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Judgment
This is an appeal preferred by the appellant i.e. owner of the offending vehicle, challenging the judgment and award dated 05.10.2023 passed by the Motor Accident Claims Tribunal, Court No.2, West Tripura, Agartala, in case No. T.S. (MAC) 27 of 2019.
Heard learned counsel appearing for the parties.
Briefly stated, the deceased, husband of respondent no.1 and father of respondent nos. 2 and 3, on 19.03.2019 at about 9.10 hours met with an accident near the hotel of one Ratan Paul on Assam-Agartala road under Manu PS caused due to rash and negligent driving of the offending vehicle bearing registration No. TR-01-X-1805 which came from the opposite direction in high speed and dashed the motorbike of the deceased causing fatal injuries. On receipt of the claim application, the parties by filing their respective written statements contested the claim application. All the witnesses were examined and cross-examined and the documents, submitted by parties to the claim petition were also taken into consideration by the learned trial Court. Following the settled principles of law and principle of ‘pay and recover’, the learned Tribunal has quantified the compensation to be paid to the claimant-respondents to the tune of Rs. 46,92,384/-along with interest @8% per annum from the date of filing of claim application till the date of realization with proportionate share with a further direction that the payment shall be made by the insurance company i.e. respondent no.5 and the same shall be recovered from the appellant i.e. owner of the offending vehicle. Being aggrieved by and dis-satisfied with the said judgment and award dated 05.10.2023 passed by the learned Tribunal in T.S.
(MAC) 27 of 2019, the appellant-owner has preferred this appeal. At the time of filing the appeal, the appellant also filed another application under Order XLI Rule 27 CPC, for adducing additional evidence in the appeal.
Mr. Majumder, learned senior counsel appearing for the appellant has argued that learned tribunal has invoked the principle of ‘pay and recover’ only on the ground that the appellant failed to produce the original Registration Certificate of the offending vehicle. He has further submitted that after the accident, the appellant sold his vehicle and for transferring the ownership he has to surrender the original RC before the competent authority due to which the original RC is not under his possession for which the same could not be placed on record. He has also submitted that all other documents are placed on record to substantiate his submission. Learned counsel for the appellant has further submitted that the tribunal has wrongly assessed the ‘pay and recover’ principle, which requires interference by this Court.
On the other hand, learned counsel for the respondent-claimants has submitted that the award has been passed following legal issues and due principle of law. Learned counsel for the respondents, thus, has urged before this Court to maintain with the findings of the learned Tribunal.
I have perused the entire record including the award passed by the learned Tribunal.
On scrutiny of the record, it is evident that the accident occurred due to rash and negligent driving of the driver of the offending vehicle which fact also is established from the charge sheet and other police papers submitted by the police. From the evidence on record (AIR/DAR marked as Exhibit ‘C’), it is revealed that the registration certificate was valid till the year 2015, not covering the date of accident. From the record it is also evident that there was no objection from the appellant while the AIR/DAR was marked as Exhibit ‘C’. The learned tribunal has decided point (c) i.e. who is liable to pay compensation, in affirmative.
While considering ‘point c’ learned tribunal in paras 21 to 27, has held thus:
“21.From Ext.A, the certificate of fitness, I find, the offending truck TR-01-X-1805 had valid fitness certificate 26.10.2018 to 25.10.2019 covering the date of accident on 19.03.2019. From Ext.B, the road permit, I find, the offending truck has valid road permit through out the Territory of India from 31.10.2018 to 22.09.2022, covering the date of accident on 19.03.2019. From AIR/DAR marked Ext.C series and from Ext.3, the certificate copy of insurance policy I find the offending TATA truck TR-01-X-1805 was insured with OP No.3, the New India Assurance Co. Ltd from 16.10.2018 to 15.10.2019, covering the date of accident on 19.03.2019 and the same is also admitted by OP No.3, the insurance company by filing written statement. From Ext.C series, the AIR/DAR, I also find driver Sri Debasish Das, the OP No.2 had valid driving license till 07.05.2019, covering the date of accident on 19.03.2019. From Ext.C Series, the AIR/DAR, I also find, the offending truck had valid registration certificate till the year 2015, not covering the date of accident.
