# Oriental Insurance Company Ltd v. Smt. Roop Rani & Anr

- **Citation:** (2020) 9 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-26
- **Case number:** First Appeal From Order No. 1078 of 2013
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-company-ltd-v-smt-roop-rani-anr-45346
- **Pages:** 10

## Headnote

A. Civil Law -Motor Vehicle Act, 1988 -
Sections 149 and 170 - Right of insurer to
contest - Ground available to insurer - If the
insurer is only a noticee, it can only raise such
of those grounds as are permissible in law under
Section 149(2) - But if insurer is a partyrespondent, it can gets a right to contest the
claim on all or any of the grounds that are
available to the insured. (Para 10)
B. Civil Law -Motor Vehicle Act, 1988 -
Sections 66 and 149 - Absence of valid
fitness certificate - Liability of Insurer - Use of a
vehicle in a public place without a permit or in
violation of any condition is a fundamental
breach - Absence of a fitness certificate
amounts to the absence of a valid permit -
Offending vehicle would be deemed to be
without registration and without a valid permit
and as such the liability cannot be imposed
upon the insurer. (Para 11 and 20)
C. Civil Law -Motor Vehicle Act, 1988 -
Doctrine of pay and recover - Breach of policy
condition - In case of third-party risks, the
insurer had to indemnify the compensation
amount payable to the third-party and the
insurance company may recover the same from
the insured - Held, the impugned award
directing the appellant to indemnify the owner is
set aside. (Para 21 and 25)

Appeal partly allowed. (E-1)

Cases relied on :-

## Text

178 INDIAN LAW REPORTS ALLAHABAD SERIES

ifjogu fuxe ls feuh cl la0 UP 36
T 1103 dks vuqcU/k djus esa chek dEiuh dks dksbZ
vkiRrh ugha gS rFkk chek dEiuh }kjk chfer cl
ls vuqcU/k vof/k esa dkfjr nq?kZVuk ds QyLo:i
ns; izfrdj dk nkf;Ro chek dEiuh dk gksxkA

 fn
vksfj,.V ba';ksjsal dEiuh fyfeVsM
 fpugV y[kuÅß
 (emphasis supplied)

24. In the circumstances, in any case,
the Appellant is now estopped from
contending that by attaching his bus with
the Corporation, the insured has violated
the terms and conditions of the policy and
it was not liable to indemnify the insured.

25. In view of the aforesaid
discussion, it is apparent that the appeal is
absolutely misconceived and is devoid of
merit and is accordingly dismissed.

26. No order as to cost.
----------
(2020)09ILR A178
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2019

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal From Order No. 1078 of 2013

Oriental Insurance Company Ltd.
 ...Appellant
Versus
Smt. Roop Rani & Anr. ...Respondents

Counsel for the Appellant:
Rajeev Misra

Counsel for the Respondents:
Ram Pher Singh
A. Civil Law -Motor Vehicle Act, 1988 -
Sections 149 and 170 - Right of insurer to
contest - Ground available to insurer - If the
insurer is only a noticee, it can only raise such
of those grounds as are permissible in law under
Section 149(2) - But if insurer is a partyrespondent, it can gets a right to contest the
claim on all or any of the grounds that are
available to the insured. (Para 10)
B. Civil Law -Motor Vehicle Act, 1988 -
Sections 66 and 149 - Absence of valid
fitness certificate - Liability of Insurer - Use of a
vehicle in a public place without a permit or in
violation of any condition is a fundamental
breach - Absence of a fitness certificate
amounts to the absence of a valid permit -
Offending vehicle would be deemed to be
without registration and without a valid permit
and as such the liability cannot be imposed
upon the insurer. (Para 11 and 20)
C. Civil Law -Motor Vehicle Act, 1988 -
Doctrine of pay and recover - Breach of policy
condition - In case of third-party risks, the
insurer had to indemnify the compensation
amount payable to the third-party and the
insurance company may recover the same from
the insured - Held, the impugned award
directing the appellant to indemnify the owner is
set aside. (Para 21 and 25)

Appeal partly allowed. (E-1)

