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2020 DIGILAW 2216 (KAR)

Malleshi v. Hafiza Begum

2020-11-06

HANCHATE SANJEEVKUMAR

body2020
JUDGMENT Hanchate Sanjeevkumar, J. - The MFA No.201596/2016, is filed under Section 173(1) of the Motor Vehicles Act, (for short 'the M.V.Act') by the Insurance Company challenging the judgment and award dated 16.06.2016 passed in MVC No.209/2012 by the court of the Prl. Senior Civil Judge and MACT, Kalaburagi (for short 'the Tribunal') on the ground that the vehicle in question is not involved into the case and also for raising another ground that the lorry bearing Reg.No.KA-28/A-5775 was not holding fitness certificate as on the date of accident. 2. The MFA CROB No.200013/2018 is filed by the claimant/cross-objector seeking for enhancement of compensation as the compensation awarded by the Tribunal is inadequate. 3. The brief facts of the case are as follows :- It is stated on 26.03.2009, at about 3.00 pm near I.T.I College, Chittapur, the claimant/cross-objector after loading the toor dal bags in the lorry bearing Reg.No.KA-32-A-5677, proceeded from Chittapur to Yadgir at that time a lorry bearing Reg.No.KA-28A/5775 coming from opposite direction with high speed in a rash and negligent manner, dashed the crossobjector due to which he had sustained grievous injuries of fractures as described in the wound certificate. Therefore, for having sustained injuries the cross-objector had filed claim petition before the Tribunal under Section 166 of the M.V.Act and the Tribunal after assessing the evidences on record has granted compensation of Rs.2,56,108/- with interest at the rate of 6% per annum from the date of petition till its realization. 4. The Insurance Company in MFA No.201596/2016 has raised ground that the vehicle bearing Reg.No.KA-28/A-5775 was not involved in the accident but another lorry bearing Reg.No.KA-38-7545 was involved in the accident and in this regard, relied on the complaint and FIR. 5. Further contended that the lorry bearing Reg.No.KA-28/5775 was not holding fitness certificate as on the date of accident and as per Ex.R4 document which has registration particulars and the fitness certificate was valid upto 04.07.2008 but the accident was caused on 26.03.2009, therefore submitted that there is infraction. Thus, the appellant/Insurance Company is not liable to pay the compensation. 6. Further contended that the lorry bearing Reg.No.KA-28/5775 was not holding fitness certificate as on the date of accident and as per Ex.R4 document which has registration particulars and the fitness certificate was valid upto 04.07.2008 but the accident was caused on 26.03.2009, therefore submitted that there is infraction. Thus, the appellant/Insurance Company is not liable to pay the compensation. 6. On the other hand, the learned counsel for claimant/cross-objector submitted that the lorry bearing Reg.No.KA-28-A-5775 was involved in the accident as it is revealed during the course of statutory investigation and it is proved that the said lorry was involved in the accident and it is rightly appreciated the evidences on record by the Tribunal. 7. Further fairly submitted that as per Ex.R4the fitness certificate is valid up to 04.07.2008 but the accident was caused subsequently on 26.03.2009. Therefore, for this infraction an order of 'pay and recover' be made based on the principle of law laid down by the Hon'ble Apex Court in various decisions. 8. In the present case Ex.P.1 is the FIR and Ex.P.1(a) is the complaint. The Cross-objector had lodged complaint that the driver of the lorry bearing Reg.No.KA-38-7545 was driving the said truck with high speed in a rash and negligent manner and caused the accident. Therefore, it is the contention urged by the learned counsel for the appellant/Insurance Company that the contents of complaint and the FIR can be taken into consideration but not the contents in the charge sheet. 9. Therefore, it is the contention urged by the learned counsel for the appellant/Insurance Company that the contents of complaint and the FIR can be taken into consideration but not the contents in the charge sheet. 9. Upon considering the entire evidences on record as produced by both sides Ex.P.1-FIR, Ex.P1(a)- complaint, Ex.P.2-charge sheet, Ex.P.3-IMV report, Exs.P.4 and 5 are spot panchanamas, Ex.P.6 further statement of the cross-objector and upon careful perusal of these police records even though it is stated that initially in the complaint Ex.P.1(a) the driver of the lorry bearing Reg.No.KA-38-7545 has driven the vehicle in a rash and negligent manner with high speed and caused the accident but subsequently the cross-objector who has lodged complainant as per Ex.P.1(a) had stated that at the time of moment of accident two lorries were coming, one is lorry bearing Reg.No.KA-28/A-5775 and behind this vehicle another lorry bearing Reg.No.KA-38-A/7545 coming but the lorry bearing Reg.No.KA-28/A5775 had hit him but after hitting the said lorry proceeded further and due to inadvertently noted down the lorry number as KA-38-A/7545 which is coming behind the lorry bearing Reg.No.KA-28/A-5775 and hence rightly noted the lorry number as KA-28/A-5775. 