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2020 DIGILAW 494 (JK)

Sakeena Begum v. New India Assurance Co. Ltd.

2020-09-21

SANJEEV KUMAR

body2020
JUDGMENT : Sanjeev Kumar, J. 1. The wife of the deceased late Gander Malik, who was claimant before the Motor Accident Claims Tribunal, Bhaderwah (hereinafter referred to as the 'Tribunal'), is in appeal against the award dated 31.03.2004 passed by the Tribunal in file No. 58/claim titled 'Mst. Sakeena Begum vs. Ashwani Kumar and ors'. 2. This appeal has been filed primarily on the ground that the compensation awarded by the Tribunal is too meager, to be called just and fair and also that the Tribunal, in the given facts and circumstances, failed to apply the principle of 'pay and recover' and erroneously absolved the New India Assurance Company Ltd., ['insurer'] of its liability to pay compensation to the appellant [claimant]. 3. The bare minimum facts relevant to disposal of this appeal may be noticed herein below: On the fateful day, deceased Gander Malik, the husband of appellant boarded a load carrier bearing registration No. 4861-JKS [the offending vehicle] at village Malhori. The offending vehicle was going towards Pul Doda and just a few yards before the destination, it met with a fatal accident at Napli. The offending vehicle skidded off the road and plunged into the river causing the death of the deceased. 4. On the allegation that the deceased had died in the motor vehicle accident due to rash and negligent driving of the offending vehicle by its driver, the respondent No. 3, a claim petition was filed by the appellant before the Tribunal arraying Mushtaq Ahmed, the driver, Ashwani Kumar, the owner and the insurer as party respondents. The claim petition was contested only by the insurer. 5. On the basis of pleadings of the parties, the Tribunal framed the following issues: (i) Whether the deceased Gander Malik died in a vehicular accident on 19.03.1996 at Napli Doda which occurred due to the rash and negligent driving by respondent No. 3? OPP. (ii) On proof of issue No. 1, to what amount of compensation the petitioner is entitled and from whom? OPP (iii) Whether the deceased was travelling as gratuitous passenger and the petitioner is not entitled to any claim? OPR 2 (iv) Whether the vehicle was being driven by an un-authorized person and the respondent No. 2 is not liable to pay the amount of compensation? OPR 2 (v) Relief. 6. OPP (iii) Whether the deceased was travelling as gratuitous passenger and the petitioner is not entitled to any claim? OPR 2 (iv) Whether the vehicle was being driven by an un-authorized person and the respondent No. 2 is not liable to pay the amount of compensation? OPR 2 (v) Relief. 6. With a view to substantiate her claim, the appellant, besides examining herself, also examined PWs Ghulam Hussain and Mohd Amir as her witnesses. The insurer, however, chose not to lead any evidence. 7. Based on the evidence on record, the Tribunal held issue No. 1 proved in favour of the appellant and against the respondents. On issue No. 2, the Tribunal concluded that the monthly income of the deceased, at the time of accident, was Rs. 1500/- and, accordingly held the appellant entitled to total compensation of Rs. 1,20,000/-. On issue No. 3, the Tribunal held that the deceased was a gratuitous passenger travelling in a goods vehicle and absolved the insurer of its liability to indemnify the insured and pay compensation to the appellant. This way, issue No. 3 was decided in favour of the insurer and against respondent Nos. 2 and 3, the owner and the driver of the offending vehicle respectively. 8. Respondent No. 1, the insurer, who is absolved of its liability to pay compensation to the appellant alone is contesting this appeal. 9. Mr. Chouhan, learned counsel appearing for the insurer, does not only oppose the appeal on quantum, but also joins issue with the appellant on the question of liability of insurer towards third party in the case of a gratuitous passenger travelling in a goods vehicle. He, despite being aware that this issue has already been authoritatively decided by this Court in the cases of Bajaj Allianz General Insurance Co. Ltd. vs. Satya Devi and ors., (MA 197/2014), decided on 14.01.2020 and Bajaj Allianz Insurance Company Ltd. vs. Rafiq Ahmed and another, (Mac App No. 14/2020 and clubbed matters), decided on 10.08.2020, vehemently urges that some important Supreme Court precedents have escaped the attention of this Court and, therefore, the issue has not been correctly decided. 10. At the insistence of Mr. Chouhan and deferring his scholarly bent, I have allowed him to make his point, though reluctantly. 11. 10. At the insistence of Mr. Chouhan and deferring his scholarly bent, I have allowed him to make his point, though reluctantly. 11. Having heard learned counsel for the parties and perused the record, a seminal question, though decided twice by this Court, has once again emerged for fresh debate. 