1 2025:CGHC:39172 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 650 of 2021 1 - Branch Manager The Oriental Insurance Company Limited Branch Office, Shriram Complex, Near Khedia Talkies, Ring Road, Nh 43, Manendragarh, District Korea Chhattisgarh. --- Appellant versus 1 - Siyalal S/o Late Indradev, Aged About 18 Years 2 - Smt. Manmati D/o Late Indradev, Aged About 30 Years R/o Both are Village Pahadhanswahi, P.S. Kelhari, District Korea Chhattisgarh. 3 - Pappu @ Ashok Sharma S/o Janki Prasad Sharma, Aged About 28 Years R/o Village Kevati, P.S. Kelhari, District Korea Chhattisgarh...........Driver Of Vehicle. 4 - Mohd. Maksood Alam S/o Makbool Alam, Aged About 42 Years R/o Village Kelhari, P.S. Kelhari, District Korea (Chhattisgarh).............Owner Of Vehicle. 5 - Abdul Aziz S/o Abdul Kuddus, Aged About 55 Years 6 - Smt. Shakila Bano W/o Abdul Rashid, No.5 and 6 Both are R/o Ward No. 12, Near Masjid, Manendragarh, District Korea Chhattisgarh. --- Respondents For Appellant : Mr. Hanuman Prasad Agrawal, Advocate For Respondents No. 1 & 2 : Mr. Anuroop Panda, Advocate For Respondents No. 3 & 4 : Mr. Pawan Shrivastava, Advocate For Respondents No. 5 & 6 : Mr. Anshul R. Shrivastava, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 06/08/2025 1. Appellant/Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) challenging the impugned award dated 26.03.2021, passed in Claim Case No.06 BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.08.30 12:32:44 +0530 2 of 2017, whereby the learned First Additional Motor Accident Claims Tribunal, Manendragarh, District – Koriya (C.G.) (for short ‘the Claims Tribunal’) allowed the application filed under Section 166 of the Act, 1988 by claimants/respondent No.1 & 2 against the death of his son, in part, awarding total compensation of Rs.6,33,000/-, fastening the liability to satisfy the amount of compensation on non-applicants No.1 to 3 jointly and severally. 2. Facts relevant for disposal of this appeal are that appellants/claimants filed an application under Section 166 of the Act of 1988 claiming total compensation of Rs.26,60,000/- under different heads on account of the death of Premkunwar, who died in road accident, pleading therein that on 31.12.2016 when Premkunwar along with her son and Gulabiya Bai and others were going to village Peepardol to celebrate new year and reached near Main Road Peeprdol at that time, non- applicant No.1 while driving the bus bearing No.MP-18P-0129 (hereinafter referred to as ‘the offending vehicle’) in rash and negligent manner dashed Premkunwar and caused accident as a result Premkunwar suffered fatal injuries on her head, face and both legs leading to her death on spot. 3. Non-applicants No. 1 and 2 filed reply to the claim application, denying averments made therein. It was stated that although the offending vehicle was registered in the name of non-applicant No. 2 on the date of the accident, the vehicle had been sold to non-applicant No. 5 through a sale agreement dated 16.03.2007. Non-applicant No. 5 was in physical possession of the vehicle and was operating it as a owner 3 on the date of the accident. The offending vehicle was duly insured with non-applicant No. 3, the Insurance Company. 4. Non-applicant No.3 filed reply denying the pleadings made in the claim application. It was pleaded that on the date of accident, non-applicant No.1, driver of offending vehicle was not holding valid and effective driving license and the offending vehicle was being plied in breach of conditions of insurance policy without valid and effective license, valid permit and fitness certificate. 5. Non-applicants No. 4 and 5 also filed a reply to the claim application, stating that on the date of the accident, offending vehicle was registered in the name of non-applicant No. 2. It was pleaded that non- applicant No. 4 never purchased or possessed the vehicle. On the date of the accident, non-applicant No. 2 was the registered owner, and the vehicle was being operated under his instructions. Non- applicants No. 4 and 5 have no connection with the offending vehicle. 6. The learned Claims Tribunal upon appreciation of the pleadings and the evidence brought on record by respective parties, allowed the claim application in part, awarded total compensation of Rs.6,33,000/-, breach of conditions of insurance policy was not found to be proved and fastened liability upon non-applicants No.1 to 3 jointly and severally to indemnify the insured. 