FAO No.914 of 1997 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.914 of 1997 Date of Decision. 20.07.2010 The United India Insurance Company Limited, Jagadhari through its Branch Manager .........Appellant Versus Smt. Jagiro widow of Raghubir and others .......Respondents Present: Mr. Sukhwinder Pal Singh, Advocate for Mr. Amit Rawal, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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. The insurance company is in appeal on two grounds namely one, the driver did not have a valid driving licence and two, the vehicle was a tractor attached to a trolley wherein a marriage party was being carried. The deceased was a pedestrian and the claim was on account of death caused by the tractor hitting a pedestrian causing him death. 2. As regards the plea that the driver did not have a valid driving licence, the driver had originally appeared but later remained ex parte. The insurer sought to secure evidence from the Criminal Court to find that the driving licence had not been seized by the police. This, in my view, is not sufficient to assist the insurer FAO No.914 of 1997 -2- to show that the driver did not have a valid driving licence. Even the fact that the driver remained ex parte would make no difference, for without a demand on the owner-insured or the driver for production of the driving licence, no presumption could arise that the driver did not have a valid driving licence. The burden of proof is always on the insurer and the Tribunal was correct in stating that the insured had not discharged the onus. 3. As regards the contention that the trolley was used for carrying a marriage party and therefore, there had been use of the vehicle for purpose other than that for which it was mentioned, is untenable, for the claim is not at the instance of any person travelling in trolly. The insurer was bound to answer the claim of a third party, who was a representative of a pedestrian, who got killed in the accident. The user of the vehicle must be seen from a subjective point of view of the claimant and not how the insurer perceives it to be. If the user of a motor vehicle has caused the accident to a third party, it is irrelevant that the vehicle carried any marriage party, so long as the member of the marriage party is not the claimant. The insurance company cannot evade liability or deny to the insured indemnity for a death or injury caused for by a negligent driving of the driver of the vehicle insured. 4. There is no merit in the appeal and the appeal is dismissed. (K. KANNAN) JUDGE July 20, 2010 Pankaj*