IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) F.A.O. No. 1167 of 2007 Suman Devi and others. ....... Appellants through Shri Pawan Longia, Advocate. Versus Pawan and others. ....... Respondent nos. 1 &2 through Shri V.B.Aggarwal,Advocate. Respondent no.3 through Shri N.K.Khosla,Advocate. (2) F.A.O. No. 1818 of 2007 Pawan and another. ....... Appellants through Shri V.B.Aggarwal, Advocate. Versus Suman Devi and others. ....... Respondent nos. 1 to 7 through Shri Pawan Longia,Advocate. Respondent no.8 through Shri N.K.Khosla,Advocate. Date of Decision: 10.12.2008 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... F.A.O.No.1167 of 2007 -2- .... Mahesh Grover,J. This judgment will dispose of the above mentioned two appeals which have been directed against award dated 13.1.2006 passed by the Motor Accident Claims Tribunal, Kurukshetra (for short, `the Tribunal') in M.A.C.T. Case No.182 of 2005. F.A.O. No.1167 of 2007 has been filed by the claimants for enhancement of the compensation awarded to them by the Tribunal, whereas F.A.O. No.1818 of 2007 has been preferred by the driver and owner of the offending vehicle, i.e., Tanker bearing registration No. HR- 05CA- 0243. A motor vehicular accident took place on 3.9.2005 in which deceased- Devinder Singh, who had boarded the offending vehicle from Jyotisar for Kuurkshetra, lost his life as a result of rash and negligent driving of its driver. In the claim petition filed by the legal representatives of the deceased, the Tribunal awarded a total compensation of Rs.7,87,600/-. While arriving at this figure, the Tribunal accepted the salary certificate of the deceased which was produced before it and determined his net salary as Rs.8102/- per month after making deduction of Rs. 1110/- as reflected therein. A cut of 1/3rd was made towards the personal expenses of the deceased out of his monthly income and the dependency of the claimants was assessed at Rs.5400/-, i.e., Rs.64800/- per annum. Multiplier of `12' was applied as the deceased was found to be 40 years old. Rs.10,000/- were awarded as expenses incurred on the last rites etc. F.A.O.No.1167 of 2007 -3- .... While determining the compensation in the above manner, the Tribunal concluded under issue no.2 that the deceased was an unauthorised occupant in the offending vehicle being a gratuitous passenger and he was not entitled to any compensation from the insurance company with which the said vehicle stood insured. However, the owner and the driver of the offending vehicle were held liable to satisfy the award in the given circumstances. While assailing the finding of the Tribunal against the driver and owner of the offending vehicle, learned counsel for the appellants in F.A.O.No.1818 of 2007 contended that the respondent-Insurance Company did not prove the policy on record in accordance with law and, therefore, the defences under Section 149 of the Motor Vehicles Act,1988 (for short, `the 1988 Act') were not available to it. He further contended that in view of this, the insurance company could not plead that it was not liable to satisfy the award. It was submitted that the deceased was actually not a gratuitous passenger, but was a police constable, who had merely taken the lift and, therefore, he could not be strictly termed to be a gratuitous passenger. In support of his contentions/ submissions, learned counsel for the driver and owner placed reliance on The Oriental Fire and General Insurance Co.Ltd. Versus Smt.Chandrawali and others, 1989 H.A.P. 201 (P&H); New India Assurance Co.Ltd. Versus Gulam Rasool and others, 1993 A.C.J. 1132 (Patna) and Narbada Devi Gupta Versus Birendra Kumar Jaiswal and Anr., 2003(4) R.C.R. (Civil) 683 (S.C.). On the other hand, learned counsel for the insurance company F.A.O.No.1167 of 2007 -4- .... contended that since the deceased was a gratuitous passenger, the insurance company could not be held liable to pay the compensation. Reliance was placed on New India Assurance Co. Ltd. Versus Asha Rani and others, 2003 A.C.J. 1; National Insurance Co. Ltd. Versus Bommithi Subbhayamma and others, 2005 A.C.J. 721; United India Insurance Co.Ltd. Versus Tilak Singh and others, 2006 A.C.J. 1441 and National Insurance Co. Ltd. Versus Laxmi Narain Dhut, 2007(2) S.L.J. (S.C.) 1357. I have thoughtfully considered the rival contentions. In my opinion, the appeal of the driver and owner deserves to be accepted. There is on record a duplicate photostat copy of the insurance policy, which has been marked as Exhibit R3. The statement made by Shri Satinder Malhi, counsel for the insurance company before the Tribunal vide which the insurance policy was produced, reads as under:- “Statement of Sh. Satinder Malhi, Advocate for respondent no.3...... without oath. .... I tender in evidence copy of Insurance Policy, Ex.R3 & close my evidence.” It is a settled principle of law that the photocopy/ duplicate copy of a document is not admissible in evidence. No attempt was made by the insurance company to prove the policy as per the provisions of the Indian Evidence Act, 1872 (for brevity, `the 1872 Act'). The insurance company did not even produce any witness either to satisfy the ingredients F.A.O.No.1167 of 2007 -5- .... of Sections 63, 64, 65 and 66 of the 1872 Act or to testify that a valid policy existed. For the purpose of reference, the aforesaid sections of the 1872 Act are reproduced below:- “63. Secondary evidence.- Secondary evidence means and includes- (1)certified copies given under the provisions hereinafter contained; (2) copies made from the original by the mechanical processes which in themselves insures the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it. 64. Proof of documents by primary evidence.- Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence maybe given of the existence, condition, or contents of a document in the following cases:- (a) When the original is shown or appears to be in the possession or power- F.A.O.No.1167 of 2007 -6- .... of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing, by the person against whom it is proved or by his representative in interest; ( c ) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. F.A.O.No.1167 of 2007 -7- .... In cases (a), © and(d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 66. Rules as to notice to produce.- Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:- (1)when the document to be proved is itself a notice; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; F.A.O.No.1167 of 2007 -8- .... (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court; (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.” A reading of the above extracted provisions shows certain conditions which have to be satisfied for leading secondary evidence of a document. As observed earlier, the insurance company did not make any attempt to justify the production of a duplicate copy of the insurance policy. It also failed to bring on record its inability to produce the original of the same. Therefore, it cannot be said that the insurance company had discharged its responsibility to prove that the offending vehicle was validly insured on the strength of a policy. Once the aforesaid crucial question has been left open, then in that eventuality, the insurance company cannot raise any of the defences available to it under Section 149 of the 1988 Act. It is only on the strength of the policy of insurance which is a contract between the insurer and the insured that the statutory defences are made available to the insurance company,but if the policy itself has not been proved in accordance with law, then such defences are not available to the insurance company. In Ajit Singh Versus Sham Lal and others, 1984 A.C.J. 255, a F.A.O.No.1167 of 2007 -9- .... Division Bench of this Court held that “where the insurance company for whatever reasons fails to bring on record the policy of insurance it cannot be heard to say that it had agreed to indemnify the insured only to the extent indicated in the statutory provisions.” In Amar Singh and another Versus Atma Singh and another, II (1985) A.C.C. 451 (Delhi), it was observed that if no insurance contract is proved, the liability of the insurance company in respect of the accident must be held for the full amount. In Chandro Devi and others Versus Jit Singh and others, 1989 A.C.J. 41, a learned Single Judge of Delhi High Court observed in paragraph 37 of the judgment as under:- “..........The insurance company has failed to show as to why the original policy register was not produced. Under these circumstances, I hold that the insurance company has not proved the insurance policies with respect to both the vehicles in accordance with law. As the insurance polices have not been proved, so I hold that the insurance company is liable to pay compensation to the appellants.” In New India Assurance Co.Ltd. Versus Gulam Rasool and others (supra), a learned Single Judge of Patna High Court observed in paragraphs 55 and 56 as under:- “55. In the aforementioned case, decision of the Punjab and Haryana High Court in Ajit Singh v. Sham Lal,1984 ACJ 255 (P&H), was also followed. To the same extent is the decision in F.A.O.No.1167 of 2007 -10- .... Amar Singh's case, 1985 ACC 451 and Chandro Devi's case, 1989 ACJ 41 (Delhi). 56. Following the aforementioned decisions, I hold that as the insurer could not bring the insurance policy on records it is estopped and precluded from contending that its liability is limited to the extent covered under Section 95(2)(b) of the Motor Vehicles Act.” In Narbada Devi Gupta Versus Birendra Kumar Jaiswal and Anr. (supra), their Lordships of the Supreme Court held that “mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents and its execution has to be proved by admissible evidence.” Their Lordships further observed as under:- “Situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court.” In the instant case, as noticed above, the learned counsel for the insurance company only tendered the policy in evidence and there was no admission by the concerned opposite party. In The Oriental Fire and General Insurance Co.Ltd. Versus Smt.Chandrawali and others (supra), a Division Bench of this Court had dealt with a similar controversy as is involved in the instant case and formulated the following questions of law in paragraph 3 of the judgment, F.A.O.No.1167 of 2007 -11- .... which is extracted below:- “3. The matter gives rise to the following questions of law:- (1)Whether the policy of insurance could be proved by production of its copy Ex.R-1 unless a case was made out for production of secondary evidence within the meaning of section 65 of the Indian Evidence Act,1872 (for short, `the Act')? (2) Whether marking of the copy of the policy of insurance as Ex.R.1 amounts to its admission in evidence and the requirement of its proof in accordance with law stands dispensed with? (3) If the answer to questions Nos. (1) and(2) is in the negative, whether the appellant Court can exclude from consideration Ex.R.1 when no objection to its admissibility was taken before the Tribunal?” While answering the above questions with reference to Section 64 of the 1872 Act, it was observed in paragraphs 10, 11 and 12 of the judgment, as under:- “10. The third and the last question, in the light of answers to the questions proceeding it, has two aspects. First, that