Himachal Pradesh High Court
The New India Assurance Company Limited vs Amita Kumari And Others on 23 December, 2022
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 380 of 2019 .
Reserved on: 30.09.2022
Decided on : 23.12.2022
The New India Assurance Company Limited ...Appellant
Versus
Amita Kumari and others ...Respondents
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 For the appellant : Mr. Praneet Gupta, Advocate.
For the respondents : Mr. Vijay Chaudhary, Advocate, for respondents No. 1 to 5.
Respondent No. 6 already ex-
parte.
Mr. R.K. Sharma, Senior
Advocate, with Mr. Arun Kumar,
Advocate, for respondents No. 7
and 8.
Virender Singh, Judge.
Appellant-Insurance Company has filed the
present appeal, under Section 173 of the Motor Vehicles Act, 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/12/2022 20:31:57 :::CIS 21988 (hereinafter referred to as the 'MV Act') against award, dated 3RD May, 2019, passed by the learned Motor Accident .
Claims Tribunal, Chamba Division, Chamba, H.P. (hereinafter referred to as 'learned MACT').
2. By way of the award, dated 3rd May, 2019, the learned MACT has allowed Claim Petition No. 107 of 2015, filed by respondents No. 1 to 5 and awarded a sum of ₹ 12,55,640/-, alongwith interest @ 7.5% per annum, from the date of filing of the claim petition, till realization of the amount. The ultimate liability to pay the amount of compensation, alongwith up-to-date interest, has been put upon the appellant-Insurance Company.
3. For the sake of convenience, the parties to the lis are hereinafter referred to, as referred to by the learned MACT.
4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:
The claimants, being the widow, minor children and parents of Shri Milap Singh, have filed the claim petition, under Section 166 of the MV Act claiming the compensation, on account of the death of Shri Milap Singh, in a road side accident, involving vehicle No. HP-01B-0236, on 18th March, 2015, at about 4.00 p.m., at Khopru Mor near Samra, Tehsil Chamba.::: Downloaded on - 29/12/2022 20:31:57 :::CIS 3
5. The claimants have impleaded the insurer, owners and driver of the offending vehicle as respondents, in this case.
.
6. As per the case of the claimants, Shri Milap Singh, aged about 34 years, was travelling in vehicle No. HP-01B-0236. When the vehicle reached near Khopru, P.O. Samra, Police Station Chamba, the driver could not control the vehicle, as the same was driven by the driver in high speed and as such, the vehicle struck against a parapet and rolled down in the gorge. Consequently, Shri Milap Singh sustained fatal injuries and died on the spot.
His post mortem was conducted at Civil Hospital Chamba.
7. The claimants have also pleaded about their bright past and bleak future and, thus, prayed for compensation, as claimed in the claim petition.
8. When put on notice, the claim petition has only been contested by respondents No. 1, 3 and 4. Respondent No. 2 has not opted to contest the petition, as such, was proceeded against ex-parte.
9. The Insurance Company (respondent No. 1) has contested the claim petition by filing the reply. In the reply, the Insurance Company has taken the preliminary objections regarding the fact that the petition is not maintainable, deceased ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 4 was unauthorized gratuitous passenger, the driver was not having a valid and effective driving licence, to drive the taxi, on .
the date of accident and the insured had intentionally breached the terms and conditions of the Insurance Policy, as, the same was being permitted to ply without valid route permit.
10. On merit, factual position, as pleaded in the clam petition, has been denied mainly for want of knowledge.
11. Respondents No. 3 and 4 have filed their joint reply, in which, they have also denied the factual position, but, taken the plea that in the accident, there was no rashness and negligence of respondent No. 4. According to them, due to the mechanical fault, the driver was forced to hit the vehicle with the parapet. The FIR in question is stated to have been registered on the distorted facts.
