JUDGMENT : Heard learned advocate Mr. G.C. Mazmudar appearing on behalf of appellant-United India Insurance Company Limited. 2. The appellant insurance company has challenged the award passed by Motor Accident Claims Tribunal (Aux.) at Godhra in Motor Accident Claim Petition No. 1271 of 1997. The Tribunal has awarded Rs. 3,11,000/- with 9% interest upto 31st December 2000 and thereafter, the interest is fixed @ 7.5%. 3. Learned advocate Mr. Mazmudar raised contention on vehement that a complaint was filed by one Khanabhai Kanabhai Vankar who was father-in-law of the deceased Vinodbhai Punjabhai Vankar on 23th June 1997. The accident occurred on 21st June 1997 at 2.30 a.m. in Kosamba Police Station on National Highway No. 8 at a short distance from Surat City. The driver of the Jeep Shri Jayantibhai Kalabhai Patel. He submitted that in complaint, it was specifically mentioned that private Jeep was hired by deceased Vinodbhai and Shri Khanabhai Vankar was sitting with his son-in-law Vinodbhai in the Jeep which was taken for marriage function of their relatives. These facts are mentioned in second paragraph of complaint that on 19th June 1997, complainant himself, deceased son-in-law Vinodbhai, Dhulabhai, Jethabhai Bodhabhai and Hirabhai Kanabhai, etc., were taken three Jeeps on hired to attend the marriage function of their relatives. He also submitted that specific contention was raised in written statement by the Insurance Company that deceased was travelling as a passenger on paying the fare to the Jeep driver. He further submitted that in cross-examinaiton Exh.34, the complainant has admitted the contents of the complaint given by him and it is correct, but, in cross-examination, the very complainant on being suggestion made by the lawyer of the Insurance Company that these private Jeeps were taken on hire. That suggestion has been denied specifically by the complainant. Therefore, he submitted that it is a duty of the Tribunal to look into the complaint and evidence of complainant Exh.34 which has not been taken into account while deciding the claim case. Therefore, Tribunal has committed gross error in awarding compensation in favour of complainant. 4. Learned advocate Mr. Mazmudar also submitted that nine passengers covered by additional premium those who are going on social or some domestic reasons in Jeep and other passengers are not allowed to travel. Therefore, Tribunal has committed gross error in awarding compensation in favour of complainant. 4. Learned advocate Mr. Mazmudar also submitted that nine passengers covered by additional premium those who are going on social or some domestic reasons in Jeep and other passengers are not allowed to travel. Therefore, the conclusion of the Tribunal, who has been relied upon the additional premium while awarding the compensation, is contrary to the facts on record. Therefore, according to learned advocate Mr. Mazmudar, Tribunal has committed gross error in awarding compensation holding the liability of the Insurance Company. 5. Learned advocate Mr. Mazmudar also raised contention that there is specific condition incorporated in policy of the Insurance Company Exh. 44, where, Jeep is not permitted on hire by any passenger and risk of such passenger is not covered under the insurance policy. Except that, no other submission was made by learned advocate Mr. Mazmudar. 6. I have considered all the contentions raised by learned advocate Mr. Mazmudar and I have also perused the award passed by Tribunal. The accident occurred on 21st June 1997 at about 2.30 a.m. at Village Navagam, National Highway No. 8 near to Surat City. The driver of the private Jeep has lost the control and used the brake suddenly and due to that, deceased Vinodbhai was thrown from the Jeep and the rear wheel of the Jeep ran over the deceased, deceased received severe injuries on head and other parts of the body. In claim petition, the claimant has made averments that on 19th July 1997, the deceased Vinodbhai and their relatives were going to Kharoli to Surant to attend the marriage function of his brother-in-law and they obtained the private Jeep No. GJ-7-H-2640 of their friend and while returning from the marriage function on 20th June 1997, the accident occurred on 21st June 1997 at about 2.30 a.m. Therefore, the complaint was lodged before the Kamrej Police Station being I-CR No. 120 of 1997 under Section 279, 338, 304-A of the Indian Penal Code and under Section 177, 184 and 134 of the Motor Vehicles Act. On the basis of the complaint filed by Khanabhai Kanabhai Vankar who was father-in-law of the deceased Vinodbhai. The notice of the claim petition was served to respondents No. 1 and 2 driver and owner. Against that, ex-parte matter was decided. On the basis of the complaint filed by Khanabhai Kanabhai Vankar who was father-in-law of the deceased Vinodbhai. The notice of the claim petition was served to respondents No. 1 and 2 driver and owner. Against that, ex-parte matter was decided. Respondent No. 3 Insurance Company has filed reply vide Exh.22 by raising contention that deceased was travelling as a passenger in the Jeep and therefore, it amounts to breach of condition of insurance policy and therefore, insurance company has not liable to make the payment of compensation. Thereafter, issues were