JUDGMENT : 1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 21.8.2006 passed by the learned Presiding Officer (Fast Track Court No.2) Ahmedabad (Rural) in Motor Accident Claims Petition No.1045 of 1995, the appellants have preferred present appeal. 2. By the said order, the Court has exonerated the insurance company from its liability and awarded Rs.4,93,000/- as compensation in favour of the appellants. 3. The short facts of the case are as under:- 3.1 The appellant-claimant has filed the claim petition claiming compensation of Rs.5,00,000/- for the injuries caused to the claimant in vehicular accident on 12.2.1995 in the luxury bus no. GT-X-3133 of Opponent-owner. 3.2 The Ld. Presiding officer has held the issues raised in the petition in affirmative in favour of the claimant and partly allowed the claim petition and awarded Rs.4,93,000/- by way of compensation alongwith 7.5% interest p.a. from the date of application till realization of actual amount with proportionate costs from the original opponent no.2 only i.e. owner of the vehicle. 3.3 The Ld. Presiding officer has held that insurance company is not liable to pay compensation to the applicant and dismissed the petition against Ori. Opponent No.3 — Insurance Company by order dated 21.8.2006. 3.4 Being aggrieved and dissatisfied with the aforesaid judgment and order the appellants have preferred present appeal. 4. Learned advocate for the appellant has submitted that the learned Tribunal has committed an error while passing the impugned judgment and award of exoneration, whereby the insurance company was exonerated from its liability. It is also further contended that learned Tribunal has not considered the injury caused to the injured in its true and proper spirit. 4.1 Learned advocate for the appellant has submitted that considering the settled legal principle enunciated by the Ho’ble Apex Court in the case of Lakshmi Chand vs. Reliance General Insurance reported in (2016) 3 SCC 100 liability of the insurance company is required to be fasten, as the condition of the violation of the R.T.O. rules is not come in the way of the liability of the insurance company, in case of Section 149(2) of the Motor Vehicles Act, while deciding the claim petition. He further submitted that the deceased cannot be held as breach of the terms of the conditions of the policy. He further submitted that the deceased cannot be held as breach of the terms of the conditions of the policy. He relied upon the decision of the Apex Court in case of Lakshmi Chand (supra) relevant paragraph of the said decision reads as under:- “5. The respondent-Company filed a detailed written statement before the District Forum disputing the claim of the appellant. It took the plea that the complainant had violated the terms and conditions of the policy, as five passengers were travelling in the goods-carrying vehicle at the time of accident, whereas the permitted seating capacity of the motor vehicle of the appellant was only 1+1. 6. The District Forum on the basis of the pleadings of the parties and the materials on record considered the judgment of the National Commission in the case of National Insurance Co. Ltd. v. Pravinbhai D. Prajapati, wherein it was held that if the number of persons travelling in the vehicle at the time of the accident did not have a bearing on the cause of accident, then the mere factum of the presence of more persons in the vehicle would not disentitle the insured claimant from claiming compensation under the policy towards the repair charges of the vehicle paid by the appellant. The District Forum accordingly directed the respondent- Company to settle the claim of the appellant on nonstandard basis upto 75% of the amount spent for effecting repairs to the damaged vehicle after taking into consideration the claim amount of Rs.1,64,033/-. The District Forum further directed the respondent- Company to settle the amount to be paid to the appellant along with interest at the rate of 9% per annum from the date of lodging of the claim by the appellant with the respondent-Company. The respondent-Company was further directed to pay Rs.2,000/- for rendering deficient service, causing mental agony and harassment and towards litigation expenses incurred by the appellant. 7. Aggrieved of the order of the District Forum, the 7. respondent Company preferred an appeal before the State Commission urging various grounds. The State Commission placed reliance upon the judgment of this Court in the case of Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., wherein it was held as under: “23. 7. Aggrieved of the order of the District Forum, the 7. respondent Company preferred an appeal before the State Commission urging various grounds. The State Commission placed reliance upon the judgment of this Court in the case of Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., wherein it was held as under: “23. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance law have to be strictly construed and no exception can be made on the ground of equity. 