FAO No.1759 of 2000 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1759 of 2000 (O&M) Date of Decision. 27.07.2010 The New India Assurance Company Limited, SCO No.36-37, Sector 17- A, Chandigarh through its Regional Manager ...Appellant Versus Smt. Sukhvinder Kaur widow of Shri Rajwant Singh son of Shri Ranjit Singh and others .......Respondents Present: Mr. L.M Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. None 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 challenges the award casting a liability on it on the ground that the driver and the owner were appearing through a power of attorney and at the conclusion of trial, it was known that they were colluding with the petitioner and therefore, an application was filed seeking for permission under Section 170 of the Motor Vehicles Act. The Tribunal rejected the petition and found that the insurer had not adduced proof that the driver did not have a valid driving licence and proceeded to pass the award making the insurer liable. 2. The learned counsel states that the insurance company had secured a report that the driving licence was not genuine but it had no occasion to tender any evidence with reference to the same by FAO No.1759 of 2000 (O&M) -2- virtue of the fact that when an application was moved, the Tribunal rejected it as belated. Since the Tribunal had also refused permission to the insurance company to contest the case on all grounds, it had filed an application before this Court. 3. The rejection by the Tribunal for a request had sufficient reasons. The owner was represented through a power of attorney and the insurance company was taking up a plea that the signatures found in the power of attorney were not theirs and they sought for summoning the owner and the driver. This was perceived by the Tribunal as a needless exercise and in my view, correctly held to be so. There is no requirement for the driver and the owner to personally appear and if there was a power of attorney, who was given out as a lawful agent for the owner and the driver, the insurer cannot join issue on the validity of the document of power of attorney. If the insurer had called upon the power to attorney to produce the driving licence and it was not done, it should have been perfectly tenable for the insurer to ask the Court to make an adverse inference and treat its own onus of proof as having been discharged. The insurance company was, on the other hand, attempting to do things which only paved way for prolonging the trial by seeking permission to summon the driver and the owner and also seeking for permission to defend the case on all grounds after the evidence of the witnesses had been treated as closed. The insurer that went through the trial with right of cross-examination of the claimants' witnesses ought to know whether it has the power to cross-examine the claimant on the issue of negligence and quantum or not. If it ever has a suspicion that the insured and the claimants are FAO No.1759 of 2000 (O&M) -3- colluding, it ought to hve moved that application before the commencement of the trial and before the first question was asked to the claimant or his witness. There may be situations where the insured may appear and the insurer may believe that the insured will defend the case effectively. If there is ever an inkling at the trial that the insured had colluded or deliberately stayed away from the trial, then it should be possible at least for the insurer at that time to move an application. It cannot undertake a cross-examination of the witnesses of the claimants without moving an application and when it is posted for arguments, move an application for reopening the case to contest the case on all grounds. The provision under Section 170 is to secure a fair trial and to ensure that there is no mock claim by a willing insured to suffer a damage to the benefit of a claimant and make the insurer ultimately liable. If an element of collusion is not brought out at the time when it ought to have registered to the insurer, then it will not avail to the insurer after suffering an award to claim that it shall have a right to contest the case on all grounds at the time of preferring an appeal. The attempt of the insurer to seek for such permission came at a time when it was definitely not within reasonable time and the Tribunal was justified in rejecting the plea and proceeding to make the insurer liable for what it failed to prove. I sustain the award and dismiss the appeal consequently. (K. KANNAN) JUDGE July 27, 2010 Pankaj*