1 / 25 2025:CGHC:13423 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1384 of 2018 Order reserved on 06/09/2024 Order delivered on 20/03/2025 Branch Manager, National Insurance Company Limited Branch Office- Kampthi Line, Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Appellant versus 1 - Faiyja Kausar S/o Mohammad Ali Aged About 7 Years Resident- Babda Rui Bhandar Goal Bazar Bilaspur, Present Address Ambedkar Ward, Dongargaon, Thana/tehsil Dongarhgaon, District- Rajnandgaon, Chhattisgarh, Respondent No. 1 And 2 Are Minor Through Guardian Nana Mohammad Sharif S/o Aadamrani, Resident- Ambedkar Ward, Dongargaon, Thana/tehsil Dongargaon, District- Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 2 - Mohammad Tausif S/o Mohammad Ali Aged About 8 Years Resident- Babda Rui Bhandar Goal Bazar Bilaspur, Present Address Ambedkar Ward, Dongargaon, Thana/tehsil Dongarhgaon, District- Rajnandgaon, Chhattisgarh, Respondent No. 1 And 2 Are Minor Through Guardian Nana Mohammad Sharif S/o Aadamrani, Resident- Ambedkar Ward, Dongargaon, Thana/tehsil Dongargaon, District- Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.03.20 19:18:53 +0530 2 / 25 3 - Mohammad Sharif S/o Aadamrani Resident- Ambedkar Ward Dongargaon, Thana/tehsil Dongargaon, District- Rajnandgaon, Chhattisgarh.......(Claimants) 4 - Dhaniram Sonwani S/o Ani Sonwani Aged About 46 Years Resident- Village Sachkana, Gram-Panchayat Talmana, Thana- Junagadh, District- Kalahandi, Odisha.....(Vehicle Driver), District : Kalahandi, Orissa 5 - Harjindar Singh Bhatia S/o Late Amolak Singh Aged About 59 Years Resident- Kailashnagar Ward No.-27, Thana City Kotwali, Rajnandgaon, Tehsil And District- Rajnandgaon, Chhattisgarh......(Vehicle Owner), District : Rajnandgaon, Chhattisgarh 6 - Mohammad Ali S/o Mohammad Sarif Aged About 40 Years Resident Goal Bazar Bilaspur (Babda Rui Bhandar).......(Husband Of Deceased), District : Bilaspur, Chhattisgarh ... Respondents (Cause title taken from Case Information System) For Appellant : Mr. Sudhir Agrawal, Advocate For Respondents No. 1 to 3 : Mr. Rakesh Thakur, Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal C.A.V. Order 1. The present Miscellaneous Appeal has been filed by the insurance company under Section 173 of Motor Vehicles Act, 1988 against the impugned award dated 18.05.2018, passed by Learned 2nd Additional Motor Accident Claims Tribunal, Rajnandgaon, in Claim Case No. 104 of 2017, whereby the amount of Rs. 9,77,200/- is awarded as compensation in favour of the claimants and the liability has been fastened upon the insurance company to pay the compensation. 3 / 25 2. The brief facts of the case are that, the claimants No. 1 & 2 are the children of the deceased and claimant No. 3 is father of the deceased- Smt. Aasma. The non-applicant No.4 is the husband of the deceased. 3. On 11.05.2014, when the deceased was going from Rajnandgaon to Dongargaon by a passenger bus bearing registration No. CG-04/E- 1794, at about 9:00 PM near Jungalpur culvert turning, the offending vehicle truck bearing registration No. CG-08/B-1394 coming from opposite side, driven rashly and negligently by its driver (non- applicant No.1) and dashed the passenger bus and caused accident. The deceased Smt. Aasma received grievous injuries on her head and she died on the spot. The offence has been registered against the non-applicant No. 1 and charge sheet has been filed against him. 4. The claimants have filed a claim case for compensation of total Rs. 25,60,000/- with the pleading that the deceased was a homemaker and she was earning Rs. 5,000/- per month by sewing and knitting and the claimants No. 1 & 2 were dependent upon their mother and therefore they may be awarded the compensation as claimed. 5. The non-applicants No. 1 & 2 have remained ex-parte and have not contested the claim. 6. The non-applicant No. 3/insurance company have filed its written statement and have submitted that the offending vehicle truck was being driven by its driver in violation of policy condition as he was not having in possession of valid and effective driving license. Further, the said truck was not having any valid permit and fitness certificate. 4 / 25 It is also pleaded in the written statement that the owner and driver of the passenger bus No. CG-04/E-1794 have not been made as a party/non-applicant and the driver of the said passenger bus was also not having any valid driving license. The excessive amount has been claimed by the claimants and therefore their claim application is liable to be dismissed. 7. The non-applicant No. 4/husband of the deceased, has also filed his written statement and submitted that the deceased was his legally wedded wife and his children are residing in the guardianship of claimant No. 3 and he is having no objection in granting compensation to the claimants. 8. On the basis of pleadings made by the respective parties, the Learned Claims Tribunal has framed five issues and after recording evidence of the parties and hearing them, passed the award on 18.05.2018 and awarded Rs. 9,77,200/- as compensation in favour of the claimants and liability has been fastened upon the insurance company, which is under challenge in the present appeal. 