Cases relied on :-

1. United India Insurance Co. Ltd. Vs. Shila
Datta; (2011) 10 SCC 509
2. Narinder Singh Vs New India Assurance Co.
Ltd.; (2014) 9 SCC 324
3. National Insurance Co. Ltd. Vs Challa
Upendra Rao; (2004) 8 SCC 517
4. Amrit Paul Singh Vs TATA AIG General
Insurance Co. Ltd.; (2018) 7 SCC 558
5. Ramankutty & anr.Vs Pareed Pillai & anr.;
2018 SCC Online Ker 3542
6. National Insurance Co. Ltd. Vs Swaran Singh;
(2004)
3
SCC
297
9 All. Oriental Insurance Co. Ltd.Vs. Smt. Roop Rani & Anr.
179
7. National Insurance Co. Ltd. Vs Laxmi Narain
Dhut; (2007) 3 SCC 700
8. Premkumari Vs Prahlad Dev; (2008) 3 SCC
193
9. Oriental Insurance Co. Ltd. Vs Nanjappan;
(2004) 13 SCC 224
(Delivered by Hon'ble Rakesh Srivastava, J.)

1. This First Appeal From Order has
been filed by the Oriental Insurance
Company Limited (for short 'Company')
under Section 173 of the Motor Vehicles
Act, 1988 (for short 'Act') challenging the
judgment and award dated 30.8.2013
passed by the Motor Accident Claims
Tribunal/ Additional District Judge, Court
No.9, Lucknow in Motor Accident Claim
Petition No. 344 of 2011 (Smt. Roop Rani
v. Pawan Kumar and another) whereby and
whereunder the Tribunal has awarded
compensation of Rs.1,32,272 along with
interest at the rate of 6% per annum.

2. Smt. Roop Rani, the claimant in the
original claim, and respondent no. 1 herein,
filed a claim petition. According to her, on
8.3.2011, she was going from Mullahi
Khera to her village Rahimpur. While she
was waiting for a tempo near Scooter India
Crossing, at about 10:30 AM, a DCM
Truck No. UP 17A 8562 hit her, as a result
of which, she suffered grievous injuries and
she became 100% invalid.

3. Pawan Kumar, respondent no. 2
herein, admitted that he was the owner and
driver of the offending vehicle. He denied
the factum of accident. It was, however,
asserted on his behalf, that the vehicle was
insured
with
the
Oriental
Insurance
Company Ltd as per the insurance policy,
and that the vehicle was registered and he
had the requisite driving licence. The
insurer, the appellant herein, opposed the
claim on the ground that the vehicle in
question was driven in violation of the
terms of the insurance policy and further
that the driver was not having a valid and
effective driving licence and, therefore, it
was not obliged to indemnify the insured.

4. The Tribunal after taking into
account the oral and documentary evidence
on record held that the claimant was
entitled to compensation of Rs. 1,32,272
along with 6% interest from the date of
accident till the time of actual payment.
While allowing the claim petition the
Tribunal categorically held that, on the date
of the accident, the respondent no.2 did not
have a valid fitness certificate for the
offending vehicle. The Tribunal, however,
held that the absence of a fitness certificate
was not one of the defences available to the
Insurer under Section 149 of the Act and
that the insurer had not led any evidence to
establish that the offending vehicle was not
fit for plying. In the circumstances, it was
held that the Insurer could not be absolved
of its liability to indemnify the insured and
accordingly directed the appellant to
indemnify the respondent no. 2. The
relevant portion of the judgment is
extracted below:

36& chek dEiuh ds fo}ku vf/koDrk
}kjk ;g rdZ izLrqr fd;k x;k gS fd okgu dk
fQVusl ugha Fkk vkSj bl ifjizs{; esa ;g /;ku
vkdf"kZr djk;k x; fd QkeZ&54 esa vkj-Vh-vks-
ckxir ds fjdkMZ vuqlkj fQVusl fnukad 8-3-11
dks oS/k ugha Fkk vkSj Nk;k izfr ekaxus dk mn~/k.k
gS vkSj mlds ifj'khyu ls fofnr gS fd fQVusl
fnukad 4-4-14 rd oS/k Fkk] ijUrq fQVusl nq?kZVuk
dh frfFk ij oS/k Fkk] Li"V ugha gSA iath;u izek.k
dh Nk;k izfr lh&35@4 nkf[ky fd;k x;k gS
mlesa fQVusl dk rLdjk ugha gS vkSj nq?kZVuk dh
frfFk ij fQVusl oS/k Fkk] bldk dksbZ Hkh izek.k
;kfpuh }kjk nkf[ky ugha fd;k x;k gS vkSj u gh
okgu Lokeh }kjk nkf[ky fd;k x;k gSA ,slh
180 INDIAN LAW REPORTS ALLAHABAD SERIES
fLFkfr esa ;g vo/kkj.kk dh tk;sxh fd fQVusl
okgu dk oS/k ugha FkkA

