IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 499 of 2010 Date of Decision 17th June ,2011 ________________________________________________________ Masoom Ali ….Appellant Versus Lajja Devi & others ….Respondents. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. Ajay Kumar Sood, Advocate. For Respondent Nos. 1 to 4: Mr. Tarlok Chauhan, Advocate. For Respondent No. 5: Mr. J.S. Bagga, Advocate. For Respondent No.6: Mr. Paras Dogar, Advocate. _____________________________________________________________ Dev Darshan Sud, J (oral) This appeal has been preferred by the appellant herein on a number of grounds. One of the primary grounds urged by the appellant is that the accidented vehicle was insured with the Oriental Insurance Company Limited for which purpose cover note No. HID-737 valid from 21.7.1997 to 20.7.1998 has been filed. It is undisputed on record that accident in question occurred on 21.8.1997. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2. Adverting to the findings of the learned Tribunal on this issue in paragraph 16 of the judgment it has been observed that the Insurance Cover Note/Policy had not been brought on record by the owner. The Court therefore exonerated the Insurance Company from all liability and directed that the compensation be paid by the owner and driver. 3. The law is now well settled. In Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others, AIR 1968 SC 1418 the Supreme Court had the occasion to consider the question as to whether onus is on a party to produce the evidence. Adverting to the decision of the Privy Council the Court holds: “5. ………Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof………” (at p. 1416) The learned Tribunal should have called upon the Insurance Company to disclose as to whether any policy had been taken out or not. It seems that the parties have taken advantage of technicalities of law. 4. In these circumstances, this appeal is remanded to the learned Motor Accident Claims Tribunal which shall direct the parties (including the Insurance Company) to produce on record the insurance policy of the accidented truck; and thereafter apportion the liability. No other evidence save and except the 3 production of insurance policy and apportionment of liability shall be produced by the parties. 5. The claimants have preferred Cross objections. These are also disposed of with the directions that after the decision of the learned Tribunal, after remand, the right of Cross Objectors shall be kept intact and such cross objections/appeal can be preferred again. Appeal stands disposed of. Parties to appear before the learned Motor Accident Claims Tribunal, Mandi on 2nd August, 2011. Record be sent back immediately. June 17th, 2011 (Dev Darshan Sud), ms Judge 4