FAO No. 1002 of 2010 1 FAO No. 1003 of 2010 FAO No. 1004 of 2010 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 1002 of 2010 Date of decision May 11 , 2011 Somvir ....... Appellant Versus Smt. Shanti Devi and others ........Respondents FAO No.1003 of 2010 Somvir ....... Appellant Versus Parkash and others ........Respondents FAO No.1004 of 2010 The Maina Tansport Coop. Society Limited ....... Appellant Versus Smt. Anju and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. S. S. Dinarpur, Advocate for the appellant. Ms. Shamsher Kaur , Advocate for the respondents. **** 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral). FAO No. 1002 of 2010 2 FAO No. 1003 of 2010 FAO No. 1004 of 2010 1. The appeal by the owner is on the ground that the exoneration of liability for the Insurance Company and denying to the owner a right of indemnity was made wrongly assuming the driver's license to be fake. In the cross examination of the driver he denied a suggestion that renewal of the license obtained at the Licensing Authority, Una was a fabrication. The Insurance Company did no more than the alleged verification report to say that the driving license had not been issued or renewed by the Licensing Authority at Una. A mere verification report in a case where the driver had denied that he did not obtain a valid license cannot take the suggestion as legal proof of the alleged fake character of the license. The Tribunal was in error in accepting a verification report without due evidence adduced before the Tribunal by summoning the records from the Licensing Authority. The Insurance Company is in business to pay the claims arising out of the motor accident and also to indemnify the insured. The burden of proof is on the Insurance Company to establish that the driver was not duly licensed and that the evidence has come not through positive evidence of the Insurance Company. Learned counsel for the Insurance Company vehemently contends that the driver was evasive in his case about the driving license while the Insurance Company had given an unrebutted evidence through a verification report. The moment the suggestion to the driver that he had a fake license was denied, the Insurance Company was bound to show that the license was fake to produce appropriate evidence by summoning the original register and examining the official connected with the records. So long as the verification is not statutorily provided, a report on a stand alone basis with no further substantiation cannot be acted upon by the Tribunal. 2. It is further contended by the learned counsel that FAO No. 1002 of 2010 3 FAO No. 1003 of 2010 FAO No. 1004 of 2010 all the claimants were standees in the bus and the bus owner was carrying more passengers than the permitted capacity. Unless the accident itself was shown to have been resultant to over loading, the denial of liability of the Insurance Company cannot arise. Further even if there has been any such over loading, the Supreme Court held in National Insurance Company Ltd. Vs. Anjana Shyam and others AIR 2007 SC 2870 that the compensation shall first be determined and if the claims emanated from more persons than number of persons of sanctioned capacity the amounts shall be proportionately reduced to the sanctioned capacity of the bus. If the claimants themselves are at the instance of the persons who numbered less than the sanctioned capacity of the bus, the Insurance company could not deny the liability to claims from such persons. The defence of the Insurance Company that it cannot be made liable for the injuries suffered by the standees in the bus is rejected. The awards, insofar as that provides the right of recovery for the insurer against the owner is set aside. The liability shall be exclusively on the Insurance Company. 3. All the appeals are allowed. (K. KANNAN) JUDGE May 11 , 2011 archana