Chattisgarh High Court
Branch Manager, National Insurance ... vs Faiyja Kausar on 20 March, 2025
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2025:CGHC:13423
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1384 of 2018
Order reserved on 06/09/2024
Order delivered on 20/03/2025
Branch Manager, National Insurance Company Limited Branch Office-
Kampthi Line, Rajnandgaon, Chhattisgarh., District : Rajnandgaon,
Chhattisgarh
... Appellant
versus
1 - Faiyja Kausar S/o Mohammad Ali Aged About 7 Years Resident- Babda
Rui Bhandar Goal Bazar Bilaspur, Present Address Ambedkar Ward,
Dongargaon, Thana/tehsil Dongarhgaon, District- Rajnandgaon,
Chhattisgarh, Respondent No. 1 And 2 Are Minor Through Guardian Nana
Mohammad Sharif S/o Aadamrani, Resident- Ambedkar Ward,
Dongargaon, Thana/tehsil Dongargaon, District- Rajnandgaon,
Chhattisgarh., District : Rajnandgaon, Chhattisgarh
2 - Mohammad Tausif S/o Mohammad Ali Aged About 8 Years Resident-
Babda Rui Bhandar Goal Bazar Bilaspur, Present Address Ambedkar Ward,
Dongargaon, Thana/tehsil Dongarhgaon, District- Rajnandgaon,
Chhattisgarh, Respondent No. 1 And 2 Are Minor Through Guardian Nana
Mohammad Sharif S/o Aadamrani, Resident- Ambedkar Ward,
Dongargaon, Thana/tehsil Dongargaon, District- Rajnandgaon,
Chhattisgarh., District : Rajnandgaon, Chhattisgarh
Digitally
signed by
VEDPRAKASH
VEDPRAKASH DEWANGAN
DEWANGAN Date:
2025.03.20
19:18:53
+0530
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3 - Mohammad Sharif S/o Aadamrani Resident- Ambedkar Ward
Dongargaon, Thana/tehsil Dongargaon, District- Rajnandgaon,
Chhattisgarh.......(Claimants)
4 - Dhaniram Sonwani S/o Ani Sonwani Aged About 46 Years Resident-
Village Sachkana, Gram-Panchayat Talmana, Thana- Junagadh, District-
Kalahandi, Odisha.....(Vehicle Driver), District : Kalahandi, Orissa
5 - Harjindar Singh Bhatia S/o Late Amolak Singh Aged About 59 Years
Resident- Kailashnagar Ward No.-27, Thana City Kotwali, Rajnandgaon,
Tehsil And District- Rajnandgaon, Chhattisgarh......(Vehicle Owner),
District : Rajnandgaon, Chhattisgarh
6 - Mohammad Ali S/o Mohammad Sarif Aged About 40 Years Resident
Goal Bazar Bilaspur (Babda Rui Bhandar).......(Husband Of Deceased),
District : Bilaspur, Chhattisgarh
... Respondents
(Cause title taken from Case Information System)
For Appellant : Mr. Sudhir Agrawal, Advocate
For Respondents No. 1 to 3 : Mr. Rakesh Thakur, Advocate
Hon'ble Shri Justice Ravindra Kumar Agrawal
C.A.V. Order
1. The present Miscellaneous Appeal has been filed by the insurance
company under Section 173 of Motor Vehicles Act, 1988 against the
impugned award dated 18.05.2018, passed by Learned 2 nd Additional
Motor Accident Claims Tribunal, Rajnandgaon, in Claim Case No.
104 of 2017, whereby the amount of Rs. 9,77,200/- is awarded as
compensation in favour of the claimants and the liability has been
fastened upon the insurance company to pay the compensation.
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2. The brief facts of the case are that, the claimants No. 1 & 2 are the
children of the deceased and claimant No. 3 is father of the
deceased- Smt. Aasma. The non-applicant No.4 is the husband of
the deceased.
