New India Assurance Company Ltd. v. Ajeesh and S. Harikumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** ## **MACA.No.1860 OF 2012** **AGAINST THE AWARD IN OPMV 1489/2003 DATED 27-10-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,TRIVANDRUM** ## **APPELLANT:** **NEW INDIA ASSURANCE COMPANY LTD. REP.BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, PALAYAM, THIRUVANANTHAPURAM, REP.BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD,ERNAKULAM** **BY ADVS. SRI.LAL GEORGE SMT.M.J.INDUJA** ## **RESPONDENTS:** - **1 AJEESH** **AGED 21 YEARS** **S/O.ARAVINDAKSHAN,AJEESH BHAVAN, THACHAMVILAKAM, ANTHIYOOR,BALARAMAPURAM-695501** **2 S.HARIKUMAR** **VILAYIL PUTHEN VEEDU, XI/579, VATTIYOORKAVU P.O.,THIRUVANANTHAPURAM-695 013** **3 S.SANILKUMAR S/O.SUKUMARAN, KALATHINKARA PUTHEN VEEDU, KARATHOOR ,MUDAYANMUGAL, THIRUVANANTHAPURAM-695004.** **(R3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 10.10.2019 IN IA.NO.1/19 IN MACA NO.1860/12)** **BY ADV. SRI.J.S.AJITHKUMAR SRI.SYAM J SAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA No. 1860 of 2012** 2 ## **J U D G M E N T** The appellant is the 3[rd] respondent insurer in OP(MV) No.1489 of 2003 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, a claim petition filed by the 1[st] respondent herein, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 23.08.2003, involving an autorickshaw bearing Registration No.KL-01/D-124, owned by the 2[nd] respondent and driven by the 3[rd] respondent (who has already been deleted from the party array, at the risk of the appellant) and insured with the appellant herein. In the accident, the claimant sustained injuries. Claiming a total compensation of Rs.3 lakhs under various heads, claim petition was filed before the Tribunal, alleging negligence on the driver of the autorickshaw. 2. The claim petition was tried along with connected matters viz. OP (MV) No. 1474 of 2003 and OP (MV) No.1604 of 2003. **MACA No. 1860 of 2012** 3 3. Before the Tribunal, the owner and driver of the autorickshaw remained absent and they were set ex-parte. The insurer filed the written statement, admitting the accident; however, denying negligence alleged against the driver of the autorickshaw. The age, occupation and income mentioned in the claim petition were denied, so also the injuries sustained. 4. The insurer filed an additional written statement raising a specific contention that the offending vehicle, i.e., autorickshaw bearing Registration No. KL-01/D-124 was not having fitness certificate at the time of the accident and that the police has charge sheeted the driver of the autorickshaw under Sections 39 and 56 of the Motor Vehicles Act, 1988 for plying the vehicle without a valid registration and fitness certificate. 5. The aforesaid contentions raised by the appellant Insurer was considered by the Tribunal in paragraphs 29 and 30 of the common award dated 27.10.2010, which read as the follows; **MACA No. 1860 of 2012** 4 “29. Ext.A6 is the insurance certificate, in respect of the autorickshaw. The insurance coverage is admitted by the 3[rd] respondent. Ext.A7 and A14 are the driving licence of the 2[nd] respondent at the time of the accident. The 2[nd] respondent was not having badge. It is the contention that autorickshaw was no having valid permit and fitness certificate. In fact for non obtaining of fitness certificate is one of the charge against 2[nd] respondent under the Extt.A2 Final report. Ext.B1 iws another copy of Ext.A2. The 2[nd] respondent is admitted the guilt and received sentencces as evidence from Ext.B2 judgment in C.C.532/03 which originated from Ext.A2/B1 final report. 30. Because of the fact that the autorickshaw was not having a fitness certificate it can't be said that cause of accident was that and the 3[rd] respondent can not therefore contend that there was violation of policy conditions. Hence the 3[rd] respondent has to indemnify the owner and consequently pay compensation to the petitioners. Issue is found so.” 6. By the common award dated 27.10.2010, the Tribunal awarded a total compensation of Rs.1,00,870/- in OP(MV) No.1489 of 2003 together with interest at 7.5% per annum from 24.9.2003 till realisation with cost of Rs.1,000/- and the insurer was directed to satisfy the award. 7. The findings of the Tribunal in the award on the **MACA No. 1860 of 2012** 5 liability of the insurer and in not granting any recovery right to the appellant insurer to recover the amount of compensation together with interest and cost from the insured, by initiating recovery proceedings, is under challenge in this appeal. 8. Heard the learned Standing Counsel for the appellant insurer and also Shri. J.S Ajithkumar and the learned Standing Counsel for the claimant/1[st] respondent. 