Gauhati High Court
MACApp./396/2018 on 5 January, 2022
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GAHC010001982015
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Case No: MACApp. 396/2018
Sri Dinesh Debnath.......................Appellant
-Versus-
Smti. Urmila Pathak and 3 ors.................Respondents
:: BEFORE ::
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellant/Petitioner : Mr. S.C. Biswas
For the Respondents : Mr. R. Mazumdar
Date of Hearing : 30.11.2021
Date of delivery of
Judgment and Order : 05.01.2022
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JUDGMENT & ORDER (CAV)
1. Heard Mr. S.C. Biswas, learned counsel appearing for the appellant/petitioner as well
as Mr. R. Mazumdar, learned counsel appearing for the respondents.
2. This appeal has been preferred by the appellant Dinesh Debnath, owner of the truck
bearing No. AS-01-C-6739 challenging the judgment and order dated 27.11.2014 passed by
the learned Member, Motor Accident Claims Tribunal, Bongaigaon in MAC Case No. 228/2009,
awarding compensation of Rs. 2,88,000/- in favour of the claimant/respondent and directed
the appellant to pay the awarded compensation.
3. The brief facts of the case is that on 01.09.2009 at about 5.45 p.m. when the son of
the claimants/respondents Bhumidahr Pathak was waiting for bus at Chapaguri on N.H.
31(C), at that time, one truck bearing No. AS-01-C-6739 coming in a rash and negligent
manner knocked down the son of the claimant/respondents. As a result, he sustained
grievous injuries on his person.Though he was taken to Lower Assam Hospital at Bongaigaon,
but he died on the same day.
4. The facts of the accident was not denied in the appeal. The only contention raised in
the present appeal is that the present appellant did not appear before the Tribunal and as
such, the case was proceeded ex-parte against him and on the basis of the driving licence
verification report dated 27.07.2012 produced by the Panel Investigator of the Insurance
Company without summoning and examining the DTO, Bongaigaon, the Tribunal held that the
driver was not in possession of Heavy Motor Vehicle (H.M.V) driving licence at the time of the
accident and therefore, the judgment and order dated 27.11.2014 directing the appellant to
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pay the amount of compensation is not in conformity with law.
5. Learned counsel for the appellant has argued that the learned Tribunal had relied upon
the driving licence verification report dated 27.07.2012 produced by the Insurance
Investigator but the said report was not proved by the executant of the said report i.e. the
DTO, Bongaigaon who was not examined to prove the said contention of the report and as
such, the impugned judgment and order directing the appellant to make payment of the
compensation awarded to the claimants is illegal. It is further argued that non-exhibition of
documents is a procedural lapse. The claimants proved the accident due to rash and
negligent manner by driver by oral and documentary evidence and the offending truck was
insured with Insurance company and owned by the owner and therefore, the claimant is
entitled to compensation and the Insurance company is liable to pay the said amount.
In support of his submission, the learned counsel has placed reliance on the following
case laws (i) Vimla Devi and Others Vs. National Insurance Company Limited and Another
reported in (2019) 2 SCC 186, (ii) Nirmala Kothari Vs. United India Insurance Company
Limited reported in (2020) 4 SCC 49, (iii) National Insurance Co. Ltd. Vs. Swaran Singh and
Others reported in (2004) 3 SCC 297.
6. On the contrary, learned counsel for the respondents/claimants submitted that the
driver of the offending vehicle was having driving licence to drive Light Motor Vehicle (LMV)
at the time of accident but the truck which he was driving on the date of accident was a
Heavy Motor Vehicle (H.M.V). As such, the driver was not entitled to drive the Heavy Motor
Vehicle as no such driving licence was issued to him to drive such vehicle. So the learned
Tribunal has rightly passed the order holding that the appellant is liable to pay the
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compensation awarded as Insurance Company has no such liability as the act of the driver is
against the policy of the vehicle.
The learned counsel referred the following case law in support of his submissions-
Jagdish Kumar Sood Vs. United India Insurance Company Limited and Others reported in
(2018) 3 SCC 697.
In the aforesaid case, the definition of Light Motor Vehicle and transport vehicle etc.,
has been prescribed.
7. Coming to the case in hand and in respect of the evidence adduced in connection with
driving licence of the offending vehicle.
