Case: New India Assurance Co. ltd Vs. Anita & Others

1. The petitioner is aggrieved by the judgment of the learned Single Judge of Delhi High Court, who declined to interfere with the award passed by Motor Accident Claims Tribunal, Delhi (for short,the Tribunal) in Suit No.100-A of 2000. 2. In an accident, which occurred on 9.2.1981, Shri Jai Bhagwan, who was sole bread winner of the family was killed when the scooter driven by him was hit by bus No.DEP-2238, which was insured with the appellant vide policy No.4517116495. The legal representatives of Shri Jai Bhagwan (respondent Nos.1 and 2 herein) filed petition under Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act) and prayed for award of Rs.10 lakhs by way of compensation. They alleged that the accident was caused due to rash and negligent driving of the bus by its driver, Shri Parma Nand. The appellant-Insurance Company, respondent No.4-M/s National Electric Supply Trading Corporation and respondent No.5-Delhi Transport Corporation contested the claim petition by filing separate written statements. In its reply, the appellant raised several objections including the one that respondent Nos.1 and 2 do not have any cause of action against it and that the amount claimed was excessive. The appellant also denied that respondent Nos.1 and 2 were legal heirs of deceased, Jai Bhagwan and prayed that the claimants be put to strict proof of the allegations made by them. 3. After considering the pleadings of the parties and evidence produced by them, the Tribunal held that the accident was caused due to rash and negligent driving of the bus by its driver and that Shri Jai Bhagwan died as a result of accident. The Tribunal then considered the age and income of the deceased and passed award dated 13.12.2005, the operative part of which reads as under: - "In view of the above findings, I am of the opinion that the petitioners are entitled for the relief. Accordingly I direct respondent no.3 insurance company to pay Rs.2,19,000/- along with interest of 9% p.a. from the date of this petition till its realization by means of crossed cheques in the name of the petitioners within one month from today." 4. The appellant challenged the award by filing an appeal under Section 173 of the Act mainly on the ground that the evidence produced before the Tribunal to prove that the offending vehicle was insured was legally inadmissible. The learned Single Judge of the High Court noted that the claim petition had been misplaced in the office of the Tribunal sometime in 1994; that the same was reconstructed in August 2000 and, thereafter, the parties were given opportunity to lead additional evidence and held that the Tribunal did not commit any error by considering the secondary evidence produced by the owner of the vehicle to prove that the same was duly insured. The appellants plea that the day book pertaining to the year 1981-82, which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle and copy of the balance sheet could not have been considered by the Tribunal was rejected by the learned Single Judge by making the following observations: "The insurance policy has not come on record either from the owner or by the Insurance Company at the time of retrial. The accident is dated 9th February, 1981 in respect of which the claim petition was filed in August, 1981. The owner claimed to have filed the insurance policy before the learned Tribunal. However, the same cannot be confirmed because the record of the learned Tribunal was lost in 1994 and was reconstructed in the year 2000. The owner has successfully led secondary evidence to prove the payment of premium for insurance of the bus in question by means of Ex.R2W1/1 and Ex.R2W1/2. The appellant has not been able to rebut the secondary evidence led by the owner of the offending vehicle. This is a case of civil nature where the test of preponderance of probability has to be applied and the presumption has to be drawn under Section 114 of the Indian Evidence Act. The appellant has not led any evidence to rebut the Ex.R2W1 and Ex.R2W1/2. The appellant has also admitted that the policy number given by the claimant as well as by the owner of the offending vehicle pertains to their office. Even if the record pertaining to the said policy was lost, some evidence could have been led by the appellant to rebut the evidence led by the owner of the offending vehicle." Shri Atul Nanda, learned counsel for the appellant argued that the factum of insurance of the offending vehicle by the appellant-company cannot be treated as proved because the original insurance policy was not produced by the owner. He submitted that the Tribunal and the High Court committed serious error by considering the secondary evidence produced by the owner in the form of the day book and the balance sheet. 5. In our opinion, there is no merit in the submissions of the learned counsel. Admittedly, the claim petition was filed on 7.8.1981. The same remained pending till 1994, when the file was lost in the office of the Tribunal. For the next 8 years, the file could not be traced out and only in August, 2000 the Tribunal issued direction for reconstruction thereof. Thereafter, the parties were allowed to lead secondary evidence. The owner claimed that it had filed the original insurance policy but the same was lost in 1994 along with the file of the case and, therefore, it led secondary evidence to prove the factum of insurance by producing the original day book pertaining to 1981-82 which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle for the period from 12.11.1980 to 11.11.1981. The owner also produced the balance sheet for the year 1980-81 which reflected payment of premium. These records were maintained by the owner of the vehicle in the ordinary course of his business. Therefore, the same could be treated as legally admissible evidence (Section 34 of the Indian Evidence Act). On its part, the appellant did not produce any evidence to rebut the entries made in the day book and the balance sheet produced by the owner. The witness appearing on its behalf admitted that policy number given by the claimant and the owner of the offending vehicle pertains to the vehicle which was involved in the accident but the record of the policy was not produced before the Tribunal. This being the position, the Tribunal did not commit any error by taking into consideration the secondary evidence produced by the owner to prove that the offending vehicle was duly insured and the High Court rightly refused to interfere with the award passed by the Tribunal. 6. We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of natural justice (Sections 168 and 169(1) of the Act). By virtue of Section 169(2), the Tribunal is clothed with the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the Tribunal cannot be faulted for having allowed the parties to lead secondary evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of reconstructed file.

Decision reasoning: 0[ds]5. In our opinion, there is no merit in the submissions of the learned counsel. Admittedly, the claim petition was filed on 7.8.1981. The same remained pending till 1994, when the file was lost in the office of the Tribunal. For the next 8 years, the file could not be traced out and only in August, 2000 the Tribunal issued direction for reconstruction thereof. Thereafter, the parties were allowed to lead secondary evidence. The owner claimed that it had filed the original insurance policy but the same was lost in 1994 along with the file of the case and, therefore, it led secondary evidence to prove the factum of insurance by producing the original day book pertaining to 1981-82 which contained an entry of Rs.2043/- towards premium for insurance of the offending vehicle for the period from 12.11.1980 to 11.11.1981. The owner also produced the balance sheet for the year 1980-81 which reflected payment of premium. These records were maintained by the owner of the vehicle in the ordinary course of his business. Therefore, the same could be treated as legally admissible evidence (Section 34 of the Indian Evidence Act). On its part, the appellant did not produce any evidence to rebut the entries made in the day book and the balance sheet produced by the owner. The witness appearing on its behalf admitted that policy number given by the claimant and the owner of the offending vehicle pertains to the vehicle which was involved in the accident but the record of the policy was not produced before the Tribunal. This being the position, the Tribunal did not commit any error by taking into consideration the secondary evidence produced by the owner to prove that the offending vehicle was duly insured and the High Court rightly refused to interfere with the award passed by the Tribunal6. We may also observe that a Tribunal constituted under the Act is not a regular Court and it is required to decide applications filed for compensation by adopting a summary procedure consistent with the rules of natural justice (Sections 168 and 169(1) of the Act). By virtue of Section 169(2), the Tribunal is clothed with the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects but there is nothing in the Act from which it can be inferred that the Tribunal is bound by the technical rules of evidence. Therefore, the Tribunal cannot be faulted for having allowed the parties to lead secondary evidence. Rather, that was the only course available to the Tribunal for doing justice to the parties because the original file was lost in 1994 and the case had to be decided on the basis of reconstructed file