22.In my opinion, AIR/DAR submitted by investigating officer is the statutory report filed under section 158(6) of M.V Act and can be considered and relied on by tribunal if not opposed and objected and unless contrary is proved.
In this context, the Hon’ble Karnataka High Court in Sri Ravi @ Ravindra v. Thammanna, dated 25.03.2021 in M.F.A. No.6863/2014 in C/W. M.F.A. No.1541/2015 held, “49. Therefore, if an Accident Information Report or a report of the Registering Authority, is produced before the Claims Tribunal, the Tribunal can presume their contents to be correct, unless the contrary is proved. This, therefore, indicates that there is no burden cast upon the claimant at all to prove the occurrence of the accident and the entire onus on disproving the accident is on the Insurer.”
In this case AIR/DAR marked Ext.C is not opposed and objected by any party and nothing contrary is proved and, therefore, it can be relied on and relied on accordingly.
23.As it is found that accident took place due to rash and negligent driving of the offending TATA truck and it had all the valid documents and was insured with OP No.3, the New India Assurance Co. Ltd except registration certificate, I am of the view that OP No.1, the owner of the vehicle is liable to pay compensation.
24.Now it is to be decided, as the offending truck was insured with OP No.3, Insurance Company, whether insurance company can be directed to pay compensation to the claimants and recover the same from owner in absence of proof of registration certificate.
In my opinion, the insurance company-the OP No.3 can be directed to pay compensation to the claimants at the first instance and recover the same from OP No.1, the owner by applying the principle of ‘pay and recover’ even though the registration certificate is not produced.
25.Specifically, I am of the view that in absence of Registration certificate, the insurance company can be directed to pay compensation and recover the same from owner.
26.In this context, the Hon’ble Madras High Court in M/S. New India Assurance Co. Ltd v. Saraswathi, in C.M.A. No.1432 of 2009, dated 11.08.2016 has upheld the order of payment of compensation to third party even though the vehicle was not registered on the date of accident and observed as follows :-
“10.In Narinder Singh's case cited first supra, a Division Bench of the Apex Court has held that the temporary registration of vehicle for one month expired on 11.01.2006 and the accident took place on 02.02.2006, when the vehicle was not under registration and hence the claim made by the insured was rejected for non-registration of vehicle. It is also revealed that in the said case, a complaint was filed before the District Consumer Forum which was allowed directing the Insurer to indemnify 75% of the claim. The appeal filed by the Insurer before State Consumer Forum against the said order was allowed and the appeal filed by the insured before the National Commission was dismissed holding that the vehicle driven without registration was prohibited under Sections 39 and punishable under Section 192 of the Act. Further it was held that the insured is not entitled to claim damages caused to his own vehicle since the vehicle was not registered at the time of accident and one month temporary registration was also expired on 11.01.2016. On coming to the instant case on hand, the claim is not made by the deceased being the owner of the vehicle. The registration of the motorcycle is not questioned and hence, this case is not made applicable to the instant case on hand.
……..
14.As rightly observed by the Tribunal that the deceased is a third party irrespective of the fact that the motorcycle is not insured or registered at the material time. This Court has considered the submission made on behalf of both sides and perused the award passed by the Tribunal. This Court finds that the Tribunal had granted compensation only to the extent of Rs.1,90,000/-…….
The above compensation granted by the Tribunal seems to be very low and hence it does not require the interference of this Court.”
27.In this respect, the Hon’ble Himachal Pradesh High Court in National Insurance Company Ltd. v. Kamal Kishore & Ors., FAO (MVA) No.564 of 2018, dated 05.07.2019 held,
“The points for adjudication raised by the insurer in the present appeal …… are :-
1.Liability of insurer towards third party risks in respect of vehicle, not registered in accordance with Chapter-IV of Motor Vehicles Act and whose temporary registration had also expired.
