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IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)
Sreenivas Harish Kumar, S. Rachaiah, JJ.
Dr. Narasimulu Nandini Memorial Education Trust, Situated at No.1-7-7 Near Goal Market, Station Area Raichur-584101 Owner of Bus No.KA-36/A-1164 Represented by Mahalinga. B Managing Trustee - Appellant
Versus
Banu Begum W/o Late Mohammed Husen - Respondents
Miscellaneous first Appeal No. 202022/2016
Decided On : 08-07-2022
Motor Vehicles Act, 1988 - Sections 81(1), 81(5), 56(1), 66(1), 84(a) and (f), 149 (2) (a)(i) (C) – Appeal - Obtaining of fitness certificate - Grants renewal by condoning delay - Claim petition laid by dependants of deceased, insurer of offending vehicle took a specific defence that since on date of accident, fitness certificate and permit were not in force, it was not liable to indemnify liability of owner although insurance policy was in force. tribunal computed total compensation payable to dependents at Rs.6,18,000/-with interest at rate of 6% p.a. and accepting defence of insurer absolved it of its liability and directed owner of offending vehicle to pay compensation amount to dependants - Whether liability of insurance company can still be enforced although offending vehicle did not possess permit and fitness certificate on date of accident - Whenever renewal is sought after expiry of time, if concerned authority entertains such an application according to section 81(3) and grants renewal by condoning delay, obviously renewal goes back to date of expiry as provided under section 81(5) of Motor Vehicles Act. Temporary permit is issued for interregnum period, and it has nothing to do with renewal. (Para 11).
Findings of the Court: Supreme Court in M.S.Middle High School was also considered by coordinate bench in case of Yasmin Begum. Moreover, in M.S.Middle High School, Court do not find any law being laid down. Therefore Court are of view that ratio in Yasmin Begum can be applied to case on hand. Looked in this view, Court may state that though Ex.R1 indicates that permit was validated with effect, in view of section 81(5) of Motor Vehicles Act, it should be deemed that on day when accident took place, permit was in force - Another coordinate Bench judgment in MFA does not help fourth respondent because question of permit and fitness certificate did not arise for discussion there; issue discussed was whether liability could be saddled on insurance company if deceased was a gratuitous passenger - Court arrive at a conclusion that fourth respondent/insurance company cannot disown its responsibility to indemnify liability of appellant.
Result: Appeal allowed.
Key Points: - The appeal was preferred by the owner of the offending vehicle after being saddled with the liability to pay compensation to the claimants (!) . - The insurer of the offending vehicle argued that they were not liable to indemnify the owner because the fitness certificate and permit were not in force on the date of the accident (!) . - The appellant argued that the insurance policy was in force and that the subsequent renewal of the fitness certificate and permit would relate back to the date of expiry, citing Section 81(5) of the Motor Vehicles Act (!) . - The court considered the interpretation of Section 81(5) of the Motor Vehicles Act, which deals with the renewal of permits and its effect from the date of expiry (!) (!) . - The court relied on a coordinate bench judgment in United India Insurance Company Limited vs. Yasmin Begum, holding that Section 81(5) applies to situations where a vehicle is plying pending renewal, creating a deemed permit (!) . - The court found that the ratio in Yasmin Begum could be applied to the present case, deeming the permit to be in force on the day of the accident due to the effect of Section 81(5) (!) . - The court concluded that the insurance company could not disown its responsibility to indemnify the liability of the appellant (!) . - The appeal was allowed, and the judgment of the tribunal was modified, directing the insurance company to indemnify the liability and pay the compensation amount (!) (!) . - The insurance company was directed to deposit the compensation amount with interest within four weeks (!) .
JUDGMENT :
1. The owner of the offending vehicle having been saddled with the liability to pay compensation to the claimants, has preferred this appeal. The factual background is as follows :
2. Name of the deceased in the accident is Syed Wali. On 28.9.2015, about 4.00, PM he was riding a motor cycle with registration No. KA-36/W-3987 with one Mr.Mohammed Shali on the pillion. As they came near the by-pass of Raichur-Merched Road, a school bus with registration No. KA-36/A-1164 being driven rashly and negligently by its driver hit the motor cycle while overtaking it. As a result Syed Wali met instant death and the pillion rider was injured.
3. In the claim petition laid by the dependants of the deceased, the insurer of the offending vehicle took a specific defence that since on the date of accident, the fitness certificate and the permit were not in force, it was not liable to indemnify the liability of the owner although the insurance policy was in force. The tribunal computed the total compensation payable to the dependents at Rs.6,18,000/-with interest at the rate of 6% p.a. and accepting the defence of the insurer absolved it of its liability and directed the owner of the offending vehicle to pay compensation amount to the dependants. Aggrieved by this finding, the owner has preferred this appeal.
4. We have heard Sri Shivakumar Kalloor, learned advocate for the appellant, Sri Basavaraj R Math for respondents 1 and 2/claimants, and Smt. Preethi Patil Melkundi, learned counsel for respondent No.4 insurance company.
5. It was the argument of Sri Shivakumar Kalloor that on the date of accident, the insurance policy issued for the offending vehicle was in force. The policy would not have been renewed unless the vehicle had fitness certificate and the permit. The appellant applied for renewal of the fitness certificate and he remitted the required fee through the challan dated 6.10.2015 and thereafter fitness certificate was issued to be valid till 18.12.2016. Once the fitness certificate was issued, it would relate back to the date of expiry. In regard to permit also he argued that the appellant paid the road tax and applied for renewal of the permit. Once permit was issued or renewed, it would come into effect from the date of expiry. In this regard he referred to section 81(5) of the Motor Vehicles Act and placed reliance on the decisions of this court in MFA 5159/2016 [United India Insurance Company Limited vs. Smt. Yasmin Begum and Others, and MFA 3338/2015 [Catherine Louis A vs. Kengaiah and Others]. He argued that the position of law being like this, appeal deserves to be allowed and the insurance company should be directed to pay the compensation amount to the claimants.
6. Sri Basavaraj R Math supported the argument of Sri Shivakumar Kalloor.
7. But, Smt. Preethi Patil Melkundi refuted the argument of Sri Shivakumar Kalloor and submitted that the position of law is otherwise. Referring to the judgment of the Supreme Court in the case of Amrit Paul Singh and Another vs Tata AIG General Insurance Company Limited and Others [(2018) 7 SCC 558], she submitted that on the day when the accident took place, the permit and the fitness certificate were not in force. The validity period of the insurance policy was from 29.6.2015 to 28.6.2016. Permit was issued for the period 20.7.2010 to 19.7.2015. Fitness certificate was obtained after the accident. Therefore it is clear that the policy conditions were violated and in this view the insurer need not indemnify the liability of the appellant.
7.1. She argued that section 81(5) of the Motor Vehicles Act is not applicable. Temporary permit was not issued to the offending vehicle in order to invoke section 81(5). She argued that section 81(1) clearly states that the permit would become effective from date of renewal, and it does not relate back to the date of expiry. She also referred to sections 56(1), 66(1) and 84(a) and (f) of the Motor Vehicles Act to argue that unless permit and
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