-1- 2025:CGHC:29599 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1766 of 2019 1 - Amar Vijay Singh S/o Shri Hemkaran Singh Aged About 34 Years Resident Of Shankarpara Station Maroud, Bhilai, Police Station Nevai, Tehsil And District Durg, Chhattisgarh......(Driver Of The Offending Venicle Hiwa No. Cg 04 D.B. 8002). 2 - Shashikant Rai S/o Awadesh Rai Aged About 43 Years Resident Of Sadak No. 02, Ganesh Nagar Risali, Police Station Nevai Bhilai, Tehsil And District Durg, Chhattisgarh, (Owner Of The Offending Vehicle Hiwa No. Cg 04 D.B. 8002) ... Appellant (s) versus 1 - Amarnath Pasi (Paswan) S/o Late Mahadev Pasi Aged About 55 Years 2 - Smt. Jamuna Bai Pasi (Paswan) W/o Amarnath Pasi Aged About 54 Years Respondent No. 1 & 2 are resident Of Opposite Nandu Tea Stall, Shankarpara, Station Maroda Bhilai, Tehsil And District Durg, Chhattisgarh. 3 - The National Insurance Company Limited Divisional Office, Address Akash Ganga Complex Supela Bhilai, Tehsil And District Durg, Chhattisgarh......(Insurer Of The Offending Vehicle Hiwa No. Cg 04 D.B. 8002) ... Respondent(s) __________________________________________________________ For Appellant (s) : Mr. Amit Nayak, Advocate on behalf of Mr. Avinash Chand Sahu, Advocate For Respondent No.1 & 2 : Mr. Akash Shrivastava, Advocate For Respondent No.3 : Mr. Sourabh Gupta, Advocate on behal of Mr.R.N. Pusty, Advocate ________________________________________________________ Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.07.23 10:25:05 +0530 -2- S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 01 /07/2025 1. With the consent of learned counsel appearing for the parties, case is heard finally. 2. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) is filed by the the appellants/owner and driver of the offending vehicle challenging the award dated 07.08.2019 passed by learned Seventh Motor Accidents Claims Tribunal, Durg in Claim Case No.434 of 2017, whereby claim application filed by the respondents No.1 & 2/claimants has been partly allowed. 3. Facts relevant for disposal of this appeal are that respondents No. 1 & 2/claimants filed an application under Section 166 of the Act of 1988 before the learned Claims Tribunal, pleading therein that on 25-05-2017, Govardhan alias Dhannu Pasi went to work as a helper in the truck Hywa No. CG-04-DB-8002 as per the instructions of non-applicant No.2 (owner of the said truck). At about 11:00 to 12.00 noon, due to rash and negligent driving of the truck Hywa, by non-applicant No.1 (driver), it overturned due to which Govardhan alias Dhannu Pasi got pressed under the truck and suffered very severe injuries. At the time of said accident, deceased Govardhan alias Dhannu was 19-year-old strong and healthy young boy. He was getting salary of Rs. 6,000/- per month and allowance of Rs. 100/- per day. Thus, the deceased's monthly income was Rs. 9,000/- to Rs. 10,000/ per month-. Deceased was the only earning member of his family and the entire family was dependent on the deceased. Due to the death of Goverdhan, serious problem of -3- livelihood has arisen before them. Applicants/claimants have claimed for total compensation amount of Rs. 25,30,000/- from non-applicants under various heads. 4. Non-applicant No. 1 and 2 in their written statement have denied the pleadings made in the claim application and further pleaded that non- applicant No. 1 had a valid driving license to drive the offending vehicle and the fitness and permit of the vehicle were valid and effective on the date of the accident. Non-applicant No. 3/insurance company is liable for payment of entire compensation. Non-applicant No. 1 has not caused any accident by the vehicle driven by him. 5. Non-applicant No.3/insurance company in its written statement has opposed the pleadings of claim application and further pleaded that compensation claimed is highly exaggerated. The deceased was contributory negligent to the accident. Permit and fitness certificate of vehicle are mandatory, absence of which will be breach of policy conditions. Driver of the offending vehicle should posses valid and effective driving licence. 6. Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, offending vehicle was being driven by non-applicant No.1 rashly and negligently, due to which, an accident occurred in which Goverdhan alias Dhannu Pasi suffered grievous injuries and died. Recording a finding that breach of the conditions of insurance policy was found to be proved, learned Claims Tribunal held non-applicants No. 1 & 2 (Driver and Owner of offending vehicle) liable to pay amount of compensation to claimants, calculated the compensation on different heads and awarded total amount of compensation of Rs.9,37,200/ -. -4- 7. Sole ground raised by learned counsel for the appellants before this Court is that learned Claims Tribunal erred in fastening liability upon owner and driver of the offending vehicle only on the ground that there was violation of condition of insurance policy, as on the date of accident owner of the vehicle did not possess valid and effective permit and fitness for plying the offending vehicle. He submits that this violation cannot be said to be fundamental breach of policy but a technical breach. At the time of accident, non-applicant No.1 was having valid and effective driving licence to drive the said vehicle. 8. Learned counsel appearing for respondents No. 1 & 2/claimants supports the impugned award of compensation. 9. Learned counsel appearing for respondent No.3/insurance company opposing the submission of learned counsel for the appellants submits that learned Claims Tribunal on appreciation of oral and documentary evidence available on record rightly came to conclusion that on the date of accident, there was no fitness certificate of offending vehicle and fastened the liability upon non-applicants No. 1 & 2 to satisfy the award of compensation. Amount of compensation computed is just and proper hence it does not call for any interference. 