GULAM YASIN MIRZA Vs. VAJESINGBHAI KESARISING 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 22/02/1981 a boy aged about 8 years met with a fatal accident by hit of one truck bearing R.T.O. registration No. G.T.B. 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. 9999.00 from the driver, the owner and the insurer of the offending vehicle. They were arraigned in the proceeding as Opponents 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. 10,000.00, 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 20/02/1982, accepted the claim petition to the extent of Rs. 8,000.00 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 Civil Appeal before this Court challenging the correctness of the judgment and order passed by the lower Tribunal.

(3.) The ground on which the lower Tribunal has chosen not to fasten the liability of the claim with the insurer was that the insured owner of the offending vehicle did not possess on the date of the accident the fitness certificate for roadworthiness of the offending vehicle and also the permit for plying his transport vehicle. Shri Sanjanwala for the appellant has submitted that the defence based on absence of the certificate of roadworthiness of the offending vehicle or absence of any permit to ply it on the road is not available to the insurer under Sec. 96(2) of the Motor Vehicles Act, 1939 ('the Act' for brief). According to Shri Sanjanwala, if the owner of the transport vehicle did not have any permit as required under Sec. 22 of the Act, he would incur a penal liability under Sec. 123 thereof, but that does not furnish any ground to the insurer to avoid his liability under the contract of insurance as provided in the Act. Shri Gehani on the other hand has submitted that the insurer can certainly take up a defence in answer to the notice of the claim petition served to him based on the ground that the vehicle in question did not possess any roadworthiness certificate or did not possess the necessary permit for plying it on the road.