Non-availability of the fitness certificate for the vehicle did not constitute a violation of the insurance policy terms, and specific violation of conditions stipulated under the Motor Vehicles Act was required to establish liability.

J.K. Maheshwari, J.

Heard.

2. This case is listed in defect of not signing the appeal memo. Under the directions of the Court, the signature has been put forth by the appellant, however, the defect stands cured.

3. Heard on the question of admission.

4. Being aggrieved by the award dated 4-2-2013 passed by Vth MACT, Indore in Claim Case No. 4/2011, assailing the finding not to absolve the insurance company from the liability or to direct to pay and recover due to not possessing the permit by the vehicle in question, this appeal has been preferred by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988.

5. As the other pleadings are not relevant h for adjudication and the point of availability of the fitness certificate and its non-availability would amount to violation of the terms and conditions of the policy is required to be adjudicated, therefore, the other facts are not required to be mentioned in detail.

6. In the present case, the offending vehicle is Bajaj Loading Rickshaw bearing registration No. MP 12-LA-0246 by which the injured has received the injury in a road accident arising out of the use of said vehicle. The Tribunal awarded a compensation and on the issue of liability in Para 17 it was observed that as per the evidence of the witness of the insurance company Pawan Agrawal (NAW-1) it has been clearly stated that in terms of the conditions of the policy necessity of the fitness has not been specified. However, the non-availability of the fitness certificate would not amounting to violation of the terms and conditions of the policy. It has been further observed that either with criminal papers or by bringing some document, it has not been established by insurance company that the vehicle was not possessing the permit. In absence of the cogent evidence to that effect it was concluded that the non-applicants are jointly and severally liable to pay the compensation.

7. Learned counsel appearing on behalf of the appellant placing reliance on a judgment of the Chhattisgarh High Court as well as Kerala High Court in the case of Bajaj Allianz General Insurance Co. Ltd. v. Mohan Yadav & others in M.A. (C) No. 1031/2011 and Thara v. Syamala, reported in 2009 (4) TAC 549 (Ker) : AIR 2009 (NOC) 2244 (Ker) has submitted that non-availability of the fitness certificate would liable to exoneration of the insurance company, therefore, accepting the analogy of the said judgment, this appeal may be allowed and the finding of liability of jointly and severally may be set aside.

8. After hearing learned counsel appearing for the parties and on being asked by this Court that under Section 147 of the Motor Vehicles Act whether any such condition to possess, the fitness certificate has been specified or not. It has further been asked that as per the terms of the policy, necessity of fitness is essential. Learned counsel is not in a position to show, that non-availability of the fitness certificate would amount to violations of the terms and conditions of the policy. After making an endeavour to satisfy this Court he is unable to show any terms of policy showing the necessity of the permit. Referring the provisions of Section 56 of the M.V. Act, it is contended that the fitness certificate of the transport vehicle is required, therefore, it may be treated to be violation of the terms and conditions of the policy.

9. After hearing Shri Jain, in the considered opinion of this Court, as per the defence taken by the insurance company, the violation of the terms and conditions of the policy has been pleaded due to non-availability of fitness. As per the statement of the officer of the insurance company, it is clear that no such condition has been specified in the policy, however, merely non-production of the fitness certificate would not prevent (sic) the finding recorded by the Tribunal. In addition to the aforesaid, it may safely be observed that until and unless violation of the conditions stipulated under Section