JUDGMENT : The present appeal has been preferred by the respondent-Insurance Company assailing the judgment and award passed by I Addl. District and Sessions Judge and MACT-II, Bijapur, in MVC No.504 of 2008 dated 5.4.2010. 2. Brief facts of the case as per the petition are that; on 1.1.2008 at about 1.00 a.m. Chittu @ Honnagouda and others were traveling in the autorickshaw bearing No.KA.28/A-6105 to proceed to Darga from Bijapur. When the said auto came near the office of Superintendent of Police, the driver of the auto drove the same rashly and negligently in a zig-zag manner and lost the control and thereafter dashed to a road divider and as a result of the same, the said auto turtle and the inmates were sustained grievous injuries, Chittu @ Honnagouda subsequently succumbed to the injuries and as such the claim petition came to be filed. 3. After service of notice, respondent No.1 appeared and filed his written statement by denying the contents of the petition. He further contended that the driver of the auto was having valid and effective driving licence and it was insured with the respondent No.2 and the policy was valid as on the date of the accident and he prayed to fix the liability on the respondent No.2. 4. Respondent No.2-Insurance Company also appeared and contested the case by filing the written statement by denying the contents of the petition. He further contended that the said auto has not met with accident and the driver of the auto was not having valid and effective driving licence and the auto rickshaw was not having valid permit, FC and RC particulars and as such there is a breach of conditions of the policy. On these grounds, he prayed for dismissal of the said petition. 5. On the basis of the above pleadings, tribunal framed the issues and after recording the evidence awarded the compensation by fixing the liability on the respondent No.1, but however it is further ordered that respondent No.2 has to pay the award amount and recover the same from respondent No.1. By assailing the said order, the Insurance Company is before this Court. 6. I have heard the learned counsel for the appellant and the learned counsel for the respondents. 7. By assailing the said order, the Insurance Company is before this Court. 6. I have heard the learned counsel for the appellant and the learned counsel for the respondents. 7. The main grounds urged by the learned counsel for the appellant are that the impugned judgment and award is not sustainable in law and the same is liable to be set aside. She further contended that the compensation awarded is also on the higher side. When there is violation of the terms and conditions of the policy, the trial Court ought to have fixed the liability only on respondent No.1 and further direction issued to pay the compensation by the appellant and to recover the same from respondent-owner is highly unimaginable and it is not in accordance with the settled principles of law. He further contended that the tribunal while considering the plea of liability came to the conclusion that there is violation of terms and conditions of the policy but, without referring to the provisions of law the tribunal has directed the appellant to pay the compensation amount and recover the same from respondent No.1 which is not sustainable in law. On these grounds, she prayed for allowing the appeal by setting aside the impugned order. 8. Per contra, the learned counsel appearing for the respondents vehemently argued and contended that the order of the tribunal is as per the dictum laid down by the Hon’ble Apex Court. In view of Sub-Section (2) of Section 149 of the Motor Vehicles Act, the insurer is not exempted to pay the compensation. He further contended that the Hon’ble Apex Court has passed the judgment, therein the liability though it has been fixed on the owner, but directions have been issued to the Insurance Company to pay and recover. On these grounds he prayed for dismissal of the said appeal. 9. So far as the amount of compensation awarded by the tribunal, there are no material to show that the compensation awarded is on the higher side. Even the learned counsel for the appellant has also not seriously disputed the said fact. 10. On these grounds he prayed for dismissal of the said appeal. 9. So far as the amount of compensation awarded by the tribunal, there are no material to show that the compensation awarded is on the higher side. Even the learned counsel for the appellant has also not seriously disputed the said fact. 10. The only contention which was taken up by the learned counsel for the appellant is that, when the liability has been fixed on respondent No.1 by holding that the owner of the auto has obtained the permit to use the said auto within the jurisdiction of Basavanabagewadi Town Panchayath and admittedly the accident has occurred on Solapur road, Bijapur, and as such there is a breach of conditions of the policy and the insurer is not liable to pay any compensation. 11. The question which arises for my consideration is that the deviation of the jurisdictional permit whether it absolve the liability of the insurer under Section 149(2) of the Motor Vehicles Act. For the purpose of brevity, I feel it as apt to refer to the relevant provisions of Section 149 (2) (a) (i) (c) of the Act, which reads as under: a. that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:- (i) a condition excluding the use of the vehicle - “(a) xxxx (b) xxxx (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) xxxx ” Section 149(7) of the Act indicates the manner in which Subsection 2 of Section 149 has to be interpreted. For the purpose of brevity, I extract Section 149 (7) which reads as under: “Section 149(7) : No insurer to whom the notice referred to in sub-section (2) or subsection (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in subsection (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.” 