Afr High Court
Case Details
1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.05.09 17:35:10 +0530 2025:CGHC:21559 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1228 of 2017 Order reserved on : 29.04.2025 Order delivered on :09.05.2025 Kamal Panjwani S/o Shri Ramesh Panjwani R/o Municipal School Road Dhamtari, Tahsil And District Dhamtari, Chhattisgarh.(Owner) --- Appellant versus 1 - Manoharlal Yadav S/o Kartikram Yadav Aged About 40 Years R/o Village Chittaud, P.O. Gurur, District Balod, Chhattisgarh. (Driver) 2 - Branch Manager, The Oriental Insurance Company Limited, Zone Office Dhamtari, Nearghadi Chowk, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh. (Insurer) 3 - Indira Bai Wd/o Shyamlal Sahu Aged About 45 Years R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh 4 - Tejeshwar S/o Late Shyamlal Sahu Aged About 25 Years R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh (Claimants) --- Respondent(s) MAC No. 1234 of 2017 Kamal Panjwani S/o Shri Ramesh Panjwani, R/o Municipal School Road Dhamtari, Tahsil And District Dhamtari, Chhattisgarh. (Owner) 2 Versus ---Appellant 1 - Manohar Yadav S/o Kartikram Yadav, Aged About 40 Years R/o Village Chittaud, P.O./p.S. Gurur, District Balod, Chhattisgarh. (Driver) 2 - Branch Manager, The Oriental Insurance Company Limited, Zone Office Dhamtari, Near Ghadi Chowk, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh. (Insurer) 3 - Mulchand Sahu S/o Derha Ram, Aged About 45 Years R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh 4 - Lata Bai W/o Mulchand Sahu, Aged About 42 Years R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh 5 - Derha Ram S/o Late Ganguram Sahu, Aged About 80 Years R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh(Claimants) --- Respondent(s) MAC No. 1235 of 2017
Legal Reasoning
Kamal Panjwani S/o Shri Ramesh Panjwani, R/o Municipal School Road Dhamtari, Tahsil And District Dhamtari, Chhattisgarh (Owner) ---Appellant Versus 1 - Manoharlal Yadav S/o Kartikram Yadav, Aged About 40 Years R/o Chittaud, Post Office Gurur, District Balod, Chhattisgarh. (Driver) 2 - Branch Manager, The Oriental Insurance Company Limited, Zonal Office Dhamtari, Near Ghadi Chowk, Dhantari, Tahsil And District Dhamtari, Chhattisgarh. (Insurer) 3 - Keshav S/o Saradhu Sahu, Aged About 50 Years Caste Sahu, R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh. 3 4 - Budhiyarin Bai W/o Keshav Sahu Aged About 45 Years Caste Sahu, R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh. 5 - Saradhu S/o Late Sambhu Sahu, Aged About 68 Years Caste Sahu, R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh. 6 - Dhansir W/o Saradhu Sahu, Aged About 65 Years Caste Sahu, R/o Village Potiadih, Tahsil And District Dhamtari, Chhattisgarh. (Claimants) --- Respondent(s) MAC No. 1378 of 2017 1 - Mulchand Sahu S/o Derha Ram Sahu, Aged About 45 Years R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh 2 - Lata Bai Sahu W/o Mulchand Sahu, Aged About 42 Years R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh 3 - Derha Ram S/o Late Gangu Ram Sahu, Aged About 80 Years R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh. (Claimants) ---Appellants Versus 1 - Manohar Lal Yadav S/o Kartik Ram Yadav, Aged About 40 Years R/o Village Chitoud, Post And P.S. Gurur, District Balod, Chhattisgarh (Driver) 2 - Kamal Panjwani S/o Ramesh Panjwani, R/o Municipal Wrongly Mentioned Punicipal School Road, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh (Owner) 3 - Branch Manager, The Oriental Insurance Company Limited, Division Office Dhamtari, Near Ghadi Chowk Dhamtari, Tahsil And District Dhamtari, Chhattisgarh. (Insurer) --- Respondent(s) 4 MAC No. 1346 of 2017 1 - Keshav S/o Saradhu Sahu Aged About 50 Years R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh 2 - Budhiyarin Bai W/o Keshav Sahu Aged About 45 Years Caste Sahu, R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh 3 - Saradhu S/o Late Shambhu Sahu Aged About 68 Years Caste Sahu, R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh 4 - Dhansir W/o Saradhu Sahu Aged About 65 Years Caste Sahu, R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh. (Claimants) ---Appellants Versus 1 - Manohar Lal Yadav S/o Kartik Ram Yadav Aged