3. On 11.05.2014, when the deceased was going from Rajnandgaon to
Dongargaon by a passenger bus bearing registration No. CG-04/E-
1794, at about 9:00 PM near Jungalpur culvert turning, the offending
vehicle truck bearing registration No. CG-08/B-1394 coming from
opposite side, driven rashly and negligently by its driver (non-
applicant No.1) and dashed the passenger bus and caused accident.
The deceased Smt. Aasma received grievous injuries on her head
and she died on the spot. The offence has been registered against
the non-applicant No. 1 and charge sheet has been filed against him.
4. The claimants have filed a claim case for compensation of total Rs.
25,60,000/- with the pleading that the deceased was a homemaker
and she was earning Rs. 5,000/- per month by sewing and knitting
and the claimants No. 1 & 2 were dependent upon their mother and
therefore they may be awarded the compensation as claimed.
5. The non-applicants No. 1 & 2 have remained ex-parte and have not
contested the claim.
6. The non-applicant No. 3/insurance company have filed its written
statement and have submitted that the offending vehicle truck was
being driven by its driver in violation of policy condition as he was not
having in possession of valid and effective driving license. Further,
the said truck was not having any valid permit and fitness certificate.
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It is also pleaded in the written statement that the owner and driver of
the passenger bus No. CG-04/E-1794 have not been made as a
party/non-applicant and the driver of the said passenger bus was
also not having any valid driving license. The excessive amount has
been claimed by the claimants and therefore their claim application is
liable to be dismissed.
7. The non-applicant No. 4/husband of the deceased, has also filed his
written statement and submitted that the deceased was his legally
wedded wife and his children are residing in the guardianship of
claimant No. 3 and he is having no objection in granting
compensation to the claimants.
8. On the basis of pleadings made by the respective parties, the
Learned Claims Tribunal has framed five issues and after recording
evidence of the parties and hearing them, passed the award on
18.05.2018 and awarded Rs. 9,77,200/- as compensation in favour
of the claimants and liability has been fastened upon the insurance
company, which is under challenge in the present appeal.
9. Learned counsel for the appellants would submit that the FIR has
been registered against the driver of unknown truck, therefore, the
involvement of the vehicle of non-applicants No. 1 & 2 are
suspicious, as there is no eyewitness to the accident that the said
truck has caused the accident and dashed the passenger bus. He
would also submit that it is an accident between two vehicles and the
driver of the passenger bus is also negligent and responsible for
accident equally and therefore, both the drivers of the two vehicles
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are contributory negligent in the accident and the liability upon the
insurance company is only to the extent of 50%, because the driver
of the passenger bus is also negligent to the extent of 50% for the
accident. He would further submit that in the present case, there is
no permit and fitness certificate of the offending vehicle and thereby
there is a breach of policy condition and the insurance company is
not liable to pay any compensation to the claimants.
10. On the other hand, learned counsel for the respondents No. 1 to 3
have supported the impugned award and have submitted that the
learned Claims Tribunal has rightly assessed the compensation and
awarded to the claimants, which is strictly in accordance with law and
needs no interference.
11. I have heard learned counsel for the parties and perused the record.
12. The death of the deceased- Smt. Aasma in the motor accident is not
in dispute in the present case. She was travelling in the bus, which
was dashed by the truck and in the said accident she died on the
spot. Further, from the inquest report (exhibit P-4) and post-mortem
report (exhibit P-5), it is duly proved that the deceased died due to
the motor accident, which has been occurred on 11.05.2014.
Learned counsel for the appellants would submit that the FIR has
been lodged against the driver of the unknown truck and there is no
eyewitness to the accident, which proves the involvement of the truck
in question, in the accident and there is no identification of the truck.
