T.R. RAMACHANDRAN NAIR, J.

1. Both these appeals are filed by the insurance companies arrayed as parties before the Workmen's Compensation Commissioners in two cases. M.F.A. No. 85 of 2009 is against the order in W.C.C. No. 32 of 2004 of the Commissioner for Workmen's Compensation, Ernakulam and M.F.A. No. 219 of 2010 is filed against the order in W.C.C. No. 26 of 2007 on the file of the Commissioner for Workmen's Compensation, Palakkad.

2. We heard learned counsel for the appellants Shri Lal George and Shri E.M. Joseph and Shri T.C. Suresh Menon and Shri V.V. Nandagopal Nambiar appearing for the respondents.

3. The substantial question of law raised and argued in these appeals is as to whether the Commissioner for Workmen's Compensation can permit the insurance company to recover the amount ordered to be paid, indemnifying the insured for the alleged violation of the conditions in the policy by invoking Section 149(4) of the Motor Vehicles Act.

4. In both these appeals, the learned counsel for the insurance companies mainly contend for the position that the driver of the vehicle involved in the accident was not duly licensed and therefore, being a defence under Section 149(2)(a) of the Motor Vehicles Act, 1988, as provided under Section 149(4), the recovery from the insured is permissible.

5. In M.F.A. No. 85 of 2009, the details of the case will show that the claimants are the dependents of one Martin who died in the accident and it was alleged that the accident arose in the course of employment under the first opposite party therein. He was the driver of a lorry bearing Reg. No. KRH 4595 owned by the first opposite party before the Commissioner. While driving the vehicle on 22.5.2004 it met with an accident near Vengachuvadu which resulted in the death of the driver. He was aged 29 years and was earning a sum of Rs. 6,000/- per month. The claim was admitted after a preliminary enquiry and the case was tried by the Commissioner. One applicant, Shri Chacko was examined as A.W.1 and Exts.A1 to A13 have been marked. There was no evidence on the part of the opposite side and A.W.1 was cross examined. A.W.1 is the father of the deceased. The Commissioner finally concluded that the deceased was a workman as defined under the Workmen's Compensation Act and his death was due to an accident arising out of and in the course of his employment under the first opposite party. The eligibility for compensation was accordingly upheld and the insurance company was directed to deposit the amount. The Commissioner also found that the deceased was having a valid driving licence.

6. In M.F.A. No. 219 of 2010 the facts show that the accident occurred on 9.4.2007. The third respondent is the owner of EX 70 Hydraulic Excavator. According to the applicants before the Commissioner, the deceased was employed as a driver of the insured and while he was removing soil from the canal bund using the excavator of the insured, it all on a sudden tilted upon the deceased causing fatal injuries to him. Therein also, the Commissioner found that the employer-employee relationship has been proved and the first opposite party is liable to pay compensation and the insurer who has issued the policy, is liable to indemnify the first opposite party.

7. Learned counsel for the insurance companies submitted that even if it is found that the insurance companies are liable to indemnify the insured, the Commissioner ought to have allowed the companies to recover the amount paid by invoking Section 149(4) of the Motor Vehicles Act. Shri Lal George and Shri E.M. Joseph invited our attention to the judgments of the Apex Court and Karnataka High Court. The dictum laid down in two decisions of the Apex Court in National Insurance Company Ltd. vs. Mastan, 2006 (1) KLT 853 (SC) and Gottumukkala Appala Narasimha Raju and Others vs. National Insurance Company Ltd. and Another, (2007) 13 SCC 446 was elaborated by the learned counsel for the appellants.

8. Per contra, learned c