*
 *
 *

38& vc fopkj.kh; iz'u ;g gS fd
fQVusl ds vHkko esa chek dEiuh ij nkf;Ro
fu/kkZfjr fd;k tk ldrk gS vFkok ughaA

39& chek dEiuh dks eksVj okgu
vf/kfu;e dh /kkjk 149 ds rgr gh muds
mRrjnkf;Ro ls mUeqDr fd;k tk ldrk gSA /kkjk
149 ,e-oh-,sDV esa fQVusl dk gksuk n'kkZ;k ugha
x;k gSA vr% fQVusl ds vHkko esa chek dEiuh
dks muds nkf;Ro ls mUeqDr ugha fd;k tk ldrk
gSA chek dEiuh }kjk ,slk dksbZ izek.k nkf[ky
ugha fd;k x;k gS ftlls ;g Li"V gks lds fd
izLrqr okgu pyk;eku ugha FkkA ,slh ifjfLFkfr;ksa
esa ekeys ds rF; o ifjfLFkfr;ksa esa {kfriwfrZd dh
vnk;xh dk mRRkjnkf;Ro chek dEiuh ij
fu/kkZfjr fd;k tkuk U;k;ksfpr ik;k tkrk gSA"

(emphasis supplied)

5. The appeal has been taken up for
hearing in the revised list. The respondent
no.
2
though
served,
remains
unrepresented.

6. In support of the appeal, Sri Rajeev
Misra, the learned counsel for the appellant
has contended that plying a vehicle without
a valid fitness certificate is a breach of a
specific condition of the insurance policy
and the Tribunal has grossly erred in
holding
otherwise.
The
counsel
has
submitted that in the absence of a valid
fitness certificate, the indemnification of
the claimants is the responsibility of the
owner of the vehicle involved in the
accident.

7. Sri R.P. Singh, the learned counsel
for the claimant-respondent no. 1 has
supported the impugned award and has, in
the
alternative,
contended
that
the
claimants should not be made to suffer for
the inter se dispute between the appellant
and respondent no. 2 with respect to their
liability to pay the amount of compensation
to the claimants. According to the learned
counsel, the amount of compensation as
directed by the Tribunal has to be released
to the claimants and the appellant can
realise the said amount from the owner of
the vehicle in accordance with law.

8. Sections 2(28), 2(31) and 2(47) of
the Act that define "motor vehicle" or
"vehicle", "permit" and "transport vehicle"
are reproduced below:

"2.(28)
"motor
vehicle"
or
"vehicle"
means
any
mechanically
propelled vehicle adapted for use upon
roads whether the power of propulsion is
transmitted thereto from an external or
internal source and includes a chassis to
which a body has not been attached and a
trailer; but does not include a vehicle
running upon fixed rails or a vehicle of a
special type adapted for use only in a
factory or in any other enclosed premises or
a vehicle having less than four wheels fitted
with engine capacity of not exceeding
twenty-five cubic centimetres;

*
 *
 *

(31) "permit" means a permit
issued by a State or Regional Transport
Authority or an authority prescribed in this
behalf under this Act authorising the use of
a motor vehicle as a transport vehicle

*
*
 *

(47) "transport vehicle" means a
public service vehicle, a goods carriage, an
educational institution bus or private
service vehicle.

9. Section 147 of the Act prescribes
the requirements of policies and limits of
liabilities whereas section 149 deals with
the duty of insurer to satisfy judgments and
awards against persons insured in respect
9 All. Oriental Insurance Co. Ltd.Vs. Smt. Roop Rani & Anr.
181
of third-party risks. Sub-section (2) of
Section 149 is extracted below:

"149. Duty of insurers to satisfy
judgments and awards against persons
insured in respect of third party risks.--

(1) .....

(2) No sum shall be payable by
an insurer under sub-section (1) in respect
of any judgment or award unless, before
the commencement of the proceedings in
which the judgment or award is given the
insurer had notice through the Court or, as
the case may be, the Claims Tribunal of the
bringing of the proceedings, or in respect of
such judgment or award so long as
execution is stayed thereon pending an
appeal; and an insurer to whom notice of
the bringing of any such proceedings is so
given shall be entitled to be made a party
thereto and to defend the action on any of
the following grounds, namely:--

(a) that there has been a breach of
a specified condition of the policy, being
one of the following conditions, namely:--

(i) a condition excluding the use
of the vehicle--

(a) for hire or reward, where the
vehicle is on the date of the contract of
insurance a vehicle not covered by a permit
to ply for hire or reward, or

(b) for organised racing and speed
testing, or

(c) for a purpose not allowed by
the permit under which the vehicle is used,
where the vehicle is a transport vehicle, or

(d)
without
side-car
being
attached where the vehicle is a motor cycle;
or

(ii) a condition excluding driving
by a named person or persons or by any
person who is not duly licensed, or by any
person who has been disqualified for
holding or obtaining a driving licence
during the period of disqualification; or

(iii)
a
condition
excluding
liability for injury caused or contributed to
by conditions of war, civil war, riot or civil
commotion; or

(b) that the policy is void on the
ground that it was obtained by the nondisclosure of a material fact or by a
representation of fact which was false in
some material particular."

10. The grounds available to an
insurer to contest the claim of the injured or
heirs of the deceased, when it is only a
noticee and not a party, are enumerated in
sub-section (2) of Section 149 of the Act,
whereas, under Section 170 of the Act, the
insurer gets a right to contest the claim on
all or any of the grounds that are available
to the insured. In United India Insurance
Co. Ltd. v. Shila Datta, (2011) 10 SCC 509,
the Apex Court has held that if the insurer
is only a noticee, it can only raise such of
those grounds as are permissible in law
under Section 149(2). But if he is a partyrespondent, it can raise, not only those
grounds which are available under Section
149(2), but also all other grounds that are
available to a person against whom a claim
is made.

11. Section 149(2)(a)(i) relates to a
vehicle not covered by a permit to ply for
hire or reward. Use of a vehicle in a public
place without a permit or in violation of
any condition thereof is a fundamental
breach and in that contingency liability
cannot be cast upon the insurer.

12. As per Section 39 of the Act a
motor vehicle as defined under section
2(28) of the Act has to be compulsorily
registered
in
accordance
with
the
provisions of the Act before it is plied in a
public place. Section 39 of the Act reads as
under:
182 INDIAN LAW REPORTS ALLAHABAD SERIES

Section
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.

(emphasis supplied)

13. Section 56 of the Act lays down
that without a valid fitness certificate, a
transport vehicle shall be deemed to be
without registration. Relevant portion of
section 56 reads as under:

Section 56. Certificate of fitness
of transport vehicles. -

(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 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:

(emphasis supplied)

14. In Narinder Singh v. New India
Assurance Co. Ltd., (2014) 9 SCC 324 the
Apex Court has held that the use of a motor
vehicle in a public place without any
registration is a fundamental breach of the
terms and conditions of a policy contract.
Paragraph 12 of the said report is extracted
below:

"12. Indisputably, a temporary
registration was granted in respect of the
vehicle in question, which had expired on
11-1-2006 and the alleged accident took
place on 2-2-2006 when the vehicle was
without any registration. Nothing has been
brought on record by the appellant to show
that before or after 11-1-2006, when the
period of temporary registration expired,
the appellant, owner of the vehicle, either
applied for permanent registration as
contemplated under Section 39 of the Act
or made any application for extension of
period as temporary registration on the
ground of some special reasons. In our
view, therefore, using a vehicle on the
public road without any registration is not
only an offence punishable under Section
192 of the Motor Vehicles Act but also a
fundamental breach of the terms and
conditions of policy contract."

