FAO No. 93 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 93 of 2010 (O&M) Date of decision: 14.01.2010 Bajaj Allianz General Insurance Company Limited ....Appellant Versus Mahesh Kumar and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Subhash Goyal, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) CM No. 678-CII of 2010 Allowed. The applicant is exempted from filing the certified copy of the Award dated 8.9.2009. CM No. 679-CII of 2010 For the reasons stated in the application, CM is allowed and the delay of 14 days in filing the appeal is condoned. FAO No. 93 of 2010 and CM No. 680-CII of 2010 Appellant-Insurance Company by way of this appeal has challenged the award dated 8.9.2009 passed by the learned Motor Accident Claims Tribunal, Rewari, vide which the application moved by the claimant for grant of compensation under Section 166 of the Motor Vehicles Act, 1988, stands allowed. The appellant-Insurance Company has disputed its liability to indemnify the owner primarily on the ground that the driver of the offending vehicle did not have a valid driving licence. FAO No. 93 of 2010 (O&M) -2- Issue No.3, which reads as under, was framed by the learned Motor Accident Claims Tribunal: - “Whether the respondent No.1 was not having a valid and effective driving licence at the time of accident in question? OPR4.” However, in support of the plea, appellant failed to discharge the onus to prove, that the driver did not have a valid licence. Otherwise also, there was nothing on record to show that the owner was negligent in appointing the driver, as admittedly he had a licence, the authenticity of which was disputed. Though the Insurance Company placed on record the report but it was not got proved by examining the witness, from the Licensing Authority, Imphal, East Manipur. Learned Motor Accident Claims Tribunal, therefore, decided issue No.3 against the appellant and did not give the right or recovery to the Insurance Company. Learned counsel for the appellant has challenged the finding recorded by the learned Tribunal on the ground, that once the licence was not verified, and report was submitted in absence of evidence to the contrary, the issue should have been decided in favour of the appellant and right of recovery given to the Insurance Company. This contention of the learned counsel for the appellant cannot be accepted, as it was for the Insurance Company to prove the report, in absence thereof it was inadmissible in evidence. Once the appellant had failed to discharge the onus, the learned Tribunal was justified in deciding issue No.3 against the appellant. This view finds support from the judgment of this Court in FAO No. 93 of 2010 (O&M) -3- Jasbir Kaur Vs. Om Parkash and others, 2007(1) R.C.R. (Civil) 347, wherein this Court was pleased to lay down as under: - “4. I have given my holistic view to the aforesaid rival contentions raised on behalf of the parties and have also gone through the above cited rulings and find no force in the aforesaid plea raised on behalf of respondent No.4, i.e. National Insurance Company Limited, inasmuch as the report Ex. R-3, relied upon by the Insurer, cannot be said to have been proved in the eyes of law. In fact, in order to prove the said report, it was incumbent upon the Insurer to summon the concerned official, with relevant records, from the office of the Licensing Authority, Hyderabad. Simply, by placing and marking of the exhibit on the file does not dispense with the proof of the document. In this regard, paragraph 7 of the judgment rendered in Santosh and others' case (supra) is relevant, which is reproduced below: - “7. It is not being disputed that during the proceedings before the Tribunal no officer or other employee of the Licensing Authority, Delhi had been examined as a witness. Only a certificate Exh. R-4 from the Licensing Authority had been produced in the form of a report. It is a settled principle of law that mere marking of the exhibit does not dispense with the proof of the document. The Supreme Court in the case of Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, had considered the said question and held that mere marking of an exhibit does not dispense with the proof of a document....” Thus, in view of the observations made by their Lordships and in the given facts and circumstances of this case, the finding of the learned Tribunal pertaining to absolving of the respondent-National Insurance Company Limited, from making payment of the amount of compensation FAO No. 93 of 2010 (O&M) -4- awarded in this case, is hereby set-aside.” No ground, therefore, is made out to interfere with the award passed by the learned Motor Accident Claims Tribunal. No merit. Dismissed. (Vinod K. Sharma) Judge January 14, 2010 R.S.