IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.422 of 2001 Date of decision:26.08.2010 Oriental Insurance Company Limited ....Appellant versus Smt. Surinder Pal Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ashwani Talwar, Advocate, for the appellant. None for the respondents. ---- 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 Insurance Company sought to contend in appeal that the driver did not have a valid driving licence and it had produced proof of the fact that the driving licence had been issued on 24.06.1999 to be valid upto 23.06.2002 while the accident had taken place on a date earlier to the date of the issue. It appears also that the Insurance Company had filed a petition for an order to admit or deny the fact of the validity of the licence and it was denied in response by the driver that the he did not have a valid driving licence. In spite of such denial, there was no further attempt made than production of Ex. R-1 which showed FAO No.422 of 2001 - 2 - that the licence had been issued on 24.06.1999. A plea whether there had been an earlier issue of licence as contended by the driver was not examined at all. It is a known position that the breach of terms of the policy has to be proved only by the insurer and that attempt must have been done by clear-cut evidence, the moment the driver refused to admit that he did not have a valid driving licence prior to the accident. 2. Even apart from the failure of the appellant to prove the same relating to the want of valid driving licence, the Tribunal had observed in para 18 while answering issue No.3 relating to driving licence that the issue was not pressed at the time of arguments and, therefore, the issue had been decided against the Insurance Company. The learned counsel now contends that the Insurance Company never waived its right on the issue of driving licence. If it were so contended now, it should have been again only a matter for an application to review before the Tribunal itself that the Court ought not to have decided the issue against the Insurance Company and the observation that the Insurance Company had not pressed a contest on the said issue, was incorrect. What is stated in the judgment as a matter of fact or concession cannot be reopened at the Appellate Court. The appropriate correction should be made only by resort to review before the very same Court. 3. I find no scope for even remitting the matter for the Tribunal for considering the plea whether the Insurance Company had given such concession or not. Even a liberty for granting such concession may come to nothing for a review cannot be moved under such a circumstance FAO No.422 of 2001 - 3 - before yet another Judge who may not know whether the insurer gave a concession attributed to him or not. Even on the point of exigency, I do not think it shall be appropriate to afford to the insurer a right to apply to the Tribunal for review of its finding. 4. The appeal is dismissed. (K.KANNAN) JUDGE 26.08.2010 sanjeev