26. Thus, it needs little emphasis that in construing the terms of a contract of insurance important, and it is not open for the court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.” 8. The State Commission applied the observation made in the above said case by this Court to the case on hand and held that the District Forum has committed a serious error in allowing the complaint filed by the appellant herein against the respondent-Company. The State Commission accepted the appeal filed by the respondent-Company and dismissed the complaint of the appellant, vide its order dated 29.02.2012 by setting aside the judgment and order of the District Forum. The said judgment passed by the State Commission was challenged by the appellant before the National Commission by way of filing Revision Petition No.2032 of 2012 under Section 21(b) of the Consumer Protection Act, 1986 questioning the correctness of the same by urging various tenable grounds. 9. The said judgment passed by the State Commission was challenged by the appellant before the National Commission by way of filing Revision Petition No.2032 of 2012 under Section 21(b) of the Consumer Protection Act, 1986 questioning the correctness of the same by urging various tenable grounds. 9. After examining the material evidence on record, the National Commission has arrived at the conclusion and held that the factum of the vehicle in question carrying six passengers at the time of the occurrence of the accident was an undisputed fact. Thus, there had been a violation of the terms and conditions of the insurance policy covered to the vehicle by the appellant, as he had allowed six passengers to travel in the vehicle when the permitted load was only 1+1. The National Commission upheld the order passed by the State Commission and dismissed the Revision Petition filed by the appellant by recording its reasons. The Review Petition filed against the dismissal of the Revision Petition by the appellant was also dismissed without considering the grounds urged for reviewing its order. 10. The present appeals have been filed challenging the orders passed by the National Commission in dismissing the Revision and Review petitions. In our considered view, the concurrent findings recorded by the National Commission in the impugned judgment and order are erroneous in law for the following reasons. 11. It is an admitted fact that the accident of the vehicle of the appellant was caused on account of rash and negligent driving of the offending vehicle bearing registration no. UP-75-J9860. An FIR No. 66 of 2010 dated 11.02.2010 was registered under Sections 279, 337, 338, 304-A and 427 of the Indian Penal Code against the driver of the said vehicle for the offences referred to supra. The vehicle of the appellant was badly damaged in the accident and it is an undisputed fact that the report of Surveyor assessed the loss at Rs.90,000/-, but the actual amount incurred by the appellant on the repair of his vehicle was Rs.1,64,033/-. The said claim was arbitrarily rejected by the respondent-Company on the ground that the damage caused to the vehicle did not fall within the scope and purview of the insurance policy, as there was a contravention of terms and conditions of the policy of the vehicle. 12. The said claim was arbitrarily rejected by the respondent-Company on the ground that the damage caused to the vehicle did not fall within the scope and purview of the insurance policy, as there was a contravention of terms and conditions of the policy of the vehicle. 12. The National Commission upheld the order of dismissal of the complaint of the appellant passed by the State Commission. The National Commission however, did not consider the judgment of this Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd Divisional Officer, Hassan. In that case, the insurance company had taken the defence that the vehicle in question was carrying more passengers than the permitted capacity in terms of the policy at the time of the accident. The said plea of the insurance company was rejected. This Court held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle. 13. This Court in the said case has held as under:- “It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling in the vehicle, are assumed not to have increased risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the pose, keeping apart the load it was carrying. In the present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident.” (emphasis supplied) 14. Further, in the case of National Insurance Company Ltd. v. Swaran Singh & Ors. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident.” (emphasis supplied) 14. Further, in the case of National Insurance Company Ltd. v. Swaran Singh & Ors. a three judge bench of this Court has held as under:- “49. Such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach. 52. In Narvinva’s case (supra) a Division Bench of this Court observed: “The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract complaints of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led. 69. The proposition of law is no longer res- integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evident. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.” (emphasis laid by this Court). 15. The judgment in the case of Swaran Singh (supra) has been followed subsequently in the case of Oriental Insurance Company Ltd. v. Meena Variyal, wherein this Court held as under:- “16. We shall now examine the decision in Swaran Singh on which practically the whole of the arguments on behalf of the claimants were rested. On examining the facts, it is found that, that was a case which related to a claim by a third party. In claims by a third party, there cannot be much doubt that once the liability of the owner is found, the insurance company is liable to indemnify the owner, subject of course, to any defence that may be available to it under Section 149(2) of the Act. In claims by a third party, there cannot be much doubt that once the liability of the owner is found, the insurance company is liable to indemnify the owner, subject of course, to any defence that may be available to it under Section 149(2) of the Act. In case where the liability is satisfied by the insurance company in the first instance, it may have recourse to the owner in respect of a claim available in that behalf, it may have recourse to the owner in respect of a claim available that behalf. Swaran Singh was a case where the insurance company raised a defence that the owner had permitted the vehicle to be driven by a driver who really had no licence and the driving licence produced by him was a fake one. There Lordships discussed the position and held ultimately that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer when a claim is filed either under Section 163-A or under Section 166 of the Act. The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of 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 party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.” (emphasis supplied). 16. It becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent-Company has not produced any evidence on record to prove that the accident occurred on account of the breach of permit of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR no. 66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law.” 5. On the other hand, learned advocate for the respondent insurance company submitted that the learned Tribunal has taken into account all relevant aspects and after evaluating the evidence on record, passed the impugned award and therefore, learned Tribunal has not committed any error in passing the impugned judgment and award and exonerating the insurance company. 5.2 Learned advocate for the respondent has relied upon the judgment in case of Amrit Paul Singh and another vs. Tata AIG General Insurance Company Limited and other reported in (2018) 7 SCC 558 , more particularly paragraph No.24 which reads as under:- “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.” 6. I have Mr. Sandip C. Shah, learned Counsel for the appellants and Mr. Dakshesh Mehta, learned Counsel appearing for the insurance company. Though the rule served to the other respondent, nobody is present. With the consent of the learned Counsels appearing for both the sides, the appeal is taken up for final hearing today. 7. I have also perused the material available on record and the impugned judgment and award passed by the learned Tribunal. 8. It is required to be noted that during the pednency of the original claim petition, the claimant was passed away and their legal heirs have brought on record in present proceedings. 7. I have also perused the material available on record and the impugned judgment and award passed by the learned Tribunal. 8. It is required to be noted that during the pednency of the original claim petition, the claimant was passed away and their legal heirs have brought on record in present proceedings. Therefore, present appeal now represented by the legal heirs of the original claimant. 9. The legal heirs have not prayed for enhancement of the compensation in the first appeal. The have only prayed against the exoneration of the insurance company. Therefore, present appeal is required to be considered in light of the submission made in the memo of appeal and the contention advanced before this Court. 10. In the decision of of this Court in case of National Insurance Company vs. Rajendra Hematsinh and others reported in 1987 SCJ 349 this Court has held as under:- “5. The learned advocate for the appellant Insurance Company has vehemently contended that at the time when the accident took place the driver of the luxury bus was not having valid permission or authorisation from the R.T.O. Office and therefore, the Insurance Company is not liable to indemnify the owner of the said bus and hence the Insurance company is not at all liable to pay the compensation. He submitted that as per exh. 70 which is the policy the limitation as to use of the vehicle is only as a contract carriage. Therefore he submitted that for contract carriage there must be a valid permit as provided Under Section 96(2)(i)(c). 