CMA.No.781 of 2024

THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.03.2024

CORAM:

THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN

AND

THE HONOURABLE MR. JUSTICE R.SAKTHIVEL

C.M.A.No.781 of 2024

and

C.M.P.No.7285 of 2024

The Commissioner,

Tiruppur Municipality,

Tirupur – 641 601. ... Appellant

Vs.

1.K.Marayammal

2.P.Duraisamy

3.The New India Assurance Co. Ltd.,

Post Box No.47,

Kumaran Shopping Complex,

Kumaran Road, Tiruppur – 641 601. ... Respondents

Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor

Vehicles Act, 1988 to set aside the judgment and decree dated 08.03.2023

made in MCOP.No.1625 of 2016 on the file of the learned Motor Accident

Claims Tribunal, Tirupuur.

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CMA.No.781 of 2024

For Appellant : Mr.D.R.Arun Kumar

For R1 : Mr.P.Dinesh Kumar

for K.Myilsamy for R1

For R3 : Mr.S.P.Chockalingam

*******

J U D G M E N T

(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)

The Municipality, which is the owner of the offending lorry is on

appeal, aggrieved by the award of a sum of Rs.16,96,000/- for the death of

one Murugesh @ Murugesan in a road accident that took place on

04.08.2016 at about 1.45 p.m.

2. The sole claimant, who is the paternal grandmother of the deceased

sought for a compensation for the death of the said Murugesan contending

that the parents of the deceased had pre-deceased him and she has been

declared as the legal heir of the deceased in O.S.No.35 of 2017 on the file of

the District Munsif Court, Kodumudi vide judgment and decree dated

28.11.2017. She had also contended that she was depending on the

deceased, he being the only earning member in the family. The claim for

compensation was quantified at Rs.45,00,000/- and the same was justified

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CMA.No.781 of 2024

by claiming that the deceased was earning Rs.20,000/- through his

avocation as a Company labour.

3. Narrating as to how the accident occurred the claimant submitted

that on 04.08.2016 at about 1.45 p.m, when the deceased Murugesan was

travelling as a pillion rider in the motorcycle bearing Reg.No.TN-47-W-

1924 in front of Kasipalayam, Sri Karupparayan Kovil, from the North to

South direction, the Municipal lorry bearing Reg.No.TN-39-AJ-5278 driven

by its driver in a rash and negligent manner came from behind and hit

against the two-wheeler, in which the deceased was travelling. As a result

of the impact, the deceased was thrown off the vehicle and he died

instantaneously.

4. The Municipality resisted the claim contending that the accident

did not occur in the manner suggested by the claimant and the deceased was

responsible for the accident. It was the case of the Municipality that the

lorry was parked for loading the garbage, the deceased drove the motorcycle

in a rash and negligent manner and dashed against the lorry from behind.

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CMA.No.781 of 2024

5. The Insurance Company apart from resisting the claim on merits,

contended that since the lorry in question which was insured with it did not

have a valid fitness certificate, it ought not to have been on the road,

therefore in view of Section 39 read with Section 56 of the Motor Vehicles

Act, there being a statutory violation of the policy condition, the Insurance

Company cannot be made liable.

6. The Tribunal rejected the claim of the Municipality on negligence

and held that the accident occurred due to the rash and negligent driving of

the lorry. It based its conclusion on negligence on the FIR, charge sheet, the

observation magazar and rough sketch, which were marked as Exs.P1 to P4.

The Tribunal dis-believed the evidence of RW2, the driver of the lorry.

7. On the liability of the Insurance Company, the Tribunal concluded

that since this vehicle did not have a fitness certificate, the Insurance

Company was not liable to pay the compensation. On the said conclusion

while exonerating the Insurance Company, the Tribunal awarded a sum of

Rs.16,96,200/- adopting the notional income at Rs.11,000/-, adding 40%

towards future prospects, deducting one half towards his personal expenses

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and awarding a sum of Rs.33,000/- towards funeral expenses and loss of

estate at Rs.16,500/- under each heads. Thus, the total compensation was

awarded at Rs.16,96,200/-. Aggrieved, the Municipality is on appeal.

