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