The Oriental Insurance Company ... vs Siyaram
2023 Latest Caselaw 8873 Raj

[2023:RJ-JD:36510]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 10472/2019

The Oriental Insurance Company Ltd., Bhansali Tower, Residency
Road, Jodhpur Through Senior Divisional Manager.
                                                                     ----Petitioner
                                     Versus
1.       Siyaram S/o Sohan Lal, Aged About 31 Years, By Caste
         Meena, Resident Of Bhuwar Tehsil Jahajpur And Currently
         Residing At Chhavni, Tonk, District Tonk.
2.       Paanchu Ram S/o Barharam, Vijetha Tehsil Jahajpur,
         District Bhilwara.
3.       Surjaram S/o Hemaram, By Caste Meena, Resident Of
         Bhuwar Police Station Jahajpur, District Bhilwara.
4.       Gheesalal S/o Bartha, By Caste Meena, Resident Of
         Bhuwar Police Station Jahajpur, District Bhilwara.
                                                                  ----Respondents


For Petitioner(s)           :    Mr. LD Khatri
For Respondent(s)           :    Mr. Sanjay Nahar



               HON'BLE DR. JUSTICE NUPUR BHATI

                                JUDGMENT

Judgment Reserved on                     <>              20/10/2023
Date of Pronouncement                    <>              31/10/2023

1. Though the matter has been listed in the 'Orders Category',

however, the matter is being heard today itself with the consent of

the counsel for both the parties.

2. The instant writ petition has been preferred under Article 227

of the Constitution of India with the following prayers:-

"that this writ petition of the petitioner may kindly be allowed and order dated 23.05.2019 (Annexure-

10) passed by the Learned Judge Motor Accident Case No. 21/2010 (06/2006) - Siyaram Vs.

[2023:RJ-JD:36510] (2 of 11) [CW-10472/2019]

Panchuram and Others may kindly be set aside and the photocopy of the Rojnaamcha Entry No.812 dated 19/20.03.2003 of Police Station Jahajpur (Annexure-8) may kindly be order to taken on record as secondary evidence in Motor Accident Case No. 21/2010 (06/2006)- Siyaram Vs. Paanchuram or any other relief which this Hon'ble Court deem fit and proper may be passed."

3. Brief facts of the case are that respondent No.1 Siyaram

(minor) through his father filed a claim petition (Annexure-1)

under Section 166 along with Section 140 of the Motor Vehicles

Act, 1988 against Respondent No.2 to 4 including the Petitioner

Oriental Insurance Company before Motor Accident Claims

Tribunal, Tonk thereby claiming compensation in respect of the

injuries received by the Respondent No.1 in the accident that

occurred on 19/20 March, 2023 in which Tractor No. RJ-06-R-6345

was involved.

4. After filing of the said claim petition, the same was

registered as MACT Case No.826/03 in which summons were

issued to the respondents. Upon service of summons the

petitioner Insurance Company filed the reply (Annexure-2) to the

claim petition and took the defense that the injured claimant has

not received any injuries due to accident by a vehicle/tractor as he

met with an accident while using thresher and this fact was

reported to the concerned Police Station Jahajpur, District

Bhilwara, wherein on 19/20 March, 2023 entry was made in

Roznamcha report and thereafter prayed for dismissal of claim

petition and furthermore, petitioner company also took the

[2023:RJ-JD:36510] (3 of 11) [CW-10472/2019]

objection of the territorial jurisdiction of the Motor Accident Claim

Tribunal Tonk.

5. Thereafter the learned Motor Accident Claim Tribunal, Tonk

heard the arguments on the application under Section 140 of The

Motor Vehicles Act, 1988 which was dismissed vide order dated

15.04.2004 (Annexure-3). While deciding the application it was

observed by the Tribunal that the Claimants had to produce the

evidence in respect of the territorial jurisdiction and also directed

Superintendent of Police, Bhilwara for production of original report

No.812 dated 19/20 March, 2023 before the Motor Accident Claim

Tribunal,(Hereinafter referred to as MACT for short), Tonk and the

prayer for interim compensation was rejected as the claimant did

not receive any injury in the accident.

6. Vide order dated 18.11.2005 it was held that the Motor

Accident Claim Tribunal, Tonk was not having territorial

Jurisdiction to adjudicate the claim petition thus the above

mentioned petition was returned to the claimant/respondent No.1

under Order 7 Rule 10A of Civil Procedure Code, 1908 to file

before the appropriate tribunal which is having territorial

Jurisdiction i.e. Motor Accident Claim Tribunal, Shahpura, District

Bhilwara. Thereafter the claimant respondent No.1 filed petition

before MACT Shahpura, Bhilwara whereby the same was

registered as Case No.06/2006 and again the petitioner insurance

company submitted its reply (Annexure- 4) before the Learned

Tribunal and prayed for rejection of the claim petition.