12. The judgments of this Court in the cases of Satya Devi and Rafiq Ahmed and another (supra) have already clinched the issue, but as they say; 'to err is human'. 13. Mr. D.S. Chouhan through his vehemence has succeeded to persuade me to reconsider the question yet again in the light of some precedents of the Hon'ble Supreme Court, which Mr. Chouhan feels, have been left out and not considered in the earlier judgments. 14. Before proceeding further and analyzing the arguments of Mr. Chouhan, it would be apt to set out the questions herein below: (i) Whether in case of a bodily injury or death of a gratuitous passenger travelling in a goods vehicle, the insurer is completely absolved of its liability to indemnify the insured. (ii) If question No. 1 is answered in affirmative; whether the principle of 'pay and recover' would be applicable and the insurer can be directed to pay compensation to the third party in the first instance and then recover the same from the insured. 15. Mr. Chowdhary, learned counsel appearing for the appellant places reliance upon the two judgments referred to hereinabove, rendered by this Court, on the issue. He submits that the issue once decided by this Court, by way of authoritative pronouncements, should not be permitted to be raised yet again. He urges that the objection raised by learned counsel for the insurer is no longer sustainable and the questions of law framed by this Court for determination are no longer res integra. He rests his case upon the aforesaid two judgments rendered by this Court and submits that the plea raised by learned counsel for the insurer is good only for wasting the time of the Court. 16. He rests his case upon the aforesaid two judgments rendered by this Court and submits that the plea raised by learned counsel for the insurer is good only for wasting the time of the Court. 16. Per Contra, learned counsel for the insurer has invited attention of this Court to different provisions of the Motor Vehicles Act, 1988 ['the Act'] including the definition clause and urges that the judgments of the Hon'ble Supreme Court in the cases of New India Assurance Company Ltd. vs. Asha Rani, (2003) 2 SCC 223 ; National Insurance Company Ltd. vs. Baljit Kaur, (2004) 2 SCC 1 ; National Insurance Company Ltd. vs. Ajit Kumar and others, (2003) 9 SCC 668 and few others are required to be considered in the light of aforesaid provisions of the Act. He also places reliance on the judgments rendered in the cases of National Insurance Company Ltd. vs. Chinnamma and ors., (2004) 8 SCC 697 ; National Insurance Company Ltd. vs. Challa Bharathamma, 2004 ACJ 2094 (SC)); and Pramod Kumar Agrawal vs. Mushtari Begum, 2004 ACJ 1903 (SC). 17. Apart from the aforesaid judgments, strong reliance is also placed by Mr. Chouhan on the judgments rendered by the Hon'ble Supreme Court in the cases of M.V. Jayadevappa and anr. vs. Oriental Fire and General Insurance Company Ltd. and ors., 2005 ACJ 1801; New India Assurance Company Ltd. vs. Vedwati and ors., 2007 ACJ 1043 (SC); National Insurance Company Ltd. vs. Prema Devi and ors., 2008 AIR SCW 2023 and National Insurance Company Ltd. vs. Cholleti Bharatamma and ors., 2008 (1) SCC 423 . 18. Relying upon the aforesaid judgments of the Hon'ble Supreme Court, Mr. Chouhan argues that there is consistency in the opinion of the Hon'ble Supreme Court that in the case of a gratuitous passenger suffering bodily injury or death in a motor vehicle accident, the insurer is not liable to indemnify the insured in view of the specific defence available to it under Section 149 of the Act. He further urges that even the principle of 'pay and recover' would not be applicable in view of the judgments of the Hon'ble Supreme Court in the cases of Asha Rani and ors. (supra); Oriental Insurance Company ltd., vs. Devireddy Konda Reddy (2003) 2 SCC 339 and Baljit Kaur and ors. (supra). 19. He further urges that even the principle of 'pay and recover' would not be applicable in view of the judgments of the Hon'ble Supreme Court in the cases of Asha Rani and ors. (supra); Oriental Insurance Company ltd., vs. Devireddy Konda Reddy (2003) 2 SCC 339 and Baljit Kaur and ors. (supra). 19. Referring to a couple of judgments rendered by this Court, learned counsel for the insurer contends that this Court in the case of Satya Devi and Rafiq Ahmed (supra) has taken a view contrary to the view taken by the Coordinate Benches including the Division Bench of this Court and, therefore, the appropriate course available to this Court was to make a reference, in case this Court was of the opinion that the judgments of this Court rendered in the earlier cases were not in consonance with the precedents of the Hon'ble Supreme Court. 20. Despite having given my best consideration to the arguments of learned counsel for the insurer, I could not persuade myself to take a view contrary to what I have already taken in the cases of Satya Devi (supra) and Rafiq Ahmed (supra). 