IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1107 of 2003 Date of decision:13.09.2010 National Insurance Company Limited ....Appellant versus Ram Singh Walia and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Jagtar Kureel, Advocate, for Mr. D.P.Gupta, Advocate, for the appellant. Mr. Neeraj Khanna, Advocate, for respondents 1 to 4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The Insurance Company is in appeal challenging liability and negligence. The accident had occurred when the deceased, who was standing on the kacha portion of the road, was run over by the insured's truck. The case had been filed under Section 166 of the Motor Vehicles Act and after the evidence of the witness of the claimants, the claimants have suffered a statement that the case could be converted under Section 163-A. The claimants had contended that the deceased was having an annual income of Rs.45,000/-. This, according to the learned counsel for the insurer, was that a case could not have been decided under Section FAO No.1107 of 2003 - 2 - 163-A since, according to the claimants, the deceased was earning Rs.6,000/-. The Court, however, did not accept such a contention and took the annual income to be only Rs.24,000/-. Having regard to the fact that the Tribunal found the income to be merely Rs.24,000/- which was less than the ceiling prescribed under Section 163-A read with Schedule- II, I do not accept the contention that the claim could not be maintained under Section 163-A. Even otherwise a pedestrian being run over by a truck presents a res ipsa loquitur situation and I would hold the insured's vehicle shall responsible for the accident. 2. It is further contended that the claimants themselves would not competent to prosecute the claim being brothers and sisters. If there were no other legal heirs, the brothers' figure as heirs in class-II and the expression 'legal representative' is broad enough to include legal heir of the deceased. Even otherwise when the Tribunal has found the claimant to be entitled to the sum, the insurer cannot join issues on the entitlement of the brother in an appeal. 3. The learned counsel for the Insurance Company would still contend that at the trial, a notice to produce the driving licence had been made on 25.07.2002 and the driver and the owner being represented through counsel suffered a statement that the driving licence was not available. According to him, an adverse inference ought to have been drawn by non-production of the driving licence, despite a demand. It shall be impossible for an insurer to prove a negative evidence of the driver not having a valid driving licence in any manner different from how it was sought to be done. If on demand for production, the insured FAO No.1107 of 2003 - 3 - or his driver would not be in a position to produce the document, it must only be taken that the driver did not have a valid driving licence. I would hold that the owner had committed a breach of the terms of the policy in entrusting the vehicle to a driver, who was not duly licensed. 4. The liability of the insurer shall therefore be only to satisfy the claimants and secure the return of the amount from the insured. 5. The award of the Tribunal shall stand modified and the appeal is allowed on the above terms. (K.KANNAN) JUDGE 13.09.2010 sanjeev