[2023:RJ-JD:36510] (4 of 11) [CW-10472/2019]

7. Abovementioned claim petition was dismissed for default by

the Learned Tribunal vide order dated 19.10.2011 which was

restored upon receiving application from the claimant/Respondent

No.1. Thereafter the evidence had commenced and during

evidence the counsel for petitioner Insurance Company had filed a

written application under Section 151 of CPC dated 07.02.2019

(Annexure-5) requesting to procure the original Roznamcha Entry

No.812 dated 19/20 March, 2023 of Police Station, Jahajpur,

District Bhilwara. The said application was allowed by the Learned

Tribunal vide Order dated 25.04.2019 (Annexure-6) and

Superintendent of Police, Bhilwara was directed to produce the

true copy of Roznamcha Entry dated 19/20 March, 2023 of Police

Station Jahajpur on the next date i.e. 09.05.2019.

8. On 09.05.2019 as mentioned in the order-sheet (Annexure-

9) of the MACT Bhilwara it was stated that a letter bearing No.

2344 dated 05.05.2019 of Police Station Jahajpur was received in

which it was stated that the requisite Roznamcha was not

available in the Police Station Jahajpur. Thus the petitioner

company filed an application (Annexure-7) on 09.05.2019 under

section 65 of the Indian Evidence Act along with a photocopy of

Roznamcha Entry dated 19/20 March, 2023 (Annexure-8) of Police

Station Jahajpur and order sheet was drawn by the Tribunal and

the case was adjourned for 23.05.2019 to file reply of application

by the claimants.

9. Thereafter the tribunal passed the order dated 23.05.2019

(Annexure-10) by which the prayer of the Petitioner Company was

[2023:RJ-JD:36510] (5 of 11) [CW-10472/2019]

rejected and the application filed by the petitioner Insurance

Company under Section 65 of the Indian Evidence Act 1872 was

also dismissed. Aggrieved by the order dated 23.05.2019 the

petitioner preferred this writ petition.

10. Learned counsel for the petitioner submitted that :-

(a) Since, the application under Section 151 C.P.C. dated

07.02.2019, preferred before the learned Tribunal had been

allowed by directing the Superintendent of Police, Bhilwara to

produce the true copy of Roznamcha Entry dated 19/20 March,

2003 of Police Station, Jahajpur on the next date i.e. 09.05.2019,

there was no occasion for the petitioner insurance company to

assume that the same would not be placed by the concerned

authority before the learned Tribunal.

(b) When on 09.05.2019, a letter dated 05.05.2019 from the

Police Station, Jahajpur, was received stating therein that the

requisite Roznamcha was not available in the Police Station,

Jahajpur and the learned Tribunal drew the order sheet on

09.05.2019 and the matter was adjourned for another date.

(c) As soon as this fact came to the knowledge of the petitioner

insurance company on 09.05.2019 that a letter has been received

intimating that the requisite Roznamcha was not available in the

Police Station, Jahajpur and on the same day, i.e., 09.05.2019,

the petitioner insurance company filed an application under

Section 65 of the Indian Evidence Act and thus, no delay is

attributable to the petitioner insurance company in filing of the

said application.

[2023:RJ-JD:36510] (6 of 11) [CW-10472/2019]

(d) The learned Tribunal ought to have considered and

appreciated the fact that vide order dated 15.04.2004, the

Tribunal had passed an order under Section 140 of the Motor

Vehicle Act, 1988, directing the concerned authorities to place

before the Tribunal the requisite Roznamcha and the

aforementioned order was not challenged by the

claimant/respondent No.1 which reflects that the document in

question existed and the contents of the said document were duly

admitted by the claimant/respondent No.1.

(e) The learned Tribunal has failed to appreciate the relevant

provision as laid down under Section 65 of the Indian Evidence

Act, 1872 as per which, the document is admissible in evidence

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.

(f) As the concerned police station informed the learned Tribunal

that the requited Roznamcha was not available in the Police

Station, Jahajpur, then, in such a case, the provisions of Section

65 of the Indian Evidence Act, 1872, is attracted and as per the

said provision in the given circumstances, the photocopy of the

requisite Roznamcha can be given as a secondary evidence.

(g) The application of the petitioner filed under Section 65 of the

Indian Evidence Act, 1872 ought to have been allowed wherein

the petitioner had prayed that he may be permitted to take the

photocopy of the Roznamcha as a secondary evidence, as the

[2023:RJ-JD:36510] (7 of 11) [CW-10472/2019]

Roznamcha was a public document and therefore, the photocopy

of the same can be taken as a secondary evidence as per the said

provisions.

In support of his contentions, learned counsel for the

petitioner placed reliance upon the judgment rendered by the

Hon'ble Apex Court in the case of Aher Rama Gova And Ors. vs

State Of Gujarat reported in AIR 1979 SC 1567 decided on

09.03.1979.

11. On the other hand, learned counsel for the respondent-

claimant submitted that:-

(a) The petitioner company has filed the application under 65

Section of the Indian Evidence Act 1872 after a delay of about 10

years and have not given any reason for the said delay in filing the

application and thus the prayer of the petitioner company to take

the photocopy of the document on record as secondary evidence

is rightly rejected, and thus the writ petition be dismissed.

