Absence of fitness and permit for a transport vehicle constitutes a fundamental breach, allowing the insurer recovery from the vehicle owner.

JUDGMENT

The appeal is filed by the 3rd respondent - insurer in OP(MV) No.939 of 2009 on the file of the Motor Accidents Claims Tribunal, Vatakara, challenging the award passed by the Tribunal. The respondents herein are the claimant and respondents 1 to 2 before the Tribunal.

2. According to the claimant, on 12.07.2008 at about 5.30 p.m., while he was crossing the road at Orkatteri town, the tyre of the lorry bearing registration No.KL-11N -6314 driven by the first respondent in a rash and negligent manner ran over the right foot of the claimant and thereby he sustained severe injuries. The claimant approached the Tribunal claiming a total amount of ₹21,47,000/-, which is limited to ₹8,00,000/- as compensation.

3. Before the Tribunal, the first, second and third respondents were the driver, owner and insurer of the offending vehicle respectively. The third respondent – insurer filed a written statement, admitting the insurance policy, but denying the liability and quantum of compensation claimed. They contended that the accident occurred due to negligence on the part of the claimant while crossing the road. Before the Tribunal, Exts.A1 to A4 and A5 series were marked on the side of the claimant and Ext.B1 was marked on the side of the respondents. The Tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹3,40,688/- as compensation under different heads with interest @ 7.5% per annum from the date of petition till realization with proportionate costs. The respondent insurer has come up in appeal, challenging their liability to indemnify the second respondent/owner of the offending vehicle and seeking for a right of recovery against the second respondent/owner of the offending vehicle.

4. Heard the learned Standing Counsel for the appellant – insurance company and the learned counsel for the first respondent/claimant and third respondent owner of the vehicle.

5. The learned Standing Counsel appearing for the appellant submits that the offending vehicle was not having a Fitness Certificate or a valid permit at the time of the accident. It is further submitted that the insurer had filed I.A No.3615 of 2010 before the Tribunal seeking for a direction to the owner and driver of the offending vehicle to produce the permit and Fitness Certificate of the offending vehicle, however, the Tribunal neither considered the said application nor granted a right of recovery against the owner and driver of the offending vehicle while awarding compensation to the claimant.

6. In the judgment of the larger Bench of this Court in Pareed Pillai v. Oriental Insurance Co. Ltd. [2018 (4) KLT 792], it is held that the requirements are quite ‘fundamental’ in nature and when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such a vehicle and no owner can permit the use of any such vehicle. It was further held that the absence of permit or fitness certificate, in case of a transport vehicle, is a fundamental breach and not a technical breach and that no right of recovery can be given to the insurer is not correct. Thus, in such cases, right of recovery can be granted to the insurer against the owner of the offending vehicle. In this case though a specific contention was raised by the insurer that there was no fitness and valid permit for the vehicle, the owner, though served with notice, did not contest the claim. Even before this Court, the Fitness Certificate and permit of the offending vehicle at the time of the accident have not been produced. Hence, it has to be presume