9. Learned counsel for the appellants would submit that the FIR has been registered against the driver of unknown truck, therefore, the involvement of the vehicle of non-applicants No. 1 & 2 are suspicious, as there is no eyewitness to the accident that the said truck has caused the accident and dashed the passenger bus. He would also submit that it is an accident between two vehicles and the driver of the passenger bus is also negligent and responsible for accident equally and therefore, both the drivers of the two vehicles 5 / 25 are contributory negligent in the accident and the liability upon the insurance company is only to the extent of 50%, because the driver of the passenger bus is also negligent to the extent of 50% for the accident. He would further submit that in the present case, there is no permit and fitness certificate of the offending vehicle and thereby there is a breach of policy condition and the insurance company is not liable to pay any compensation to the claimants. 10. On the other hand, learned counsel for the respondents No. 1 to 3 have supported the impugned award and have submitted that the learned Claims Tribunal has rightly assessed the compensation and awarded to the claimants, which is strictly in accordance with law and needs no interference. 11. I have heard learned counsel for the parties and perused the record. 12. The death of the deceased- Smt. Aasma in the motor accident is not in dispute in the present case. She was travelling in the bus, which was dashed by the truck and in the said accident she died on the spot. Further, from the inquest report (exhibit P-4) and post-mortem report (exhibit P-5), it is duly proved that the deceased died due to the motor accident, which has been occurred on 11.05.2014. Learned counsel for the appellants would submit that the FIR has been lodged against the driver of the unknown truck and there is no eyewitness to the accident, which proves the involvement of the truck in question, in the accident and there is no identification of the truck. From perusal of the FIR (exhibit P-1), it appears that one Tulsi Ram Sahu has lodged report to the police on 11.05.2014 itself, who is the 6 / 25 driver of the passenger bus and stated in the FIR that an unknown truck has dashed his passenger bus by driving his vehicle rashly and negligently, by which 4-5 passengers of his bus have got injured. The injured person were taken to the hospital in 108 vehicle and the accident was witnessed by the conductor Suraj Sahu and other passengers. Although the police has filed charge sheet against the non-applicant No. 1 after completion of the investigation, but there is no evidence produced by the parties on record that submission of the final report against the non-applicant No. 1 is challenged by him or any of the parties that the said truck driven by the non-applicant No. 1 has falsely been falsely been implicated in the accident. The said truck was seized in the case vide seizure memo (exhibit P-2), therefore, even if there is no eyewitness to the incident examined in the case, it has been found proved that the truck of the respondents No. 1 and 2 bearing No. CG-08/B-1394 is involved in the accident and it cannot be said that the accident was occurred due to rash and negligent driving of the unknown truck. The insurance company has also not led any evidence to the effect that the said vehicle was not involved in the accident. The NAW-1/C. Toppo, who is the Assistant Manager of the insurance company has not deposed in his evidence that the said truck was not involved in the accident, but he is the witness to the effect that the said truck bearing No. CG-08/B-1394 was not having any valid permit and fitness certificate at the time of accident. Further, the non-applicants No. 1 and 2 (the driver and owner of the offending vehicle truck) have remained ex-parte and have not contested the claim, which is the additional fact available in the case that their vehicle was met with an accident and dashed with 7 / 25 the passenger bus, for which the non-applicant No. 1 was prosecuted for the offence of Sections 279, 337, 338 and 304-A of IPC. Therefore, the submissions made by learned counsel for the appellants that the said truck bearing No. CG-08/B-1394 is not involved in the accident, does not have any merits. 13. The judgement of “Sunita vs. Rajasthan State Road Transport Corporation and Others” 2020 (13) SCC 486 is relevant to this issue in which the Hon’ble Supreme Court has held that only the defence raised by the opposite party that FIR was based on wrong facts and charge sheet was filed in connivance between the complainant and the police, no evidence was produced by the party concerned before the Tribunal to prove this point, the involvement of the vehicle in the accident cannot be denied. Para 25 to 28 of the judgement held that:- “25. The Tribunal had justly accepted the appellants’ contention that the respondents did not challenge the propriety of the said FIR No. 247/2011 (Exh. 1) and charge sheet (Exh. 2) before any authority. The only defence raised by the respondents to this plea was that the said FIR No. 247/2011 was based on wrong facts and was filed in connivance between the appellants/complainants and the police, against which the respondents complained to the in charge of the police station and the District Superintendent of Police but