1. This is an appeal by the National Insurance Company Ltd. against the judgement and award dated 13.5.2006 passed by the Motor Accident Claims Tribunal, Kamrup in MAC Case No.702 of 2005. 2. The findings as returned by the Tribunal as regards the accident that occurred on 27.3.2005 for the rash and negligent driving of the vehicle bearing registration No. AS-25-B-1701(Bus) causing death of one Aftab Ali who was travelling by the said bus from Hajo to Guwahati and the insurance coverage of the said vehicle by the appellant are not in dispute by either of the parties or in the appeal as such those findings stand affirmed without requiring further appraisal. 3. The questions those have been projected in the appeal are related to the assessment of the compensation without determining the rateability thereof and the liability of the payment of the rateable compensation. 4. Mr. R. Goswami, learned counsel appearing for the appellant referred the Clause-38 of the India Motor Tariff applicable for the commercial and motor trade vehicles and submitted at the outset that the relevant insurance policy covered only 34 passengers whereas it appears from the police records that the bus was carrying 56 passengers at the time of accident. The premium was paid for covering risk of 34 passengers and as such unless rateable proportion is determined, the insurance company is not liable to pay the compensation beyond the 34 passengers. At this stage, Mr. R. Goswami, learned counsel appearing for the appellant further referred the India Motor Tariff where it has been held that: "Provided always that in the event of an accident occurring whilst the Motor vehicle is carrying more than the number of persons mentioned in the Scheduled hereto as being the licensed carrying capacity of that vehicle in addition to the conductor if any then the Insured shall repay to the company rateable proportion of the total amount which would be payable by the company by reason of this endorsement if not more than the said number of persons carried in the Motor Vehicle." 5. Mr. Mr. R. Goswami, learned counsel appearing for the appellant by taking this court to the records submitted that it transpired from the Accident Information Report as furnished by the Officer-in-Charge, Hajo Police Station that a case was registered for the said accident as Hajo P.S. Case No. 50 of 2005 under sections 279, 337, 338, 304(A) of IPC. In the said report (Ext.1) only the name of the deceased appears. Mr. R. Goswami, learned counsel appearing for the appellant submitted that the police had initially suppressed the names of the injured persons and the persons who died in the said accident, but later on the in-Charge of Dadara Out Post, Kamrup furnished a detailed list of the 56 persons on 14.9.2005 which has been admitted as Ext.D in the evidence. It appears further that by Ext.C document the appellant submitted the details of the persons received injuries or death in the said accident. Apart that, in the Written Statement supported by the affidavit, the appellant herein has categorically stated at Para-6 that the insurance investigator had collected a list of injured and dead persons from Hajo Police Station in the course of investigation and the list was duly certified by the concerned in-Charge of the Police Station. As per the list there were 56 Nos. of injured passenger boarding the bus at the time of the accident. The bus was carrying the passengers beyond its capacity for which the premium was paid. It has been further stated in Para-7 of the Written Statement that there had been violation of the policy condition by the owner of the vehicle and as per the IMT-38, the insured shall repay to the National Insurance Co. Ltd. the rateable proportion of the total amount which would be payable by the insurer to the third parties. 6. But the insurance company did not assert the rateable proportion in the Written Statement as it appears to the court that it was improbable at that time. By the Ext.C document the appellant has given the number of cases filed by the injured and the dependants of the deceased in the Tribunal. Mr. 6. But the insurance company did not assert the rateable proportion in the Written Statement as it appears to the court that it was improbable at that time. By the Ext.C document the appellant has given the number of cases filed by the injured and the dependants of the deceased in the Tribunal. Mr. R. Goswami, learned counsel appearing for the appellant has referred a decision of the Apex Court in New India Insurance Company Ltd. v. Shanti Bai, (1995) 2 SCC 539 where the Apex Court held that "in the case of insurance company not taking any higher liability by accepting the higher premium for payment of compensation to the 3rd party, the insurer would be liable to the extent limited under section 95(2) of the Act and would not be liable to pay the entire amount." The similar view has been expressed by the Apex Court in New India Assurance Company Ltd. v. CM. Jay a, (2002) 3 SCC 278. But those cases had no occasion to consider changes that emerged in view of the amended provision of 147(1) of the Motor Vehicles Act. The extent of limit has been taken away and the liability of the insurance company is to the extent as would be determined by the competent Tribunal. But when there is a gross breach of the policy condition, the insured cannot escape the liability. 