9. Despite service of notice, none appears of 2[nd] respondent owner. By the order dated 10.10.2019 in I.A.No. 1 of 2019, 3[rd] respondent has already been deleted from the party array, at the risk of the appellant. 10. The issue that arises for consideration in this appeal is as to whether the findings of the Tribunal in the award, which is extracted hereinbefore, on the liability of the insurer and in not granting recovery right to the insurer to proceed against the 2[nd] respondent owner of the vehicle for recovering the amount of compensation together with interest and cost paid to the claimant can **MACA No. 1860 of 2012** 6 be sustained in law. 11. Admittedly, the vehicle in question is a transport vehicle. The fact that, the said vehicle was not having fitness certificate, as on the date of accident, is not in dispute. The driver of the vehicle was charge sheeted for the said offense, as evident from Ext.B1 final report in C.C.No.1532 of 2003 of the City Traffic Police Station, Thiruvanathapuram. The driver of the autorickshaw was also convicted for the said offence in Ext.B2 judgment in C.C. No.1532 of 2003 on the file of Judicial First Class Magistrate Court, Thiruvananthapuram. 12. In view of the law laid down by a Larger Bench of this Court in **Pareed Pillai v. Oriental Insurance Co. Ltd [2018 (4) KLT 792]** , the absence of fitness certificate is a fundamental breach and not a technical breach and any interpretation to the contrary will only nugate the intention of the law makers. Paragraphs 17 and 20 of the said judgment reads as follows:- _“_ 17. The stipulations under the above provisions clearly substantiate the importance and necessity to have a **MACA No. 1860 of 2012** 7 valid Fitness Certificate to the transport vehicle at all times. The above prescription converges on the point that Certificate of Registration, existence of valid Permit and availability of Fitness Certificate, all throughout, are closely interlinked in the case of a transport vehicle and one requirement cannot be segregated from the other. The transport vehicle should be completely fit and road worthy, to be plied on the road, which otherwise may cause threat to the lives and limbs of passengers and the general public, apart from damage to property. 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 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 **MACA No. 1860 of 2012** 8 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. xxxxxxx xxxxxxx xxxxxxx 20. It has been made clear by the Apex Court in the ruling rendered on 22.11.2017 in M.S.Middle High School’s case (cited supra) that the view taken by the Full Bench of this Court in Augustine’s case (cited supra) cannot be held to be valid and it was disapproved to the extent holding that the insurer was liable, even if there was breach of conditions of the policy. Since the declaration made by the Full Bench in Augustine’s case (cited supra), is clearly contrary to the law declared by the Apex Court in Challa Upendra Rao’s case (cited supra) (which is the law of land by virtue of Article 141 of the Constitution of India), the view taken by the Full Bench in Augustine’s case (cited supra) is liable to be declared as ‘per incurium’. It is **MACA No. 1860 of 2012** 9 ordered accordingly. ” 13. In **Pareed Pillai's case (supra)** the Larger Bench laid down that the requirement of fitness certificate is quite fundamental in nature. When a transport vehicle is not having a fitness certificate it will be deemed to have no certificate of registration and when such vehicle is not having a permit or fitness certificate, nobody, can drive such vehicle and no owner can permit the use of such vehicle on a public road. 14. The learned Standing Counsel for the appellant insurer would submit that, in view of the law laid down by the Larger Bench of this Court in **Pareed Pillai's case (supra)** , the appellant insurer may be permitted to proceed against the 2nd respondent owner for recovering the amount of compensation, together with interest and cost paid to the 1st respondent claimant. 15. In such circumstances, this appeal is disposed of by holding that, in view of the fundamental breach of the conditions of policy, on account of the absence of fitness certificate for the offending autorickshaw bearing **MACA No. 1860 of 2012** 10 registration No.KL-01/D-124 owned by the 2nd respondent, the appellant insurer is entitled to recover the amount of compensation paid to the 1st respondent claimant, together with interest and cost, by proceeding against the 2nd respondent owner of the said vehicle. The impugned award passed by the Tribunal is modified to that effect. The Tribunal shall return the statutory deposit made by the appellant. Sd/- **ANIL K.NARENDRAN JUDGE** ska