Punna Sujatha Vs. Smt. Musham Sakkubai and ors. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - vidyasagar, learned counsel for the petitioner submits that the 1strespondent failed to prove that the third child of the petitioner was born after expiry of one year from the date of commencement of the act. edayillam kunhambur nair air1982ker232 ,the kerala high court took the view that though the document can be said to have been proved, when it filed the probative value of the entries thereof would depend upon host of circumstances, as well as the other evidence, which is on the record, in a given case.l. narasimha reddy, j.1. elections to the gram panchayat, bollepally, were held on 02-08-2006. the petitioner and the 1st respondent filed nominations for being elected as members from second ward. the petitioner was declared elected as ward member. the 1st respondent raised an objection to the nomination of the petitioner, on the ground that she (petitioner) had given birth to a third child, after expiry of one year from the date of commencement of the a.p. panchayat raj act, 1994 (for short 'the act'). the objection was overruled and the nomination was accepted. in the elections, the petitioner secured 103 votes, and the 1st respondent 86votes.2. the 1st respondent filed o.p. no. 4 of 2006, challenging the election of the petitioner as ward member. the main ground urged on behalf of the 1strespondent was that the petitioner incurred disqualification under section 19(3) of the act. it was alleged that the third child of the petitioner was born on 12-06-1995.3. the petitioner filed a counter, opposing the allegations of the 1st respondent. she stated that the third child was born on 09-01-1995, that is, before expiry of one year from the date of commencement of the act. the tribunal allowed the o.p., through its order dated 10-12-2008.hence this writ petition.4. sri p.v. vidyasagar, learned counsel for the petitioner submits that the 1strespondent failed to prove that the third child of the petitioner was born after expiry of one year from the date of commencement of the act. he contends that exs. a-2 and a-3 filed by the petitioner are inconsistent with each other, and none of them were proved in accordance with the procedure prescribed by law. he submits that the conclusion arrived at by the tribunal is not supported by evidence on record.5. sri m. venkatram reddy, learned counsel for the 1st respondent, on the other hand, submits that ex. a-3 is a certified copy of the births and deaths register, maintained for the village, and by filing the same, his client proved that the date of birth of the third child of the petitioner is 12-06-1995, and in that view of the matter, no exception can betaken to the order in the o.p.6. the only ground on which the election of the petitioner as a ward member was challenged was, that she incurred disqualification under section 19(3) of the act. the said provision attaches disqualification to a person, either from contesting for, or continuing in, an elected office, if he or she had more children, than two, as on the date on which, the act came into force. the proviso to sub-section (3) of section 19 prevents disqualification from being attached, in case the third child was born before expiry of one year from the date of commencement of the act. the act came into force on 30-05-1994. in her election petition, the 1st respondent pleaded that the third child of the petitioner, by name, shiva ram krishna, was born on 12-06-1995. if this is established, the petitioner stands disqualified. in her counter, the petitioner pleaded that her third child was born on 09-01-1995.7. to prove her case, the 1st respondent examined herself as pw-1, and no other witnesses were examined. she filed exs.a-1 to a-3. ex. a-1 is the nomination deposit receipt. ex. a-2 is the certificate issued by the zilla parishad high school, bollepally, showing the dates of birth of the three children of the petitioner. ex. a-3 is the certified copy from the register of births and deaths. the petitioner deposed as rw-1. she has also examined rw-2, a midwife, on whose information ex. a-3 is said to have been prepared.8. independently, the petitioner filed ex. b-1, age certificate of her third child, and ex. b-2, date of birth certificate of the said child, issued by the medical officer.9. the burden to prove, that the petitioner incurred disqualification under section 19(3) of the act, squarely rested upon the 1st respondent. that is evident from the mere reading of sections 101 - 103 of the indian evidence act. the 1strespondent did make some effort to prove that the third child of the petitioner was born subsequent to 30-05-1995. it has already been mentioned that in he relection petition, the 1st respondent stated that the third child of the petitioner was born on 12-06-1995, whereas the petitioner stated that the date of birth of her third child is 09-01-1995. ex. a-1 is hardly of any use in the matter. it is only the nomination receipt dated 17-07-2006.ex.a-2 is a certificate issued by the head master of zilla parishad high school. normally, the educational