(emphasis supplied)

15. As per section 66 of the Act a
vehicle defined under Section 2(28) of the
Act can only be used as a "transport
vehicle" as defined under Section 2(47) of
the Act, only if it has a "permit" as defined
under Section 2(31) of the Act. Sub-section
(3) of Section 66 of the Act carves out
certain exceptions to sub-section (1).
Relevant portion of Section 66 of the Act
reads as under:

66. Necessity for permits.--(1) No
owner of a motor vehicle shall use or
permit the use of the vehicle as a transport
9 All. Oriental Insurance Co. Ltd.Vs. Smt. Roop Rani & Anr.
183
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.

(emphasis supplied)

16. Section 84 of the Act lays down
the general conditions attaching to all
permits. As per Sub-section (a) of Section
84 of the Act every vehicle having a permit
should have a valid certificate of fitness at
all times. Relevant portion of section 84
reads as under:

Section 84. General conditions
attaching to all permits. - The following
shall be conditions of every permit--

(a) that the vehicle to which the
permit relates carries valid certificate of
fitness issued under section 56 and is at all
times so maintained as to comply with the
requirements of this Act and the rules made
thereunder;

(emphasis supplied)

17. In National Insurance Co. Ltd. v.
Challa Upendra Rao, (2004) 8 SCC 517,
the Apex Court observed as under:

"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."

(emphasis supplied)

18. In Amrit Paul Singh v. TATA AIG
General Insurance Co. Ltd., (2018) 7 SCC
558 the Apex Court following Challa
Upendra Rao (supra) has held that plying
of a transport vehicle in a public place
without a permit is a fundamental breach.
Paragraph 12 of the said report being
relevant is extracted below:

"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 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. We are
disposed to think so in view of the series of
exceptions carved out in Section 66. The
said situations cannot be equated with
absence of licence or a fake licence or a
licence for different kind of vehicle, or, for
that matter, violation of a condition of
carrying more number of passengers.
Therefore, the principles laid down in
Swaran Singh and Lakhmi Chand in that
184 INDIAN LAW REPORTS ALLAHABAD SERIES
regard would not be applicable to the case
at hand. That apart, the insurer had taken
the plea that the vehicle in question had no
permit. It does not require the wisdom of
the "Tripitaka", that the existence of a
permit of any nature is a matter of
documentary evidence. Nothing has been
brought on record by the insured to prove
that he had a permit of the vehicle. In such
a situation, the onus cannot be cast on the
insurer. Therefore, the Tribunal as well as
the High Court had directed that the insurer
was required to pay the compensation
amount to the claimants with interest with
the stipulation that the insurer shall be
entitled to recover the same from the owner
and the driver. The said directions are in
consonance with the principles stated in
Swaran Singh and other cases pertaining to
pay and recover principle."
 (emphasis supplied)

19. In Ramankutty and another v.
Pareed Pillai and another, 2018 SCC
Online Ker 3542, a 5 Judge Bench of the
Kerala High Court considered the question
as to whether the absence of ''Permit' or
''Fitness Certificate' relating to a transport
vehicle is only a ''technical breach' or a
''fundamental breach'. The Bench relying
upon the dictum of the Apex Court in the
case of Challa Upendra Rao held it to be a
''fundamental breach'. Paragraphs 16, 17
and 18 of the said report is extracted below:

"16. As mentioned above, fitness
of a vehicle, to be used as a transport
vehicle, is of paramount importance. The
necessity to have ''Fitness Certificate' is
prescribed under Section 56 of the Act.
Sub-section (1) of Section 56 clearly
stipulates 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 the vehicles
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. By virtue of Section 84(a), as
mentioned already, it is a mandatory
requirement of every Permit, that the
vehicle to which the Permit relates, shall
carry valid ''Certificate of Fitness' issued
under Section 56 at all time, absence of
which will automatically lead to a situation
that the vehicle will not be deemed as
having a Permit [if it is not having a
''Fitness Certificate' on a given date].
Using a motor vehicle in an unsafe
condition in any public place itself is an
offence under Section 190 of the Act.
Separate penalty is prescribed under
Section 192 for driving or using the motor
vehicle in contravention of Section 39 of
the Act [i.e. without registration]; which at
the first instance by fine upto Rs. 5000/-
[not less than Rs. 2000/-] and for the
second or subsequent offences, it may be
with imprisonment, which may extend to
one year or fine upto Rs. 10,000/- [not less
than Rs. 5000/-] or with both; of course,
conferring power upon the Court to impose
a lesser punishment, for reasons to be
recorded. Similarly, separate punishment is
provided
for
using
vehicles
without
''Permit' as provided under Section 192A
[first offence with fine upto Rs. 5000/-
which shall not be less than Rs. 2000/- and
for
any
subsequent
offence
with
imprisonment upto one year [which shall
not be less than 3 months or with fine upto
Rs. 10,000/- which shall not be less than
Rs. 5000/-] or with both; here again
conferring power on the Court to impose
lesser punishment, for reasons to be
recorded. Reference is made to the above
provisions only to illustrate the utmost
requirement to have a valid ''Registration,
Permit and Fitness Certificate'.
9 All. Oriental Insurance Co. Ltd.Vs. Smt. Roop Rani & Anr.
185

17. Importance of the fitness/road
worthiness of a vehicle, right from the time
of registration of the vehicle, is further
discernible from Rule 47 of the Central
Motor Vehicles Rules 1989 [referred to as
Central Rules]. The said Rule deals with
application
for
registration
of
motor
vehicles, which, among other things,
stipulates that it shall be accompanied by
various documents. Under sub-rule (1)(g),
it is mandatory to produce road worthiness
certificate
in
Form
22
from
the
manufacturers [Form 22A from the body
builders].
On
completing
the
formalities/procedures,
''Certificate
of
Registration' is to be issued in terms of
Rule 48 of the Central Rules in Form
23/23A, as the case may be. The said Rule
contains a proviso, insisting that, when
Certificate of Registration pertains to a
transport vehicle, it shall be handed over to
the registered owner only after recording
the Certificate of Fitness in Form 38.
Validity of the Certificate of Fitness is only
to the extent as envisaged under Rule 62 of
the Central Rules, which mandates, as per
the proviso, that the renewal of a Fitness
Certificate shall be made only after the
Inspecting Officer or authorised Testing
Station as referred to in sub Section 1 of
Section 56 of the Act has carried out the
test specified in the table given therein.

18. 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 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 as
a fundamental breach and not a technical
186 INDIAN LAW REPORTS ALLAHABAD SERIES
breach and any interpretation to the
contrary, will only negate the intention of
the law makers.
 (emphasis supplied)

20. The facts of the present case have
to be examined in the light of the abovesettled proposition of law. The conclusion
recorded by the Tribunal clearly shows that
the accident occurred on 8.3.2011 and the
respondent no. 2 failed to establish that on
the date of accident the offending vehicle
had a valid fitness certificate. It is not the
case of the insured that the offending
vehicle was covered by any of the
exceptions mentioned in sub-section (3) of
Section 66 of the Act. In the circumstances,
in view of the settled legal position that
absence of a fitness certificate amounts to
the absence of a valid permit, the offending
vehicle, in the present case, would be
deemed to be without registration and
without a valid permit and as such the
liability cannot be imposed upon the
insurer. The impugned award directing the
appellant to pay the compensation is set
aside.

21. The question now remains as to
the direction to be issued in this case.
Doctrine of "pay and recover" was
considered by the Apex Court in the case of
National Insurance Co. Ltd. v. Swaran
Singh, (2004) 3 SCC 297. In the said case,
the Apex Court examined the liability of
the insurance company in case of breach of
policy condition and held that in case of
third-party risks, the insurer had to
indemnify
the
compensation
amount
payable to the third-party and the insurance
company may recover the same from the
insured.

22. The view expressed in Swaran
Singh (supra) has been followed by the
Apex Court in National Insurance Co. Ltd.
v. Laxmi Narain Dhut, (2007) 3 SCC 700,
Premkumari v. Prahlad Dev (2008) 3 SCC
193. In Laxmi Narain Dhutt (supra) the
Apex Court held as under:

"5. The decision in Swaran Singh
case has no application to cases other than
third-party risks and in case of third-party
risks the insurer has to indemnify the
amount and if so advised, to recover the
same from the insured."