10. Therefore, in this way he had explained by giving further statement before the Investigating Officer by stating that the lorry bearing Reg.No.KA-28/A-5775 had hit him but not the lorry bearing Reg.No.KA-38/A7545, as per the charge sheet materials which is further statement is recorded on 28.03.2009 when the crossobjector/claimant was taking treatment in the hospital at Kalaburagi. Ex.P.2 is charge sheet and after completion of investigation, charge sheet is filed against the driver of the lorry bearing Reg.No.KA-28/A-5775. The Investigating Officer before coming to the conclusion for filing of charge sheet by holding lorry driver bearing Reg.No.KA-28/A-5775 was found rash and negligent driving of the vehicle upon perusing the spot panchanamas and spot sketch and other materials. Exs.P4 and 5 are the spot panchanama and seizure panchanama of lorry bearing Reg.No.KA-28/A-5775. Soon after filing the complaint and registration of FIR, spot panchanama was conducted in the presence of panchas as per Ex.P4, in which the panchas have noted that the lorry bearing Reg.No..KA-28/A-5775 after hitting the cross-objector ran away from the spot. Therefore, after conducting statutory investigation, the Investigating Officer had filed charge sheet against the driver of the lorry bearing Reg.No.KA-28/A-5775. Therefore, after conducting statutory investigation, the Investigating Officer had filed charge sheet against the driver of the lorry bearing Reg.No.KA-28/A-5775. Even though in the complaint it is stated that lorry bearing Reg.No.KA-38-7545 had hit him but subsequently after knowing which is lorry hit him he has given further statement as per Ex.P.6. Therefore, the complaint always cannot be said that it is encyclopedia to state all the things in detail and in minute. Therefore, even though initially in the complaint the lorry number stated as KA-38-7545, but after statutory investigation the Investigating Officer had filed charge sheet against the lorry bearing Reg.No.KA-28/A-5775 was involved in the accident by its driver. Therefore, in this regard, further the cross-objector himself is the injured person who has deposed before the Tribunal that the lorry bearing Reg.No.KA-28/A-5775 was coming with high speed and in a rash and negligent manner and hit the cross-objector. This evidence is not shaken in the course of the cross-examination before the Tribunal. Therefore, in this regard the Tribunal has rightly appreciated the evidence on record and has rightly come to the conclusion that the lorry bearing Reg.No.KA-28A/5775 was involved in the accident and the accident was caused by its driver. 11. It is another ground raised by the counsel for the appellant/Insurance Company that as per Ex.R4 RC particulars the fitness certificate of the lorry bearing Reg.No.KA-28-A/5775 was valid up to 04.07.2008 as per original file and 'B' register extract maintained by the RTO, Kalaburagi but the accident was caused on 26.03.2009. Therefore, as on date of accident the lorry was not holding valid fitness certificate, therefore there is infraction. Hence, the appellant/Insurance Company is not liable to pay the compensation. 12. Section 56 of the Motor Vehicles Act, 1988 stipulates as follows :- "56. Therefore, as on date of accident the lorry was not holding valid fitness certificate, therefore there is infraction. Hence, the appellant/Insurance Company is not liable to pay the compensation. 12. Section 56 of the Motor Vehicles Act, 1988 stipulates 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 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. (2) The "authorized testing station" referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages. (3) Subject to the provisions of sub-section (4), 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. (3) Subject to the provisions of sub-section (4), 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 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: 1[Provided that no such cancellation shall be made by the prescribed authority unless such prescribed authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualifications.] (5) A certificate of fitness issued under this Act shall, while it remains effective be valid throughout India." 13. Section 39 of the Motor Vehicles Act, 1988 stipulates 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." 14. Therefore, upon considering the legal provisions enunciated under Section 39 and 56 of the Motor Vehicles Act above stated unless the vehicle is holding a certificate of fitness then the registration cannot be done. Therefore, if any vehicle making liable to ply on the public premises or on the road then certificate of fitness is mandatory. Unless possession of certificate of fitness the vehicle cannot be plied on the public premises or on the road and also the registration of the vehicle cannot be effected by the registering authorities. 15. Therefore, if any vehicle making liable to ply on the public premises or on the road then certificate of fitness is mandatory. Unless possession of certificate of fitness the vehicle cannot be plied on the public premises or on the road and also the registration of the vehicle cannot be effected by the registering authorities. 