to no avail. Apart from this bald assertion, no evidence was produced by the respondents before the Tribunal to prove this point. The filing of the FIR was followed by the filing of the chargesheet against 8 / 25 respondent No.2 for offences under u/Sections 279, 337 and 304A of the IPC and Sections 134/187 of the Act, which, again, reinforces the allegations in the said FIR insofar as the occurrence of the accident was concerned and the role of respondent No.2 in causing such accident. Be that as it may, the High Court has not even made a mention, let alone record a finding, of any impropriety against FIR 247/2011 (Exh. 1) or chargesheet (Exh. 2) or the conclusion reached by the Tribunal in that regard. Yet, the FIR and the Charge sheet has been found to be deficient by the High Court. 26. Before the Tribunal, respondent No.1 has neither denied that respondent No.2 was in its employment at the time of the accident nor has it denied that respondent No.2 was driving the offending bus no. RJ26/P.A. 0042 at the time of the accident. The Tribunal has also referred to the Postmortem report (Exh.4) which establishes that Sitaram died due to shock arising from various fractures on his body, which, undoubtedly, were rendered due to his accident with the offending bus. All of the aforesaid evidence remained uncontroverted. While the Tribunal has accepted these depositions and the evidence presented in that regard, the High Court has, surprisingly, not even referred to it or even the numerous documents presented by the said witnesses as evidence, apart from a passing reference to FIR 247/2011 (Exh.1). 27. The Tribunal’s reliance upon FIR 247/2011 (Exh. 1) and chargesheet (Exh. 2) also cannot be faulted as 9 / 25 these documents indicate the complicity of respondent No.2. The FIR and chargesheet, 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. 28. Accordingly, we have no hesitation in upholding the finding recorded by the Tribunal that there was an accident on 28102011 at around 7AM between the motorcycle driven by Sitaram bearing registration number RJ 25 SA 6923 and a bus belonging to respondent No.1. (the Rajasthan State Road Transport Corporation) bearing registration number RJ26/P.A. 0042 coming from the opposite direction and being driven rashly and negligently by respondent No.2, which resulted in the death of Sitaram.” 14. It is also relevant to note here that on 02-09-2024, the appellant filed an application under Order 41 Rule 27 of the Civil Procedure Code, 1908, for taking additional evidence on record. Along with the application, the appellant has filed xerox copies of the final report dated 31-05-2014 submitted in Crime No. 182/2014 of police station 10 / 25 Lalbag, Rajnandgaon and the final report dated 16-12-2015 submitted in the same offence. It is submitted by the learned counsel for the appellant that initially, in the FIR of crime No. 182/2014 registered at police station Lalbag, Rajnandgaon, involvement of the subject vehicle was not found by the police and a closure report was submitted, but subsequently, another final report was filed in which the subject vehicle Truck No. CG 08 B 1394 was involved, which itself is suspicious. On the earlier occasion, when the police did not search the offending vehicle and submitted a closure report, the subsequent filing of the charge sheet shows that the truck was falsely implicated by the police. 15. As has been discussed earlier, the said charge sheet has not been challenged by non-applicants no. 1 and 2 before any forum that their vehicle has falsely been implicated in the offence and no accident has occurred from their vehicle. Even in the present case, no evidence has been led by them. The appellant/insurance company has not filed the aforesaid document before the claims tribunal during the trial of the case. Even no defence has been taken in their written statement that earlier, the police had not found involvement of truck no. CG 08 B 1394 and the closure report has been submitted by the police but subsequently found the involvement of the said truck in the accident and filed the charge sheet against the non-applicant no. 1. Even, the result of closure report submitted by the police has not been filed as to what order has been passed by the concerned magistrate with respect to closure report. Even otherwise, the police can file the charge sheet when they find evidence against the alleged 11 / 25 offence. The appellant/insurance company has its own agency/ mechanism to investigate the accident, but they have not filed any such report of their investigator. Even the said final report has not been filed by the appellant/insurance company during the trial of the claim case. In the facts and circumstances of the case, it cannot be expected that the appellant/insurance company was not in knowledge of the closure report or subsequent charge sheet. The document has been filed about 07 years after the filing of the written statement in the claim case, and its Xerox copy has been filed. 