Ahammed Abdulla v. The New India Assurance Co. Ltd. and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 31[ST]DAY OF JANUARY 2023 / 11TH MAGHA,1944 OP (MAC) NO. 14 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENTOPMV 1057/2020 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## **`PETITIONER/S:`** ``` AHAMMED ABDULLA AGED 62 YEARS S/O. KUNHABDULLA, PARAKKADAVAN KUNIYIL, EDACHERY, KACHERI, VATAKARA, KOZHIKODE, PIN - 673502 BY ADV R.PARTHASARATHY ``` ## **`RESPONDENT/S:`** ``` 1THE NEW INDIA ASSURANCE CO. LTD. VADAKARA BRANCH (671 301) AL-MUBHARAK BUILDING, EDODI, VATAKARA, KOZHIKODE, PIN - 671301 REPRESENTED BY ITS BRANCH MANAGER 2SUDHADEVI AGED 53 YEARS W/O. BALASUBRAHMANIYAN, EDASSERY PARAMBIL, EDAVANNAPARA, VAZHAKKAD, MALAPPURAM, PIN - 673645 3ASWATHI T W/O. LATE BIJESH, PUTHIYOTTIL HOUSE, PANTHEERANKAVU P.O., PERUMANNA, KOZHIKODE, PIN - 673019 4ADHI DEVA BALA S/O LATE BIJESH E.P., REP. BY NEXT FRIEND, MOTHER - ASWATHI T., W/O. LATE BIJESH E.P., PUTHIYOTTIL HOUSE, PANTHEERANKAVU P.O., PERUMANNA, KOZHIKODE, PIN - 673019 ``` ``` OP (MAC) NO. 14 OF 2023 ``` ``` 2 ``` ``` 5SHAMAS K., AGED 24 YEARS S/O BAVACHI KULAULLATHIL HOUSE EDACHERI NORTH P.O VATAKARA, KOZHIKODE-673502 ``` ``` SRI LAL K JOSEPH SC ``` ``` THISOP(MAC)HAVINGCOMEUPFORADMISSIONON 31.01.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` OP (MAC) NO. 14 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** The petitioner herein is the respondent in O.P.(M.V.) No. 1057/2020 on the files of the Motor Accidents Claims Tribunal, Kozhikode. The above claim petition is filed by the legal representatives of late Sri. Bijesh, who had suffered fatal injuries in an accident that took place on 24.05.2019. The offending vehicle is a pickup van registered in the name of the petitioner. Though the vehicle was covered by valid Insurance, the fitness certificate had expired prior to the accident. The Motor Vehicle Inspector had issued Ext.P3 report stating that the accident was not due to any mechanical defects. In the course of the proceedings, the petitioner produced a copy of the MVI report and also filed an application to mark the report through the Motor Vehicle Inspector. However, by the impugned order, the Tribunal rejected the application. The said order is under challenge. 2. Sri. Parthasarathi, the learned counsel appearing for the petitioner, submitted that notwithstanding the fact that the vehicle was not having a valid fitness certificate at the time of the accident, the petitioner, by examining the MVI, who inspected the vehicle, could have let in evidence to substantiate that the vehicle was free of any mechanical defects and that the accident was not a result of such defect. By denying such an opportunity, serious prejudice has been caused. The learned counsel would ``` OP (MAC) NO. 14 OF 2023 ``` ``` 4 ``` rely on the law laid down by this court in **Nilavarnisa and Ors. v. M.M.Faizal and Ors.** [2019 (1) KHC 699], and it was argued that this Court has deprecated the practice of marking documents that are subject to proof on the basis of the consent given by the opposite party. The learned counsel argued that the petitioner would be mulcted with huge liability, and his attempt was to establish that the vehicle was roadworthy and fit enough to be issued with a Fitness Certificate. The learned counsel also relied on the law laid down by the Apex Court in **National Insurance Company Ltd. v. Swaran Singh** [(2004) 3 SCC 297] to substantiate his contention. 