Absence of a valid fitness certificate is a fundamental breach justifying recovery rights for insurers under the Motor Vehicles Act.

J U D G M E N T

The third respondent, M/s.National Insurance Co.Ltd in O.P.(MV)No.1006 of 2009 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda is the appellant herein. The respondents herein are petitioners 1 and 2 and respondents 1 and 2 are the respondents before the Tribunal.

2. The challenge raised in this appeal is non- grant of recovery right in favour of the insurer, though the insurer raised a specific contention in the written statement that the vehicle involved in the accident viz., KL-40-2875 Mahindra van did not have a valid fitness certificate at the time of accident.

3. It is argued by the learned counsel for the appellant relying on the Full Bench decision of this Court reported in [ 2018 (5) KHC 1 ],Pareed Pillai v. Oriental Insurance Co.Ltd. that absence of permit or fitness certificate, in case of a transport vehicle, is a fundamental breach and not a technical breach and the insurer can pay and recover in such cases.

4. In the award, it is stated that the insurer filed I.A.No.3674 of 2010 to direct the owner of the vehicle to produce fitness certificate and on direction, the same was not produced. However, the Tribunal found that the lack of fitness certificate is not a defence under Section 149 (2) of the Motor Vehicles Act and therefore, the recovery right was negatived. In fact, following the ratio in the Full Bench decision reported in [ 2018 (5) KHC 1 ],Pareed Pillai v. Oriental Insurance Co.Ltd., the absence of fitness certificate is a fundamental breach and therefore, the insurance company is entitled to get recovery of the amount. In view of the matter, the Tribunal went wrong in disallowing recovery right claimed by the insurance company. Therefore, the award is interfered and modified.

In the result, this appeal stands allowed. It is held that the appellant herein, the original third respondent is entitled to recover Rs.4,68,000/- along with the accrued interest thereof from the original first respondent and the third respondent herein, after depositing the same in the name of the original claimant as directed by the Tribunal.