FAO No.1783 of 2005 (O&M) 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No.1783 of 2005 (O&M) Date of Decision: 14.07.2010 Harvinder and another ...Appellants Versus Smt. Sanju Devi and others .....Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr.Ashwani Arora, Advocate for the appellants. Mr. Sandeep Suri, Advocate for respondent No.3. ..... K. Kannan, J. (Oral) 1. The Insurance Company has been exonerated from liability to indemnify the insured owner and, hence the appeal is by the insured. 2. The contention by the insurer before the Tribunal was that the driver of the offending vehicle did not have valid driving licence before the Court. The Tribunal had brought the register pertaining to Sr. No.3664 and also examined the witness. The name against Sr. No.3664 did not contain the name of the driver and therefore attempt of the insurer was to say that the licence was fake. In the cross- examination of the Clerk of the Registering Authority, it was alleged that below Sr. No.3664 for Sr. No.3663, there had been pasting containing the same details about the name of the person who was insured. It was elicited that the photographs of all drivers had not been pasted in the same page. It was further elicited in the cross-examination FAO No.1783 of 2005 (O&M) 2 that the same register contained the names of even two drivers against a single entry. Attempt in the cross- examination by the owner was, therefore, to show that the register contained several omissions and alterations, and documents was not worthy of acceptance to point out the basis of entries contained therein that licence issued was fake. 3. The Tribunal had discarded these discrepancies in the register and averments of the witness that driver did not prove the true driving licence. In this case, the original driving licence had been produced and marked as R-1. In the matter of proof relating to the fake character of licence, it could be inferred only by the entries contained in the register, the burden of proof which is firmly at the insurer could not be said to be discharged if the entries contain several alternations and corrections. 4. It must be again noticed that this was the case where claim was made under Section 163-A, where the duty of compensation was on strict liability norms. Even the decision of the Supreme Court rendered in the case of National Insurance Company Vs. Sawaran Singh and others 2004 (3) SCC 297, the Court set out at least two instances where the owner would be entitled to indemnity even if the licence was fake and the insurer could be still made liable. One in the case, where the accident was without reference to any negligence, such as when there was a mechanical failure another exception could be in a situation of ‘act of God’ where the fake nature or otherwise of the licensee could be irrelevant. The second situation is when the owner was under the bonafide belief that the FAO No.1783 of 2005 (O&M) 3 driving licence checked up was genuine. It is another way of saying that under a normal tort-law principle, the cause of action is the negligent act and breach of duty to the person who is injured or deceased. The Insurance Company covers the risk only for such negligence. There are two sections under the Motor Vehicles Act, which exclude the necessity for having to prove negligence. One in a situation, where the liability is to compensate the workman and the employer shall be liable even for negligent act of the driver that results in his own death. Another situation is under strict liability norm, where there is no necessity to prove negligence. While under tort-law, the insurer would be liable to cover the risk to a third and even in the absence of proof of such negligence of the driver under Section 163-A. In this situation, the proof of negligence of the driver becomes irrelevant. The upshot of this logic, therefore, is that in a claim by a third party against the insurer, its defence that the driver did not have a valid driving licence will make no difference. It is not to clear from the evidence that the licence was fake. If, there was a prevarication about the genuineness of the document, I am inclined to lean in favour of the claimant and insurer to secure the compensation indemnified by the insurer. In these circumstances, the award of the Tribunal is modified in so far as it excludes the liability of the insurer. The appeal of the owner and driver is allowed. (K.KANNAN) JUDGE 14.07.2010 sharmila