New India Assurance Company Ltd. v. Vijaylakshmi and Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` FRIDAY, THE 31 [ ST ] DAY OF MAY 2024 / 10TH JYAISHTA, 1946 ``` ``` MACA NO. 2371 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 05.06.2012 IN OPMV NO.1264 OF 2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## `APPELLANT:` ``` NEW INDIA ASSURANCE COMPANY LTD BRANCH OFFICE SM SHOPPING COMPLEX, ALUVA, ROAD ANGAMALY 683572, REPRESENTED BY ITS DEPUTY MANAGER. ``` ``` BY ADVS. SRI.LAL K.JOSEPH SRI.SUNEESH ``` ## `RESPONDENTS:` - `1 VIJAYLAKSHMI W/O. PRADEEPKUMAR, CHOLOPADAM HOUSE, UMMANAZI, OTTAPALAM TALUK.` - `2 ADWAID AGED 6 YEARS` - `S/O. VIJAYALAKSHMI, MINOR, REP. BY 1ST PETITIONER (DATE OF BIRTH 28-09-2006).` - `3 JANAKI W/O. RAMANKUTTY, CHOLOPADAM HOUSE, UMMANAZHI, OTTAPALAM TALUK.` - `4 BABU S/O.KRISHNAN, MANNATHARA HOUSE, PADINJARE VEMBALLUR P.O., KODUNGALLUR, THRISSUR DIST.(DRIVER OF KL 7 AJ 7630 GOODS TEMPO).` - `5 ABDULRAHIMAN AGED 44 YEARS` - `S/O. KUNJUMUHAMMED, RAMANKULATH HOUE, PADINJARE VEMBALLUR P.O., KODUNGALLLUR (RC OWNER OF KL 7AJ 7630 GOODS VEHICLE).` - `6 RAMANKUTTY AGED 60 YEARS` - `S/O. CHAMIYAR, CHOLOPADAM VEEDU, UMMANAZHI (PO), PULAPATTA, OTTAPALAM.` 2 ``` MACA NO.2371 OF 2012 ``` ``` 7 THE MANAGING PARTNER SN RICE MILLS, KALADY, ERNAKULAM, PIN-683974. ``` ``` BY ADVS. BABU KARUKAPADATH M.A.VAHEEDA BABU K.A.NOUSHAD P.G.PRAMOD ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 ``` MACA NO.2371 OF 2012 ``` ## **J U D G M E N T** ``` This appeal is at the instance of the 3rd respondent/insurer in OP(MV) No.1264 of 2008 on the file of Motor Accidents Claims Tribunal, Ottapalam, disowning their liability to ``` ``` compensate the claimants, as the offending vehicle had no valid fitness certificate during the relevant period. ``` ``` 2. On 15/9/2008 at 11.30pm one ``` ``` Mr.Pradeepkumar met with a road traffic ``` ``` accident and he succumbed to the injuries. Sri. Pradeepkumar was travelling in a car proceeding towards Parassinikkadav. Then KL-7-AJ-7630 goods vehicle driven by the 1 st ``` ``` respondent in a rash and negligent manner, hit on the back side of the car, thereby ``` 4 ``` MACA NO.2371 OF 2012 ``` ``` Sri.Pradeep Kumar sustained fatal injuries. On his death his legal heirs approached the Tribunal claiming compensation. Learned Tribunal awarded compensation fixing the ``` ``` liability on the 3 rd respondent/insurer, and ``` ``` hence this appeal. ``` ``` 3. The 3 rd respondent-insurer would contend ``` ``` that, the offending vehicle had no fitness ``` ``` certificate at the time of accident, which ``` ``` amounts to violation of the policy conditions. ``` ``` So, the insurer was eligible for recovery of the compensation amount, if at all the initial liability was upon them. The appellant is ``` ``` relying on the decision of the Apex Court in ``` ``` Thara G. v. Syamala S and others[2009(2)KHC 706], to say that absence of valid permit and ``` 5 ``` MACA NO.2371 OF 2012 ``` ``` fitness certificate amounts to violation of conditions of policy, and so the insurer can recover the award amount from the owner. ``` ``` 4. In the appeal, respondents 1 to ``` ``` 3/claimants remained absent in spite of service of notice. Respondents 4 and 5 the driver and previous owner of the offending vehicle entered appearance through counsel. Respondents 6 and 7 ``` ``` also remained absent in spite of service of notice. The 7th respondent is the insured owner of the offending vehicle. ``` `5. Now this Court is called upon to answer` ``` whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. ``` `6. Heard learned counsel for the appellant` 6 ``` MACA NO.2371 OF 2012 ``` ``` and learned counsel for respondents 4 and 5. ``` ``` 7. Learned counsel for the appellant would ``` ``` submit that the offending vehicle had no fitness certificate as on the date of accident. They had filed an IA before the learned Tribunal for production of fitness certificate by the owner of the offending vehicle, but it was not produced and so an adverse inference was drawn against him. Now, it is not a disputed fact that, the offending vehicle had no fitness certificate as on the date of accident. So the only point arising for ``` ``` consideration is whether absence of fitness ``` ``` certificate amounts to a technical breach or a ``` ``` fundamental breach, so that the insurer can claim absolute exemption from making the ``` 7 ``` MACA NO.2371 OF 2012 ``` ``` compensation, or they can recover the amount after taking the burden initially. ``` ``` 8. In Pareed Pillai v. Oriental Insurance ``` ``` Co.Ltd [2018(5) KHC 1 : AIR 2019 Ker.9], a ``` ``` full bench of this Court held that absence of permit or fitness certificate, in case of a transport vehicle is a fundamental breach and not a technical breach. So the insurer can pay and recover the compensation from the insured. The law declared by the Apex Court in National Insurance Company v. Challa Upendra Rao [2004 KHC 1153] and Amrit Paul Singh and Another v.TATA AIG General Insurance Co.Ltd and others ``` ``` [2018(3)KHC 197] were relied on by the Full Bench to hold that absence of valid permit or fitness certificate is a fundamental breach and ``` 8 ``` MACA NO.2371 OF 2012 ``` ``` not a technical breach. When a transport vehicle is not having 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 circumstance which would constitute offence, providing adequate penalty. That being the position such lapse, if any, can only be regarded as a ``` 9 ``` MACA NO.2371 OF 2012 ``` ``` fundamental breach and not a technical breach and any interpretation to the contrary will only negate the intention of the law makers, as held by the full bench. ``` ``` 9. In the case on hand as we have seen the offending vehicle had no fitness certificate as on the date of accident, which amounts to fundamental breach of the policy conditions and ``` ``` so the insurer is eligible to recover the compensation amount paid to the claimants from the insured. So the appeal filed by the insurer is liable to be allowed, so that, they can recover the compensation amount from the 7 th ``` ``` respondent who is the insured owner. ``` ``` 10. In the result, the appeal is allowed to the extent of allowing the appellant to recover ``` 10 ``` MACA NO.2371 OF 2012 ``` ``` the compensation amount deposited by them, from the insured owner/7 th respondent (respondent No.5 in the OP(MV)) and his ``` ``` assets, and no order is made as to costs. ``` ``` Sd/- ``` ``` SOPHY THOMAS, JUDGE ``` ``` ska ```