FAO No.4713 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4713 of 2009 (O&M) Date of decision: October 12, 2009. ICICI Lombard General Insurance Co. ...Petitioner(s) v. Jaswinder Kaur & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mrs. Vandana Malhotra, Advocate, for the appellant. Rakesh Kumar Garg, J. (Oral): CM No.4713 of 2009 For the reasons mentioned in the application, delay of 27 days in filing the appeal is condoned. FAO No.4713 of 2009 This is insurer's appeal challenging the impugned award whereby the appellant has been held liable jointly and severally to pay the amount of compensation as determined by the Tribunal. The brief facts giving rise to this appeal are that, one Harbans Singh died due to injuries sustained by him in a motor vehicular accident occurred due to the rash and negligent driving of respondent No.4. The claim petition filed by the claimants was contested by the appellant by taking a specific plea that the respondent No.4 was not holding a valid and effective driving licence to drive the vehicle in question. The grievance of the appellant before this Court is that despite the fact that copy of the driving licence which had already expired on the date of accident was produced on record, the same has been rejected by the Tribunal and, thus, the Tribunal has erred at law while making the appellant FAO No.4713 of 2009 -: 2 :- liable to pay the compensation as it is well settled law that insurance company is not liable to indemnify the insured if there is a breach of specific condition of the insurance policy. I have heard learned counsel for the appellant, however, I find no merit in this appeal. On the basis of the pleadings of the parties, specific issues were framed and onus to prove issue No.3, i.e., “whether the driver of the three wheeler namely Balwinder Singh was having valid and effective driving licence at the time of accident?”, was upon the appellant. To discharge the aforesaid onus, the appellant has placed on record a photocopy of the driving licence (Ex.R2) of Balwinder Singh. No other evidence has been placed on record to prove the contents of the aforesaid Ex.R2. The Tribunal considering the arguments raised by the appellant and held that the photocopy of the driving licence, i.e., Ex.R2 cannot be read into evidence as the same was not proved in accordance with law. The relevant observations of the Tribunal in this regard are as under:- “Onus to prove this issue was upon the respondent/insurance company. However, they have placed on record Ex.R2 which is photocopy of the driving licence of Balwinder Singh, respondent No.1. Learned counsel for the insurance company has relied heavily on Ex.R2 to argue that the said document shows that the driver of the offending vehicle was not holding a valid driving licence at the time of accident. A perusal of Ex.R2 would depict that the same is photocopy. The said copy has not been placed on record by respondent No.1 himself along with his written statement. The insurance company has exhibited the said document as Ex.R2 while leading its evidence. However, respondent No.2 has failed to establish the authentic source from where the said photocopy has been procured by them. It may not be out of place to mention here that Ex.R2 is not exhibited in accordance with law, especially when the driver of the vehicle has not produced the same. Furthermore, the respondent insurance company has moved an application for directing the driver and FAO No.4713 of 2009 -: 3 :- owner of the offending vehicle to placed on record the driving licence and other documents on the ground that the same are not in possession of the insurance company and are in possession of the driver and owner of the vehicle. Respondents No.1 & 2 filed reply to the said application by categorically taking a plea that the documents demanded including driving licence are not available with them as they are on the police file. The insurance compnay has not taken any pain to summon the judicial file of the criminal trial being faced by the driver as is clear from Ex.PD, nor have they led any evidence to summon the police file in this case, so as to prove the driving licence of respondent No.1. Further more, during the course of arguments, learned counsel for the insurance company bfailed to show as to from where the said photocopy of driving licence is obtained and produced by them. The said document, i.e., driving licence cannot be said to be in the proper custody of respondent No.3/insruance company and as such the onus lies heavily upon them to establish the factum of their being in custody of the photocopy of the driving licence of respondent No.1. Thus, I have no hesitation to hold that Ex.R2 which is photocopy of the driving licence of respondent No.1 cannot be read into evidence. My aforesaid view is strengthened from the pronouncement of Hon'ble Punjab and Haryana High Court reported as 1997(3) PLR 844 titled as Surjan Ram vs. Anchal Singh, where it has been held that the onus to prove the validity of the dirivng licence is heavily upon the insurance company. Thus, I am of the considered view that the respondent/insurance company has failed to discharge his onus and this issue is accordingly decided against it.” In support of her case, learned counsel appearing on behalf of the appellant has relied upon judgments of this Court in Central Distillery & Chemical Works Ltd., New Delhi v. Gurbharatjeet Singh, AIR 1993 (Pb) 25 and Lajpat Rai v. Smt. Vidya Wati, 1997(3) PLR 126 and has FAO No.4713 of 2009 -: 4 :- contended that once a document is exhibited without any objection raised on behalf of the defendants, the same cannot be discarded. The argument of the learned counsel for the appellant is without any merit. There is no dispute with regard to the judgments referred to by the learned counsel for the appellant. However, the aforesaid judgments do not help the appellant in any manner. In Central Distillery's case (supra), the document was exhibited without any objection raised on behalf of the defendants but the same was proved by way of secondary evidence. Similarly, in Lajpat Rai's case (supra), the exhibited document was more than 30 years old to which all necessary presumptions were attached under Section 90 of the Evidence Act whereas in the present case, except a photocopy Ex.R2 on the record, the appellant has not produced any other evidence to prove the aforesaid document. Admissibility of a document and mode of proof of a document are two distinct terms. Simply because a document has been exhibited on record, will not ipso facto dispense with the need of proving the contents of the said document in accordance with law. It is not the case of the appellant that the aforesaid document is per se admissible. Even otherwise, the insurance company had moved an application before the Tribunal directing the driver and owner of the offending vehicle to place on record the driving licence and other documents on the ground that the same are not in possession of the insurance company and are in possession of the driver and owner of the vehicle. The driver and owner of the vehicle had taken a categoric stand that the requisite documents, including the driving licnece, are on the police file. However, the insurance company failed to summon the judicial file of the criminal trial despite the fact that onus to prove this issue was upon it. Furthermore, the appellant failed to show as to from where the photocopy Ex.R2 was obtained and produced by them. As the appellant failed to establish the authentic source from where the said photocopy was procured by them, the said document cannot be said to be in the proper custody of the appellant. This Court in the case of Surjan Ram v. Anchal Singh, 1997 (3) PLR 844 has held that the onus to prove the validity of the driving FAO No.4713 of 2009 -: 5 :- licence is heavily upon the insurance company. The appellant has failed to discharge the same. Thus, I find no fault in the findings recorded by the Tribunal. No merit. Dismissed. October 12, 2009. [ Rakesh Kumar Garg ] kadyan Judge Refer to reporter