New India Assurance Company Ltd. vs Somviri and Others

K. Kannan, J.—The application for review is sought on the ground that the Insurance Company could not have been given a right of recovery against the insured and the driver in the manner that was done through the impugned judgment. The judgment was in reversal of the judgment passed already by the Tribunal that allowed for a right of indemnity to the owner and driver. I have reversed the judgment of the trial Court on a finding what the Insurance Company could possibly do in a situation where the driver and the owner remained ex-parte before the Tribunal. The Insurance Company had summoned the original records from the Licensing Authority and gave evidence to the effect that it had not issued any driving license in the name of the driver and brought in comparison a copy which was produced by the Insurance Company as one submitted to it. The Trial Court had found that the Insurance Company could not have a copy for comparison and it was meaningless to show that the particulars found in a copy were not found to be reflected in the records kept in original by the Licensing Authority. I find the reasoning to be erroneous and I have held that the Insurance Company had brought the evidence of the Licensing Authority itself and if the driver or owner chose not to appear before the Tribunal to give their version it must only be taken that the Insurance Company has discharged its onus. Learned counsel for the applicant states that notice had not been served to him in appeal. In a case where the owner insured and the driver had remained ex-parte before the Tribunal, the High Court rules allow for dispensing with notice to the ex-parte respondents. The respondent had no right to insist for service of notice. Learned counsel also relies on the judgment of this Court in United India Insurance Company Vs. Balwant Singh and Others, to say that the burden of proof on the Insurance Company to show that the license was not genuine could not be said to be discharged by merely pointing out that the driver did not appear as its own witness. I will have no reason to refer to this judgment as applicable in a case where the Insurance Company had undertaken the onus and discharged it in the manner that was possible by summoning the official from the DTO''s office. The nature of onus is negative and if the Insurance Company were to say that a particular person did not have driving license, all that it can do is to only secure the records from the office who was competent to issue a notice and point out that no such license had been issued to the driver with particulars of the copy which had been given to them. It cannot be exposed that a copy which was produced by the Insurance Company could have been manufactured by themselves and if a document was brought against a party that remains ex-parte he not make his position better but he literally allows for a walk over to an adversary to prove the document is not genuine. I will find no reason to subject the decision taken by this Court already as susceptible for a review. The review application is dismissed.