THOTTATHIL B. RADHAKRISHNAN, J.

1. This appeal is against an award passed under the Workmen's Compensation Act, 1923, for short, the 'Act'. The insurer is the appellant.

2. Vehicle bearing No.KL-01 G 4271, which is a Bajaj pick-up auto, collided with a mini lorry and the person who was driving the pick-up auto died while being carried to the Medical College Hospital, Trivandrum. His legal representatives filed a claim under the Act.

3. The insurer contested fundamentally on two grounds. The first contention was that there is breach of the policy condition in as much as the deceased driver possessed a licence only to drive a passenger vehicle, i.e., to say, a vehicle other than a goods vehicle and the vehicle that met with the accident was a goods vehicle. The second contention was that the policy was granted only regarding a passenger vehicle, i.e., to say, Bajaj autorikshaw and not for a goods pick-up auto.

4. Appreciating the evidence, the Commissioner repelled the plea that the insurance was given only for a passenger vehicle. The Commissioner relied on the copy of the policy which was available along with the police papers. That showed that the policy initially issued as regards the Bajaj autorikshaw was corrected as one issued for Bajaj pick-up auto. That correction was under the signature and seal on behalf of the insurer. Not only that, there is no dispute between the parties that the registration number of the vehicle is KL-01 G 4271. By now, there is no dispute that it is a goods vehicle. We are not inclined to take that the officers of the insurer would not have inspected the vehicle before giving insurance policy. Obviously therefore, the entry in the policy as initially issued, to the effect that the vehicle is an autorishaw, is erroneous and would obviously have been the reason for the subsequent rectification. We say this, in particular, because there is no plea for the insurer that there was an illegal conversion of the user of the vehicle. With all this, we do not find any substance in the insurer being aggrieved by that finding. We also note that there is no specific attack in the appeal memorandum raising any substantial question of law on that issue.

5. Now, the question is whether the deceased driver who possessed only a licence to drive a vehicle other than a transport vehicle could have driven the vehicle in question and whether the entrustment of the vehicle to such a person would result in violation of the policy conditions. Learned counsel for the insurer, relying on the decision of the Apex Court in National Insurance Company Ltd. v. Mastan [2006(1) KLT 853], argued that the insurer is entitled to raise the defence available under Section 149(2) of the Motor Vehicles Act, 1988 in opposition to a claim under the Workmen's Compensation Act. We, for the purpose of deciding the case in hand, do not see that it is necessary to go into that issue. The three Judge Bench of the Apex Court in National Insurance Company Ltd. V. Swaran Singh [2004(3) SCC 297] considered, inter alia, the question as to what would be the legal effect when the person has been granted licence for one type of vehicle but, at the relevant time, he was driving another type of vehicle. The discussion in this regard is contained in paragraphs 88 to 91 of that report in SCC. Pithily, the ratio emanating from that discussion is as follows:

"In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving