Rajasthan High Court - Jodhpur

Sukhlal vs Parvati on 9 December, 2022

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 955/2020

1. Sukhlal S/o Shri Galji Dodiyar, Aged About 38 Years, R/o Saroda Damorwada, Tehsil And P.S. Sagwada, Distt. Dungarpur. (Driver)

2. Velji S/o Shri Hajiya Makwana, Aged About 45 Years, R/o Nawatapara, Tehsil And P.S. Sagwada, Ditt. Dungarpur. (Registered Owner)

----Appellants Versus

1. Parvati W/o Late Shri Prabhulal Makwana,

2. Jayantilal S/o Late Shri Prabhulal Makwana, Minor

3. Mukesh S/o Late Shri Prabhulal Makwana, Minor,

4. Manoj S/o Late Shri Prabhulal Makwana, Minor,

5. Miss Payal D/o Late Shri Prabhulal Makwana, Minor, Respondent No.2 to 5 are minor through their Natural Guardian Mother Smt. Parvati,

6. Smt. Amri W/o Late Shri Soma Makwana,

All are R/o Nawatapara Fala Ram Talai, Distt. Dungarpur.

7. Chola Mandal Ms General Insurance Company Ltd., Branch Office No. 1, Nawakur Complex, In Front Of South Indian Bank, Bhopalpura, Udaipur (Raj.) (Insurer)

----Respondents

For Appellant(s) : Mr. Love Jain For Respondent(s) : -

JUSTICE DINESH MEHTA

Order

09/12/2022

1. By way of the present appeal, the appellants have challenged

the order dated 19.11.2019, passed by the learned Motor Accident

Claims Tribunal, Dungarpur (hereinafter after referred to as "the

Tribunal"), whereby a claim petition filed by the respondent-

claimants No.1 to 6 was allowed while holding the appellant -

owner of the vehicle liable for the claim. The insurance company -

respondent No.7 was though held not liable but has been asked to

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pay the amount of claim, with a stipulation that the insurance

company would be entitled to recover the amount from the

present appellant-owner of the vehicle.

2. The present appellant was held liable for the claim amount,

as the learned Tribunal found that the appellant-owner of the

vehicle - Tempo bearing registration No.RJ-12-TA-1420 was not

having a fitness certificate, which amounted to violation of policy

conditions.

3. Mr. Jain, learned counsel for the appellant argued that if the

Transport authority wanted to cancel petitioner's fitness certificate

it was required to pass a speaking order after providing an

opportunity of hearing to the petitioner. Since, neither any

proceedings were initiated nor the permit issued qua the Tempo in

question was cancelled, Mr. Jain argued, it cannot be said that the

Tempo was being plied without a valid permit and there was a

violation of conditions of the policy.

4. In support of the contention aforesaid, learned counsel for

the appellant relied upon the judgment of Allahabad High Court

dated 19.07.2019 in United India Insurance Co. Ltd. Vs. Smt.

Uma Tripathi & Ors. : First Appeal From Order No.310/2013

and Smt. Uma Tripathi & Ors. Vs. Ishampal & Anr.: First Appeal

From Order No.4322/2012 in which it has been held thus:-

"25. At this juncture, it is useful to notice Section 86(1)(a) which provides that the transport authority which has granted permit may cancel the permit or suspend it for the period as it thinks fit on the breach of any condition specified in Section 84 or of any condition contained in the permit. The proviso to Section 86(1) of the Act, 1988 provides that no permit shall be suspended or cancelled unless an opportunity of hearing has been given to the holder of permit to furnish his explanation.

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Section 86(1) of the Act, 1988 is reproduced herein below:

"86 Cancellation and suspension of permits.--(1) The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit--

(a) on the breach of any condition specified in Section 84 or of any condition contained in the permit, or

(b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or

(c) if the holder of the permit ceases to own the vehicle covered by the permit, or

(d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or

(e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or

(f) if the holder of the permit acquires the citizenship of any foreign country:

Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation."

26. The proviso to Section 86(1) clearly contemplates an opportunity of hearing to the holder of permit before cancellation or suspension of the permit on the ground specified in Section 86(1)(a) to (f). Thus, it is evident that the Act does not contemplate that if there is violation of any condition of the permit, the permit shall automatically be deemed to have been cancelled. In fact competent authority has to pass an order before cancelling or suspending the permit after affording opportunity of hearing to the holder of permit."

5. Having heard learned counsel for the appellant and upon

perusal of the judgment of the Allahabad High Court rendered in

the case of Smt. Uma Tripathi (supra), this Court is not

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persuaded to go with the reasons and conclusion drawn by the

Allahabad High Court. The reasons are not far to seek.

6. The Allahabad High Court has rejected the appeal filed by the

insurance company essentially on the ground that the permit of

the owner of the vehicle therein was not cancelled and its fitness

certificate was valid till 16.07.2010, seven days before the

accident took place.

7. Section 56 of the Act of 1988 which has been reproduced

hereinfra mandates a fitness certificate to be had by an owner of

the Transport vehicle.

"56. Certificate of fitness of transport vehicles.-- (1) 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 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.

(2) The "authorized testing station" referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with

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the rules made by the Central Government for regulation and control of such stations or garages. (3) Subject to the provisions of sub-section (4), certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act. (4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained: 1[Provided that no such cancellation shall be made by the prescribed authority unless such prescribed authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualifications.] (5) A certificate of fitness issued under this Act shall, while it remains effective be valid throughout India."

8. A bare look at the provisions contained under section 56 of

the Act of 1988 shows that in absence of any fitness certificate, a

Transport vehicle shall be deemed to be a vehicle without any

registration for the purpose of section 39 of the Act of 1988.

9. Section 39 clearly provides that no person shall drive any

vehicle without a vehicle being registered. Said section 39 of the

Act of 1988 reads thus :-

"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

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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."

10. A combined reading of section 39 and 56 of the Act of 1988

shows that in absence of certificate of fitness, a vehicle shall be

deemed to be without registration and such vehicle cannot be

plied on road. In addition, as per section 66 of the Act of 1988,

the breach of the requirement of having a valid permit goes to the

very root of the permission to use a vehicle as a transport vehicle

in a public place, subject to the exceptions provided in section 66.

11. This Court fails to comprehend that when a vehicle is without

registration and the same cannot even be plied on road, whether

the question of (non)cancellation of fitness certificate, ergo,

having a permit, even arises?

12. According to this Court, the breach of the condition of

possessing a valid fitness certificate is not a mere technical

breach, but a fundamental breach of the policy conditions. Thus,

the breach entitles the insurer to deny the claim under the policy

and the duty/liability of indemnification by the insurer company

does not arise at all.

13. This view has been fortified in a reference answered by the

Kerala High Court in the case of Pareed Pillai vs. Oriental

Insurance Co. Ltd. reported in AIR 2019 Ker 9. While adopting

a purposive interpretation and discussing the intent of the

lawmakers at length, the Court observed thus:

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"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 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

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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."

14. In the opinion of this Court, the Allahabad High Court has

gone a step ahead and decided the issue in favour of the owner of

the vehicle on the basis of section 56 of the Act of 1988. It will be

pertinent to note here that the judgment in case of Smt. Uma

Tripathi (supra) relied upon by the appellant is currently subject to

appeal before Hon'ble the Supreme Court (SLP(C) Nos. 29670-

29671/2019) and the view taken by the Allahabad High Court has

not yet attained finality.

15. As noticed herein above, since there was no valid fitness

certificate on the date of accident, the vehicle cannot be plied on

road. Since the vehicle was plying in clear violation of the terms of

the policy on the date of the accident, the insurance company has