Delhi District Court
Smt. Guddi Devi (Wife Of Deceased) vs Sh. Santosh Kumar on 13 September, 2021
IN THE COURT OF MS. SHUCHI LALER, PRESIDING OFFICER-
MOTOR ACCIDENT CLAIMS TRIBUNAL, SHAHDARA DISTRICT,
KKD, DELHI
MACT No. 1146/2016
In the matter of:
1. Smt. Guddi Devi (wife of deceased)
W/o Late Sh. Hori Lal
2. Sh. Ram Karan (son of deceased)
S/o Late Sh. Hori Lal
3. Master Ram Lakhan (minor son of deceased)
S/o Late Sh. Hori Lal
4. Master Rohit (minor son of deceased)
S/o Late Sh. Hori Lal
5. Sh. Murari Lal (father of deceased)
S/o Late Sh. Shyam Lal
6. Smt. Sahdevi (mother of deceased)
W/o Late Sh. Murari Lal
All resident of
R/o 65, Village Gunpur,
Tehsil Raja Khera,
District Dhalpur .... Petitioners
Versus
1. Sh. Santosh Kumar
S/o Sh. Mani Ram
R/o Village Garohi,
Police Station Fatanpur,
District Pratapgarh, U.P.
2. Sh. Sanjay Maurya
(owner of vehicle no. RJ 09 GA 2120)
R/o 535/1, Shree Nagar, Shakur Basti, Rani
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 1 of 27
Bagh, Delhi - 34.
3. The New India Assurance Co. Ltd.
Asaf Ali Road, New Delhi. ..... Respondents
Date of Institution : 17.03.2015
Date of Arguments : 01.09.2021
Date of Judgment : 13.09.2021
AWARD
1. Vide this award, the claim petition under Section 166
and 140 of M.V. Act would be decided. This claim petition arises out
of an accident which took place on 19.11.2014 near Bhopura
Crossing, P.S. Sahibabad, Ghaziabad, U.P. resulting into death of
Sh. Hori Lal.
2. The case of petitioners, in brief, is that on 19.11.2014
at about 5 am, the deceased was going from his residence to
Sahibabad, Subji Mandi for purchasing vegetables, on his
motorcycle bearing no. DL 5SAD 4517 and when he reached near
Lal Gate, Bhopura Crossing, PS Sahibabad, Ghaziabad, U.P.,
suddenly the offending Truck bearing no. RJ 09 GA 2120, which
was being driven by respondent no. 1, in rash and negligent manner
and at a high speed, had hit the motorcycle of the deceased from
rear side, resulting into death of the deceased at the spot. It is
further alleged that respondent no. 2, being the registered owner of
offending vehicle, is vicariously liable for the act of respondent no.
1. The offending vehicle is stated to be insured at the time of
accident so respondent no. 3 is liable to pay the compensation
amount.
3. Respondent No. 1 stated, in his written statement, that
no accident was caused by the alleged offending Truck and as such
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 2 of 27
neither respondent no. 1 nor respondent no. 2 is liable to pay any
compensation.
4. Respondent no. 2, in his written statement, admitted
that he is the owner of the offending Truck and on the date of the
accident, the same was being driven by respondent no. 1. He has
alleged that the accident was caused due to the negligence of
deceased and not due to the negligence of respondent no. 1. He
further stated that respondent no. 1, being responsible citizen, took
the injured to hospital in ambulance and got him admitted. It is lastly
prayed that the petition be dismissed as the accident was not
caused due to the negligence on the part of respondent no. 1.
5. Respondent No. 3 / Insurance Company, in its written
statement, denied its liability to pay the compensation amount on
the ground that the accident was caused due to the negligence of
deceased, who was driving the motorcycle at high speed and lost
balance, when he suddenly applied breaks. The Insurance
Company further contended that the deceased was not wearing
helmet at the time of accident. It also took the defence that it was
not liable to pay the compensation as respondent no. 1 / Driver
Santosh Kumar was not having a valid driving license on the date of
accident. However, the Insurance Company admitted that the
vehicle was duly insured at the time of accident in the name of
respondent no. 2.
6. On the basis of pleadings of the parties, following
issues were framed on 11.08.2016:-
(i) Whether respondent no. 1 was driving vehicle bearing
no. RJ 09GA 2120 on 19.11.2014 at 5 am near Lal Gate, Bhopura
Crossing, Police Post Tulsi Niketan, Ghaziabad, U.P. in a high
speed and in rash and negligent manner and hit against motorcycle
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 3 of 27
bearing no. DL 5SAD 4157 as a result its occupant, namely, Hori Lal
sustained fatal injuries? OPP
(ii) Whether the petitioners are entitled for any
compensation, if so and for what amount? OPP
(iii) Relief.