15. In the present case as per Ex.R4, which is registration particulars of the lorry bearing Reg.No.KA28-A-5775, which is issued by the Regional Transport Officer, Yadgir that the certificate of fitness of the said lorry is valid upto 04.07.2008, but, the accident in the present case was occurred on 26.03.2009. Therefore, the appellant/Insurance Company proves that as on the date of accident the lorry bearing Reg.No.KA-29-A-5775 was not holding valid fitness certificate. Therefore, it is found to be infraction so as to exonerate the appellant/ Insurance Company for making payment of compensation. But in more or less in similar circumstances the Hon'ble Apex Court in the case of Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others, (2018) 7 SCC 558 , were pleased to observe at paragraph 24, which is reproduced as under :- "24. In the case at hand, it is clearly demonstrable form 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 statuary 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. 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 National Insurance Co.Ltd., v. Swaran Singh, (2004) 3 SCC 297 and Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 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 case and other cases pertaining to pay and recover principle." 16. In the above cited case the fact is that the vehicle without having permit plied on the road and met with an accident in such an event without having permit by allowing the vehicle to ply on the road is an infraction and hence the Insurance Company is not liable to pay the compensation but has passed an order of 'pay and recover' since the third party do not know whether the such vehicle is having permit or not. Therefore, as per the principle of law laid down by the Hon'ble Apex Court (supra) is applicable to the present case also. 17. In the present case the offending lorry bearing Reg.No.KA-28-A-5775 was not holding fitness certificate as on the date of accident and the third party could not know whether the said lorry was having fitness certificate or not but, he had suffered injuries in the said accident. 17. In the present case the offending lorry bearing Reg.No.KA-28-A-5775 was not holding fitness certificate as on the date of accident and the third party could not know whether the said lorry was having fitness certificate or not but, he had suffered injuries in the said accident. Therefore, under these circumstances, on the basis of the principle of law laid down by the Hon'ble Apex Court (supra) applying the said ratio in the present case also the principle of law 'pay and recover' can be made by directing the appellant/insurance Company to pay the compensation amount first to the cross-objector and then recover from the owner of the offending vehicle lorry bearing Reg.No.KA-28-A-5775. 18. In similar circumstances also, the Constitution Bench of Hon'ble Kerla High Court in the case of Ramankutty v. Pareed Pillai,2018 SCCOnLine(Ker) 3542, it has observed the non holding of fitness certificate is a fundamental breach and Constitution Bench of Kerla High Court were pleased to observe at paragraphs 17 and 18. which reads as under:- "17. Importance of the fitness/road worthiness of a vehicle, right from the time of registration of the vehicle, is further discernible from Rule 47 of the Central Motor Vehicles Rules 1989 [referred to as Central Rules]. The said Rule deals with application for registration of motor vehicles, which, among other things, stipulates that it shall be accompanied by various documents. Under sub-rule (1)(g), it is mandatory to produce road worthiness certificate in Form 22 from the manufacturers [Form 22A from the body builders]. On completing the formalities/ procedures, 'Certificate of Registration' is to be issued in terms of Rule 48 of the Central Rules in Form 23/23A, as the case may be. The said Rule contains a proviso, insisting that, when Certificate of Registration pertains to a transport vehicle, it shall be handed over to the registered owner only after recording the Certificate of Fitness in Form 38. Validity of the Certificate of Fitness is only to the extent as envisaged under Rule 62 of the Central Rules, which mandates, as per the proviso, that the renewal of a Fitness Certificate shall be made only after the Inspecting Officer or authorised Testing Station as referred to in sub Section 1 of Section 56 of the Act has carried out the test specified in the table given therein. 18. 