IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIRDESH th ON THE 14 OF MARCH, 2024 MISC. APPEAL No. 2843 of 2017 BETWEEN:-

SANTOSH S/O RAMKRISHAN RATHORE, AGED ABOUT 32

1. YEARS, LOHAR GALI, SUNDREL, DISTT. DHAR (MADHYA PRADESH)

TILU @ TRILOK S/O JIVAJI RATHORE OCCUPATION: DRIVER

2. SUNDREL, P S DHARAMPURI DISTT DHAR (MADHYA PRADESH)

.....APPELLANTS (SHRI AVINASH YADAV, ADVOCATE FOR APPELLANTS)

AND THE NEW INDIA INSURANCE CO. LTD. OFFICE- NEAR HOTEL

1.

SUNDRAM, KHARGONE (MADHYA PRADESH)

HUSSAINA BAI W/O HASAN ALI, AGED ABOUT 33 YEARS, 2. OCCUPATION: HOUSEWIFE BOHRA BAKHAL, KHARGONE, DISTT KHARGONE (MADHYA PRADESH)

HATIM MINOR THROUGH MOTHER HUSSAINA BAI S/O

3. HASAN ALI, AGED ABOUT 10 YEARS, BOHRA BAKHAL, KHARGONE, DISTT KHARGONE (MADHYA PRADESH)

HUSAIN MINOR THROUGH MOTHER HUSSAINA BAI S/O

4. HASAN ALI, AGED ABOUT 8 YEARS, BOHRA BAKHAL, KHARGONE, DISTT KHARGONE (MADHYA PRADESH)

ALI MINOR THROUGH MOTHER HUSAINA BAI S/O HASAN

5. ALI, AGED ABOUT 6 YEARS, BOHRA BAKHAL, KHAROGNE, DISTT KHARGONE (MADHYA PRADESH)

BANO BAI W/O ALI HUSAIN, AGED ABOUT 70 YEARS, BOHRA

6. BAKHAL, KHAROGNE, DISTT KHARGONE (MADHYA PRADESH)

.....RESPONDENTS (SHRI ANIL KUMAR GOYAL, ADVOCATE FOR RESPONDENT NO.1 )

Signature Not Verified AND MISC. APPEAL No. 2849 of 2017 BETWEEN:-

SANTOSH S/O RAMKRISHAN RATHORE, AGED ABOUT 32

1. YEARS, LOHAR GALI, SUNDREL, DISTT. DHAR (MADHYA PRADESH)

TILU @ TRILOK S/O JIVAJI RATHORE OCCUPATION: DRIVER

2. SUNDREL PS DHARAMPURI DISTT DHAR (MADHYA PRADESH)

.....APPELLANTS (SHRI AVINASH YADAV, ADVOCATE FOR APPELLANTS)

AND THE NEW INDIA INSURANCE CO. LTD. OFFICE- NEAR HOTEL

1.

SUNDRAM, KHARGONE (MADHYA PRADESH)

HAKIMMUDIN S/O ALI HUSSAIN, AGED ABOUT 52 YEARS, 2. OCCUPATION: DRIVER BOHRABAKHAL, KHARGONE, DISTT KHARGONE (MADHYA PRADESH)

.....RESPONDENTS (SHRI ANIL KUMAR GOYAL, ADVOCATE FOR RESPONDENT NO.1)

These appeals coming on for orders this day, the court passed the following:-

O R D E R

With the consent of both the parties, these appeals have been decided together.

(2) Both these appeals have been filed by the owner of offending vehicle under Section 173 (1) of the Motor Vehicles Act, 1988 (for short 'MV Act') arising out of award dated 07.09.2017 passed in Claim Case Nos.55/2016 and 56/2016 passed by Second Member, Additional Motor Accident Claims Tribunal (AMACT), Khargone (MP) on account of exonerating the Signature Not Verified Insurance Company.

(3) The date of accident, negligence and the issue of liability is not in dispute, however the findings recorded by the Tribunal in this regard is not in question.

(4) Counsel for the appellants has filed these appeals on the ground that claims Tribunal has committed error in exonerating the Insurance Company on the ground of unavailability of fitness certificate. He submits that the fitness certificate is not essential as per terms and conditions of the insurance policy. The fitness certificate would not amounts to violation of terms and conditions of the Insurance Company.

(5) Per contra, counsel for the respondent Insurance Company has submitted that the Claims Tribunal has rightly exonerated the Insurance Company and prays for rejection of these appeals.

(6) After hearing counsel for both the parties and on perusal of the record, it was found that at the time of accident the offending vehicle has no fitness certificate but the same vehicle is being used for the commercial purpose. The Five Judges Bench of Kerala High Court in the case of Pareed Pillai vs. Oriental Insurance Company Limited (MACD 2019(2) (Ker) 529) has ruled out that want of fitness of the vehicle used for commercial purpose as a transport vehicle shall render the vehicle to be not validly registered and fit for plying. Under such circumstances, the policy shall not cover the risk involved in running the vehicle on road. The detailed reasons and justifications for such a conclusions as reflected from the judgment in the case of Pareed Pillai (supra)

Signature Not Verified (para 17-21) is found to be based on sound reasonin