7. To prove the case, the wife of deceased, Ms. Guddi
Devi stepped into the witness box as PW1 and tendered her
evidence by way of affidavit which is Ex.PW1/1. She has relied
upon the following documents:-
(i) Criminal Case Record as Ex.PW1/A;
(ii) Copy of Ration Card of deceased as Ex.PW1/B;
(iii) Copy of her Election ID Card as Ex.PW1/C;
(iv) Documents of shop allotted to deceased as Ex.PW1/D;
(v) Copy of Death Certificate of deceased as Ex.PW1/E.
Eye witness Sh. Lalit Kumar has been examined as
PW-2 who tendered his evidence by way of affidavit, which is
Ex.PW2/A.
Both these witnesses were duly cross examined by ld.
counsel for Insurance Company and by ld. counsel for respondent
no. 2. Thereafter, petitioners' closed their evidence.
8. Respondent no. 3 / Insurance Company examined its
Assistant Manager Sh. Sunil Kumar Verma as R3W1 to prove that
the offending vehicle was not having fitness certificate at the time of
accident. He tendered his evidence by way of affidavit which is
Ex.R3W1/A. He also relied upon documents Ex.R3W1/1 and
Ex.R3W1/2. He was duly cross examined by ld. counsel for
respondent no. 2 / owner.
9. Final arguments heard and record perused.
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10. Issue wise findings are as under:-
11. ISSUE NO. 1 - In an action founded on the principle of
fault liability, the proof of rash and negligent driving of the offending
vehicle is sine qua non. However, the standard of proof is not as
strict as applied in criminal cases and evidence is to be tested on
the touchstone of preponderance of probabilities. Holistic view is to
be taken while dealing with the Claim Petition based upon
negligence. Strict rules of evidence are not applicable in an inquiry
conducted by the Claims Tribunal. Reference may be made to the
judgments titled as New India Assurance Co. Ltd. Vs. Sakshi
Bhutani & Ors., MAC APP. No. 550/2011 decided on 02.07.2012,
Bimla Devi & Ors. Vs. Himachal Road Transport Corporation & Ors.
(2009) 13 SC 530, Parmeshwari Vs. Amirchand & Ors. 2011 (1) SCR
1096 & Mangla Ram Vs. Oriental Insurance Company Ltd. & Ors.
2018, Law Suit (SC) 303.
12. The case of petitioners, in brief, is that on 19.11.2014
at about 5 am, the deceased was going from his residence to
Sahibabad, Subji Mandi for purchasing vegetables, on his
motorcycle bearing no. DL 5SAD 4517 and when he reached near
Lal Gate, Bhopura Crossing, PS Sahibabad, Ghaziabad, U.P.,
suddenly the offending Truck bearing no. RJ 09 GA 2120, being
driven by respondent no. 1 in rash and negligent manner and at
high speed, had hit his motorcycle from rear side which resulted into
death of the deceased at the spot.
13. In order to prove that the offending vehicle was
being driven in rash and negligent manner, petitioner no. 1 (wife of
deceased) tendered her evidence by way of affidavit which is
Ex.PW1/A. In para no. 2 and 3 of the said Affidavit, she testified
regarding the manner in which the accident took place, however, the
said deposition is inadmissible being hearsay, as PW-1 / petitioner
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categorically admitted, in her cross examination, that she is not an
eye witness of the accident. The relevant extract of her cross
examination is as under:-
"Neither I nor any of my children had seen
happening of the accident, so I am not eye
witness to the accident....."
14. Petitioners also examined Sh. Lalit Kumar as PW-2
and he, in para no. 2 of his affidavit, testified regarding the manner
in which the accident took place, which is reproduced hereinbelow:-
"2. That on 19.11.2014, the deponent was
taking morning walk at about 5.00 am and when
he reached near Lal Gate Bhopura Crossing,
(police post Tulsi Niketan), P.S. Sahibabad,
Ghaziabad, U.P. he saw a Truck bearing no. RJ-
09GA-2120 driven by respondent no. 1 rashly,
negligently and in a high speed and hit a
motorcycle from back side, resulting which the
deceased died on the spot."
