P.R. Ramachandra Menon, J.

1. Does the law declared by a Full Bench of this Court in Augustine v. Ayyappankutty (1015 (2) KLT 139 (F.B.)) stand correct, in declaring that absence of 'Permit or 'Fitness Certificate' to the transport vehicle is only a 'technical breach' and not a 'fundamental breach', in so far as it stands contrary to the law declared by the Apex Court in National Insurance Company v. Challa Bharathamma (2004 (3) KLT 454 (SC)) (name of the case has been subsequently corrected as per the Official Corrigendum No. F. 3/Ed.BJ./96/2004 dated 01.12.2004 as National Insurance Company v. Challa Upendra Rao ((2004) 8 SCC 517)), For having not made even a reference to the decision of the Apex Court, is not above verdict liable to be declared as 'per incuriam'. Has the Full Bench considered all the relevant provisions under the Motor Vehicles Act, 1998, as to the necessity for having a 'Fitness Certificate' to the vehicle (in view of the public safety), the necessity to have valid 'Permit', necessity to have 'Certificate of Registration' to ply a vehicle and deemed absence of registration if the vehicle is not having a valid permit/fitness certificate as envisaged under S. 56 of the M.V. Act ?

2. The main point involved in these cases is with regard to the 'right of recovery' given/not given in favour of the Insurance Company, after meeting the liability towards the claimants, for the reason that the vehicle concerned was not having a valid 'Permit' or 'Fitness Certificate', as the case may be.

3. M.A.C.A. No. 2030 of 2015 has been filed by the insured/owner contending that expiry of 'Fitness Certificate' to the goods carriage (lorry bearing No. KL 8 Z 1627) involved is not a 'fundamental breach' on the part of the insured/owner, to have granted the right of recovery in favour of insurer. M.A.C.A. No. 2641 of 2015 is filed by the very same insured/owner, raising similar contention in respect of the Award passed by the Tribunal in the connected case i.e., O.P.(M.V.) No. 862 of 2007, which was jointly tried and decided alongwith O.P.(M.V.) No. 21 of 2008 involved in the former appeal. In M.A.C.A. No. 1414 of 2013, the claimants in respect of the very same accident (which was the subject matter of O.P.(M.V.) No. 21 of 2008 of the M.A.C.T., Irinjalakkuda) seek for enhancement of compensation. M.A.C.A. No. 2202 of 2015 has been filed by the Insurance Company, on various grounds, challenging the liability mulcted upon them, despite the denial of existence of valid policy; that the driver was not having valid driving licence; and that the concerned auto rickshaw was having no valid 'Permit' or even a 'Fitness Certificate'.

4. The main contention raised by the appellant in M.A.C.A. No. 2020 of 2015 and M.A.C.A. No. 2641 of 2015 is that, in respect of the vehicle concerned therein, the only insinuation is that there was no 'Fitness Certificate', which according to the said appellants is not a valid ground of defence for the Insurance Company, as provided under Section 149(2) of the Act. The learned counsel also pointed out that the issue. actually stands covered in favour of the insured/owner, by virtue of the ruling rendered by a Full Bench of this Court in Augustine v. Ayyappankutty (cited supra) to the effect that absence of 'Permit' or 'Fitness Certificate' cannot be a valid ground of defence for the Insurance Company.

5. It has come to the notice of this Court that the above judgment happened to be rendered by the Full Bench unfortunately without making a reference to the law already rendered by the Apex Court on the point, with reference to the absence of 'Permit' and the consequences resulted therefrom, as per the decision reported in 2004 (3) KLT 454 (SC) (cited supra). It was a case where a contention was raised from the part of the concerned respondent to the effect that there was no 'permit' for the transport vehicle involved therein and as such, 'violation of any condition of permit' would not arise. The said contentio