JUDGMENT : The second respondent in O.P.(MV).No. 575/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda is the appellant in this appeal, filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act”), where the claimant before the Tribunal is arrayed as the respondent. 2. Heard the learned counsel for the appellant, Adv. Rajan Kalliyath and Adv. P.S. Abdul Kareem appearing for the respondent, the owner cum driver of the tempo-van bearing registration No.KBR-5061. 3. In this case, the dispute is confined in the matter of non-grant of recovery right by the Tribunal, though it has been specifically contended by the Insurance Company/the appellant that the vehicle was plied through the road, without fitness certificate. It is submitted by the learned counsel for the appellant that it is settled law that the burden to prove that there was no fitness certificate for the vehicle is upon the insurer and when the insurer pleads that there was no fitness certificate to the vehicle, the same is a negative fact. Therefore, the Insurance Company can rely on either police charge or by giving direction to the owner to produce fitness certificate, and no other mode is feasible to prove a negative fact. 4. Whereas, the learned counsel for the respondent vehemently argued that the burden to prove that there was breach of contract of insurance was squarely on the shoulders of Insurance Company and in the decision reported in Narchinva V. Kamat and another v. Alfredo Antonio Deo Martins and others [ AIR 1985 SC 1281 ], the Apex Court held so. For clarity, paragraph Nos.14 and 15 of the above judgment are extracted hereunder : “14. The last question is whether he had a valid driving licence. The High Court has not recorded a clear cut finding on this point. The finding of the Tribunal is more evasive than the one by the High Court. Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross examination, an adverse inference be drawn against him that he did not have a valid license to drive a pick-up van. The submission fails to carry conviction with us. His grievance is that he having failed to produce the same when called upon to do so in the cross examination, an adverse inference be drawn against him that he did not have a valid license to drive a pick-up van. The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the Insurance Company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the Insurance Company to wriggle out its liability under the contract of insurance. Further, the R.T.A. which issues the driving licence keeps a record of the licences issued and renewed by it. The Insurance Company could have got the evidence produced to substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company. 15. To sum up the insurance company failed to prove that there was a breach of the term of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.” 5. Reading the above judgment, it could be gathered that, in the said case, the Insurance Company not disputed that the second appellant, the driver of the vehicle involved in the said case, did not have a driving license. (See Mr. Sharma did not dispute that the second appellant had a driving licence). But the grievance that had been addressed before the Apex Court is failure to produce the same when called upon to do so in cross-examination. (See Mr. Sharma did not dispute that the second appellant had a driving licence). But the grievance that had been addressed before the Apex Court is failure to produce the same when called upon to do so in cross-examination. So in Narchinva's case (Supra), the Apex Court dealt with a case, where the Company admitted driving licence and then after holding that the burden of proof was on the Company to discharge absence of driving licence, it was held that the Regional Transport Authority keeps a record of the licences issued and renewed by it and therefore, the company could have got the evidence produced to substantiate its allegation, i.e., absence of driving licence. 6. In this connection, the learned counsel for the Insurance Company would submit that in the case on hand, there was no fitness certificate for the vehicle at the time of accident and the police on investigation, when filed charge against the driver alleging offences under Sections 279, 337 and 338 of IPC, in the same charge, it was mentioned that a separate charge against the RC owner (the respondent herein) vide 433/03/MV/TU, (a petty case) was lodged in this case for absence of fitness certificate. Therefore, absence of fitness certificate is a matter proved by the company as per Ext.A2, after raising contention that the vehicle did not have a valid fitness certificate at the time of accident. He has also given emphasis to the decision of this Court reported in Pareed Pillai v. Oriental Insurance Co. Ltd. [2018 (4) 792 (LB)]. In the said decision, after appraising the provisions of the Motor Vehicles Act, viz. Sections 39, 56 and Section 66, this Court categorically held as under: “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. Sections 39, 56 and Section 66, this Court categorically held as under: “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 S.66 of the Act and by virtue of the mandate under S.56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of S.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, limbs, properties of the passengers/general public. (Para 17)” 7. In the said decision, earlier Full Bench decision of this Court reported in Augustine v. Ayyappankutty [ 2015 (2) KLT 139 ] was overruled, after discussing the following judgments of the Apex Court. 1. 2004 (3) KLT 454 (SC); 2016 (4) KLT 427 ; 2. 2004 (3) KLT Online 1206 (SC) = (2004) 8 SCC 517 ; 3. 2017 (4) KLT Online 2159 (SC) = Special Leave to Appeal (C) No.31406/2017; 4. 2011 (4) KLT 378 (SC); 2016 (1)KLT Online 2031 (Ker); 5. 2000 (2) KLT 155 (SC); 2009 (2) KLT 707 ; 6. 2018 (3) KLT 911 (SC); 2004 (1) KLT 781 (SC) & 7. 2016(1) KLT Online 2069 (SC) = (2016) 3 SCC 100 8. 2017 (4) KLT Online 2159 (SC) = Special Leave to Appeal (C) No.31406/2017; 4. 2011 (4) KLT 378 (SC); 2016 (1)KLT Online 2031 (Ker); 5. 2000 (2) KLT 155 (SC); 2009 (2) KLT 707 ; 6. 2018 (3) KLT 911 (SC); 2004 (1) KLT 781 (SC) & 7. 