3. Sri. Lal K. Joseph, the learned counsel appearing for the Insurance Company, points out that the report submitted by the Motor Vehicle Inspector has been marked without any objection from the respondents. The learned counsel would refer to Section 56 of the Motor Vehicles Act as well as Rule 62 of the Central Motor Vehicle Rules, and it was argued that the statutory provisions mandate for issuance of a certificate of fitness for a transport vehicle and its period of validity. The learned counsel would also refer to a Larger Bench judgment of this Court in **Pareed Pillai v. Oriental Insurance Company Ltd** [(2018) 4 KLT 792 (LB)], and it was argued that the absence of a Fitness Certificate is a ‘Fundamental Breach’ and not a ‘Technical Breach,’ and any interpretation to the contrary will ``` OP (MAC) NO. 14 OF 2023 ``` ``` 5 ``` negate the intention of the lawmakers. According to the learned counsel, by summoning the Motor Vehicle Inspector, the attempt of the petitioner herein is to let in evidence to show that even without having a Fitness Certificate, the vehicle was entitled to be issued with one. 4. I have considered the submissions advanced and gone through the records. 5. Ext.P3 MVI Certificate reveals that the Motor Vehicle Inspector had inspected the offending vehicle and did not notice any mechanical defects. Admittedly, the vehicle was not having a fitness certificate at the time of the accident. The Full Bench of this Court in **Pareed Pillai** (supra), after noting the statutory provisions, has held that the stipulations clearly substantiate the importance and necessity to have a fitness certificate for the transport vehicle at all times. The certificate registration, the existence of a valid permit, and the availability of a fitness certificate are closely interlinked in the case of a transport vehicle. It was further held as follows in paragraph No. 17 of the judgment: ………….Only if the transport vehicle is having valid Fitness Certificate, would the necessary Permit be issued in terms of S.66 of the Act and by virtue of the mandate under S.56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of S.39 of the Act, which stipulates that nobody shall drive or cause the motor vehicle to be driven without ``` OP (MAC) NO. 14 OF 2023 ``` ``` 6 ``` valid registration in public place or such other place, as the case may be. These requirements are quite 'fundamental' in nature; unlike a case where a transport vehicle carrying more passengers than the permitted capacity or a goods carriage carrying excess quantity of goods than the permitted extent or a case where a transport vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'. In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers / general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute, also pointing out the circumstances which would constitute offence; providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers. 6. In view of the law declared by the Full Bench, the contention of the petitioner that the Motor Vehicle Inspector would be in a position to depose about the fitness of the vehicle irrespective of the fundamental breach of not having a fitness certificate does not appeal to me. In view of section 56 of the Motor Vehicles Act and Rule 62 of Central Motor Vehicle Rules, no purpose would be served by summoning the Motor Vehicle ``` OP (MAC) NO. 14 OF 2023 ``` ``` 7 ``` Inspector to let in evidence to show that the vehicle was entitled to be issued with a Fitness Certificate. While rejecting the application, the Tribunal has adverted to all the relevant facts. I find no reason to interfere with Ext.P5 order. This Original Petition will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` OP (MAC) NO. 14 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF OP (MAC) 14/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit-P1TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE HAVING REGISTRATION NO.KL-18-T-2104 DATED 17.05.2017 ``` ``` Exhibit-P2TRUE COPY OF THE CLAIM PETITION FILED BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE IN O.P. (M.V) 1057/2020 DATED ......02.2020 ``` ``` Exhibit-P3TRUE COPY OF THE REPORT OF THE ASSISTANT MOTOR VEHICLE INSPECTOR, KOZHIKODE DATED 11.06.2019 ``` ``` Exhibit-P4TRUE COPY OF THE AFFIDAVIT AND APPLICATION FILED AS I.A.NO.3/2022 IN OP(MV)NO.1057/2020 OF MACT, KOZHIKODE. ``` ``` Exhibit-P4(a)ENGLISH TRANSLATION OF EXT.P4 ``` ``` Exhibit-P5TRUE COPY OF THE ORDER IN I.A.NO.3/2022 IN OPMV NO.1057/2020 ON THE FILE OF MACT, KOZHIKODE ```