UNITED INDIA INSURANCE COMPANY LIMITED Vs. N KRISHNAMURTHY

JUDGEMENT

(1.) THE appeal has been preferred by the Insurance Company against the Award dated 25.08.1999, wherein a sum of Rs.50, 000/- was awarded to the first respondent for the injuries sustained by him in the accident that had occurred on 09.03.1988. THE appellant insurance Company challenged the claim petition contending that there was no insurance coverage at the time of the accident. In Para-3 of the counter statement, the Insurance company stated that the previous insurance policy of the vehicle expired on 08.03.1988 itself and the subsequent insurance policy was issued on 09.03.1988 from 08.20 A.M. According to the insurance company, the accident took place on 09.03.1988 at 06.20 A.M. From 00.00AM on 09.03.1988 till 08.20AM 09.03.1988 there was no insurance coverage and hence, the company is not liable to pay the amount.

(2.) ON behalf of the claimant before the Tribunal two witnesses P.W.1 & P.W.2 were examined and Exs.A.1 to Ex.A.3 were marked and on behalf of the Insurance Company/appellant one witness R.W1 was examined and Ex.B.1 and Ex.B.2-Policies were marked. ON appreciation of facts and circumstances of the case and the evidence available, the Tribunal came to the conclusion that the accident had occurred due to the negligence on the part of the Driver, who drove the lorry.

(3.) ON the other hand, Mr.V.Lakshmi Narayanan, learned counsel for the first respondent/claimant submitted that the Tribunal rightly found the liability of the insurance company, and Exs.B1 & B2, the Insurance policies, were not properly proved before the Tribunal. According to him, Exs.B1 and B2 are neither primary evidences nor secondary evidences as defined in Sections 63 and 65 of the Indian Evidence Act. According to him, firstly the Original policy was availed with the Owner, who chose not to contest the claim petition. In such circumstances, it is the bounden duty of the insurance company to summon the documents from the owner, and failure of the insurance company to summon the original policy, would make it liable to pay the amount. Secondly, he questioned about the competency of the witness through whom Exs.B1 and Ex.B2 were marked. According to him Exs.B1 and Ex.B2 Policies were not the copies maintained by the insurance company as the original always lies with the owner to whom the insurance coverage is given. If a copy of the original is marked, it can be safely presumed that it is the secondary evidence where as in this case, Exs.B1 and Ex.B2 are the copies made out from the copies maintained by the insurance company. In such a situation, Exs.B1 and Ex.B2 would not satisfy the ingredients given in the secondary evidence as per Indian Evidence Act. He relied upon a Judgment of the Honourable Supreme Court in J.Yashoda -vs- K.Shobha Rani reported in (2007) 5 SCC 730 wherein their Lordships elaborately dealt with the fact that what is meant the Primary evidence and secondary evidence and in Paragraphs 7 and 9 they have held as follows:"7.Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files itself to prove it to, be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.".