Point of Law : Court dealt with Sections 39, 43, 66 and 192 of MV Act and it was held that plying vehicle on road without any registration certificate is not only an offence under Section 192 of MV Act, but also fundamental breach of terms of conditions of policy contract.

JUDGMENT :

The second respondent in O.P.(MV).No. 575/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda is the appellant in this appeal, filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act”), where the claimant before the Tribunal is arrayed as the respondent.

2. Heard the learned counsel for the appellant, Adv. Rajan Kalliyath and Adv. P.S. Abdul Kareem appearing for the respondent, the owner cum driver of the tempo-van bearing registration No.KBR-5061.

3. In this case, the dispute is confined in the matter of non-grant of recovery right by the Tribunal, though it has been specifically contended by the Insurance Company/the appellant that the vehicle was plied through the road, without fitness certificate. It is submitted by the learned counsel for the appellant that it is settled law that the burden to prove that there was no fitness certificate for the vehicle is upon the insurer and when the insurer pleads that there was no fitness certificate to the vehicle, the same is a negative fact. Therefore, the Insurance Company can rely on either police charge or by giving direction to the owner to produce fitness certificate, and no other mode is feasible to prove a negative fact.

4. Whereas, the learned counsel for the respondent vehemently argued that the burden to prove that there was breach of contract of insurance was squarely on the shoulders of Insurance Company and in the decision reported in Narchinva V. Kamat and another v. Alfredo Antonio Deo Martins and others [AIR 1985 SC 1281], the Apex Court held so. For clarity, paragraph Nos.14 and 15 of the above judgment are extracted hereunder :

“14. The last question is whether he had a valid driving licence. The High Court has not recorded a clear cut finding on this point. The finding of the Tribunal is more evasive than the one by the High Court. Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross examination, an adverse inference be drawn against him that he did not have a valid license to drive a pick-up van. The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the Insurance Company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the Insurance Company to wriggle out its liability under the contract of insurance. Further, the R.T.A. which issues the driving licence keeps a record of the licences issued and renewed by it. The Insurance Company could have got the evidence produced to substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company.

15. To sum up the insurance company failed to prove that there was a breach of the term of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.”

5. Reading the above judgment, it could be gathered that, in the said case, the Insurance Company not disputed that the second appellant, the driver of the vehicle involved in the said case, did not have a driving license. (See Mr. Sharma did not dispute that the second appellant had a driving licence). But the grievance that had been addressed before the Apex Court is failure to produce the same when called upon to do so in cross-examination. So in Narchinva's case (Supra), the Apex Court dealt with a case, where the Company admitted driving licence and then after holding that the