F.A.O.NO. 5315 OF 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 5315 OF 2009 Date of decision: 9th July, 2010 M/s Mauria Udhyog Limited .......Appellant Versus Smt. Durgawati Devi and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. R.S.Tacoria, Advocate, for the appellant. Mr. Raj Kumar Bishamboo, Advocate and Mr. K.K.Verma, Advocate, for the respondents . 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not?Yes 3. Whether the judgment should be reported in the Digest? Yes K.Kannan, J.(Oral) 1. The owner is in appeal challenging the award passed by the Tribunal making the insured liable and exonerating the Insurance Company. 2. Before the Tribunal it was stated to be established by the insurer that the driving license which had been seized by the police and some one from the Court marked as P-3 was a fake. The owner on the other hand produced R-2 as a license having been tendered by the driver in his hand and it came on record with reference to the original register of the issuing authority that the driving license had been issued and the original date of issue F.A.O.NO. 5315 OF 2009 2 was on 17.12.2004 and it bore an endorsement for validity for driving from 18.03.2006 to 17.1.2009. This document is marked as R-2. 3. The Tribunal reasoned that when the license produced before the Magistrate's court was found to be fake, the owner in order to escape liability has fabricated another license with authorities and produced Ex. R-2. Doubting the genuineness of judgment R-2, the Tribunal has found that the date of birth of the driver as mentioned in R-3 and R-2 vary and the original could not have been produced by the owner when the driver had left the service. It reasoned that the document ought to have been only with the driver and this document could not therefore, be true. 4. If we take the fundamental premise that the burden of proof to show a particular license produced by the insured is a fabrication shall be always on the insurer, then it must be shown that the authority which is said to have issued R-2 was not issued by the said authority or the original register in the hands of the Licencing Authority did not make any reference to the issue of a license to the driver on 17.1.2004. The genuineness of R-2 could not be inferred by a comparison of a document to R-3 which was already found to be fake. An inference of document not being genuine could be made by comparison only with a genuine document. The comparison cannot therefore, come with a fake document for a decision that R-2 was also fake. It was wholly wrong for the Tribunal to make such a comparison to find when F.A.O.NO. 5315 OF 2009 3 R-2 was also fake. The further reasoning that the original document could not have been with the owner and it should have been with the driver and the document therefore, could not be taken as having come from rightful custody. It may not be a practice out of the ordinary for an employee to secure original licence from employee at the time he is employed. Under the peculiar circumstances when the driver makes an accident and leaves employment in haste, he may not have demanded the return of the license. I do not want to get into realms of conjectures. All that I would observe in that document in the custody of employer inspite of the driver leaving the service ought not to lead to an inference against the genuineness of the license. There should on the other hand be more positive evidence let in by the Insurance Company about the fact that R-2 was also fake and that should have been brought with reference to the original register of the licensing authority. 5. In this case, the owner has given also evidence to the fact that surely they had given a trial to the driver before employment and satisfied to themselves that he knew driving and that they had also secured from him the license at that time. Even in cases where the license is found to be fake the bona fides of inquiry by the owner was found to be relevant in the decision of the Hon'ble Supreme Court in National Insurance Company v. Swaran Singh (2004) 3 SCC 297. The Hon'ble Supreme Court was actually referring to observations in Skandia Insurance Co. Ltd. V. Kokilaben Chandravadan (1987) 2 F.A.O.NO. 5315 OF 2009 4 SCC 654 and the reference to a larger Bench in Sohan Lall Passi case when it found that an insurer cannot be absolved even if the license was found to be fake, if only there was an appropriate enquiry by the insured at the time of conducting services of the driver. The logic for this is not also too far to seek, for the insurer to seek an exclusion of liability, he could do so only if he establishes that the insured has committed a breach of term of the policy and the positive evidence that is necessary by the language employed under Section 149 (2) to protect the interest of third parties who have a solvent insurer to secure the remedy without being stone walled to defeat by clever defences by insurance company. 6. The award passed by the Tribunal casting the liability only on respondent Nos. 1 and 2 is set aside. The Insurance Company on the other hand shall be liable and the appeal is allowed empowering the claimants to secure the award against the Insurance company. Therefore, shall be however, no directions as to costs. [K.KANNAN] JUDGE 9th July, 2010 Shivani Kaushik