Delhi High Court
National Insurance Company ... vs Mahipal & Ors. on 12 July, 2023
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:12.07.2023
+ MAC.APP. 106/2022 & CM APPL. 16468/2022 & 1803/2023
NATIONAL INSURANCE COMPANY LIMITED
..... Appellant
Through: Mr.Zorawar Singh &Mr.Jayant
Rastogi, Advs.
versus
MAHIPAL & ORS.
..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. This appeal has been filed by the appellant challenging
the Award dated 24.12.2021 (herein after referred to as the
'Impugned Award') passed by the learned Motor Accident
Claims Tribunal-01 (North), Rohini Court, Delhi (herein after
referred to as the 'Tribunal') in MAC Petition No. 125/2015
titled Smt. Shakuntala & Ors. v. Sh. Mahipal & Anr.
2. The limited challenge to the Impugned Award is on the
ground that the learned Tribunal has failed to appreciate that the
Offending Vehicle, which is a tractor bearing Registration No.
HR-38V-0680, was being driven without a valid Fitness
Certificate and, therefore, a right to recover the compensation
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from the owner, that is, the respondent no.1 herein, should have
been reserved with the appellant.
3. The learned counsel for the appellant has placed reliance
on the cross-examination of the respondent no.1, who had
appeared as R1W1 before the learned Tribunal. In the course of
his cross examination recorded on 09.07.2019, on the issue of
the Fitness Certificate, the respondent no.1 had stated as under:-
"I am 7th class pass. I do not understand
English language. I am aware about the
contents of my affidavit. It is wrong to suggest
that I have not placed on record fitness
certificate of the offending vehicle. I am filing
the same today.
Court observation: Respondent No.1 has
already exhibited it but had not placed on the
Court file. Accordingly is given Ex.
R1W1/R2X1. It is correct that I have no fitness
certificate as on the date of accident. Vol. I
had deposited the amount but I was not able to
get it from the concerned Authority. I do not
have any receipt with me today for getting the
fitness certificate prior to the date of accident
for that reason I do not have any receipt for
depositing the amount for getting the fitness
certificate. It is correct that on the date of
accident I was authorized only to drive non-
transport vehicle and tractor. Vol. As per my
licence I was authorized to drive the tractor. It
is wrong to suggest that on the date of
accident I was not authorized to drive the
offending vehicle. It is wrong to suggest that in
view of terms and conditions of insurance
policy, insurance company is not liable to pay
any compensation."
(Emphasis supplied)
4. He submits that the Fitness Certificate that was exhibited
as Ex.R1W1/R2X1, was of the period subsequent to the date of
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the accident. The witness has also admitted that he had not
obtained the Fitness Certificate for the vehicle as on the date of
the accident.
5. The learned counsel for the appellant, placing reliance on
the Full Bench Judgment of the High Court of Kerala in
Ramankutty v. Pareed Pillai, 2018 SCC OnLine Ker 3542, and
the judgment of this Court in Kaushalpati Pandey v. New India
Ass. Co. Ltd. And Others, 2020 SCC OnLine Del 2660, submits
that the learned Tribunal has erred in not reserving a right of
recovery in the appellant.
6. In spite of the respondent no.1 having been served
through publication, none has appeared for the respondent no.1.
The respondent no.1 is accordingly proceeded ex parte.
7. It is found from the reading of the Impugned Award that
the learned Tribunal has laid emphasis only on the nature of the
Driving License which was held by the respondent no.1 and not
on the issue whether the Offending Vehicle had a valid and
subsisting Fitness Certificate as on the date of the accident.