2016(1) KLT Online 2069 (SC) = (2016) 3 SCC 100 8. As I have already pointed out in the decision highlighted by the learned counsel for the respondent, a case where, admittedly there was licence to the driver, but its non-production before the Tribunal was considered. It is submitted by the learned counsel for the appellant further that in the decision reported in Narinder Singh v. New India Assurance Company Ltd. [ 2014 (3) KLT 1074 (SC)], the Apex Court dealt with Sections 39, 43, 66 and 192 of the MV Act and it was held that plying vehicle on the road without any registration certificate is not only an offence under Section 192 of the MV Act, but also fundamental breach of terms of conditions of the policy contract. Giving heavy reliance on this decision, the learned counsel for the appellant given emphasis to Section 56 of the MV Act, to stress the point that a transport vehicle shall not be deemed to be validly registered for the purpose of S.39 of the MV Act, unless it carries a fitness certificate in the prescribed format, and the same is extracted as under : 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 authorised testing station mentioned in subsection (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 “authorised 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 “authorised 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), 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 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 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. 9. In the Three Bench decision reported in National Insurance Co. Ltd. v. Swaran singh [ 2004 (1) KLT 781 (SC)], the Apex Court considered breach of policy conditions, e.g., disqualification of driver, or invalid driving license of the driver as contained in sub-s.(2)(a)(ii) of S.149 of the Act and finally in paragraph No.102 of the judgment, summarised the findings as under : “102. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-s. (2)(a)(ii) of s.149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply ‘the rule of main purpose’ and the concept of "fundamental breach" to allow defences available to the insurer under S.149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under S.165 read with S.168 is empowered to adjudicate all claims in respect of the accidents involving death or bodily injury or damage to property of third party arising from use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in S. 174 of the Act for enforcement and execution of the award in favour of the claimants. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in S. 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of S.149(2) read with sub-s.(7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under S.174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-s.(3) of S.168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in sub-s.(4) with proviso thereunder and sub-s.(5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. 10. The learned counsel for the appellant given much emphasis to clause (v) and submitted that the court cannot lay down any criteria as to how burden on the part of the insurer would be discharged inasmuch as the same would depend upon the facts and circumstance of each case. 11. 10. The learned counsel for the appellant given much emphasis to clause (v) and submitted that the court cannot lay down any criteria as to how burden on the part of the insurer would be discharged inasmuch as the same would depend upon the facts and circumstance of each case. 11. In this case, apart from the recitals in the Ext.A2 charge, the Insurance Company filed I.A.625/2008 to direct the second respondent/the owner to produce fitness certificate pertaining to vehicle bearing registration No.KBR-5061. But the Tribunal, without applying his mind properly, dismissed the application by a callous order, without any justification. Though it is pointed out by the respondent/the owner that since I.A.No.625/2008 was dismissed and for which, no challenge raised, the appellant is estopped from raising the same contention. In order to answer this contention, I am inclined to given emphasis to Section 105 of the Code of Civil Procedure. Section 105 is extracted as under : “(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal”. 12. Here, the Company filed this appeal, challenging non-grant of recovery right though as per Ext.A2, the police filed petty case against the owner, alleging that the vehicle did not have a valid fitness certificate on the date of accident. In ground No.2 of this appeal, dismissal of I.A.No.625/2008 is raised as a ground and therefore, the company could very well challenge the dismissal of I.A.No.625/2008 before this Court by resorting to Section 105 of CPC. 13. It is submitted by the learned counsel for the respondent/owner of the vehicle that since Order 41 Rule 27 provides production of additional documents before the Appellate Court, the Company could very well produce fitness certificate of the vehicle to discharge its burden and the hesitance to do so is a matter to be adjudged in favour of the owner to hold that there was fitness certificate to the vehicle at the time of accident and consequently to reject the claim for reimbursement on that ground. 14. 14. In this matter, the respondent/owner of the vehicle also made no attempt to produce the fitness certificate of the vehicle he possessed. It is submitted by the learned counsel for the respondent that though the owner attempted to get copy of fitness certificate, the same was not available and as such the owner could not produce the same. Thus, it seems that the owner insists for production of fitness certificate by the insurer even though the owner failed in this endevour. As per Ext.A2, it is discernible that no fitness certificate was there at the time of accident. Thus, taking deviation from the decision of Narchinva’s case (supra), in this case fitness certificate to the vehicle is not an admitted fact and the specific contention of the insurer is that there was no fitness certificate to the vehicle at the time of accident. Therefore, the company’s burden to prove the same is not by producing the same before the Court (a document not in existence cannot be produced) and the only option is to rely on the police records or to give direction to the owner to produce the same. As of now, it has to be noticed that the fitness certificate of the vehicle is not before this Court and the owner against whom police laid charge alleging absence of fitness certificate not made any attempt to negate the said allegation or to appraise what was the out come of the said charge. Therefore, the Tribunal went wrong in disallowing recovery right in respect of the award amount, coming to the tune of Rs.8,68,200/-. Since the Insurance Company proved its burden relying on Ext.A2 charge that the vehicle did not possess fitness certificate, a negative fact, there is no reason to disallow the reimbursement claimed, after depositing the amount in the name of the claimants. Therefore, the appeal stands allowed and the award stands modified. It is ordered that the appellant herein shall deposit the award amount along with interest thereof within two months from today in terms of the award passed by the Tribunal. On deposit, the appellant is allowed to realise the same from the respondent/the owner of the offending vehicle, since plying vehicle through the road without a fitness certificate is a fundamental breach and consequently fundamental violation of policy conditions.