21. It is true that many of the judgments referred to by Mr. Chouhan do not find mention or discussed in my earlier two judgments and this is for a reason because the issue in the aforesaid cases was considered by this Court on the basis of three Judge Bench judgments. There should be no doubt in the mind of anyone that the issue of liability of the insurer qua the gratuitous passenger travelling in a goods vehicle is no longer res integra and has been decided by the Apex Court through its various judgments. The opinion of the Hon'ble Supreme Court in all the cases cited by Mr. Chouhan and many of them taken note by me in my earlier judgments is consistent and virtually unanimous. It is now beyond any scintilla of doubt that if a motor vehicle is used for a purpose not allowed by the permit where the vehicle is a transport vehicle, it may be a fundamental breach of a specified condition of the policy and, therefore, a statutory defence available to the insurer in the proceedings brought out by the injured or the legal representatives of the deceased, victim of the motor vehicle accident. 22. 22. Section 149 (2)(a)(i)(c) of the Act leaves no manner of doubt in this regard. Once the insurer pleads and proves that there has been a breach of a condition of the policy excluding the use of a transport vehicle for a purpose not allowed by the permit, it is absolved of its liability to indemnify the insured. This Court while answering a specific question framed in this regard in the case of Rafiq Ahmed and another (supra) held thus: "That the insurer may not be legally liable to indemnify the owner for the bodily injury or death of a person travelling in the insured vehicle (goods carriage) as a gratuitous/unauthorized passenger, but keeping in view the benevolent object of the Act, the principle of 'pay and recover' would apply. Notwithstanding the fact that the insurer in such case may not legally liable to indemnify the owner, yet it would, in the first instance, satisfy the award by making the payment to the third party and thereafter shall have the recovery rights against the insured". 23. In view of the aforesaid, majority of the judgments relied upon by learned counsel for the insurer do not deserve further analysis. Question No. 1, therefore, stands answered in affirmative and obviously in favour of the insurer. 24. To arrive at the aforesaid conclusion, this Court had relied upon three Judge Bench Judgments in the cases of Asha Rani (supra) and Baljit Kaur (supra). This Court also noticed the judgments of Hon'ble Supreme Court in the cases of National Insurance Company Ltd. vs. Challa Upendra Rao and ors., (2004) 8 SCC 517 ; National Insurance Company Ltd. vs. Kaushalaya Devi and ors., (2008) 8 SCC 11; National Insurance Company Ltd. vs. Saju P. Paul, (2013) 2 SCC 41 ; Manuara Khatun and others vs. Rajesh Kumar Singh, (2017) 4 SCC 796 ; Shivaraj vs. Rajendra and ors., (2018) 10 SCC 432 ; and Shamanna vs. OIC, (2018) 9 SCC 650 etc. 25. I would be failing in my duty if I do not concede that in some of the judgments rendered by the Hon'ble Supreme Court, the principle of 'pay and recover' has not been applied in the case of a gratuitous passenger travelling in a goods vehicle and in some cases, Hon'ble Supreme Court has applied the said principle primarily being persuaded by the special facts and circumstances obtaining in such cases. In one of the judgments, the Hon'ble Supreme Court appears to have applied the said principle by having resort to Article 142 of the Constitution. Undoubtedly, there is difference of opinion between the Benches of the Hon'ble Supreme Court of coequal strength, but the vital fact which cannot be lost sight of is that in none of the judgments, the applicability or otherwise of the principle of 'pay and recover' in a case where the insurer succeeds in its defence or defences available to it under Section 149 (2) of the Act has been debated, considered and authoritatively decided. 26. What is decided conclusively is that in the case of a gratuitous passenger travelling in a goods vehicle, the insurer will not be legally liable to indemnify the insured, but, whether, for breach of contract by the insured, the third party could be made to suffer, was not subject matter of consideration in all the said decisions. This was debated, considered and decided by the Hon'ble Supreme Court in a three Judge Bench judgment rendered in the case of National Insurance Company Ltd. vs. Swarn Singh, (2004) 3 SCC 297 . Although the issue in the aforesaid case was with respect to breach of a policy condition excluding driving of the insured vehicle by a person who is not duly licensed or has been disqualified for holding or obtaining a driving licence as specified in Section 149 (2)(a)(ii), yet the principle of 'pay and recover' enunciated in the aforesaid case would be equally applicable even to a case where breach of a specified condition of the policy is pertaining to the use of a transport vehicle for a purpose not allowed by the permit. The Judgment of the Hon'ble Supreme Court in the case of Swarn Singh (supra) is, therefore, the only authoritative pronouncement by the three Judge Bench which conclusively determines the issue. 