From perusal of the FIR (exhibit P-1), it appears that one Tulsi Ram
Sahu has lodged report to the police on 11.05.2014 itself, who is the
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driver of the passenger bus and stated in the FIR that an unknown
truck has dashed his passenger bus by driving his vehicle rashly and
negligently, by which 4-5 passengers of his bus have got injured. The
injured person were taken to the hospital in 108 vehicle and the
accident was witnessed by the conductor Suraj Sahu and other
passengers. Although the police has filed charge sheet against the
non-applicant No. 1 after completion of the investigation, but there is
no evidence produced by the parties on record that submission of the
final report against the non-applicant No. 1 is challenged by him or
any of the parties that the said truck driven by the non-applicant No.
1 has falsely been falsely been implicated in the accident. The said
truck was seized in the case vide seizure memo (exhibit P-2),
therefore, even if there is no eyewitness to the incident examined in
the case, it has been found proved that the truck of the respondents
No. 1 and 2 bearing No. CG-08/B-1394 is involved in the accident
and it cannot be said that the accident was occurred due to rash and
negligent driving of the unknown truck. The insurance company has
also not led any evidence to the effect that the said vehicle was not
involved in the accident. The NAW-1/C. Toppo, who is the Assistant
Manager of the insurance company has not deposed in his evidence
that the said truck was not involved in the accident, but he is the
witness to the effect that the said truck bearing No. CG-08/B-1394
was not having any valid permit and fitness certificate at the time of
accident. Further, the non-applicants No. 1 and 2 (the driver and
owner of the offending vehicle truck) have remained ex-parte and
have not contested the claim, which is the additional fact available in
the case that their vehicle was met with an accident and dashed with
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the passenger bus, for which the non-applicant No. 1 was prosecuted
for the offence of Sections 279, 337, 338 and 304-A of IPC.
Therefore, the submissions made by learned counsel for the
appellants that the said truck bearing No. CG-08/B-1394 is not
involved in the accident, does not have any merits.
13. The judgement of "Sunita vs. Rajasthan State Road Transport
Corporation and Others" 2020 (13) SCC 486 is relevant to this
issue in which the Hon'ble Supreme Court has held that only the
defence raised by the opposite party that FIR was based on wrong
facts and charge sheet was filed in connivance between the
complainant and the police, no evidence was produced by the party
concerned before the Tribunal to prove this point, the involvement of
the vehicle in the accident cannot be denied. Para 25 to 28 of the
judgement held that:-
"25. The Tribunal had justly accepted the appellants'
contention that the respondents did not challenge the
propriety of the said FIR No. 247/2011 (Exh. 1) and
charge sheet (Exh. 2) before any authority. The only
defence raised by the respondents to this plea was
that the said FIR No. 247/2011 was based on wrong
facts and was filed in connivance between the
appellants/complainants and the police, against
which the respondents complained to the in charge of
the police station and the District Superintendent of
Police but to no avail. Apart from this bald assertion,
no evidence was produced by the respondents before
the Tribunal to prove this point. The filing of the FIR
was followed by the filing of the chargesheet against
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respondent No.2 for offences under u/Sections 279,
337 and 304A of the IPC and Sections 134/187 of the
Act, which, again, reinforces the allegations in the
said FIR insofar as the occurrence of the accident
was concerned and the role of respondent No.2 in
causing such accident. Be that as it may, the High
Court has not even made a mention, let alone record
a finding, of any impropriety against FIR 247/2011
(Exh. 1) or chargesheet (Exh. 2) or the conclusion
reached by the Tribunal in that regard. Yet, the FIR
and the Charge sheet has been found to be deficient
by the High Court.
26. Before the Tribunal, respondent No.1 has neither
denied that respondent No.2 was in its employment at
the time of the accident nor has it denied that
respondent No.2 was driving the offending bus no.
RJ26/P.A. 0042 at the time of the accident. The
Tribunal has also referred to the Postmortem report
(Exh.4) which establishes that Sitaram died due to
shock arising from various fractures on his body,
which, undoubtedly, were rendered due to his
accident with the offending bus. All of the aforesaid
evidence remained uncontroverted. While the
Tribunal has accepted these depositions and the
evidence presented in that regard, the High Court
has, surprisingly, not even referred to it or even the
numerous documents presented by the said
witnesses as evidence, apart from a passing
reference to FIR 247/2011 (Exh.1).