8. The importance of a Fitness Certificate has been
highlighted by the High Court of Kerala in its judgment in
Ramankutty (supra), observing as under:-
"17. Importance of the fitness/road
worthiness of a vehicle, right from the time of
registration of the vehicle, is further
discernible from Rule 47 of the Central Motor
Vehicles Rules 1989 [referred to as Central
Rules].The said Rule deals with application
for registration of motor vehicles, which,
among other things, stipulates that it shall be
accompanied by various documents. Under
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sub-rule (1)(g), It is mandatory to produce
road worthiness certificate in Form 22 from
the manufacturers [Form 22A from the body
builders]. On completing the
formalities/procedures, 'Certificate of
Registration' is to be issued in terms of Rule
48 of the Central Rules in Form 23/23A, as the
case may be. The said Rule contains a proviso,
insisting that, when Certificate of Registration
pertains to a transport vehicle, it shall be
handed over to the registered owner only after
recording the Certificate of Fitness in Form
38. Validity of the Certificate of Fitness is only
to the extent as envisaged under Rule 62 of the
Central Rules, which mandates, as per the
proviso, that the renewal of a Fitness
Certificate shall be made only after the
Inspecting Officer or authorised Testing
Station as referred to in sub Section 1 of
Section 56 of the Act has carried out the test
specified in the table given therein.
18. 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 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
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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 as a
fundamental breach and not a technical
breach and any interpretation to the contrary,
will only negate the intention of the law
makers."
9. Placing reliance on the judgment of the High Court of
Kerala in Ramankutty (supra), this Court in Kaushalpati
Pandey (supra) dismissed the appeal of the owner against the
Award passed by the learned Tribunal therein, which had
granted liberty to the insurer to seek recovery of the
compensation amount from the owner of the Offending Vehicle
therein on the ground that the Offending Vehicle did not have a
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valid Fitness Certificate as on the date of the accident. The
relevant observation of this Court is as under:-
"7. The obvious rationale for a valid fitness
certificate is the proof that the vehicle is
working properly apropos all vital aspects i.e.,
its brakes, indicator lights, wipers, seat-belts,
etc. are working optimally, so that the vehicle
can be manoeuvred on a public street without
causing damage, to anybody. If there is default
in any of these requisite conditions, then the
vehicle itself would be a danger to public
safety and would impose a traffic hazard. This
has been discussed in para 18 of Ramankutty
supra."
10. Section 56(2) of the Motor Vehicles Act, 1988 states that
a certificate of fitness shall remain effective for such period as
may be prescribed by the Central Government having regard to
the objects of the Act. Rule 62 of the Central Motor Vehicles
Rules, 1989 prescribes the period of validity of a Fitness
Certificate. It further states that renewal a fitness certificate
shall be made only after an Inspecting Officer or authorised
testing stations as referred to in sub-section (1) of section 56 of
the Act has carried out the tests specified in Rule 62 of the
Rules. Therefore, renewal of the Fitness Certificate is not
automatic on deposit of the fee for obtaining the same. It is
dependent on the result of the tests.
11. In the present case, respondent no.1, in his cross-
examination, had admitted that as on the date of accident, he did
not have a valid Fitness Certificate for the offending vehicle.
Though it was the case of the respondent no.1 that requisite fee
for obtaining the Fitness Certificate had been deposited with the
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transport authority, no proof in that regard has been placed on
record by the respondent no.1 in spite of a notice dated
04.03.2019 (Ex.R2W1/1) issued by the appellant to the
respondent no.1 seeking production of the Fitness Certificate.
The Fitness Certificate produced by the respondent no.1 and
marked as Ex.R1W1/R2X1 shows the inspection date as
09.04.2018 and is, therefore, after the date of the accident,
which was 04.12.2017. The same, therefore, would not be
relevant to determine the inter se liability between the appellant
and the respondent no.1 as on the date of the accident.
12. In view of the above it must be held that the respondent
no.1 has failed to prove that he was in possession of a valid
Fitness Certificate for the Offending Vehicle as on the date of
the accident. In terms of the judgment in Ramankutty (supra)
and Kaushalpati Pandey (supra), therefore, the appellant was
entitled to a right to recover the compensation paid to the
Claimants from the respondent no.1.
13. The present appeal is accordingly allowed. The appellant
is granted liberty to recover the awarded amount from the
respondent no.1 in accordance with law.There shall be no order
as to costs.
NAVIN CHAWLA, J
JULY 12, 2023/rv/ss
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