18. The stipulations under the above provisions clearly substantiate the importance and necessity to have a valid Fitness Certificate to the transport vehicle at all times. The above prescription converges on the point that Certificate of Registration, existence of valid Permit and availability of Fitness Certificate, all throughout, are closely Interlinked In the case of a transport vehicle and one requirement cannot be segregated from the other. The transport vehicle should be completely fit and road worthy, to be plied on the road, which otherwise may cause threat to the lives and limbs of passengers and the general public, apart from damage to property. Only If the transport vehicle is having valid Fitness Certificate, would the necessary Permit be issued In terms of Section 66 of the Act and by virtue of the mandate under Section 56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of Section 39 of the Act, which stipulates that nobody shall drive or cause the motor vehicle to be driven without valid registration in public place or such other place, as the case may be. These requirements are quite 'fundamental' in nature; unlike a case where a transport vehicle carrying more passengers than the permitted capacity or a goods carriage carrying excess quantity of goods than the permitted extent or a case where a transport vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'. In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives. iimbs, properties of the passengers/general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute, also pointing out the circumstances which would constitute offence; providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers." 19. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers." 19. In the very said judgment of the Constitution Bench of the Hon'ble Kerla High Court with reference to the infraction regarding permit after following from the decisions of the Hon'ble Apex Court were pleased to observe that violation on the ground of non holding of permit is an infraction and defence is available to the Insurer, however 'pay and recovery' can be made and the relevant paragraphs 19 and 22, which are extracted as below :- "19. Coming to the field of precedents, the issue as to the absence of a valid Permit to a transport vehicle and the right of defence of the Insurer to satisfy the claim and its extent under such circumstances, was the subject matter of consideration before the Apex Court in Challa Upendra Rao s case, (2004) 3 KerLT 454 . In this case, the claim petitions filed by the Injured and the legal representatives of the deceased passengers, who met with the accident on 09.05.1992, while travelling in an autorikshaw, were sought to be resisted by the insured, contending that there was no valid Permit to ply the vehicle and hence, in terms of the policy, the insurer had no liability. The Tribunal accepted the said plea and the liability came to be mulcted upon the insured; sparing the insurer. On challenging the Award, a Division Bench of the High Court of Andhra Pradesh held that the insurer was liable to indemnify the insured, which ended up in the case filed before the Apex Court. After detailed discussion with specific reference to the validity of necessary Permit under Section 66 of the Act, the scope of Section 149(2) of the Act and various rulings rendered by the Apex Court at different points of time, the Apex Court held that the absence of valid Permit was very much a ground of defence available to the insurer in terms of Section 149(2)(a)(i)(c) of the Act. The Apex Court also held that the view taken by the High Court of Andhra Pradesh, that the question of violation of any condition did not arise since there was no Permit, was clearly fallacious; observing that a person without Permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a Permit, but has violated any condition thereof. It was mentioned in crystal-clear terms that, the plying of transport vehicle without a Permit was an infraction and a defence available to the insurer, in terms of Section 149(2) of the Act; in turn conferring the right of recovery to the insurer from the insured/owner, after satisfying the liability to claimant/3rd party. xxxx xxxx 22. The question whether absence of valid Permit to a transport vehicle at the time of accident is a 'fundamental breach' or a 'technical breach' had come up for consideration again before the Apex Court recently in Amrit Paul Singh v. TATA AIG General Insurance Co. Ltd., 2018 3 KHC 197 . The factual matrix in the said case is that, the rider of the motor cycle was knocked down to death by the offending truck on 19.02.2013, which led to the claim petition preferred by the legal heirs. The claim was resisted by the insurer, mainly contending that there was violation of policy conditions in so far as the offending truck was not having a valid Permit and the driver was not having a valid driving licence. Based on the materials on record and placing reliance on the verdict passed by the Apex Court in Challa Upendra Rao's case [cited supra], the Tribunal, after fixing the quantum of compensation, directed the insurer to satisfy the same, with liberty to have it recovered from the insured. The said finding and reasoning came to be affirmed by the High Court, in turn leading to the proceedings before the Apex Court. After exhaustive discussion on the relevant provisions of law including Section 2(28), 2(31), 2(47), 66, 149 and 166 of the M.V. Act 1988 and the various judgments rendered by the Apex Court at different points of time, including in National Insurance Co. After exhaustive discussion on the relevant provisions of law