Absence of a fitness certificate for a transport vehicle constitutes a fundamental breach, allowing the insurer to recover awarded compensation from the vehicle's owner.

JUDGMENT

This appeal is filed by the appellant/insurance company in O.P (MV) No.717 of 2009 on the file of the Motor Accidents Claims Tribunal, Ottappalam challenging the liability to pay the award amount. The respondents herein are the petitioner and respondents 1 and 2 before the tribunal.

2. According to the claimant, on 09.07.2009 at about 07.30 pm, while the petitioner was travelling on the motorcycle, a goods autorickshaw driven by the 1^st respondent in a rash and negligent manner hit on the motorcycle. As a result of the accident, the petitioner had sustained serious injuries. The appellant approached the tribunal claiming a total compensation of ₹2,00,000/-.

3. The first respondent is the driver and second respondent is the owner of the vehicle. The 3rd respondent/insurer filed a written statement admitting the validity of the policy, but disputing the quantum of compensation claimed and contending that the offending vehicle was plied without a valid fitness certificate. Before the tribunal, Exts.A1 to A8 and Ext.B1 were marked. The tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹1,01,850/- as compensation under different heads with interest @7% per annum from the date of petition till realization with proportionate costs against the 3^rd respondent being the insurer of the offending vehicle. Challenging the liability to pay the award amount, the insurer has come up in appeal.

4. Heard the learned standing counsel for the appellant. Though notice was duly served, the respondents chose not to appear before this Court.

5. The learned standing counsel appearing for the insurance company submitted that before the tribunal they had taken specific contention that the vehicle involved in the accident did not have a valid fitness certificate. The case of the appellant/insurer is that the tribunal has not granted the right to recover the award amount from the owner of the vehicle.

6. 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 in Augustine 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 relying on the judgment of this Court inPareed Pillai v.

Oriental Insurance Co. Ltd. [2018 (4) KLT 792] submitted that the insurer is entitled to get an order for recovery of the amount from the owner of the vehicle.

7. On a perusal of the award, it is seen from paragraph 9 that the Tribunal considered the issue regarding the absence of a valid fitness certificate for the vehicle to ply on the road. However, despite noting that there was no fitness certificate, the Tribunal failed to grant the insurance company the liberty to recover the same from the owner of the vehicle. The Larger Bench judgment of this court in Pareed Pillai (supra), 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.

Following the judgment in P