10. I have heard learned counsel for the parties and also perused the record of the claim case. 11. Respondents No. 1& 2/claimants in support of their claim application placed on record as many as 14 documents inducing final report as Ex.P-1, FIR as Ex.P-2 , Crime details Form as Ex.P-5, postmortem report as Ex.P-9 and Seizure Memo as Ex.P-10 and claimant No.1- Amarnath Paswan got himself examined as AW1, Sudhir Kumar Yadav as AW-2. -5- 12. Non-applicant No.3/Insurance Company in support of its objection that on the date of accident the offending vehicle was being plied without any valid and effective fitness and permit, examined Animesh Kumar Tandon (NAW-1), Assistant Grade- II posted in the office of RTO Raipur, Hemant Jaiswal (NAW2), Assistant Grade -II posted in the office of RTO, Durg and J.Ekka (NAW3) Dy. Manager, National Insurance Company. 13. Animesh Kumar Tandon (NAW1) in his deposition has stated that according to office record, fitness certificate of the offending vehicle was valid from 19.02.2010 to 18.02.2011 and thereafter no fitness certificate was been found to be issued from the RTO office. He further stated that thereafter on 01.12.2012 ‘NOC’ has been given by the RTO Raipur to RTO Durg. Hemant Jaiswal (NAW2) in his deposition stated that as per Ex.D-7 fitness of the offending vehicle was valid from 29.03.2014 till 28.03.2015 , on the date of accident i.e. 25.05.2017 there was no live and valid fitness certificate of the offending vehicle. Similarly NAW-3 J. Ekka deposed that on the date of accident offending vehicle did not have a permit and fitness certification and the seizure of permit and fitness is also not mentioned in the seizure memo. Nothing has been elicited so as to disbelieve the version of these witnesses. Appellants/Non-applicant No. 1 & 2 had not produced any evidence to suggest that on the date of accident there was any valid permit and fitness of the offending vehicle. 14. Chapter-V of the Act of 1988 deals with Control of Transport Vehicle. Section 66 (1) of the Act of 1988 provides for necessity for permits, which reads as under : “66. Necessity for permits.-(1) No owner of a motor -6- vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used: Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage: Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. [Provided also that where a transport vehicle has been issued any permit or permits, as well as a licence under this Act, such vehicle may be used either under the permit or permits, so issued to it, or under such licence, at the discretion of the vehicle owner]” 15. Perusal of aforementioned provision would show that, it clearly envisages the requirement of permit has been made mandatory for use of vehicle as 'Transport Vehicle' in any public place for carrying passengers or goods. 16. In the matter of National Insurance Co. Ltd. Vs. Challa Bharathamma and Ors. (2004) 8 SCC 517, Hon’ble Supreme Court while considering the effect of plying of a vehicle on a public road without permit has held thus: “9. In New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] it was -7- observed as follows : (SCC p. 236, para 29) “29. We may consider the matter from another angle. Section 149(2) of the 1988 Act enables the insurers to raise defences against the claim of the claimants. In terms of clause (c) of sub-section (2) of Section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singh case [New India Assurance Co. v. Satpal Singh, (2000) 1 SCC 237 : 2000 SCC (Cri) 130] .” 12. The High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed on a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. The High Court was, therefore, not justified in holding the insurer liable.” 17. Further, in the matter of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Co. Ltd. and Ors. (2018) 7 SCC 558, Hon’ble Supreme Court has held thus:- “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not -8- stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction.” …… 18. Requirement of certificate of fitness is envisaged under Section 56 of the Act of 1988. Section 56 (1) is reproduced below for ready reference: "56 (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 authorized 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 "authorized 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 certificate 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.]" 19. 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 -9- 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. 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, Ernakulam (AIR 2019 Kerala 9 FB) 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 -10- 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 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 -11- 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." 21. In the case at hand, from perusal of the evidence and documents available on record it is apparent that on the date of accident i.e. 25- 05-2017, offending vehicle Hywa No.-CG-04-DB-8002 was being plied without valid and effective permit and fitness, in violation of the terms and conditions of insurance policy. 22. For the foregoing discussions and judgment of Hon’ble Supreme Court in the case of Challa Bharathamma (supra), Amrit Paul Singh (supra) and decision of Kerala High Court in Pareed Pillai (supra), this Court is of the opinion that learned Claims Tribunal has not committed any error in exonerating the insurance company from its liability, however, erred in fastening the liability of 20% on driver of the offending vehicle. 23. The reason for exoneration of Insurance Company from its liability is of not having valid and effective fitness certificate and permit of vehicle. The responsibility to have the valid, effective and updated document is of owner of the vehicle. Driver is an emplpoyee engaged with owner for the purpose of earning livelihood. In such a situation, fastening liability upon driver also to some extent to satisfy award will be inequitable and hence it is not sustainable. Fastening liability to pay 20% of awarded amount upon driver appellant No.1 is hereby set aside. Now the liability to satisfy entire amount of compensation shall be of the appellant No.2 owner of the offending vehicle. -12- 24. For the foregoing discussions, appeal is allowed in part, and the impugned award is modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge Praveen