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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Misc. Appeal (C) No. 562 of 2021
1. United India Insurance Co. Ltd. Through Manager United India Insurance
Co. Ltd. Paras Complex State Bank of India Near Gurudwara Station Road
Durg, Police Station Mohan Nagar, District Durg, Chhattisgarh. Through
T.P. Hub / Divisional Manager United India Insurance Co. Ltd. Magarpara
Road Bilaspur District Bilaspur, Chhattisgarh.
--- Appellant
Versus
1. Smt. Madhuri Verma W/o Pokhraj Verma Aged About 41 Years
2. Pokhraj Verma S/o Late Vishesar Verma Aged About 47 Years
3. Rupesh Kumar Verma S/o Pokhraj Verma Aged About 22 Years
All are R/o Bajrang Nagar Utai Ward No. 15, Utai District Durg,
Chhattisgarh. Present Address Santara Badi Police Station Mohannagar,
District Durg, Chhattisgarh (Claimant).
4. Ajit Kumar Sahu S/o Banshilal Sahu Aged About 26 Years
R/o Kopedih Police Station Somani, District Rajnandgaon, Chhattisgarh
(Driver of Offending Vehicle)
5. Banshilal S/o Shriram Aged About 53 Years R/o Kopedih Police Station
Somani District Rajnandgaon, Chhattisgarh (Owner of the Offending
vehicle).
---- Respondents
For Appellant : Shri Praveen Kumar Tulsyan, Advocate.
For Respondent : None.
Hon'ble Shri Justice Ravindra Kumar Agrawal
Award on Board
29.02.2024.
1. This is insurer’s appeal under Section 173 of the Motor Vehicles Act, 1988
(in short, MV Act) against the award dated 14.07.2021 passed by the
Additional Motor Accident Claims Tribunal, Durg (in short, the Tribunal) in
Claim Case No.262/2019, whereby the Tribunal has awarded total
compensation of Rs.12,12,900/- in favour of the claimants/respondents
No.1 to 3 on account of death of Neeraj Verma who is son of claimants
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No.1&2 and brother of claimant No.3. Challenging the liability party, the
insurance company has filed this appeal.
2. Brief facts of the case are that, on 25.01.2019 at about 6 pm when Neeraj
Verma (since deceased) was returning to his house by Activa Scooty
bearing registration No.CG-07-BA-1035, near village Medesara, the
offending vehicle i.e. Mahendra Pickup bearing registration No.CG-08-V-
7022 came from his back side and dashed the Activa of Neeraj Verma by
which the deceased received grievous injuries and died on the spot. The
matter was reported to the police and driver of the offending vehicle i.e.
non applicant No.1/respondent No.4 herein have been prosecuted by the
police for the offence under Sections 304-A, 279, 337, 338 IPC and also
for the offence under Section 56/192 of the MV Act.
3. The claimants have filed claim application before the concerned Claims
Tribunal claiming compensation to the tune of Rs.17,15,000/- on account
of death of the deceased Neeraj Verma stating themselves to be
dependent upon the income of the deceased who died in the accident. In
the claim case, the claimants have pleaded that at the time of accident the
deceased was bachelor aged about 19 years and was earning Rs.10,000/-
per month from the business of DJ and claimed a total compensation of
Rs.17,15,000/-.
4. Non applicant No.1&2 filed their written statement before the Tribunal and
denied involvement of their Pickup vehicle bearing registration No.CG-08-
V-7022 in any accident. They have further pleaded that at the time of
accident the driver of the vehicle was having valid and effective driving
license and therefore, liability to pay compensation, if any, is upon the
insurance company.
5. Non applicant No.3/Insurance Company has also filed their written
statement separately and contested the claim and pleaded that as per
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FIR, the offending vehicle was not involved in the accident. At the time of
accident, the deceased himself was driving his Activa Scooty, but the
owner and insurance company of the said vehicle was not made party
respondent. The insurance company would be liable to pay compensation
only if there is no breach of policy conditions.
6. The claimants have examined Smt. Madhvi Verma, AW-1, Hemchand
Sahu, AW-2 in their support, whereas, the insurance company has
examined NAW-1 Ramsharan Ratre, NAW-2 and Mukesh Prasad Mishra
in their support.
7. After appreciation of oral as well documentary evidence available on
record, the Tribunal has awarded total compensation of Rs.12,12,900/- in
favour of the claimants and the liability to pay the same has been fastened
upon the insurance company/non applicant No.3. Hence this appeal.