framed by the Tribunal and Tribunal has considered Exh.32 of the complaint and also examined the evidence of complainant Exh.34. The driver and owner has not challenged the evidence of complainant. On the basis of the evidence of the complainant, Exh.32 of complaint, the Tribunal has come to conclusion that accident occurred due to rash and negligent driving of the respondent driver. Thereafter, the Tribunal has awarded compensation on the basis of the evidence given by Lalitaben Vinodbhai Vankar vide Exh.31. The deceased was having Provision Store and Pan Galla as well as also having agricultural work earning Rs. 4,500/-. One witness Pratapbhai Nathasinh Pagi was examined who supported the income of the deceased and one certificate was also produced by claimant from Sarpanch, Bhalada Village to justify the income of deceased. The Village Form No. 7/12 was also produced at Exh. 27 to 30 and ultimately, Tribunal after considering the entire evidence on record, also keeping in mind that accident occurred in the year 1997, the Tribunal has assessed the income Rs. 1,500/- and thereafter, considering the decision of this Court in case of Ritaben @ Vanitaben v. A.M.T.S. reported in 1992(2) T.A.C. 118, future prospect has been taken into account and monthly income assessed Rs. 2,250/-, ? deduction and ultimately, dependency Rs. 1,500/- and looking to the age of deceased 32 years, 15 multiplier applied and Rs. 2,88,000/- is awarded for loss of dependency and Rs. 10,000/- for loss of expectation and Rs. 10,000/- for loss of consortium and Rs. 3,000/- for funeral expenses which total comes to Rs. 3,11,000/-. 7. The important question raised by learned advocate Mr. Mazmudar is that according to complainant, this jeep was hired by the deceased, therefore, deceased was travelling as a passenger not as a friend or relative of the owner or driver of the jeep. 10,000/- for loss of consortium and Rs. 3,000/- for funeral expenses which total comes to Rs. 3,11,000/-. 7. The important question raised by learned advocate Mr. Mazmudar is that according to complainant, this jeep was hired by the deceased, therefore, deceased was travelling as a passenger not as a friend or relative of the owner or driver of the jeep. It is necessary to consider Exh.34 that the complainant was examined in view of the admitting the contents of the complaint correct, but, in cross-examination, he denied the suggestions of the advocate of the insurance company that whether jeep was hired by the deceased or not. He gave answer 'No'. Therefore, this Court has to consider the evidence as a whole not only chief and not only cross-examination of the person. The entire evidence of Exh.34 suggests that contents of the complaint admitting by complainant, but, he denied the fact that private jeep was hired by deceased going to attend the marriage function. Therefore, in such circumstances, it is a duty of the insurance company to prove by leading proper evidence on record that deceased and other persons those who were travelling in the jeep were travelling as a passenger on hire, but, no evidence was led by insurance company before the Tribunal. The driver was available. Notice, issued by the Claims Tribunal, was served on the driver, then, some efforts must have to be made by the insurance company to substantiate their contention before the Tribunal. Accordingly, raising the contention in written statement and to get some clue from the complaint is not enough for the insurance company to prove their contention before the Claims Tribunal. The driver and owner both are the persons who must have the knowledge as to whether jeep was hired or not, then, insurance company must have to make efforts by making an application before the Claims Tribunal to issue the summons as a witness to driver or owner for giving evidence before the Claims Tribunal in respect to the fact that whether jeep was hired or not. But, no such efforts have been made by insurance company. Merely relying upon the contents of the complaint and admission of the complainant. That contents of the complainant are true, but, in cross-examination, he denied this fact. But, no such efforts have been made by insurance company. Merely relying upon the contents of the complaint and admission of the complainant. That contents of the complainant are true, but, in cross-examination, he denied this fact. Therefore, in such circumstances, a duty of the insurance company to prove by cogent evidence their defence before the Claims Tribunal. 8. In this case, the jeep, where, the deceased was travelling, was a private jeep allowing the passengers upto 9 and for that, additional premium of Rs. 450/- was paid by the owner to the insurance company. Therefore, in private jeep, risk of nine passengers is covered and not disputed by insurance company, but, in such a private jeep, passengers for hire is not permitted as per insurance policy, otherwise, it amounts to breach of policy. The factual aspect is discussed by Tribunal that private jeep of friend was taken by deceased to attend the marriage function. Therefore, similarly in private car, occupants sitting in the car, their risk are covered in insurance policy. Therefore, in private jeep also, risk of nine passengers is covered as additional premium was paid. The Division Bench