AUGUSTINE V.M. Vs. AYYAPPANKUTTY AND ORS.

JUDGEMENT

(1.) These appeals are before us as per two separate orders of reference by the Division Bench concerned before which, these appeals came up for consideration. MACA No. 2507 of 2010 is against the award passed by the Motor Accident Claims Tribunal, Perumbavoor in OP (MV) No. 73 of 2007. The appellant is the registered owner of the vehicle involved in a road traffic accident. Respondents 1 to 4 are the legal heirs of deceased Joseph, the victim. They preferred the claim petition before the Tribunal alleging that the deceased was knocked down by the vehicle owned by the appellant while the driver negligently backed up the vehicle. According to them, the accident occurred due to the negligence of the driver, the 5th respondent in the appeal. The offending vehicle involved in the accident was insured with the 6th respondent. The 6th respondent insurer raised a contention before the Tribunal that the insurer is entitled to take up the defence under Section 149(2)(a)(i)(c) of the Motor Vehicles Act as the validity of the certificate of fitness of the vehicle driven by the 5th respondent stood expired on the date of the accident. The said plea of the insurance company was accepted by the learned Tribunal and accordingly, though the insurance company was directed to pay the amount, its right to recover the same from the appellant, who is the insured was reserved. It is this finding, which is under challenge in this appeal.

(2.) MACA No. 2526 of 2009 arises out of the award of the Motor Accidents Claims Tribunal, Pala in OP (MV) No. 216 of 2006. This appeal is filed by the owner-cum-driver of the offending vehicle. The claim petition was preferred by the 1st respondent herein alleging that while he was walking along the side of Kollappally-Kadanadu road, a jeep owned and driven by the appellant knocked him down. The claimant alleged that the accident occurred due to the negligence of the appellant. The appellant remained ex parte before the Tribunal. The 2nd respondent, the insurer of the vehicle, while admitting the policy of the offending vehicle took up the contention that in the absence of permit and fitness certificate for the vehicle, there was violation of policy condition and, therefore, the insurance company is not liable to indemnify the owner of the compensation paid to the claimant. The insurer also filed an IA before the Tribunal for a direction to the appellant to produce the fitness certificate, and it was allowed. However, the appellant did not produce the same before the Tribunal. Drawing adverse inference against the appellant in view of his said default, the learned Tribunal directed the insurance company to pay compensation to the claimant reserving its right to recover the same from the appellant, the registered owner. It is this finding that the appellant is challenging in this appeal.

(3.) When MACA No. 2507 of 2010 came up for consideration before the Division Bench concerned, the Division Bench expressed the view that although absence of permit would attract Section 149(2)(a)(i)(c), it is not clear as to whether the absence of a valid fitness certificate would be sufficient to absolve the insurance company from its liability. The Division Bench also observed that a contrary view was taken by another Division Bench of this Court in Thara v. Syamala, 2009 2 KerLT 707 wherein it was held that absence of a fitness certificate was a valid ground to absolve the insurance company from the liability to indemnify the owner under Section 149(2)(a)(i)(c). Therefore, the Division Bench felt that it would be appropriate to refer the matter for the decision of a Full Bench under Section 4 of the Kerala High Court Act. This is how, this appeal is now placed before us.