About 40 Years R/o Village Chitoud, Post And Police Station Gurur, District Balod, Chhattisgarh (Driver) 2 - Kamal Panjwani, S/o Ramesh Panjwani R/o Municipal School Road, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh (Owner) 3 - Branch Manager, The Oriental Insurance Company Limited, Division Office Dhamtari, Near Ghadi Chowk Dhamtari, Tahsil And District Dhamtari, Chhattisgarh (Insurer) --- Respondent(s) MAC No. 1370 of 2017 1 - Indira Bai Widow Of Shyam Lal Sahu Aged About 45 Years R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh 2 - Tejeshwar Lal S/o Shyam Lal Sahu Aged About 25 Years R/o Village Potiyadih, Tahsil And District Dhamtari, Chhattisgarh(Claimants) 5 Versus ---Appellants 1 - Manohar Lal Yadav S/o Kartik Ram Yadav Aged About 40 Years R/o Village Chitoud, Post And Police Station Gurur, District Balod, Chhattisgarh (Driver) 2 - Kamal Panjwani S/o Ramesh Panjwani, R/o Municipal School Road, Dhamtari, Tahsil And District Dhamtari, Chhattisgarh (Owner) 3 - Branch Manager, The Oriental Insurance Company Limited, Division Office Dhamtari, Near Ghadi Chowk Dhamtari, Tahsil And District Dhamtari, Chhattisgarh. (Insurer) --- Respondent(s) For Owner For Driver For Insurer For Claimants : Mr. Ritesh Verma, Advocate : None : Mr. Akash Shrivastava, Advocate on behalf of Mr. R.N. Pusty, Advocate : Mr. Praveen Dhurandhar, Advocate Hon'ble Shri Justice Sanjay Kumar Jaiswal (CAV ORDER) 1. Since all the appeals arise out of same accident and award dated 17/07/2017, by Additional Motor Accident Claims Tribunal (FTC), Dhamtari, District Dhamtari (C.G.), in Claim Cases No. 18/2016, 19/2016 & 21/2016, therefore, they are being heard and decided by this common order. 2. The gist of the claims before the Tribunal, in brief, was that on 27.09.2015, Poshan @ Pushpendra along with Digendra Kumar Sahu and Deepak Kumar Sahu (now deceased) were going to village Aamdi by motorcycle, at around 6 PM, near Coal Kiln, driver Manohar Lal Yadav, driving the vehicle (Truck) 6 bearing registration No. CG-07-ZC-1485 (offending vehicle) rashly and negligently and dashed the motorcycle of deceased persons due to which, all of them sustained grievous injuries and Poshan @ Pushpendra along with Digendra Kumar Sahu died on spot while Deepak Kumar Sahu died during treatment in a hospital. Thereafter, the matter was reported to the concerned Police Station based on which a criminal case was registered. 3. It is claimed that at the time of accident, deceased Poshan @ Pushpendra was aged about 20 years and he was unmarried. He was a Mason and was earning Rs. 10,000/- monthly. Due to the casual death of Poshan @ Pushpendra, there is an irreparable loss to the claimants, therefore, the claimants of Poshan had preferred an application (Claim Case No.18/2016) before the Tribunal claiming compensation to the tune of Rs. 22,25,000/-. 4. At the time of accident, Deceased Digendra Kumar Sahu was aged about 22 years and he was unmarried. He was a labour and agriculturist and was earning Rs. 5,000/- monthly and Rs.50,000/- per year from agriculture work. Due to the casual death of Digendra, there is an irreparable loss to the claimants, therefore, the claimants of Digendra had preferred an application (Claim Case No.19/2016) before the Tribunal claiming compensation to the tune of Rs. 14,25,000/-. 7 5. At the time of accident, Deceased Deepak Kumar Sahu was aged about 20 years and he was also unmarried. He was working in a medical store and was earning Rs. 6,000/- monthly. Due to the casual death of Deepak, there is an irreparable loss to the claimants, therefore, the claimants of Deepak had preferred an application (Claim Case No21/2016) before the Tribunal claiming compensation to the tune of Rs. 15,25,000/-. 6. Learned Tribunal, on a close scrutiny of the evidence brought on record, assessed monthly income of deceased Poshan @ Pushpendra as Rs.4,128/-, given 50% future prospects, deducted 1/2 income towards personal and living expenses, applied multiplier of 10 and given 75,000/- towards other heads and awarded total Rs.4,46,520/- in favour of legal representatives of deceased Poshan with interest @ 6% per annum, from the date of application till its realization. 