The main legal point established in the judgment is that the Insurance Company must prove that the breach of policy was fundamental and caused the accident to avoid liability for compensation.

JUDGMENT

Urmila Joshi-Phalke, J. - This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'the said Act') has been preferred by the Oriental Insurance Company (Insurance Company) challenging judgment and award dated 3.1.2008 passed by learned Member, Motor Accident Claims Tribunal, Akot, district Akola (learned Member of the Tribunal) in Motor Accident Claim Petition No.2/2006 whereby the insurance company is held liable to pay compensation Rs.3,96,000/- along with interest @ 9% per annum from the date of petition, till its realization.

2. Brief facts are that on 4.11.2005 Deependra, husband of respondent No.1, was traveling by vehicle Taxi bearing No.MH-30-P-5897. He boarded in the Taxi at Rohana stop and was proceedings towards Akola. When the vehicle Taxi reached at Pati Shiwar on Dahihanda Road, the tyre of the vehicle Taxi was burst and the vehicle tumbled down. In the alleged accident, he sustained grievous injuries and succumbed to injuries. As per claimants, the vehicle Taxi was driven by its driver in a high speed without observing traffic rules and regulations, in the result the accident occurred. The vehicle Taxi was owned by respondent No.6 and validly insured with the Insurance Company. Regarding the said accident, crime was registered at Dahihanda Police Station, Akola vide Crime No.76/2005 under Sections 279, 337, and 338 of the Indian Penal Code. As the said accident took place due to rash and negligent driving by driver of the vehicle Taxi owned by respondent No.6 and validly insured with the Insurance Company, the Insurance Company and the owner of the vehicle Taxi are jointly and severally liable to pay compensation. Hence, claimants sought compensation from the Insurance Company and the owner of the vehicle Taxi.

3. The claim was contested by respondent No.6/owner of the vehicle Taxi and the Insurance Company by filing written statements vide Exhibits-19 and 21 respectively. Respondent No.6/owner of the vehicle Taxi has admitted that the alleged accident took place due to bursting of tyre, however denied the contention that the alleged accident took place due to rash and negligent driving by the driver of the vehicle Taxi.

Whereas, the Insurance Company denied the contention of claimants and raised defence that the policy, issued to respondent No.6/owner of the vehicle Taxi, was to cover the use of vehicle only for carriage of passengers in accordance with terms and conditions of the permit issued within the meaning of the Motor Vehicles Rules. As per the permit, maximum number of passengers were permitted to be carried 6+1 driver only, however the driver of the vehicle Taxi bearing No.MH-30-P-5897 was carrying in all 11 passengers which was breach of conditions of the policy and, therefore, the Insurance Company is not liable to pay compensation to the claimants.

4. Before learned Member of the Tribunal, the parties led evidence. The claimant No.1 examined herself by filing an affidavit of examination-in-chief vide Exhibit 30. No evidence is adduced by respondent No.6/owner of the vehicle Taxi. On behalf of the Insurance Company, witness namely Nilkanth Jagoji Gedam, Assistant Manager, was examined.

5. After considering the evidence on record, learned Member of the Tribunal held that claimants have made out a case for grant of compensation. Whereas, except the statement in the First Information Report, no other evidence was adduced to establish that the vehicle Taxi was carrying 11 passengers. The burden of fact of breach of condition is on the Insurance Company which is not discharged and, therefore, the Insurance Company is liable to pay compensation.

6. Being aggrieved and dissatisfied with the judgment and award passed by learned Member of the Tribunal, the present appeal is preferred by the Insurance Company on the ground that the driver of the offending vehicle was not holding a valid driving licence as well as the driver has carried the passengers more than permitted. Thus, there is brea