of Karnataka High Court has examined this question in respect to private car in case of Oriental Insurance Company Limited v. Purushotham T.M. and others reported in 2006 ACJ 983 , where, the Division Bench has observed that while travelling in private car, one Nagendra died and claimants filed claim petition before the Tribunal. Whether the risk of such passenger travelling in private car is covered or not has been, in detail, examined. The relevant Para 3 to 8 are quoted as under : 3. In this appeal, Mr. Poonacha, learned counsel appearing for the insurance company, while fairly did not challenge the quantum of compensation awarded by the Claims Tribunal but strongly urged that the deceased being an occupant in a private car, the Tribunal has seriously erred in law in fastening the liability on the insurance company. According to learned counsel that in the absence of additional premium having been paid to the insurance company to cover the risk of the passengers, the insurance company could not have been made liable to satisfy the award passed by the Tribunal. According to learned counsel that in the absence of additional premium having been paid to the insurance company to cover the risk of the passengers, the insurance company could not have been made liable to satisfy the award passed by the Tribunal. In other words, it is his submission that the risk of an occupant/passenger in a private car is not compulsorily required to be covered under Section 147 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') and there being no additional premium paid by the insured to cover the risk of the occupants, the insurance company could not have been made liable to pay compensation to the claimants, by the Tribunal. In support of his submission, the learned counsel relied upon the decision of this Court in the case of New India Assurance Co. Ltd. v. Kusum, 2003 ACJ 1 992 (Karnataka) and also the unreported decision of this Court rendered in the case of Veerappa v. Sarmuddin, M.F.A. No. 2209 of 1995; decided on 26.5.1997. 4. We have gone through the judgments relied upon the learned counsel. In our view, there is no merit in this appeal. It is necessary to point out that Tribunal in the impugned order has fastened the liability on the insurance company following the decision of this Court in the case of Ramachandra v. Shataram, 2005 ACJ 462 (Karnataka), rendered by one of us (H.G. Ramesh, J.). In the case of Ramachandra (supra), this Court, after elaborately considering the law on the subject and more particularly the Full Bench decision of Insurance Co. Ltd. v. Ajayakumar, 1999 ACJ 1 499 (Kerala), has held that under the provisions of Motor Vehicles Act, 1988 the insurer is compulsorily required to cover the risk of the passengers of a private car or of any passenger carrying vehicle including a two-wheeler. It is useful to refer to the observation made in the said judgment at para 15, which reads as hereunder : "(15) In view of the change in law as explained by this Court and the High Courts of Kerala, Madras and Madhya Pradesh in the above referred decisions, I hold that an insurer under the new Act is compulsorily required to cover the risk of passengers of a private car or of any passenger carrying vehicle including a two-wheeler........" 5. It is also useful to refer to the observation made by Full Bench of Kerala High Court in the case of Ajayakumar, 1999 ACJ 1 499 (Kerala), at paras 11, 12 and 13 of judgment, which reads as follows : "(11) It is in the light of the above we have to examine the effect of deletion of proviso (ii) while enacting Section 147 of the Motor Vehicles Act, 1988. Clause (b)(i) of Section 147 now stands limited only by proviso (i) and also the contractual liability which was incorporated originally as proviso (iii) in Section 95(1)(b), but as proviso (ii) in Section 147 (1)(b). Proviso (i) deals with only the case of employees. The liability referred in clause (i) would apply to the death of or bodily injury to 'any person'. Since the limitation brought under proviso (ii) that is, by excluding liability in respect of death of or bodily injury to a passenger except a passenger who is carried for hire or reward or by reason of or in pursuance of contract of employment is no longer available in the statute. Therefore, it has to be taken that the term 'any person' referred in clause (b)(i) would take in all passengers for hire or reward or otherwise. We do not find any merit in the contention raised by learned counsel for the appellant that if the term 'any person' in clause (b)(i) would take in passengers in private vehicle carried in for hire or reward then it was unnecessary for the legislature to bring in the amendment under Act 54 of 1994 to include owner of the goods or his authorised representative carried in the vehicle in clause (i). As was clearly observed by the Supreme Court in Mallawwa v. Oriental Insurance Co. Ltd., 1999 ACJ 1 (SC), it would not be proper to consider a goods vehicle as a vehicle in which passengers are carried normally. It was under these circumstances, an amendment was required to include the owner of the goods or his authorised representative carried in the vehicle by specific amendment in clause (i). (12) In Road Transport Co. v. Bhan Singh, 1998 ACJ 1101 (SC), a