7. As regards the deceased Digendra, the Claims Tribunal has assessed monthly income of deceased Digendra as Rs.4,128/-, given 50% future prospects, deducted 1/2 income towards personal and living expenses, applied multiplier of 10 and given 75,000/- towards other heads and awarded total Rs.4,46,520/- in favour of legal representatives of Digendra with interest @ 6% per annum, from the date of application till its realization. 8. As regards the deceased Deepak Kumar Sahu, the Claims 8 Tribunal has assessed monthly income of Deepak as Rs.4,128/-, given 50% future prospects, deducted 1/2 income towards personal and living expenses, applied multiplier of 12, given Rs.39,500/- towards medical expenses and also given 75,000/- towards other heads and awarded total Rs.4,86,020/- in favour of legal representatives of Deepak with interest @ 6% per annum, from the date of application till its realization. 9. While passing the award, the Claims Tribunal has exonerated the insurance company finding breach of policy conditions and fastened the liability upon Owner Kamal Panjwani. Therefore, MAC No. 1378/2017, MAC No. 1370/2017 and 1346/2017 have been filed by the claimants of the deceased to enhance the amount of compensation and MAC No. 1228/2017, MAC No. 1234/2017 and MAC No. 1235/2017 have been filed by the owner to exonerate himself from the liability and to hold the insurance company responsible. MAC No. 1378/2017 10. Learned counsel appearing on behalf of legal representatives of deceased Poshan against Claim Case No.18/2016 submits that the compensation awarded by the Tribunal is on the lower side and needs to be enhanced suitably. He urged that the Tribunal erred in not assessing the proper monthly income of the deceased and also erred in not applying the proper multiplier. He further submits that the Tribunal has 9 also awarded lesser amount on other heads, therefore, this appeal may be allowed and amount of compensation may be enhanced suitably. He further prays that an order of pay and recover may be passed. 11. On the other hand learned Counsel appearing for the Owner opposes the argument advanced by learned Counsel appearing for the claimants and submits that the amount of compensation awarded by the Claims Tribunal is just and proper and requires no enhancement. 12. Learned Counsel appearing for the Insurer submits that the impugned award regarding liability is just and proper and requires no interference. 13. As regards the compensation of claimants of Poshan @ Pushpendra is concerned, as per the notification of Labour Department for minimum wages, I find it appropriate to take income of deceased as Rs. 5,787/- per month as minimum wages, at the relevant time of accident i.e. 27.09.2015. The annual income comes to Rs. 69,444/- per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the age of the deceased has been found to be 20 years, after adding 40% towards future prospects i.e. Rs. 27,777/-, the annual income comes to Rs. 97,221/-. 14. The deceased Poshan was aged about 20 years and was unmarried, the claimants (total 3) are mother, father & grand- 10 father of the deceased so deduction towards personal expenses would be 1/2 which dependency comes to Rs. 48,610.5/- (97221-48610.5). In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, considering the age of the deceased, after applying multiplier of 18, the total loss of dependency works out to Rs. 8,74,989/-. The claimants are further entitled to get Rs. 15,000/- for loss of estate, Rs. 15,000/- for funeral expenses and as per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, they are further entitled to get Rs. 40,000/- each i.e. Rs. 1,20,000 (40000 x 3) for loss of love and affection. Thus, the claimants would become entitled for total compensation of Rs. 10,24,989/- (874989+15000+15000+120000). 15. Thus, the total compensation is recomputed as Rs. 10,24,989/-. After deducting Rs. 4,46,520/- as awarded by the Tribunal, the enhancement would be Rs. 5,78,469/-. MAC No.1370/2017 16. Learned counsel appearing on behalf of legal representatives of deceased Digendra against Claim Case No.19/2016 submits that the compensation awarded by the Tribunal is on the lower side and needs to be enhanced suitably. 