15. PW-2, being eye witness, was subjected to lengthy
cross examination by ld. counsel for Insurance Company. His cross
examination, being relevant, is reproduced as under:-
".....My duty hours from 9 am to 6.00 pm. I start
my work / duty at about 7.00 - 7.30 am. I was
going for morning walk / running at 5.00 am. It is
wrong to suggest that it was a winter time and
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usually at 5 am there is darkness and it was not
possible to me to see any accident at that time
or to do for morning walk in darkness especially
when there was no arrangement of light near
the spot of accident. I saw that a truck and
motorcycle were moving towards Ghaziabad
and suddenly truck struck against motorcycle
from behind and motorcyclist entangled with the
tyre of the truck and truck driver stopped the
vehicle on hearing the noise by public persons
and ran away after leaving the truck at the spot.
It is wrong to suggest that I did not see any
accident or that no such accident took place in
the mode and manner of accident described by
me. It is wrong to suggest that I am not an eye
witness to accident or that I am planted witness
of the petitioner just to get this claim."
16. In the aforesaid cross examination, PW2 testified
that he was on morning walk on that day and he had seen the
accident between the offending Truck and the motorcycle of the
victim. He has also explained as to how the accident took place and
that the Truck Driver after stopping the Truck, instead of helping the
victim / deceased ran away from the spot. The testimony of PW-2 is
corroborated by the FIR lodged at the police station on the date of
accident itself. Moreover, respondent no. 1 has been chargesheeted
in the same FIR and is facing trial before the Court. It may also be
noted that respondent no. 1 in the present case, took the defence
that no accident was caused by the alleged offending vehicle. The
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 7 of 27
said defence is incorporated in para C on page no. 1 of the written
statement, which reads as under:-
"That the truck alleged in the petition is not at all
involved in any kind of alleged accident caused
by it. Therefore, the petition is liable to be
dismissed."
17. The said defence taken by respondent no. 1 is
contrary to the story put forth by respondent no. 2 / owner as well as
the Insurance Company. Respondent no. 2 / owner, in para no. 5 on
page no. 3 of the written statement, categorically admitted that the
accident took place between the offending vehicle and the
motorcycle of the deceased, though he alleged that the accident
was caused due to the negligence of the deceased. The said para is
reproduced here in below :-
"5. That the present claim proceeding / DAR is
not maintainable in the eyes of law because the
alleged accident did not take place due to rash
and negligent driving of the respondent no. 1
who was driving the Truck. However, the
respondent no. 1 was driving the Truck.
However, the respondent no. 1 was driving his
Truck in a normal speed and taking due care of
traffic rules. It is further submitted that the driver
of the Truck i.e. Respondent no. 1 has indicated
properly prior to the turn of his truck. It is further
submitted that the injured Inderjeet's motor
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 8 of 27
cycle at a very high speed and in rash and
negligent manner without taking care of the turn
or indicator / horn of the respondent's truck and
all of sudden claimant applied brake of his bike,
as a result of which he lost his balance and fell
down along with the present complainant /
informant due to his own faulty driving. It is
submitted that as a concerned human being,
the respondent no. 1 immediately got down
from his truck and took the injured to the
hospital by ambulance and got the injured
admitted in Hospital."
18. The defence taken by the driver / respondent no. 1
and owner / respondent no. 2 are contradictory to each other and
clearly show that the respondents are trying to raise frivolous
defences in order to avoid the claim on one ground or the other.
19. In view of the above discussion, there is sufficient
material on record to conclude that the accident occurred due to
rash and negligent driving of offending vehicle by respondent no. 1
resulting in death of Sh. Hori Lal. The offending vehicle was owned
by respondent no. 2 and was duly insured with respondent no.3.
Issue no. 1 is answered in favour of petitioners.
20. ISSUE NO. 2: - In view of finding on aforesaid issue,
the petitioners are entitled to compensation, however, the quantum
of compensation and the liability to pay the same etc. still needs to
be adjudicated. Section 168 of the Act enjoins the claim tribunal to
hold an inquiry into the claim to make an award determining the
amount of compensation which appears to just and reasonable. It
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has to be borne in mind that the compensation is not expected to be
wind fall or a bonanza nor it should be pittance. To determine the
compensation in a fatal case, three facts need to be established by
the claimants: (a) age of the deceased; (b) income of the deceased;
and (c) the number of dependents.
(i) Age of deceased: The age of deceased is necessary to
apply the multiplier. As per the Ration Card Ex.PW1/B of deceased,
his year of birth was 1985 and the accident took place on
19.11.2014, accordingly, the age of deceased was 29 years at the
time of accident.