27. The Tribunal's reliance upon FIR 247/2011 (Exh. 1)
and chargesheet (Exh. 2) also cannot be faulted as
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these documents indicate the complicity of
respondent No.2. The FIR and chargesheet, coupled
with the other evidence on record, inarguably
establishes the occurrence of the fatal accident and
also point towards the negligence of the respondent
No.2 in causing the said accident. Even if the final
outcome of the criminal proceedings against
respondent No.2 is unknown, the same would make
no difference atleast for the purposes of deciding the
claim petition under the Act. This Court in Mangla
Ram (supra), noted that the nature of proof required
to establish culpability under criminal law is far
higher than the standard required under the law of
torts to create liability.
28. Accordingly, we have no hesitation in upholding
the finding recorded by the Tribunal that there was an
accident on 28102011 at around 7AM between the
motorcycle driven by Sitaram bearing registration
number RJ 25 SA 6923 and a bus belonging to
respondent No.1. (the Rajasthan State Road
Transport Corporation) bearing registration number
RJ26/P.A. 0042 coming from the opposite direction
and being driven rashly and negligently by
respondent No.2, which resulted in the death of
Sitaram."
14. It is also relevant to note here that on 02-09-2024, the appellant filed
an application under Order 41 Rule 27 of the Civil Procedure Code,
1908, for taking additional evidence on record. Along with the
application, the appellant has filed xerox copies of the final report
dated 31-05-2014 submitted in Crime No. 182/2014 of police station
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Lalbag, Rajnandgaon and the final report dated 16-12-2015
submitted in the same offence. It is submitted by the learned counsel
for the appellant that initially, in the FIR of crime No. 182/2014
registered at police station Lalbag, Rajnandgaon, involvement of the
subject vehicle was not found by the police and a closure report was
submitted, but subsequently, another final report was filed in which
the subject vehicle Truck No. CG 08 B 1394 was involved, which
itself is suspicious. On the earlier occasion, when the police did not
search the offending vehicle and submitted a closure report, the
subsequent filing of the charge sheet shows that the truck was falsely
implicated by the police.
15. As has been discussed earlier, the said charge sheet has not been
challenged by non-applicants no. 1 and 2 before any forum that their
vehicle has falsely been implicated in the offence and no accident
has occurred from their vehicle. Even in the present case, no
evidence has been led by them. The appellant/insurance company
has not filed the aforesaid document before the claims tribunal during
the trial of the case. Even no defence has been taken in their written
statement that earlier, the police had not found involvement of truck
no. CG 08 B 1394 and the closure report has been submitted by the
police but subsequently found the involvement of the said truck in the
accident and filed the charge sheet against the non-applicant no. 1.
Even, the result of closure report submitted by the police has not
been filed as to what order has been passed by the concerned
magistrate with respect to closure report. Even otherwise, the police
can file the charge sheet when they find evidence against the alleged
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offence. The appellant/insurance company has its own agency/
mechanism to investigate the accident, but they have not filed any
such report of their investigator. Even the said final report has not
been filed by the appellant/insurance company during the trial of the
claim case. In the facts and circumstances of the case, it cannot be
expected that the appellant/insurance company was not in
knowledge of the closure report or subsequent charge sheet. The
document has been filed about 07 years after the filing of the written
statement in the claim case, and its Xerox copy has been filed.
