The absence of a valid fitness certificate is a fundamental breach of insurance policy conditions. In such cases, the 'pay and recover' doctrine applies, requiring the insurer to pay the claimants first and then recover the amount from the vehicle owner and driver.

Judgment on Board

1. The appellant/Insurance Company has preferred this appeal calling in question legality, validity and correctness of the impugned award dated 4-5-2018 passed by the Motor Accident Claims Tribunal, Kondagaon, District Kondagaon in Claim Case No.38/2017, by which a compensation of ₹ 9,26,800/- has been awarded to the claimants/ respondents No.1 & 2 herein by fastening liability upon the Insurance Company.

2. The sole submission raised on behalf of the appellant herein/ Insurance Company is that the owner of the offending vehicle (respondent No.4 herein) did not have valid fitness certificate to ply the vehicle on the road, therefore, the Insurance Company is not liable to pay compensation and the Claims Tribunal has committed illegality in holding that the Insurance Company is liable to pay the compensation relying upon the decision of this Court in the matter of National Insurance Company Limited v. Ghanaram Sahu and others ¹2018(2) CGLJ 75. Mr. Dashrath Gupta would also cite the decision of the Division Bench of this Court in the matter of Adesh Kumar and another v. Smt. Satarupa Bai Yadav and others²2020:CGHC:18660-DB in which the Full Bench decision of the Kerala High Court in the matter of Ramankutty and another v. Pareed Pillai and another ³2018 SCC OnLine Ker 3542 has been relied upon to hold that in absence of fitness certificate, the Insurance Company is not liable to pay compensation.

3. Mr. Saurabh Gupta, learned counsel appearing on behalf of the claimants/respondents No.1 & 2 herein and Mr. Praveen K. Dhurandhar, learned counsel appearing on behalf of the owner of the offending vehicle/respondent No.4 herein, would support the impugned award and oppose the appeal.

4. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection.

5. In paragraph 11 of the impugned award, the Claims Tribunal has clearly held that the owner of the offending vehicle did not have valid fitness certificate to ply the offending vehicle on road and thereafter, relying upon the decision of this Court in Ghanaram Sahu’s case (supra) has held that even if the fitness certificate is not there, that will not exonerate the Insurance Company from its liability.

6. In Ghanaram Sahu’s case (supra) this Court while dismissing the appeal of the Insurance Company has observed as under: -

“9. Moreover, the plea of the vehicle not having the fitness certificate is not one of the ground which has been envisaged under Section 149 of the Motor Vehicles Act which the Insurance Company could take.

10. This view of the Court also stands fortified by the decision of this Court in MAC No.1229/2012 decided on 08/04/2013 in the case of Divisional Manager. The Oriental Insurance Company Ltd. v. Smt. Rupa Dahariya and others.

11. Further the Supreme Court in the case of Rekha Jain v. National Insurance Co. Ltd. [MANU/SC/0773/2013 : 2013 (2) An.W.R. 826 (SC) : 2013 AIR SCW 4597] in paragraph 30 have held as under:

“30. If we permit the insurer to take any other defence other than those specified in sub-section (2) of Section 149 , it would mean we are adding more defences to the insurer in the statute which is neither found in the Act nor was intended to be included.

16. For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub-section