8. Learned counsel for the appellant would submit that the Tribunal has
ignored the fact that the driver was having license to drive Light Motor
Vehicle whereas, at the time of accident he was driving a Light Transport
Vehicle in violation of policy conditions. He would further submit that at the
time of accident the offending vehicle i.e. Pickup bearing registration
No.CG-08-V-7022 was not having any valid fitness certificate and
therefore there is a breach of policy condition and the insurance company
is not liable to pay compensation. He would further submit that FIR has
been lodged against the unknown vehicle, but subsequently the offending
vehicle was involved in the accident to get the compensation amount and
on this ground also the insurance company is not liable to pay
compensation.
9. Despite service of notice, none appears on behalf of respondents to
defend their case.
10. I have heard the counsel for the appellant and perused the records.
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11. So far as the first submission made by the counsel for the appellant that
the driver of the offending vehicle was possessing license to drive only
Light Motor Vehicle whereas, he was driving Light Transport Vehicle at the
time of accident is concerned, the law in this regard is settled by the
Supreme Court in case of Mukund Dewangan Vs. Oriental Insurance
Co. Ltd. 2017(14) SCC 663, wherein in paragraph 45, the Supreme Court
has held as under:
“45. Coming to conflicting decisions of this Court entailing
reference in Ashok Gangadhar Maratha (supra), this Court has
considered the definition of 'light motor vehicle' and held thus:
"10. The definition of "light motor vehicle" as given in
clause (21) of Section 2 of the Act can apply only to a
"light goods vehicle" or a "light transport vehicle". A "light
motor vehicle" otherwise has to be covered by the
definition of "motor vehicle" or "vehicle" as given in
clause (28) of Section 2 of the Act. A light motor vehicle
cannot always mean a light goods carriage. Light motor
vehicle can be a non-transport vehicle as well."
No doubt about it, that in addition thereto the Court while
dealing with the matter comprehensively has gone in question
as to the pleadings and the evidence adduced and it was
observed that since there was neither a pleading nor a permit
produced on record, the vehicle remained a light motor
vehicle. If we proceed on the basis of the definition itself, we
reach to the same conclusion that for driving transport vehicle
of light motor vehicle category, no separate endorsement is
required on a licence. Even when a light motor vehicle is used
for carrying goods or for hire or rewards, it becomes a
transport vehicle, though it remains included in the category of
light motor vehicle as per Section 2(21) of the Act. The
interpretation of the definition in Ashok Gangadhar Maratha
(supra), makes it clear that light motor vehicle cannot always
be a light goods carriage. It can be a non-transport vehicle as
well. The definition of a light motor vehicle includes light goods
vehicle and light transport vehicle also. The interpretation of
the definition of light motor vehicle in aforesaid extracted para
10 is sound and we are in unison with the same. It was not
necessary for the Court to go into the question of pleadings
and evidence in Ashok Gangadhar Maratha (supra).”
12. Therefore, even if the endorsement in the driving license of the driver of
offending vehicle was Light Motor Vehicle, he was not debarred from
driving Light Transport Vehicle because both the vehicles come under the
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same category/class of vehicle and therefore, the submission made by
counsel for the insurance company would not come to his rescue.
13. So far as next submission of the counsel for the appellant that the vehicle
was not having any valid fitness certificate on the date of accident is
concerned, this issue also stands settled by the Division Bench of this
court as well as by Kerala High Court in Pareed Pillai Vs. Oriental
Insurance Company Ltd.
14. The fitness of a vehicle, which is a transport vehicle, is having great
importance. Section 56 of the MV Act provides 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 vehicle 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. For
the purposes of valid permit of a transport vehicle, as provided under
Section 34 of the MV Act, a certificate of fitness is required necessarily
and in absence of the same, the situation automatically lead to the stage
that a vehicle did not have valid permit. Using a motorcycle without any
fitness certificate would be violation of policy condition.
15. Requirement of certificate of fitness is envisaged under Section 56 of the
MV Act. Section 56(1) is reproduced below for ready reference.
“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 is issue such certificate, it shall
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supply the owner of the vehicle with its reasons in writing for such
refusal.”
16. Perusal of above provision would show that unless and until there is valid
certificate of fitness, transport vehicle shall not be deemed to be validly
registered. Requirement of certificate of fitness is mandatory and
fundamental for its registration. Section 39 of the MV Act envisages for
registration of vehicle, which reads as under:
“39. 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.”
17. It prescribes that no person shall drive any motor vehicle in public or other
places unless vehicle is registered. Conjoint reading of provisions of
Section 39 and 56 of the MV Act makes it clear that if the transport vehicle
is plied on public road or any place without certificate of fitness will be in
breach of policy condition and such breach will be a fundamental breach.