16. Order 41 Rule 27 of CPC deals with the production of additional
evidence in the appellate court. The general principle is that the
parties to the appeal are not entitled to produce additional evidence
in the appellate court to fill up its lacuna, but the exceptions are that if
the appellate court requires any documents to be produced, it may
allow such documents to be produced. The paramount consideration
is the interest of justice. If the court is of the opinion that pronouncing
a judgment in the absence of such evidence would result in a
defective decision, such document can be taken as additional
evidence. But it is not the case here, and in the absence of any
challenge to the charge sheet, in the absence of any defence by the
appellant and also in the facts and circumstances of the case, the
additional evidence produced by the appellant (xerox copies of the
closure report and final report) cannot be said to be essential in the
case and the effective judgement can be passed without such
evidence/document also. Thus, the application of Order 41 Rule 27
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of CPC filed by the appellant for taking additional evidence is hereby
rejected.
17. The appellant/insurance company has also raised the ground of their
appeal that the driver of the passenger bus is also contributory
negligent in the accident. "Negligence" is the breach of a duty caused
by the omission to do something that a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human
affairs, would do, which a prudent man would not do. Negligence
becomes actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the person sued.
The essential components of negligence are three: duty, breach and
resulting damage. There may be negligence in civil law and in
criminal law. In a civil proceeding, a mere preponderance of
probability is sufficient and the defendant is not necessarily entitled to
the benefit of every reasonable doubt, but in a criminal proceeding,
the persuasion of guilt must be proved beyond reasonable doubt.
While considering the negligence actionable in tort and negligence
punishable as a crime, the negligence in later one has to be gross. In
view of the above, evaluation of the evidence adduced and
conclusion of negligence fixed on non-applicant No. 1/driver of the
truck cannot be said to be manifestly illegal or perverse as a case of
no evidence warranting intervention.
18. In the present case, the deceased was the passenger of the bus that
was dashed by the truck, and the legal heir of the deceased claimed
compensation from the truck, stating therein that it was the offending
vehicle. There may be composite negligence or contributory
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negligence, but the claimant being the third party, can claim
compensation from any of the vehicles. The extent of their liability, if
any, is to be decided in an appropriate proceeding. The Hon'ble
Supreme Court in the case of Khenyei vs. New India Assurance
Company Limited and Others, 2015 (9) SCC 273, has held in para
15 to 17 that:-
"15. There is a difference between contributory and
composite negligence. In the case of contributory
negligence, a person who has himself contributed to
the extent cannot claim compensation for the injuries
sustained by him in the accident to the extent of his
own negligence; whereas in the case of composite
negligence, a person who has suffered has not
contributed to the accident but the outcome of
combination of negligence of two or more other
persons. This Court in T.O. Anthony v. Karvarnan &
Ors. [2008 (3) SCC 748] has held that in case of
contributory negligence, injured need not establish
the extent of responsibility of each wrong doer
separately, nor is it necessary for the court to
determine the extent of liability of each wrong doer
separately. It is only in the case of contributory
negligence that the injured himself has contributed
by his negligence in the accident. Extent of his
negligence is required to be determined as damages
recoverable by him in respect of the injuries have to
be reduced in proportion to his contributory
negligence. The relevant portion is extracted
hereunder :
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"6. 'Composite negligence' refers to the
negligence on the part of two or more persons.
Where a person is injured as a result of
negligence on the part of two or more wrong
doers, it is said that the person was injured on
account of the composite negligence of those
wrong-doers. In such a case, each wrong doer,
is jointly and severally liable to the injured for
payment of the entire damages and the injured
person has the choice of proceeding against all
or any of them. In such a case, the injured need
not establish the extent of responsibility of each
wrong-doer separately, nor is it necessary for
the court to determine the extent of liability of
each wrong- doer separately. On the other hand
where a person suffers injury, partly due to the
negligence on the part of another person or
persons, and partly as a result of his own
negligence, then the negligence of the part of
the injured which contributed to the accident is
referred to as his contributory negligence.
Where the injured is guilty of some negligence,
his claim for damages is not defeated merely by
reason of the negligence on his part but the
damages recoverable by him in respect of the
injuries stands reduced in proportion to his
contributory negligence.