including Section 2(28), 2(31), 2(47), 66, 149 and 166 of the M.V. Act 1988 and the various judgments rendered by the Apex Court at different points of time, including in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 and Challa Upendra Rao's case [cited supra], the Apex Court held that the offending truck was not having a valid Permit on the date of accident; which was not a technical breach to attract the dictum in Swaran Singhs' case [cited supra] [where also right of recovery was held as conferred on the insurer, once the breach was established by the insurer]. It was also observed that, it was not a case where any of the exceptions under sub-section (3) of Section 66 was attracted and further that, existence of a Permit of any nature was matter of documentary evidence. The Bench held that the exceptions carved out under Section 66(3) of the Act are to be pleaded and proved by the insured/owner and this burden cannot be shifted to the shoulders of the insurer. It has accordingly been declared that, the use of a transport vehicle in a public place without Permit is a fundamental/statutory infraction and the principles laid down in Swaran Singh's case [cited supra] and Lakshmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 cannot be applicable in this regard. The Apex Court held, in such circumstances, that the verdict passed by the High Court affirming the stand of the Tribunal directing the insurer to satisfy the liability and to have it recovered from the owner/insured was in consonance with the principles stated in Swaran Singh's case [cited supra] and other cases pertaining to 'pay and recover principle'. From the above, it is quite evident that the law stands settled by the Apex Court as per the decision Challa Upendra Rao' case [cited supra] and the latest ruling in Amrit paul's case [cited supra]. This being the position, the dictum laid down by the Full Bench of this Court in Augustine V.M. v. Ayyappankutty @ Mani [cited supra] holding that the absence of valid Permit or Fitness Certificate is not a fundamental breach, but a technical breach and that no right of recovery can be given to the insurer is not at all correct. It accordingly stands over ruled. It accordingly stands over ruled. Consequently, the dictum in Tharas case [cited supra] is restored and the contrary view expressed in Sethunaths case, (2011) 1 KerLT 222 stands declared as incorrect." 20. Further, the Full Bench of this Court in the case of New India Assurance Company Limited v. Yellavva W/o Yamanappa Dharanakeri and another,2020 2 AIRKarR 484 were pleased to lay down the guidelines regarding 'pay and recovery'. It is the law laid down that even in case of Insurance Companies are having regard to Section 149(1) R/w Section 149(7) of the M.V.Act whenever a case falls under Section 149(2)(a) of the M.V.Act and the same is successfully established or proved by the insurer, but, it is the duty of the insurer to satisfy the judgments and awards against person insured in respect of third party risks even in case of infraction is proved as defence taken by the Insurance Companies. Therefore, in the present case also the lorry bearing Reg.No.KA-28/A5775 was not having valid fitness certificate as on the date of accident and certainly it can be said that it is an infraction but indisputably the said lorry is insured with the appellant/Insurance Company. Therefore, in view of this the appellant/Insurance Company shall pay first the compensation and satisfy the claim then recover it from the owner of the said lorry and in this regard this court in the above cited judgment (supra) were pleased to state the ratio in para 143, which reads as follows :- "143. Parties to bear their respective costs. ORDER OF THE COURT Questions referred:- (I) If it is shown the insurance policy is not 'Act' policy in terms of Sections 145 and 147 of the Motor Vehicles Act, but a contractual policy issued collecting extra premium indicating insurance company has enlarged its liability, will not the insurance company be liable to pay and recover even if there is any breach by the insurer? (II) In such cases, is not the rule to 'pay and recover' applicable in view of the mandate in Section 149, M.V.Act that upon issuance of policy, the insurer is bound to discharge the award as if it were a judgment debtor? (II) In such cases, is not the rule to 'pay and recover' applicable in view of the mandate in Section 149, M.V.Act that upon issuance of policy, the insurer is bound to discharge the award as if it were a judgment debtor? Answers: (i) Having regard to Section 149(1) r/w Section 149(7) whenever a case falls under Section 149(2)(a) and the same is successfully established or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swaran Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis- -vis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act policy in terms of Section 147 pertaining to compulsory coverage of risks of third parties and other classes of persons stated therein or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy. (ii) The Insurer is liable to pay the third party and recover from the insured