IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1474 of 2001 Date of decision:26.08.2010 Oriental Insurance Company Limited ....Appellant versus Param Pavitter Singh Pahwa and others ...Respondents II. FAO No.1475 of 2001 Oriental Insurance Company Limited ....Appellant versus M/s Gogi Cables 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 ? 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. In both the cases, the Insurance Company is in appeal challenging the liability on the ground that the driver did not have a valid driving licence and the licence was shown to have been a fake. The driver examined himself as RW2 some time before June, 2000 and the FAO No.1474 of 2001 - 2 - Insurance Company had a Local Commissioner appointed to gather evidence before the Licensing Authority, Mathura. The report was filed and evidence was adduced that the particular licence which was produced by the driver RW2 was fake. After the evidence is given by the driver, the owner examined himself as RW3 and gave evidence to the effect that the driver had produced to him a driving licence which was said to have been issued at Faridabad and he produced the same which was marked as R2. IN the cross-examination, it was sought to be elicited that the owner knew about the particular licence copy of which was produced before the Court by the driver and he had not taken any steps to contradict him that the driver had given yet another licence to him. The evidence given by the owner that after the driver was removed from service after the accident, he turned enemical towards him and therefore he was tendering a false evidence. The learned counsel for the insurer would point out that the owner and the driver had engaged the same counsel and had entered a common defence. The plea of enmity was sorted out for the first time by the owner only when a new document R2 was produced before him. 2. The learned counsel for the insurer would therefore contend that R2 produced by the owner was fake and the driving licence produced by the driver having been proved to be a fake, the owner is not entitled to any indemnity. I do not feel constrained to accept the argument made by the learned counsel for the insurer for the only reason that a burden which is cast on the insurer regarding the breach of terms of the policy could never be said to have been taken as discharged when FAO No.1474 of 2001 - 3 - the particular evidence given by the owner is not effectively refuted. Such refutation cannot come by mere suggestions in cross-examination of the owner. If the owner of the vehicle produces document R2 and states that was the copy of the driving licence which the driver had given to him, it cannot be an argument for the insurer to state that R2 was not confronted to the driver when he gave evidence before the Tribunal. It can be only seen that there was literally a conflict between the driver and the owner in the manner of evidence that was let in. The Court must have either requested the same counsel who appearing for both of them to elect to appear only for one of them or the Advocate appearing for both of them must have recused himself for appearance for anyone of them. There was impropriety at the trial in allowing the same lawyer to appear for both especially when the evidence had the effect of blaming each other. In an unenviable situation in which the owner placed of entrusting the matter to the very same lawyer whom the driver also had engaged, the person who introduced evidence through the lawyer and produced a driving licence could not have been permitted to cross- examine also on behalf of the owner. The rules of evidence itself do not permit the cross-examine of one's own witness. If this conundrum would have in any way been resolved by a firm attempt to get at the truth, the insurer must have taken upon himself the responsibility of showing even the document produced by the owner was fake and actually the owner himself had fabricated this document as suggested by the insurer to the owner. I have already observed that a suggestion is merely an expression of a particular line of defence and it is not the proof in itself. FAO No.1474 of 2001 - 4 - The Insurance Company that made suggestion that the driving licence produced by the owner was fake to adduce proof for the same. 3. The insurer had not discharged the onus and, therefore, I would find that the award passed against the insurer and providing for a right of indemnity to the insured is justified. The award is confirmed and the appeal is dismissed. (K.KANNAN) JUDGE 26.08.2010 sanjeev