FAO NO. 126 OF 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO NO. 126 OF 1996 DECIDED ON 29.6.2010. New India Assurance Co. -----Appellant Vs. Shyam Lal and others -------Respondents CORAM HON'BLE MR. JUSTICE K.KANNAN Present:- Mr.Sanjay Majithia, Advocate for the appellant. Mr. Surinder Singh, Advocate for the respondent. *** K. Kannan, J (Oral) 1. The Insurance company pleads for exclusion of liability on the ground that the surveyor of the Insurance Company inspected the records of the District Transport Officer and gave a report that the licence was fake but in view of well established several decisions of the Supreme Court and in particular the decision in National Insurance Company vs. Swaran Singh and others 2004(3) SCC 297 that the burden of proving the breach of condition of a policy is on the insurer and it cannot be said to be discharged by the only fact that the licence is fake, the question whether the insured had committed a breach that licence is fake without making any inquiry will be essentially one of the facts. Nothing has been elicited. 2. On the other hand in this case, even the original register from the Licensing Authority was not summoned and produced FAO NO. 126 OF 1996 2 before the Court nor was any officer from the Licensing Authority examined. Breach of a condition cannot stand on the sole testimony of the Insurance Company that the licence is fake. The Insurance Company has failed to discharge the onus placed upon it and thus, the award of the Tribunal is perfectly justified and there is no illegality or infirmity therein. 3. Appeal is dismissed. There shall be, however, no order as to the costs. 29.06.2010 ( K.KANNAN ) mamta JUDGE