claim put forward for compensation in respect of death of 35 passengers travelling in a bus came up for consideration. (12) In Road Transport Co. v. Bhan Singh, 1998 ACJ 1101 (SC), a claim put forward for compensation in respect of death of 35 passengers travelling in a bus came up for consideration. The contention raised on behalf of the appellant was that the claim in respect of the death of the passengers in the bus should be considered under Section 95(1)(b)(i) and if that be so, the limitation regarding the quantum of compensation provided under Section 95(2)(b)(ii) will not be applicable. It was submitted that wording of Section 95(1)(b)(i) is very wide to include a passenger in a bus, since the words used are 'any person'. This contention was rejected by the Supreme Court. It was held that Section 95(1)(b)(ii) being a specific provision made in respect of passengers of a public service vehicle, it is that provisions which is applicable in the case and not the general provision contained in Section 95(1)(b)(i), when the insured incurs liability in respect of the passengers travelling in his public service vehicle. As mentioned earlier it was proviso (ii) which excluded passengers in private vehicle from the net of Section 95(1)(b)(i), since that proviso is not available in Section 147 of the Motor Vehicles Act, 1988, the general provision in clause (i) has to be taken as applicable to passengers carried in private vehicles not for hire or reward. A similar view was taken by Madhya Pradesh High Court in Oriental Insurance Co. Ltd. v. Radha Rani, 1999 ACT 1524 (MP).AIR 1999 Madhya Pradesh 47. It was held that an Act policy under Section 147 would cover occupant of a jeep who is carried without hire or reward. (13) We, therefore, fully agree with the view taken in Apukuttan's case, 1995 ACJ 888 (Kerala), that a gratuitous passenger in a private vehicle is also covered by the Act policy under Section 147 of the Motor Vehicles Act, 1988..." (Emphasis supplied) 6. We are in full agreement with the view expressed by this Court in the case of Ramachandra, 2005 ACJ 462 (Karnataka) and also by the Full Bench of Kerala High Court in case of Ajayakumar, 1999 ACJ 1 499 (Kerala). Further, it i also necessary to point out that the High Court of Madras in case of New India Assurance Co. Further, it i also necessary to point out that the High Court of Madras in case of New India Assurance Co. Ltd. v. Vijay Kumar, 2003 ACJ 523 (Madras) and also the decision of the High Court of Madhya Pradesh in the case of Oriental Insurance Co. Ltd. v. Radha Rani, 1999 ACJ 1 524 (MP), have also taken the similar view. 7. In the light of what is stated above, we are of the view that the two single Judge decisions of this Court in the case of Kusum, 2003 ACJ 1 992 (Karnataka) and in the case of Veerappa, M.F.A. No. 2209 of 1995; decided on 26.5.1997, do not lay down correct law. In the case of Kusum (supra), the learned single Judge has proceeded to take the view that the insurance company is not required to cover the risk of the gratuitous passenger in a private vehicle relying upon the judgment of Supreme Court in the case of Ramesh Kumar v. National Insurance Co. Ltd., 2001 ACJ 1565 (SC); in the case of New India Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC) and also the decision of Orissa High Court in the case of Jibanananda Mohanty v. Artatrana Misra, 1992 ACJ 851 (Orissa) and the decision of Andhra Pradesh High Court in the case of Oriental Fire & Genl. Ins. Co. Ltd. v. M. Bhanumathi, 1990 ACJ 1043 (AP). In our view, the learned single Judge has failed to notice that the question that came up for consideration before the Apex Court in the case of Ramesh Kumar (supra) and also in the case of Asha Rani (supra) was with regard to the liability of the insurance company to cover the risk of a passenger travelling in a goods carrying vehicle. Similar is the position in the case of the decision in Jibanananda Mohanty (supra) and in the case of M. Bhanumathi (supra). In the case of Ramachandra, 2005 ACJ 462 (Karnataka), this Court, as noticed by us earlier, has referred to the judgment of the Supreme Court in the case of Asha Rani (supra) and has taken the view that the said decision is of no assistance to the insurance company to avoid its liability to over the risk of a passenger travelling in a private car. Therefore, we are of the view, the decision of this Court in the case of Kusum (supra) relied upon by Mr. Poonacha, does not lay down correct law and the same is hereby overruled. Further, the decision rendered by the learned single Judge of this Court in the case of Veerappa (supra) also does not lay down the correct law, as the change in the law brought out by the provisions of new Act of 1988 was not considered by the learned single Judge in the said case. Therefore, we are unable to subscribe to the view expressed by the learned single Judge of this Court in the case of Veerappa (supra). Therefore, the view taken by this Court in the case of Veerappa (supra) that insurance company is not liable to cover the risk of passenger in a private car, does not lay down the correct law and, therefore, the same is hereby overruled. 