Decided on July 29,1997

Sauji Respondents


M.SRINIVASAN,C.J. - (1.)THESE appeals are by the insurance company. The claim of the insurance company is that its liability is limited to Rs. 15,000 per passenger in the event of one accident. Though this plea is taken in the reply filed to the claim petition, the appellant has not chosen to examine any of its officials as witness. It has only produced in the court below a document which is marked as RW 2/A. It was tendered by the counsel for the appellant herein but not spoken to by any witness. The court ought not to have taken the document filed as exhibit when it was not spoken to by any witness. Just because a document was tendered by the counsel it cannot be marked as exhibit.
(2.)SECONDLY , the document is incomplete. It is only one page of the risk note issued by the appellant company which has been produced as document. Such a mutilated document cannot be marked in evidence even if a witness produces it.
Thirdly, it is only a xerox copy of the risk note. According to the learned Counsel for the appellant the original was with the owner of the vehicle. Then some evidence should have been adduced before the court to satisfy the requirements of Section 65 of the Evidence Act to produce a copy which is a secondary evidence and mark it as exhibit. Nothing has been done in this case and the lower court is in error in marking this document as exhibit.

(3.)THE appellant has chosen to file CMP Nos. 530, 520, 418, 506, and 519 of 1994 in this Court for admitting in additional evidence a document produced along with the petitions. Along with that application a xerox copy of the insurance policy issued to the owner of the vehicle is said to have been produced. In the application the only reason given by the appellant for non production of this document in the trial court is that the document was handed over to the counsel for the appellant who in his wisdom did not think it proper to produce the same on record and therefore the document was not marked as exhibit. We are unable to accept this explanation for the reason that there is no supporting affidavit by the counsel who appeared for the appellant in the lower court to prove that it was handed over to him before the trial court. It is not as if the appellant is a rustic illiterate. The appellant is an insurance company dealing with many accident cases. It was certainly open to the appellant to have insisted upon the document being marked by the counsel as an exhibit as it is an important document on which the appellant had to rely in support of its claim that the liability is limited. There is also no explanation as to why no official of the appellant has gone to the witness box to speak in support of its claim and produce the insurance policy and mark it as exhibit.

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