The requirement to produce a valid fitness certificate during recovery proceedings is essential, failure of which implies liability for damages as determined by the Tribunal.

JUDGMENT :

C.S. SUDHA, J.

These appeals have been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the first respondent/owner in O.P.(MV) Nos.1381 and 1382 of 2014 on the file of the Motor Accidents Claims Tribunal, Attingal (the Tribunal), aggrieved by the common Award dated 27/06/2019. The respondents in both the appeals are the claim petitioners and respondents 2 and 3 respectively in the petitions. In these appeals, the parties and the documents will be referred to as described in the original petitions.

2. According to the claim petitioners, on 19/10/2014 at about 06:30 p.m., while they were travelling on motorcycle bearing registration no.KL-16-F-1099 as rider and pillion rider through Venjaramoodu – Attingal public road and when they reached near the place by name Valakkadu, tipper lorry bearing registration no.KL-16-F-8322 driven by the second respondent in a rash and negligent manner knocked them down, as a result of which they sustained grievous injuries.

3. The first respondent-owner and the second respondent-driver of the offending vehicle remained ex-parte.

4. The third respondent-insurer filed written statement admitting the policy but denying negligence on the part of the 2^nd respondent-driver. It was also contended that the vehicle had no valid fitness certificate at the time of the accident and hence the policy condition was violated.

5. Before the Tribunal, Exts.A1 to A16 were marked on the side of the claim petitioners. No oral or documentary evidence was adduced by the respondents.

6. The Tribunal on consideration of the documentary evidence and after hearing both sides, found negligence on the part of the second respondent-driver of the offending vehicle resulting in the incident and hence awarded an amount of Rs.4,06,712/- to the claim petitioner in O.P.(MV) 1381/2014 and Rs.3,22,212/- to the claim petitioner in O.P.(MV) 1382/2014 together with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. The third respondent/insurer has been given the liberty to recover the award amount from the first respondent/owner. Aggrieved by the Award, the first respondent/owner has come up in appeal.

7. The only point that arises for consideration in these appeals are whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.

8. Heard both sides.

9. It is submitted by the learned counsel for the first respondent/owner of the offending vehicle that the Tribunal committed a gross error in giving liberty to the third respondent/insurer to recover the amount from him without proof of the contention of the latter that the vehicle did not have a valid fitness certificate at the time of the incident. In support of the argument reference was made to the dictums in Mumthas v. Rafeek, 2022 KHC 524 and Oriental Insurance Co.Ltd., Kottayam v. Santhoshkumar, 2021 KHC 747

10. In Mumthas (Supra), a Single Bench of this Court held that when a contention regarding absence of driving license or fitness certificate is taken, the same has to be established by giving notice to the owner and driver of the offending vehicle to produce the certificate before the Court. If they fail to produce the documents on receipt of notice, an adverse inference regarding absence of the documents can be taken. In the absence of such a course of action being adopted, the Tribunal is not to conclude regarding absence of driving license or fitness certificate on the basis of the contention taken up in the written statement to the said effect.

10.1. In Santhoshkumar (Supra), a Single Bench of this Court held that even after the Award is passed, if the owner of the offending vehicle is able to produce the necessary certificate(s) during the recovery proceedings, the Tribunal can consider the sanctity of the documents with due notice and hearin