7. Mr. R. Goswami, learned counsel appearing for the appellant, therefore, contended that the Tribunal ought to have taken all the claim cases arising out of the said accident together for purpose of determining the rateable proportion for making the direction as regards the proportionate liability inasmuch as the rateable proportion means the respective liability of the insurer and the insured. In this case, the proportion would be 34/56 of the awarded sum in each cases as would have been decided by the Tribunal. 8. Mr. T.J. Mahanta, learned counsel appearing for the insured, the owner of the vehicle, submitted that it has not been established that 56 passengers were injured and all were the passengers of the bus at the time of accident. 8. Mr. T.J. Mahanta, learned counsel appearing for the insured, the owner of the vehicle, submitted that it has not been established that 56 passengers were injured and all were the passengers of the bus at the time of accident. Moreover, it was the onus of the appellant to approach the Tribunal for determining the rateable proportion inasmuch as for an appropriate order of analogous hearing of all the claim petitions or for determining the rateable proportion, the Tribunal has to be apprised the relevant facts therefor, but for unintelligible reasons the appellant had not done so. On mere submission of a list as certified by the police authority the appellant cannot be allowed to claim that all the injured were the passengers of the bus or there had been 56 claim petitions by the injured or the dependants of the deceased. As such the contention as to the rateable proportion at this stage cannot be accepted. 9. On the other hand, Mr. N. Debnath, learned counsel for caveator submitted that whatever the situation may be the appellant has to pay the compensation to the claimant even as per the India Motor Tariff and as determined by the Tribunal inasmuch as the quantum has not been challenged in the appeal. 10. On the face of the rival contentions as projected by the learned counsel for the parties, it appears to this court that from the very beginning the appellant has been asserting that out of the same accident numerous claim cases have been filed. In their Written Statement as referred hereinbefore as well as in the deposition by the DW1 it has been categorically contended that 56 claim cases have been registered from the said accident and in this regard Ext.C document has been referred to. 11. In the paragraph 9 of the Written Statement the appellant raised the question of determination of the rateable proportion. However number of the injured or the deceased has not been asserted by the Written Statement. At the time of deposing, the DW1 categorically stated that the offending vehicle was Carrying 56 passengers whereas as per the policy the passengers more than 34 are not covered for the policy benefits. However number of the injured or the deceased has not been asserted by the Written Statement. At the time of deposing, the DW1 categorically stated that the offending vehicle was Carrying 56 passengers whereas as per the policy the passengers more than 34 are not covered for the policy benefits. Whether by way of deposition in absence of the pleadings such vital aspect of the case can be developed or not within the scope of section 168, M.V. Act, 1988 can be a subject-matter of an elaborate discussion, but the general principle is that by evidence only, the pleadings be proved or disproved or debased. As such this court would have entirely ignored the said aspect, but in view of Ext.C and Ext.D documents which were introduced by the appellant, such interference can hardly be drawn. 12. Mr. T. J. Mahanta, learned counsel appearing for the owner of the vehicle has rightly submitted that the relevant facts ought to have been pleaded and proved for purpose of having the benefit of the conditions of the India Motor Tariff and the appellant would have approached the Tribunal at the very outset with a prayer for analogous hearing but they have not done so. But the lapse as referred cannot as well allowed to be so potent for taking out the board of the contractual obligations. 13. On aggregate consideration of the materials as available in the records and as scrutinized by this court as well as on appreciation of the contentions by the counsel of the parties, this court has no hesitation to hold that the appellant shall pay the awarded sum to the claimant-respondent forthwith on deducting the sum, if any, that has been paid by this time. It is further held that after adjudication of the claim petitions as referred in Ext. C and D document, if it is found that the claims of the passengers are more than 34, then the insurance company would be at liberty to recover the rateable proportion as per the clause as extracted from the India Motor Tariff from the insured, the owner of the vehicle under section 174 of the Motor Vehicles Act and for that purpose the appellant shall furnish copies of the judgment and award before the Tribunal for due examination. It is made clear that the award has to be satisfied by the appellant in all the cases initially and only thereafter they would be at liberty to realise the rateable proportion if it is found that the passengers who fell victim to the said accident were more than 34(thirty four). 14. For the reasons as discussed above, this appeal stands partially admitted to the extent as indicated above. 15. It is further directed that the appellant shall make payment of the awarded sum in the Tribunal within a period of two months from today on deducting the sum that has been paid to the claimant-respondents by now. 16. There shall be no order as to costs. Send down the LCRs forthwith.