8. The learned Advocate for the appellant rarely conceded that in view of the decision in Motor Vehicles Insurance Company v. J.K. Modi , wherein the Supreme Court has interpreted the phrase 'any one accident' occurring Under Section 95(2) and held that if because of one accident injury is caused to cumber of persons, then the Insurance Company would be liable to indemnify the owner with regard to the claims of all the injured persons. Therefore, the other contention of the appellant that the Insurance Company is liable to pay Rs. 50,000/- in all would not survive. 9. The learned advocate for the appellant further submitted that in First Appeal No. 1045/79 the heirs of the deceased driver of the S.T. bus have received Rs. Therefore, the other contention of the appellant that the Insurance Company is liable to pay Rs. 50,000/- in all would not survive. 9. The learned advocate for the appellant further submitted that in First Appeal No. 1045/79 the heirs of the deceased driver of the S.T. bus have received Rs. 18,000/- from the S.T. Corporation under Workmen's Compensation Act and therefore, their application under the Motor Vehicles Act is not maintainable Under Section 110-AA of the Motor Vehicles Act. Section 110-AA gives an option for claiming compensation and provides that where the death of or bodily injury to any person given rise to a claims for compensation under the Motor Vehicles Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claims any such compensation under either of those Acts but not under both. The Tribunal has appreciated the evidence of the widow of the deceased and has arrived at the conclusion that there was no evidence on record to show that the h irs of the deceased received compensation under the Workmen's Compensation Act. The only evidence on record is that of Bai Nanaba widow of Hematsinh. She has stated in her deposition that from the S.T. Corporation she hai received Rs. 6,000/- and Rs. 12,000/- were deposited in the name of minors. She has also stated that no applicat ion was filed by her or on behalf of minors for getting compensation. In the crossexamination she has stated that she got the said amount of Rs. 18,000/-in all through the Labour Court. No effort was made by either by the owner of the bus or by the Insurance Company to produce on record any application filed by the widow of the deceased driver to prove that an application under the Workmen s Compensation Act was filed by the heirs of the deceased. Therefore in our view it cannot be said that the learned Tribunal committed any error in holding that there was no evidence on record to hold that the heirs of the deceased had filed an application for compensation under the Workmen's Compensation Act and that they have received the said amount under the said Act. Further, it is not open to the Insurance Company to take this plea in view of the provisions of Section 96(2).” 11. Further, it is not open to the Insurance Company to take this plea in view of the provisions of Section 96(2).” 11. It appears from the decision of the Hon’ble Apex Court in case of Laxmi Chand (supra) that the breach of permit is not amount to breach of condition of the policy. Principle of insurance cannot avoid liability on establishing fundamental breach of policy. 12. In light of the aforesaid decisions of the Hon’ble Apex Court, it appears that so far as the liability of the insurance company is cornered, the impugned judgment and award dated 21.8.2006 passed by the learned Presiding Officer (Fast Track Court No.2) Ahmedabad (Rural) in Motor Accident Claims Petition No.1045 of 1995 requires to be modified. 13. Considering the ratio laid down by the Hon’ble Apex Court and this Court, the amount of the compensation and the liability so far as the insurance company is concerned, initially insurance company has to pay the amount of compensation to the claimant and subsequently the insurance company has to recover the amount from the owner of the vehicle involved in the accident. 14. Hence, impugned judgment and award dated 21.8.2006 passed by the learned Presiding Officer (Fast Track Court No.2) Ahmedabad (Rural) in Motor Accident Claims Petition No.1045 of 1995 is hereby modified to the extent that the appellants are entitled to get the amount of compensation awarded by the learned Tribunal with 6% interest from the present respondent No.1 Oriental Insurance Co. Ltd. and in turn the Oriental Insurance Co. Ltd respondent No.1, can recover the said amount from the original owner of the luxury bus for the breach of the permit issued by the R.T.O.. 15. The insurance company is hereby directed to deposit the amount awarded by the learned Tribunal i.e. Rs.4,93,000/- with 6% interest from the date of application till the realization of the award within period 8 weeks from the date of receipt of certified copy of present order. 16. After the amount is deposited by the insurance company, the amount be disbursed in favour of the claimants after verifying bank details of the claimants through R.T.G.S. only. 17. The present appeal stands disposed of accordingly. No order as to costs. 18. Record and proceedings be sent back to the concerned Tribunal forthwith.