(ii) Determination of Income of deceased : After deciding the
age of deceased, his income needs to be determined. The wife of
deceased / PW1 testified that the deceased was allotted a shop by
MCD at Dilshad Garden in which he was doing ironing work and
was earning Rs.35,000/- per month.
The petitioner produced the documents with respect to
allotment of the shop which are Ex.PW1/D, however, during her
cross examination, PW-1 admitted that she was not having any
document to prove that the deceased was earning Rs.35,000/- per
month from his business of ironing clothes and selling of
vegetables. In the absence of any document / bank account
statement on record, it is difficult to ascertain the exact income of
the deceased at the time of accident. However, the fact that he was
allotted a shop by MCD and was running the said shop at time of
accident indicates he must be having decent income to take care of
his family. Accordingly, the income of the deceased is determined as
per minimum wages of a skilled worker prevalent in Delhi at the time
of accident. On the day of accident, the minimum wages payable to
a skilled person in Delhi was Rs.10,478/-pm. The annual income of
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 10 of 27
deceased comes to Rs.1,25,736/-.
(iii) Number of dependents : The instant claim petition has been
filed by six petitioners. Petitioner No. 1 is the wife, petitioner no. 2 to
4 are children of deceased and petitioner no. 5 and 6 are parents of
deceased. There is no evidence on record to show that father of
deceased was dependant upon him. Accordingly, the deceased left
behind five dependants i.e. mother, wife and children.
(iv) Multiplier applicable in this case - As the age of the
deceased has been ascertained, an appropriate multiplier has to be
determined. The judgment titled as Sarla Verma v. DTC, (2009) 6
SCC 121 is relevant to consider the multiplier. Para 21 of the
judgment has laid down the multiplier as per age as under:-
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age groups between 15 to 20 and 21 to 25
years)
M-17 Age groups between 26 to 30 years,
M-16 Age groups between 31 to 35 years,
M-15 Age groups between 36 to 40 years,
M-14 Age groups between 41 to 45 years,
M-13 Age groups between 46 to 50 years,
M-11 Age groups between 51 to 55 years,
M-9 Age groups between 56 to 60 years,
M-7 Age groups between 61 to 65 years
M-5 Age groups between 66 to 70 years.
In view of the above said judgment, a multiplier of 17
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 11 of 27
has to be applied against 29 years of age of the deceased to
determine the compensation.
(v) Necessary deductions out of earnings of the deceased
towards personal expenses: After choosing the age, multiplier
and income of the deceased, necessary deductions have to be
made out of the income of the deceased towards his personal
expenses. Hon'ble Supreme Court in case titled as Reshma
Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in Para
30, has laid down the necessary deductions towards personal living
and expenses of deceased as under:-
Number of Deductions out of earning of the deceased.
dependents
Half / ½ Where dependent is 1
1/3rd Where the number of dependent family members
is 2 to 3
1/4th Where the number of dependent family members
is 4 to 6,
1/5th Where the number of dependent family members
exceeds 6 (six).
The wife, mother and children were dependent upon
deceased. As there are five dependents of the deceased, 1/4 th
earnings of the deceased has to be considered towards deductions
out of his yearly earnings. As such, 1/4th amount out of annual
income of Rs. 1,25,736/- i.e. 31,434/- p.a. has to be reduced
towards personal expenses. Thus, the deceased was earning
Rs.94,302/- after deduction of 1/4th amount towards personal
expenses.
(vi) Future prospects : Besides it, future income of the
deceased is also to be considered in view of judgment of Hon'ble
Apex Court titled as National Insurance Company Limited vs.
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 12 of 27
Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on
31.10.2017 in which it is observed as under:-
"(iii) While determining the income, an addition
of 50% of actual salary to the income of the
deceased towards future prospects, where the
deceased had a permanent job and was below
the age of 40 years, should be made. The
addition should be 30%, if the age of the
deceased was between 40 to 50 years. In case
the deceased was between the age of 50 to 60
years, the addition should be 15%. Actual salary
should be read as actual salary less tax.
(iv) In case the deceased was self-employed or
on a fixed salary, an addition of 40% of the
established income should be the warrant
where the deceased was below the age of 40
years. An addition of 25% where the deceased
was between the age of 40 to 50 years and
10% where the deceased was between the age
of 50 to 60 years should be regarded as the
necessary method of computation. The
established income means the income minus
the tax component.
(viii) Reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and
funeral expenses should be Rs. 15,000/-, Rs.
40,000/- and Rs.15,000/- respectively. The
aforesaid amounts should be enhanced at the
rate of 10% in every three years."