8. We have heard Mr.D.R.Arun Kumar, learned counsel appearing for

the appellant, Mr.P.Dinesh Kumar, learned counsel appearing for the 1

st

respondent and Mr.S.P.Chockalingam, learned counsel appearing for the 3

rd

respondent.

9. Mr.D.R.Arun Kumar, learned counsel appearing for the appellant/

Municipality would vehemently contend that the quantum of compensation

awarded is excessive, inasmuch as the Tribunal has assumed the notional

income at Rs.11,000/- per month for the accident that has taken place in the

year 2016. According to him, anything between Rs.8,000/- and Rs.10,000/-

should have been the notional income. On the liability, the learned counsel

would submit that the absence of fitness certificate for a temporary period

will not absolve the Insurance Company from its liability to indemnify the

insured. The learned counsel would draw our attention to the judgments of

the Division Bench of Karnataka High Court in Dr.Narasimulu Nandini

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Memorial education Trust Vs. Banu Begum and others made in

Miscellaneous First Appeal No.202022/2016 and Nithya Venkatesh and

others Vs. National Insurance Co. Lt.d, and another made in

MFA.No.5993 of 2015 (MV).

10. Contending contra Mr.P.Dinesh Kumar, learned counsel appearing

for the claimant would submit that assumption of Rs.11,000/- as monthly

income in the year 2016 itself is too low. He would point out that the

deceased was a resident of Tirupur, where there are so many industries,

particularly knitting industries with huge opportunities for employment and

labour force was always in demand. Therefore, he would also require us to

take judicial notice of the fact that Tirupur is one of the Industrial Towns

and heart of knitting Industry and the labourers are paid more. He would

also point out that no amount was awarded under the head of loss of love

and affection for the grandmother.

11. Mr.S.P.Chockalingam, learned counsel appearing for the 3

rd

respondent/ Insurance Company would submit that in view of the provisions

of Section 56 and Section 39 of the Motor Vehicles Act a vehicle which

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requires the fitness certificate ought not to be put on road without it. This

violation is a fundamental breach of the policy condition, which would

absolve the Insurance Company of its liability. The learned counsel would

also point out that this Court in V.Ranganayaki Vs. A.Praveen and others

made in CMA.No.113 of 2015 decided on 04.11.2020 concluded that it is

the duty of the owner of the vehicle to comply with all the statutory

requirements and any breach thereof would absolve the Insurance Company.

12. The learned counsel would also draw our attention to the

judgment of the Hon'ble Supreme Court in Amrit Paul Singh and othes Vs.

Tata AIG General Insurance Co. Ltd. And others reported in AIR 2018 SC

2662. He would further submit that the Hon'ble Supreme Court after

examining the provisions of the Motor Vehicles Act concluded that use of

vehicle in a public place without permit is fundamental statutory infraction

and the same cannot be equated with the absence of license or fake license

or license for different kind of vehicle. The learned counsel would point out

that the Hon'ble Supreme Court had made a distinction between the

fundamental statutory infraction and a regular infraction of the Rules, in

order to sustain the conclusion of the High Court that the Insurance

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Company is absolved of the liability when there is a fundamental statutory

infraction.

13. We have considered the rival submissions.

14. On the contentions of the learned counsel on either side, the

following points arise for determination in this appeal:

1) Whether the quantum of compensation is just and

reasonable.

2) Whether the Tribunal was right in absolving the

Insurance Company of the liability.

Point No.1:-

15. On the first point we do not think the appellant has made out a

case for interference. The deceased was aged about 22 years. His parents

had died ahead of him. He was residing with his grandmother and

supporting her. As we had already pointed out the deceased was living in

Tirupur, which is an Industrial Town, known for knitting industry and wages

in Tirupur are always higher than wages in other places. The accident

occurred in 2016. Therefore, we are not able to fault the Tribunal for fixing

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the monthly notional income at Rs.11,000/- and adding 40% toward future

prospects. One half of the income has been deducted towards personal

expenses, which is also in tune with the decision of the Hon'ble Supreme

Court. Though the Tribunal has granted Rs.16,500/- each towards funeral

expenses and loss of estate, it has not granted any amount towards loss of

love and affection. We therefore do not think we can interfere with the

quantum of compensation.

