ORDER : 1. The Insurance Company has preferred an appeal against the award dated 07.02.2019 passed by the learned Commissioner for Employee Compensation Act Cum Labour Court Janjgir Champa (in Short as Commissioner) passed in Case No. 17/E.C.A./COC 1B/17(F), by which the learned Commissioner has directed the Insurance Company to pay compensation to the claimants to tune of Rs. 6,80,867/-, if the compensation is not paid within 60 days then the insurance company is liable to pay interest @ 12% per annum till the actual payment is made. 2. This appeal has been admitted by this Court on 03.08.2021 on the following question of law:- “Whether the finding of the Commissioner for the Employee’s Compensation recorded at para-10 of the award impugned holding that the vehicle in question was not being used for carrying passengers on hire in violation of the terms and conditions of the insurance policy, is perverse. 3. Brief facts as reflected from the record are that the claimant No.1 is widow of deceased Rajukumar Sahu, claimant No. 2 Ku. Dipika is the daughter of deceased and Claimants No. 3 and 4 namely Chhattu Lal Sahu and Khel Bai are the father and mother of the deceased. The claimants have filed an application under Section 22 of the Employee Compensation Act before the Commissioner mainly contending that the deceased was the driver of the vehicle bearing registration No. CG-11F 8577, On 25.06.2016 the deceased has taken the vehicle with him where he was murdered. It has also been contended that the deceased was working as driver with respondent No.1 for the last one year and at the time of death the deceased was 30 years only and he was earning Rs. 14,000/- per month. The vehicle was insured with the appellant at the time of accident. The amount of compensation has not been deposited by the Insurance Company or the employer, therefore, the claimants have filed the application for compensation. It is further contended that the deceased father has lodged the missing report No. 31/2016 before the police Station Janjgir. It was brought to the notice of the claimants that the vehicle was looted by some unknown person on 25.06.2016 and has murdered the driver and thereafter they threw away the dead body of the deceased near Heerakund Dam, Orissa. It is further contended that the deceased father has lodged the missing report No. 31/2016 before the police Station Janjgir. It was brought to the notice of the claimants that the vehicle was looted by some unknown person on 25.06.2016 and has murdered the driver and thereafter they threw away the dead body of the deceased near Heerakund Dam, Orissa. On the basis of missing report, Crime No. 28 of 2017, for commission of offence under Sections 364, 302, 201(B), 404, 34 IPC was registered against Alok Jaiswal and others. Since the deceased was murdered during course of employment, therefore, the claimants are entitled to get compensation to the tune of Rs. 12,00,000/- with 15% interest. It has also been contended that the deceased was getting Rs. 15,000/-per month with allowance of Rs. 150/- per day. 4. The respondent No. 1 has filed the written statement denying the allegation made in the application but admitted the fact that the deceased was employed with him and was getting salary of Rs. 4000/-per month and the vehicle was used for family members only. It has also been contended that the deceased succumbed to death because of the murder committed by unknown person. It is further contended that the deceased without permission allowed unknown persons to sit in the vehicle and the vehicle was taken away by the deceased without his permission, the vehicle was not used for the commercial purpose. It is further contended that the vehicle was insured with respondent No.2, therefore, the claim, if any is liable to be payable by the respondent No.2 only and claim against the respondent No.1 deserves to be rejected. 5. Appellant Insurance Company filed the written statement denying the contents of earning of the deceased that he was earning Rs. 14,000/-per month mainly contending that the vehicle was driven in violation of terms of the policy as the policy was issued for personal car policy but the vehicle was used as taxi which is clear violation of the policy, the insurance company is not responsible for payment of compensation and would pray for rejection of the claim application. 6. On the pleadings of the parties, learned trial Court has framed as many as seven issues. The issue no. 6. On the pleadings of the parties, learned trial Court has framed as many as seven issues. The issue no. 7 is relevant for deciding the question of law framed by this Court which reads as under:- “Whether there is violation of the terms and conditions of the insurance policy, if yes then what is its effect? 7. The claimants to substantiate their stand have examined Kaushalya Bai wife of the deceased, Sukhwara Bai and Chhattulal Sahu. The respondent No.1 examined himself and Suresh Ekka. The Insurance Company examined Atul Thakkar who was working Sr. Manager in New India Insurance company. 8. Kaushalya Bai (PW-1) has stated that the vehicle which was driven by the deceased was booked by some boys and they have murdered the deceased and had thrown the dead body which was found near Heerakund Dam, Orissa. She has also stated that the deceased was earning Rs. 14,000/- per month. 9. The respondent to substantiate his stand has exhibited documents Final report (Ex.P-1), FIR (Ex.P-2), sport map (Ex.P-3), property seizure memo (Ex.P-4), pahchan panchanama (Ex.P-5), Rojnamcha Sanha (Ex.P-6), inquest report (Ex.P-7), postmortem report (Ex.P-8), statement of the witness (Ex.P-9), death certificate (Ex.P-10), driving licence (Ex.P-11), statement of Isdore Minj (Ex.P-12). 10. The respondent No.1 was examined before the Commissioner for Employee Compensation Act, he has reiterated the stand which he has taken in the written statement and also stated that he has verified the facts from the driver who was available at bus stand they informed that the vehicle was taken by someone and thereafter the driver was murdered. It has also been stated that the vehicle was taken for booking without his permission for driver’s own advantage. This witness was cross examined wherein he has admitted that the vehicle was insured with respondent No.2 and the policy was known as private car package policy. He also admitted that in Ex.P-12, which is the statement of respondent No.1 recorded during pendency of Criminal case wherein he has stated that the vehicle was running on rent also. The witness of respondent No.1 has also stated that the vehicle was used for personal use of respondent No.1 and without his consent the vehicle was taken away. 11. He also admitted that in Ex.P-12, which is the statement of respondent No.1 recorded during pendency of Criminal case wherein he has stated that the vehicle was running on rent also. The witness of respondent No.1 has also stated that the vehicle was used for personal use of respondent No.1 and without his consent the vehicle was taken away. 11. The insurance Company has examined Atul Thakkar who has stated in chief that the vehicle was used for taxi wherein the insurance was done as private car policy which is violation of the policy, therefore, the insurance company is not liable to pay compensation. In the cross-examination, this witness has admitted that the Company has not conducted any enquiry with regard to the accident. 