Ex.R.1 was produced as secondary evidence of the original policy of insurance without making out a case under section 65 of the Act. Second, it was marked as Ex.R.1 without its contents having been admitted by the other party and without its having F.A.O.No.1167 of 2007 -12- .... been proved in accordance with law. The crucial question, therefore, is whether the appellate court can exclude Ex.R.1 from consideration when no objection to its admissibility and mode of proof was taken before the Tribunal. In U Po Kin's case (supra), a learned Single Judge of the Rangoon High Court held thus:- `No doubt under section 66 a notice to produce the document must previously have been given to the party in whose possession or power the document is before giving secondary evidence of its contents, but such notice is not essential to render secondary evidence admissible in certain cases, e.g., where the Court in its discretion thinks it fit to dispense with it; the objection should however be raised at the time of the reception of the evidence and no objection should be allowed to be taken in appellate court as to the admissibility of secondary evidence which was admitted in evidence in trial Court without any objection.' 11.The ratio of U Po Kin's case (supra) can be applied where certain conditions are attendant; namely, where the Court in discretion thinks it fit to dispense with a notice under section 66 on the party in possession or power of the original document and where the copy of the document is admitted in evidence in the trial Court without objection. F.A.O.No.1167 of 2007 -13- .... 12. As would be noticed from the brief narration of the facts of the present case, there was no conscious application of the mind by the Tribunal to the question whether the requirement of the issuance of a notice under section 66 on the owner who is supposed to be in possession or power of the original policy of insurance should be dispensed with. There is also no specific order of the Court admitting the copy of the policy of insurance in evidence. In fact, the whole thing started and ended with the statement dated 20.9.1983 of the counsel for the insurer by which he produced the true copy of the policy of insurance Ex.R.1 and closed his case. The production of the copy of the policy of insurance could not by itself amount to its production and admission in evidence. As held by a Division Bench in Baldev Sahai v. Ram Chander and others, AIR 1931 Lahore 546, there are two stages relating to documents. One is the stage when all the documents on which the party relies are filed in the Court. The next stage is when l the documents are proved and formally tendered in evidence. It is difficult to hold that both the stages of production and admission of the document took place simultaneously. In fact, the statement of the counsel for the insurer does by no means amount to the proof and formal tender of the copy of the policy of insurance Ex.R.1 in evidence.” F.A.O.No.1167 of 2007 -14- .... In view of the facts of this case and the law laid down in the aforementioned cases, the inevitable conclusion is that the insurance policy was never proved in accordance with law and, therefore, as a direct consequence thereof, the defences under Section 149 of the 1988 Act were not available to the insurance company. Since it has been held that the defences were not available to the insurance company, the judgments relied upon by its counsel are of no avail as it is part of the defences available to it under Section 149 of the 1988 Act. Accordingly, the owner and the driver of the offending vehicle deserve to be absolved to pay the compensation to the claimants. In so far as the appeal of the claimants is concerned, as mentioned above, the deceased was a police constable. He was survived by widow, two sons, two daughters and the parents. PW4-Ram Pal, Head Constable in the office of Superintendent of Police, Kurukshetra, proved the salary certificate of the deceased as Exhibit P4, according to which, he was drawing salary of Rs.9212/- per month. The Tribunal has taken the net salary of the deceased as Rs.8102/- which is according to the salary certificate. However, I do not agree with this approach of the Tribunal. The income of the deceased has to be taken as Rs.9212/- per month. The cut of 1/3rd applied by the Tribunal on account of personal expenses of the deceased is also wrong and rather, keeping in view the F.A.O.No.1167 of 2007 -15- .... number of dependents, the unit system should have been adopted. If the said system is applied, then the value of one unit comes to Rs.1316/-. For personal expenses, the principle is that value of two units is to be deducted out of the total income in case of an adult deceased and then dependency is worked out. In this way, the monthly dependency comes to Rs.6580/-, i.e. Rs.78960/- per annum. As per the Second Schedule of the 1988 Act, a multiplier of `15' is to be applied in the case of victims of the age group to which the deceased belonged. In this manner, the total compensation is assessed to Rs.11,84,400/- to which the claimants are held entitled to receive. The enhanced compensation shall be payable with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of realisation. The liability to pay the compensation and interest to the claimants shall be that of the insurance company of the offending vehicle and as held above, its driver and owner will stand absolved to do so and the existence of the policy has been admitted by the insurance company. The impugned award is modified to the above extent and the appeals are allowed in the aforementioned terms. December 10,2008 ( Mahesh Grover ) “SCM” Judge