JUDGMENT

This Civil Miscellaneous Appeal has been preferred by the Insurance Company, while the owner of the vehicle has preferred cross objection. 2. The first respondent herein, who is working in the college had travelled in College Bus and met with an accident and sustained injuries and thereby, filed a petition in M.C.O.P.No.38 of 2013, for claiming compensation for the injuries sustained in the road transport accident.

3. Before the Tribunal, owner of the vehicle/College Management has filed vakalath but counter not filed and thereby, the College Management was framed ex-parte. The appellant herein/Insurance Company has filed an interlocutory application under Section 170 of Motor Vehicles Act and the same was allowed. The Tribunal after enquiry has held that the accident has taken place due to the rash and negligence driving of the driver of the bus and accordingly held that the owner of the vehicle namely College Management is liable and hence, the policy is in force on the date of the accident, the Insurance Company is also jointly liable to pay the compensation. However, taking note of the fact that on the date of the accident, there was no fitness certificate as produced before the Tribunal and has directed to the Insurance Company to pay the compensation and to recover the same from the owner of the vehicle viz., College. Challenging pay and recovery order passed by the Tribunal, the appellant herein/Insurance Company has filed the above appeal.

4. During the pendency of the C.M.A, the owner of the vehicle has preferred cross objection.

5. Be that as it may, the learned counsel for the appellant herein/Insurance Company would contend that driving of the vehicle without fitness certificate is gross violation as under Section 56 of the M.V Act. On a combined reading of provision to Section 56(1) r/w Sections 59 & 60 of the M.V Act, it is seen that a statutory liability, obligation is fixed upon owner of the vehicle not to ply the bus or vehicle on road without fitness certificate. Hence, I find that since the injured is travelling in the bus, he cannot be treat as a third party and consequently, pay and recovery does not arises in the factual circumstances.

6. Further contended that the injured and the owner of the vehicle are having employer and employee relationship and hence, M.C.O.P case does not arise before the Tribunal, it has to go before the workman compensation.

Hence, pay and recovery cannot be pressed into service.

7. Per contra, Cross Objector/Management/owner of the bus would contend that he has paid necessary fee for the renewal of the Fitness Certificate and subsequently, Fitness Certificate also renewed from the date of the closure and hence, finding rendered by the Motor Accidents Claims Tribunal is to be vacated.

8. The leaned counsel for the claimant made his submission that the compensation award is less and hence prayed for enhancement of compensation.

9. The appellant/Insurance Company has preferred this appeal on the ground that for want of non possession of Fitness Certificate is violation of the terms of the policy condition and hence the Tribunal ought not to have awarded pay and recovery.

10. The factum of the accident the manner of the accident and rash and negligent on the part of the driver of the college Bus are not in dispute and hence finding rendered by the Tribunal are hereby confirmed.

11. On perusal of the documentary evidence filed before the Tribunal coupled with the oral evidence of R.W.1, I find that the second respondent herein is the employer of his driver and for the tortious acts of his employee, the second respondent herein is liable under the principle of vicarious liability. The college bus was insured with the appellant-insurance company for a period between 31.03.2012 and 30.03.2013 as could be seen from Ex.A7 Insurance Policy. As per Ex.P1 F.I.R the date of the accident is 30.10.2012 and therefore the accident has happened during the valid policy period and therefore the appe