IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 MACA.No. 1811 of 2008() ------------------------------------ OPMV.255/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): RESPONDENT NO.1 ----------------------------- THE SECRETARY, ERUMELY GRAMA PANCHAYATH, ERUMELY.P.O. BY ADV. MR.MOHAN JACOB GEORGE RESPONDENT(S): PETITIONER/ RESPONDENTS 2 & 3 ------------------------- 1. KUTTAPPAN, S/O. LATE RAMAN, POOTHIYOTTU HOUSE, KARIMKALLUMMOZHY, ERUMELY.P.O. 2. THOMAS VARGHESE @ RONI, S/O. VARGHESE, KAVUMKAL HOUSE, POTHICKAKAVU, KANAKAPPALAM.P.O. 3. THE ORINETAL INSURANCE CO. LTD., BRANCH OFFICE, KANIRAPPALLY. R1 BY ADVS. MR.P.C.HARIDAS R3 BY MR.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.1811 OF 2008 ............................................. Dated this the 15th day of October, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Pala in OP(MV)No.255/2006. While the claimant was walking along the side of a road, a tractor ran over his right foot resulting in injuries to him. After consideration of the entire materials, the Tribunal awarded a compensation of Rs.85,480/= and directed the insurance company to pay the amount and granted power to the said company, to recover it from the first respondent herein. It is against that decision, the first respondent has come up in appeal. 2. Admittedly, the tractor belongs to a panchayat. It was attached with a tailor. It was being used for the purpose of taking garbage in the process of clearing and cleaning the city. When the vehicle was on such a movement, it had caused the accident resulting in injuries to the claimant. Had it been a tractor alone, it will not become a goods carriage but it was attached with a tailor. Now it is fairly : 2 : M.A.C.A.NO.1811 OF 2008 settled that the tractor with the tailor would satisfy the definition of a transport vehicle as contemplated under the provisions of the Motor Vehicles Act. Under Section 2(47), transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. A goods carriage means any motor vehicle constructed or adapted for use solely for the carriage of goods. The word trailer also is defined under the Motor Vehicles Act. Trailer means any vehicle other than a semi trailer and a side car, drawn or intended to be drawn by a motor vehicle. Section 61 of the Motor Vehicles Act specifically deals with the question whether trailers require registration. Under Section 61, the provisions of the chapter shall apply to the registration of the trailers as they apply to the registration of any other motor vehicle. Under Section 59 of the Motor Vehicles Act subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purpose of Section 39 unless it carries a certificate of fitness. So, when a trailer is to be registered, then naturally Section 59 also will come : 3 : M.A.C.A.NO.1811 OF 2008 into operation. Therefore it has to be stated that it requires fitness certificate as contemplated under Section 56 of the Motor Vehicles Act. Since it is a tractor with a trailer attached to it and to be used as a goods carriage vehicle for the removal of garbage, it satisfies the definition of a transport vehicle which has to satisfy the mandatory conditions of Sections 56 and Section 39 of the Motor Vehicle Act. Therefore the fitness certificate is a must. 3. The learned counsel relying upon the decision of National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) contended that the burden is squarely on the insurance company to prove there was no fitness certificate and in the absence of the same it has to be held otherwise. I feel, the very memorandum of appeal is an answer to the argument. In Para 5, it is specifically stated that the vehicle was insured with out any insistence of fitness certificate. The insurance company did not insist for any fitness certificate at the time of insuring the vehicle. So, if really a fitness certificate was available that would have been made mention of and non- insistence and non-production of it at : 4 : M.A.C.A.NO.1811 OF 2008 that time clearly goes to show that no fitness certificate is obtained for this vehicle. When no fitness certificate is obtained for a vehicle, whether mere absence of a fitness certificate is sufficient to constitute fundamental breach of the terms of the insurance policy is the next question. A fitness certificate is intended to be taken for the public vehicle in order to ensure safety to the public at large. A fitness certificate means a certificate which shows that the vehicle is in a road worthy plying condition satisfying the ingredients necessary under the Motor Vehicles Act, thereby indirectly giving precaution to the safety of the users of the road. So, when a fitness certificate is not there it has to be stated that the road worthy condition of the vehicle is not said to be established and it becomes a fundamental breach so as to hold that it is the reason for the cause of accident as well. Therefore, from these discussions, I hold that vehicles require fitness certificate and absence of the same amounts to fundamental breach of the policy conditions and therefore the insurance company on satisfaction of the award is entitled to get : 5 : M.A.C.A.NO.1811 OF 2008 reimbursement of the amount from the owner namely the appellant in this case. That is what is precisely done by the Claims Tribunal and it does not suffer from any infirmity and the appeal fails and therefore is dismissed. M.N.KRISHNAN, JUDGE cl