F.A.O.NO. 4352 OF 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 4352 OF 2001 Date of decision: 6th July, 2010 New India Assurance Co. Ltd. ..........Appellant Versus Smt. Gurjit Kaur and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Paul S.Saini, Advocate, for the appellant. Mr. Amit Rawal, 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 Insurance Co. is in appeal against the judgment of the MACT contending that in spite of the fact that the driver who drove the vehicle was proved to have had a fake driving licence the liability was wrongly cast on it. 2. The liability of the Insurance Co. in a case of a fake licence or a renewal of a licence which was a fake one have been F.A.O.NO. 4352 OF 2001 2 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. Divinder Singh (2007) 8 SCC 342 are instructive. In the latter judgment, it has been held that a renewal of a fake driving licence is no licence at all and hence the insurer shall not be liable. 3. In its attempt to prove that the licence was not true, the insurer sought to produce a copy of the driving licence. The Tribunal has made its reasoning while rejecting the contention of the insurer in the following words:- “In this case the respondent No. 2 produced copy of his driving licence on the record. Verification report-Ex.R2 i not admissible in evidence as it is not a public document. Actually this report has been submitted by Taneja enterprises who are surveyors and loss assessors and investigators and this report is addressed to Senior Divisional Manager, The New India Assurance Company Limited, Ludhiana. Thus this verification report has not been proved on record as per provisions of Evidence Act. So, this report cannot be looked into evidence. The documents Mark A/1 and marks B also are photo copies and as such are inadmissible in evidence. Thus there is no document on the record to F.A.O.NO. 4352 OF 2001 3 establish that driving licence possessed by respondent No. 2 was fake.” 4. The Tribunal found that the licence had been renewed only subsequent and placed reliance on the Judgments of this Court in Ram Phal Vs. Kishana Nakkar and others 1989 ACJ 1126 (P&H) and Ramesh Chand alias Ramesh Kumar and another Vs. United India Insurance Co. Ltd. and Others 1997 ACJ – 1331 and held that in case the renewal of the license had been done subsequently the insurer was still be liable. 5. I am afraid of such line of reasoning is not tenable in the light of law laid down by the Hon'ble Supreme Court in National Insurance Company V. Swaran Singh (2004) 3 SCC 297 and the expression found under the Motor Vehicles Act under Sections 3, 10 and 149 of M.V.Act. An effective condition of excluding the liability of the Insurance Company in case of the vehicle driven by a person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving license during the period of disqualification shall be shown to exist. 6. The license which expires shall be required to be renewed within 30 days as per Section 15 of the Motor Vehicles Act. This aspect has been the effect of the renewal beyond the period of expiry dealt with by the decision of the Hon'ble Supreme Court in Ishwar Chandra v. Sheetal Insurance and others (2007) 10 SCC 650. 7. The burden of proof never shifts while an onus would. The burden of establishing that driver did not have a valid driving F.A.O.NO. 4352 OF 2001 4 license that the insured had committed a breach of terms of policy will be always on the insurer. The insurer had secured a report but the original register had not been summoned before the Court. The Court assumed that the license had expired on 28.11.1987 and that it was renewed only on 4.08.1995 after the date of accident that took place on 4.08.1995. The original license was not before the Court nor was the register of the Licensing Authority before the Court. When there was plea at all times by the insured that the driver had a valid driving license, it cannot be stated that the insurer had discharged the burden of proof. 8. The learned counsel appearing for the Insurance Company wants me to refer to the fact that driving license of a heavy vehicle at that relevant point of time could be only granted for a period of three years. If the license had been issued on 29.11.1984 the validity could not have been beyond 28.11.1987. This reasoning is on assumption that it is admitted by parties that the license had been issued on 28.11.1984. The copy of license which is produced before the Court does not appear to bear out such a fact nor is there any clear finding of the Tribunal that it had been issued only on that date. The finding by the Tribunal is that the license was renewed only subsequent to the accident. I am of the view that it is not correct. I would place a reasoning to hold the liability of the insurer on the fundamental aspect that burden of proof regarding the invalidity of the license was on the insurer and that had been established. F.A.O.NO. 4352 OF 2001 5 The appeal is dismissed and the award of the Tribunal stands affirmed. [K.KANNAN] JUDGE 6th July, 2010 Shivani Kaushik