12. Learned Commissioner for Employees Compensation after appreciating the evidence, material on record has allowed the application and directed the Insurance Company to pay compensation to the tune of Rs. 6,80,867/- and interest also if the amount is not paid within 60 days from the date of passing of the order. This award is being assailed by the Insurance company. 13. Learned counsel for the appellant would submit that the learned Commissioner for Employees Compensation on a perverse finding has passed the award as there is sufficient material on record to establish that the vehicle was used for taxi whereas the policy was issued for private car package policy, as such there is clear cut violation of the policy, therefore, the insurance company should have not been held responsible. He would further submit that even otherwise, the incident causing death to the deceased cannot be termed in course of the employment to attract the provisions of employee compensation act. He would further submit that the learned Commissioner for Employees Compensation has not gone to the jurisdictional issues and has passed the impugned order which deserves to be set aside. 14. On the other hand learned counsel for the claimants as well as owner of the vehicle have supported the award and would pray for rejection of the appeal. 15. I have heard learned counsel for the parties and perused the record. 16. For determining the question of law framed by this Court as well as the submission made by Sr. On the other hand learned counsel for the claimants as well as owner of the vehicle have supported the award and would pray for rejection of the appeal. 15. I have heard learned counsel for the parties and perused the record. 16. For determining the question of law framed by this Court as well as the submission made by Sr. counsel for the appellant that the murdered cannot be termed as accident arising in course of the employment to attract the employee compensation act, as such it is expedient for this Court to extract Section 3 of the Employees Compensation Act which reads as under:- 3. Employer' s liability for compensation.- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable-- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding 3 three] days; (b) in respect of any injury, not resulting in death, caused by] an accident which is directly attributable to- (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. (2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment: 1 Provided that if it is proved,-- (a) that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub- section for that employment, and (b) that the disease has arisen out of and in the course of the employment; the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section: Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section (2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just. (3) The State Government in the case of employments specified in Part A and Part B of Schedule III, and the Central Government in the case of employments specified in Part C of that Schedule, after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III, and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub- section (2) shall apply 1 as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.] (4) Save as provided by sub- sections (2), (2A)] and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment. (5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury-- (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act. 17. From the evidence brought on record it is quite vivid that the deceased was murdered when he was driving the vehicle and the dead body was found near Heerakund Dam and a criminal case for commission of offence of murder under Sections 364, 302,201(B), 120 (B) 404, 34 IPC was registered against the accused persons namely Alok Jaiswal, Ramu Lahare and Satish Sonwani wherein the accused were acquitted on the count that the prosecution has failed to bring the sufficient evidence on record to prove the guilt of the accused by the Learned 3rd Additional Sessions Judge, Jangir vide its order dated 25.01.2018. 18. 18. It is well settled legal position of law that for attracting the provision of the Employees Compensation Act the charging provisions contained in Section 3 of the Act is that (i) an injury must be caused to a workman; (ii) such injury must have been caused by an accident; and (iii) it arose out of or in the course of his employment. The object of the Act is to provide for payment by certain classes of employers to workmen for compensation against injury by accident. The term `accidental injury' has not been defined under the Act. The liability of the employer for payment of compensation, however, would arise if a personal injury is caused to a workman by accident arising out of and in the course of his employment. A finding of fact, thus, has to be arrived at, inter-alia, having regard to the nature of the work and the situation in which the deceased was placed. Therefore, it has to be seen whether the injury sustained by the workman in the course of employment or not has to be ascertained first. The claimants have adduced the evidence before the court and even the respondent No.1 has also stated that the deceased was driving the vehicle and he was murdered and the body was found near Heerakund Dam. Thus there is direct nexus between the death and course of employment. 