P.R.RAMACHANDRA MENON, J.

1. "Does the law declared by a Full Bench of this Court in Augustine V.M. Vs. Ayyappankutty @ Mani and Another [2015 (2) KLT 139] stand correct in declaring that, the 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 Vs. Challa Bharathamma [2004 (3) KLT 454] [name of the case has been subsequently corrected as per the Official Corrigendum No. F.3/Ed.B.J./96/2004 dated 01.12.2004 as National Insurance Company Vs. Challa Upendra Rao [(2004) 8 SCC 517)]. For having not made even a reference to the decision of the Apex Court, is not the above verdict liable to be declared as 'per incurium' ? Has the Full Bench considered all the relevant provisions under the Motor Vehicles Act, 1998, [referred to as the 'Act' for short], as to the necessity for having a 'Fitness Certificate' to the vehicle (in view of public safety), the necessity to have valid 'Permit', necessity to have 'Certificate of Registration' to ply the vehicle and 'deemed absence of Registration', if the vehicle is not having a valid Permit/Fitness Certificate as envisaged under Section 56 of the M.V. Act ?"

------These were the questions raised and referred by a Division Bench of this Court as per the reference order dated 23.12.2015, pointing out the necessity to have the matter considered by a Bench of appropriate strength.

2. On placing the matter before the Full Bench, the issue was dealt with marked elaboration. It was observed that the Apex Court, as per the verdict dated 22.11.2017 in M.S. Middle High School Vs. HDFC ERGO General Insurance Co. Ltd. and others [Special Leave to Appeal (c) No. 31406/2017] had declared that the view taken by the Full Bench of this Court in Augustine's case [cited supra] could not be held to be valid and it was disapproved to the extent in holding that the insurer was liable, even if there was breach of conditions of the policy. After considering the dictum laid down by the Apex Court in United India Insurance Co. Ltd. Vs. Shila Datta and others [2011 (4) KLT 378] and also in Challa Upendra Rao's case [cited supra], the Full Bench of this Court observed that, when the Apex Court permitted the Insurance Company to contest the matter with reference to the absence of valid Permit and when the said judgment was not taken note of by the Full Bench in Augustine's case (cited supra), it necessarily required consideration. It was accordingly held that, the extent to which the Insurance Company could contest the matter when there was no valid Permit or Fitness Certificate, turned out to be a question of law, which was required to be determined by a Larger Bench. It is based on the said reference, that the above matters came to be listed before this Bench, for considering the declaration of law made by the Full Bench of this Court in Augustine's case [cited supra].

3. Obviously, the main point involved in these cases is with regard to the 'right of recovery' from the insured, given in favour of the insurer [after satisfying the liability towards the third parties/claimants] for causing the transport vehicle to be driven without a valid Permit/Fitness Certificate/Driving Licence. According to the insured/owner, absence of valid Permit/Fitness Certificate is only a 'technical breach' and it does not constitute a 'fundamental breach'; by virtue of which, right of recovery from the insured is not automatic; unless it is established by the insurer that absence of valid Permit/Fitness Certificate was the reason for/had contributed to the accident.

4. We heard Mr. Reji George, the learned counsel for the appellants/insured in MACA Nos. 2030 and 2641 of 2015, Mr. A. R. George, the learned counsel for the insurer in the said appeals; Mr. Lal George the learned counsel for the appellant/insurer in MACA No. 2202 of 2015 and also heard the learned