JUDGMENT
Kamlesh Sharma, J.
1. The petitioner insurance company is respondent No. 3 in the claim petition filed by respondent No. 1 claimant Yashwant Singh which is pending before the Motor Accidents Claims Tribunal, Shimla. Respondent Nos. 2 and 3 are respondent Nos. 1 and 2 in the claim petition being owner and driver of the vehicle in question. One Rameshwar Singh, son of Kanwar Singh, who is respondent No. 4 in the claim petition, is another owner of the vehicle, but inadvertently he has not been impleaded as party respondent in this revision petition. This defect was not pointed out at the time of hearing of the revision petition. However, it is not material as owner Yashwant Singh and driver Kanwar Singh are impleaded as respondents in the revision petition.
2. The petitioner insurance company is aggrieved by the later part of the order dated 11.4.2001 whereby its evidence was closed and the statement of K.S. Raina, its Assistant Administrative Officer, who was present with a true copy of the insurance policy was not recorded on the ground that it was intended to be produced at a belated stage having been not filed at the time of or after the settlement of issues and without showing any good cause for the non-production thereof as envisaged under Rule 2 of Order 13, Civil Procedure Code. The notice issued under Order 12, Rule 8, Civil Procedure Code to the learned Counsel appearing for the owners and driver of the vehicle for production of original driving licence and insurance policy was also rejected as of no consequence on the ground that it is for the petitioner insurance company to lead evidence if it wants to wriggle out of the contract of insurance.
3. This court has heard the learned Counsel for parties and gone through the record.
4. The claim petition does not contain the particulars of insurance policy, may be that these were not in the knowledge of the claimant, but the owners and driver have also not given them in their reply in which their stand has been that no accident has taken place with their bus in which the claimant had received injuries. The petitioner insurance company in its reply has preferred preliminary objections that at the time of alleged accident, the vehicle in question was being driven by the person who did not have any valid and effective driving licence to drive the same and that in the alternative at the time of alleged accident, the vehicle was being plied without proper documents and permit and in violation of the terms and conditions of the insurance policy.
5. On the basis of the stand of the petitioner insurance company, issue Nos. 3 and 4 were framed which are as under:
(3) Whether the man who was driving the bus at the time of occurrence of the accident did not possess a valid and effective driving licence? OPR-3
(4) Whether the vehicle in question was being driven in violation of the terms and conditions of the policy and also in violation of law? OPR-3
The claimant appeared as PW 5 and produced his father, PW 4, eyewitness Popu, PW 3, Dr. Mukund Lal, PW 2 and H.C. Mohan Singh, PW 1, and closed his evidence on 6.10.2000 and thereafter the respondents were to produce their evidence. Despite seeking adjournment on four hearings, the respondents did not produce the evidence and on 11.4.2001 the impugned order was passed. The first part of the impugned order whereby the evidence of the owners and the driver of the vehicle was closed, was assailed in Civil Revision No. 108 of 2001 which was dismissed as withdrawn on 4.5.2001. So far the second part of the impugned order is concerned, it is assailed in the present revision petition.
6. Section 169 of the Motor Vehicles Act, 1988 (hereinafter called ‘the Act’) provides for procedure and powers of the Claims Tribunals. It is:
Procedure and powers of Claims Tribunals.-(1) In holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.
The perusal of this section shows that except for the limited purpose of taking evidence on oath or of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed, the Claims Tribunal has the powers of a civil court, otherwise it has to evolve such procedure as it thinks fit for holding inquiry subject to any rules which may be made in this behalf.
7. Learned counsel for the petitioner insurance company has pointed out that the Motor Accidents Claims Tribunals Rules, 1960, were promulgated for the then Union Territory of Himachal Pradesh and submitted that these continued to be in operation as these are not inconsistent with the provisions of the Act and are deemed to have been issued under Section 176 of the Act corresponding to Section 111-A of the Motor Vehicles Act, 1939, under which these rules were framed, as per Section 217 (2) of the Act. Section 176 (b) of the Act corresponds to Section 111-A (b) of the Act of 1939, under which the State Government may make rules to provide for the procedure to be followed by the Claims Tribunals for holding an inquiry.
8. Rule 20 of the rules of 1960 is as under:
Code of Civil Procedure to apply in certain cases.-The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII, and Order XXIII, Rules 1 to 3.
As per this rule, Order XIII, Rules 1 and 2 are not made applicable. Order XIII, Rule 1 provides that the documentary evidence in the possession and power of the parties on which they intend to rely and which has not been already filed in the court, will be produced at the time of or before settlement of issues. Rule 2 of Order 13 further provides that if a party fails to produce the documents in accordance with the requirements of Rule 1, on its showing good cause to the satisfaction of the court for the non-production, the court may receive the document at a subsequent stage for the reasons to be recorded, but nothing in Rule 1 applies to the documents produced for the cross-examination of the witnesses of the other party or handed over to the witness merely to refresh his memory.
