D.V. Sehgal, J. - (1.) FOR the purpose of dealing with the questions of law involved herein, it is not necessary to set out the facts in detail. It would suffice to mention that the offending vehicle Matador bearing registration number HRM -1808, which caused the death of Attar Singh was insured with the Oriental Fire and General Insurance Company Limited (for short 'the insurer'). On a claim application made under Section 110 -A of the Motor Vehicles Act, 1939 by the widow and the children of the deceased (for short 'the claimants'), the Motor Accident Claims Tribunal (for short 'the Tribunal') awarded in their favour a sum of Rs. 91,200 as compensation holding that the accident was caused due to the rash and negligent driving of the said vehicle. F.A.O. No. 232 of 1984 has been filed by the claimants who have a grievance that the compensation awarded is inadequate. F.A.O. No. 272 of 1984 is by the insurer which, besides impugning the award of the Tribunal on other grounds, contends that according to the policy of insurance its liability to the payment of compensation is limited to Rs. 50,000, at the stage of the trial of the claim application before the Tribunal, the insurer did not lead any evidence. Its counsel, however, made a statement to the following effect on 20th September, 1983: I produce true copy of insurance policy Ex. R. 1 and close my evidence.
(2.) THE copy of the policy of insurance Ex. R. 1 purports to have been attested as a true copy by the Assistant Divisional Manager of the insurer. It was produced before the Tribunal on 20th March, 1983 when the above statement was made by its counsel. No objection to the above statement by the counsel for the insurer and the copy of the policy of insurance being marked as Ex. R. 1 was taken by the claimants before the Tribunal. Its admissibility as such, however, was disputed by them when the above appeals came up for hearing before S. S. Sodhi, J. They placed reliance on my judgment in M/s Malwa Bus Service (P) Ltd. Moga, District Faridkot, through its Managing Director v. Amrit Kaur and Anr., 1987 (1) P.L.R. 618, wherein I, inter -alia, observed thus - - Respondent No. 1 in the present case took a false plea denying the fact that the bus was insured with it. Thus, once it is proved that this plea is wrong and the bus was in fact insured with Respondent No. 8, it must be held liable to payment of the entire amount of compensation. The learned Counsel for the Respondent No. 8, however, has made two submissions in defence. Firstly, he has submitted that the insurance policy has been brought on the record before the learned Tribunal as exhibit R. 1 and a perusal of the same shows that the liability of Respondent No. 8 was limited to such amount as is necessary to meet with the requirements of the Act. I, however, find that exhibit R. 1 is only a copy of the insurance policy. It was tendered in evidence by the statement of the counsel at the stage of closing the case. Section 64 of, the Indian Evidence Act, 1872, provides that documents must be proved by primary evidence except in the cases mentioned in Section 65. Section 65 ibid lays down that secondary evidence relating to a document may be given of its existence, condition or contents in the case where 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 produce it and when, after the notice mentioned in Section 66, thereof such person does not produce it. Secondly, evidence of a document can also be produced where the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any reason not arising from his own fault or neglect, produce it in reasonable time or, where any of the conditions specified in Section 65 exists. In the present case none of these conditions has been proved. Therefore, copy of the insurance policy exhibit R -l, was not admissible in evidence as conditions of Section 65 of the Indian Evidence Act, 1872, were not met with. The copy of the insurance policy exhibit R -l, therefore, cannot be read in evidence. Reliance by the insurer, on the other hand, was placed on Gopal Das and Anr. v. SH Thdkurji and Ors. : AIR 1943 P.C 83, Dogar Mal and Ors. v. Sunam Ram and Ors. : AIR 1944 Lah. 58, U Po Kin and Anr. v. U So Gale, AIR 1936 Ran. 277 and Umar -ud -din v. Ghulam Mohammad and Anr. : AIR 1935 Lah. 628. In the face of the same, the learned Single Judge was of the view that my observations in M/s Malwa Bus Service's case (supra) required reconsideration. The matter was, therefore, referred to a larger Bench and has thus been placed before us.
(3.) THE matter gives rise to the following questions of law: (1) Whether the policy of insurance could be proved by production of its copy Ex. R -l unless a case was made out for production of secondary evidence within the meaning of Section 65 of the Indian Evidence Act, 1872 (for short 'the Act') ?. (2) Whether marking of the copy of the policy of insurance as Ex. R. 1 amounts to its admission in evidence and the requirement of its proof in accordance with law stands dispensed with ? (3) If the answer to questions Nos. (1) and (2) is in the negative, whether the appellate Court can exclude from consideration Ex. R. 1, when no objection to its admissibility was taken before the Tribunal ?;