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In view of the above said judgment, 40% amount is to
be considered towards future income of the deceased who was
aged around 29 years but had no permanent employment.
(vii) Loss of Dependency : It has been observed that the
deceased was earning Rs. 94,302/- p.a after 1/4th deduction. This
annual income has to be multiplied by a multiplier of 17 as per
Sarla Verma v. DTC (supra). Rs. 94,302/- x 17 = Rs. 16,03,134/-.
Thereafter, 40% income towards future income of the deceased has
to be added in terms of National Insurance Co. v. Pranay Sethi
(Supra) i.e. 6,41,254/- has to be added to above said amount i.e.
Rs. 6,41,254/- + 16,03,134/- = Rs. 22,44,388/-.
(viii) COMPENSATION UNDER NON PECUNIARY HEADS:
In view of judgment of Hon'ble Supreme Court in the case
titled as Satinder Kaur@Satwinder Kaur & Ors. Vs. United India
Insurance Co. Ltd. Civil Appeal No. 2706 of 2020, dated
20.06.2020, loss of consortium has to be fixed for Rs. 40,000/- for
each petitioner including father. Further, Rs. 15,000/- each has to be
awarded for loss of estate and funeral expenses. Thus a total sum
of Rs. 2,70,000/- (40,000/- X 6 + 15,000/- + 15,000/-) is granted
under this head.
In view of this, petitioners shall be entitled for total
compensation of Rs.25,14,388/- (Rs.22,44,388/- + Rs.2,70,000/-).
21. The total compensation awarded to petitioners is summarized
as under:
1. Loss of dependency / Contribution to Rs.22,44,388/-
family:
2. Loss of Estate: Rs. 15,000/-
3. Loss of consortium : Rs.2,40,000/-
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 14 of 27
4. Funeral Charges Rs. 15,000/-
Total = Rs. 25,14,388/-
(rounded off to Rs.
25,15,000/-)
22. LIABILITY: Now, the question arises as to which of the
respondent is liable to pay the compensation amount. The
respondent no. 1 is the principal tort feasor, being driver and
respondent no. 2 is vicariously liable, being the owner of the
offending vehicle. However, the offending vehicle was insured at the
time of accident and the insurance company has contractual and
statutory liability to indemnify the insured.
In the instant case, the insurance company has denied its
liability on the ground that the offending vehicle was being driven
without fitness certificate at the time of accident. R3W1 Sh. Sunil
Kumar Verma, Assistant Manager in respondent no. 3 company
testified in his affidavit that respondent no. 1 / driver and respondent
no. 2 / owner did not submit fitness certificate despite filing of the
application in this regard before the Tribunal and despite service of
notice under Order 12 Rule 8 CPC Ex. RW3/A upon them. The said
witness in his cross examination by ld. counsel for respondent no. 2
submitted that only fitness certificate was not provided by the owner
and that all other documents of the vehicle i.e. DL, RC, Permit are
valid.
Perusal of the record reveals that an application dated
25.09.2017 was filed on behalf of respondent no. 2 seeking time to
file fitness certificate of the offending vehicle, however, since the
filing of the said application in 2017, till date the fitness certificate
has not been filed by respondent no. 1 or respondent no. 2. In view
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of the material on record, it is evident that the offending vehicle at
the time of accident was being driven without a fitness certificate.
The question which arises for consideration before the
Tribunal is whether the Insurance Company would be absolved of
its liability to indemnify respondent no. 2 in view of the fact that the
offending / insured vehicle was being driven without fitness
certificate at the time of accident. In this regard, ld. counsel for
respondent no. 2 filed written submissions wherein he relied upon
judgment titled as New India Assurance Co. Ltd. Vs. Kumud
Devi, dated 07.08.2012 in MACP Appeal No. 520/2010.
In para no. 3 of the aforesaid judgment, it was held that non
possession of fitness certificate does not fall within any of the
conditions as laid down in Section 149 (2) of M.V. Act and for that
reason the Insurance Company cannot avoid to indemnify the
insured on the ground that the offending vehicle did not possess
fitness certificate at the time of accident. The said para is
reproduced as under:-
"3. Even if the vehicle did not possess any fitness
certificate on the date of the accident, none of the
sub-clauses extracted above empowers the
Insurance Company to avoid any judgment or award
passed by the Claims Tribunal. The first contention is
without any substance and the same is accordingly
rejected."
On the other hand, the Insurance Company relied
upon the judgments titled as Shreekant Madhav Karv Vs.