8. DW-1 is Bolen Sarma, Assistant Mananger of the Oriental Insurance Co. Ltd. who
deposed in his evidence that the alleged offending vehicle bearing No. AS-01-C-6739 is a
goods carriage commercial vehicle and the truck having its unladen weight 16200 K.g, fallen
in Heavy goods vehicle. The witness admitted the fact that the vehicle was insured with
Oriental Insurance Company Limited at the relevant time of the accident vide policy No.
322300/31/2008/3216 valid upto 20.10.2009. DW-1 further stated that they employed one
Investigator i.e. Fatik Ch. Dey to investigate the case. During the course of investigation the
investigator visited the District Transport Office, Bongaigaon and enquired about the licence
of the driver being No. 237/BNG/proof/06. After due investigation and verification by the
concerned District Transport Officer (DTO) Bongaigaon, it was reported that the driver was
authorized to drive motorcycle and Light Motor Vehicle w.e.f. 21.01.2006 valid upto
12.01.2012. After getting the verification report from the DTO, Bongaigaon, the said
investigator submitted a comprehensive report from which it reveals that at the relevant time
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of accident the driver of the vehicle was not having an effective and valid driving licence.
9. DW-2, Fatik. Ch. Dey, the investigator of the Oriental Insurance Company Limited,
deposed in his evidence that he has been deputed by the Oriental Insurance Company
Limited to investigate the accident case vide MAC Case No. 228/2009 and accordingly, he
investigated the same. He approached the DTO, Bongaigaon to verify the licence of the driver
of the offending vehicle. The offending vehicle was a truck which was driving by the driver at
the time of accident and the said vehicle was a Heavy Motor Vehicle. He also verified the
driving licence of the driver which was issued by the DTO, Bongaigaon on 21.01.2006 and the
said licence was issued to drive motorcycle and Light Motor Vehicle. The driving licence was
valid upto 12.01.2012 and the said licence was renewed on that day and valid upto
11.01.2015. At the time of the renewal of the driving licence of the driver, he was allowed to
drive Light Motor Vehicle, MMV and Heavy Motor Vehicle (H.M.V). The accident occurred on
01.09.2009. On the day of accident, the driver was not allowed to drive Heavy Motor Vehicle
vide Exhibit-C, which is the report of the DTO, Bongaigaon and the DTO, Bongaigaon put his
signature in his presence, vide Exhibit-C-(2).
10. In his cross-examination, P.W.-2 replied that Exhibit-C was written in his personal pad
and in Exhibit-C there was no official sign or signature of O.P. No. 1.
11. From the evidence of DW-1 and DW-2, it reveals that the Insurance Company
examined its Assistant Manager to prove the documents submitted by their investigator. The
report of Surveyor is not proved on record and endorsement of licensing Authority given to
the investigator. The driving licence of the driver is not available on record. The driving
licence was not exhibited in the trial Court but one photocopy of the driving licence of the
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driver is available on record which shows that the driving licence was issued on 21.01.2006
and valid upto 12.01.2012 permitting to drive motorcycle, Light Motor Vehicle (L.M.V), MMV
and Heavy Motor Vehicle (H.M.V) in connection with PSV only. But submission of Insurance
Company is not enough so as to discharge the Insurance Company from its liability because
no witness was examined from the office of the Transport Authority to prove the report of
Transport Authority. No initiative was taken by the Insurance Company to summon witness
from the Transport Authority to prove the report. Since the report of the Transport Authority
was not proved in accordance with law and the same is not available on evidence, it cannot
be taken into consideration.
12. Section-67 of the Indian Evidence Act lays down the mode of proof of a document
which is extracted herein below:-
" Proof of signature and handwriting of person alleged to have signed or written document
produced.-
if a document is alleged to be signed or to have been written wholly or in part by any person,
the signature or the handwriting of so much of the document as is alleged to be in that
person's handwriting must be proved to be in his handwriting.
Thus, any document including public document has to be proved as provided under Section
67 of the Evidence Act.
13. Section-61 of the Evidence Act lays down that the contents of documents may be
proved either by primary or by secondary evidence. Section-62 thereof defines primary
evidence as meaning of the document itself produced for the inspection of the Court. In
other words, the primary documentary evidence of a transaction is the document itself which
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should be produced in original to prove the terms of the contract/transaction, if it exists and
is obtainable. Since Sections - 61 to 66 of the Evidence Act deal with the mode of proving the
contents of the documents, either by primary evidence or by secondary evidence."