…….
To my humble understanding, the law laid down by Hon'ble Apex Court in Narinder Singh Vs. New India Assurance Company Limited and others, is in respect of claim made by the owner of the vehicle. In the present case the claim is by the legal heirs of the deceased-third party. It is also to be noticed that when the vehicle was insured towards third party liability, it was done so on the basis of engine number and chassis number. These numbers were duly mentioned in the insurance policy. The insurance is a contract between the insured and the insurer.
It was not insured on the basis of temporary registration number or the permanent registration number. No such condition was stipulated in the contract. Therefore, the insurance company cannot escape its liability, towards third party, merely on account of vehicle being not registered on the day of accident. The contract of insurance is based upon good faith applicable to both the parties. It can also be safely said that there was no connection between the cause of the accident and the registration/non-registration of the vehicle. It is not the case of appellant in the present appeal that driving licence was not valid. Therefore, merely because vehicle was not registered under the provisions of Chapter-IV of the Motor Vehicles Act, Insurance company cannot escape its liability towards third party. The Hon'ble Apex Court has held in Narinder Singh Vs. New India Assurance Company Limited and others, that non-registration of the vehicle is fundamental breach of the policy conditions, however, in order to protect the third party rights, condition can be construed to be fundamental only against insured and not third party risks. This is also spirit of law laid down in National Insurance Co.Ltd. Vs. Swaran Singh and others (2004) 3 Supreme Court Cases 297, relevant para of same stand extracted earlier.
However, since plying of vehicle without valid registration has been held to be fundamental breach of conditions in Narinder Singh's case, (supra), therefore, Insurance Company would be entitled for application of principle of Pay & Recover from insured as has been held in catena of judgments including recent ones in Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and others, (2018) 9 Supreme Court Cases 650. ……..
In view of the above observations, point No.1 is answered accordingly. The appellant is held liable to discharge the liability of payment of entire compensation amount to the third party/claimants in the first instance, whereafter, it is liable to be reimbursed for the same from the insured.”
Thus, therefore, I am of the view that OP No.1 is liable to pay compensation. However, OP No.3, the New India Assurance Co. Ltd. can be directed to pay the compensation to the claimants and recover the same from owner by applying principle of pay and recover. ..”
Section 39 of the Motor Vehicle Act, stipulates that no person can drive a motor vehicle, and no owner can allow it to be driven in a public place, unless the vehicle is officially registered.
The registration certificate must be active, and a valid registration mark must be displayed properly. Section 39 of the Act reads as under :
“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.
In motor accident claim case, when a vehicle is driven with a lapsed or expired registration certificate (RC) on the date of accident, the courts hold that the same constitutes a fundamental breach of policy conditions for which the insurer is not ultimately liable, the insurer must still satisfy the third-party award first and then recover the amount from the vehicle-owner using the pay and recover principle.
In the case in hand, the RC expired long back in the year 2015 and the accident occurred on 19.03.2019, and during this period the appellant was the registered owner of the offending vehicle. The appellant has made a simple statement that he has sold his vehicle and has surrendered the original RC to the competent authority, so he could not place the same at trial, and is not responsible to pay compensation and has relevant documentary evidence in support of his contention and for an act committed by his purchaser, he cannot be held liable and accountable.
At this stage, in support of his arguments, the application submitted by the appellant-applicant under Section under Order XLI Rule 27 CPC, for adducing additional evidence in the appeal and seeks an accommodation in fair play of justice to give any opportunity.
Therefore, this Court feels an opportunity be given to the appellant, and the tribunal order be set-aside and the matter needs to be re-examined in the light of the documents placed now.
The appeal preferred by the appellant is disposed of and the matter is remanded back to re-examine the matter after giving opportunity to both sides. Pending application(s), if any, also stands disposed.
JUDGE
Digitally signed by
SAIKAT SAIKAT KAR
Date: 2026.08.21 KAR 16:20:14 +05'30'