12. Thus, the respondents have prayed for the dismissal of the claim petition.
13. On the pleadings of the parties, the learned MACT has framed the following issues, vide order, dated 3rd March, 2018:
"1. Whether on 18.2.2015, at about 4 PM, at Khopru Mod, P.S. Sadar Chamba, Distt. Chamba, HP the deceased Milap Singh died on account of accident of vehicle bearing registration No. HP- 01B-0236 due to the rash or negligent driving by its driver Surjit Singh/respondent No. 4 as alleged? OPP ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 5
2. If issue No. 1 is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from whom? OPP .
3. Whether the petition is not maintainable as alleged? OPR-1, 3 and 4
4. Whether the driver of the offending vehicle was not holding valid and effective driving licence to drive the vehicle at the time of alleged accident as alleged? OPR-1
5. Whether the deceased Milap Singh was travelling in the offending vehicle as unauthorized gratuitous passenger as alleged? OPR-1
6. Whether the offending vehicle was being driven in contravention of terms and conditions of the insurance policy and motor vehicle at/rule as alleged? OPR-1
7. Whether the offending vehicle was not having valid roue permit as alleged? OPR-1
8. Relief."
14. Thereafter, the parties to the lis were directed to adduce evidence.
15. After closure of the evidence, the learned MACT, after hearing the learned counsel appearing for the parties, has allowed the claim petition and awarded the amount of compensation, as mentioned above, and saddled the Insurance Company with the ultimate liability to pay the amount of compensation, alongwith interest.
::: Downloaded on - 29/12/2022 20:31:57 :::CIS 616. Feeling aggrieved from the said award, the present appeal has been preferred by the Insurance Company, mainly, on .
the ground that the learned MACT has totally ignored the statement of RW-1, Ramesh Chand, Clerk, RTO Bilaspur, who has proved on the record that the offending vehicle did not have the fitness certificate on the date of accident and, as such, according to the appellant, there is violation of the terms and conditions of the Insurance Policy.
17. Apart from this, the award has also been challenged on the ground that the learned MACT has wrongly awarded a sum of ₹ 25,000/- towards love and affection, by ignoring the Full Bench judgment of Hon'ble Supreme Court in National Insurance Company Limited versus Pranay Sethi & others.
18. On all these grounds, Mr. Praneet Gupta, learned counsel appearing for the appellant, has prayed that the appeal may kindly be accepted and the claim petition against the Insurance Company may kindly be dismissed with costs.
19. Per contra, the prayer, so made, by the learned counsel appearing for the appellant, has been opposed by Mr. Vijay Chaudhary, learned counsel appearing for respondents No. 1 to 5 and Mr. R.K. Sharma, learned Senior Counsel, on instructions ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 7 from Mr. Arun Kumar, Advocate, on the ground that the learned MACT has rightly taken into consideration the provisions of the .
MV Act as well as the Rules framed thereunder and rightly fastened the ultimate liability to pay the amount of compensation upon the Insurance Company, as the Insurance Company has miserably failed to prove any willful violation of the terms and conditions of the Insurance Policy.
20. On all these submissions, a prayer has been made to dismissed the appeal.
21. Record perused.
22. The controversy involved, in the present case, revolves around the fact as to whether there was any breach of the terms and conditions of the Insurance Policy, on the part of the owner of the offending vehicle, which would result into the exoneration of the Insurance Company from the liability, which has been fasten upon it.
23. To decide this controversy, the relevant evidence, adduced by the respondents, to prove/probabilize their stand, is to be seen.
24. Respondent No. 1, in order to prove/probabilize its defence, has examined RW-1, Ramesh Chand, Clerk, from the ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 8 office of RTO, Bilaspur. According to this witness, vehicle No. HP-
01B-0236 was registered in the name of Shri Raghuvir Chand and .
the same was having the Fitness Certificate with effect from 18 th September, 2013 to 17th September, 2014 and thereafter, from 17th April, 2015 to 16th April, 2016. He has proved the Certificate, Ex.
RW-1/A and screen print, Ex. RW-1/B. He has categorically stated that with effect from 18 th September, 2014 to 16th April, 2015, the vehicle in question was not having the Fitness Certificate. As per the cross-examination of this witness, vehicle in question was not fit in the years 2015 and 2016.
25. So far as the documentary evidence is concerned, the Fitness Certificate of the vehicle in question is on the record as Ex. RC. According to the documents, the Fitness Certificate of the vehicle was expired on 16 th April, 2016. The accident in question had taken place on 18th March, 2015. The Fitness Certificate, Ex. RC, was issued on 29 th April, 2015. As per the Certificate, Ex. RW-1/A, proved on record by RW-1, the Fitness Certificate of the vehicle was valid from 18 th September, 2013 to 17th September, 2014 and 17th April, 2015 to 16th April, 2016.
26. Admittedly, the vehicle is a Transport Vehicle and its seating capacity is '10'. There is no document to show that on the ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 9 date of accident, the vehicle was having any Fitness Certificate, as per the provisions of Section 56 of the MV Act.
