ALAM YASIN MIRZA Vs. V.K. MAKWANA

JUDGEMENT

(1.) THE short question arising in this appeal is whether or not the insurance company can escape its liability under the pretext that the insured did not have a valid permit for plying his transport vehicle and that the insured did not have in his possession the certificate of fitness as to its roadworthiness on the date of the accident more particularly when that was found to be the position on the date of issuance of the policy of insurance.

(2.) THE facts giving rise to the present appeal may be summarised thus: On 22nd February, 1981, a boy aged about 8 years met with a fatal accident by hit of one truck bearing R.T.O. registration No. GTB 4205 ('the offending vehicle' for convenience) belonging to the appellant and driven by respondent No. 3 at the relevant time. The parents of the deceased victim of the accident filed their claim petition before the Motor Accidents Claims Tribunal (Main) at Surat ('the Tribunal' for convenience) claiming the damages in the sum of Rs. 9,999/ - from the driver, the owner and the insurer of the offending vehicle. They were arraigned in the proceeding as opponent Nos. 1, 2 and 3 respectively. The claim petition was registered as Motor Accidents Claims Petition No. 258 of 1981. Since the claim was below Rs. 10,000/ -, it was ordered to be decided on affidavits and on the basis of the documentary evidence that may be produced on record. The necessary affidavits were filed by and on behalf of the parties in the proceeding. The necessary documentary evidence was also produced. After hearing the parties, the Tribunal, by its judgment and order passed on 20th February, 1982, accepted the claim petition to the extent of Rs. 8,000/ - and ordered its recovery from the driver and the owner of the offending vehicle and not from its insurer. The aggrieved owner of the offending vehicle has thereupon preferred this First Appeal before this Court challenging the correctness of the judgment and order passed by the lower Tribunal.

(3.) SECTION 96 (2) of the Act enumerates several defences available to the insurer of the vehicle involved in the accident covered by the contract of insurance in answer to the notice of the claim petition served to him. These defences relate to cancellation of the contract, to use of the vehicle contrary to a permit or for organised racing and speed testing, or for a purpose not allowed by the permit, or its driving by some person not holding a driving licence or not qualified to hold a licence or concealment of a material fact or representation of the fact which was false in some material particular at the time of obtaining the insurance coverage. No defence on the ground of absence of any certificate of fitness of the vehicle in question or absence of any permit for plying it on the road by itself is available to the insurance company under Section 96 (2) of the Act. Absence of any permit for plying a vehicle or absence of any certificate of fitness as to its roadworthiness can be a ground of defence provided the case is made out that this factual position was concealed at the time of obtaining the insurance coverage with respect to the vehicle in question. It was the case of the insurance company before the lower Tribunal that material particulars with respect to absence of the permit to ply the vehicle in question on the road or absence of any certificate of fitness as to its roadworthiness were concealed by the insured at the time of obtaining the insurance coverage with respect to the vehicle in question from the insurance company. No such was taken in the written statement filed by and on behalf of the insurance company in the proceedings before the lower Tribunal. The use of the vehicle in question contrary to its permit is different from absence of such permit. The use of the vehicle in question contrary to the permit is a ground of defence. It cannot be equated with absence of any such permit. I am, therefore, of the opinion that such defence by itself is not available to the insurer of the vehicle in question, and as such it ought not to have been used by the lower Tribunal to allow the insurance company to escape its liability with respect to the claim awarded to the claimants in the case.