Secretary Ministry of Home Affairs AIR 2016 (NOC) 390 (Bom.);
Kavita Vs. Santosh Kumar 2020 ACJ 2077 to buttress the
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argument that fitness certificate for a transport vehicle is necessary
for registration and that a transport vehicle being used in absence of
fitness certificate exonerates the Insurance company of its liability to
indemnify the insured.
The same issue came up for consideration before Hon'ble
Delhi High Court in the case titled as Kaushalpati Pandey vs New
India Ass. Co. Ltd, dated 09.11.2020 in MAC Appeal 185/2020
wherein Hon'ble Delhi High Court relied upon full bench decision of
Hon'ble Kerala High Court and observed that non possession of
fitness certificate is a fundamental breach of the insurance contract
and consequently, gave right to the Insurance Company to recover
the award amount from the insured. The relevant paras of the
judgment Kaushalpati Pandey (Supra) are reproduced
hereinbelow:-
"3. The Court is of the view that the issue concerns a
fundamental breach of the insurance contract. An
insurer issues a policy in the strict terms stipulated
therein. Its undertaking to indemnify possible losses,
is linked to the premium charged, which in turn is
based on complex actuarial expertise. The
conditions imposed in the policy are rooted in
constant prudent measures to be observed to
minimise losses. Fitness Certificate for a motor
vehicle is one such prudent measure. For a policy
holder to say that the policy will cover the insurer de
hors the specific conditions imposed therein, would
be to negate the fundamentals of the contract.
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4. Furthermore, a Full Bench of the High Court of
Kerala in Ramankutty v. Pareed Pillai, 2018 SCC
OnLine Ker 3542, has held that non-possession of a
fitness certificate was a foundational breach of the
contract as well as a breach of statutory provisions.
Therefore, the policy would not extend to a
compensation claim where the fitness certificate of
the insured vehicle was not available. It held inter
alia as under:-
" 1. Does the law declared by a Full Bench of this
Court in Augustine V.M. v. Ayyappankutty @ Mani,
[2015 (2) KLT 139] stand correct in declaring that,
the absence of "Permit" or "Fitness Certificate" to the
transport vehicle is only a "technical breach" and not
a "fundamental breach", in so far as it stands
contrary to the law declared by the Apex Court in
National Insurance Company v. Challa
Bharathamma, [2004 (3) KLT 454] [name of the case
has been subsequently corrected as per the Official
Corrigendum No. F.3/Ed.B.J./96/2004 dated
01.12.2004 as National Insurance Company v.
Challa Upendra Rao [(2004) 8 SCC 517)]. For
having not made even a reference to the decision of
the Apex Court, is not the above verdict liable to be
declared as "per incurium"? Has the Full Bench
considered all the relevant provisions under the
Motor Vehicles Act, 1998, [referred to as the "Act" for
short], as to the necessity for having a "Fitness
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Certificate" to the vehicle (in view of public safety),
the necessity to have valid "Permit" necessity to
have "Certificate of Registration" to ply the vehicle
and "deemed absence of Registration", if the vehicle
is not having a valid Permit/Fitness Certificate as
envisaged under Section 56 of the M.V. Act?"
------These were the questions raised and referred by
a Division Bench of this Court as per the reference
order dated 23.12.2015, pointing out the necessity to
have the matter considered by a Bench of
appropriate strength. ....
14. Fitness of the vehicle to be plied on the road as a
"transport vehicle" is very important, especially in
relation to the lives and limbs of the persons
travelling in the vehicle, the pedestrians, other
vehicles and properties of persons who are also
using the road. It is with this intent, that a specific
provision has been incorporated under the Statute as
Section 84, prescribing the general, conditions
attached to all permits. Clause (a) of Section 84
reads as follows:
84. General conditions attaching to all permits-The
following shall be conditions of every permit--
(a) that the vehicle to which the permit relates carries
valid certificate of fitness issued under section 56
and is at all times so maintaind as to comply with the
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 19 of 27
requirements of this Act and the rules made
thereunder;
15. It is pertinent to note, that power is conferred
upon the Transport Authority who has granted the
"Permit" to cancel the Permit or suspend the same
on the grounds specified under Section 86; among
which Clause (a) is in respect of the breach involving
any conditions specified in Section 84 or any
condition contained in the Permit. Section 86(1)(a)
and (c), to the extent, it is relevant here, is extracted
below:
86. Cancellation and suspension of permits-- (1) The
Transport Authority which granted a permit may
cancel the permit or may suspend it for such period
as it thinks fit--
(a) on the breach of any condition specified in
section 84 or of any condition contained in the
permit, or
(b) xxxxx
(c) if the holder of the permit ceases to own the
vehicle covered by the permit, or
16. As mentioned above, fitness of a vehicle, to be
used as a transport vehicle, is of paramount
importance. The necessity to have "Fitness
Certificate" is prescribed under Section 56 of the Act.
