1 2025:CGHC:17964 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 394 of 2019 1 - Raipur Institute Of Technology Administrative Office, Raipur Institute Oftechnology Nal Ghar Chowk Raipur (Chhattisgarh) (Respondent No. 1 (Incorrectly Referred To As Respondent No. 2 In The Award), District : Raipur, Chhattisgarh. ... Appellant versus 1 - Aayush Agrawal S/o Shri P.D. Agrawal, Aged About 20 Years Resident of House No. 24, Agrawal Para, Aarang, District Raipur Chhattisgarh. 2 - The Oriental Insurance Company Ltd., Madina Manzil, Katchery Chowk, Raipur, Chhattisgarh (Respondent No. 2 (Incor- rectly Referred To As Respondent No. 3 In The Award). ... Respondents For Appellant : Mr. Animesh Pathak, Adv. on behalf of Mr. Amrito Das, Adv. For Respondent No. 1 : Mr. Sourave Agrawal, Adv. on behalf of Mr. Ratnesh Kumar Agrawal, Adv. For Respondent No. 2 : Mr. Akash Shrivastava, Adv. on behalf of Mr. R.N. Pusty, Adv. Hon'ble Shri Justice Sanjay Kumar Jaiswal, J. Judgment on Board Digitally signed by HEERA LAL SAHU Date: 2025.04.22 17:55:33 +0530 2 (21.04.2025) 1. This is an owner’s appeal against the award dated 02.11.2018 passed by the 1st Additional Motor Accident Claims Tribunal, Raipur, District - Raipur (C.G.) in Motor Accident Claim Case No.630/2015. 2. As against compensation of Rs.32,80,000/- claimed by the claimant/respondent No.1 herein by filing claim application under Section 166 of the Motor Vehicles Act (henceforth ‘the Act’) for his injuries in the motor accident on 06.02.2014, the Tribunal awarded a total sum of Rs.1,80,000/- along with interest at the rate of 9% per annum in favour of the claimant. 3. The Tribunal, on a close scrutiny of the evidence led, held that the accident had occurred due to rash and negligent driving of the vehicle bearing registration No. CG-04-JA- 0740 owned by appellant herein by its driver Ibrahim Khan (died); Aayush Agrawal/respondent No.1 sustained grievous injuries in the motor accident on 06.02.2014; the appel- lant/owner of the offending vehicle held liable for payment of compensation; the insurance company exonerated from its liability to pay compensation as the offending vehicle was driving by its driver in the breach of policy conditions as the owner of the vehicle have not the fitness certificate of the offending vehicle; assessed and awarded the aforesaid sum as compensation in favour of claimant. Hence, the ap- peal. 4. Learned counsel appearing for the appellant submits that the learned tribunal failed to consider that the insurance company did not prove breach of any terms and conditions of the insurance policy. On the contrary, the witness de- posed by the insurance company stated that in the entire insurance policy, there was no mention of the fitness cer- 3 tificate. In order to constitute a breach of a contract, there has to be a specific stipulation in the policy as to what shall amount to a breach of policy and what event shall have what consequence. He further submits that the appellant had taken all steps for obtaining the fitness certificate, and the procedural compliance in this regard was already done by them with the RTO. The application with the requisite fee was already deposited on 01.10.2013, and in response, the inspection of the vehicle was also done by the RTO on 03.10.2013. There was no adverse report submitted by the RTO stating that, upon inspection, the insured vehicle was found unfit for driving. The insurance company did not bring any evidence from the RTO to the said effect. In fact the insurance company, as admitted, did not even ask for the fitness certificate at the time of issuance of the insur- ance policy. As such, the appeal is liable to be allowed, and the appellant may be exonerated from its liability, and the insurance company may be held liable to pay the compen- sation. 5. Per contra, learned counsel appearing for respondent No. 2 supported the award impugned submitting that the award passed by the learned Tribunal is based on the proper ap- preciation of oral as well as documentary evidence which needs not to interfere. 6. Learned counsel appearing for respondent No. 1 also sup- ported the impugned judgment and orally prayed to apply the principle of “pay and recover”. 7. I have heard learned counsel for the parties and perused the award impugned including the record of the Tribunal. 8. In the case in hand, it is admitted fact that the offending bus was owned by the appellant herein, insured by respondent No.2 herein, and the driver of the offending 4 vehicle was Ibrahim Khan (died) who was died during pendency of the claim application, therefore, his name was deleted from the claim application. The offending vehicle, i.e. bus bearing registration No. CG-04-H\ZA-0704 was insured by the insurance company from 28.11.2013 to 27.11.2014 vide Ex.P-9 and as per the policy conditions in compliance with the M.V. Act, the insured vehicle must have a valid and effective permit and fitness certificate. Further, looking to the statement of Animesh Tandon, AG-II of RTO Officer, Raipur, the offending vehicle had no effective and valid fitness certificate on the date of the accident i.e. 06.02.2014. 9. Issue of fitness certificate has been considered by five judges Bench of Hon’ble Kerala High Court in the matter of Pareed Pillai Vs Oriental Insurance Company Ltd., reported in (2019) 1 ACJ 16 and held thus: (para 17) 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 5 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. 10. In view of the above in the subject matter, and the material and evidence available on record in this case, it is clear that there is a clear breach of policy conditions as the offending vehicle was driven by its driver without have a valid and effective fitness certificate on the date of accident. Thus, the finding of the Tribunal is based on proper appreciation of oral as well as documentary evidence which does not call for any interference. 11.So far as the oral prayer of the counsel for claimants/respondent No. 1 to apply the principle of “pay 6 and recover” is concerned, Hon’ble Supreme Court recently in the matter of Amrit Paul Singh and another Vs TATA AIG General Insurance Company Limited and others, reported in 2018(3) KHC 197 considered the issue with respect to violation of conditions of Insurance Policy on the ground that offending vehicle was not having a valid permit and held that Insurance Company first to satisfy the award and thereafter to recover the same from the insured. In the case in hand also there is a clear breach of policy conditions as the offending vehicle did not have a valid and effective fitness certificate on the date of accident. 12.For the reasons mentioned herein above, the appeal deserves to be and is hereby dismissed. In the light of the above judgment, in the facts and circumstances of the case, applying the ratio of law laid down by the Supreme Court in the aforementioned case, I direct the insurance company/respondent No. 2 to first pay the amount of compensation fixed by the Tribunal and then to recover the same from the appellant/owner of the offending vehicle by filing execution petition before the concerned Claims Tribunal. 13.Records of the Claims Tribunal along with a copy of this judgment be sent forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge H.L. Sahu