IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR STAY) NO. 2 of 2023 In R/FIRST APPEAL NO. 4378 of 2023 ==========================================================

DATTUBHAI KANTIBHAI AGRAWAL Versus PARESH @ PARAS PYARELAL KHATIK ==========================================================

Appearance:

JAYDEEP H SINDHI(9585) for the PETITIONER(s) No. 1 ==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 07/02/2024

IA ORDER

1. Mr. Jaydeep H.Sindhi, learned advocate for the applicant referring to the facts of the case and the observation in the impugned judgment stated that the insurance company has been wrongly exonerated, and direction of pay and recover ought not to have been passed, since vehicle No.GJ-22-T-0052 had valid permit to ply on the road. Advocate Mr. Sindhi submitted that the Tribunal had exonerated insurance company on the ground that the vehicle was not holding a fitness certificate.

2. Advocate Mr. Sindhi submitted that the insurance company would have defence only as available under section 149 of the M.V. Act, 1988, as stood prior to the amending Act, 2019, or even if the provision after the amendment is to be considered, then too no such defence is available to the insurance company under section

150 of the M.V. Act.

3. Advocate Mr. Sindhi submitted that the grounds which can be invoked under section 149 of the M.V. Act, to defend the action includes in breach of specified condition of policy, as explained in sub-section 2(a)(i)(a), whereby on the date of contract of insurance a vehicle was not covered by permit to ply for hire or reward, or under sub-clause (c), for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle.

4. Advocate Mr. Sindhi has relied on a judgment of Smt. Nithya Venkatesh @ Nithya Kalyani Vs. National Insurance Company Ltd., decided by High Court of Karnataka at Bengaluru in MFA No.5993 of 2015 (MV), to contend that on the date of accident, the involved transport vehicle was having a valid permit, which was proved by the R.T.O. Inspector, Manojkumar Pashabhai Suthat, at Exh.48, who was examined by the insurance company, and the inspector has specified the appellant as the owner of the vehicle, on 10.02.2010. Advocate Mr. Sindhi submitted that the R.T.O. has produced documents pertaining to permit and fitness of the vehicle No.GJ-22-T-0052 vide Exh.41 to 52, while the learned Tribunal observed that on 10.02.2010, the vehicle had valid permit, but was not holding a valid fitness certificate.

5. Advocate Mr. Sindhi referring to the provisions of Section 86(i)(a) of the M.V. Act, which provides for cancellation and suspension of permits, submitted that an opportunity of hearing has to be given to the holder of permit to furnish his explanation, and then only the transport authority could cancel the permit or suspend it for the period as it think fit on the breach of condition specified in section 84 or of any condition pertaining the permit.

6. Advocate Mr. Sindhi stated that section 84 of the M.V. Act is in relation to general condition attached to all permits, and when the vehicle is validly registered under section 39 of the M.V. Act, which calls for the compliance of the condition precedent of possessing valid fitness certificate, which has not been cancelled, nor there is any evidence on record that the fitness certificate had expired, and when the necessity of the vehicle having a fitness certificate is not a condition of the policy, Mr. Sindhi submitted that the Tribunal has committed an error in law in exonerating the insurance company.

7. Advocate Mr. Sindhi has also relied upon a judgment of Rajesh Poojary Vs. Rajesh And Another, reported in ILR 2019 Kar.2940, to find assistance to his submission, wherein it is observed that even if the insured did not possess the ‘fitness certificate’ for the offending vehicle, the Insurance Company cannot be exonerated on that ground. Adv