.
27. The provisions of Section 56 of the MV Act are reproduced, as under:
"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 authorised 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 authorised testing station refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
Provided further that no of fitness shall be granted to a vehicle, after such date as may be notified by the Central Government, unless such vehicle has been tested at an automated testing station.
(2) The "authorised testing station" referred to in sub-
section (1) means any facility, including automated testing facilities, authorised by the State Government, where fitness testing may be conducted in accordance with the rules made by the Central Government for recognition, regulation and control of such stations.
(3) Subject to the provisions of sub-section (4), a certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act.
(4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 10 and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new .
certificate of fitness has been obtained:
Provided that no such cancellation shall be made by the prescribed authority unless, -
(a) such prescribed authority holds such technical qualification as may be prescribed by the Central Government and where the prescribed authority does not hold the technical qualification, such cancellation is made on the basis of the report of an officer having such qualification; and
(b) the reasons recorded in writing cancelling a certificate of fitness are confirmed by an authorised testing station chosen by the owner of the vehicle whose certificate of fitness is sought to be cancelled:
Provided further that if the cancellation is confirmed by the authorised testing station, the cost of undertaking the test shall be borne by the owner of the vehicle being tested and in the alternative by the prescribed authority.
(5) A certificate of fitness issued under this Act shall, while it remains effective, be valid throughout India.
(6) All transport vehicles with a valid certificate of fitness issued under this section shall carry, on their bodies, in a clear and visible manner such distinguishing mark as may be prescribed by the Central Government.
(7) Subject to such conditions as the Central Government may prescribe, the provisions of this section may be extended to non-transport vehicles."
28. At the cost of repetition, on the date of accident, the vehicle was not having the requisite Certificate, as per Section 56 of the MV Act, but, thereafter, the said Certificate was obtained by it owner, as evident from the Certificate, Ex. RW-1/D, which ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 11 was issued on 29th April, 2015 and was valid up to 16th April, 2016.
.
29. The act of the owner to obtain the Fitness Certificate, on 29th April, 2015, in no way, revives the said certificate valid, on the date of accident, i.e. 18th March, 2015. The learned MACT has misread the document, Ex. RW-1/D, by concluding that the Fitness Certificate was valid up to 16th April, 2016, whereas, on the date of accident, the Certificate, Ex. RW-1/D, was not in force, as the same was issued only on 29th April, 2015.
30. No doubt, the provisions of the MV Act are beneficial piece of legislation, but, this does not mean that the plea taken by the Insurance Company, in every case, is to be ignored.
31. Apart from the document, Ex. RW-1/D, another document, which has been proved by the Insurance Company, on the record, is the Certificate issued by the RTO, Bilaspur, Ex.
RW-1/A. This Certificate demonstrates that the vehicle in question was having the Fitness Certificate from 18 th September, 2013 to 17th September, 2014 and from 17 th April, 2015 to 16th April, 2016. On the date of accident, i.e. on 18 th March, 2015, the offending vehicle, was not having the Fitness Certificate.
::: Downloaded on - 29/12/2022 20:31:57 :::CIS 1232. The documentary evidence, which has been placed on the record by the Insurance Company, in the shape of RW-1/A .
Certificate issued by RTO Bilaspur; and Ex. RW-1/D, copy of the Fitness Certificate, has not properly been considered by the learned MACT, in this case, and, as such, the award, passed by the learned MACT, qua fixing the liability only upon the Insurance Company, is liable to be interfered with.
33. Moreover, if the above-mentioned facts, which have borne out from the record, are seen in the light of the decision of the Full Court of the Kerala High Court in case, titled as Pareed Pillai versus Oriental Insurance Co. Ltd., reported in 2019 ACJ 16, then, this Court has no hesitation to hold that, on the date of accident, the vehicle was not having the Fitness Certificate and the Insurance Company has successfully proved the said fact on the file. The relevant paras-15 to 18 of the said judgment are reproduced, as under:
"15. 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. Subsection (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 ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 13 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 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'.
