IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 MACA.No. 386 of 2010() ---------------------- OPMV.833/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 3RD RESPONDENT IN OP(MV) NO.833/07 ------------------------------------------------ NATIONAL INSURANCE COMPANY LTD., PALA BRANCH, REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM. REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION, KOCHI-682 035. BY ADV. SRI.LAL GEORGE RESPONDENT(S): CLAIMANT AND RESPONDENTS IN OP(MV) 833/2007 ---------------------------------------------------------- 1. NOEL.J., (MINOR), S/O.JOHNY, KUNNAPPALLIL HOUSE, ELIKKULAM KARA, ELIKKULAM VILLAGE, REP.BY FATHER JOHNY AUGUSTINE, KUNNAPPALLIL HOUSE ELIKKULAM KARA, ELIKKULAM VILLAGE. 2. SEBASTIAN, S/O.AUGUSTY, KUNNAPPALLIL HOUSE, ELIKKULAM KARA & VILLAGE. 3. ROSAMMA, W/O.SEBASTIAN, KUNNAPPALLIL HOUSE, ELIKKULAM KARA & VILLAGE. ADV. SRI.SHAJI THOMAS PORKKATTIL FOR R2-3 SRI.T.V.VINU FOR R2-3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2010, ALONG WITH MACA NO. 387 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.545 OF 2010 IN MACA NO.386 OF 2010 DISMISSED 30.3.2010. SD/= M.N. KRISHNAN, JUDGE. /TRUE COPY/ P.A TO JUDGE cl M.N. KRISHNAN, J. ........................................... M.A.C.A.Nos.386 & 387 OF 2010 ............................................. Dated this the 30th day of March, 2010. J U D G M E N T Both these appeals are preferred on a common point against the award passed in O.P.(MV)Nos.833/2007 and 322/2007 of the Claims Tribunal, Pala. The tribunal granted Rs.18,000/= as compensation in O.P.(MV)No.833/2007 and Rs.34,500/= in O.P.(MV)No.322/2007. The question that had arisen for consideration in these appeals are whether without proper fitness certificate a vehicle can be plied and if so, whether it will amount to breach of the policy conditions and whether it will exonerate the insurance company from the liability. The matter has been dealt with in para 8 of the award by the tribunal . The tribunal held that there is valid permit and registration. 2. It is contended by the insurance company that there was no fitness certificate and in the absence of fitness certificate it has to be held that there is violation of the policy conditions which will entitle the insurance company to raise a defence under Section 149 of the M.V.Act. The : 2 : M.A.C.A.Nos.386 & 387 OF 2010 learned counsel also had brought to my notice the decision of a Division Bench of this Court reported in Thara v. Syamala (2009 (2) KLT 707). In that case, the Division Bench held that “a goods carriage can be used on the road for carrying goods only after obtaining permit and use of vehicle without fitness certificate or permit will entitle insurer to dishonour liability under policy”. 3. So the question to be decided is regarding the absence of fitness certificate. In the tribunal, a petition was moved for production of the fitness certificate. But it was not produced. The impact of the same was not considered by the tribunal. 4. I am conscious of the fact that as per the present trend of decisions, the insurance company has to produce documents from the concerned Regional Transport Authority regarding the existence or non-existence of fitness certificate. If the owner enters appearance and produces the same, that will be the end of it, otherwise, the insurance company has to take steps and get it produced before the tribunal. So an opportunity can be given being a : 3 : M.A.C.A.Nos.386 & 387 OF 2010 material defence for the insurance company. 5. Therefore the award under challenge is set aside so far as it relates to the inter se liability is concerned with a permission to all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the tribunal on 28.4.2010. If amount is already not disbursed, let that amount be in court deposit till a final decision is taken in the matter. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A.Nos.386 & 387 OF 2010