27. The Hon'ble Supreme Court in Swarn Singh's case (supra) gave detailed guidelines as to how and under what circumstances, the principle of 'pay and recover' can be ordered. The Hon'ble Supreme Court in paragraph 110 of the judgment has summarized its conclusion in the following manner: "110. 27. The Hon'ble Supreme Court in Swarn Singh's case (supra) gave detailed guidelines as to how and under what circumstances, the principle of 'pay and recover' can be ordered. The Hon'ble Supreme Court in paragraph 110 of the judgment has summarized its conclusion in the following manner: "110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims". 28. 28. With a view to better understand the Judgment of the Hon'ble Supreme Court rendered in the case of Swarn Singh (supra), it is necessary to allude to section 149 of the Act, which, for facility of reference, is reproduced herein below: "149-Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-- (1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) [or under the provisions of section 163A] is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. (2) No sum shall be payable by an insurer under sub-section (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 the policy, 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 side-car being attached where the vehicle is a motor cycle; 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 non-disclosure of a material fact or by a representation of fact which was false in some material particular. (3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub-section (1), as if the judgment were given by a Court in India: Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2). (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. (6) In this section the expression "material fact" and "material particular" means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy. (7) No insurer to whom the notice referred to in sub-section (2) or sub-section (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 sub-section (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. Explanation.--For the purposes of this section, "Claims Tribunal" means a Claims Tribunal constituted under section 165 and "award" means an award made by that Tribunal under section 168". 29. From a plain reading of sub-section (2) of Section 149 of the Act, it is crystal clear that the insurer is entitled to defend the claim of the third party only on the grounds mentioned in it and on no other ground. As is provided in sub-section (1) of Section 149 of the Act, once the insurer has issued a certificate of insurance in terms of Section 147 (3) of the Act in favour of the insured qua the offending vehicle, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this Section, pay to the person entitled to the benefit of award/decree any sum not exceeding the sum assured payable under such decree or award. 30. 30. Sub-section 2 of Section 149 of the Act clearly provides that the insurer, who is impleaded as party in the claim petition or has been given notice of the claim petition by the Tribunal is entitled to defend the action on the ground that there has been a breach of a specified condition of the policy and such specified condition must be one excluding the use of the vehicle: (i) 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 (ii) for organized racing and speed testing; or (iii) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle; or (iv) without side-car being attached where the vehicle is a motor cycle; or (v) excluding driving of the insured vehicle by a person not duly licensed or by a person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (vi) excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. 31. Aside the aforesaid defences, the insurance company can also plead a defence and avoid liability on the ground that the policy is void on the ground that it was obtained by non-disclosure of a material fact or by a representation of fact which was false in some material particular. Sub-section 7 of Section 149 of the Act reproduced hereinabove, further provides that no insurer, who has been put on notice by the Tribunal in terms of Sub-section (2) of Section 149 of the Act or Sub-section (3), shall be entitled to avoid its liability to any person entitled to the benefit of any such judgment as is referred to in Sub section (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. 32. 