New India Assurance Company Ltd. vs Dharam Singh & Ors
2012 Latest Caselaw 4212 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 17th July, 2012
+       FAO 262/1997

        NEW INDIA ASSURANCE COMPANY LTD. ..... Appellant
                      Through: Mr. Pankaj Seth, Adv.

                     versus

        DHARAM SINGH & ORS.                          ..... Respondents
                     Through:           Nemo.

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

                              JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant New India Assurance Company Limited takes exception to a judgment dated 22.05.1997 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby while awarding a compensation of `1,20,000/-, the Appellant's plea that it has limited liability to the extent of `50,000/- was rejected.

2. It is urged by the learned counsel for the Appellant that the Appellant served a notice under Order XII Rule 8 CPC upon Respondent No.4, (Narinder Kumar, owner of the offending vehicle) and was, therefore, entitled to lead secondary evidence.

3. The Appellant proved the copy of the policy Ex.RW-1/1 which showed the Appellant's liability to be limited to `50,000/-.

4. It is contended by the learned counsel for the Appellant that the Claims Tribunal erred in rejecting the plea of limited liability.

5. It is true that in his examination-in-chief RW-1 T.R. Sharma testified and tried to prove carbon copy of the insurance policy as Ex.RW-1/1. However, in his cross-examination he admitted that portion mark A to A encircled on the copy of the policy Ex.RW-1/1 was not there on the original. He admitted that the word 'true copy' was written on Ex.RW-1/1. He admitted that he did not bring the office copy of the cover note or the certificate of insurance.

6. RW-1's testimony on service of the notice was not challenged in the cross-examination. The Respondent No.4 preferred himself to be proceeded ex-parte. Thus, the Appellant was entitled to lead secondary evidence.

7. The vital question for consideration, however, is whether the Appellant produced secondary evidence within the meaning of Section 63 of the Indian Evidence Act, 1872 (the Evidence Act) so as to rely on the copy of the insurance policy Ex.RW-1/C produced by it. It would be fruitful to extract Section 63 of the Evidence Act 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 ensure 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."

8. The true copy of the Insurance Policy Ex.RW-1/1 which was initially stated to be a carbon copy by RW-1 does not fall under any of the five clauses of Section 63 extracted earlier. Though, it is stated to be an attested copy but it was not stated as to from which copy the same was prepared when the original was admittedly sent to the insured. Moreover, in view of the admission that the portion mark A to A on Ex.RW-1/1 was not written on the original, the Appellant's assertion that it was the true copy falls to the ground.

9. The Claims Tribunal, therefore, rightly held that the true copy Ex.RW-1/1 was not admissible. This finding is supported by the judgment of the Supreme Court in J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730. In para 8, the Supreme Court held as under:

"8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper

explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence."

10. In Chandro Devi & Ors. v. Jit Singh & Ors., 1989 ACJ 41,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."

11. A Division Bench of this Court in New India Assurance Company Limited v. Darshan Singh & Ors., 1992 ACJ 533 held that where the Insurance Company wished to take a defence (in a Claim Petition) that its liability was not in excess of statutory liability it should file a copy of the insurance policy along with

its defence. It was observed that a printed copy of the policy would not be enough to prove the plea of limited liability.

12. In view of the foregoing discussion, the Claims Tribunal's finding that the Appellant's liability was unlimited cannot be faulted.

13. The Appeal is devoid of any merit; the same is accordingly dismissed.

14. 50% of the award amount was released in favour of the Claimants by an order dated 26.08.1997. Rest of the amount along with interest shall also be released to the Claimants in terms of the order passed by the Claims Tribunal.

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

16. Pending Applications also stand disposed of.

(G.P. MITTAL) JUDGE JULY 17, 2012 vk