JUDGMENT Mr. K. Kannan, J.: (Oral) - The appeal is against an award of compensation of Rs.1,40,200/- against the owner and the driver of the Car arrayed as first respondent and exonerating the Insurance Company. The Insurance Company was exonerated on the ground that at the relevant time of accident the license had already expired and therefore the Insurance Company could not be made liable. 2. Learned counsel for the petitioner would contend that he was a rickshaw puller and he had suffered fractures in both his legs. On that account he could not carry his avocation as a rickshaw puller. The doctor who had examined him had given examination certificate that he had suffered 40% disability. The Tribunal while determining the compensation constituted 40% loss of earning power and proceeded to take the income at Rs.1500/- per month and took the loss by adopting a multiplier of 16 and providing for Rs.1,15,200/- as loss of earning capacity it had also provided for medical treatment of Rs.10,000/- and assessed Rs.10,000/- towards pain and suffering. Learned counsel for the petitioner argues that he had completely lost his earning capacity and therefore the assessment is grossly low. 3. I cannot accede to the contention that a person that suffers a fracture is rendered immobile for the rest of his life. I do not have the benefit of evidence before me to obtain such an inference that he was not capable of working as a rickshaw puller for the rest of his life. The assessment made already is high enough that requires no modification. At best the injury could have only caused a temporary partial loss of earning capacity. There is no appeal by the respondents and therefore I will find no reason to reduce it. The assessment of pain and suffering and medical expenses have been reasonable enough. I see no reason to interfere with the quantum of compensation. 4. As regards the liability learned counsel appearing for the Insurance Company points out to me that In Sardari and others Vs. Sushil Kumar and others [2008(2) Law Herald (SC) 1197 : 2008(2) Law Herald (P&H) 932 (SC)] : reported in 2008 ACJ 1307 in support of his plea that Insurance Company can not be made liable at all. In that case a tonga collided with a tractor and the tonga driver sustained fatal injuries. Sushil Kumar and others [2008(2) Law Herald (SC) 1197 : 2008(2) Law Herald (P&H) 932 (SC)] : reported in 2008 ACJ 1307 in support of his plea that Insurance Company can not be made liable at all. In that case a tonga collided with a tractor and the tonga driver sustained fatal injuries. The tractor driver admitted that he had no license to drive the tractor. The Court had found that the claimants should be entitled to compensation only from the driver and owner of the vehicle. The Court observed that the exoneration of the Insurance Company from liability was appropriate in as much as the owner of the vehicle had statutory obligation to see that the driver of the vehicle whom he authorized to drive held a valid license. I cannot accept an argument made by the learned counsel that refers to judgment rendered in that context of either a driver not holding a license for a particular category of vehicle or when there had been no license at all. The judgment again had been rendered without reference to the provision under Section 149 (4) and 149 (5) of the Motor Vehicle Act. Section 149 (4) and (5) are reproduced hereunder:- 149 (4) Where a certificate of insurance has been issued under sub section (3) of Section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub section (2) shall as respects such liabilities as are required to be covered by a policy under clause (b) of sub section (1) of section 147, be of no effect. Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person. (5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.” 5. These clauses have been specifically dealt with by the Supreme Court in New India Assurance Company Limited Vs. Kamla reported in AIR 2001 SC 1419 . The Supreme Court has held that proviso to sub clause 4 as well as the language in sub clause 5 would indicate that when a license had been originally issued the burden would be on the person to prove that it was not valid and that when a valid insurance policy had been issued in respect of a vehicle as noticed by the certificate of insurance, the burden would be on the insurer to pay a third party, whether or not there has been any breach or violation of policy conditions. The breach which can be complained of in this case is both statutory breach as well as a breach of terms of policy. A person that drives a vehicle without a license commits an offence under the provisions of the Act and he could not be said to be a person duly licensed. In such an event the only benefit that the Insurance Company could get is to pay and recover the amount from the owner and the driver. 6. It is also in keeping with the welfare for consideration that must come in understanding the provisions of the Motor Vehicles Act, 1988. As far as the third party is concerned his right to claim obtains by a statutory compulsion for every owner of vehicle to have the vehicle duly insured duty cast under Section 146 and 147. The provision will be rendered meaningless if the Insurance Company can plead in defence that it cannot be made liable at all. It will also mean violation of the language of Section 149 (4) and (5). A contract of Insurance is between the insurer and the insured and the violation of terms of policy at best could be only to provide for a right of action by the insurer against the insured. After having secured a premium from the owner, it cannot avail to an insurer to deny the right to a third party who sustains injury or by the conduct of the insured. The total exoneration as pleaded for therefore is untenable for more reasons than one. This Court has dealt at length the foundation of pay and recover principle’ in the judgments in The New Indian Assurance Co.Ltd. Vs. The total exoneration as pleaded for therefore is untenable for more reasons than one. This Court has dealt at length the foundation of pay and recover principle’ in the judgments in The New Indian Assurance Co.Ltd. Vs. Tek Chand Gupta and others in FAO No.2879 of 2000 and The New India Assurance Company Ltd. Vs. Harbans Kaur in FAO No.3053 of 2010. I do not want to further elaborate on the reasoning. 7. The award shall stand modified to allow for enforcement against all the respondents, but the Insurance Company will have a right of recovery from the owner on account of breach of conditions of the terms of policy. 8. The appeal is dismissed.