7. Learned counsel for the appellant/Insurance Company would submit that learned Claims Tribunal erred in recording a finding that Insurance Company failed to prove that on the date of accident, offending vehicle was running without fitness certificate. He contended that to prove the 4 pleadings made in reply to the claim application that on the date of accident, offending vehicle was not having valid fitness certificate, the appellant/Insurance Company has produced online details of registered vehicle bearing No. MP-18P-0129 (Ex.D-6), wherein the period for which fitness certificate was issued is clearly mentioned. Appellant has also examined Heeralal Dhruw, Data Entry Operator of the Regional Transport Office, Bilaspur, who also proved that the fitness certificate was issued from 11.12.2012 to 10.12.2013 and 29.06.2017 till 28.06.2018. It is contention of learned counsel for the appellant/Insurance Company that accident is dated 31.12.2016 which is between 11.12.2013 to 29.06.2017 for which period fitness certificate was not issued by the concerned authority. He also contended that plying the transport vehicle without fitness certificate in public place or public road will have the effect of fundamental breach of conditions of insurance policy. In support of his contention, he placed reliance upon the decision of High Court of Kerala in case of Pareed Pillai Vs. Oriental Insurance Co. Ltd., reported in 2019 ACJ 16. He submits that in the aforementioned facts of the case, Insurance Company be exonerated from liability to satisfy the amount of compensation as awarded by learned Claims Tribunal. 8. Mr. Anuroop Panda, learned counsel appearing on behalf of respondents No.1 and 2/claimants would submit that Insurance Company has filed this appeal only challenging the liability fastened upon it to satisfy the amount of compensation and it has not challenged the quantum of compensation awarded to the claimants, 5 therefore, he is not making any submission on merits of the case as set-up by learned counsel for appellant/Insurance Company. 9. Mr. Pawan Shrivastava, learned counsel appearing on behalf of respondents No.3 and 4 would submit that it is not in dispute that respondent No.4 was registered owner of the offending vehicle, however, the vehicle was sold to respondent No.6 vide sale agreement/sale deed executed between respondent No.4 and 6. Document is placed on record as Ex.NA2-C. The said document was executed on 16.03.2007 and since then respondent No.6 was in possession of the offending vehicle as owner and it is respondent No.6, who was plying the vehicle on the date of accident, therefore, the respondent No.4 cannot be held liable in any manner to satisfy the amount of compensation, if any, to be paid by owner of the offending vehicle. In alternate he submits that merely absence of fitness certificate would not be a fundamental breach of policy condition, therefore, the Insurance Company cannot escape from its liability to indemnify the insured under insurance policy. In support of his contention, he placed reliance upon the decision of High Court of Karnataka in MFA No. 5993 of 2015 (MV) between Smt. Nithya Venkatesh & Ors. National Insurance Company & Anr., decided on 22.12.2020. 10. Mr. Anshul Ranjan Shrivastava, learned counsel appearing on behalf of respondents No.5 & 6 would submit that it is not in dispute that respondent No.6 had purchased the vehicle vide Ex.NA2-C dated 16.03.2007, however, as the vehicle was not found in order and was not in good running condition, it was returned back to the respondent 6 No.4 within short period of time. He also submits that after accident it is the respondent No.4, who took the vehicle in custody from the Court of competent jurisdiction. The permit was obtained in the name of respondent No.4 from the year 2012 to 2017, which shows that respondent No.4 is the registered owner, was in physical possession and also in command of offending vehicle, therefore, liability to satisfy the amount of compensation, if any, cannot be fastened upon respondent No.6. However, upon putting query to learned counsel for respondent No.5 and 6 as to whether any document in this regard has been placed before the Claims Tribunal, he fairly submitted that he did not find any such document available in record. He however, submits that learned Claims Tribunal recorded a finding that Insurance Company failed to prove the defence taken by it in reply that, on the date of accident the offending vehicle was not having valid and effective fitness certificate. 11. I have heard learned counsel for the parties and also perused the record of claim case. 12. Appellant/Insurance Company has submitted reply to the claim application. In para – 11 of the reply specific plea has been raised that on the date of accident, the offending bus was being driven in breach of policy conditions as it was being plied without there being any valid permit and fitness certificate. To prove the said plea taken in reply, appellant/Insurance Company produced the verification of fitness certificate prepared by investigator of the company and has also produced registered vehicle details issued under signature of registering authority RTO, Bilaspur. It is the printout of the details of 7 the vehicle obtained online, wherein, details of application submitted for obtaining fitness certificate, period for which the fitness certificate was issued is specifically mentioned in details. Initially, fitness certificate was issued upto 12.01.2011. The renewed fitness certificate was issued on 17.02.2011, which as valid up to 16.02.2012. Thereafter, the fitness certificate was again obtained on 11.12.2012 which was valid uptill 10.12.2013 and thereafter the fitness certificate was obtained on 29.06.2017, which was valid upto 28.06.2018.. 