19. Hon’ble Supreme Court in the case of Smt. Rita Devi (Smt) & Ors vs New India Assurance Co.Ltd. & Anr reported in 2000(5) SCC 113 has considered the issues in paragraph 10 to 14 which is as under:- 10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that murder, as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts . The difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. But there are also instances where murder can be by accident on a given set of facts . The difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder. 11. In Challis vs. London and South Western Railway Company (1905 2 Kings Bench 154), the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held: The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver; in other words it arose out of his employment. The argument for the respondents really involves the readin In Challis vs. London and South Western Railway Company (1905 2 Kings Bench 154), the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone willfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Court rejecting an argument that the said incident cannot be treated as an accident held: The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver; in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the Legislature intended so to limit the operation of the Act. I see no reason to suppose that the Legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously. 12. In the case of Nisbet vs. Rayne & Burn (1910) 1 KB 689, where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers workmen, was robbed and murdered. The Court of Appeal held: That the murder was an accident from the standpoint of the person who suffered from it and that it arose out of an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmens Compensation Act 1906. In this case the Court followed its earlier judgment in the case of Challis (supra). In the case of Nisbet, the Court also observed that it is contended by the employer that this was not an accident within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word accident negatives the idea of intention. In my opinion, this contention ought not to prevail. I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet. 13. The judgment of the Court of Appeal in Nisbets case was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School vs. Kelly (1914 AC 667). 14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. 14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw. 20. Smt. Rita Devi (supra) judgment has also been followed in the case of Parle Products Ltd. vs. Subir Mukherjee(2001)(I)L.L.J. 964, in DTC v. Shakeela Praveen 2014ACJ 688(Delhi High Court, in New India Assurance Co. Ltd. vs. Shehzadi Yasmeen 2014 SCC online Del. In Oriental Insurance Co. Ltd. vs. Sheela Bai jain 2007 ACJ 1126 (MP High Court)DB and in MA Kareen Sab vs. Palaniyamma 2013 SCC On line Kar 4514. 21. In the present case, the deceased was murdered by the accused against them criminal case was initiated, as such it is well established by the claimants that commission of offence of murder has been committed in course of the employment which has caused injuries to the deceased, therefore, the provisions of Employees Compensation Act will attract with force and the learned Commissioner has rightly recorded its finding about the application of Employees Compensation Act. Learned Commissioner after appreciating the fact, evidence, material on record has recorded its finding that the deceased succumbed to death in course of employment. 22. Learned Sr. Learned Commissioner after appreciating the fact, evidence, material on record has recorded its finding that the deceased succumbed to death in course of employment. 22. Learned Sr. Counsel for the appellant would submit that in the Ex.P-12 which is recorded in the Session trial initiated against the accused for commission of the offence wherein respondent No.1 has admitted that he has not purchased the vehicle for commercial use but for personal use only. But no evidence with regard to use of vehicle for commercial purpose was brought on record as such Ex.P-12 has no relevancy for present dispute. But in the evidence recorded before the Commissioner Employees Compensation Act, he has clearly stated that the vehicle was purchased for personal use of family member and Raju Kumar Sahu was the driver of the vehicle. He also stated that Raju used to take vehicle to his house and when he could not get any information about Raju, he has contacted the driver who were standing in the bus stand wherein he has received the information that Raju had gone to Baloda. This witness was cross examined but nothing was rebutted and no evidence was brought on record with regard to alleged violation of the policy of the Insurance Company. 23. The Insurance Company also examined Atul Thakkar who has stated that the vehicle was driven as taxi, therefore, policy has been violated wherein in the cross-examination he has stated that no enquiry was conducted to record such finding. 24. Learned Commissioner considering this aspect of the matter has recorded its finding in paragraph-10 that the insurance company has not conducted any enquiry to make statement which is required as burden of prove lies on insurance company, as such the finding is neither perverse nor contrary to the law. Even otherwise the law is well settled by the Hon’ble Supreme Court in case of Lakhmi Chand vs. Reliance General Insurance 2016(3) SCC 100 wherein the Hon’ble Supreme Court has held as under:- 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 1996(4) SCC 647 . 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 1996(4) SCC 647 . 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 (B.V. Nagaraju case. “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 laid by this Court). 14. Further, in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors. a three judge bench of this Court has held as under:- ”49. 14. Further, in the case of National Insurance Company Ltd. vs. 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[5], 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 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. 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.” 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 overloading of passengers in the goods carrying vehicle. In the instant case, the respondent-Company has not produced any evidence on record to prove that the accident occurred on account of the overloading 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. 25. From the above legal and factual legal position, it is vivid that the Insurance company has failed to prove that there is breach of policy which is required to be proved by them by recording sufficient evidence on record, therefore, the question of law framed by this Court deserves to be answered in favour of the claimants and against the Insurance company. Thus the appeal sans merit and deserves to be dismissed. Accordingly, it is dismissed. 26. The interim order passed by this Court on 03.08.2021 is vacated.