Point No.2:-

16. On the second point regarding liability of the Insurance Company,

we find that the fact that the vehicle did not have a fitness certificate on the

date of the accident is admitted. If we are to look at the consequence of the

absence of the fitness certificate, Section 56 provides the consequence and it

reads as follows:-

56. Certificate of fitness of transport vehicles. - (1)

Subject to the provisions of sections 59 and 60, a transport

vehicle shall not be deemed to be validly registered for the

purposes of section 39, unless it carries a certificate of fitness

in such form containing such particulars and information as

may be prescribed by the Central Government, issued by the

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prescribed authority, or by an authorized testing station

mentioned in sub-section (2), to the effect that the vehicle

complies for the time being with all the requirements of this Act

and the rules made thereunder:

Provided that where the prescribed authority or the

authorized testing station refuses to issue such certificate, it

shall supply the owner of the vehicle with its reasons in writing

for such refusal.[Provided further that no certificate of fitness

shall be granted to a vehicle, after such date as may be notified

by the Central Government, unless such vehicle has been tested

at an automated testing station.]

(2) The "authorised testing station" referred to in sub-

section (1) means any facility, including automated testing

facilities, authorised by the State Government, where fitness

testing may be conducted in accordance with the rules made by

the Central Government for recognition, regulation and control

of such stations.

(3)Subject to the provisions of sub-section (4), a

certificate of fitness shall remain effective for such period as

may be prescribed by the Central Government having regard to

the objects of this Act.

(4)The prescribed authority may for reasons to be

recorded in writing cancel a certificate of fitness at any time, if

satisfied that the vehicle to which it relates no longer complies

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with all the requirements of this Act and the rules made

thereunder; and on such cancellation the certificate of

registration of the vehicle and any permit granted in respect of

the vehicle under Chapter V shall be deemed to be suspended

until a new certificate of fitness has been obtained:[Provided

that no such cancellation shall be made by the prescribed

authority unless,

-(a)such prescribed authority holds such technical

qualification as may be prescribed by the Central Government

and where the prescribed authority does not hold the technical

qualification, such cancellation is made on the basis of the

report of an officer having such qualification; and

(b)the reasons recorded in writing cancelling a

certificate of fitness are confirmed by an authorised testing

station chosen by the owner of the vehicle whose certificate of

fitness is sought to be cancelled:Provided further that if the

cancellation is confirmed by the authorised testing station, the

cost of undertaking the test shall be borne by the owner of the

vehicle being tested and in the alternative by the prescribed

authority.]

(5)A certificate of fitness issued under this Act shall,

while it remains effective, be valid throughout India.

(6) All transport vehicles with a valid certificate of

fitness issued under this section shall carry, on their bodies, in

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a clear and visible manner such distinguishing mark as may be

prescribed by the Central Government.

(7)Subject to such conditions as the Central Government

may prescribe, the provisions of this section may be extended

to non-transport vehicles.

17. Section 39 of the Motor Vehicles Act, which provides for

registration of the motor vehicles reads as follows:-

39. Necessity for registration. - No person shall drive

any motor vehicle and no owner of a motor vehicle shall cause

or permit the vehicle to be driven in any public place or in any

other place unless the vehicle is registered in accordance with

this Chapter and the certificate of registration of the vehicle

has not been suspended or cancelled and the vehicle carries a

registration mark displayed in the prescribed manner:

Provided that nothing in this section shall apply to a

motor vehicle in possession of a dealer subject to such

conditions as may be prescribed by the Central Government.