8. In the light of the discussion made above, we have no hesitation to reiterate that the view taken by one of us (H.G. Ramesh, J.) in the case of Ramachandra, 2005 ACJ 462 (Karnataka), lays down the correct legal position. Therefore, the above appeal is liable to be dismissed and accordingly, it is dismissed. The amount deposited by the appellant before this Court is directed to be transferred to the Tribunal. 9. In this case, Insurance Company has not appointed investigator to inquire as to whether jeep was taken by deceased on hire or not. When the Insurance Company is having the investigator, then, such work can be entrusted by the Insurance Company to investigate, but, insurance company has not made any efforts to find out the correct facts being a rebuttal evidence against the claimant. If investigator was appointed, then, he can obtain the statement of owner and driver and thereafter, he can be examined in support of his report by the insurance company to prove the contention or defence raised by insurance company before the Claims Tribunal. But, insurance company remained silent and no evidence was led for proving their defence before the Claims Tribunal. The defence of Insurance Company is that there was a breach of condition of policy has not established that insured was responsible for the breach. But, insurance company remained silent and no evidence was led for proving their defence before the Claims Tribunal. The defence of Insurance Company is that there was a breach of condition of policy has not established that insured was responsible for the breach. Section 149(2) of Motor Vehicles Act, in case of breach of terms of policy onus is on Insurance Company to prove the breach. "The proposition of law is no longer res integra that the person who alleges breach must prove the same. The Insurance Company is, thus, required to establish the said breach by cogent evidence. In the event, the Insurance Company fails to prove that there has been breach of the conditions of policy on the part of the insured, the Insurance Company cannot be absolved of its liability. Each case may post different problem which must be resolved having to a large number of factors governing the case including conduct of parties as regard duty to inform, correct disclosure, suppression, fraud on the insurer etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard and fast rule, can therefore, be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of conditions of contract of insurance on the part of the insurer by discharging its burden of proof. The Tribunal, there cannot be any doubt must arrive at a finding on the basis of the materials available on records. National Insurance Co. Ltd. v. Swaran Singh, 2004(3) SCC 297 (1) United India Insurance Co. Ltd. v. Jaimy, 1998 ACJ 1318, approved. (2) V. Mepherson v. Shiv Charan Singh, 1998 ACJ 601 (Del.), approved. (3) New India Assurance Co. Ltd. v. Jagtar Singh, 1998 ACJ 1074, approved. (4) National Insurance Co. Ltd. v. Ishroo Devi, 1999 ACJ 615, approved. (5) New India Assurance Co. Ltd. v. Latha Jayaraj, 1991 ACJ 298 (Ker.), approved. xxx xxx xxx The legislature, in its wisdom, has made insurance, at least third-party insurance, compulsory. The aim and purpose being that an Insurance Company would be available to pay. (4) National Insurance Co. Ltd. v. Ishroo Devi, 1999 ACJ 615, approved. (5) New India Assurance Co. Ltd. v. Latha Jayaraj, 1991 ACJ 298 (Ker.), approved. xxx xxx xxx The legislature, in its wisdom, has made insurance, at least third-party insurance, compulsory. The aim and purpose being that an Insurance Company would be available to pay. The business of the company is insurance. In all business, there is an element of risk. All persons carrying on business must take risks associated with that business. Thus, it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time, innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in the aforementioned cases viz., that in order to avoid liability, it is not sufficient to show that the person driving at the time of accident was not duly licensed. The Insurance Company must establish that the breach was on the part of the insured. United India Insurance Co. Ltd. v. Lehru, 2003 (3) SCC 338 . 10. In case of private vehicle, if passengers carrying in no pleading and proof that insured authorised to the driver charged the fare from the passenger and no consent or knowledge or authority of the insured for such act of the driver, then, breach of condition of policy by the driver, then, burden lies on the insurance company to prove such breach, otherwise, insurance company will not relieve or set free from its liability. This aspect is considered by this Court in case of Oriental Insurance Co. Ltd. v. Minor Prayan Babubhai Patel Thro'Babubhai Manabhai Patni & Ors. reported in 1999 (2) GCD 898 (Guj.). The relevant Para 5 is quoted as under : "5. Babubhai Manabhai Patni, the claimant has been examined at Exh.104. Learned counsel for the appellant does not dispute that in the examination chief he has not stated that his wife or son had paid fare to the driver, and that they were carrying baskets of vegetables. It is also not in dispute that the insurance company has not confronted this witness with his admission in the pleadings. Learned counsel for the appellant does not dispute that in the examination chief he has not stated that his wife or son had