11 He urged that the Tribunal erred in not assessing the proper monthly income of the deceased and also erred in not applying the proper multiplier. He further submits that the Tribunal has also awarded lesser amount on other heads, therefore, this appeal may be allowed and amount of compensation may be enhanced suitably. He further prays that an order of pay and recover may be passed. 17. On the other hand learned Counsel appearing for the Owner opposes the argument advanced by learned Counsel appearing for the claimants and submits that the amount of compensation awarded by the Claims Tribunal is just and proper and requires no enhancement. 18. Learned Counsel appearing for the Insurer submits that the impugned award regarding liability is just and proper and requires no interference. 19. As regards the compensation of claimants of Digendra is concerned, as per the notification of Labour Department for minimum wages, I find it appropriate to take income of the deceased as Rs. 5,787/- per month as minimum wages, at the relevant time of accident i.e. 27.09.2015. The annual income comes to Rs. 69,444/- per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the age of the deceased has been determined to be 22 years, after adding 40% towards future prospects i.e. Rs. 27,777/-, the annual income comes to Rs. 97,221/-. 12 20. The deceased Digendra was aged about 22 years and was unmarried, the claimants (total 2) are mother & brother of the deceased so deduction towards personal expenses would be 1/2 which dependency comes to Rs. 48,610.5/-(97221-48610.5). In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 considering the age of the deceased, after applying multiplier of 18, the total loss of dependency works out to Rs. 8,74,989/-. The claimants are further entitled to get Rs. 15,000/- for loss of estate, Rs. 15,000/- for funeral expenses and as per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, they are further entitled to get Rs. 40,000/- each i.e. Rs. 80,000 (40000 x 2) for loss of love and affection. Thus, the claimants would become entitled for total compensation of Rs. 9,84,989/- (874989+15000+15000+80000). 21. Thus, the total compensation is recomputed as Rs. 9,84,989/-. After deducting Rs. 4,46,520/- as awarded by the Tribunal, the enhancement would be Rs. 5,38,469/-. MAC No.1346/2017 22. Learned counsel appearing on behalf of legal representatives of deceased Deepak against Claim Case No.21/2016 submits 13 that the compensation awarded by the Tribunal is on the lower side and needs to be enhanced suitably. He urged that the Tribunal erred in not assessing the proper monthly income of the deceased and also erred in not applying the proper multiplier. He further submits that the Tribunal has also awarded lesser amount on other heads, therefore, this appeal may be allowed and amount of compensation may be enhanced suitably. He further prays that an order of pay and recover may be passed. 23. On the other hand learned Counsel appearing for the Owner opposes the argument advanced by learned Counsel appearing for the claimants and submits that the amount of compensation awarded by the Claims Tribunal is just and proper and requires no enhancement. 24. Learned Counsel appearing for the Insurer submits that the impugned award regarding liability is just and proper and requires no interference. 25. As regards the compensation of claimants of Deepak is concerned, as per the notification of Labour Department for minimum wages, I find it appropriate to take income of the deceased as Rs. 5,787/- per month as minimum wages, at the relevant time of accident i.e. 27.09.2015. The annual income comes to Rs. 69,444/- per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the age of the deceased has been found to be 20 years, 14 after adding 40% towards future prospects i.e. Rs. 27,777/-, the annual income comes to Rs. 97,221/-. 