32. From the conjoint reading of Sub-sections (2) and (7) of Section 149 of the Act, it clearly emerges that the insurer, if succeeds in the statutory defences available to it under Section 149, may be absolved of its liability to indemnify the insured, yet, there is nothing in this provision to suggest that for breach of a policy condition by the insured, the third party can be made to suffer. The third party, which is a victim of the motor vehicle accident, is not a party to the contract of insurance entered into between the insured and the insurer and any breach of the condition of the policy by the insured cannot act to the disadvantage of such third party, who may not have contributed in the breach of such condition of the policy. The third party is statutorily protected by Sections 146, 147 and 149 of the Act. 33. The expression 'notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy" used in sub section (1) is of extreme significance in understanding the true import of benevolent provisions of Section 149 of the Act. There may be occasions where the insurer can demonstratively claim its right to avoid or cancel the policy, but, notwithstanding such right vested in the insurer, it would not be permitted to escape from its liability to pay compensation to the third party. 34. It is in this background, the three Judge Bench in the case of Swarn Singh (supra) evolved and applied the principle of 'pay and recover' in the case where the insurer had demonstratively proved that the offending vehicle, at the time of accident, was being driven in violation of the condition of the policy excluding driving by a person not duly licensed or by a person, who had been disqualified for holding or obtaining a driving licence etc. This judgment has been followed by the Hon'ble Supreme Court in the case of Shamanna (supra). Taking note of a subsequent judgment of the Hon'ble Supreme Court rendered in the case of National Insurance Company Ltd. vs. Laxmi Narain Dhut, (2007) 3 SCC 700 , the two judge Bench in paragraph 8 of the aforesaid judgment held thus: "The Supreme Court considered the decision of Swaran Singh case in subsequent decision in National Insurance Co. Taking note of a subsequent judgment of the Hon'ble Supreme Court rendered in the case of National Insurance Company Ltd. vs. Laxmi Narain Dhut, (2007) 3 SCC 700 , the two judge Bench in paragraph 8 of the aforesaid judgment held thus: "The Supreme Court considered the decision of Swaran Singh case in subsequent decision in National Insurance Co. Ltd. vs. Laxmi Narain Dhut, (2007) 3 SCC 700 , wherein this Court held that "the decision in Swaran Singh case has no application to cases other than third party risks and in case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured". The same principle was reiterated in Prem Kumari vs. Prahlad Devi and others, (2008) 3 SCC 193 ." 35. The latest judgment on the point, to my knowledge, is rendered by the Hon'ble Supreme Court on 09th August, 2019 in the case of Anu Bhanvara etc. vs. Iffco Tokio General Insurance Company Ltd., wherein, the Apex Court, noticing all the relevant judgments of the Hon'ble Supreme Court on the point, applied the principle of 'pay and recover' yet again, in the case of a gratuitous passenger travelling in the goods vehicle. 36. Mr. Chouhan, learned counsel for the insurer could not bring to my notice any contrary judgment of coequal strength of the Supreme Court in which the Supreme Court has taken a decision contrary to the decision taken in the case of Swarn Singh (supra) The argument of Mr. Chouhan that the Supreme Court in Swarn Singh's case (supra) was dealing with a case of driving of the offending vehicle by a person holding no licence, fake licence or a licence that had expired and had not been renewed at the time of accident and, therefore, the same cannot be applied to a case of a gratuitous passenger travelling in the goods vehicle, is without any substance. 37. The principle laid down in Swarn Singh's case (supra), for the reasons stated above, is fully applicable even to the breach of a condition pertaining to the exclusion of use of transport vehicle for a purpose than other for which it has been granted the permit. 37. The principle laid down in Swarn Singh's case (supra), for the reasons stated above, is fully applicable even to the breach of a condition pertaining to the exclusion of use of transport vehicle for a purpose than other for which it has been granted the permit. On the same analogy and for the same reasoning, the Hon'ble Supreme Court has applied the principle laid down in Swarn Singh's case (supra) in the case of Shamanna (supra) which again was a case of gratuitous passenger travelling in the goods vehicle. In none of the judgments cited by Mr. Chouhan, particularly three Judge Bench Judgments, the issue has either been debated or considered and decided. 38. While there is no quarrel with regard to the proposition that in case of breach of policy condition excluding the use of transport vehicle for the purpose other than for which it has been granted the permit, the insurer may be and shall be absolved of its liability to indemnify the insured, yet it cannot escape its liability to pay compensation to the third party. The insurer may, however, on such payment, proceed against the insured for recovery in the manner provided by the Supreme Court in number of judgments i.e., by straight way filing an execution proceedings before the Tribunal as if the insured is a judgment debtor. 