IMPORTANT POINT
Technical violations of permit conditions do not constitute a fundamental breach of insurance policy, and insurers remain liable unless proven otherwise.

JUDGMENT :

Johnson John, J.

The above appeals are filed by the 2nd respondent in O.P.(MV) Nos. 714 and 716 of 2014 on the file of the Motor Accident Claims Tribunal, Pala challenging the direction in the common award of the Tribunal permitting the 3rd respondent insurance company to recover the award amount from the owner of the vehicle after payment to the claim petitioners, on the ground of violation of policy conditions.

2. The appellant is the owner of the offending vehicle and the contention of the respondent insurance company is that there is violation of permit conditions. It is contended that in violation of Exhibit B8 order prohibiting the plying of tipper lorries through State Highways between 8 a.m. and 10 a.m. and 3 p.m. to 5 p.m., the offending vehicle was driven through Pala-Ramapuram road at 4.05 p.m. on 15.01.2014.

3. Respondent insurance company also contended that there is violation of Rule 118 of the Central Motor Vehicles Rules, 1989, as it was found that the speed governor in the offending vehicle was not pre-set to the prescribed speed limit.

4. The learned counsel for the appellant argued that the alleged violation of Exhibit B8 executive order by itself will not amount to any violation of policy conditions and there is also no violation of Rule 118 of the Central Motor Vehicles Rules, 1989 (Rules, 1989’ for short) as alleged.

5. The respondent insurance company is alleging violation of Rule 118 of the Rules, 1989 on the basis of the findings in Exhibit B2 report of the Motor Vehicle Inspector. In Exhibit B2, it is stated that the speed governor was found not set to the limit of 60 kms. per hour and the vehicle could achieve a speed of 70 kms. per hour and the same is a violation of permit condition. Column No.4 of Exhibit B4, goods carriage permit of the offending vehicle, shows that the permit is valid for all roads in Kerala State except those prohibited by any law in force. Exhibit B5, copy of the policy of insurance, provides that the policy covers use only under a permit within the meaning of motor vehicles Act, 1988. The respondent insurance company has no case that the offending vehicle was not having a valid permit. Rule 118 of Rules, 1989 provides thus:

“[118. Speed governor.—(1) Every transport vehicle notified by the Central Government under sub-section (4) of section 41 of the Motor Vehicle Act, 1988 (58 of 1988), save as provided herein, and manufactured on or after the 1st October, 2015 shall be equipped or fitted by the vehicle manufacturer, either in the manufacturing stage or at the dealership stage, with a speed governor (speed limiting device or speed limiting function) having maximum pre-set speed of 80 kilometre per hour conforming to the Standrad AIS 018/2001, as amended from time to time:

Provided further that the transport vehicles that are – (i) Two wheelers;

(ii) three wheelers;

(iii) quadric cycles;

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(v) fire tenders;

(vi) ambulances;

(vii) police vehicles;

(viii)verified and certified by a testing agency specified in rule 126 to have maximum rated speed of not more than 80 kilometre per hour, shall not be required to be equipped or fitted with speed governor (speed limiting device or speed limiting function):

Provided further that the transport vehicles manufactured on or after 1st October, 2015 that are dumpers, tankers, school buses, those carrying hazardous goods or any other category of vehicles, as may be specified by the Central Government by notification in the Official Gazette from time to time, shall be equipped or fitted by the vehicle manufacturer, either in the manufacturing stage or at the dealership stage, with a speed governor (speed limiting device or speed limiting function) having maximum speed of 60 kilometer per hour conforming to the Standards A1S 018/2001, as amended from time to time.

Provided also that on and from 1st April 2017, articulated or truck-trailer or tractor-trailor vehicles engaged by automobile manufactures to carry motor vehicles from their factories