JUDGMENT : - The Respondent - original claimant filed Claim Petition under Section 166 of the Motor Vehicles Act, 1988, before the Motor Accident Claims Tribunal, claiming compensation towards death of his son Datta, aged 12 years, caused in the accident due to the rash and negligent driving of the driver of (sic) seater Matador bearing No.MAB - 4083 owned by Respondent No 1, driven by Respondent No.2 and insured with Respondent No.3 therein. 2. The claim was opposed by Respondents No.1 and 2 denying rash and negligent driving and also any liability and claimed that the accident was consequence of rash and negligent driving of the driver of Truck bearing No.AIC - 3911. These respondents claimed that the liability, if any, arising from the accident, was liable to be met by the Insurance Company - Respondent No.3. 3. The claim was opposed by Respondent No.3 on various grounds', inter alia, that due to the violation of conditions of insurance cover, the insurer was not liable. The pleading, in this regard, is seen in para 7 of the written statement, which is quoted below for ready reference : "The owner of the matador has carried more passengers and therefore in view of Insurance policy this respondent is not liable to pay any thing to claimant." 4. After the case proceeded, the claimant examined himself and by filing pursis Exhibit - 31, prayed the Tribunal to read the evidence of one Vishwanath Mahadappa Bhede, one of the co - passengers, led in connected M.A.C.P. No.4/92, as evidence in his petition. 5. Respondents No.1 and 2 passed pursis declaring that they do not want to lead any evidence. 6. It is pertinent to note that any issue was not framed regarding the breach of policy. The appellant, who was opponent No.3, did not raise objection to failure to frame the issue relating to its plea about denial of liability. It is further seen that the appellant insurer not only acquiesced with the failure of the Tribunal to frame the crucial issue but further Respondent No.3 also filed pursis Exhibit - 34 stating as follows: "The respondent no.3 does not want to lead oral evidence hence this evidence closing purshis." Thus the insurance company has neglected to or gave up its plea of denial of liability due to breach of conditions of policy. 7. 7. The learned Tribunal allowed the application and granted the claim to the tune of Rs.1,00,000/ - with interest @ 12% p.a., by award dated 18 - 4 - 1995. 8. This award is the subject matter of challenge in this appeal. 9. Learned advocate Mr.Godsay persuasively argued in support of appeal. The learned advocate contended that though in view of the reported judgments in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others, reported in 2004 AIR SCW 663 and in the case of National Insurance Corporation Ltd. Vs. Kanti Devi and others, reported in 2005 AIR SCW 3282 : [2005(5) ALL MR (S.C.) 781], the Insurance Company is required in law to first pay the amount and then recover the same in view of the later judgment in the case of M/s. National Insurance Co. Ltd. Vs. Baljit Kaur and others, reported in 2004 AIR SCW 212 : [2004(5) ALL MR (S.C.) 238], the Insurance Company will not be required to file a suit or other remedy for recovery of the amount and it would be open to the Insurance Company to execute the award when honoured by it directly. The reliance is placed on the observations contained in para 22 of the said judgment. Relevant portion is quoted below:" We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if any already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject - matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of S .168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding." The learned advocate, therefore, craved and prayed for similar order from this Court. 10. Learned advocate Mr. Godsay further relied upon two other judgments, as follows: (i) United India Insurance Co. Ltd., Shimla Vs. Tilak Singh, & others, reported in 2006 AIR SCW 1822 : [2006(3) ALL MR (S.C.) 188]. (ii) National Insurance Co. Ltd. Vs. Prakash s/o. Sakharam Dudhankar and others, reported in 2006(1) Mh.LJ. 601 : [2006(2) ALL MR 239]. These judgments are relied upon to contend that the liability of Insurance Company is restricted towards the act liability only, and that it does not cover risk towards the risk of gratuitous passengers carried in a private vehicle, insofar as the claim pertains to the situation prior to the Amending Act of 1994. 11. The submissions of the learned advocate Mr. Godsay, which are dealt with in para 10 and particularly in case of Baljit Kaur's case, [2004(5) ALL MR (S.C.) 238] (supra) will have to be judged from the point as to whether it applies to and governs the case on the basis of what has been pleaded and proved or disproved in this case. 12. As it has been noted, the Insurance Company denied its liability on the ground of violation of terms of policy. It is, however, clear that the Insurance Company has to first pay and if its liability is not arising in view of violation of terms of policy, the amount can be recovered by filing execution. 13. On the facts of the case, only half of the part of the proposition is established, namely the Insurance Company has by its pleading denied its liability on the ground of violation of conditions of insurance policy or cover. 13. On the facts of the case, only half of the part of the proposition is established, namely the Insurance Company has by its pleading denied its liability on the ground of violation of conditions of insurance policy or cover. Upon this pleading, the question arises as to whether the Insurance Company has demonstrated and proved its plea which it claims on its own knowledge. It is seen from Exhibit - 34 that the Insurance Company has preferred to keep away from the trial by failing to participate in the effort of rebuttal, in view of the closing pursis. The Insurance Company did not lead before the Tribunal any evidence to prove that the claimant's demand of damages could not have been fastened to it on account of violation of terms of policy. 14. Violation of terms of policy is a question of fact. There is no presumption in law in favour of the Insurance Company. On the facts of the case, the appellant - Insurance Company is, therefore, not liable to get an order in terms of the judgment in the case of M/s. National Insurance Co. Ltd. Vs. Baljit Kaur & others [2004(5) ALL MR (S.C.) 238] (supra), as desired and prayed for by it for getting recovery done by filing execution petition directly on the basis of adjudication against the motor vehicle owner in the very said claim. 15. In the circumstances, appeal fails with costs. Same is dismissed accordingly. Appeal dismissed.