F.A.O.NO.565 OF 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO.565 OF 2006 Date of decision:27th September, 2010 M/s Oriental Insurance Co. Ltd., Sector17, Chandigarh, through its Asstt. Manager. .......Appellant Versus Radha Rani Taneja and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. V.Chaudhari, Advocate, for the appellant. None for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is in appeal, challenging the liability on the ground that the driver of the Insured's vehicle who was driving the vehicle was wrongly shown as Chanderkesh Gupta as respondent No. 2 when the charge sheet showed that the vehicle was driven by a person named Tarun Kumar son of Chand Kumar. The Criminal Court Ahlmad also brought the record to Court that showed that the criminal case had been registered and pending only against Tarun Kumar the first respondent who is the insured and who is the registered owner gave evidence to the effect that he had transferred F.A.O.NO.565 OF 2006 2 the vehicle on 17.09.2001 to one Chanderkesh Gupta who was arrayed as a second respondent. 2. In the course of the trial, it transpired that Chanderkesh Gupta had died and the court observed that the case cannot been procedure against a dead person. However, the Tribunal did not seek to reconcile the fact that the driver shown in the petition was not merely the driver against whom criminal proceedings were pending. If there was yet another person who was the driver, although not necessary to have been made as a party, the Tribunal ought to have made an attempt to give appropriate evidence to explain the discrepancy. The grievance of the Insurance Company is that without having any particulars of driving licence they could not assert whether the said Tarun Kumar had a licence or not. The situation was not as difficult as what the counsel for the insurer makes it appear. 3. Section 134 of the Motor Vehicles Act empowers an insurer to demand the particulars of the driving licence and the particulars of the insurance. The right of the insurer to demand of the insured to produce the particulars could always be enforced and if in the course of trial the contention was that the registered owner had transferred the vehicle, it would still not relieve the duty of the insurer to make the investigation and produce proof that the driver did not have a valid driving licence. There was evidence to the effect that the registered owner had transferred the vehicle to another person. The insurer must have pursued either with the purchaser or if there was F.A.O.NO.565 OF 2006 3 information that the purchaser had died it must have still secured information from the case registered before the criminal court as to the details of the said person Tarun Kumar against whom the case had been registered and if only the insurer had pursued to a logical end and elicited before the Court that such a person called Tarun Kumar did not have a valid driving licence, then it would be possible to state that the insurer had discharged the burden of proof. Without such positive evidence, it will be futile to urge that the insurer had difficulties in securing such information. 4. The award of the Tribunal casting the liability on the insurer by the fact that the vehicle had been insured and the registered owner of the vehicle had also been made as a party, cannot be faulted. The appeal is dismissed. [K.KANNAN] JUDGE 27th September, 2010 Shivani Kaushik