26. The deceased Poshan was aged about 20 years and was unmarried, the claimants (total 4) are mother, father, grand- father and grand-mother of the deceased so deduction towards personal expenses would be 1/2 which dependency comes to Rs. 48,610.5/-(97221-48610.5). In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 considering the age of the deceased, after applying multiplier of 18, the total loss of dependency works out to Rs. 8,74,989/-. The claimants are further entitled to get Rs. 15,000/- for loss of estate, Rs. 15,000/- for funeral expenses and as per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, they are further entitled to get Rs. 40,000/- each i.e. Rs. 1,60,000 (40000 x 4) for loss of love and affection. As the deceased was also admitted in hospital and during treatment he died. The Claims Tribunal after due consideration given 39,500/- towards medical expenses which is just and proper and requires no interference. Thus, the claimants would become entitled for total compensation of Rs. 11,04,489/- (874989 + 15000+ 15000+ 160000+39500). 27. Thus, the total compensation is recomputed as Rs. 15 11,04,489/-. After deducting Rs. 4,86,020/- as awarded by the Tribunal, the enhancement would be Rs. 6,18,469/-. MAC No.1228/2017, MAC No.1234/2017 & MAC No.1235/2017 28. In the case, Administrative Officer B.B. Bhaskar and District Transport Office, Dhamtari clerk Lakhan Lal Dhruv were examined on behalf of the insurance company while Kamal Kumar Panjwani himself appeared as a witness on behalf of the vehicle owner. On the basis of whose evidence, the Tribunal concluded that on the date of the accident dated 27/09/2015, the offending vehicle did not have a valid fitness certificate and the offending vehicle was being driven in the absence of fitness certificate. 29. Learned counsel for the appellant/vehicle owner argues that the insurance company cannot escape its liability even in the absence of fitness certificate. Lack of fitness certificate is not a fundament breech but merely a technical breach and the insurance company cannot be relieved of its liability on the basis of the said breach. In support of the argument, Kerala High Court (three Judges Bench) has cited V.M. Augustine, Vattakavumkal v. Ayyap-pankutty alias mani and Anr. Reported in AIR 2015 Kerala 131, paragraph 17 of which is as follows:- “17 In order to enable the insurance company to take up the defence under Section 149(2)(a)(i)(c) it must be shown that the use of the transport vehicle was for a 16 purpose not allowed by the permit under which the vehicle was used. Instances may occur where transport vehicles intended or permitted for a particular purpose are used for another purpose. For example, if a transport vehicle permitted only for carrying goods, carries passengers and capsises en-route causing injuries to the passengers, certainly, the insurer can take up the defence under Section 149(2)(a)(i)(c). However, if such a vehicle is used only for the permitted purpose, and the accident occurs when the permit or fitness certificate ceased to exist, it amounts to a technical violation only, which will not entitle the insurer to disown the liability to- third parties. For avoiding the liability relying on Section 149(2)(a)(i) (c), the insurer should plead and prove that the offending vehicle was used for a purpose not authorised by the permit. It is true, that the vehicles in these cases ceased to have fitness certificate as well as permit on their expiry. We are unable to agree that the breach of condition in respect of non renewal of certificate of fitness or permit would entitle the insurer to take up the defence under Section 149(2)(a)(i) (c) of the Act. We are of the definite view that Thara v. Syamala, (AIR 2009 (NOC) 2244 (Ker) (cited supra) does not lay down the correct law. 30. None appeared on behalf of Respondent No.1/Driver. 31. Learned Counsel appearing for the Claimants submits that an order of pay and recover may be passed. 32. So far as learned counsel for Respondent No.2/Insurance Company submits that the vehicle was not having any valid fitness certificate on the date of accident is concerned, this issue also stands settled by the Division Bench of this court as well as by Kerala High Court in Pareed Pillai Vs. Oriental Insurance Company Ltd., AIR 2019 Kerala 6. 