14. Then comes the most important question viz. the genuineness of a document
produced in evidence i.e. is a document what it purports to be and this is dealt with in
Section-67 to 73 of the Evidence Act. Section-67 refers to documents other than documents
required by law to be attested. It simply requires that the signature of the person alleged to
have signed a document (i.e. the executants) must be proved by evidence that the signature
purporting to that of the executants is in his hand-writing. Further it requires that if the body
of the document purports to be in the hand-writing of someone, it must be proved to be in
the hand-writing to that person. However, Section-67 does not in terms prescribe any
particular mode of proof and any recognized mode of proof which satisfies the Judge will do.
Thus, the execution/authorship of a document may be proved by direct evidence i.e. by an
expert or by the opinion of a non-expert who is acquainted with the hand-writing in any of
the ways mentioned in Explanation to Section 47 or even by comparison etc.-
15. The question of proof of a public document came up before Bombay High Court in
C.H. Shah Vs. S.S. Mappathak & Ors., AIR 1973 Bom.14, where it was held as under:-
"4..... In all cases of secondary evidence under Section 65 read with Section 63
of the Evidence Act when a copy or an oral account of a document is admitted
as secondary evidence, the execution of the original is not required to be
proved but if the original itself is sought to be tendered it must be duly proved
and there is no reason for applying a different rule to public documents.
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Secondly, in the case of a certified copy, before a presumption of its
genuineness can be raised under Section 79, as laid down by the Supreme
Court in Bhinka's case already referred to above it must be shown that the
certified copy was executed substantially in the form and in the manner
provided by law. There would therefore, be a check or safeguard in so far as
the Officer certifying it in the manner required by law would have to satisfy
himself in regard to the authenticity of the original and in regard to the
accuracy of the copy which he certified to be a true copy thereof. On the other
hand if the original of a public document is to be admitted in evidence without
proof of its genuiness, there would be no check whatever either by way of
scrutiny or examination of that document by an officer or by the Court. The
third and perhaps the most important reason, for not accepting Mr. Shah's
argument on the point which I am now considering is that neither Section 67
nor Section 68 of the Evidence Act which lay down that the signature and the
handwriting or a document must be duly proved do not make any exception in
the case of public documents. In view of the provisions of the said section all
documents whatever be their nature must be therefore be proved in the
manner provided by Section, 45, 47 or 73 of the Evidence Act...."
16. Thus the certificate purported to be issued by the Transport Authority could not be
admitted in the evidence unless signature thereon proved by the witness.
17. From the record of MAC Case No. 228/2009, it reveals that Exhibit-C, the letter written
by the Investigator Shri Fatik Ch. Dey to DTO, Bongaigaon for verification of the driving
licence No. 237/BNG/proof/06 issued in the name of Paban Das. In the said letter of the
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Investigator it was written by the DTO, Bongaigaon, Assam by putting his initial dated
27.07.2017, which reads as follows:-
" Return in original with the intimation that the D/L No.
237/BNG/proof/06 stands in the name of Paban Das S/o Kamala Das,
residence of Vill-Thuribari, W/No.3 Dist- Chirang issued on 21.01.2006
from this office authorized to drive M/C, LMV w.e.f 21.01.2006 and MMV,
HMV, PSV only w.e.f 12.01.2012, last renewal done on 12.01.2012 valid
upto 11.01.2015 as per this office records."
18. From Exhibit-C, it reveals that the person who put his initial as District Transport
Officer, Bongaigaon was not examined in this case. It cannot be ascertained what is the name
of the person who put his initial as DTO, Bongaigaon. The Investigator who was examined as
DW-2 also did not refer the name of the person who put his initial as DTO, Bongaigaon in
Exhibit-C. As such, Exhibit-C cannot be taken into consideration as proved to be report of
DTO, Bongaigaon regarding licence verification of the driver of the alleged offending vehicle.
Since, the report of the Transport Authority was not proved in accordance with law, the same
is not admissible in evidence.
19. Under such backdrop, I am of the opinion that to fasten the liability on the
driver/owner of the vehicle to pay compensation it is required to be proved that the driver
was not having valid and effective driving licence on the date of accident. Hence, the case
(MAC Case No. 228/2009) is remanded back to the concerned Tribunal with a direction to
examine the person who put his signature as DTO, Bongaigaon to prove the report submitted
by him. Otherwise, the Insurance Company has the option to collect fresh report from the
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DTO, Bongaigaon on proper verification of the driving licence of the driver of the alleged
offending vehicle and on receipt of the report, the learned Tribunal will proceed as per
provision of law as referred aforesaid.
20. With the aforesaid observations, the appeal stands disposed of.
LCR be returned back.
JUDGE
Comparing Assistant