7. Therefore, when two vehicles are involved in
an accident, and one of the drivers claims
compensation from the other driver alleging
negligence, and the other driver denies
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negligence or claims that the injured claimant
himself was negligent, then it becomes
necessary to consider whether the injured
claimant was negligent and if so, whether he
was solely or partly responsible for the accident
and the extent of his responsibility, that is his
contributory negligence. Therefore where the
injured is himself partly liable, the principle of
'composite negligence' will not apply nor can
there be an automatic inference that the
negligence was 50:50 as has been assumed in
this case. The Tribunal ought to have examined
the extent of contributory negligence of the
appellant and thereby avoided confusion
between composite negligence and contributory
negligence. The High Court has failed to correct
the said error."
The decision in T.O. Anthony v. Karvarnan &
Ors. (supra) has been relied upon in Andhra
Pradesh State Road Transport Corpn. & Anr. v. K
Hemlatha & Ors. [2008 (6) SCC 767].
16. In Pawan Kumar & Anr. v. Harkishan Dass Mohan
Lal & Ors. [2014 (3) SCC 590], the decisions in T.O.
Anthony (supra) and Hemlatha (supra) have been
affirmed, and this Court has laid down that where
plaintiff/claimant himself is found to be negligent
jointly and severally, liability cannot arise and the
plaintiff's claim to the extent of his own negligence,
as may be quantified, will have to be severed. He is
entitled to damages not attributable to his own
negligence. The law/distinction with respect to
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contributory as well as composite negligence has
been considered by this Court in Machindranath
Kernath Kasar v. D.S. Mylarappa & Ors. [2008 (13)
SCC 198] and also as to joint tort feasors. This Court
has referred to Charlesworth & Percy on negligence
as to cause of action in regard to joint tort feasors
thus:
"42. Joint tortfeasors, as per 10th Edn. of
Charlesworth & Percy on Negligence, have been
described as under :
Wrongdoers are deemed to be joint tortfeasors,
within the meaning of the rule, where the cause
of action against each of them is the same,
namely, that the same evidence would support
an action against them, individually.....
Accordingly, they will be jointly liable for a tort
which they both commit or for which they are
responsible because the law imputes the
commission of the same wrongful act to two or
more persons at the same time. This occurs in
cases of (a) agency; (b) vicarious liability; and
(c) where a tort is committed in the course of a
joint act, whilst pursuing a common purpose
agreed between them."
17. The question also arises as to the remedies
available to one of the joint tort feasors from whom
compensation has been recovered. When the other
joint tort feasor has not been impleaded, obviously
question of negligence of non-impleaded driver could
not be decided apportionment of composite
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negligence cannot be made in the absence of
impleadment of joint tort feasor. Thus, it would be
open to the impleaded joint tort feasors after making
payment of compensation, so as to sue the other joint
tort feasor and to recover from him the contribution to
the extent of his negligence. However, in case when
both the tort feasors are before the court/tribunal, if
evidence is sufficient, it may determine the extent of
their negligence so that one joint tort feasor can
recover the amount so determined from the other joint
tort feasor in the execution proceedings, whereas the
claimant has right to recover the compensation from
both or any one of them."
19. In view of the above and also in the facts and evidence of the present
case, the submissions made by the learned counsel for the appellant
do not convince this court to accept the same, and in the absence of
any evidence, it is very difficult to hold that the driver of the
passenger bus, as well as the truck, are contributory negligent in the
accident.
20. The other submission made by the learned counsel for the appellant
is that the truck was being plied without having any valid driving
license, valid permit and fitness certificate at the time of the accident.
