PANWAR, J. - (1.) THIS appeal is directed against the award dated 18. 3. 1995 passed by Motor Accident Claims Tribunal, Bhilwara (hereinafter referred to as `the Tribunal') in Claim Case No. 906/1992, whereby the Tribunal awarded a sum of Rs. 24,000/- as compensation in favour of claimant-respondent No. 1 (hereinafter referred to as `the claimant') and against respondents No. 2 and 3, owner and driver of the vehicle and appellant- the New India Assurance Company Ltd. (hereinafter referred to as `the insurer' ). The appellant insurer was held liable to indemnify the insured owner of the vehicle. Being aggrieved by the award impugned, the appellant insurer has filed this appeal.
(2.) BRIEFLY stated facts of the case, which are necessary for decision of this appeal are that claimant Sharafat, aged about 5 years, sustained injuries due to an accident caused by truck No. RRE 3066 on 17 5. 1992, at about 5. 00 pm. , while he was walking by the side of the road. The said vehicle was driven rashly and negligently by its driver Rameshwar respondent No. 3, owned by Hazarilal respondent No. 2 and was insured with the appellant insurer on the relevant date. Due to the said accident, the claimant sustained crushed injuries on his right leg. The Tribunal on appreciation of the material placed before it, reached to the conclusion that the said accident was caused due to rash and negligent driving of the truck by its driver respondent No. 3, which resulted into injuries to the claimant. While deciding the issue of quantum of compensation, the Tribunal determined and awarded a sum of Re. 24,000/- as compensation in favour of the claimant. While deciding issue No. 2, the Tribunal held that the insurer is liable for payment of compensation. I have heard learned counsel for the parties. , Perused the award Impugned and record of the case. Learned counsel for the appellant contended that the Tribunal fell in error in awarding compensation in favour of the claimant. He further contended that the driving licence of the driver of the vehicle respondent No. 3 was issued on 19. 5. 1992 whereas the said accident took place on 17. 5. 1992 and on the date of the accident the driver of the vehicle was not holding a valid driving licence and, therefore, the appellant insurer is not liable for the compensation. So far as quantum of compensation is concerned, the insurer cannot be permitted to challenge it in appeal as the same is beyond the defences available to it under sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 (for short `the Act' ). The claimant sustained injuries on his leg and took treatment for considerable long period. He has incurred expenses on treatment and suffered permanent disablement. Taking into account this fact, the compensation awarded by the Tribunal cannot be said to be on higher side, rather it is on lower side. More so, the appellant can maintain an appeal only on the grounds provided in sub-sec. (2) of Sec. 149 of the Act. So far as contention of the learned counsel for the appellant. with regard to the driving licence of the driver of the said vehicle is concerned, the Tribunal framed issue No. 2 on the pleadings of the parties, which reads as under: " Was the driver of the said vehicle not holding a valid driving licence at the time of this accident ? If yes, what is its effect?"
(3.) THE burden to prove this issue is on the appellant insurer. THE appellant insurer produced NAW-1, Chandmal. He was appointed by the appellant insurer to investigate the matter from the office of District Transport Officer, Bhilwara, (for short "d. T. O. ") about the driving licence of the driver of the said vehicle. He produced a certificate issued by D. T. O. Exhibit A-2 and Enquiry Report, Exhibit,a-3. He stated that from the Enquiry Report, it was revealed that the driving licence stands In the name of Rameshwarlal, which was issued on 19. 5. 92 by the D. T. O. for light motor vehicles. No driving licence was issued in the name of Rameshwarlal prior to 19. 5. 1992. This witness stated that he has not seen record of the D. T. O. , Bhilwara except the licence book. Neither the record of the D. T. O. , Bhilwara or of any other Regional Transport Officer was produced before the Tribunal nor it was proved. So far as the certificate Exhibit A-2 alleged to have been issued by the D. T. O. is concerned, learned counsel for the appellant has not brought to my notice any rule which authorises the D. T. O. to issue such type of certificate. Therefore, the certificate Exhibit A-2 cannot be regarded as a public document issued in exercise of legal powers or in performance of legal duties. Neither the D. T. O. nor any official from the office of D. T. O. was examined before the Tribunal to prove Exhibit A-2. Nothing has been brought on record to show that the D. T. O. had carefully gone through each and every entry of the register relating to issue of driving licence. NAW-1 stated that he saw the licence book. But nothing has been pointed out as to which part of the licence book, he saw. Thus, the Enquiry Report filed by NAW-1 could not be regarded as a document issued in accordance with law. In Rukmani and Others V. New India Assurance Co. and Others (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 cast 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 correspondence Section 149 (2) of the Act. " This Court in United India Insurance Company Ltd. vs. Bachan Singh and Ore. (2) has also taken a similar view that a certificate issued by the Regional Transport Officer is not a public document issued In exercise of legal powers. This Single Bench decision was affirmed by a Division Bench of this Court in United India Insurance Company vs. Bachhan singh ;