The court reinforced that the absence of a Fitness Certificate constitutes a fundamental breach of policy, entitling the insurer to recover awarded compensation.

JUDGMENT

Dated this the 1 9 t h day of September, 202 5 The appeal is filed by the 2nd respondent - insurer in OP(MV) No.430 of 2011 on the file of the Additional Motor Accidents Claims Tribunal, Pathanamthitta, challenging the award passed by the Tribunal. The respondents herein are the claimant and the 1^st respondent before the Tribunal.

2. According to the claimant, on 06.07.2010 at about 1.30 p.m., while he was travelling in an Alto Car bearing No.KL-03-P-553 from south to north direction along the Thiruvalla-Kozhencherry Public Road and when he reached at Eraviperoor, a tipper lorry bearing No.KL-04-Q- 3751 driven by the first respondent in a rash and negligent manner came from the opposite direction and hit against the front side of the car and thereby he sustained severe injuries. The claimant approached the Tribunal claiming a total amount of ₹15,43,000/-.

3. Before the Tribunal, the first and second respondents were the owner-cum-driver and insurer of the offending vehicle respectively. The 2^nd 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 and he was intoxicated at the time of accident. Before the Tribunal, Exts.A1 to A14 and Ext.B1 were marked. The Tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹9,10,773/- as compensation under different heads with interest @ 9% per annum from the date of petition till realization with proportionate costs. The 2^nd respondent insurer has come up in appeal, disputing the quantum of compensation awarded and the alleged policy violations.

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

5. The learned Standing Counsel appearing for the appellant insurer submitted that though a contention was taken before the tribunal that the vehicle was not having a Fitness Certificate at the time of accident, the tribunal, relying on a judgment of this Court inAugustine v.Ayyappankutty and another [2015 (2) KHC 219] found that absence of Fitness Certificate is technical breach only and there was no violation of policy conditions and thus right of recovery was not granted to the insurance company. The learned Standing Counsel further submitted that the larger Bench of this Court in Pareed Pillai v. Oriental Insurance Co. Ltd. [2018 (4) KLT 792] has 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 not granting right of recovery to the insurer is incorrect. Thus, in such cases, right of recovery can be granted to the insurer against the owner of the offending vehicle.

6. Although notice was served on the 2^nd respondent, who initially appeared through counsel, the counsel later relinquished the vakalath and thereafter, there has been no further appearance on behalf of the second respondent. Considering the Larger Bench judgment of this court in Pareed Pillai (supra), I find that the appellant insurer is entitled for right of recovery to recover the compensation awarded, from Abraham @ Kunjumon, the second respondent/owner-cum-driver of the offending vehicle. 7. The learned Standing Counsel for the appellant insurance company submitt