High Court Kerala High Court

National Insurance Company Ltd vs Noel.J. on 30 March, 2010

Kerala High Court
National Insurance Company Ltd vs Noel.J. on 30 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 386 of 2010()


1. NATIONAL INSURANCE COMPANY LTD.,
                      ...  Petitioner

                        Vs



1. NOEL.J., (MINOR), S/O.JOHNY,
                       ...       Respondent

2. SEBASTIAN, S/O.AUGUSTY,

3. ROSAMMA, W/O.SEBASTIAN,

                For Petitioner  :SRI.LAL GEORGE

                For Respondent  :SRI.SHAJI THOMAS PORKKATTIL

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :30/03/2010

 O R D E R
                      M.N. KRISHNAN, J.
                   ...........................................
                M.A.C.A.Nos.386 & 387 OF 2010
                  .............................................
              Dated this the 30th day of March, 2010.

                         J U D G M E N T

Both these appeals are preferred on a common point

against the award passed in O.P.(MV)Nos.833/2007 and

322/2007 of the Claims Tribunal, Pala. The tribunal granted

Rs.18,000/= as compensation in O.P.(MV)No.833/2007 and

Rs.34,500/= in O.P.(MV)No.322/2007. The question that had

arisen for consideration in these appeals are whether

without proper fitness certificate a vehicle can be plied

and if so, whether it will amount to breach of the policy

conditions and whether it will exonerate the insurance

company from the liability. The matter has been dealt with

in para 8 of the award by the tribunal . The tribunal held that

there is valid permit and registration.

2. It is contended by the insurance company that there

was no fitness certificate and in the absence of fitness

certificate it has to be held that there is violation of the

policy conditions which will entitle the insurance company to

raise a defence under Section 149 of the M.V.Act. The

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learned counsel also had brought to my notice the decision

of a Division Bench of this Court reported in Thara v.

Syamala (2009 (2) KLT 707). In that case, the Division

Bench held that “a goods carriage can be used on the road

for carrying goods only after obtaining permit and use of

vehicle without fitness certificate or permit will entitle

insurer to dishonour liability under policy”.

3. So the question to be decided is regarding the

absence of fitness certificate. In the tribunal, a petition

was moved for production of the fitness certificate. But it

was not produced. The impact of the same was not

considered by the tribunal.

4. I am conscious of the fact that as per the present

trend of decisions, the insurance company has to produce

documents from the concerned Regional Transport Authority

regarding the existence or non-existence of fitness

certificate. If the owner enters appearance and produces

the same, that will be the end of it, otherwise, the

insurance company has to take steps and get it produced

before the tribunal. So an opportunity can be given being a

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M.A.C.A.Nos.386 & 387 OF 2010

material defence for the insurance company.

5. Therefore the award under challenge is set aside so

far as it relates to the inter se liability is concerned with a

permission to all concerned to produce documentary as well

as oral evidence in support of their respective contentions

and then dispose of the matter in accordance with law.

Parties are directed to appear before the tribunal on

28.4.2010. If amount is already not disbursed, let that

amount be in court deposit till a final decision is taken in

the matter.

Disposed of accordingly.

M.N. KRISHNAN, JUDGE

cl

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