18. This issue has been considered by the five judges Bench of Kerala High
Court in case of Pareed Pillai Vs. Oriental Insurance Company Ltd.,
AIR 2019 Kerala 6 and held as under:
“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
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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
MACA No. 2030 of 2015 and connected cases 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 fundamental breach and not
a technical breach and any interpretation to the contrary, will only
negate the intention of the law makers.”
19. Division Bench of this High Court also has applied the same analogy in
case of Adesh Kumar & Another Vs. Smt. Satarupa Bai Yadav &
Others (MAC No.1289 of 2014 and other connected matters, decided on
19.11.2020) and held that absence of fitness certificate of the offending
vehicle is a fundamental breach of policy condition. It is not a technical
breach.
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20. So far as the submission of the insurance company that the offending
vehicle was not involved in the accident as FIR has been registered
against the unknown vehicle is concerned, the claimants have filed
document of final report Ex.P/1, FIR, Ex.P/2, Merg Intimation Ex.P/3,
Postmortem report Ex.P/5, Crime detail Form Ex.P/6, Seizure memo of
the offending vehicle Ex. P/8, arrest memo Ex.P/9 and Supurdnama order
Ex.P/10 & P/11 in which it has been mentioned that the accident was
occurred due to offending vehicle Mahindra Pickup bearing registration
No.CG-08-V-7022. The said criminal case or involvement of the vehicle in
offence in question has not been challenged either by the driver of the
offending vehicle or by the owner of the offending vehicle that their vehicle
has wrongly been involved in the offence.
21. In the matter of Sunita and Others Vs. Rajasthan State Road Transport
Corporation and Another, AIR 2019 SC 994, in paragraph 20, 21 and 25
the Supreme Court has held as under :
“20. It is thus well settled that in motor accident claim cases, once
the foundational fact, namely, the actual occurrence of the accident,
has been established, then the Tribunal’s role would be to calculate
the quantum of just compensation if the accident had taken place by
reason of negligence of the driver of a motor vehicle and, while
doing so, the Tribunal would not be strictly bound by the pleadings
of the parties. Notably, while deciding cases arising out of motor
vehicle accidents, the standard of proof to be borne in mind must be
of preponderance of probability and not the strict standard of proof
beyond all reasonable doubt which is followed in criminal cases.
21. In the present case, we find that the Tribunal had followed a just
approach in the matter of appreciation of the evidence/materials on
record. Whereas, the High Court adopted a strict interpretation of
the evidence on the touchstone of proof beyond reasonable doubt
to record an adverse finding against the appellants and to reverse
the well considered judgment of the Tribunal in a cryptic manner.
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25. The Tribunal’s reliance upon FIR 247/2011 (Exh. 1) and
chargesheet (Exh. 2) also cannot be faulted as these documents
indicate the complicity of respondent No.2. The FIR and charge
sheet, coupled with the other evidence on record, inarguably
establishes the occurrence of the fatal accident and also point
towards the negligence of the respondent No.2 in causing the said
accident. Even if the final outcome of the criminal proceedings
against respondent No.2 is unknown, the same would make no
difference atleast for the purposes of deciding the claim petition
under the Act. This Court in Mangla Ram (supra), noted that the
nature of proof required to establish culpability under criminal law is
far higher than the standard required under the law of torts to create
liability.”
22. Considering the judgment passed in Sunita (Supra), the involvement of the
offending vehicle in the accident in question cannot be overruled without
there being any sufficient evidence on record to the effect that infact the
vehicle was not involved in the accident.
23. In the present case, the deceased was third party and the claimants are
dependent upon the deceased. Since the vehicle was being driven in
violation of policy condition as there was no valid fitness certificate, the
insurance company is exonerated from its liability to pay compensation on
the ground that on the date of accident there was no valid fitness
certificate of the offending vehicle.
24. Therefore, in view of the judgment passed by the Supreme Court in the
matter of Amrit Paul Singh and Another Vs. Tata AIG General
Insurance Company Limited and Others, 2018 (7) SCC 558, it is
directed that the insurance company shall first deposit the entire awarded
amount of compensation along with interest and thereafter, may recover
the same from the owner and driver of the offending vehicle i.e.
respondents No.4&5.
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25. In the result, the appeal is partly allowed. The appellant-insurance
company is directed to pay the compensation amount to the claimants as
awarded by the Tribunal and thereafter they may recover the same from
the driver and owner of the offending vehicle i.e. respondents No.4&5.
26. With these modification, the appeal is partly allowed.
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(Ravindra Kumar Agrawal)
Judge
inder