F.A.O No. 888 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O No. 888 of 1997 Date of decision: 30th June, 2010 The New India Assurance Company Ltd. .......Appellant Versus Gurcharan Singh and others .......Respondents Before: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Inderjeet Sharma, Advocate,, for the appellant. K.Kannan, J.(Oral) 1. The appeal filed by the Insurance Company seeks for an adjudication on the issue of its liability, when despite the notice by the insurer to the driver and the owner to produce the driving license it was not done, the insurance company could not be made liable. The attempt of the insurance company was to show that the insured had committed a breach of condition in the policy which was permissible offence under Section 149 of the Motor Vehicles Act. The Tribunal rejected the defence of the insurance company on the ground that mere issue of notice to the driver and the owner were not sufficient. A negative fact of the driver not having a license at all could not be proved any more than demand for causing the production of the document and if it is not done an inference ought to be drawn that the F.A.O No. 888 of 1997 2 driver did not have the driving license. The owner himself had not tendered any evidence that he had seen a driving license. It is an admitted case that there was otherwise a valid policy of insurance and the liability of a third party in such a case for the insurance company shall be to pay the award amount and recover the same against the insured in the manner provided under the proviso to Section 149 clause 4 and 149 clause 5, as held by the Hon'ble Supreme Court in the light of the decision of the cases in New India Insurance Company, Shimla Vs. Kamla and others (2001) 4 SCC 342 and in National Insurance Company Limited Vs. Swaran Singh (2004) 3 SCC 279 2. The award of the motor accidents claims tribunal is modified for making the owner-insured liable for the award and for providing a right of recovery for the insurer against the insured. 3. The appeal is allowed to the above extent only. [K.KANNAN] JUDGE 30th June, 2010 Shivani Kaushik