IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.890 of 2009 (O&M) Date of decision : 06.08.2009 Iffco Tokio Ins.Co.Ltd. … Appellant Versus Balbir Singh and others …Respondents CORAM : HON’BLE MR.JUSTICE A.N.JINDAL Present: Mr.N.K.Malhotra, Advocate for the appellant. A.N.Jindal, J. (Oral) CM No.3777-CII of 2009 Application is allowed and the delay of 52 days in filing the appeal is condoned. FAO No.890 of 2009 This appeal preferred by the Insurance Company-respondent No.3 (hereinafter referred to ‘appellant’) is against the award dated 11.09.2008 passed by Motor Accident Claims Tribunal, Gurdaspur whereby claimants/respondents No.1 to 5 were awarded compensation to the tune of Rs.1,50,000/- along with interest at the rate of 6 % per annum against the appellant-company and respondents No.6 and 7. The case of the claimants No.1 to 5 is that Kulwant Singh died in a motor vehicular accident which took place on account of the fault on the part of respondent No.7. Therefore, they being the legal representatives of the deceased are entitled to compensation. The claim petition was contested by all the respondents. Without challenging the negligence of driver (respondent No.7), the appellant has taken the plea that since respondent No.7 was not holding a valid licence at the time of accident, therefore, the appellant could not be held liable. Finding that the parties at variance, the Tribunal framed the following issues in the claim petition:- FAO No.890 of 2009 (O&M) “1. Whether on 4.11.2003 at 05:00 PM in the area of village Chahal Kalan, respondent No.2 drove tractor (without number plate of blue colour Engine No.2005534 Chasis No.2005604) rashly and negligently and thereby caused an accident and in that accident Kulwant Singh had died? OPP. 2. Whether the claimants are legal representatives and were dependent upon the deceased?OPP. 3. Whether the claimants are entitled to compensation? If so how much and from whom? OPR. 4. Whether driver of the offending vehicle was not holding a valid and effective driving license? OPR. 5. Whether petition was filed with the connivance of respondents No.1 and 2? OPR. 6. Relief.” The Tribunal accepted the petition while holding the appellant as well as respondents No.6 and 7 as jointly and severally liable. However, the case of the appellant is that since driver i.e. respondent No.7 was not holding a valid driving licence therefore, the appellant could not be held liable. It has been vehemently contended that the tribunal did not arrive at the right conclusion while holding that the company has failed to shift the onus of issue No.4. Heard. The onus to prove Issue No.4 was upon the Insurance Company. In order to prove this issue, respondents examined RW1 Harwinder Singh, Clerk who brought the summoned record and stated that there is no record of driving license of Biland Raj in his office. On the basis of the said evidence the Tribunal decided the issue in favour of the appellant and respondents No.6 and 7 and against the claimants. As a matter of fact, onus to prove Issue no.4 was upon the respondents, the testimony of the clerk that there is no record in the office 2 FAO No.890 of 2009 (O&M) pertaining to said licence is hardly sufficient to shift the onus by the company. Neither the driver or the owner nor any Insurance official came forward the state that if respondent No.7 was not holding a valid driving license. In order to shift the onus, the appellant could summon the driver to produce his licence which was issued under the signatures of competent authority with appropriate official seal but this vague statement made by Harvinder Singh RW1 is of no consequence and is not sufficient to shift the onus. While examining the case from another angle, the Tribunal has also held all the respondents including driver as well as owner responsible for the payment of compensation, but that was also not suffice, the tribunal should have decided issue No.4 against the appellant. Since no adequate evidence, in order to prove this issue, was led by appellant, therefore, the trial Court fell in error in holding the issue No.4 in favour of the appellant. Resultantly, findings on issue No.4 are reversed and this issue is decided against the appellant. No merits. Dismissed. [ A.N.Jindal ] Judge 06.08.2009 sd 3