F.A.O.NO. 2229 OF 1999 and F.A.O.NO. 2230 OF 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 2229 OF 1999 Date of decision:26th August, 2010 The New India Assurance Company Limited .......Appellant Versus Ranjit Kaur and others ........Respondents F.A.O.NO. 2230 OF 1999 The New India Assurance Company Limited .......Appellant Versus Tarlok Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Suman Jain, Advocate, for the appellant. Mr. Dinesh Nagar, Advocate, 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. Both the appeals arise out of the same accident, filed at the instance of the Insurance Company, challenging the liability on the ground that in spite of securing a report through a F.A.O.NO. 2229 OF 1999 and F.A.O.NO. 2230 OF 1999 2 Local Commissioner that the driver did not have a valid driving licence, the owner insured has still been provided with a right of indemnity. 2. At the trial, the Local Commissioner had carried out the inspection of records and taken the statements of the competent officials from the Licencing Authority. Counsel for the owner and driver had notice of the visit but did not avail to themselves the opportunity to cross examine the witnesses on the statement given by the competent officials. The report was ultimately filed by the commissioner and he had also been examined to mark the same. The owner and the driver did not again file any objection to the Commissioner's Report. They had not cross examined the Commissioner to test him on his inference in his report. The Tribunal, however, observed while casting the liability on the insurer that the driver and the owner had not been given sufficient opportunity to cross examine the Official Authority. It is a rather strange way of finding the liability of the insurer. If the counsel for the insured had failed to avail the opportunity in spite of notice by the Local Commissioner, their own negligence cannot constitute a premium for favourable finding. The insurer shall obtain a right of recovery for what was patently a breach of terms of the policy. 3. I reverse the finding and uphold the defence that the driver was not duly licenced and more so, when the driver himself did not give any evidence to contradict the report secured through the Local Commissioner. The liability, however, shall F.A.O.NO. 2229 OF 1999 and F.A.O.NO. 2230 OF 1999 3 still subsist for the insurer to satisfy the claimants. It will have a right of recovery of the same from the insured. The appeal is allowed to the above extent. [K.KANNAN] JUDGE 26th August, 2010 Shivani Kaushik