The absence of a fitness certificate for a transport vehicle constitutes a fundamental breach of policy conditions, entitling the insurer to deny the claim under the policy.

ORDER

1. By way of the present appeal, the appellants have challenged the order dated 19.11.2019, passed by the learned Motor Accident Claims Tribunal, Dungarpur (hereinafter after referred to as "the Tribunal"), whereby a claim petition filed by the respondentclaimants No.1 to 6 was allowed while holding the appellant -owner of the vehicle liable for the claim. The insurance company -respondent No.7 was though held not liable but has been asked to pay the amount of claim, with a stipulation that the insurance company would be entitled to recover the amount from the present appellant-owner of the vehicle.

2. The present appellant was held liable for the claim amount, as the learned Tribunal found that the appellant-owner of the vehicle - Tempo bearing registration No.RJ-12-TA-1420 was not having a fitness certificate, which amounted to violation of policy conditions.

3. Mr. Jain, learned counsel for the appellant argued that if the Transport authority wanted to cancel petitioner’s fitness certificate it was required to pass a speaking order after providing an opportunity of hearing to the petitioner. Since, neither any proceedings were initiated nor the permit issued qua the Tempo in question was cancelled, Mr. Jain argued, it cannot be said that the Tempo was being plied without a valid permit and there was a violation of conditions of the policy.

4. In support of the contention aforesaid, learned counsel for the appellant relied upon the judgment of Allahabad High Court dated 19.07.2019 in United India Insurance Co. Ltd. Vs. Smt. Uma Tripathi & Ors. : First Appeal From Order No.310/2013 and Smt. Uma Tripathi & Ors. Vs. Ishampal & Anr.: First Appeal From Order No.4322/2012 in which it has been held thus:-

"25. At this juncture, it is useful to notice Section 86(1)(a) which provides that the transport authority which has granted permit may cancel the permit or suspend it for the period as it thinks fit on the breach of any condition specified in Section 84 or of any condition contained in the permit. The proviso to Section 86(1) of the Act, 1988 provides that no permit shall be suspended or cancelled unless an opportunity of hearing has been given to the holder of permit to furnish his explanation. Section 86(1) of the Act, 1988 is reproduced herein below: "86 Cancellation and suspension of permits.--(1) The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit-- (a) on the breach of any condition specified in Section 84 or of any condition contained in the permit, or (b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or (c) if the holder of the permit ceases to own the vehicle covered by the permit, or (d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or (e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or (f) if the holder of the permit acquires the citizenship of any foreign country: Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation." 26. The proviso to Section 86(1) clearly contemplates an opportunity of hearing to the holder of permit before cancellation or suspension of the permit on the ground specified in Section 86(1)(a) to (f). Thus, it is evident that the Act does not contemplate that if there is violation of any condition of the permit, the permit shall automatically be deemed to have been cancelled. In fact competent authority has to pass an order before cancelling or suspending the permit after affording opportunity of hearing to the holder of permit."

5. Having heard learned counsel for the appellant and upon perusal of the judgment of the Allahabad High Court rendered in the case of Smt. Uma Tripathi (supra), this Court is not persuaded to go with the reas