21. In the present case, the non-applicant no. 3/insurance company
(present appellant) has examined his witness, C. Toppo, (N.A.W. 1),
who is the Assistant Manager of the insurance company. He stated in
para 6 of his evidence that the driver of the offending vehicle had a
valid driving license at the time of the accident, and the truck also
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had a valid permit. He proved an intimation issued by the RTO,
Rajnandgaon (Ex. D-2), by which it has been informed that the truck
bearing No. CG 08 B 1394 did not have any valid fitness certificate
on 11-05-2014, which is the date of the accident. Earlier, the vehicle
had a fitness certificate from 04-04-2013 to 03-04-2014 and then
from 30-12-2014 to 29-12-2015.
22. The issue of the requirement of a fitness certificate at the time of the
accident came up for consideration before the Hon'ble Division
Bench of this Court in M.A.(C) No. 1289/2014, "Adesh Kumar vs.
Smt. Satarupa Bai Yadav and Others" and other connected
appeals, and vide order dated 19-11-2020, it has been held that
non-availability of fitness certificate of the vehicle at the time of the
accident is a fundamental breach of the insurance policy. In para 17
to 21, the Hon'ble Division Bench of this Court has held that:-
"17. Requirement of certificate of fitness is envisaged
under Section 56 of the Act of 1988. Section 56 (1) is
reproduced below for ready reference :-
"Subject to the provisions of sections 59 and 60,
a transport vehicle shall not be deemed to be
validly registered for the purposes of section 39,
unless it carries a certificate of fitness in such
form containing such particulars and information
as may be prescribed by the Central
Government, issued by the prescribed authority,
or by an authorized testing station mentioned in
sub-section (2), to the effect that the vehicle
complies for the time being with all the
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requirements of this Act and the rules made
thereunder:
Provided that where the prescribed authority or
the "authorized testing station" refuses to issue
such certificate, it shall supply the owner of the
vehicle with its reasons in writing for such
refusal."
18. Perusal of above provision would show that
unless and until there is valid certificate of fitness,
transport vehicle shall not be deemed to be validly
registered. Requirement of certificate of fitness is
mandatory and fundamental for its registration.
Section 39 of the Act of 1988 envisages for
registration of vehicle, which reads as under :-
"39. Necessity for registration. --No person shall
drive any motor vehicle and no owner of a motor
vehicle shall cause or permit the vehicle to be
driven in any public place or in any other place
unless the vehicle is registered in accordance
with this Chapter and the certificate of
registration of the vehicle has not been
suspended or cancelled and the vehicle carries a
registration mark displayed in the prescribed
manner :
Provided that nothing in this section shall apply
to a motor vehicle in possession of a dealer
subject to such conditions as may be prescribed
by the Central Government.
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19. It prescribes that no person shall drive any motor
vehicle in public or other places unless vehicle is
registered. Conjoint reading of provisions of Section
39 and 56 of the Act of 1988 makes it clear that if the
transport vehicle is plied on public road or any place
without certificate of fitness will be in breach of policy
condition and such breach will be a fundamental
breach.
20. This issue has been considered by the five judges
Bench of Kerala High Court in case of Pareed Pillai vs.
Oriental Insurance Company Co. Ltd reported in AIR
2019 Kerala 9 and held thus :-
"17. The stipulations under the above provisions
clearly substantiate the importance and
necessity to have a 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 Section
66 of the Act and by virtue of the mandate under
Section 56 of the Act, no transport vehicle
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without Fitness Certificate will be deemed as a
validly registered vehicle for the purpose of
Section 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 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
22 / 25
as a fundamental breach and not a technical
breach and any interpretation to the contrary,
will only negate the intention of the law makers."
21. In view of very specific aforementioned provisions
of the Act of 1988 and the ruling of Kerala High Court
authored by one of us Hon'ble Justice P.R.
Ramachandra Menon, we hold that, absence of fitness
certificate for the offending vehicle is fundamental
breach of policy condition."
