The absence of a route permit or fitness certificate does not absolve the Insurance Company from liability under Section 149(2) of the Motor Vehicles Act, 1988.

Judgment

Mrs. Alka Sarin, J.

This common order will dispose off the appeal being FAO- 3394-2019 filed by the Insurance Company and cross-objections being XOBJC-101-2022 filed by the claimants.

FAO-3394-2019 (O&M)

2. The present appeal has been preferred by the Insurance Company challenging the award dated 02.02.2019 passed by the Motor Accident Claims Tribunal, Chandigarh (hereinafter referred to as the ‘Tribunal’). The two challenges laid by the Insurance Company in the present appeal are that Chandresh @ Chandresh Kumar (hereinafter referred to as the ‘deceased’) himself was negligent inasmuch as he did not possess a driving licence and was driving the motorcycle without a driving licence. The second ground for challenge is that the recovery rights ought to have been granted to the Insurance Company in the absence of a permit to ply the offending vehicle and in the absence of fitness certificate of the offending vehicle.

3. Learned counsel for the Insurance Company would contend that the deceased in the present case admittedly did not have a driving licence and hence it ought to have been held to be at least a case of contributory negligence. It is further the contention that there was no route permit with the offending vehicle to ply the vehicle, which was a mini bus, and there was also no fitness certificate. In support of his arguments learned counsel for the Insurance Company has relied upon the judgments of the Hon’ble Supreme Court in the cases of Amrit Paul Singh & Anr. vs. TATA AIG General Insurance Co. Ltd. & Ors. [2018(3) RCR (Civil) 131] and Rani & Ors. vs. National Insurance Company Ltd. & Ors. [2018(3) RCR (Civil) 979] and those of this Court in the cases of Jamil Khan & Anr. vs. Bajaj Allianz General Insurance Co. Ltd. & Ors. [2013 ACJ 1640] and M/s Salson Steels Pvt. Ltd. vs. Jaswinder Kaur alias Sukhwinder Kaur & Ors. [FAO-5140-2016 decided on 21.03.2018].

4. Per contra learned counsel appearing on behalf of respondent Nos.7 and 8 i.e. driver and owner of the offending vehicle would contend that under Section 149(2) of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act of 1988’) certain defenses were made available to the Insurance Company and the absence of route permit or the fitness certificate are not the defenses as enumerated in Section 149(2) of the Act of 1988. It is further the contention that the Hon’ble Supreme Court in the case of Kamala Mangalal Vayani & Ors. vs. United India Insurance Co. Ltd. & Ors. [2010 ACJ 1441] has held that it is for the insurer, who denies its liability under the policy, to prove that inspite of the comprehensive insurance policy issued by it, it is not liable on account of the requirements of the policy not being fulfilled. Similar is the view taken by a Division Bench of this Court in the case of National Insurance Company Ltd. vs. Kamlesh Kaur & Ors. [2008 ACJ 927]. Learned counsel for respondent Nos.7 and 8 has further relied upon judgments in the cases National Insurance Company Ltd. vs. Rekha Rani & Ors. [FAO-8428-2014 decided on 07.10.2014]; M/s Sapna Transporter and Contractor vs. National Insurance Company Ltd. & Ors., Charanjit Singh & Ors. vs. Harish Kumar Sachdeva & Ors. [2018(4) RCR (Civil) 993] and The Oriental Insurance Company Ltd. vs. Smt. Baljinder Kaur & Ors. [2019(3) PLR 589] in support of the argument that the defense that the Insurance Company was not liable to pay the amount in the absence of fitness certificate or route permit, was not available with the Insurance Company under Section 149(2) of the Act of 1988.

5. Heard.

6. In the present case on 13.11.2017 the deceased was going on the road leading from Derabassi to Bhareli Poultry Farm Chowk while on his motorcycle. He was riding the motorcycle at a slow speed and on the left side of the road. He was being followed by his brother Balvir Singh on a separate motorcycle. After crossing K