F.A.O.NO. 3697 OF 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 3697 OF 1999 Date of decision:29th July, 2010 New India Assurance Co. Ltd. .......Appellant Versus Smt. Bina Devi and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Ashwani Talwar, Advocate, for the appellant. Mr. Sandeep Vermani, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The appeal is filed by the Insurance Company pleading that the driver did not have a valid driving licence. In support of its contention, the insurer summoned the records from the Criminal Court and it was elicited through the Ahlmad to the court of ACJM that the copy of the driving licence said to have been issued in the name of the driver Karan Singh had been produced which bore the number 996/MTR/97 dated 12.03.1989 and said to have been issued by the Licensing Authority at Mathura. A clerk from the said authority was also examined as F.A.O.NO. 3697 OF 1999 2 RW-1 who gave evidence to the effect that the particular licence no. which was set out through the evidence of the Ahlmad had been issued in the name of Sanjay Gaur resident of Mathura and had not been issued in the name of Karan Singh. In the cross examination it was elicited that he was not able to make out from the copy of the licence produced in Court what the licence no. was. This the Tribunal found to be sufficient to cast the liability on the insurer and to find that the insurer had not discharged its onus. 2. If there was inability of the witness in the Court to identify the licence no. on its production, it will be dangerous to assume that the driving licence did not have a licencing number at all. There was a particular reference to a licence number and that had been spoken to by the Ahlmad to the court of ACJM. In the cross examination it was not suggested that this particular licence number did not belong to the driver and that he had any other licence number. It was a case where the evidence had been placed by an insurer and it was imperative that the driver must have come before Court to deny that the particular reference to the licence number was not his or he had any other licence number which details had not been produced by the insurer. Non examination of the driver is significant in a case where the insured was represented through counsel. 3. The burden of proof had been adequately discharged and the finding rendered by the Tribunal that the insurer had not proved its defence is not correct and the award excluding the F.A.O.NO. 3697 OF 1999 3 liability on the insured is set aside. 4. The liability of the insurer shall only be to satisfy the claimants with a right to obtain recovery against the owner of the vehicle. The appeal is allowed to the above extent. [K.KANNAN] JUDGE 29th July, 2010 Shivani Kaushik