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 20 of 27
Sub-section (1) of Section 56 clearly stipulates that,
a transport vehicle [subject to the provisions of
Section 59 (power to fix the age limit of motor
vehicle) and Section 60 (registration of the vehicles
belonging to the Central Government)] shall not be
deemed to be validly registered for the purpose of
Section 39, unless it carries a "Certificate of Fitness"
as prescribed. By virtue of Section 84(a), as
mentioned already, it is a mandatory requirement of
every Permit, that the vehicle to which the Permit
relates, shall carry valid "Certificate of Fitness"
issued under Section 56 at all time, absence of
which will automatically lead to a situation that the
vehicle will not be deemed as having a Permit [if it is
not having a "Fitness Certificate" on a given date].
Using a motor vehicle in an unsafe condition in any
public place itself is an offence under Section 190 of
the Act. Separate penalty is prescribed under
Section 192 for driving or using the motor vehicle in
contravention of Section 39 of the Act [i.e. without
registration]; which at the first instance by fine upto
Rs. 5000/- [not less than Rs. 2000/-] and for the
second or subsequent offences, it may be with
imprisonment, which may extend to one year or fine
upto Rs. 10,000/- [not less than Rs. 5000/-] or with
both; of course, conferring power upon the Court to
impose a lesser punishment, for reasons to be
recorded. Similarly, separate punishment is provided
for using vehicles without "Permit" as provided under
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 21 of 27
Section 192A [first offence with fine upto Rs. 5000/-
which shall not be less than Rs. 2000/- and for any
subsequent offence with imprisonment upto one year
[which shall not be less than 3 months or with fine
upto Rs. 10,000/- which shall not be less than Rs.
5000/-] or with both; here again conferring power on
the Court to impose lesser punishment, for reasons
to be recorded. Reference is made to the above
provisions only to illustrate the utmost requirement to
have a valid „Registration, Permit and Fitness
Certificate‟ ....
18. The stipulations under the above provisions
clearly substantiate the importance and necessity to
have a valid Fitness Certificate to the transport
vehicle at all times. The above prescription
converges on the point that Certificate of
Registration, existence of valid Permit and
availability of Fitness Certificate, all throughout, are
closely Interlinked In the case of a transport vehicle
and one requirement cannot be segregated from the
other. The transport vehicle should be completely fit
and road worthy, to be plied on the road, which
otherwise may cause threat to the lives and limbs of
passengers and the general public, apart from
damage to property. Only If the transport vehicle is
having valid Fitness Certificate, would the necessary
Permit be issued In terms of Section 66 of the Act
and by virtue of the mandate under Section 56 of the
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 22 of 27
Act, no transport vehicle without Fitness Certificate
will be deemed as a validly registered vehicle for the
purpose of Section 39 of the Act, which stipulates
that nobody shall drive or cause the motor vehicle to
be driven without valid registration in public place or
such other place, as the case may be. These
requirements are quite "fundamental" in nature;
unlike a case where a transport vehicle carrying
more passengers than the permitted capacity or a
goods carriage carrying excess quantity of goods
than the permitted extent or a case where a transport
vehicle was plying through a deviated route than the
one shown in the route permit which instances could
rather be branded as "technical violations". In other
words, 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 vehicle and no owner can permit the use
of any such vehicle compromising with the lives.
limbs, properties of the passengers/general public.
Obviously, since the safety of passengers and
general public was of serious concern and
consideration for the law makers, appropriate and
adequate measures were taken by incorporating
relevant provisions in the Statute, also pointing out
the circumstances which would constitute offence;
providing adequate penalty. This being the position,
such lapse, if any, can only be regarded as a
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 23 of 27
fundamental breach and not a technical breach and
any interpretation to the contrary, will only negate the
intention of the law makers.
....