12. By going through the above provision of law it is clear that the insurer can avoid its liability only on the statutory defences enumerated in Subsection (2) of Section 149 of the Act. 13. This Court in the case of United India Insurance Co. Ltd., and Others Vs. Chandamma and Others reported in ILR 2000 Kar 1302 by considering the provisions of the Act with reference to the conditions in the policy of the insurance has held at paragraph 6 as under: “6. Admittedly, the ground spelt out under sub-clauses (b), (c) and (d) of clause (a)(i) and the ground under clause (b) of Section 149(2) are not applicable to the defence of insurers in these cases. On the other hand, an attempt had been made for the insurers to bring their cases within the purview of the defence ground envisaged in sub-clause (a) of sub-section (2)(a)(i). This ground is also not available to them for the reason that, admittedly, each of the offending vehicles was covered by a valid permit to carry passengers for hire or reward as they were "public service vehicles". Merely because these vehicles were stated to have stopped and picked up passengers on the permitted route, presumably in breach of their permit condition, that by itself does not constitute a statutory defence available in sub-section (2)(a)(i)(a) of Section 149. In fact, Section 149(2) of the New Act i.e., Act of 1988, corresponds to Section 96(2) of the Old Act i.e., Act of 1939. The same defence grounds as are contained in Section 149(2) of the New Act were existing as the defence grounds under sub-section (2)(b) and (c) of Section 96 of the Old Act. Similar question had arisen for consideration of the Division Bench of this Court in the case of K.V. Thimmegowda v Kamalamma' and the same had been answered holding: "An Insurance Company is liable to pay compensation in respect of the injury to or death of a third party, caused by a motor accident by a motor vehicle, which is a stage carriage while plying or being used lawfully otherwise than as a stage carriage, at a public place, even if such public place does not lie on the route in respect of which it is permitted to operate as a stage carriage". Therefore, in law the appellants/petitioners-insurers are not exempt from their liability to pay compensation under their respective 'Act Policies' by mere reason of 'contract carriages' in question being plied as 'stage carriages' in breach of their permit condition since such a defence plea is not permissible under sub- section (2) of Section 149 of the Act. If the said vehicles were found to have been plying in breach of their permits condition, it is open for the concerned authorities under the Act to take appropriate action as is permissible under other provisions thereof viz., Sections 86, 177 and 192, as the case may be. Therefore, we find the contention of the learned Counsel for appellants/writ petitioners without force and weight and the appeals are, therefore, bound to fail.” 14. By going through the above said decision of this Court, if the said vehicle were found to have been plying in breach of their permit condition, it is open for the concerned authorities under the Act to take appropriate action as is permissible under the other provisions of the Act and thereby the liability cannot be exonerated and the Insurance Company is liable to pay the compensation. 15. In the case of United India Insurance Co. Ltd., and Others Vs. Chandamma and Others it has been held that when there is violation of permit condition, the insurer cannot absolve its liability to satisfy the award. It is further observed that such a defence is not permissible under Section 2(a)(i) of Section 149 of the Act. In this behalf the contention taken up by the learned counsel for the respondents appears to be justifiable. 16. Under the above said facts and circumstances the alleged breach is not so fundamental which will go to the root of the contract between the insured and insurer so as to absolve its liability. When such defence is not available to the Insurance Company under Section 149(2)(a)(i) of the Act, the order of the trial Court in this behalf is not correct. Though the owner of the vehicle has not challenged the impugned judgment and award, when it is purely a question of law and in order to meet the ends of justice and as per the ratio laid down in the above decision quoted supra by this Court, I am of the considered opinion that the appellant-Insurance Company is liable to pay the compensation. Even the observation made by the tribunal that after payment the said award amount has to be recovered from respondent No.1, is set aside and absolute liability has been fixed on the appellant-Insurance Company. 17. Keeping in view the above said facts and circumstances of the case, appeal is partly allowed and judgment and award passed by I Addl. District and Sessions Judge and MACT-II, Bijapur, in MVC No.504 of 2008 dated 5.4.2010 is modified as stated above. The amount in deposit before this Court shall be transmitted to the jurisdictional tribunal.