23. Since, the vehicle was being driven in violation of policy condition as
there was no valid fitness certificate, the Insurance Company is
exonerated from its liability to pay the compensation on the ground that
on the date of accident there was no valid fitness certificate with the
offending vehicle. The liability to pay the compensation has been
considered by Hon'ble Supreme Court in Amrit Paul Singh Vs. Tata
AIG General Ins. Co. Ltd, 2018 (7) SCC 558. Para 14 of the aforesaid
judgment passed by the Hon'ble Supreme Court is as under:-
"14. The Court posed the question as to whether an
insurer can avoid its liability in the event it raised the
defence as envisaged in sub-section (2) of Section
149 of the Act corresponding to sub- section (2) of
Section 96 of the Motor Vehicles Act, 1939. The Court
analysed the language employed in sub- section (2)
of Section 149, specifically clause (a), and, after
scrutinising the same and referring to various
authorities, opined: (Swaran Singh case, SCC pp.
330-31 & 335, paras 69-71 & 83)
23 / 25
"69. The proposition of law is no longer res
integra that the person who alleges breach must
prove the same. The insurance company is,
thus, required to establish the said breach by
cogent evidence. In the event the insurance
company fails to prove that there has been
breach of conditions of policy on the part of the
insured, the insurance company cannot be
absolved of its liability. (See Sohan Lal Passi)
70. Apart from the above, we do not intend to lay
down anything further i.e. degree of proof which
would satisfy the aforementioned requirement
inasmuch as the same would indisputably
depend upon the facts and circumstances of
each case. It will also depend upon the terms of
contract of insurance. Each case may pose a
different problem which must be resolved
having regard to a large number of factors
governing the case including conduct of parties
as regards duty to inform, correct disclosure,
suppression, fraud on the insurer, etc. It will
also depend upon the fact as to who is the
owner of the vehicle and the circumstances in
which the vehicle was being driven by a person
having no valid and effective licence. No hard-
and-fast rule can, therefor, be laid down. If in a
given case there exists sufficient material to
draw an adverse inference against either the
insurer or the insured, the Tribunal may do so.
The parties alleging breach must be held to
have succeeded in establishing the breach of
24 / 25
conditions of the contract of insurance, on the
part of the insurer by discharging its burden of
proof. The Tribunal, there cannot be any doubt,
must arrive at a finding on the basis of the
materials available on records.
71. In the aforementioned backdrop, the
provisions of sub-sections (4) and (5) of Section
149 of the Motor Vehicles Act, 1988 may be
considered as to the liability of the insurer to
satisfy the decree at the first instance.
***
83. Sub-section (5) of Section 149 which
imposes a liability on the insurer must also be
given its full effect. The insurance company may
not be liable to satisfy the decree and, therefore,
its liability may be zero but it does not mean that
it did not have initial liability at all. Thus, if the
insurance company is made liable to pay any
amount, it can recover the entire amount paid to
the third party on behalf of the assured. If this
interpretation is not given to the beneficent
provisions of the Act having regard to its
purport and object, we fail to see a situation
where beneficent provisions can be given effect
to. Sub-section (7) of Section 149 of the Act, to
which pointed attention of the Court has been
drawn by the learned counsel for the petitioner,
which is in negative language may now be
noticed. The said provision must be read with
sub-section (1) thereof. The right to avoid
liability in terms of sub-section (2) of Section
149 is restricted as has been discussed
hereinbefore. It is one thing to say that the
insurance companies are entitled to raise a
defence but it is another thing to say that
despite the fact that its defence has been
accepted having regard to the facts and
circumstances of the case, the Tribunal has
power to direct them to satisfy the decree at the
first instance and then direct recovery of the
same from the owner. These two matters stand
apart and require contextual reading."
24. The deceased was a third party, hence in view of the judgment
passed by Hon'ble Supreme Court in the matter of Amrit Paul Singh
(supra), it is directed that the Insurance Company shall first deposit
the entire amount of compensation along with the interest and
thereafter may recover the same from the owner and driver of the
offending vehicle i.e. Respondent Nos. 4 & 5.
25. With this observation, this appeal is partly allowed to the extend
indicated hereinabove.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