16. Order 41 Rule 27 of CPC deals with the production of additional evidence in the appellate court. The general principle is that the parties to the appeal are not entitled to produce additional evidence in the appellate court to fill up its lacuna, but the exceptions are that if the appellate court requires any documents to be produced, it may allow such documents to be produced. The paramount consideration is the interest of justice. If the court is of the opinion that pronouncing a judgment in the absence of such evidence would result in a defective decision, such document can be taken as additional evidence. But it is not the case here, and in the absence of any challenge to the charge sheet, in the absence of any defence by the appellant and also in the facts and circumstances of the case, the additional evidence produced by the appellant (xerox copies of the closure report and final report) cannot be said to be essential in the case and the effective judgement can be passed without such evidence/document also. Thus, the application of Order 41 Rule 27 12 / 25 of CPC filed by the appellant for taking additional evidence is hereby rejected. 17. The appellant/insurance company has also raised the ground of their appeal that the driver of the passenger bus is also contributory negligent in the accident. “Negligence” is the breach of a duty caused by the omission to do something that a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, which a prudent man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: duty, breach and resulting damage. There may be negligence in civil law and in criminal law. In a civil proceeding, a mere preponderance of probability is sufficient and the defendant is not necessarily entitled to the benefit of every reasonable doubt, but in a criminal proceeding, the persuasion of guilt must be proved beyond reasonable doubt. While considering the negligence actionable in tort and negligence punishable as a crime, the negligence in later one has to be gross. In view of the above, evaluation of the evidence adduced and conclusion of negligence fixed on non-applicant No. 1/driver of the truck cannot be said to be manifestly illegal or perverse as a case of no evidence warranting intervention. 18. In the present case, the deceased was the passenger of the bus that was dashed by the truck, and the legal heir of the deceased claimed compensation from the truck, stating therein that it was the offending vehicle. There may be composite negligence or contributory 13 / 25 negligence, but the claimant being the third party, can claim compensation from any of the vehicles. The extent of their liability, if any, is to be decided in an appropriate proceeding. The Hon’ble Supreme Court in the case of Khenyei vs. New India Assurance Company Limited and Others, 2015 (9) SCC 273, has held in para 15 to 17 that:- “15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder : 14 / 25 “6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong- doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies 15 / 25 negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.” The decision in T.O. Anthony v. Karvarnan & Ors. (supra) has been relied upon in Andhra Pradesh State Road Transport Corpn. & Anr. v. K Hemlatha & Ors. [2008 (6) SCC 767]. 16. In Pawan Kumar & Anr. v. Harkishan Dass Mohan Lal & Ors. [2014 (3) SCC 590], the decisions in T.O. Anthony (supra) and Hemlatha (supra) have been affirmed, and this Court has laid down that where plaintiff/claimant himself is found to be negligent jointly and severally, liability cannot arise and the plaintiff’s claim to the extent of his own negligence, as may be quantified, will have to be severed. He is entitled to damages not attributable to his own negligence. The law/distinction with respect to 16 / 25 contributory as well as composite negligence has been considered by this Court in Machindranath Kernath Kasar v. D.S. Mylarappa & Ors. [2008 (13) SCC 198] and also as to joint tort feasors. This Court has referred to Charlesworth & Percy on negligence as to cause of action in regard to joint tort feasors thus: “42. Joint tortfeasors, as per 10th Edn. of Charlesworth & Percy on Negligence, have been described as under : Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually….. Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.” 17. The question also arises as to the remedies available to one of the joint tort feasors from whom compensation has been recovered. When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided apportionment of composite 17 / 25 negligence cannot be made in the absence of impleadment of joint tort feasor. Thus, it would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them.” 19. In view of the above and also in the facts and evidence of the present case, the submissions made by the learned counsel for the appellant do not convince this court to accept the same, and in the absence of any evidence, it is very difficult to hold that the driver of the passenger bus, as well as the truck, are contributory negligent in the accident. 20. The other submission made by the learned counsel for the appellant is that the truck was being plied without having any valid driving license, valid permit and fitness certificate at the time of the accident. 