paid fare to the driver, and that they were carrying baskets of vegetables. It is also not in dispute that the insurance company has not confronted this witness with his admission in the pleadings. Not only this, no suggestion has been made during the course of his examination by the insurance company that the deceased persons were travelling in the vehicle as paid passengers along with their vegetable baskets. Learned tribunal has kept in mind the settled principle that the pleadings are binding to the parties. Babubhai Manabhaiwas not travelling in the vehicle and he could not have personal knowledge of the fact that his wife and his son were travelling in the matador as paid passengers. He has not seen his wife and son giving fare to the driver and they were going with the vegetable baskets. In view of these facts this admission of the claimant was not taken to be an admission of the nature which normally taken to be substantive piece of evidence. The matter would have been different where he himself was a party to the payment of fare or he has seen the deceased as paying the fare to the driver. So far as the plea of carrying the vegetable baskets with them by the deceased is concerned, the Tribunal has made reference to the relevant piece of evidence and rightly reached to the conclusion that this is not the correct state of affairs. One more important fact has been noticed by the Tribunal that the driver has no where stated in the statement or his claim application that he has charged fare from the persons who were travelling at the time of accident in the vehicle. All the claim applications have been decided together. The learned counsel for the appellant has failed to point out any such question put to the driver also. In this case some of the claimants who were victims of the accident and sustained injuries have been examined and from their statement it comes out that the driver of the Matador who was known to these persons permitted them to travel in the matador free of charge. In this case some of the claimants who were victims of the accident and sustained injuries have been examined and from their statement it comes out that the driver of the Matador who was known to these persons permitted them to travel in the matador free of charge. So on the basis of these pleadings and the evidence which has come on record I do not find that any perversity is there in the award of the Tribunal, where it held that the deceased persons were there in the vehicle with permission of the driver out of human feelings and without payment of fare. Their status at the most was of a gratuitous person. Otherwise also even if it is taken to be a case where the driver has taken fare from these persons, still in the absence of any pleadings and proof by the appellant that this act of the driver was authorised by the insured or it was within the knowledge of the insured is of no consequence. Any act which results in violation of the breach of the condition of the policy by the driver will not relieve or set free the insurance company from its liability where it is not with the consent or knowledge or authority of the insured. The insured has not violated the terms of the policy and if the driver on his own volition did all these things the insurance company cannot be set free. The insured has not violated the terms of the policy and if the driver on his own volition did all these things the insurance company cannot be set free. In this respect reference may have to the full bench decision of this Court in the case of New India Assurance Company Ltd. v. Kamlaben reported in 1993(1) GLR 779 , wherein the Court has held that in order to successfully disclaim its liability on the ground as set out in Section 96(2) (b) of the Motor Vehicle Act,1939 the insurance Company has to establish; (i) that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward; (ii) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward; (iii) that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward; and (iv) that the vehicle was used by the insured or at his instance in breach of specific conditions including a condition that in the goods vehicle passengers for hire or reward were not to be carried. If it is done without knowledge of the insured, why the driver's acts or omissions, the insurer would be liable to indemnify the insured. The burden of proof that the driver has carried the passengers on hire or reward with the knowledge of the insured or the insured had permitted the driver to carry the passenger for hire or reward cannot be exonerated from its liability by virtue of nonobstative clause contained in the said provision. The fact that the insurance company has not proved that the insured has violated the terms of the policy or the driver at his instance, knowledge or authorisation has done it, irrespective of the fact of the admission made by the claimants, the insurance company has rightly been held to be liable to indemnify the insured for the amount of compensation awarded to the claimants in these two claim applications. Admission of the claimants is not that the driver has taken fare from the passengers with the knowledge or at the instance of the insurer. Admission of the claimants is not that the driver has taken fare from the passengers with the knowledge or at the instance of the insurer. These matters are squrely covered by the aforesaid decision of this Court. 