RAJESH TANDON, J. ( 1 ) HEARD Sri R. B. Agarwal, Counsel for the appellant and Sri Harshvardhan Shah, Counsel for the respondent No. 1. ( 2 ) BY the present A. O. filed under section 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 5. 10. 2002 passed by the Motor Accident Claims Tribunal/district Judge Almora in Motor Accident Claim Petition No. 18 of 2002 Kundan Singh v. Nanda Ballabh Pandey whereby the claimant has been awarded a sum of Rs. 39,560/- towards compensation along with interest @ 9% per annum. ( 3 ) BRIEFLY stated, a claim petition was filed by the claimant-respondent No. 1 being Motor Accident Claim Petition No. 18 of 2002 Kimdan Singh v. Nanda Ballabh Pandey claiming a sum of Rs. 40,000/- along with interest @ 12% per annum. ( 4 ) ACCORDING to the claimants, on 16. 9. 1999, when the claimant was coming by a tanker No. U. P. 02/9505 from Jamrani Bend to Kesar Bend at about 4. 30 p. m. , which was being driven rashly and negligently by its driver caused accident and fell down into a gorge near Kesar bend. In this accident, the claimant received injuries in his leg. The report of the accident was lodged by one Harsh Singh Negi to Naib Tehsildar, Almora. The claimant was admitted to the District Hospital, Almora and there he was examined by the doctor. The claimant received injuries in the joint of the right leg knee and was admitted in the hospital for expert treatment of orthopaedic Surgeon. He spent a sum of Rs. 15,000/-on his treatment and has stated that the treatment is still undergoing. ( 5 ) OPPOSITE party No. 1-Nanda Ballabh Pande has filed a written statement stating therein that he is registered owner of the Tanker No. U. P. 02/9505 and at the time of accident, the tanker in question was being driven by a driver having valid driving licence. He has further stated that at the time of accident, the driver was not driving the vehicle in high speed; but was driving the vehicle cautiously, but the accident occurred all of a sudden and the tanker fell down into a gorge. It has further been stated that the tanker in question is insured with New India Assurance Company, Haldwani. He has further stated that at the time of accident, the driver was not driving the vehicle in high speed; but was driving the vehicle cautiously, but the accident occurred all of a sudden and the tanker fell down into a gorge. It has further been stated that the tanker in question is insured with New India Assurance Company, Haldwani. ( 6 ) THE opposite party No. 2-New India Assurance Company has filed a written statement stating therein that the owner of the vehicle has filed the claim for damage of vehicle, in which he has not shown any loss of life and it was only alleged that the vehicle was damaged, while in the petition it is alleged that the petitioner received grievous injuries and one person died as well. It has been stated that since the claimant was traveling in the tanker as passenger, therefore, there was violation of the terms and conditions of the policy as well as provisions of the Motor Vehicles Act. It has further been stated that since the claimant was a minor child, therefore, the plea of dependency cannot be raised. It has further been stated that the amount claimed towards compensation is excessive. ( 7 ) ON the pleadings of the parties, the claims Tribunal has framed following issues : "1. Whether Sri Kundan Singh received injuries on 16. 9. 1999 at about 4. 30 p. m. near Kasan Bend Gadhera, district Almora, as a result of rash and negligent driving of vehicle (Tanker) No. U. P. 02-9505? If so its effect? 2. Whether the claimant is entitled to any compensation? If so, to what amount of compensation is he entitled and against whom?" ( 8 ) WHILE deciding the issues No. 1 and 2 as to whether Sri Kundan Singh received injuries on 16. 9. 1999 at about 4. 30 p. m. near Kasan Bend Gadhera, district Almora, as a result of rash and negligent driving of vehicle (Tanker) No. U. P. 02-9505 and as to whether the claimant is entitled to any compensation? If so, to what amount of compensation is he entitled and against whom, while dealing with the aforesaid issues, Claims Tribunal has relied upon the copy of the F. I. R. , where the entire story has been narrated, injury report prepared by Medical Officer, District Hospital, Almora in which only one lacerated wound of 17 cm. If so, to what amount of compensation is he entitled and against whom, while dealing with the aforesaid issues, Claims Tribunal has relied upon the copy of the F. I. R. , where the entire story has been narrated, injury report prepared by Medical Officer, District Hospital, Almora in which only one lacerated wound of 17 cm. x 1. 