institutions issue date of birth certificates, as per their registers. ex. a-2 is not such a certificate. it was issued by the head master of the school, on a direction issued by the district deputy educational officer, nalgonda. it pertains to the three children of sri punna sathaiah. the dates of births are mentioned as under:1. punna chaitanya 01-05-19912. punna soujanaya 25-03-19933. punna shiva ram krishna 12-06-199510. it was mentioned that the certificates were issued as per the relevant records. ex. a-2 was marked through pw-1. however, she did not mention as to how she procured it. the petitioner did not cross-examine the 1st respondent, in relation to ex. a-2. ex. a-3 is the certified copy of the registrar of births and deaths of the year 1995, maintained for the village. the entry relates to a male child of punna sathaiah, and punna sujatha. the date of birth is mentioned as 20-10-1995.this is at variance, from the one, in ex. a-2. the information about the birth of the child is said to have been furnished by the midwife pandula lingamma, and the entry in this regard is made in column no. 20. the midwife was examined as rw-2. her evidence is to the effect that she did not attend to the delivery of the third child of the petitioner. in the cross-examination of pw-1, i.e., the 1st respondent herein, it was suggested that her husband managed to get the certificate from the office of the mandal revenue officer.11. learned counsel for the 1st respondent placed reliance upon number of decided cases, in support of his contention that the certified copy of an entry in the register of births and deaths needs to be taken as a proof of the contents thereof. there is no quarrel with the proposition that the contents of a document can be proved by filing the original thereof. section 61 of the evidence act is clear on this aspect. further under section 91 of that act, oral evidence is excluded, vis--vis the contents of a document. though a document can be said to have been proved by filing the original or certified copy thereof, judicial opinion is divided as to the manner in which the contents of the documents are to be evaluated by the courts.12. in karicherry charadan nair v. edayillam kunhambur nair : air1982ker232 , the kerala high court took the view that though the document can be said to have been proved, when it filed the probative value of the entries thereof would depend upon host of circumstances, as well as the other evidence, which is on the record, in a given case.13. in t. khimchand v. y. satyam : air1971sc1865 the supreme court observed that, mere marking of an exhibit does not dispense with the proof of document.14. it has already been pointed out that the date of birth of the third child of the petitioner, as mentioned in ex. a-2, is different from the one, in ex. a-3. the 1st respondent was not sure as to which of the exhibits, to rely upon. equally uncertain was the tribunal. there would have been some justification, to record a finding, in this regard, in case the date of birth in exs. a-2 and a-3 is one and the same. notwithstanding the manifest difference; and the evidence of rw-2, that she did not attend to the delivery of the third child of the petitioner, the tribunal recorded a finding to the following effect:para 15: in view of the fact that respondent no. 1 gave birth to her third child one year after commencement of the act, she has suffered with disqualification under section 19(3) of the act and her election to be set aside. hence, he relection as ward member to the 2nd ward grampanchayat, bollepally is to be set aside. there is no dispute that except the petitioner and the respondent no. 1, no other contestants are there in the election and petitioner has secured 194votes and respondent no. 1 secured 103 votes and invalid polls are (5). in view of the said circumstances, as no other contestant is there, petitioner is to be declared as elected candidate to the post of 2nd ward member of grampanchayath, bollepally by setting aside the election of respondent no. 1.15. though this court would be slow to interfere with the findings recorded by the tribunals, and though it cannot act as an appellate authority, it cannot approve of findings, which are perverse in nature, and contrary to record. when exs. a-2 and a-3 are so inconsistent on an important aspect, the tribunal was under obligation to take note of the same, and to choose one of them, as constituting the basis. if both the documents are taken into account, a definite finding becomes impossible. on her part, the petitioner adduced some evidence, to prove that the date of birth of her third child is 09-01-1995. the correctness of that would have become relevant, if only a consistent picture emerged, on the basis of the evidence adduced on behalf of the 1st respondent. two documents, viz., exs. a-2 and a-3, which contained different dates of birth of the same child, cannot constitute the basis for a finding. therefore, the conclusion arrived at by the tribunal is perverse.16. the writ petition is allowed, and the order in o.p. no. 4 of 2006 is set aside. there shall be no order as to costs.