PAREED PILLAI Vs. ORIENTAL INSURANCE CO. LTD.

JUDGEMENT

(1.) Does the law declared by a Full Bench of this Court in Augustine Vs. Ayyappankutty, 2015 (2) KLT 139 stand correct, in declaring that absence of'Permit' or 'Fitness Certificate' to the transport vehicle is only a 'technical breach' and not a ' fundamental breach', in so far as it stands contrary to the law declared by the Apex Court in National Insurance Company Vs. Challa Barathamma, 2004 (3) KLT 454 [name of the case has been subsequently corrected as per the Official Corrigendum No. F.3/Ed.B.J./96/2004 dated 01.12.2004] as National Insurance Company Vs. Challa Upendra Rao, (2004) 8 SCC 517 . For having not made even a reference to the decision of the Apex Court is not above verdict liable to be declared as 'per incuriam'? Has the Full Bench considered all the relevant provisions under the Motor Vehicles Act, 1998, as to the necessity for having a 'Fitness Certificate' to the vehicle (in view of the public J safety), the necessity to have valid 'Permit', necessity to have 'Certificate Registration, to ply a vehicle and deemed absence of registration if the vehicle is not having a valid permit/fitness certificate as envisaged under Sec. 56 of the M. V. Act?

(2.) The main point involved in these cases is with regard to the 'right of recovery' given/not given in favour of the Insurance Company, after meeting the liability towards the claimants, for the reason that the vehicle concerned was not having a valid 'Permit' or 'Fitness Certificate', as the case may be.

(3.) MACA No. 2030 of 2015 has been filed by the insured/owner contending that expiry of 'Fitness Certificate' to the goods carriage (lorry bearing No. KL 8 Z 1627) involved is not a 'fundamental breach' on the part of the insured/owner, to have granted the right of recovery in favour of insurer. MACA No. 2641 of 2015 is filed by the very i same insured/owner, raising similar contention in respect of the Award passed by the Tribunal in the connected case i.e. O.P. (M.V) No. 862 of 2007, which was jointly tried and decided along with O.P. (M.V) No. 21 of 2008 involved in the former appeal. In MACA No. 1414 of 2013, the claimants in respect of the very same accident [which was the subject matter of O.P. (M.V) No. 2\ of 2008 of the M ACT, Iringalakkuda] seek for enhancement of compensation. MAC No 2202 of 2015 has been filed by the Insurance ; Company, on various grounds, challenging the liability mulcted upon them, despite the denial of existence of valid policy; that the driver was not having valid driving licence; and that the concerned auto-rickshaw was having no valid 'Permit' or even a 'Fitness Certificate'.