F.A.O.NO. 1777 OF 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1777 OF 1993 Date of decision:3rd December, 2010 Mohinder Singh s/o Bhagat Singh resident of C-12, Mohinder Park, Azadpur, G.T.Karnal, Delhi, Owner of truck No. DIL-5131. .......Appellant Versus Smt. Phulli Devi andothers ........Respondents FAO No. 1803 of 1993 Smt. Phulli Devi and another .......Appellants. Versus Dalbir Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Aseem Aggarwal, Advocate, for Owner of the Truck. Mr. R.K.Bishamboo, Advocate, for respondent No. 3-Insurance Company. None for respondent Nos 1, 2 and 4. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No F.A.O.NO. 1777 OF 1993 2 K.Kannan, J.(Oral) 1. Both the appeals are connected and they are taken up together. 2. FAO No. 1777 of 1993 is an appeal by the owner-insured against an award exonerating the Insurance Company on the ground that the driver did not have a valid driving licence. The driving licence has been seized by the police and the copy of the licence was produced from the criminal court file. This licence was impugned by the insurer that it was not issued by the Licencing Authority at Cuttack. The Insurance Company did no more than placing its reliance on the letter purported to have been sent by the Licencing Authority at Cuttack that the licence had not been issued. The original records were not summoned nor was any person connected with the records examined before the Tribunal. A mere letter of communication or a certificate which have no statutory basis can merely afford to an insurer a ground to raise a defence doubting the validity but the insurer shall take upon himself the burden of discharging onus by adducing appropriate evidence to support its defence. The Tribunal ought not to have found that the Insurance Company had fully discharged such onus even in the absence of definite evidence from the Licencing Authority by securing the original register and adducing evidence improve the said contention. 3. Learned counsel appearing for the Insurance Company states that the owner must have filed his statement contending that F.A.O.NO. 1777 OF 1993 3 the driving licence is true and if it is not so stated it cannot be contended that the driving licence was genuine. 4. This is rather a strange argument for the Insurance Company to take for, in this case the owner and the driver have filed written statement and specifically contended that it is the Insurance Company that shall be responsible to satisfy the claim. A plea of right of indemnity is taken by the owner but the insurer still would contend that there had been some violation of the terms of the policy such as allowing the vehicle to be driven by a person without a driving licence, it is the duty of the insurer to cause the production of the licence in the manner contemplated under Section 131 of the Motor Vehicles Act. If the Insurance Company would take a laid-back attitude and proceed with the trial driven by its own belief with a letter of communication from a Licencing Authority that the driver had no lience, the Insurance company is mistaken. It is not definitely a manner of discharging onus which is heavily on the insurer. Learned counsel refers to a decision of this Court in Atul Jain and another vs. Nohar Chand and others (2003) 3 PLR 560 that held that where there was no plea raised by the owner or the driver regarding the validity of the valid licence and where no issue was ever raised, merely because findings as regards driving licence were recorded in collateral proceedings under the Motor Vehicles Act, can not become final so as to bind the insurance company. I can not see this judgment as helping the insurance company in any way for there was a specific F.A.O.NO. 1777 OF 1993 4 issue drafted whether the driving licence was genuine. The Insurance Company was expected to produce such evidence to bring credibility to the letter purported to have been written by the licencing authority to the insurance company. Again, in this case, there is a specific contention by the owner that the insurance company was bound to indemnify the insured and that it was rested on contractual terms. If there is a violation of contract which an insurance company was complaining of then such violation shall be established by the Insurance Company and it can not be merely a matter of inference with no credible materials or an aspect of conjecture. The support to the judgment which the learned counsel for the owner seeks to plead for by reference to the authority in Atul Jain's case(supra) is in my view misplaced. 4. Insurance Company ought to have therefore, been made liable not merely it satisfy the claimants but also extend the indemnity to the owner-insured. The award of the Tribunal denying such entitlement to the claimants as well as to the owner against the Insurance Company is set aside. The Insurance Company shall be liable for satisfying the award arising out of the claim. The appeal by the owner is allowed and the award of the Tribunal is modified in the manner indicated above. It is represented that 50% of the amount already awarded against the owner has been paid by the owner. In the view that I have taken, the owner is entitled to restitution and the same may be claimed against the insurer. F.A.O.NO. 1777 OF 1993 5 5. FAO NO. 1803 of 1993 is an appeal by the claimant seeking for enhancement of the amount granted under the award. There is no representation for the appellant at the time when the matter is called. The appeal is dismissed in default for non-prosecution. [K.KANNAN] JUDGE 3rd December, 2010 Shivani Kaushik