13. Appellant/Insurance Company also examined one Heeralal Dhruw, Data Entry Operator of the Regional Transport Office, Bilaspur. In his evidence, he clearly stated that he is having with him verified computer records of fitness of the offending vehicle MP-18P-0129 and the dates as discussed above of issuance of fitness certificate and its validity period has been stated by him and exhibited the document Ex.D-6. In cross-examination, he stated that he is making his statement based on the computer data records. 14. The insurance Company to prove the defence taken by it that on the date of accident, the offending vehicle was being plied without there being fitness certificate has produced the documents in form of information obtained from the office of the Registering Officer, RTO, Bilaspur and have also examined an employee of the Regional Transport Office. From the documentary and oral evidence available in record, it is clearly appearing that information with regard to the application for obtaining fitness certificate and the period for which fitness certificate was issued of the offending bus is clearly mentioned, 8 which is prior to the date of accident and also subsequent to the date of accident except for the date on which accident occurred. 15. Learned Claims Tribunal in para -13 of the impugned award had considered the submission of learned counsel for non-applicant No.1, 2, 4 and 5 therein that the offending vehicle was being plied in terms of conditions of insurance policy, however, failed to consider that though both the owners, driver of offending vehicle participated in the proceedings through their advocates have not submitted any fitness certificate of relevant period in which, accident occurred. Learned Claims Tribunal only taking into consideration the evidence of witness NAW-4 has observed that this witness has not clearly stated that there was no fitness certificate of offending vehicle on the date of accident and further that Administrative Officer of the appellant/Insurance Company has stated that investigation was not done with regard to the fact that the offending vehicle was plied in absence of fitness certificate. The said observation and finding recorded by the learned Claims Tribunal in the opinion of this Court is perverse to the evidence available on record. More so the documents (Ex.D-6) and the evidence of Heera Lal Dhruw (NAW-4), an employee of RTO, Bilaspur. The Claims Tribunal also fell into error in overlooking the fact that the application and the period of the validity of the fitness certificate of the vehicle prior to the date of accident and after the date of accident has been produced, which is sufficient to presume that there was no fitness certificate of the offending vehicle from 10.12.2013 till 29.06.2017. 9 16. For the aforementioned discussions, finding recorded by the learned Claims Tribunal on the issue of breach of policy condition, that “not proved” is perverse to the evidence available on record, which is is not sustainable, accordingly, it is set-aside. 17. The Division Bench of this Court in case of Adesh Kumar Vs. Smt. Satrupa Bai Yadav and others in MAC No.1289 of 2014 and other connected matters, considering the decision of Five Judges Bench of High Court of Kerala in case of Pareed Paillai (supra) has held that plying of vehicle in public road in absence of permit would be fundamental breach of insurance policy conditions. As this Court held that absence of fitness certificate would be the fundamental breach of policy condition, the Insurance Company is exonerated from its liability to satisfy the amount of compensation, however, considering decision of Hon’ble Supreme Court in case of Amrit Paul Singh v. TATA AIG General Insurance Co. Ltd., reported in (2018) 7 SCC 558 I find it appropriate to direct the appellant/Insurance Company to first pay the entire amount of compensation and thereafter, recover the same from owner of offending vehicle. 18. At this stage, considering the nature of dispute raised by respondent No.4 and respondent No.6 with regard to ownership and physical possession of offending vehicle, considering the fact that respondent No.4 to be registered owner of offending vehicle is not in dispute. At the same time, the offending vehicle was purchased from the registered owner by respondent No.6 is also not disputed by counsel representing respondent No. 5 & 6 based on the document executed in this regard on 16.03.2007 vide Ex.NA2-C. The evidence of driver of 10 offending vehicle Ashok Sharma who is examined as NAW-2, wherein he stated that on the date of accident, he was driving the vehicle as driver appointed by respondent No.6 as also considering the decision of Hon’ble Supreme Court in case of Naveen Kumar Vs. Vijay Kumar and Others, reported in (2018) 3 SCC 1 I find it appropriate to hold that that non-applicant No.4 and 6 will be jointly and severally liable to satisfy the amount of compensation. The appellant Insurance Company can recover the amount of compensation so paid by it from respondent No.4 and 6 in accordance with law, as per the directives of Hon’ble Supreme Court in case of Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 in same proceeding. 19. Accordingly, the appeal is allowed. Sd/- (Parth Prateem Sahu) Judge Balram