JUDGMENT Dev Darshan Sud, J. This appeal has been preferred by the Insurance Company against the award passed by the learned Motor Accident Claims Tribunal, Solan awarding a sum of Rs.2,00,000/- to the claimants along with interest at the rate of 7.5% per annum from the date of the petition till payment. The facts are not disputed but what the appellant/insurance company challenges in the award is that the vehicle was being driven in contravention of provisions of the Motor Vehicles Act i.e. Ex. RW1/A which is route permit, was not valid on the date when the accident took place and in this eventuality the liability would not be that of the insurance company but squarely that of the owner. The learned Tribunal on the pleadings and evidence before it, holds that the vehicle was not being driven in violation of the conditions of the insurance policy. The learned Tribunal holds that Ex. RA, which is the registration certificate of the vehicle and Ex. RB, which is the driving licence, were effective and valid on the date when the accident took place. 2. Learned counsel appearing for the appellant submits that Ex.RW1/A, which is the route permit, is valid from 13th March, 2008 to th March, 2008. The accident took place on 6th March, 2008 on which date no valid route permit was in existence. This submission of the appellant is opposed by Shri H.S. Rana, learned counsel appearing for respondent No.3/owner on the ground that there was no pleading(s) and evidence on this issue. The issue framed by the learned Tribunal was as to whether the vehicle was being driven in violation of the terms of the insurance policy. 3. What I find from the pleadings is that in preliminary objections No.4, it has been clearly pleaded that permit and certificate of fitness have not been placed on the record of the case. In any event, Ex. RW1/A is the permit issued by the Regional Transport Authority, Solan, which has been proved by RW1 Shri Devender Attri, Computer Operator in the Office of RTO, Solan. In cross-examination he admits that permit does not state as to when it was applied for. Ex. RW1/A is valid from 13th March, 2008 to 5th March, 2013. There was no evidence contrary to it. The date of accident has not been disputed. 4. In cross-examination he admits that permit does not state as to when it was applied for. Ex. RW1/A is valid from 13th March, 2008 to 5th March, 2013. There was no evidence contrary to it. The date of accident has not been disputed. 4. Learned counsel appearing for the appellant relies upon judgment of this Court in Oriental Insurance Company Ltd. versus Smt. Samila and others, FAO No. 13 of 2007 (along with connected appeals), decided on 12.1.2012 holding: “4. The main question is whether the owner had a valid permit to ply the bus and if not whether the Insurance Company has to be exonerated of its liability. These matters were heard in part on 30.6.2011 on which date this Court had passed the following order:- “Heard in part. One of the main questions which arises in these cases is, whether the owner of the bus had a valid route permit to ply the bus on the particular route or not. The owner in one of the case stated that he had applied for a route permit and in another case stated that Block President of Congress had applied for special permit for that day and the permit was in the bus. In my view to do the justice between the parties and effectively decide these cases, it is necessary to find out whether the owner had a valid route permit or not. The owner is called upon to file an affidavit disclosing whether the had any regular route permit of the bus in question on the date when accident took place. In case there was such a route permit, he shall disclose from which authority the route permit was issued. The owner in his affidavit shall also clearly state whether any special permit was obtained and if it was obtained from which authority? Affidavit be filed within two weeks. List on 14th July, 2011.” 6. Shri Ashwani Sharma, learned counsel for the Insurance Company submits that the owner did not have a valid route permit to ply the bus and this was a breach of the condition of the policy and as such the Insurance Company could not be held liable to pay any compensation. The policy Ext.C-1/A contains a stipulation that the policy covers use only under a permit issued within the meaning of Motor Vehicles Act, 1988. The policy Ext.C-1/A contains a stipulation that the policy covers use only under a permit issued within the meaning of Motor Vehicles Act, 1988. Thus there is a specific stipulation in the policy that the vehicle should have a route permit. Section 149(2) of the Motor Vehicles Act read as follows:- "149. (2) No sum shall be payable by an insurer under subsection (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely- (a) that there has been a breach of a specified condition of thepolicy, being one of the following conditions, namely- (i) a condition excluding the use of the vehicle- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or ; (d) without sidecar being attached where the vehicle is a motorcycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular." 7. A bare perusal of sub clause (i) (a) shows that one of the defences which is open to the Insurance Company is that the vehicle has been used for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward. Sub clause (i)(c) further provides that the Insurance Company can take a defence that the vehicle was being used for a purpose not allowed by the permit under which the vehicle is being used, where vehicle is a transport vehicle. The Apex Court in National Insurance Co. Ltd vs. Challa Bharathamma and others 2004 ACJ 2094 while considering the scope and ambit of Section 149(2) of the Act held as follows:- “12. The High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed on a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. The High Court was, therefore, not justified in holding the insurer liable. 13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned 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. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.” 8. The then Hon’ble Chief Justice of this Court in J.B.Pipes vs. Madan Lal and others 2008 ACJ 574 following the judgement of the Apex Court in Challa Bharathamma’s case held as follows:- “8. Section 149(2) is very clear on the subject. It clearly lays down that it is open to an insurer to defend a claim on the ground of the breach of a policy condition excluding the use of vehicle for hire or reward where the vehicle is not covered by a permit to ply for hire or reward. The expression, “where the vehicle is not covered by a permit to ply for hire or reward”, includes a situation where the vehicle is being plied in an area which is outside the coverage of the route permit.” 9. It is thus clear that not only the defence of absence of permit but also that the vehicle is being used in violation of the terms of the permit and thus in violation of the provisions of the policy, is available to the insurer. 11. The Apex Court in Kamala Mangalal Vayani and others vs. United India Insurance Co. Ltd. and others 2010 ACJ 1441 held that it is for the Insurance Company to prove the violation of the policy. 12. On the other hand Shri Jagat Singh Shyam, Advocate, has relied upon a judgement delivered by this Court in Smt. Vijay Kumari vs. The New India Assurance Co. Ltd. and others 2010 ACJ 1441 held that it is for the Insurance Company to prove the violation of the policy. 12. On the other hand Shri Jagat Singh Shyam, Advocate, has relied upon a judgement delivered by this Court in Smt. Vijay Kumari vs. The New India Assurance Co. Ltd. and others Latest HLJ 2011 (HP) 760 wherein this Court held as follows:- “4. The issue whether the State should give route permits specific to a particular bus, or whether the route permits should be for the fleet of one owner came up for consideration before a Division of this Court in a group of matters. The Division Bench of this Court while deciding the aforesaid bunch of cases in CWP No. 637 of 2005 titled as Shiv Kumar Kaul Vs. State of HP & Ors. and another connected matters disposed of these petitions in the following terms:- “........................................................................ In view of the aforesaid discussion, all the writ petitions are allowed and it is held that as the law stands, the State has no power to direct that route permit shall be vehicle specific and granted for one vehicle only. The past practice of entering the shall be followed so long as necessary amendment is not made in the rules.” 5. It is thus apparent that this Court held that as the law stood on January 2008 the State had no power to direct that route permit shall be vehicle specific and granted for one vehicle only. It was further directed that the State should follow the past practice of entering the registration numbers of all the vehicles owned by the owners till the amendment is not made in the rules. Therefore, by virtue of this judgment the necessary effect would be that the two route permits would be valid for both the buses.” 16. However, following the law laid down by the Apex Court in Challa Bharathamma’s case the Insurance Company shall pay the amount to the claimants and shall have the right to recover the same alongwith interest as granted by this Court to the claimants from the owner of the bus. The Insurance Company shall not have to file a separate suit to recover the amount but can recover the same by filing Execution/Restitution proceedings under the Motor Vehicles Act. 5. The Insurance Company shall not have to file a separate suit to recover the amount but can recover the same by filing Execution/Restitution proceedings under the Motor Vehicles Act. 5. Learned counsel also fortifies his submissions with the judgment of this Court in The New India Assurance Company versus Balbir Singh and others, FAO No. 366 of 2010 along with connected matter, decided on 24.7.2012 holding: “2. The moot question, in the instant appeal is whether the Insurance company is liable to indemnify the insured for the amount of compensation on account of breach of the terms and conditions of the policy viz-a-viz the vehicle in question, being plied on a road for which it was not having permit?” Relying upon the decision of the Supreme Court in National Insurance Company Ltd. versus Challa Bharathamma, 2004 ACJ 2094 (SC) and the decision of this Court in J.B. Pipes versus Madan lal and other 2008 ACJ 574, the Court holds that the liability could not be fastened on the insurance company. 