11. The similar view has been taken by this Court in case of United India Assurance Company Limited v. Chhatrasing Parbatsing Rathod & Ors. reported in 1999 (2) GLR 1100 . "6. From the contention of the learned counsel for the appellant, the crux thereof is the fact that the tribunal has accepted that the claimants-respondents No. 1 in both these appeals were travelling in a private car as paid passengers with the knowledge of the owner. However, this contention is wholly devoid of any substance and further in total misreading of the judgment and award of the Tribunal. I find from the impugned award that the tribunal has recorded categorically finding that there is nothing on the record which proves that the driver of the jeep had allowed unauthorized persons to travel in the jeep in the knowledge of the owner. Much emphasis has been laid on the fact that the claimants-respondents have admitted that they travelled in the jeep as paid passengers. It is true that this admission is there but there is no admission of the claimants-respondents that the driver has permitted them to travel in the jeep as paid passengers under the instructions or knowledge of the owner of the jeep. The learned counsel for the appellant is unable to show from the award of the tribunal as well as from the record of the case that there is any material evidence to show and establish that the claimants-respondents were travelling as paid passengers in the jeep with the knowledge of the owner. The insurance company has also failed to prove and establish that the owner of the jeep has authorised or permitted the driver to carry in the jeep the paid passengers. The Full Bench of this Court in the case of New India Assurance Company Ltd. v. Kamlaben, wd/o. Sultansinh Hukumsinh Jadav & Ors., affirming earlier decision of the Full Bench of this Court in the case of New India Assurance Co. The Full Bench of this Court in the case of New India Assurance Company Ltd. v. Kamlaben, wd/o. Sultansinh Hukumsinh Jadav & Ors., affirming earlier decision of the Full Bench of this Court in the case of New India Assurance Co. Ltd. v. Nathiben, reported in 1993(1) GLR 779 held that the insurer in order to successfully disclaim his liability on the ground mentioned in Section 96(2)(b) of the Motor Vehicles Act, 1939, has to establish : (i) that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward, (ii) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward, (iii) that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward, and (iv) that the vehicle was used by the insured or at his instance in breach of specific conditions including a condition that in the goods vehicle passengers for hire or reward were not to be carried. It it is done without knowledge of the insured by the driver's acts or omissions, the insurer would be liable to indemnify the insured. Reference may have to another decision of the learned single Judge of this Court in the case of National Insurance Company Ltd. v. Premji M. reported in 1995(2) GLR 1352 , wherein it is held that in case where the insurer has no knowledge about his driver having taken passengers for hire or reward then notwithstanding the acts exclusionary clause contained in the policy, insurer would be liable to indemnify insurer. [See : New India Assurance Company Limited v. Kiritbhai Lalchand Shah and Others reported in 2002 (1) GLH 115 (DB)] 12. The Apex Court by the Hon'ble bench of three Judges has taken the said view in case of Amrit Lal Sood & Anr. v. Kaushalya Devi Thapar & Ors. reported in 1998 (2) GLR 1788 . The relevant Para 8 and 12 are quoted as under : "8. The Apex Court by the Hon'ble bench of three Judges has taken the said view in case of Amrit Lal Sood & Anr. v. Kaushalya Devi Thapar & Ors. reported in 1998 (2) GLR 1788 . The relevant Para 8 and 12 are quoted as under : "8. Thus under Section II 1(a)of the policy the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to 'any person.' The expression 'any person' would undoubtedly include an occupant of the car who is gratuitously travelling in the car. The remaining part of clause (a) relates to cases of death or injury arising out of and in the course of employment of such person by the insured. In such cases the liability of the insurer is only to the extent necessary to meet the requirements of Section 95 of the Act. In so far as gratuitous passengers are concerned there is no limitation in the policy as such. Hence under the terms of the policy, the insurer is liable to satisfy the award passed in favour of the claimant. We are unable to agree with the view expressed by the High Court in this case as the terms of the policy are unambiguous. 