1. These are two appeals filed by the owner and driver of the Truck bearing registration No.CG-04-G-8269, which met with an accident on 04.03.2013 and as a result of which one Vikas Gupta sustained grievous injuries to which he later succumbed and one Mohd. Salim received injuries.

2. The legal representatives of the deceased Vikas filed a claim case No.50 of 2013 which came up for decision before the 3rd Additional Motor Accident Claims Tribunal, Raipur whereas, the injured himself filed a claim case before the Additional Motor Accidents Claims Tribunal, Raipur which was registered as Claim Case No.47 of 2014. Vide the two awards, the Tribunal concerned had allowed the claim applications and ordered for payment of compensation of Rs.11,00,000/- with interest @ 7.5 percent per annum in case of death of Vikas Gupta in claim case No.50 of 2013. So far as the case of injured Mohd. Salim is concerned, the Tribunal has awarded compensation of Rs.1,69,128/- with interest @ 7 percent per annum. While passing the awards, the two Tribunals have in claim case No.50 of 2013 ordered pay and recover by applying the principle of Pay and Recover whereas, in claim case No.47/2014 the Tribunal has exonerated the insurance company of its liability and have fastened the liability of payment of compensation upon the owner.

3. Counsel for the appellants submits that the only ground for exonerating the insurance company in one case and for order of pay and recover in the second case is that, the vehicle involved in the accident did not have valid fitness certificate on the date of accident and therefore, on this ground the liability has been fastened upon the owner.

4. The sole ground which the appellant-owner has raised in these two appeals is that fitness certificate is not required under Section 149(2) of the MV Act. According to counsel for the owner, the insurance company can only take a defence which is available under Section 149(2) and not any other conditions beyond the said provisions of law. It was further contended that Section 149(2) does not envisage requirement of a valid fitness certificate, with which the insurance company could be absolved of its liability.

5. The counsel for the insurance company opposing the appeal submits that the facts which have come before the Tribunal clearly stipulates that on the fateful day i.e. on the date of accident the owner of the Truck did not have a valid fitness certificate pertaining to the said Truck. According to insurance company, in the absence of fitness certificate, the award passed by the Tribunal cannot be said to be erroneous or bad in law. It was also the contention of the insurance company that the fact that there was no fitness certificate clearly amounts to breach of policy condition and for these reasons prayed for rejection of the appeals. In support of his contention, he relied upon the decision of Division Bench of Kerala High Court in case of Thara Vs. Syamala, 2009 ACJ 2440.

6. Having heard the rival contentions put forth on either side and on perusal of records, it would be relevant at this juncture to refer to provision of Section 149 (2) of the Motor Vehicles Act, which for ready reference is reproduced herein as under:

“2. No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:—

(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:—

(i) a condition excluding the use of the veh