licence. Learned counsel for the claimants would contend that the charge sheet Ex.A.2 does not show that the driver of the tractor was prosecuted for any oﬀence under Section 181 of the M.V. Act for driving the vehicle without licence. He would further contend that the contents of Exs.B.2 and B.3 have not been duly proved and therefore, no reliance can be placed thereon. Exs.B.2 and B.3 were ﬁled during the evidence of RW.1, who was the Assistant Manager of the insurer. Admittedly, he had no personal knowledge of issuance of Exs.B.2 and B.3 or contents thereof. In the cross-examination, he has admitted that he is not competent person to depose about the driving licence and based on the record only he was deposing. The testimony of RW.1 does not therefore prove the issuance of Exs.B.2 and B.3 nor its contents. Though the said documents were marked in the evidence assigning the exhibit numbers, without examining concerned person connected with the issuance of the said documents, it cannot be said that they are duly proved in accordance with law. When the claimants have disputed the contents of Exs.B.2 and B.3 and contended that they are not duly proved, the insurer ought to have examined the concerned and competent person to prove Exs.B.2 and B.3, especially, when RW.1 admitted that he was not the competent person to depose about them. In the absence of Exs.B.2 and B.3, the contention of the insurer would remain baseless. Exs.B.2 and B.3 are therefore crucial documents to establish the contention of the insurer that the driver of the tractor-trailer was not having any licence. The Tribunal has in the impugned orders noted that the insurer did not discharge the burden as required under law by not examining the concerned person, who issued Exs.B.2 and B.3. The Tribunal therefore consequently held that the contention of the insurer is not tenable. In the circumstances, as the whole dispute evolves about the question as to whether or not the driver of the tractor was having driving licence as on the date of the accident and the appellant-insurer seeks to rely upon Exs.B.2 and B.3 as crucial documents in support of their contention and as the claimants are disputing the contents of Exs.B.2 and B.2, it is considered just and proper to give an opportunity to the appellant-insurer to examine the concerned competent persons to prove the contents of Exs.B.2 and B.3. 9. In the circumstances, the matter is remanded to the Tribunal for fresh consideration after giving opportunity to the appellant-insurer to examine the concerned witnesses to prove the contents of Exs.B.2 and B.3 and also to give an opportunity to the claimants to adduce further evidence if any they choose to and dispose of the matter afresh in accordance with law. Having regard to the fact that the claim applications were ﬁled in the year 2007, the Tribunal is directed to dispose of the same within a period of four months from the date of receipt of the copy of this order. 10. In the circumstances, the impugned awards in both the claim applications are accordingly set aside and the matters are remanded to the Tribunal for disposal as stated above. 11. In the result, both the appeals are disposed of accordingly. No order as to costs. G.V.SEETHAPATHY, J Date: 07.12.2011 bss