IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 MACA.No. 1218 of 2009(D) ----------------------------- OPMV.228/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 2ND RESPONDENT ---------------------------------------- V.M.ANTHRAYOSE, VARIKKAMAKKAL HOUSE, VELLOOR P.O., PAMPADY, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): PETITIONER/RESPONDENTS 1 AND 3 IN OP(MV) --------------------------------------------------------------------------- 1. TONY THOMAS, THOZHUTHUNKAVALAYIL HOUSE, VANCHIMALA P.O., KALAKETTY, KANJIRAPPALLY. 2. VARGHESE JOHN, PULICKAL HOUSE, CHAMAMPATHAL P.O., VAZHOOR, KOTTAYAM. 3. UNITED INDIA INSURANCE CO.LTD., KOTTAYAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1218 OF 2009 = = = = = = = = = = = = = = = Dated this the 19th day of October, 2009. J U D G M E N T This appeal is preferred by the owner of the vehicle against the order of the Motor Accidents Claims Tribunal, Pala in O.P.(MV)228/05 directing the owner to reimburse the amount to the insurance company for plying the vehicle without a fitness certificate. The insurance company did raise the very specific contention that there was no fitness certificate for the vehicle but moved an application as I.A.3262/07 to call upon the 2nd respondent to produce the fitness certificate and the same was allowed. The 2nd respondent, owner was given innumerable number of opportunities but he did not produce the certificate. Ultimately R.T.O, Kottayam was summoned and he filed an affidavit stating that records had been destroyed in consonance with the Record Destruction Rules of the Motor vehicles Department and he is unable to say whether the M.A.C.A. 1218 OF 2009 -:2:- vehicle had a valid fitness certificate or not. What else can an insurance company do in a case of this nature. The person who is to be in possession of the fitness certificate is the owner. The owner has been requested to produce the certificate, the owner did not. The R.T.O. Had filed an affidavit. He cannot say whether it is there on account of the fact records have been destroyed as per the destruction rules. So a person who has knowledge of a thing that whether the vehicle is having fitness certificate or not has necessarily to comply and produce the same in a case of this nature. It is true that the responsibility prima facie lies upon the insurance company. Insurance company has got only limited methods of proving the same and therefore it had adopted that method and directed the owner to produce the witness certificate. So it had discharged its prima facie responsibility and now the person who is in the particular knowledge of a particular fact had failed to prove the same. Therefore it has to be held that the owner has failed to prove the existence of a valid fitness certificate for the vehicle. M.A.C.A. 1218 OF 2009 -:3:- Learned counsel very strongly contends before me that the accident is of the year 1995 and the claim petition is filed in the year 2005 and in the meanwhile the owner has sold the vehicle to a third person and therefore he is also helpless. Unfortunately the legislature by its own wisdom has taken away the time limit for filing the application and when a vehicle is sold and situation arises he should have made at least an attempt to see whether there was valid fitness certificate or not. It is also not done by him. The absence or production of a fitness certificate is very serious matter especially in the present scenario for the reason that some of the drivers have no regard for road safety and the statute mandates that the road worthy condition of a vehicle has to be established and it can be be established only by producing the fitness certificate. Therefore I cannot disagree with the finding of the Tribunal in holding that the insurance company is liable to be reimbursed for the breach of fundamental policy conditions as contemplated under the Act. So the appeal is devoid of merits and the same is dismissed. But the M.A.C.A. 1218 OF 2009 -:4:- insurance company may wait for two more months to enable the appellant to pay the amount and then take steps for revenue recovery. M.N. KRISHNAN, JUDGE. ul/-