(b) The petitioner-defendants have themselves stated that the

evidence of the respondent-claimant was closed on 21.08.2008

and that the evidence of the petitioner-defendants was also

complete and the date for final hearing was fixed on 21.06.2018.

Thus the writ petition is liable to be dismissed as the application

under Section 65 of The Indian Evidence Act was filed on

09.05.2019 at a very belated stage. Moreover, in the application

under Section 65 of The Indian Evidence Act filed by the petitioner

there is no reason explained regarding the delay in filing the

[2023:RJ-JD:36510] (8 of 11) [CW-10472/2019]

application at such a belated stage and hence the writ deserves to

be dismissed.

12. After hearing the arguments advanced at bar and also after

considering the material placed before this Court, it is an admitted

fact that the respondent/claimant filed a claim petition under

Section 166 alongwith Section 140 of the Motor Vehicles Act, 1988

against the petitioner company claiming compensation in respect

of the injuries received in the accident that had occurred. The

petitioner company in its reply to the claim petition had taken a

specific defence that the respondent No.1 did not receive the

injuries due to an accident by a vehicle/tractor, but on account of

accident which happened while using the thresher, which was

reported to the concerned police station i.e. Jahajpur District

Bhilwara. Upon the report made to the concerned police station on

19/20 March, 2023, an entry was made in the Roznamcha report.

It is evident that the petitioner company is in possession of the

photocopy of the Roznamcha report dated 19/20 March, 2023 and

the same had been filed by the petitioner company alongwith the

application filed under Section 65 of the Indian Evidence Act,

1872. The Tribunal while deciding the application under Section

140 of the Motor Vehicles Act, 1988 on 25.04.2019 (Annexure-6),

observed that on 15.04.2004, the court had directed the

concerned Superintendent of Police, Bhilwara, to place the original

copy of the Roznamcha dated 19/20 March, 2023 before it,

however, the order was not complied with. Thus, on 25.04.2019

(Annexure-6), the Tribunal while allowing the application filed by

the petitioner company under Section 151 CPC directed the Police

[2023:RJ-JD:36510] (9 of 11) [CW-10472/2019]

Station, Jahajpur to place before it the original copies of the

Roznamcha dated 19/20 March, 2023. As the Tribunal had vide

order dated 15.04.2004 (Annexure-3), directed the concerned

polie station to place before it the relevant Roznamcha, then, in

such circumstances, there was no occasion for the petitioner

company to file an application under Section 65 of the Indian

Evidence Act, 1872.

13. As soon as it came to the knowledge of the petitioner

company on 09.05.2019 that the concerned Police Station

intimated the Tribunal that the original Roznamcha is not available

with them, the petitioner company on the same day, i.e.

09.05.2019, preferred an application under Section 65 of the

Indian Evidence Act, 1872 for permitting the petitioner company

to produce the photocopy of the Roznamcha as a secondary

evidence. Thus, the submission of the learned counsel for the

respondents that the said application has been filed after a delay

of 10 years, is having no force as there was no delay on the part

of the petitioner in filing of the application under Section 65 of the

Indian Evidence Act, 1872. For the sake of ready reference,

Section 65 of the Indian Evidence Act, 1872, is reproduced

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

[2023:RJ-JD:36510] (10 of 11) [CW-10472/2019]

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;"

14. A bare perusal of the provisions as laid down under Section

65 of the Indian Evidence Act, 1872, reflects that there are certain

cases in which, secondary evidence relating to the document may

be given and in the present case, it is an admitted fact that the

petitioner company is having the photocopy of the said document

in question and the original is not available with the concerned

police station and thus, in the given circumstances, the petitioner

company has filed the application under Section 65 of the Indian

Evidence Act, 1872 in a reasonable time i.e. on the same day

when it came to the knowledge of the petitioner company that the

concerned police station has intimated the Tribunal that the

original Roznamcha is not available with them. Thus, in order to

adjudicate the crucial issue as to whether the respondent No.1

suffered injuries on account of accident on 19/20 March, 2023 by

the tractor No.RJ-06-R-6345, or the said injuries were on account

of using the thresher machine, the importance of the photocopy of

[2023:RJ-JD:36510] (11 of 11) [CW-10472/2019]

the Roznamcha report dated 19/20 March, 2023, cannot be

undermined.

15. The provisions of Section 65 of the Indian Evidence Act,

1872, can be invoked only in the case, where the original is not

with the party and its non-production in evidence by the party is

first accounted for as provided in the said provision. After denial of

the possession of the said document with the concerned police

station, the court below ought to have considered and allowed the

application filed by the petitioner under Section 65 of the Indian

Evidence Act, 1872.

16. Thus, in view of the above discussion, the instant writ

petition is allowed and the impugned order dated 23.05.2019

(Annexure-10) passed by the MACT, Jahajpur, District Bhilwara, is

hereby quashed and set aside with the direction to allow and

accept the photocopy of the Roznamcha report dated 19/20

March, 2023 as a secondary evidence.

17. Stay application as well as all other pending applications, if

any, also stand dismissed.

(DR. NUPUR BHATI),J

Devesh Thanvi/-

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