16. Importance of the fitness/road worthiness of a vehicle, right from the time of registration of the vehicle, is further discernible from Rule 47 of the Central Motor Vehicles Rules 1989 [referred to as Central Rules]. The said Rule deals with application for registration of motor vehicles, which, among other things, stipulates that it shall be accompanied by various documents. Under sub-rule (1) (g), it is mandatory to produce road worthiness certificate in Form 22 from the manufacturers [Form 22A from the body builders]. On completing the formalities/procedures, 'Certificate of Registration' is to be issued in terms of Rule 48 of the Central Rules ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 14 in Form 23/23A, as the case may be. The said Rule contains a proviso, insisting that, when Certificate of Registration pertains to a transport vehicle, it shall be handed over to the registered owner only after .
recording the Certificate of Fitness in Form 38.
Validity of the Certificate of Fitness is only to the extent as envisaged under Rule 62 of the Central Rules, which mandates, as per the proviso, that the renewal of a Fitness Certificate shall be made only after the Inspecting Officer or authorised Testing Station as referred to in sub Section 1 of Section 56 of the Act has carried out the test specified in the table given therein.
17. 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 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 ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 15 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 fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers.
18. Coming to the field of precedents, the issue as to the absence of a valid Permit to a transport vehicle and the right of defence of the insurer to satisfy the claim and its extent under such circumstances, was the subject matter of consideration before the Apex Court in Challa Upendra Rao's case [cited supra]. In this case, the claim petitions filed by the injured and the legal representatives of the deceased passengers, who met with the accident on 09.05.1992, while travelling in an autorikshaw, were sought to be resisted by the insured, contending that there was no valid Permit to ply the vehicle and hence, in terms of the policy, the insurer had no liability. The Tribunal accepted the said plea and the liability came to be mulcted upon the insured; sparing the insurer. On challenging the Award, a Division Bench of the High Court of Andhra Pradesh held that the insurer was liable to indemnify the insured, which ended up in the case filed before the Apex Court. After detailed discussion with specific reference to the validity of necessary Permit under Section 66 of the Act, the scope of Section 149 (2) of the Act and various rulings rendered by the Apex Court at different points of time, the Apex Court held that the absence of valid Permit was very much a ground of defence available to the insurer in terms of Section 149 (2) (a) (i) (c) of the Act. The Apex Court also held that the view taken by the High Court of Andhra Pradesh, that the question of violation of any condition did not arise since there ::: Downloaded on - 29/12/2022 20:31:57 :::CIS 16 was no Permit, was clearly fallacious; observing that a person without Permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a Permit, but has violated any condition thereof. It was .
mentioned in crystal-clear terms that, the plying of transport vehicle without a Permit was an infraction and a defence available to the insurer, in terms of Section 149 (2) of the Act; in turn conferring the right of recovery to the insurer from the insured/owner, after satisfying the liability to claimant /third party."
34. In view of the above decision, the Insurance Company has successfully proved the violation of the terms and conditions of the Insurance Policy, in this case.
35. The vehicle in question, as per the documents placed on record, is in the name of respondent No. 2- Raghuvir Chand, s/o Hari Chand. Even, in the Insurance Policy, Ex. R-2, which was effective from 18th September, 2014 to 17th September, 2015, name of the insured, regarding vehicle No. HP-01 B-0236, was recorded as 'Raghuvir Chand, s/o Hari Chand'.
36. Apart from this, in the Certificate, issued by the RTO Bilaspur, on 15th December, 2018, which has been placed on the record as Ex. RW-1/A, the name of respondent No. 2 has been mentioned as the registered owner of the vehicle.
37. In this case, respondent No. 2 and respondent No. 3, both, have been impleaded as owners of the offending vehicle.
::: Downloaded on - 29/12/2022 20:31:57 :::CIS 17Respondent No. 2 has not bothered to contest the claim petition and was proceeded against ex-parte.
.
38. As such, the violation of Section 50 of the MV Act is writ large, as there is nothing on the record to show that any efforts were made by respondent No. 2 to report to the Registering Authority, regarding the factum of transfer, if any, in this case.
39. Moreover, the manner, in which the claim petition has been contested by respondent No. 3, in this case, clearly shows that he has not disputed the factum that the offending vehicle, at the time of the accident, was in his possession,being driven by respondent No. 4.
40. Resultantly, the appeal is partly allowed and the award passed by the learned MACT, is modified, by passing a direction to the Insurance Company to firstly satisfy the award, with a right to recover the same, from respondents No. 2 and 3, jointly and severally.
41. No order as to costs.
42. Record be sent back.
( Virender Singh ) Judge December 23, 2022 ( rajni ) ::: Downloaded on - 29/12/2022 20:31:57 :::CIS