12. Learned counsel for the appellants has placed reliance on the judgment in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani, (1964) 7 SCR 867 in support of the claim of the first appellant. In that case, the insurer permitted another person to drive his car and while the said person was driving the car, it met with an accident. The driver of the car faced an action for damages. The question was whether the insurance policy would enable the said driver to claim indemnity from the insurance company. On a consideration of the terms of the policy, the Court held that the company would be liable to indemnify him. The driver of the car faced an action for damages. The question was whether the insurance policy would enable the said driver to claim indemnity from the insurance company. On a consideration of the terms of the policy, the Court held that the company would be liable to indemnify him. In the course of the judgment, the Court said (at p. 1741 of AIR) : "The Act contemplates the possibility of the policy of insurance undertaking liability to third parties providing such a contract between the insurer and the insured, that is, the person who effected the policy, as would make the company entitled to recover the whole or part of the amount it has paid to the third party from the insured. The insurer thus acts as security for the third party with respect to its realising damages for the injuries suffered, but vis-a-vis the insured, the company does not undertake that liability or undertakes it to a limited extent. It is in view of such a possibility that various conditions are laid down in the policy. Such conditions, however, are effective only between the insured and the company, and have to be ignored when considering the liability of the company to third parties. This is mentioned prominently in the policy itself and is mentioned under the heading 'Avoidance of certain terms and rights of recovery', as well as in the form of "An Important Notice", in the Schedule to the policy. The avoidance clause says that nothing in the policy or any endorsement thereon shall affect the right of any person indemnified by the policy or any other person to recover an amount under or by virtue of the provisions of the Act. It also provides that the insured will repay to the company all sums paid by it which the company would not have been liable to pay but for the said provisions of the Act. The 'Important Notice' mentions that any payment made by the company by reason of wider terms appearing in the certificate in order to comply with the Act is recoverable from the insured, and refers to the avoidance clause. Thus the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties, in view of the provisions of the Act. Thus the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties, in view of the provisions of the Act. We are of opinion that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties' right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. Considering this aspect of the terms of the policy, it is reasonable to conclude that proviso (a) of para 3 of Section II is a mere condition affecting the rights of the insured who effected the policy and the persons to whom the cover of the policy was extended by the company, and does not come in the way of third parties' claim against the company on account of its claim against a person specified in para 3 as one to whom cover of the policy was extended." 13. Therefore, according to my opinion, the insurance company has failed to discharge his burden before the Claims Tribunal by not leading proper evidence. In absence of cogent evidence, Tribunal has rightly come to conclusion that there is an additional premium paid by owner to the insurance company about Rs. 450/- covered nine passengers and therefore, insurance company is liable. According to my opinion, such conclusion of the Tribunal cannot consider to be a faulty in view of the fact that there is no cogent evidence produced on record by the insurance company to have the different conclusion. Therefore, the contention raised by learned advocate Mr. Mazmudar cannot be accepted in light of the evidence on record and also considering the failure on the part of the insurance company for not making any efforts to see that the driver and owner must have to be examined before the Claims Tribunal and no witness summons has been also applied by insurance company to the Claims Tribunal to prove this defence before the Tribunal. 14. Therefore, according to my opinion, the contentions raised by learned advocate Mr. Mazmudar cannot be accepted by this Court and therefore, the same are rejected. 15. I have considered the award as to whether compensation awarded by Tribunal is reasonable, just and proper or not. 14. Therefore, according to my opinion, the contentions raised by learned advocate Mr. Mazmudar cannot be accepted by this Court and therefore, the same are rejected. 15. I have considered the award as to whether compensation awarded by Tribunal is reasonable, just and proper or not. After appreciating the discussion of the Tribunal for giving compensation while assessing the income of Rs. 1500/-, 15 multiplier looking to the age of 32 years of the deceased and for loss of expectation Rs. 10,000/-, for loss of consortium Rs. 10,000/- and for funeral expenses Rs. 3,000/- cannot consider to be on higher side. 16. Therefore, according to my opinion, there is no substance in the present appeal. Accordingly, present appeal is dismissed. 17. Registry is directed to transmit the amount which has been deposited by the insurance company, if any, to the concerned Claims Tribunal. 18. In view of above order, Civil Application No. 4001 of 2008 does not survive. Accordingly, Civil Application is disposed of. Appeal dismissed.