23. In view of the above there is no
reason to deviate from the doctrine of "pay
and recover" in the present case.

24. So far as the recovery of the
amount from the owner of the vehicle is
concerned, the insurance company shall
recover as held in the decision in Oriental
Insurance Co. Ltd. v. Nanjappan, (2004) 13
SCC 224 wherein the Apex Court held as
under:

"8. ... For the purpose of
recovering the same from the insured, the
insurer shall not be required to file a suit. It
may initiate a proceeding before the
executing court concerned as if the dispute
between the insurer and the owner was the
subject-matter of determination before the
Tribunal and the issue is decided against
the owner and in favour of the insurer."

25. In view of the above discussion,
the appeal is partly allowed. The impugned
award directing the appellant to indemnify
the owner - respondent no. 2 is set aside.
The appellant is directed to pay the
compensation along with accrued interest
to
the
claimant-respondent
no.1
and
recover the same from the owner.

26. No order as to cost.
----------
9 All. H.D.F.C. EGRO General Insurance Co. Ltd. Vs. Sarthak Jain & Ors.
187
(2020)09ILR A187
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

First Appeal From Order Defective No. 1270 of
2019

H.D.F.C. ERGO General Insurance Co. Ltd.
 ...Appellant
Versus
Sarthak Jain & Ors. ...Respondents

Counsel for the Appellant:
Sri Sushil Kumar Mehrotra

Counsel for the Respondents:
Sri Vidya Kant Shukla, Sri Vipin Chandra
Dixit

A. Civil Law -Motor Accident Claim -
Defects in vehicle fitness certificate - Question
never pressed before the tribunal - No issue has
been framed regarding this point of vehicle
fitness certificate and the route permit of the
truck - No evidence has been led by the
Insurance Company to prove that there was
sufficient evidence and the tribunal failed to
consider the same - Held, No such issue can be
framed in appeal. (Para 18 and 19)

B. Civil Law -Motor Accident Claim - 100%
Disability - Computation of Compensation -
Factors required to be considered - If the
person dies, it comes as a cyclonic blow to the
family that everybody seems to be ruined for a
moment but gets recovered with the passage of
time - But in a case of injury if a person is
reduced to a stage where he is completely bed
ridden and not able to speak, nor eat himself
and half of the body is paralysed then it causes
death everyday to the members of the family -
It is not a death of one person but it reduces
the entire family to go under the trauma every
moment of every hour, every day and such a
situation can be said to be the worse than that
of a death of a person - Court found no error in
award. (Para 20)

Appeal dismissed. (E-1)

Cases relied on :-

1. Babli Dixit & anr. Vs Satendra Kumar, 2018
SCC Online (Del)13153
2. M.R. Krishna Murthi Vs The New India
Assurance Company Ltd. & ors. AIR (2019) SC
5625
3. Raj Kumar Vs Ajai Kumar & anr. (2011)1 SCC,
343
4. H.D.F.C Ergo General Insurance Co. Ltd. Vs
Rattan Kumar Dwivedi (2017) SCC Online, Delhi
9874
5. United India Insurance Company Ltd. Vs
Anita (2017) SCC Online Delhi 11152
6. Municipal Corporation of Delhi Vs Association
of Victims of Uphaar Tragedy (2011)17SCC 481

(Delivered by Hon'ble Ramesh Sinha, J.
Hon'ble Ajit Kumar, J.)

1. Heard Sri Sushil Kumar Mehrotra,
learned counsel for the appellant and Sri
Vidya Kant Shukla, learned Counsel for the
Claimant-respondent no.1.

2. This First Appeal From order is
directed against the award dated 6.7.2019
passed by the Motor Accident Claims
Tribunal/Additional District Judge, Court
No.13, Meerut allowing the claim petition
of the claimant-respondent no.1, bearing
number 524 of 2020 for compensation of
Rs.66,39,947/-.

3. Briefly stated facts of the case are
that the injured Sarthak Jain met with an
accident on 2.5.2017 with a truck while he
was driver upon a motorcycle of his friend
Pranay Bist and the injured was moving in
a right direction to the left of the road