5 cm. over right knee joint has been shown, discharge slips, which shows that there was fracture in the said injury, statement of P. W. 1 and the medical bills to the extent of Rs. 14,560/- The insurance company has no where denied that the tanker in question was insured with it. The Claims Tribunal after relying upon two decisions of the Kerala High Court has recorded a finding that if any transport vehicle is insured, which is not allowed to carry passengers; but if some gratuitous passengers are traveling without payment of fare, then the risk of death of bodily injury shall be covered by insurance policy and since in the present case, the petitioner was a student at the time of accident and he was traveling in the tanker along with other students, hence, the insurance company is liable to pay compensation. Claims Tribunal has recorded a finding that since the petitioner has not received any grievous injury, which could have made him permanent disabled, but the injury was received in the right leg on the knee joint by which some disability may be caused by weakness of the leg, hence the claimant is entitled to Rs. 25,000/- as compensation for mental and physical pain and Rs. 14,560/- as medical expenses. Thus, the Claims Tribunal has awarded a sum of Rs. 39,560/- along with interest @ 12% per annum. ( 9 ) COUNSEL for the appellant Sri R. B. Agarwal has submitted that it was a case of gratuitous passenger and as such the entire liability is casted upon the owner to indemnify the loss of sufferings of the claimants. On the other hand, the claimant has submitted that it was not in the knowledge of the insured that there was gratuitous passenger carrying in the vehicle. ( 10 ) COUNSEL for the claimant has referred Rashma Bai and others v. Darshan Lai and others, 2006 ACJ 1672 . wherein it has been observed as under : "8. . . On the other hand, the claimant has submitted that it was not in the knowledge of the insured that there was gratuitous passenger carrying in the vehicle. ( 10 ) COUNSEL for the claimant has referred Rashma Bai and others v. Darshan Lai and others, 2006 ACJ 1672 . wherein it has been observed as under : "8. . . The Apex Court in the case of Sohan Lal Pasi v. P. Sesh Reddy,1996 ACJ 1044 (SC ). laid down that it must be established by the insurance company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. " ( 11 ) COUNSEL for the claimant has referred United India Insurance Co. Ltd. v. Sudha Lata Maithani and others, 2007 ACJ 1182 , where it has been observed as under : "8. So far as the contention that the insured had violated the conditions of the insurance policy is concerned, the argument of the learned Counsel is not tenable for the reasons that it was obligatory on the part of the insurance company to have established that it was within the knowledge of the insured that the driver engaged by the owner was violating the terms and conditions of the policy, but the record shows that no such evidence was led by the insurance company to substantiate its contention. Therefore, it was rightly held by the Claims Tribunal that the employer was vicariously liable for the act done by its servant. Learned Tribunal has elaborately dealt with this point. I see no reason to take a different view on this count. " ( 12 ) THE Apex Court in National Insurance Company Limited v. Swaran Singh and others, (2004) 3 SCC 297 . has laid down that the insurer can not avoid its liability unless there is any fundamental breach. The observations are quoted below :- (iii) The breach of policy condition e. g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. The observations are quoted below :- (iii) The breach of policy condition e. g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, has 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time. (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 the insured unless the said breach or breaches on 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 section 149 (2) of the Act. " ( 13 ) IN B. V. Nagaraju v. Oriental Insurance Co. Ltd. , 1996 ACJ 1178. the Apex Court has observed as under: "7. It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when traveling in the vehicle are assumed not to have increased, any risk from the point of view of the insurance company or occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was carrying. Here, it is nobodys case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damages. Here, it is nobodys case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damages. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, on all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. In Skandias case this Court paved the way towards reading down the contractual clause by observing as follows : ". . . . . When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer on regard to the occupational hazard undertaken by it, by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make it strictly doctrinaire approach, the very same conclusion would emerge in 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 harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carters Breach of Contract vide para 251. To quote : "notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisors contractual obligations. For example, in Glynn v. Margetson and Co. To quote : "notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisors contractual obligations. For example, in Glynn v. Margetson and Co. , (1893) AC 351 Lord Halsbury, L. C. stated : It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at the one part of it only. Looking at the whole instrument, and seeing what one must regard. . . . . . . . . as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societe d Armement Maritime S. A. v. N. V. Rotterdamsche Kolen Centrale, (1967)1 AC 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract. " ( 14 ) IN Lal Chand v. Oriental Insurance Co. Ltd. , (2006) 7 SCO 318=2006 (65) ALR 187 (SC)= 2006 (46) A1c 588. the Apex Court has observed as under: "11. As observed in the above paragraph, the insurer, namely, the insurance company, has to prove that the insured, namely, the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant point of time. 12. We respectfully agree and following the above ruling, we allow the appeal filed by the owner of the vehicle and absolve him from any liability as ordered by the High Court. It is now brought to our notice that the entire compensation has already been deposited and the same has been withdrawn by the claimants. No other point has been urged by both sides. We, therefore, allow the appeal and order no costs. It is now brought to our notice that the entire compensation has already been deposited and the same has been withdrawn by the claimants. No other point has been urged by both sides. We, therefore, allow the appeal and order no costs. " ( 15 ) IN Suresh Oil Mills v. Kesar Bai,2006 ACJ 510. it has been observed as under : "13. In the cases on hand the insurance company could not prove that the vehicle owner was guilty of negligence and failed of fulfilling the condition of policy regarding use of vehicle. Sohan Lal Passi v. P. Sesh Reddy, was the case wherein, Apex Court interpreted the expression breach occurring in section 96 (2) (b) of 1939 Act thus (para 12)" "the expression breach occurring in section 96 (2) (b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was willful. " ( 16 ) COUNSEL for the appellant has referred the judgment of Appeal No. 82 of 2002 The New India Assurance Co. Ltd. v. Harsh Singh and another decided on May 4, 2005, where it has been observed as under: "following the pronouncement of the Apex Court in the caseof Baljit kaur (supra), and considering the facts and the circumstances of the instant case, it is directed that the appellant shall satisfy the award first before the Motor Accident Claims Tribunal concerned, for being paid to the claimant and then may proceed to recover it from the owner. For purpose of recovery, the insurer may initiate proceedings before Executing Court in accordance with law. " ( 17 ) THEREAFTER, the aforesaid judgment has been further modified in the review application on 10. 4. 2006 to the following effect: "by the order dated 4. 5. 2005 of this Court the recoverable rights has been given to the insurance company against the owner/review petitioner. The review petitioner has stated that the deceased was covered under the policy and according to the insurance company he was a gratuitous passenger in the oil tanker. The order dated 4. 5. 5. 2005 of this Court the recoverable rights has been given to the insurance company against the owner/review petitioner. The review petitioner has stated that the deceased was covered under the policy and according to the insurance company he was a gratuitous passenger in the oil tanker. The order dated 4. 5. 2005 is modified to the extent that before initiating recovery against the owner, the learned Tribunal shall decide whether the deceased was a gratuitous passenger and was he covered under the policy or not? Till the decision of the said issue the recovery against the ownershall remain stayed. " ( 18 ) IN view of the aforesaid, the appeal is dismissed. The claims Tribunal shall follow the result of the investigation as laid down in the Appeal No. 82 of 2002 The New India Assurance Company Ltd. v. Harsh Singh and another before initiating any recovery proceedings against the owner. ( 19 ) SUBJECT to aforesaid observations, appeal lacks merit and is dismissed with costs. Appeal Dismissed. .