1. This Civil First Miscellaneous Appeal is directed against the award dated 20.12.2004 passed by learned Presiding Officer, Motor Accident Claims Tribunal, Srinagar, in claim petition titled Naiz Ahmed and others Vs. Mubarak Ali and others, which shall be, hereinafter, referred to as impugned award.

2. It is necessary to note brief facts of the case, the womb of which has given birth to the present appeal.

It appears that claimants filed a claim petition referred to, hereinabove, being the victims of vehicular accident, before Motor Accident Claims Tribunal, Srinagar, on the ground that driver, namely, Ghulam Rasool Bhat has driven vehicle No.JK06-602 (Matador), rashly and negligently and caused accident. The deceased, Yasir Ahmad, who was traveling in the vehicle sustained injuries and succumbed to the injuries. Respondents 1 and 2 in the claim petition had been set ex parte and respondent No.3 therein had caused appearance and filed objections. The following issues were framed in the claim petition:-

"1. Whether on 31.11.2002 Ghulam Rasool Bhat respondent No.2 was plying TATA Matador No.JK06/602 so rashly and negligently that at Naipali Nala District Doda while negotiating a curve he lost control over the same which fell in to a deep gorge and Yasir Ahmad who was traveling in the same sustained fatal injuries and succumbed to the same? OPP

2. Whether due to non-joinder of necessary and proper parties the petition is not maintainable? O.P.R-2 and 3.

3. Whether the driver of the offending vehicle was not holding a valid driving licence on the date of accident and as such the Insurance Company cannot be saddled with the liability? O.P.R.-3

4. In case issue No.1 is proved in affirmative to what amount of compensation the petitioners are entitled to, from whom and in what proportion? O.P.P.

5. Relief.

3. Petitioners led evidence but respondents had failed to lead evidence. Thus, the evidence of the petitioners had remained un-rebutted. Thus, the appellant (insurer) failed to prove the issues 2 and 3. Impugned award came to be passed in favour of the claimants against the insurer, owner and insured. Accordingly, insurer(appellant) came to be saddled with the liability.

4. The main ground of attack in this appeal is that driver was carrying more than permissible specified number of passengers in the offending vehicle at the time of causing accident near Naipali, Batote Kishtwar road on 30.11.2002 and, therefore, appellant/insurer cannot be saddled with liability.

5. Heard. Perused. Considered.

Three points of law are required to be determined.

1. That insured, owner has committed breach because the driver while driving the offending vehicle at the time of accident was carrying more than specified number of passengers which was beyond permissible capacity of the offending vehicle.

2. That whether the insurer is not liable as per the terms and conditions of the insurance policy read with the mandate of Sections 147 and 149 of the Motor Vehicles Act in the given circumstances of the case.

3. If issues 1 and 2 are decided against the insurer then in that event question arises whether the insurer can be saddled with the liability only to the extent of claim of permissible number of passengers as per the terms and conditions contained in the route permit and registration certificate read with insurance policy.

In order to return finding on the questions formulated, hereinabove, it is necessary to notice sub-section 2 of Section 149 of Motor Vehicles Act, herein, which reads as under:-

"149(2). No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such pr

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