21. In the present case, the non-applicant no. 3/insurance company (present appellant) has examined his witness, C. Toppo, (N.A.W. 1), who is the Assistant Manager of the insurance company. He stated in para 6 of his evidence that the driver of the offending vehicle had a valid driving license at the time of the accident, and the truck also 18 / 25 had a valid permit. He proved an intimation issued by the RTO, Rajnandgaon (Ex. D-2), by which it has been informed that the truck bearing No. CG 08 B 1394 did not have any valid fitness certificate on 11-05-2014, which is the date of the accident. Earlier, the vehicle had a fitness certificate from 04-04-2013 to 03-04-2014 and then from 30-12-2014 to 29-12-2015. 22. The issue of the requirement of a fitness certificate at the time of the accident came up for consideration before the Hon’ble Division Bench of this Court in M.A.(C) No. 1289/2014, “Adesh Kumar vs. Smt. Satarupa Bai Yadav and Others” and other connected appeals, and vide order dated 19-11-2020, it has been held that non-availability of fitness certificate of the vehicle at the time of the accident is a fundamental breach of the insurance policy. In para 17 to 21, the Hon’ble Division Bench of this Court has held that:- “17. Requirement of certificate of fitness is envisaged under Section 56 of the Act of 1988. 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 authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the 19 / 25 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.” 18. 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 Act of 1988 envisages for registration of vehicle, which 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. 20 / 25 19. 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 Act of 1988 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. 20. This issue has been considered by the five judges Bench of Kerala High Court in case of Pareed Pillai vs. Oriental Insurance Company Co. Ltd reported in AIR 2019 Kerala 9 and held thus :- “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 21 / 25 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 22 / 25 as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers.” 21. In view of very specific aforementioned provisions of the Act of 1988 and the ruling of Kerala High Court authored by one of us Hon'ble Justice P.R. Ramachandra Menon, we hold that, absence of fitness certificate for the offending vehicle is fundamental breach of policy condition.” 23. 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 the compensation on the ground that on the date of accident there was no valid fitness certificate with the offending vehicle. The liability to pay the compensation has been considered by Hon’ble Supreme Court in Amrit Paul Singh Vs. Tata AIG General Ins. Co. Ltd, 2018 (7) SCC 558. Para 14 of the aforesaid judgment passed by the Hon’ble Supreme Court is as under:- “14. The Court posed the question as to whether an insurer can avoid its liability in the event it raised the defence as envisaged in sub-section (2) of Section 149 of the Act corresponding to sub- section (2) of Section 96 of the Motor Vehicles Act, 1939. The Court analysed the language employed in sub- section (2) of Section 149, specifically clause (a), and, after scrutinising the same and referring to various authorities, opined: (Swaran Singh case, SCC pp. 330-31 & 335, paras 69-71 & 83) 23 / 25 "69. The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi) 70. Apart from the above, we do not intend to lay down anything further i.e. degree of proof which would satisfy the aforementioned requirement inasmuch as the same would indisputably depend upon the facts and circumstances of each case. It will also depend upon the terms of contract of insurance. Each case may pose a different problem which must be resolved having regard to a large number of factors governing the case including conduct of parties as regards duty to inform, correct disclosure, suppression, fraud on the insurer, etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard- and-fast rule can, therefor, be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of 24 / 25 conditions of the contract of insurance, on the part of the insurer by discharging its burden of proof. The Tribunal, there cannot be any doubt, must arrive at a finding on the basis of the materials available on records. 71. In the aforementioned backdrop, the provisions of sub-sections (4) and (5) of Section 149 of the Motor Vehicles Act, 1988 may be considered as to the liability of the insurer to satisfy the decree at the first instance. * * * 83. Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does not mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to. Sub-section (7) of Section 149 of the Act, to which pointed attention of the Court has been drawn by the learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with sub-section (1) thereof. The right to avoid 25 / 25 liability in terms of sub-section (2) of Section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading." 24. The deceased was a third party, hence in view of the judgment passed by Hon’ble Supreme Court in the matter of Amrit Paul Singh (supra), it is directed that the Insurance Company shall first deposit the entire amount of compensation along with the interest and thereafter may recover the same from the owner and driver of the offending vehicle i.e. Respondent Nos. 4 & 5. 25. With this observation, this appeal is partly allowed to the extend indicated hereinabove. Sd/- (Ravindra Kumar Agrawal) Judge ved