F.A.O.NO. 1539 OF 2003 and 1 F.A.O.NO. 1540 OF 2003 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1539 OF 2003 Date of decision: 15th July, 2010 New India Assurance Co. Ltd. .......Appellant Versus Kashmir Singh and others ........Respondents F.A.O.NO. 1540 OF 2003 New India Assurance Co. Ltd. .......Appellant Versus Pargat Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Paul S.Saini, Advocate for the appellant. Mr. Vineet Sharma, Advocate for the respondent. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not?Yes 3. Whether the judgment should be reported in the Digest? Yes K.Kannan, J.(Oral) 1. Both the appeals arise out of the same accident and filed by the Insurance Company challenging the award passed against it inspite of the contention that the driving licence produced by the insured on behalf of the driver was not genuine. F.A.O.NO. 1539 OF 2003 and 2 F.A.O.NO. 1540 OF 2003 In support of its contention the Insurance Company had tendered the evidence of the clerk from the Transport Authority, Amritsar who spoke with reference to the register that Licence No. 3476 dated 8.11.1988 had been shown to have been issued in the name of Rajinder Singh son of Puran Singh and not in the name of the driver who was alleged to have driven the vehicle. In the cross examination it was elicited that the papers were loose; some photographs were not pasted; the first and the last pages of the register did not contain the signature of the Licencing Authority; the document was not paginated. She accepted the suggestion that the papers could be changed and that the entries in the register had not been written by her. All this was taken by the Tribunal as not proving the insurer's contention that the driver did not have a valid driving licence. 2. That cannot be at dispute in law that the burden of proof that owner had committed a breach of terms of the policy and if it was contention of the insurer that the particular driving licence had not been issued in the name of the driver, the burden was only on the insurer. In this case, that cannot be at dispute that the driving licence register had been produced. It came from lawful custody of the DTO who was bound to retain the custody. The person that spoke was a person who was working in the DTO office. It is the strength of the cross examination to elicit that there was possibility of change of the loose sheets and it was also elicited that papers could have been changed. In my view the standard of proof which is necessary F.A.O.NO. 1539 OF 2003 and 3 F.A.O.NO. 1540 OF 2003 cannot be more extracting then what is possible in a given case. If the insurer causes the production of the register from the person who ought to keep the register and makes available the persons or the witnesses of that office who can give evidence on the basis of the register, if it shall still be persisted that the document cannot be true there ought to be duty either from the owner or the driver to give evidence in support of the suggestion that the papers could have been changed. It will be asking for the impossible that the insurer could have manipulated the records in any manner. It is easy to raise a doubt but the question is if there is any other mode of proof possible. The document was not in the custody of the insurer. The insurer cannot be responsible if the papers are loose or the papers are not paginated. The Insurer can only be responsible for what he holds in custody. 3. If the owner has a laid-back attitude to the course of trial and would not deny expressly by making available the evidence of the driver, in my view the suggestion to the witness raising a bogey of possibility of manipulations of the documents cannot advance the cause for himself. I am of the view that the Tribunal was in error in placing a degree of proof on the insurer that was unrealistic. The Tribunal ought to have held that the insurer had discharged the burden and the onus was on the owner or the driver to discredit the value of the entry in the register. The owner ought not to have been, provided with the right of indemnity in the manner done in the Tribunal. 4. The liability of the insurer shall subsist for satisfying F.A.O.NO. 1539 OF 2003 and 4 F.A.O.NO. 1540 OF 2003 the claim of the claimants. The insurer however, shall be entitled to obtain the right of recovery against the owner for what has been found to be a case of violation of terms of policy. Both the appeals are allowed to the above extent only. [K.KANNAN] JUDGE 15th July, 2010 Shivani Kaushik