Prasannamma and Swapna Soudam v. Chandran, Ammini, Siji, Sajeev Kumar R, Oriental Insurance Co. Ltd

1 MACA No. 3172 of 2016 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943** ## **MACA NO. 3172 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OPMV 1203/2007 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,PERUMBAVOOR** **APPELLANT/S:** **PRASANNAMMA,W/O.RAJENDRA PILLAI, SWAPNA** **SOUDAM,VETTIYARA.P.O,NAVAIKULAM,THIRUVANANTHAPURAM DISTRICT.** **BY ADV SRI.N.K.KARNIS** ## **RESPONDENT/S:** - **1 CHANDRAN,S/O.SASTHAVU,KALAPURAKUDY HOUSE, KANNAMCHERYMUGAL,MUDAKUZHA,CHUNDAKUZHI.P.O,VENGOOR WEST VILLAGE,KUNNTHUNADU TALUK,ERNAKULAM DISTRICT.** - **2 AMMINI,W/O.CHANDRAN,KALAPURAKUDY HOUSE,KANNAMCHERYMUGAL,MUDAKUZHA,CHUNDAKUZHI.P.O,VEN GOOR WEST VILLAGE,KUNNTHUNADU TALUK,ERNAKULAM DISTRICT.** - **3 SIJI,D/O.CHANDRAN,KALAPURAKUDY HOUSE,KANNAMCHERYMUGAL,MUDAKUZHA,CHUNDAKUZHI.P.O,VEN GOOR WEST VILLAGE,KUNNTHUNADU TALUK,ERNAKULAM DISTRICT.** - **4 SAJEEV KUMAR.R,S/O.RAMACHANDRAN PILLAI,PANAYIL HOUSE,KADAMPATTUKONUM,NAVAIKULAM,THIRUVANANTHAPURAM DISTRICT.** - **5 THE ORIENTAL INSURANCE CO.LTD, BRANCH OFFICE,P.B.NO.8,JYOTHI SUPER BAZAR,THODUPUZHA685584.** 2 MACA No. 3172 of 2016 - **6 THE MANAGING PARTNER, M/S.SAJO INDUSTRIES,MAIKKADU.P.O,ANGAMALY(VIA),ERNAKULAM DISTRICT.** - **7 SIJU PHILIP,S/O.PHILIP,AMBALATHUM HOUSE,MAVADY.P.O,NEDUMKANDAM,IDUKKI DISTRICT.** - **8 UNITED INDIAN INSURANCE CO.LTD,BRANCH OFFICE,JOS TRUST BUILDING,OPP.Y.M.C.A.,CHITTOOR ROAD,ERNAKULAM,COCHIN-682035.[RESPONDENTS 6 TO 8 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 25.1.2022 IN IA 3/2016]** **BY ADVS.** **SRI.R.AJITH KUMAR 12884 -R5** **SRI.FIROZ K.ROBIN** **SRI.J.JULIAN XAVIER SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA No. 3172 of 2016 ## **C.S.DIAS, J.** ## **====================== MACA No. 3172 of 2016 ====================== Dated this the 14[th] day of March, 2022.** ## **JUDGMENT** The first respondent in OP(MV) No.1203/2007 of the Motor Accident Claims Tribunal, Perumbavoor, is the appellant. The petitioners and respondents 2 and 3 before the Tribunal are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Sec.163A of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Sanil (deceased) – the son of petitioners 1 and 2 and brother of the third petitioner. They contended that on 18.6.2007, while the deceased was travelling in an Eicher van, a pickup van (offending van) bearing registration No.KL-16D 6520, 4 MACA No. 3172 of 2016 driven by the second respondent in a negligent manner, hit the Eicher van in which the deceased was travelling. The deceased sustained fatal injuries and lost his life. The respondents 1 to 3 were the owner, driver and insurer of the offending van. The petitioners were the legal heirs of the deceased. The owner, driver and insurer of the Eicher van were also impleaded as respondents 4 to 6, respectively. Hence, the petitioners claimed compensation from the respondents. 3. The respondents 1 to 3 contested the proceeding. 4. The third respondent denied the pleadings in the claim petition and contended that the second respondent did not hold a valid and effective driving licence and the offending van did not have a permit and a fitness certificate. 5. The Tribunal, after anyalysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners to recover from the third 5 MACA No. 3172 of 2016 respondent an amount of Rs.4,53,300/- with interest and proportionate cost. However, the Tribunal, on finding that the offending van did not have a valid fitness certificate, permitted the third respondent to pay the compensation amount and recover it from the first respondent. 6. Aggrieved by the direction in the impugned award, permitting the third respondent to recover the compensation amount from the first respondent, the first respondent is in appeal. 7. Heard Sri.N.K Karnis, the learned counsel appearing for the appellant/first respondent and Sri.R.Ajith Kumar, the learned counsel appearing for the fifth respondent/third respondent/insurer on the question of admission. 8. The principal ground of challenge in the memorandum of appeal is that the direction permitting the fifth respondent/third respondent/insurer to recover the compensation amount from appellant/first respondent is 6 MACA No. 3172 of 2016 erroneous and wrong because the accident was not caused due to absence of fitness certificate of the offending van. And, the Full Bench of this Court in **Augustine V.M vs. Ayyappankutty @ Mani [2015 (2) KLT 139]** , has held that absence of fitness certificate is not a fundamental breach. 9. The sole point that arises for consideration for admission of the appeal is whether the direction in the impugned award permitting the fifth respondent/third respondent/insurer to pay the compensation amount and recover it from the appellant is sustainable in law or not? 10. Undisputedly, the fifth respondent had filed IA 916/2011 before the Tribunal to direct the appellant to produce the permit and fitness certificate of the offending van. However, the appellant failed to produce the permit and fitness certificate of the vehicle. As per the vehicle particulars, that was made available before the Tribunal, the offending van had a fitness certificate only for the 7 MACA No. 3172 of 2016 period from 5.6.2009 to 4.6.2010. Thus, as on the date of accident, i.e., 18.6.2007, the offending van did not have a fitness certificate. 11. It is to be noted that the decision in **Augustine V.M** (supra) is no longer good law, in view of the decision of the larger Bench of this Court in **Pareed Pillai v. Oriental Insurance Co.Ltd - [ (2018 (4) KLT 792],** wherein a five Judge Bench of this Court has categorically held that the absence of the fitness certificate is fundamental breach of insurance policy conditions and the insurer has the right to pay and recover the compensation amount from the insured. 12. In the light of the emphatic declaration of law in **Pareed Pillai** (supra), there is absolutely no error in the impugned award, permitting the fifth respondent/third respondent/insurer to pay the compensation amount and recover it from the appellant/first respondent. I do not find 8 MACA No. 3172 of 2016 any illegality in the impugned award. The appeal is devoid of any merit and does not warrant to be admitted. Hence, invoking the powers of this Court under Order XLI Rule 11 of the Code of Civil Procedure, I dismiss the appeal in limine. In the peculiar facts and circumstances of the case, the parties shall bear their respective costs. Sd/- sks/14.3.2022 **C.S.DIAS, JUDGE**