17 33. The fitness of a vehicle, which is a transport vehicle, is having great importance. Section 56 of the MV Act provides that a transport vehicle {subject to the provisions of Section 59 (power to fix the age limit of motor vehicle) and Section 60 (registration of vehicle belonging to the Central Government)} shall not be deemed to be validly registered for the purpose of Section 39, unless it carries a certificate of fitness as prescribed. For the purposes of valid permit of a transport vehicle, as provided under Section 34 of the MV Act, a certificate of fitness is required necessarily and in absence of the same, the situation automatically lead to the stage that a vehicle did not have valid permit. Using a vehicle without any fitness certificate would be violation of policy condition. 34. Requirement of certificate of fitness is envisaged under Section 56 of the MV Act. 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 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: Provided that where the prescribed 18 authority or the authorised testing station refuses is issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.” 35. 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 MV Act envisages for registration of vehicle, which reads as under: “39. 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.” 36. 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 MV Act 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. 37. This issue has been considered by the five judges Bench of Kerala High Court (five Judges Bench) in case of Pareed Pillai 19 Vs. Oriental Insurance Company Ltd., AIR 2019 Kerala 6 and held as under: “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 MACA No. 2030 of 2015 and connected cases 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 20 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.” 38. Division Bench of this High Court also has applied the same analogy in case of Adesh Kumar & Another Vs. Smt. Satarupa Bai Yadav & Others (MAC No.1289 of 2014 and other connected matters, decided on 19.11.2020) and held that absence of fitness certificate of the offending vehicle is a fundamental breach of policy condition. It is not a technical breach. 39. The principal held by the Kerala High Court in Pareed Pillai (Supra) is effective which has been applied by this Court also. Therefore, in light of that it is found that absence of fitness certificate is a fundamental breach and the insurance company is not liable on account of this fundamental breach, therefore, the argument of the appellant/owner is not acceptable. 40. So far as the prayer of the counsel for claimants to apply the principle of “pay and recover” is concerned, Hon’ble Supreme Court in the matter of Amrit Paul Singh and another 21 Vs TATA AIG General Insurance Company Limited and others, reported in 2018(3) KHC 197 considered the issue with respect to violation of conditions of Insurance Policy on the ground that offending vehicle was not having a valid permit and held that Insurance Company first to satisfy the award and thereafter to recover the same from the insured. In the case in hand also there is a clear breach of policy conditions as the offending vehicle did not have a valid and effective ‘fitness certificate’ on the date of accident. 41. Accordingly, in the light of Amrit Paul Singh (Supra), I direct the insurance company to first pay the amount of compensation fixed by this Court and then recover the same from the owner & driver of the offending vehicle by filing execution petition before the concerned Claims Tribunal. 42.
Decision
In the result :- i. MAC No.1378/2017 MAC No.1370/2017 & 1346/2017 are partly allowed. ii. In MAC No. 1378/2017, the enhancement would be Rs. 5,78,469/-, In MAC No. 1370/2017, the enhancement would be Rs. 5,38,469 and In MAC No.1346/2017, the enhancement would be Rs.6,18,469, in addition to what is already awarded by the Claims Tribunal. 22 iii. The enhanced amount will carry interest @ 6% from the date of enhancement of the award till its realization. The impugned award in relation to the above cases stands modified to the above extent and rest of the conditions shall remain intact. iv. MAC No.1228/2017, MAC No. 1234/2017 & MAC No. 1235/2017 are dismissed. 43. The Registry is further directed to communicate the claimants in writing “the enhanced amount” in this appeal as against the amount awarded by the Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants resides. Shubham Sd/- (Sanjay Kumar Jaiswal) Judge