FAO No.3159 of 2011 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3159 of 2011 (O&M) Date of Decision. 21.04.2011 Oriental Insurance Co. Ltd., SCO No.109-111, Sector 17-D, Chandigarh through its Dy. Manager ......Appellant Versus Subhash Chand son of Debu Ram and others .....Respondents Present: Mr. V. Chaudhari, Advocate for the appellant. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 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 appeal is by the insurance company stating that the driver did not have a valid driving licence. The Tribunal rejected the contention on the ground that the burden of proof was on the insurance company, which was not discharged. The contention of the insurance company was that the driver and owner did not appear and therefore, they did not know whether the driver had a valid driving licence or not. The contention of the insurance company was that the insurance company cannot be expected to discharge a negative burden of proof. 2. I find the contention to be wholly untenable. The case was filed on 23.11.2007 and decided on 29.01.2011. The accident had taken place on 30.01.2007. For all the time, when the case was pending from the time of its institution and when it was served on the insurance FAO No.3159 of 2011 (O&M) -2- company, the insurance company did no more than merely filed an application under Section 170 of the Motor Vehicles Act and took no steps that it was capable of taking to call upon the owner and driver to produce the details of the insurance policy. The insurance company that takes all care to secure its business by selling policies and collecting premium, cannot take a led back attitude when a claim emanates from a third party from an act done by the insured's driver. The law casts duty on the driver of a motor cycle to produce the licence for examination on demand and the insurance company is also at liberty at all times to secure the information from the owner. Section 133 of the Motor Vehicles Act casts a duty on the owner of the motor cycle to give information on demand by police officer authorized on its behalf. The insurance company cannot say that it does not have an excess to the insured and the absence from contest at the Tribunal by the owner and driver must take as justification for insurance company also to believe that the insured cannot be contacted at all. 3. The learned counsel refers me to a decision of the Allahabad High Court in National Insurance Company Limited Vs.Brij Pal Singh and another 2003 ACJ 1274 to say that holding of driving licence is especially within the knowledge of the owner and driver and therefore, the burden of proof that the driver had a driving licence is upon the owner of the vehicle and not upon the insurance company. I am afraid, I cannot find any lesson through the said judgment and I would take the view that without the insurance company making an effort to call upon the insured to produce the driving licence of the driver, it cannot plead that the driver did not have a valid driving licence. The burden never FAO No.3159 of 2011 (O&M) -3- shifts while an onus may. The burden of proof that there had been a violation of terms of policy is only on the insurance company at all times. If the insurance company had called upon the owner to produce the driving licence of his driver and it was not produced, it may be possible to draw an adverse inference. The onus may shift then to the driver and the insured to say that there existed a driving licence. If no effort on its part had been made, it will be futile to argue that it was not possible for the insurance company to gather information whether the driver had a valid driving licence or not. 4. I reject the contention of the insurance company and dismiss the appeal. (K. KANNAN) JUDGE April 21, 2011 Pankaj*