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
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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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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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