Madhya Pradesh High Court
The New India Assurance vs Arti Vishwakaram on 1 April, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 1 st OF APRIL, 2023
MISC. APPEAL No. 3018 of 2019
BETWEEN:-
THE NEW INDIA ASSURANCE THR. DEPUTY MANAGER
LEGAL HUB NEW INDIA ASSURANCE COMPANY
BRANCH OFFICE NAPIER TOWN JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI VITTHAL RAO - ADVOCATE)
AND
1. ARTI VISHWAKARAM W/O LATE BRRIJESH
VISHWAKARMA, AGED ABOUT 30 YEARS,
SHRINATH KI TALLIYA LARDGUNJ (MADHYA
PRADESH)
2. DEVANSH VISHWAKARMA S/O LATE BRIJESH
VISHWAKARMA, AGED ABOUT 11 YEARS,
OCCUPATION: MINOR THROUGH THEIR
NATURAL GUARDIAN ARTI VISHWAKARMA
SHRINATH KI TALLIYA LORDGUNJ DISTT
JABALPUR (MADHYA PRADESH)
3. VISHAL VISHWAKARMA S/O LATE BIRJESH
VISHWAKARMA, AGED ABOUT 9 YEARS,
OCCUPATION: MINOR THROUGH THEIR
NATURAL GUARDIAN ARTI VISHWAKARMA
SHRINATH KI TALLIYA LORDGUNJ DISTT
JABALPUR (MADHYA PRADESH)
4. DUKKHAN BAI W/O DILIP VISHWAKARMA
SHRINATH KI TALLIYA LORDGUNJ DISTT
JABALPUR (MADHYA PRADESH)
5. RAJU KOLE S/O PURAN LAL KOLE, AGED ABOUT
Signature Not Verified
SAN 36 YEARS, LALPUR GWARIGHAT DISTT JABALPUR
(MADHYA PRADESH)
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.04.01 19:14:20 IST
6. RELIABLE DAIRY PRODUCTS AND BIOTIC PVT
2
L T D PROPRIETOR HITESH SAHU 1621 NAPIER
TOWN MLB ROAD JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI RAKESH KUMAR PATEL - ADVOCATE FOR RESPONDENTS NO. 1
TO 3 AND SHRI SHUSHANT RANJAN - ADVOCATE FOR THE
RESPONDENTS NO. 5 AND 6 )
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
This appeal is filed by the Insurance Company under Section 173(1) of
the Motor Vehicles Act, 1988, being aggrieved of award dated 14.03.2019,
passed by 13th Addl. Motor Accident Claims Tribunal, Jabalpur (M.P.), in
MVC No.637/2015, on the ground that the owner of the offending truck bearing
registration No. MP-20-GA/4466, was not having valid fitness certificate on the
date of the accident and, therefore, in the light of the law laid down by
Constitution Bench of Kerala High Court in Pareed Pillai Vs. Oriental
Insurance Co. Ltd. (2019 ACJ 16), appellant should have been exonerated of
its liability and at best, the orders could have been to pay and recover.
2. Shri Sushant Ranjan, Advocate for respondents No. 5 & 6, in his turn,
submits that this issue is already settled by a Coordinate Bench of this Court in
Oriental Insurance Co. Ltd. Vs. Manoj and others (2014 ACJ 2389),
wherein, it is held that unless the policy contains any condition to possess the
fitness certificate, no liability can be avoided by the Insurance Company.
Placing reliance ont he said judgment, it is submitted that fitness is not a
requirement for plying a vehicle on the road and thus, the appeal being devoid
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SAN
of merit deserves to be dismissed and is dismissed.
Digitally signed by ASHWANI PRAJAPATI
3. Similarly, Shri Rakesh Kumar Patel, appearing for respondents No. 1 to 3,
Date: 2023.04.01 19:14:20 IST
has placed reliance on the decision of a Coordinate Bench in Naim Vs.
Sudheer and others [2014 (1) ACCD 176 (MP)], where it is held that there is
no need for fitness.
4. After hearing learned counsel for the parties and going through the record
specifically the insurance policy Ex.D/2, it is evident that the policy contained a
stipulation that under the head important notice, it is mentioned that the insured
is not indemnified, if, the vehicle is used or driven otherwise than in accordance
with this schedule. Any payment made by the company by reason of wider
terms appearing in the certificate in order to comply with the Motor Vehicles
Act, 1988, is recoverable from the insured: see clause headed "AVOIDANCE
OF CERTAIN TERMS AND RIGHTS OF RECOVERY". It is clarified that in
case the declaration regarding the ncb or other previous policy details made by
the insured, is found to be incorrect, all the benefits (including claim) under
Section 1 of this policy, will stand forfeited.
5. Thus, it is evident that provisions of Motor Vehicles Act are applicable and
Section 56 of the Motor Vehicles Act, clearly provides that 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 authorised testing station mentioned in sub-section (2), to the effect that
the vehicle complies for the time being with all the requirements of this Act and
the rules made thereunder.
6. In view of such provisions, it is apparent that there is a statutory
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SAN
requirement of certificate of fitness for a transport vehicle. Admittedly, vehicle
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.04.01 19:14:20 IST
driven by respondents No. 5 and owned by respondent No.6 is a transport
vehicle.
7. In view of such facts, Constitution Bench decision of Kerala High Court in
Pareed Pillai (supra), will be applicable in full force, wherein, it is held that no
transport vehicle without fitness certificate would be deemed to be validly
registered vehicle fit to be plied in a public place. Thus, when this interpretation
is looked into, which was considered by the Coordinate Benchs in Naim Vs.
Sudheer (supra) or Oriental Insurance Co. Ltd. Vs. Manoj and others
(supra), there being a statutory provision contained in this statute dealing with
the Motor Vehicles, being binding, will supersede the ratio of the law laid down
by Coordinate Benches and, therefore, impugned award is modified and it is
directed that the insurance company shall satisfy the award and will be entitled
to recover the same from the respondent No.6 owner of the vehicle herein.
8. In above terms, appeal is disposed of.
9. Let record of the Claims Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.04.01 19:14:20 IST