22. The question whether absence of valid Permit to a transport vehicle at the time of accident is a "fundamental breach" or a "technical breach" had come up for consideration again before the Apex Court recently in Amrit paul Singh v. TATA AIG General Insurance Co. Ltd., [2018 (3) KHC 197]. The factual matrix in the said case is that, the rider of the motor cycle was knocked down to death by the offending truck on 19.02.2013, which led to the claim petition preferred by the legal heirs. The claim was resisted by the insurer, mainly contending that there was violation of policy conditions in so far as the offending truck was not having a valid Permit and the driver was not having a valid driving licence. Based on the materials on record and placing reliance on the verdict passed by the Apex Court in Challa Upendra Rao's case [cited supra], the Tribunal, after fixing the quantum of compensation, directed the insurer to satisf the same, with liberty to have it recovered from the insured. The said finding and reasoning came to be affirmed by the High Court, in turn leading to the proceedings before the Apex Court. After exhaustive discussion on the relevant provisions of law including Section 2(28), 2(31), MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 24 of 27 2(47), 66, 149 and 166 of the M.V. Act 1988 and the various judgments rendered by the Apex Court at different points of time, including in National Insurance Co. Ltd. v. Swaran Singh [(2004) 3 SCC 297] and Challa Upendra Rao's case [cited supra], the Apex Court held that the offending truck was not having a valid Permit on the date of accident; which was not a technical breach to attract the dictum in Swaran Singhs' case [cited supra] [where also right of recovery was held as conferred on the insurer, once the breach was established by the insurer]. It was also observed that, it was not a case where any of the exceptions under sub-section (3) of Section 66 was attracted and further that, existence of a Permit of any nature was matter of documentary evidence. The Bench held that the exceptions carved out under Section 66(3) of the Act are to be pleaded and proved by the insured/owner and this burden cannot be shifted to the shoulders of the insurer. It has accordingly been declared that, the use of a transport vehicle in a public place without Permit is a fundamental/statutory infraction and the principles laid down in Swaran Singh's case [cited supra] and Lakshmi Chand v. Reliance General Insurance [(2016) 3 SCC 100] cannot be applicable in this regard. The Apex Court held, in such circumstances, that the verdict passed by the High Court affirming the stand of the Tribunal directing the insurer to satisfy the liability and to have it recovered from the MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 25 of 27 owner/insured was in consonance with the principles stated in Swaran Singh's case [cited supra] and other cases pertaining to "pay and recover principle". From the above, it is quite evident that the law stands settled by the Apex Court as per the decision Challa Upendra Rao' case [cited supra] and the latest ruling in Amrit paul's case [cited supra]. This being the position, the dictum laid down by the Full Bench of this Court in Augustine V.M. v.
Ayyappankutty @ Mani [cited supra] holding that the absence of valid Permit or Fitness Certificate is not a fundamental breach, but a technical breach and that no right of recovery can be given to the insurer is not at all correct. It accordingly stands overruled. Consequently, the dictum in Tharas case [cited supra] is restored and the contrary view expressed in Sethunaths case [cited supra] stands declared as incorrect."
5. The obvious rationale for a valid fitness certificate is the proof that the vehicle is working properly apropos all vital aspects i.e., its brakes, indicator lights, wipers, seat-belts, etc. are working optimally, so that the vehicle can be manoeuvred on a public street without causing damage to anybody. If there is default in any of these requisite conditions, then the vehicle itself would be a danger to public safety and would impose a traffic hazard. This has been discussed in para 18 of Ramankutty supra."
MACT No. 1146/16 Smt. Guddi Devi Vs. Santosh Kumar & Anr. Page No. 26 of 27 In the light of the aforesaid judgment, as the offending vehicle did not have valid fitness certificate on the day of accident, there was a breach of the Insurance Policy. The Insurance Company is liable to pay the award amount, however, it shall have the right to recover the same. Accordingly, respondent no. 3 is liable to pay this compensation with right of recovery from respondent no. 1 and 2 jointly and severally.
RELIEF:
23. In view of findings on the aforesaid issues, the Tribunal awards a compensation of Rs.25,15,000/- to petitioners alongwith interest @ 9% p.a. from the date of filing of the petition till its realization to be paid by respondent no. 3 within 30 days from the date of this award, with right of recovery from respondent no. 1 and
2 jointly or severally. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the Tribunal during the pendency of this case. Respondent No. 3 is directed to give notice regarding deposit of the said amount to the petitioners and their counsel.
With these observations, the claim petition stands disposed off. Copy of the order be sent to ld. counsels for parties through email and be also given dasti to the parties.
File be consigned to record room and Nazir is directed to maintain a miscellaneous file for compliance which shall be listed on 01.11.2021.
Announced in open court (SHUCHI LALER)
On 13.09.2021 PO-MACT/SHAHDARA
KARKARDOOMA COURTS,
DELHI
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