M.Y. Eqbal, J.

1. These two appeals have been referred to Full Bench for testing the correctness of two decisions of this Court, one by Division Bench in the case of Bholla Nath Yadav v. Hemwati and Ors., 2003 (1) JCR 105 (Jhr) : 2002 (2) JLJR 411 and the other by a learned single Judge in Oriental Insurance Company Ltd. v. Jashmani Kongari, 2001 (1) JLJR 178.

2. Facts which have given rise to the present controversy may be stated :--

The deceased along with other persons were traveling by Bus on the relevant date of accident. The deceased was sitting on the roof of the Bus. When the Bus reached near Jaruadih More, several mango trees were spread towards road and the deceased who was on the roof of the Bus. Sustained grievous head injury. The deceased was taken to hospital and subsequently he died. In another case, the deceased was traveling on the roof of the Bus. Because of rash and negligent driving, the deceased fell down form the bus and succumbed to injuries.

3. The respondent-Insurance Company, on being noticed, appeared and filed written statement taking a defence that the vehicle was insured against third party risk under which insurer is not liable to pay compensation as there was a serious and fundamental breach of specified condition of policy. According to the respondents, the vehicle was insured for carrying specified number of passengers inside the Bus. It was contended that carrying passengers on the top roof of the Bus is violation of the conditions of permit as also the terms and conditions of the policy of insurance, which completely exonerate the insurer from any liability.

4. The Claim Tribunal has come to a finding that the insured has violated the condition of permit as well as the terms and conditions of policy of insurance and, therefore, the Insurance Company is not liable to pay compensation to the claimants. Hence, these appeals by the owner-appellant.

5. The Division Bench took notice of two conflicting decisions of this Court, one rendered by Single Bench in the case of Oriental Insurance Company Ltd., Ranchi v. Jashmani Kongari and Anr., (supra), wherein it was held that the Insurance Company cannot be held liable and other decision rendered by the Division Bench in the case of Bholla Nath Yadav v. Hemwati and Ors., (supra), wherein it was held that the Insurance Company shall be held liable for payment of compensation. In view of the aforesaid two conflicting decisions and also conflicting decisions of different High Courts, the matter has been referred to the Full Bench for answering the question whether the Insurance Company can take such defence for disowning the liability for payment of compensation.

6. Mr. S.N. Lal, learned counsel appearing for the appellant-owner of the Vehicle, drawn our attention to Section 149 of the Motor Vehicles Act, 1988 (shortly M.V. Act) and submitted that the Insurer can defend the action only on the grounds mentioned in the said section and no other defences are available to it. