New India Assurance Company ... vs Manju Aggarwal & Ors.
2012 Latest Caselaw 3781 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on: 16th January, 2012
                                        Pronounced on: 2nd July, 2012
+       FAO 433/1998

        NEW INDIA ASSURANCE COMPANY LIMITED. Appellant
                     Through: Mr. Pankaj Seth, Advocate

                    versus

        MANJU AGGARWAL & ORS.          ..... Respondents
                   Through: Mr. Ajay Kumar Tandon,
                            Advocate with
                            Ms. Suman N. Rawat,
                            Advocate.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                             JUDGMENT

G. P. MITTAL, J.

1. The Appellant New India Assurance Company Limited takes exception to the judgment dated 31.08.1998 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby while awarding a compensation of `5,00,000/- for the death of Ram Prakash Aggarwal, the Appellant's plea of limited liability to the extent of `50,000/- in terms of the contract of Insurance between the Appellant and the Insured (the owner of the truck No.RSL-8765) was rejected. The Appellant was directed to pay the entire compensation of `5,00,000/- as awarded by the Claims Tribunal.

2. On appreciation of evidence, the Claims Tribunal found that the accident was caused because of rash and negligent driving of truck No.RSL-8765, by the Fourth Respondent and owned by the Fifth Respondent.

3. On the basis of the Income Tax Return (ITR), the Claims Tribunal found that the deceased Ram Prakash Aggarwal had returned the income of ` 40,590/- in the assessment year prior to his death; on applying the multiplier of '14' the Claims Tribunal awarded a compensation of `5,00,000/-.

4. The finding on negligence and on quantum of compensation is not disputed either by the Appellant (the Insurance Company) or the First Respondent (the Claimant).

5. The sole ground of challenge is that the Appellant having successfully proved the insurance policy and the payment of premium of `125/- to cover the third party risk, the Insurance Company's liability was limited to `50,000/- only. The Fifth Respondent being the insured and the owner of the vehicle was expected to be in possession of the original insurance policy. The owner did not produce the original insurance policy. The copy of the policy Ex.RW-1/1 should have been relied upon by the Claims Tribunal to hold that the Appellant's liability was limited to ` 50,000/-.

6. Admittedly, no notice was served upon the owner requiring him to produce the original policy. The Claims Tribunal opined that

even the carbon copy of the policy was not produced. Thus, the Claims Tribunal reasoned that the liability of the Insurance Company would be unlimited. The relevant portion of the Trial Court's finding is extracted hereunder:-

"Respondent No.3 has taken the preliminary objection that its liability is limited to `50,000/- in terms of statutory liability. In order to prove this case, the insurance company has examined RW1 Sh. V.K.Pradhan, Sr. Divisional Manager of the New India Assurance Co. In his evidence he deposed that the policy valid from 11.10.76 to 10.10.77 was issued from his office and that the company had charged net premium of `114,75/- for covering the third party risk. He brought the truck carbon copy of the Policy RW1/1 signed by him. In cross-examination he admitted that the policy issued was for third party risk and not an act policy. He admitted that in case a premium of `125/- to covers third party risk was charged while for the Act policy only a premium of `65/- is paid under clause 2 (i) (1) in which case only the liability is limited for `50,000/-. This evidence would suggest that in this case the liability of the Co. cannot be accepted as limited liability, as by Insurance Co. own witness, the premium charged was for covering unlimited third party risk. The suggestion of the witness that premium in terms of `65/- was charged for covering damages to good is baseless after-thought and is to be ignored.

7. The Ld. Counsel for the petitioner has contested that original policy has not been produced nor its original carbon copy produced by giving of notice to the insured to produce the original policy, "It is argued that in the circumstances, when neither the original policy nor its original carbon copy is produced the company cannot take plea of limited liability.

8. In support of this legal position the counsel for the petitioner has placed reliance or number or Ruling of Delhi High Court and other Courts. In the case cited as II (1998) ACC 467 Delhi High Court held that the Insurance Company must show as to why the carbon copy of the original policy has not been produced. In the case of Mahinder Singh 1986 ACJ, 166, it was held by Justice Sh. Mahinder Narain, in similar cases that policy was not proved in accordance with law. In the case of I (1991) ACC 493, it was held that when there is no notice served upon the owner to produce the original carbon copy of true copy its cannot be admitted in evidence. Latest decision upholding the same position are 1995 (34) DRJ, 1995 (2) TAC 352 (Delhi), 1996 (ACJ) 107. I have considered all the above authorities, in the light of facts and circumstances placed on record, and am of the view that the respondent no.3 has failed to prove its plea of limited liability."

7. Admittedly, the original insurance policy is not on record.

8. Secondary evidence is admissible only in the absence of primary evidence. Section 65 of the Indian Evidence Act, 1872 (the Evidence Act) entitles a party to lead secondary evidence in respect of a document on satisfying certain conditions. Section 65 of the Evidence Act is extracted hereunder:-

65. Cases in which secondary evidence relating to documents may be given -

Secondary evidence may be 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 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 consist 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.

In cases (a), (c) and (d), any secondary evidence of the contents of the document 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."

9. Section 63 of the Evidence Act defines secondary evidence. It would be fruitful to extract the same hereunder:-

"63. Secondary Evidence -

Secondary evidence means and includes:-

(1). Certified copies given under the provisions hereinafter contained;

(2). Copies made from the original by mechanical processes which in themselves insure 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."

10. The instant case is covered by Clause (a) of the Section 65. The Appellant was under an obligation to require the Fifth Respondent to produce the insurance policy before the Court. On Fifth Respondent's failure to produce the original, the Appellant would have become entitled to lead secondary evidence.

11. In the instant case, no notice is proved to have been sent to the Fifth Respondent. In the circumstances, the Claims Tribunal was justified in holding that the Appellant was not entitled to lead secondary evidence. In taking this view I am fortified by a

report of Supreme Court in J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730, where it was held as under:-

"9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non- production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section......."

12. In Chandro Devi & Ors. v. Jit Singh & Ors., 1989 ACJ 41, a learned Single Judge of this court emphasized that the documents must be proved by primary evidence except in cases mentioned in section 65 of the Evidence Act. Para 35 of the report is extracted hereunder:-

"35. It is thus clear that the contents of documents can be proved either by primary or by secondary evidence. Primary evidence means the document itself produced for the inspection of the court. It is settled law that the documents must be proved by primary evidence, except in

cases mentioned in section 65 of the Evidence Act. It is also settled law that mere production of a document is not proof of its contents, especially when the person producing it is neither the writer nor the one on whose behalf it is written. A person, who is not producing the primary evidence, must explain the reasons for that."

13. The Appellant failed to prove that a notice as required under Section 66 of the Evidence Act was served upon the Fifth Respondent. Therefore, the Appellant was not entitled to adduce secondary evidence.

14. Since the Appellant failed to prove the notice under Section 66 of the Evidence Act requiring the Fifth Respondent to produce the original, it was not entitled to lead any secondary evidence.

15. Moreover, the Appellant Insurance Company proved only an attested true copy of the policy as Ex.RW-1/1. It is not proved as to from which document the true copy was prepared. Thus, the case is not covered under any of the five Clauses to Section 63 of the Evidence Act to bring it within the definition of secondary evidence.

16. It is thus proved that there was a contract of insurance between the Appellant and the Fifth Respondent. The Appellant having failed to prove that its liability was limited to `50,000/-, it shall have to be held that the Appellant's liability was unlimited. I am supported in this view by the report of the Supreme Court in Tejinder Singh Gujral v. Inderjit Singh & Anr., (2007) 1 SCC

508. Relevant para of the report is extracted hereunder:-

"13. The learned Tribunal, however, committed an error in opining that the insurance policy was not required to be proved. Learned Single Judge of the High Court, in our opinion, rightly held that the insurance policy having not brought on records, a presumption would arise that the liability of the insurer was unlimited........"

17. In Chandro Devi (supra) this court held that in the absence of proof of the insurance policy by the insurance company it shall be presumed that the liability of the insurance company is unlimited. Relevant para of the report says:-

"The insurance company must prove that the policy in question is the „Act only‟ policy. The amount mentioned by the statute is the minimum amount. But the policy can always cover higher risk to third party by taking additional premium. It is obligatory on the part of the insurance company to prove the insurance policy and its terms and conditions. In a number of decisions by this court, it has been held that where the insurance company has to produce the insurance policy or prove the same in accordance with law, then, it shall be presumed that the liability of the insurance company is unlimited. As I have already held that the insurance company has failed to prove the insurance policy in accordance with law, so I hold that the liability of the insurance company is unlimited in the present case."

18. In view of the foregoing discussion, the Appeal must fail; the same is accordingly dismissed.

19. The balance amount of compensation deposited by the Appellant shall be released in favour of the Claimants in terms of the award passed by the Claims Tribunal.

20. The statutory amount of `25,000/- shall be refunded to the Appellant/Insurance Company.

21. All the pending applications stand disposed of.

(G.P. MITTAL) JUDGE JULY 02, 2012 vk