9. Therefore, the Motor Accidents Claims Tribunal was not right in not permitting the petitioner insurance company to produce a true copy of the insurance policy on the ground that it was neither produced at the time of or before the settlement of issues nor good cause was shown to produce the same at a subsequent stage as envisaged under Rules 1 and 2 of Order 13, Civil Procedure Code.
10. Moreover, in view of the summary inquiry and the Tribunal evolving its own procedure subject to the rules as envisaged under Section 169 of the Act, the Tribunal was required to permit the petitioner insurance company to place on record the true copy of the insurance policy through its Assistant Administrative Officer K.S. Raina, who was present before the Tribunal on 11.4.2001. In fact, it was for the owners of the vehicle to give particulars of the insurance policy and place it on record if they wanted the petitioner insurance company to indemnify them in respect of the compensation if awarded in the claim petition. In the event of the owners not giving the particulars of insurance policy in their reply and producing the original thereof even after the notice under Order 12, Rule 8, Civil Procedure Code, it was in the interest of justice and fair play to permit the petitioner insurance company to produce on record the true copy of the insurance policy.
11. The perusal of relevant provisions of the Act and the rules framed thereunder and the provisions of the Insurance Act, 1938, leaves no doubt that every owner of the motor vehicle has to take an insurance policy before using the motor vehicle in a public place. Thus, issuance of insurance policy covering the risk for using the motor vehicle in public places is a statutory duty of the insurance companies which are owned by the Government, as such, the issuance of insurance policy is an act of official body and of public officers. Therefore, the insurance policy is a public document which can be proved by producing the certified copy under Section 77 of the Evidence Act. Under Section 2 (5) of the Insurance Act, 1938, the word ‘certified’ in relation to any copy of a document required to be furnished by or on behalf of the insurer, means certified by a principal officer of such insurer, to be a true copy.
12. In this view of the matter, the petitioner insurance company intended to place on record the true copy of the insurance policy, it was admissible in evidence under Section 74 read with Section 77 of the Indian Evidence Act without any formal proof. If insured, i.e., owner of the vehicle disputes the correctness of such true copy, it is for him to produce the original which is supposed to be in his custody only. For taking this view, this Court has taken support from the judgment of Full Bench of Punjab and Haryana High Court in United India Insurance Co. Ltd. v. Kamla Rani 1997 ACJ 1081 (P&H), whereby the decisions in Malwa Bus Service (P) Ltd. v. Amrit Kaur 1988 ACJ 190 (P&H) and Oriental Fire & Genl. Ins. Co. Ltd. v. Chandrawali 1989 ACJ 419 (P&H), were overruled.
13. The Motor Accidents Claims Tribunal has rightly relied upon the judgment of the Apex Court in Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), wherein it is held that onus is on the insurance company to substantiate its contention that the driver had no driving licence or any of the conditions of the insurance policy was breached, but in the later judgment in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), insurance company was permitted to place on record the photocopy of the policy in the Apex Court to which the respondent did not have any objection. In this context it was observed in para 9 that:
Before parting with the case, we consider it necessary to refer to the attitude often adopted by the insurance companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be overemphasised.
14. So far the observations of the Motor Accidents Claims Tribunal in respect of notice under Order 12, Rule 8, Civil Procedure Code to the owners and driver of the vehicle for producing the driving licence and insurance policy are concerned, these are not called for in the facts and circumstances of this case, as discussed herein-above. No doubt in view of Rule 20 of the Rules of 1960, the provisions of Order 12, Civil Procedure Code are not applicable, but since the original insurance policy and the driving licence were within the possession and power of the owners and driver of the vehicle, there was no harm if they were given notice to produce the same which they should have produced in the normal course, though adverse inference may not be drawn against them for not producing the same. If the Tribunal is to hold summary inquiry, and strict procedure in Civil Procedure Code except as provided under the rules and the Evidence Act is not applicable, it will not be fair to restrain the petitioner insurance company to place the copy of insurance policy on record.
15. The result of above discussion is that this revision petition is allowed and the impugned order is set aside to the extent of closing the evidence of the petitioner insurance company and the Motor Accidents Claims Tribunal is directed to permit the petitioner insurance company to produce its evidence. Since the accident has taken place on 22.4.98, in order to expedite the trial of the claim petition, the Motor Accidents Claims Tribunal may give one opportunity to the petitioner company for producing its evidence at its own responsibility. Since respondent No. 1 is not represented by any counsel, notice may be given to him by the Motor Accidents Claims Tribunal for his presence. The records may be sent to the Motor Accidents Claims Tribunal, Shimla and the parties may appear before him on 10.12.2001.