JUDGMENT 1. - These two appeals are directed against the common judgment and award dated 19th September, 1996 passed by the learned Judge, Motor Accident Claims Tribunal, Udaipur (hereinafter referred to as the Tribunal) whereby he awarded compensation for a sum of Rs. 1,88,000/- in favour of the respondent-claimants in Appeal No. 110/97 (Original M.A.C.T. Case No. 114/93) and in Appeal No. 38/97 (Original M.A.C.T. Case No. 384/92). By this common judgment, the Tribunal awarded Rs. 67,000/- compensation in favour of the claimant in Original M.A.C.T. Case No. 71/93 alongwith interest at the rate of 12% per annum from the date of application till the date of realisation. Since both the appeals arise out of the common judgment and law and facts, are common, therefore, I decide these appeals by common judgment. 2. Brief facts of the case out of which these appeals have arisen, are that on 10th September, 1992 at about 3.00 P.M., deceased Altaf Hussain, Bhanwarlal Bogoria and Om Prakash were going on TVS Moped from College Campus to hostel. At that time, a Metador No. RNY-346 came from opposite direction, which was driven by its driver Bhawani Shanker at a great speed with rashly and negligently. The Metador hit the Moped and its riders. After having dashed against the Moped, it was dragged about 20-25 feets along with Metador, resulting thereby, the Moped rider Altaf Hussain and pillion riders Bhanwarlal and Om Prakash sustained severe injuries. Altaf Hussain and Bhanwarlal succumbed injuries instantaneously. However, Om Prakash was taken to Hospital in seriously injured condition. 3. The parents of Altaf Hussain, who are legal representatives of deceased filed a claim petition No. 384/92 claiming compensation for a sum of Rs. 10,12,000/- and the Legal representatives of deceased Bhanwarlal filed a claim petition No. 114/93 claiming compensation for a sum of Rs. 18,39,000/- against respondents No. 7, 8 and appellant-insurer. A similar claim petition No. 71/93 was also filed by injured Om Prakash claiming compensation for a sum of Rs. 3,13,000/-. 4. Notice of the claim petitions served upon the respondents who filed the respective statements. On the pleadings of the parties, the Tribunal framed as many as four issues in each claim petition. The issues were common. A similar claim petition No. 71/93 was also filed by injured Om Prakash claiming compensation for a sum of Rs. 3,13,000/-. 4. Notice of the claim petitions served upon the respondents who filed the respective statements. On the pleadings of the parties, the Tribunal framed as many as four issues in each claim petition. The issues were common. By the judgment impugned, the Tribunal decided issues No. 1 in favour of the claimants therein and against respondents No. 7, 8 and the appellant-insurer and held that the aforesaid accident was as a result of driving of Metador rashly and negligently by its driver respondent No. 7. Due to this accident, Altaf Hussain and Bhanwalal succumbed injuries and Om Prakash sustained serious injuries. While deciding issue No. 2 the Tribunal assessed compensation as Rs. 1,88,000/- each in Claim Case No. 384/92 and Claim Case No. 114/93 and Rs. 67,000/- in Claim Case No. 71/93. Issue No. 3 relates to the objections and pleas raised by the insurer. This issue was framed at the instance of the insurer and therefore, the burden of proof was on the appellant-insurer. The appellant-insurer has not led any evidence to prove this issue and accordingly, this issue was decided against the appellant-insurer. 5. Being aggrieved by the impugned judgment and award passed in Claims Case No. 384/92 and 114/93 the appellant-insurer filed the present appeal. However, the award passed in Claim Case No. 71/93 has not been challenged. 6. I have heard learned Counsel for the appellant-insurer and learned Counsel for the respondent-claimants and perused the record of the case. 7. The appellant-insurer has challenged in these appeals the factum of accident, issue relating to rash and negligence of the driver respondent No. 7 and quantum of compensation awarded by the Tribunal in favour of the respondent claimants. The appellant-insurer has also challenged the finding on issue No. 3. 8. Before the Tribunal, the driver and owner of the vehicle i.e. respondents No. 7 and 8 respectively filed their joint written statement and contested the claim on merit. It is settled law that the insurer cannot be permitted to contest the claim petition except on the ground mentioned in sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 (for short 'the Act'). Undisputedly, the appellant-insurer did not move under Section 170 of the Act before the Tribunal. It is settled law that the insurer cannot be permitted to contest the claim petition except on the ground mentioned in sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 (for short 'the Act'). Undisputedly, the appellant-insurer did not move under Section 170 of the Act before the Tribunal. In the instant case, the driver and owner of the vehicle involved in the accident, have seriously contested the claims by filing the written statement and joining issues. Admittedly, appellant insurer was not granted any permission to contest the claim petition on merit before the Tribunal and, therefore, in these appeals, the appellant-insurer cannot be permitted to challenge the finding of negligence as well as quantum of compensation awarded. Hon'ble Supreme Court in British India General Insurance Co. Ltd. v. Captain Itbar Singh and others, reported in AIR 1959 Supreme Court 1331 , it was observed as under : "Now the language of sub-section (2) [of Section 96 of the Act, 1939 corresponding to sub-section (2) of Section 149 of the Act, 1988] seems to us to be perfectly plain and to admit of no doubt or confusion. It is that an insurer to whom the requisite notice of the action has been given I shall be entitled to be made a party thereto and to defend the action on any of the following grounds namely", after which comes an enumeration of the grounds. It would follow that an insurer, is entitled to defend on any of the grounds enumerated and nor others. If it were not so, then of-course no grounds need have been enumerated, when the grounds of defence have been specified, they cannot be added to. To do that would be adding words to the statute. Sub-section (6) [of Section 96 of the Act, 1939 corresponding to sub-section (7) of Section 149 of the Act, 1988] also indicates clearly how sub-section (2) should be read. It says that no insurer to whom the notice of the action has been given shall be entitled to avoid his liability under sub-section (1) 'otherwise then in the manner provided for in sub-section (2)'. Now the only manner of avoiding liability provided for in sub-section (2) is by successfully raising any of the defences therein mentioned. It comes then to this that the insurer cannot avoid his liability except by establishing such defences. Now the only manner of avoiding liability provided for in sub-section (2) is by successfully raising any of the defences therein mentioned. It comes then to this that the insurer cannot avoid his liability except by establishing such defences. Therefore, sub-section (6) clearly contemplates that he cannot take any defence not mentioned in sub-section (2). If he could, then he would have been, in a position to avoid his liability in a manner other than that provided for in sub-section (2). That is prohibited by sub-section (6)." 