FAO No.3723 of 2011 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3723 of 2011 (O&M) Date of Decision. 25.05.2011 M/s The New India Assurance Company Limited ......Appellant Versus Sudershan son of Shri Kartar Singh and others .....Respondents Present: Ms. Vandanaa Malhotra, Advocate for the appellant. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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) 1. Delay in filing the appeal is condoned. 2. The contention of the insurance company is on three grounds; (i) the vehicle did not have a fitness certificate; (ii) there was no route permit for the vehicle and (iii) the driving licence produced by the driver was established to be fake and therefore, the award passed without providing for a right of recovery against the owner/driver was not justified. 3. As regards the contention that there was no fitness certificate, the failure to have a vehicle tested for fitness may result in other consequences but it will not avail to the insurance company to plead that for want of fitness certificate, the liability of the insurance company to indemnify or to satisfy the claim, would be lost. Such a FAO No.3723 of 2011 (O&M) -2- contention is untenable and it is rejected. 4. As regards the contention that there was no route permit, the attempt of the insurance company was to state that in the criminal court record the route permit was not even present. Unless the insurance company had demanded of the owner to produce the route permit, which was not produced, a question of drawing an adverse inference cannot arise. Again an issue of violation of terms of policy is invariably an issue that would cast the burden of proof on the insurer and the insurance company must have taken appropriate steps to summon the records relating to the vehicle with the particular registration proof from the concerned DTO and show that there was no route permit for the vehicle. The burden of proof never shifts and this burden has not been discharged in this case by the insurance company. 5. The further contention is that the licence, which had been seized by the police, was verified by the insurance company and shown to be a fake and yet another licence, which was produced before the Court although not verified, the driver could not have yet another licence since as per Section 6 of the Motor Vehicles Act. A person cannot apply for a driving licence for the second time when there was licence in currency. The issue of two valid driving licences could be a matter, which shall not be possible under Section 6 of the Motor Vehicles Act. If a person was having a licence which was shown to be not genuine and there was yet another licence,which the driver produced, there could be no scope for making an inference that yet another licence was also fake. Section 6 of the Motor Vehicles Act is only a bar for a person applying for licence twice over when there was currency of FAO No.3723 of 2011 (O&M) -3- one licence. In a case where the licence is shown to be false, the other one need not be also a fake one and it ought to have been the attempt of the insurance company to have verification for the other driving licence as well. In such a situation, the liability cast on the insurance company cannot be found fault with. 6. There is no need to examine the issue of quantum since the insurance company shall not be permitted to urge the same when it had no permission for defence on all grounds under Section 170 of the Motor Vehicles Act. 7. The award is confirmed and the appeal is dismissed. (K. KANNAN) JUDGE May 25, 2011 Pankaj*