even if there is breach of any condition recognized under Section 149 (2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves the said breach in view of the mandate under Section 149(1) of the Act. But, no such order can be passed against the insurer, if, on the facts and circumstances of a case, a finding is given by the court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer. (iii) The Court can also fasten the absolute liability on the insurer, if there is any breach of condition which is enumerated under Section 149(2) of the Act or any other condition of the policy if the Insurance Company has waived breach of any such condition or has taken the special responsibility to pay by collecting extra premium by covering any type of risk depending upon facts of each case. (iv) Thus, the rule of pay and recover is applicable in view of the mandate in Section 149(4) of the Act and even if there is a breach of the terms of the insurance policy, the insurer is bound to satisfy the judgment and award as if it were a judgment debtor, even if it satisfies the twin tests enunciated by the Hon'ble Supreme Court under Section 149(4)(a) of the Act. (v) Before passing any order on the Insurance Company to pay and recover, the Court has to examine the facts and circumstances of each case and if it finds that the victim, injured or the deceased, in a particular case, was solely or jointly responsible for breach of such fundamental condition by playing fraud or in collusion with the insured, the Court may exercise its discretion not to fasten the liability on the insurer. (vi) However, the court should not adopt the above guideline as a general rule in all cases, but only under peculiar facts and circumstances of each case and on giving appropriate reasons. (vii) If the Insurance Company makes out a case under Section 149(2)(b) of the Act, then also the Insurance Company has to satisfy the award so far as third party is concerned, as it is the duty of the Insurance Company to indemnify the insured on the basis of the policy of the insurance and even when the contract of insurance itself is void, nevertheless the liability to indemnify the insured would arise and insurer is entitled to recover from the insured. (viii) Thus, in a case where Section 149(2)(b) applies and the Insurance Company successfully establishes that the policy is void, in such a case also, the insurer is not absolved of its liability to satisfy the judgment or award as rights or obligations would flow even from a policy which is void vis- -vis third party. In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis- -vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured. In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis- -vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured. (ix) The judgment of the Division Bench of this Court in Subramanyam, holding that a pay and recovery order cannot be made as there is no liability to pay or satisfy the award or decree in respect of a case falling under Section 149(2) is not correct. Hence, that portion of the judgment in Subramanyam, which states that if the case falls within the scope of Section 149(2) of the Act and the insurer is successful in establishing any of the defences as stated therein, it would be completely absolved of its liability to satisfy the award is also not correct and to that extent, it is held to be bad in law. (x) Article 142 of the Constitution of India being a power granted under the Constitution only to the Supreme Court can be exercised in appropriate cases only by the Apex Court. Exercise of power under Article 142 by the Hon'ble Supreme Court in a particular case cannot be a precedent for other Courts and Tribunals to exercise such a power unless the same is indicated to be a precedent by the Apex Court. In the instant case, the appellant - Insurance Company was directed to discharge its liability, subject to the result of this reference. The vehicle involved in the instant case is a goods vehicle and the injured claimant was travelling in a goods carriage. The Tribunal awarded compensation of Rs.1,000/- with interest at 6% p.a. from the date of petition till deposit and to recover the same from the insured - respondent No.2 herein. If the appellant - insurer has deposited the amount, it is entitled to recover the said amount from the first respondent - insured, as this is a case which falls under Section 149(2)(a) of the Act as the insured claimant was permitted to travel as a passenger in a goods vehicle namely, tempo." 21. If the appellant - insurer has deposited the amount, it is entitled to recover the said amount from the first respondent - insured, as this is a case which falls under Section 149(2)(a) of the Act as the insured claimant was permitted to travel as a passenger in a goods vehicle namely, tempo." 