9. In Shankarayva and another v. United India Insurance Co. Ltd., reported in 1998 A.C.J. 1998 (2) T.A.C. 379 (S.C.) 513 , their Lordships of the Supreme Court, held that : "It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the condition precedent mentioned in the Section 170 are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be reasoned order by the Tribunal. Unless that procedure is followed, the Insurance Company cannot have a wider defence on merits then what is available to it by way of statutory defence." 10. In Chinnama George v. N.K. Raju, 2000 A.C.J. 777 : 2000 (2) T.A.C. 207 (S.C.) , their Lordships of the Apex Court held that Insurance Company can defend the proceedings before the Claims Tribunal on certain limited grounds only as contained in sub-section (2) of Section 149 of the Act. Thus, in view of the settled law, the appeals filed by the appellant-insurer challenging the issue of rash and negligency and quantum of compensation are incompetent and the appellantinsurer cannot maintain the appeals on these grounds. More so, from perusal of the record, it reveals that the Tribunal decided three claim petitions by a common judgment arising out of one and the same accident and recorded the categorical finding on the basis of evidence adduced by the parties that the accident was as a result of rash and negligent driving by the driver of the Metador. The said finding has not been challenged in another case of common judgment and thus, the finding of rash and negligence has become final. In view of the matter, no contrary view can be taken in the present case. 11. The said finding has not been challenged in another case of common judgment and thus, the finding of rash and negligence has become final. In view of the matter, no contrary view can be taken in the present case. 11. The quantum of compensation assessed and awarded by the Tribunal cannot be said to be too excessive in the instant case. The deceased Altaf Hussain and Bhanwarlal both were students of Final Year of Agriculture Engineering. They had bright prospects and on completion of their education, they would have been employed as Engineers and would have earned much more than what has been claimed and awarded. 12. The main contention raised by the appellant-insurer with regard to the finding on issue No. 3. While assailing the finding on issue No. 3, it was contended by the learned Counsel for the appellant-insurer that the Tribunal fell in error in deciding the issue No. 3. against the appellant-insurer. Issue No. 3 was framed on the basis of the pleas raised by the appellant-insurer in its written statement and burden to prove this issue was squarely on the shoulder of the insurer. Admittedly, the appellant-insurer has not led any evidence in this regard. Not only this, the appellant-insurer did not plead terms and conditions of the policy nor its breach by the insured/owner of the vehicle wilfully and deliberately. The appellant failed to lead any evidence before the Tribunal denying their liability. The insurer complains of breach of a terms of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract (sic) not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would, fail if no evidence is led. Obviously in the instant case, the burden to prove issue No. 3 was on the insurer and, therefore, the insurer must fail. 13. The test in such a situation would be who would, fail if no evidence is led. Obviously in the instant case, the burden to prove issue No. 3 was on the insurer and, therefore, the insurer must fail. 13. In Sohan Lal Passi v. P. Sesh Reddy and other, 1996 A.C.J. 1044 : 1996 (2) T.A.C. 733 (S.C.) , Hon'ble three Judges Bench of the Apex Court has held that while interpreting the contract of insurance, the Tribunals and Courts have to be conscious of the fact that the right to claim compensation by heirs and legal representatives of the victim of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the conditions of the policy by allowing a person not duly licenced to drive the vehicle when the accident took place, the insurer shall be deemed to be judgment-debtor in respect of the liability in view of sub-section (1) of Section 96 of the Act corresponding to Section 149(1) of the Act. Their Lordships further observed that it need not to be pointed out that the whole concept of getting the vehicle insured by an Insurance Company is to provide easy mode of getting compensation by the claimants. 14. In Skandia Insurance Company Ltd. v. Kokilaben Chandravadan, 1987 A.C.J. 411 : 1987 (1) T.A.C. 471 (S.C.) , their Lordships of the Apex Court while reading down the contractual clause observed as follows : "...When the option is between opting for a view which will relieve the distress and misery of the victims of the accidents or their dependants on the one hand and the equally plausible view which will reduce profitability of the insurer in regard to the occupational hazard undertaken by it, by way of business activity, there is hardly any choice. The Court can not but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in the obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision, so that, the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose." 15. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose." 15. In the instant case, neither the terms and conditions of the policy were pleaded nor proved by the appellant-insurer and, therefore, in absence of contract between the insured and insurer, it cannot be said that the insurer has not undertaken liability to indemnify the insured for the death of third party. Thus, in the instant case, the Tribunal has committed no error in deciding issue No. 3, against the appellant-insurer. As such, the finding arrived at by the Tribunal calls for no interference. 16. In view of the aforesaid discussion, I find no merit in both the appeals filed by the Oriental Insurance Company Limited and accordingly, these appeals are hereby dismissed with no order as to costs.Appeals dismissed. *******