6. Learned counsel appearing for respondent No.3 placed reliance upon the judgment of the Supreme Court in State of Orissa and others versus Bijaya C. Tripathy, AIR 2005 SC 1431 to urge: “10. The High Court also appears to have been misread Section 66 of the Motor Vehicles Act. All that Section 66 of the Motor Vehicles Act provides is that the owner of a motor vehicle cannot use the vehicle as a transport vehicle in any public place without a permit. Section 66 therefore, merely prevents use of the vehicle as a transport vehicle without a permit. It does not prohibit driving of such a vehicle on a public road. The vehicle can be driven on a public road so long as it is not used as a transport vehicle. To take an extreme example the owner of such a vehicle may use that vehicle for taking his family out for a picnic. Section 66 will not bar such a use. It is thus clear that even in the absence of a permit the vehicle remains a transport vehicle which is capable of being used on a road so long as the vehicle has a valid certificate of fitness and a valid registration certificate. Section 66 will not bar such a use. It is thus clear that even in the absence of a permit the vehicle remains a transport vehicle which is capable of being used on a road so long as the vehicle has a valid certificate of fitness and a valid registration certificate. In such cases it has to be presumed that such a vehicle has been “kept for use” irrespective of whether or not it was actually used on the road.” (p.1432-1433) Learned counsel submits that in this eventuality it would be the liability of the Insurance Company. I cannot accept this submission in view of what has been laid down by this Court in Oriental Insurance Company Ltd. versus Smt. Samila and others, FAO No. 13 of 2007 (along with connected appeals), and The New India Assurance Company versus Balbir Singh and others, FAO No. 366 of 2010 (along with connected appeals) (supra). 7. In J.B. Pipes case (supra) the facts were: “3. The appeal is taken up for admission today. Heard. The vehicle involved in the accident was atruck bearing registration No. PB 08-V 6775. The contention of the claimant was that while the claimant was going on bicycle, this truck being driven by respondent No.1 in a rash and negligent manner hit against the claimant causing injuries to him. 6. Learned counsel appearing for appellant submits that plying a vehicle in an area not covered by route permit does not amount to a fundamental breach of a policy condition. 7. In support of this contention, he has referred to a judgment of the Supreme Court in the case of State of Maharashtra and others vs. Nanded-Parbhani Z.L.B.M.V. Operator Sangh, reported in (2000) 2 SCC 69 . I am afraid, this judgment is of no help whatsoever to the appellant because in this case, the Supreme Court was dealing with the applicability and violation of Section 207 of the M.V.Act, 1988 with respect to a fact situation where action was being taken against the Luxury Buses for carrying passengers excess in number to that allowed by the route permit. This was not a case where the violation alleged related to the plying of the vehicle without the route permit. This was not a case where the violation alleged related to the plying of the vehicle without the route permit. Apart from this, applicability of Section 207 is quite distinct than the applicability of Section 149(2) with respect to a defence available to an insurer in a claim petition filed under Section 166 of the M.V.Act, 1988. Both Sections operate in different fields. 8. Section 149(2) is very clear on the subject. It clearly lays down that it is open to an insurer to defend a claim on the ground of the breach of a policy condition excluding the use of vehicle for hire or reward where the vehicle is not covered by a permit to ply for hire or reward. The expression, “ where the vehicle is not covered by a permit to ply for hire or reward”, includes a situation where the vehicle is being plied in an area which is outside the coverage of the route permit. 9. The Apex Court in the case of National Insurance Company Ltd. vs Challa Bharathamma and others, reported in 2004 ACJ 2094 (SC), has clearly held and taken a definite view that a person without a permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit but has violated any condition thereof. The following observations are apposite and I quote: “ (12)High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable.”” (pp.575&576) 8. In these circumstances, the appeal is accordingly allowed. I direct that the Insurance Company shall first pay the awarded amount and thereafter it shall be recovered from the owner. 9. All pending miscellaneous application(s) also stand disposed of.