Kerala High Court
New India Assurance Company Ltd vs Vijaylakshmi on 31 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 31ST 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.
MACA NO.2371 OF 2012 2
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:
MACA NO.2371 OF 2012 3
JUDGMENT
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 1st
respondent in a rash and negligent manner, hit
on the back side of the car, thereby
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 3rd respondent/insurer, and
hence this appeal.
3. The 3rd 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
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
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
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
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
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 7th
respondent who is the insured owner.
10. In the result, the appeal is allowed to
the extent of allowing the appellant to recover
the compensation amount deposited by them,
from the insured owner/7th respondent
(respondent No.5 in the OP(MV)) and his
assets, and no order is made as to costs.
Sd/-
SOPHY THOMAS,
JUDGE
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