FAO NO. 2581 OF 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO NO. 2581 OF 1998 Date of decision: 1st July, 2010 New India Assurance Company Limited ..........Appellant Versus Smt. Suresh Devi and others .........Respondents Before: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Raj Kumar Bishamboo, Advocate for the appellant. None for the respondents. 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 appeal is against the award directing compensation prepared by the insurer by the Commissioner for Workmens' Compensation. The point urged in the appeal is the workman did not have a valid license and the insurer could not have been made liable for the compensation. 2. The liability of the Insurance Co. in a case of a fake license or a renewal of a license which was a fake one have been considered by the Hon'ble Supreme Court in several cases and the decisions in National Insurance Co. v. Swaran Singh (2004) 3 SCC 297 and United Indian Insurance v. FAO NO. 2581 OF 1998 2 Divinder Singh (2007) 8 SCC 342 are instructive. In the later judgment, it has been held that a renewal of a fake driving license is no license at all and hence the insurer shall not be liable. 3. Before Commissioner evidence was led in to effect that the particular license No. J-969/82 in the name of Jagir Singh had not been issued by the office on 25.12.1982 and a person by name Rajinder Prashad, Office of the Licensing Authority Dehradun was examined. He had further stated that the license was verified at Dehradun and found to be fake. There was no evidence available to explain the truth of the driving license. The owner of the vehicle which was being driven by the deceased did not choose to examine himself to testify the award and vehicle and whether the driving license is valid or not. Consequently, the insured could not have the benefit of indemnify of the policy. 4. The liability of the insurance company is still persisted as not arising by the fact that the case arises under the Workmen's Compensation Act and the workman is not expected to do a thing which is not permitted by law. In my view, the defence is tenable and it is to be noticed that the principle of pay and recover arises by the operation of Section 149(4) proviso and under Section 149(5) M.V.Act as laid down by the Hon'ble Supreme Court in cases National Insurance Co. v Swaran Singh (2004) 3 SCC 297 and New India Assurance Co., Shimla v. Kamla, (2001) 4 SCC 342. 5. A distinction does exit between a claim is defence by the insurer seeking to exclude liability under Motor Vehicles Act FAO NO. 2581 OF 1998 3 and Wormens' Compensation Act. It has been held by the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Mastan (2006) 2 SCC 641 and Guttumukkala Appal Narasimha Raju v. National Insurance Co. (2007) 13 SCC 46 the restricted grounds of defence and the Insurer under Section 149(2) shall not apply to action against the insurer under Workmens' Compensation Act. Consequently, if the driver did not have a valid driving license and the owner or the driver did not give any evidence to explain the evidence adduced by the insurer on the character of license as fake, the insurer is entitled to contend that the insured had committed a breach of policy and claim exclusion of liability. 6. Under the circumstances, the Insurance Company shall not be liable to indemnify the insured. The award of the Workmen's Compensation Commissioner is modified and the appeal is allowed on the above extent. [K.KANNAN] JUDGE 1st July, 2010 Shivani Kaushik