IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2148 of 2003 (O&M) Date of decision:23.09.2010 National Insurance Company Limited ....Appellant versus Ravinder Kumar and others ...Respondents II. FAO No.2149 of 2003 (O&M) National Insurance Company Limited ....Appellant versus Smt. Charanjit Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Vivek Singal, 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 is in appeal challenging liability on the ground that the driver did not have a valid driving licence. It appears that the Insurance Company had moved an application before the Tribunal seeking for direction for producing the driving licence, but the Tribunal did not pass the order on the same. The counsel for the driver FAO No.2148 of 2003(O&M) - 2 - and the owner made a statement in Court that the driver did not have a valid driving licence since it had been seized by the Maharashtra Police. If the driver could not produce a document and it had been seized by the police, it ought to produce the details of such seizure. The Tribunal could not have merely allowed the statement of the counsel to prevail without the driver himself taking the witness stand and making a statement on oath that the licence had been seized by the police. It should only be taken that the driver did not have a valid driving licence at the relevant time and the Insurance Company could not have been left without affording to it a right of recovery from the owner. 2. It is recurrent theme that the applications are filed before the Tribunal for production and they are left without passing orders or orders are passed to the effect that such direction cannot be given. In this case, the Tribunal has held that it cannot give any such direction. It is wrong for a Tribunal not to give such direction, for possession of driving licence is an essential requisite for a person to drive a motor vehicle. If the owner entrusts a vehicle to a driver, who is not duly licensed, he commits a breach of terms of the policy and such breach is one of the permissible defences under Section 149 of the MV Act. Even the Motor Vehicles Act provides through Section 134(c), a duty of a driver in case of accident to give information in writing to the insurer the details of the driving licence. Even the Civil Procedure Code empowers the Court to pass appropriate order for production of documents under Order 11 Rule 14 CPC. Even if the Court refuses to pass order or fails to pass orders, the insurer is not left without a remedy. The easiest procedure is to FAO No.2148 of 2003(O&M) - 3 - resort Order 11 Rule 16 to cause a notice to produce the document from the owner or the driver. The form of such notice is prescribed in Form-7 and Appendix-C of the CPC. It should never be a matter of complaint by any party that a Court had not passed an order for production. On the other hand, the party shall resort to the notice to produce procedure prescribed under Order 11 Rule 16 and invoke the adverse inference in all cases where notice is not complied with and no valid justification is offered for its non-production. 3. Even in the absence of such an attempt by the insurer to cause the production of the document by serving notice to the driver or the owner, I would still held that the driver did not have a driving licence by the only fact that a statement by the counsel that the driving licence was not available because it had been seized by the police, ought not to have been accepted, with no proof adduced by the driver or the owner that there had been a seizure of the document. 4. The award of the Tribunal which are, under the circumstances, modified and the liability shall be only to satisfy the claim of the claimants and it shall have a right of recovery against the insured. 5. The appeals are allowed on the above terms. (K.KANNAN) JUDGE 23.09.2010 sanjeev