By this common judgment, I shall dispose of the above two appeals filed by the Appellant-Insurance company.

2. These two appeals have been filed under Section 173 of the Motor Vehicles Act, 1988 (for short as „Act?) against the impugned judgment dated 12th September, 2007 passed by the Dr. T.R.Naval, Judge, MACT (for short as „Tribunal?).

3. Brief facts of this case are that on 18th July, 2004 at 1.20 P.M., deceased Mukesh Jain, was driving his two wheeler scooter No. DAI-1835 on which his son namely Master Shashank Jain was pillion rider. When they reached near SDM office, Geeta Colony, Delhi, all of a sudden the offending motorcycle bearing no. DL-7S-G-3282 being driven by its driver respondent Jatin Singh, in a very rash and negligent manner, without blowing any horn, tried to overtake the scooter of the deceased and in that process struck against the scooter of the deceased with a great force due to which the deceased and his son were thrown on the road. The deceased was immediately admitted to the hospital but he could not survive and died. Master Shashank sustained grievous injuries.

4. The driver and owner of the offending vehicle in their written statement have admitted the factum of accident. However, their defence is that deceased was driving the scooter in a rash and negligent manner and without helmet. The deceased suddenly turned the scooter to the right side and struck against the offending vehicle. The accident was caused due to sole negligence of the deceased and there was no fault of the motor cyclist.

5. The appellant in its written statement has admitted the factum of insurance. However, it has taken a preliminary objection stating that appellant shall not be liable to indemnify, in case it is found that at the time of alleged accident, the alleged driver was driving the offending vehicle without holding any effective and valid driving licence or was driving without licence, as it a breach of the terms and conditions of the policy.

6. The Tribunal vide impugned judgment awarded compensation of Rs. 8,35,067/- to the legal heirs of the deceased in the death case, while injured Master Shashank was awarded Rs. 24,900/- as compensation.

7. The appellant was held liable to pay compensation to the claimants, but was given recovery rights to recover the same from the owner and driver.

8. Being dissatisfied with the impugned judgment, appellant has filed present two appeals.

9. It has been contended by learned counsel for the appellant that the Tribunal on the one hand has held that the driver of the offending vehicle was minor and was not holding any driving licence but on the other hand it directed the appellant to pay first the award amount and then recover from the insured/owner of the vehicle. These findings of the Tribunal are liable to be modified in the light of judgment passed by the Apex Court in the case titled as National Insurance Company Ltd. V. Kusum Rai and Ors II (2006) ACC 19 (SC) in which it has been laid down that; “As there was breach of condition of contract of insurance policy by the insured, as such the insurance company was exonerated from its liability.”

10. This Court was also on this view in FAO No.476/2003 decided on 14th April, 2007 titled National Insurance Company v. Hari Chand & Ors.

11. It is further contended that present case, is a case of “no driving licence” and once the Tribunal has observed that this is a case of willful breach, then the insurance company being the insurer cannot be liable to pay compensation. The owner of the offending vehicle has not pleaded in its written statement that the motor cycle was being driven by its driver without his consent. Since the breach of the contract between the insured and the insurer was fundamental, the insurance company is not liable to pay any compensation and in support of his contention, learned counsel also cited National Insurance Company Ltd. v. Swaran Singh and Ors 2004 ACJ

1. 12. Lastly, it has been conte