PANWAR, J. - (1.) THESE eight appeals are directed against the common judgment and award dated 30. 03. 2001 passed by the learned Motor Accident Claims Tribunal, Pali (in short, referred to hereinafter as `the Tribunal') whereby the Tribunal has awarded compensation to the claimant-respondents against respondents Bhima Mehra and Chandubha, owner and driver respectively as also against the appellant The New India Assurance Company Ltd. (in short, referred to hereinafter as `the insurance company' ). As all these cases arose out of one incident and relevant facts and questions of law being, therefore, common the Tribunal consolidated them and decided the claim cases by a common judgment impugned. Hence, these appeals are also disposed of by this common judgment.
(2.) BRIEFLY stated, the facts of these cases to the extent they are relevant and necessary for the decision of the appeals are that: On 17. 06. 1993 at about 04. 00 p. m. an accident took place near Electricity Board Office, Gundoj (Distt. Pali) in which jeep bearing No. RST 1607 driven by deceased Sarvan Singh was hit by a tanker-truck bearing No. GJ-12-/t-5985. As a result of this accident, jeep driver sarvan Singh, Laxman singh, Rajveer Singh, Shanker Singh and Prem Kanwar (all occupants of the jeep) sustained severe injuries and succumbed to the same instantaneously and Bhanwar Kanwar, Gajendra Singh and Sardar Singh who were also occupants of the jeep sustained various injuries on their person. The respective claimant legal representatives of the deceased persons as well as the injured filed claim petitions claiming compensation against the driver, owner and the insurer of the said truck. I have heard learned counsel for the parties and carefully gone through the judgment and award impugned as also the record of the Tribunal. The only point argued by learned counsel for the appellant in these appeals is that the Tribunal fell in error in holding the appellant insurance company liable for payment of compensation awarded to the respective claimants in the claim cases. It has been contended by learned counsel for the appellant that the driver of the truck involved in the accident was holding a fake and forged driving licence and, therefore, the appellant insurance company cannot be held liable to indemnify the insured. He also contended that the insured committed a breach of the terms and conditions of the insurance policy by allowing a person to drive the vehicle involved in the accident who did not possess a valid driving licence. As against this, learned counsel for the claimant-respondents argued that the insurance company failed to establish before the Tribunal that the driver of the offending truck was not holding a valid driving licence. On the pleadings of the insurance company, the Tribunal framed issue No. 5 which reads as under: D;k chek ikwfylh Dh 'krksz Ds myya?ku esa okgu pykus tkus ls vizkfkhz la[;k 3 chek Deiuh eqvkotk vnk;xh Ds fy, mrrjnk;h ughs gs\** The burDen to prove this issue was squarely placeD on the shoulDer of the appellant insurance company. ADmitteDly, the insurance company has not proDuceD any witness or eviDence to prove this issue. A letter issueD by the Regional Transport Officer, Bhuj DateD 30. 12. 2000 was proDuceD. But, no witness was examineD from the office of the Regional Transport Officer, Bhuj anD as such the allegeD letter coulD not be saiD to be proveD in accorDance with law. The saiD letter allegeD to have been issueD by the RTO, Bhuj was not even tenDereD in eviDence. It cannot be regarDeD as a public Document issueD in exercise of legal powers or in performance of legal Duties. Neither the R. T. O. , Bhuj nor any official from his office was examineD to prove this Document. Not only this, the insurance company has not examineD any witness to establish that the licence of the Driver of the offenDing truck was a fake or forgeD licence. Nothing has been brought on recorD to show that the R. T. O. , Bhuj haD carefully gone through each anD every entry. The letter DateD 30. 12. 2000 issueD by the RTO, Bhuj cannot be termeD as public Document unDer Section 35 of the InDian EviDence act because the statement containeD therein woulD remain hearsay unless such person who has written appears before the Tribunal to prove it in accorDance with law. Thus, the letter DateD 30. 12. 2000 cannot be termeD to be sufficient to prove the issue. In Rukmani & Ors. vs. New InDia Assurance Co. LtD. & Ors. (1), the Hon'ble Supreme Court helD as unDer: ``eviDence of Inspector of Police who investigateD the acciDent stateD that the Driver DiD not proDuce the licence is not sufficient to Discharge the burDen which was cst on the Insurance Company. It DiD not summon the Driver of the vehicle. No recorD from the RoaD Transport Authority has also been proDuceD. In these circumstances, the Insurance Company has not DischargeD the burDen cast upon it unDer Section 96 (2) (b) (ii) of the Motor Vehicles act, 1939 (corresponDing Section 149 (2) of the Act. ''
(3.) IN United INdia INsurance Company Ltd. vs. Bachan Singh & Ors. (2), this Court has held that a certificate issued by the Regional Transport Officer is not a public document issued in exercise of legal powers. The decision of the Single Bench was affirmed in D. B. Civil Spl. Appeal No. 16/1999, decided on 1. 7. 1999 This Court, in New India Assurance Co. Ltd. vs. Abdula @ Patla Abdula & Ors. (4), while dealing with similar situation has held that the burden to prove that the driver of the offending vehicle was not holding a driving licence was to be discharged by the Insurance Company. Neither any official of the DTO was produced nor any affidavit of the officer concerned was filed regarding validity thereto. The document in question therein was, therefore, not accepted. Under the circumstances, it was held that the Insurance Company has failed to prove that the driver of the offending truck was not possessing valid driving licence. Hon'ble Supreme Court in Sohan Lal Passi vs. P. Sesh Reddy & Ors. (5) propounded as under: ``while interpreting the contract of insurance, the tribunals and courts have to be conscious of the fact that right to representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of sub-section (1) of Section 96 of the Act. '' ;