ORDER

Learned counsel for the appellant submits that in the instant case, respondent no.1 is not served but no adverse order is going to be passed against the respondent no.1 (claimant) because if appeal of the appellant is allowed, then, principle of pay and recover will be applied, therefore, appellant be heard for final hearing at motion stage.

2. In view of above submissions, heard finally at motion stage.

3.This appeal has been filed by the appellant under Section 173 (1) of the Motor Vehicle Act, against the award dated 29.04.2023 passed in MACC No.22/2022 by Additional Member to Addl. Member MACT, Budhar, District Shahdol seeking setting aside of impugned award/exoneration from liability to pay the compensation.

4.Learned counsel for the appellant insurance company, after referring to paras 32 and 33 of impugned award, submits that Tribunal has held that on the date of accident, offending vehicle was being plied without there being any fitness certificate. Therefore, on the basis of above, it is urged that offending vehicle was being plied in breach of terms and conditions of insurance policy. Tribunal has erred in not exonerating the insurance company from liability to pay compensation. Therefore, appeal be allowed and appellant insurance company be exonerated from liability to pay compensation.

5. Learned counsel for the respondents 4 and 5 has supported the findings of the Tribunal.

6.I have heard learned counsel for the parties and perused the record of the case.

7.Admittedly, as per findings recorded by tribunal in para 32 and 33 of the impugned award, there was no fitness certificate of offending vehicle at the time of accident at the time of accident, offending vehicle is being plied without fitness certificate. Tribunal has held that in insurance policy, no condition with respect to fitness certificate is mentioned, therefore, absence of fitness certificate cannot be treated to be breach of terms and conditions of insurance policy.

8. Therefore, question arises as to whether absence of valid fitness on the date of accident constitute breach of terms and conditions of insurance policy. Coordinate Bench of this Court in United India Insurance Company Ltd. Vs. Vinod and Others, (2020) 1 MPLJ 142 , has dealt with above issue in details which is as under : <br/>

"5. Section 39 of the Motor Vehicles Act, 1988 provides for registration of the vehicle and section 56 of the Motor Vehicles Act, 1988 provides for fitness certificate.

6. Sections 39 and 56 of Motor Vehicles Act, 1988 reads as under:

39. Necessity for registration.— No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:

Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.

56. Certificate of fitness of transport vehicles.— (1) Subject to the provisions of sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder:

Provided that where the prescribed authority or the authorized testing station refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.

(2) The “authorized testing station” referred to in sub-

section (1) means a