18. Section 56 provides that a transport vehicle shall not be deemed to

be validly registered for the purpose of Section 39 unless it carries a

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certificate of fitness in such form containing such particulars and

information as may be prescribed by the Central Government, issued by the

prescribed Authority, or by an authorized testing station. The consequence

of absence of fitness certificate is very serious, which goes to the extent of

nullifying the registration of the vehicle, since the vehicle without fitness

certificate is deemed to have been not registered at all.

19. If we are to look at Section 39 which speaks about the necessity

of registration, we find that there is a clear bar on persons using vehicles

without registration on public roads. Therefore, as pointed out by the

Hon'ble Supreme Court in Amrit Paul Singh and othes Vs. Tata AIG

General Insurance Co. Ltd. And others referred to supra, violation is a

fundamental statutory refraction.

20. The Hon'ble Supreme Court after referring to the provisions of

Section 66 which deal with the permit which after referring to the judgment

in National Insurance Co. Ltd., Vs. Swaran Singh and others reported in

(2004) 3 SCC 297, concluded that if it is a fundamental statutory infraction

then the Insurance Company is absolved of its liability and therefore there

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cannot be even a direction to the Insurance Company to pay the

compensation with liberty to recover it. After discussing other judgments

on the issue the Hon'ble Supreme Court observed as follows:-

24. In the case at hand, it is clearly demonstrable from

the materials brought on record that the vehicle at the time of

the accident did not have a permit. The appellants had taken

the stand that the vehicle was not involved in the accident.

That apart, they had not stated whether the vehicle had

temporary permit or any other kind of permit. The exceptions

that have been carved out under Section 66 of the Act, needless

to emphasise, are to be pleaded and proved. The exceptions

cannot be taken aid of in the course of an argument to seek

absolution from liability. Use of a vehicle in a public place

without a permit is a fundamental statutory infraction. We are

disposed to think so in view of the series of exceptions carved

out in Section 66. The said situations cannot be equated with

absence of licence or a fake licence or a licence for different

kind of vehicle, or, for that matter, violation of a condition of

carrying more number of passengers. Therefore, the principles

laid down in Swaran Singh [National Insurance Co. Ltd. v.

Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and

Lakhmi Chand [Lakhmi Chand v. Reliance General Insurance,

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(2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] in that regard

would not be applicable to the case at hand. That apart, the

insurer had taken the plea that the vehicle in question had no

permit. It does not require the wisdom of the “Tripitaka”, that

the existence of a permit of any nature is a matter of

documentary evidence. Nothing has been brought on record by

the insured to prove that he had a permit of the vehicle. In such

a situation, the onus cannot be cast on the insurer. Therefore,

the Tribunal as well as the High Court had directed that the

insurer was required to pay the compensation amount to the

claimants with interest with the stipulation that the insurer

shall be entitled to recover the same from the owner and the

driver. The said directions are in consonance with the

principles stated in Swaran Singh [National Insurance Co. Ltd.

v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and

other cases pertaining to pay and recover principle.

21. No doubt, the Karnataka High Court has taken a slightly different

view, wherein, it has been held that absence of permit will not absolve the

liability of the Insurance Company. From a perusal of the judgment of the

Karnataka High Court, we find that the attention of the Court was not drawn

to the judgment of the Hon'ble Supreme Court in Amrit Paul Singh and

others Vs. Tata AIG General Insurance Co. Ltd. And others referred to

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supra. We are therefore unable to persuade ourself to agree with the view

expressed by the Karnataka High Court in the two decisions referred to by

the appellant. We therefore do not see any reason to interfere with the

award of the Tribunal.

22. The appeal therefore fails and it is accordingly dismissed. The

Municipality has four (4) weeks time to deposit the compensation. On such

deposit it shall be paid over to the 1

st

respondent claimant. No costs.

Consequently, the connected miscellaneous petition is closed.

(R.S.M., J.) (R.S.V., J.)

27.03.2024

dsa

Index : Yes

Internet : Yes

Neutral Citation : Yes

Speaking order

To

The Motor Accident Claims Tribunal,

Tirupuur.

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R.SUBRAMANIAN, J.

and

R.SAKTHIVEL , J.

dsa

C.M.A.No.781 of 2024

27.03.2024

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