- (1.) AMITAVA Lala, J. This appeal is arising out of an order dated 13th December, 2007 passed by the Motor Accident Claims Tribunal, Bulandshahr awarding a sum of Rs. 5. 44. 500/- alongwith interest @ 6% per annum from the date of presentation of claim petition till its realisation to be paid to the claimants on account of death of the deceased. The opposite parties i. e. owner and Insurance Company were made liable jointly and severally to pay the awarded amount.
(2.) THIS appeal has been preferred by the Insurance Company on account of quantum of the awarded amount and negligence on the part of the driver/owner and non-availability of driving licence inspite of rejection of its application under Section 170 of the Motor Vehicles Act, 1988, as submitted by the learned Counsel appearing for the appellant. Law is now well settled following the three Judges' Bench Judgment of the Supreme Court reported in AIR 2002 SC 3350, National Insurance Co. Ltd. , Chandigarh v. Nicolletta Rohtagi and others, followed by (2003) 3 SCC 524 :2003 SCC (Cri) 762 : (2003) 1 SCR 567, Sadhana Lodh v. National Insurance Co. Ltd. , and Division Bench judgment of this Court reported in 2007 (4) ADJ 101 (DB): Oriental Insurance Company Limited v. Smt. Manju and others, that the Insurance Company cannot be allowed to prefer an appeal as a matter of course inspite of rejection of application under Section 170 of the Motor Vehicles Act, 1988 (here in after called as "the Act" ). Either the Insurance Company will make an application for revision under Article 227 of the Constitution of India before the High Court challenging such order of rejection or make an application for rectification of the award in the self same proceeding if it appears that it has wrongly or erroneously been fastened with the liability. An appeal can be said to be maintainable by the Insurance Company as a matter of course. So far as the dispute regarding driving licence to attract Section 149 (2) is concerned, it has already been decided under issue No. 2 as follows : "it has been argued by the learned Counsel for the opp. Party No. 2 that driver of Tata 709 HR 6680 was not having valid and effective driving licence at the time of accident, while it has been argued by the learned Counsel for opp. party No. 1 that the driver of Tata 709 No. HR 38a 6680,had a valid and effective driving licence at the time of accident. V. K. Gupta, O. PW. 1 stated on oath that the driver of the Tata 709 No. H. R. 38a 6680 had a valid and effective driving licence at the time of accident. He filed the photocopy of the driving licence. It has been argued by the learned Counsel for the opp. party No. 2 that the photocopy of driving licence is not legible and he could not get it verified. The statement of V. K. Gupta was recorded on 16. 1. 2007 and the learned Counsel for the opp. Party No. 2 had not given any suggestion to V. K. Gupta O. P. W. 1 that the copy of driving licence provided to the learned Counsel for O. P No. 2 is not legible. Moreover, the learned Counsel for the Insurance Company had not dared to give suggestion to V. K. Gupta in this regard. It was the burden of National Insurance Company O. R No. 2 to prove its plea that the driver of Tata 709 No. HR 38a 6680 had no valid and effective driving licence on the date of the accident. Thus, issue No. 2 is decided against the O. P. No. 2 National Insurance Company. "
(3.) AT the time of coming to conclusion on this issue, the Tribunal held that the Insurance Company has not given any suggestion with regard to production of the photocopy of the driving licence produced by the owner, being not legible in nature. It is true to say photocopy of the document is a secondary evidence. It can be accepted by the Court subject to leave on production of original of such document. But the prime duty of the objector is to rebut about its validity. Since there was no rebuttal, the Tribunal has rightly accepted the same in the summary proceeding. The Insurance Company could have rebutted and called upon the witness from the Regional Transport Authority to verify the genuineness of the licence upon comparing with the original record to accept the same as a piece of evidence but when no such rebuttal is made by the Insurance Company, the document was presumed to be genuine for the Tribunal. Failure, if any, cannot be rectified by way of appeal particularly in a situation when the appeal is otherwise not maintainable in view of rejection of application under Section 170 of the Act. In such circumstances, we cannot allow the appeal. Therefore, the same is dismissed at the stage of admission, however, without passing any order as to costs.;