IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.62 of 1994 (O&M) Date of decision:10.02.2011 Tarlochan Singh ....Appellant versus Kuldip Singh and another ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.L. Batta, Senior Advocate, with Mr. Nikhil Batta, Advocate, for the appellant. None for respondent No.1. Mr. R.C.Kapoor, Advocate, for respondent No.2. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The appeal is at the instance of the owner, who had been burdened with liability for injuries suffered in a motor accident by the driver. The driver contended that he was sitting by the side of the owner and the owner himself was driving the vehicle. The contention of the owner was that he did not have a driving licence and the driver himself was responsible for the accident and that he was not driving the vehicle. The accident had taken place at 11 PM the previous day and a DDR came the next day as a statement recorded from the owner that an FAO No.62 of 1994 (O&M) - 2 - accident had taken place resulting in injuries to his driver. The Tribunal found that the injuries caused to him was by the negligent driving of the vehicle in which the claimant was travelling and granted the compensation and exonerated the insurer on the ground that the owner, who was driving at that time, did not have a valid driving licence. 2. The learned senior counsel appearing for the appellant would contend that a motor mechanic, who was examined, brought through evidence that the vehicle had been damaged on the side where the driver was seated and, therefore, at the time of the accident, the claimant alone must have driven the vehicle. According to the owner/appellant, he was sitting by the side of the driver next to the driving seat and although he also suffered some minor injuries, he was not driving the vehicle and that is how, he survived with minor injuries while the driver had grievous injuries. 3. The case was dealt with on a pure appreciation of fact and on what the materials contained. If the driver had stated that his owner was driving the car, there was simply no reason to set out an untruth unless by making such a statement, he was to gain something. If the claimant himself was driving the vehicle and he had come by injuries by his negligent act of driving, even then the entitlement of the driver cannot be disputed in law since he was a workman required to be covered under the provisions of Workmen's Compensation Act. Untruth in a case is possible only if somebody gains by such untruth. In this case, he gained nothing. He would have been entitled to claim compensation either as a driver or as a mere person accompanying the FAO No.62 of 1994 (O&M) - 3 - owner of the vehicle and driving the vehicle. Even the manner of denial that obtains through the written statement of the owner leaves much to be desired. To categorical assertion found in the claim petition that the claimant was not driving the vehicle but his owner was, there is but an evasive statement towards the end of his pleadings that the claimant, who is the author of the accident must take responsibility for the same. I cannot take this to be even a specific denial to what the claim petition contained. 4. I will hold, under the circumstances, that it was only the appellant, who was driving, and, therefore, the liability cast on the appellant was justified. The learned senior counsel would contend that the burden of proof of the fact in issue that a person, who drove the vehicle, did not have a valid driving licence, must be on the insurer and, in this case, it was not so established. It is the further contention that the decisions of the Hon'ble Supreme Court that provide for a liability to an insurer even in cases where the driver did not have valid driving licence, must have made the insurer liable. 5. The burden of proof on an insurer to establish that there had been a violation of terms of policy which would include a driver not having a valid driving licence would arise in case of disputed questions. If there was an admission by the owner himself, then it is the most relevant piece of evidence. Admission at all times is the best evidence that a party can have against its adversary. I would, therefore, find that the issue of burden of proof falls to secondary status. With the admission coming from the owner himself that he did not have valid FAO No.62 of 1994 (O&M) - 4 - driving licence, even the issue of liability for an insurer for violation of terms of policy has a relevance only in a claim by a third party and for enforcement of the entitlement against the insurer. In an inter se dispute between the insurer and the insured, it is of no consequence, for, we are deciding whether the insured is entitled to indemnity, that surely the owner does not have in a case of violation of terms of policy. 6. The award is confirmed and the appeal is dismissed. (K.KANNAN) JUDGE 10.02.2011 sanjeev