39. After addressing the questions formulated hereinabove, I would like to deal with the argument of Mr. Chouhan that there are contrary judgments by this Court, the same could not have been ignored by this Court and the only course available to this Court was to refer the matter to the larger Bench. I would have happily and readily agreed with Mr. Chouhan, had there been no authoritative pronouncement on the issue from the Hon'ble Supreme Court. In the cases of Swaran Singh, Shamanna and Anu Bhanvara (supra), there has been clear enunciation of law by the Supreme Court and, therefore, there was or is hardly any necessity or obligation to refer the matter to the larger Bench. 40. In the Judgments rendered by this Court and strongly relied upon by Mr. Chouhan i.e., Oriental Insurance Co. Ltd. vs. Kesri Singh and ors., 2008 (3) JKJ 452 [HC], Atam Singh Rana vs. Vinod Kumar and ors, 2010 (1) JKJ [HC], Darshan Singh vs. Oriental Insurance Co. Ltd., 2013 (2) JKLJ 36 [HC] S.T. Motors and ors. 40. In the Judgments rendered by this Court and strongly relied upon by Mr. Chouhan i.e., Oriental Insurance Co. Ltd. vs. Kesri Singh and ors., 2008 (3) JKJ 452 [HC], Atam Singh Rana vs. Vinod Kumar and ors, 2010 (1) JKJ [HC], Darshan Singh vs. Oriental Insurance Co. Ltd., 2013 (2) JKLJ 36 [HC] S.T. Motors and ors. vs. Shabir Ahmed Lone and anr, 2017 (3) JKJ 20 [HC], this Court had not considered the judgment rendered in the case of Swarn Singh (supra), nor it had the advantage of looking to the law laid down subsequently in the cases of Shamanna and Anu Bhanvara (supra). 41. For the foregoing reasons, I do not agree with Mr. Chouhan that the opinion of this Court in the cases of Satya Devi and Rafiq Ahmed (supra) needs reconsideration. The law laid down in the aforesaid judgments is, therefore, reiterated and the questions of law decided accordingly. 42. In view of the above, I am of the opinion that the interest of justice will be sub-served if the insurer is directed to pay compensation to the appellant/claimant in the first instance with a right to recover the same from the owner of the offending vehicle. 43. This brings me to the plea of Mr. Choudhary, learned counsel for the appellant that the Tribunal has faulted in determining just and fair compensation. 44. Qua the quantum of compensation awarded by the Tribunal, as per the dictum laid down in Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 ; National Insurance Company Ltd. Vs. Pranay Sethi and others, AIR 2017 SC 5157 ); and Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram, 2018 ACJ 2782 , I find that the future prospects have not been granted. Keeping in view the age of the deceased which has been proved as 50 years, an addition of 10% is required to be made to the established income of the deceased. I also find that no spousal consortium has been granted to the wife of the deceased. Even no amount has been awarded under the conventional heads. The Tribunal has applied the multiplier of 12, whereas it should have been 13 as has been indicated in Sarla Verma's case (supra). I also find that no spousal consortium has been granted to the wife of the deceased. Even no amount has been awarded under the conventional heads. The Tribunal has applied the multiplier of 12, whereas it should have been 13 as has been indicated in Sarla Verma's case (supra). Since it has come in the evidence that the deceased was survived by two sons and one widow, however, both the sons were residing separately and were self dependent, therefore, it can be presumed that the deceased was having only his wife as dependent upon him. In that view of the matter, 50% of the income of the deceased towards his personal expenses ought to be deducted. Ordered accordingly. 45. In view of the above, the claimant is entitled to the compensation in the following manner: Loss of dependency : Rs.1.28.000/- (Rs.825*12*13) Funeral expenses : Rs.15000/- Loss of estate : Rs.15000/- Loss of spousal consortium to wife of the deceased : Rs.40000/- Total Rs.1.98.000/- 46. The award is modified to the aforesaid extent. The other terms and conditions of the impugned award including the rate of interest shall remain unchanged. 47. So far as the recovery of the amount from the insured is concerned, the insurer shall, after fully satisfying the award, be entitled to recover the same from the insured by way of filing a execution petition before the Tribunal concerned. 48. In the result, the appeal is allowed and the impugned award insofar as it directs the owner and driver of the offending vehicle to pay compensation to the claimant is set aside. The insurer shall pay the enhanced compensation to the appellant along with accrued interest and then recover the same from the insured.