21. Therefore, upon following the principle of law laid down by their lordship, even though in the present case the lorry bearing Reg.No.KA-28-A-5775 was not holding valid fitness certificate as on the date of accident and it is an infraction but the crossobjector/claimant could not be made as sufferer. Therefore, when there is an existence of valid Insurance Policy as admitted by the appellant/Insurance Company, therefore the appellant/Insurance Company shall satisfy the compensation amount at the first instance and then recover it from the owner of the lorry. To this extent the MFA No.201596/2016 is liable to be allowed in part. 22. Then coming to the MFA CROB No.200013/2018, which is filed by the claimant for seeking enhancement of compensation. In the present case the cross-objector had suffered grievous injuries of fracture of 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th ribs of right side, fracture of 3rd and 4th ribs on left side and fracture of right scapula. Also the Ex.P.7 wound certificate discloses that the cross-objector had suffered fracture of 3rd and 4th ribs at left side and tenderness on right scapula region of the chest, the tenderness on right side of the chest at 8th and 9th ribs and other injuries. Therefore, considering the nature of injuries sustained by the cross-objector/claimant the Tribunal has awarded compensation of Rs.50,000/- towards 'pain and suffering' which is found to be appropriate and correct. 23. Further, the Tribunal has awarded compensation of Rs.10,000/- towards 'loss of amenities and enjoyment of life' which is on meager side considering the nature of injuries as discussed above, it is needed to be enhanced. Accordingly, a sum of Rs.25,000/- is awarded towards 'loss of amenities and enjoyment of life'. 24. Further, the Tribunal has awarded a compensation of Rs.50,400/- towards 'loss of future income'. The cross-objector had suffered fractured injuries above stated and he was driver by profession and Doctor/PW.2 had stated 15% of permanent total disability but the Tribunal has considered only at 5% of disability towards whole body. 24. Further, the Tribunal has awarded a compensation of Rs.50,400/- towards 'loss of future income'. The cross-objector had suffered fractured injuries above stated and he was driver by profession and Doctor/PW.2 had stated 15% of permanent total disability but the Tribunal has considered only at 5% of disability towards whole body. Therefore, upon considering the nature of injuries sustained by the cross-objector coupled with the profession of the crossobjector as he was driver of heavy goods vehicle and the 5% of permanent total disability as taken by the Tribunal is on too lower side. Therefore, 15% of permanent total disability is taken into consideration as per the evidence of Doctor/PW.2. The cross-objector was aged 42 years as on the date of accident as per the medical records therefore, the appropriate multiplier is 14' and it is rightly applied by the Tribunal. Therefore, only on the short ground that regarding taking percentage of total permanent disability at 15%, the compensation under the head of loss of future income due to disability is recalculated and quantified as follows :- Rs.6000/-x15/100x14x12=1,51,200/-. Accordingly, a compensation of Rs.1,51,200/- is awarded under the head 'loss of future income due to disability.' 25. Further the Tribunal has awarded compensation of Rs.1,08,708/- towards 'medical expenses and other incidental charges' which is correct as per the record. Therefore, needs no disturbance. 26. Further the Tribunal has awarded a compensation of Rs.19,000/- towards attendant charges, food, nourishment and conveyance expenses and Rs.18,000/- awarded towards 'loss of income' during the period of treatment and laid up period which needs no disturbance as they are found to be correct and appropriate. Therefore, the cross-objector is entitled for compensation on the various heads which are as follows:- dscas 27. The Tribunal has already awarded a sum of Rs.2,56,108/-. Hence, after deducting the same, the cross-objector/claimant is entitled for additional compensation of Rs.1,15,800/- (Rs.3,71,908- Rs.2,56,108) with interest at 6% per annum. 28. In view of the aforesaid discussion, I pass the following: ORDER i) MFA No.201596/2016 filed by the Insurance Company is allowed in part. ii) The MFA CROB No.200013/2018 filed by the cross-objector/claimant is hereby allowed in part. iii) The impugned judgment and award dated 16.06.2016 passed by the Principal Senior Civil Judge and Member, MACT, Kalaburagi in MVC No.209/2012 is hereby modified. ii) The MFA CROB No.200013/2018 filed by the cross-objector/claimant is hereby allowed in part. iii) The impugned judgment and award dated 16.06.2016 passed by the Principal Senior Civil Judge and Member, MACT, Kalaburagi in MVC No.209/2012 is hereby modified. iv) The cross-objector/claimant is entitled to additional compensation of Rs.1,15,800/- with interest at 6% p.a. from the date of the claim petition till realization. v) The Appellant/Insurance Company is hereby exonerated from payment of compensation but the appellant/Insurance Company shall pay the compensation amount to the crossobjector at the first instance then recover it from the owner of the lorry. vi) Draw award accordingly. vii) No order as to costs. The amount in deposit made by the appellant/Insurance Company shall be transmitted to the Tribunal forthwith.