FAO No.5240 of 2006 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5240 of 2006 Date of Decision. 24.09.2010 National Insurance Company Limited, Urban Estate, Hisar through Sh. Gopal Krishan, Administrative Officer, National Insurance Company Ltd., Regional Office-II, SCO No.337-340, Sector 35-B, Chandigarh ......Appellant Versus Smt. Shashi Kiran wife of Laxmi Kant Rao and others .....Respondents 2. FAO No.5241 of 2006 3. C.R. No.6942 of 2006 National Insurance Company Limited, Urban Estate, Hisar through Sh. Gopal Krishan, Administrative Officer, National Insurance Company Ltd., Regional Office-II, SCO No.337-340, Sector 35-B, Chandigarh ......Appellant Versus Laxmi Kant aged about 45 years son of Shri Parma Nand and others .....Respondents Present: Mr. Suman Jain, Advocate for the appellant. Mr. Tara Chand Dhanwal, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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 on appeal in all these cases contending that the driver did not have a valid driving licence. It was proved before the Tribunal by appropriate evidence secured through appointing a local commissioner that the licence had not been issued in the name of the driver. The Tribunal, however, still FAO No.5240 of 2006 -2- held that the insurance company had not proved that the owner knew that it was fake. It was rather a strange method of casting the burden, for when the insurance company had given evidence giving the detail about the licence shown to have been possessed by the driver was not genuine and the driver and the owner had participated in the proceedings, the onus will shift on the driver- owner to show that the evidence produced by the insurer was not reliable or the owner had been under any bona fide belief that in spite of his exercise of due diligence and verifying the licence, he had not come to know that the licence was fake. A negative fact cannot be established by the insurer and I find it ought to have been positively asserted by the owner himself that he did not know that the licence was fake. 2. The award of the Tribunal is, under the circumstances, set aside and it shall be taken that the insurer shall be liabile only to satisfy the claim of the third party-claimants and the insurer shall have a right of recovery against the insured. 3. The civil revision is filed in view of the fact that the award was less than Rs.10,000/- but addresses the same issue of the entitlement of the insurer to claim a recovery on the basis that the licence was fake. Consistent with the finding rendered in FAO Nos.5240 & 5241 of 2006, the civil revision is also allowed to the extent providing for a right of recovery against the insured. (K. KANNAN) JUDGE September 24, 2010 Pankaj*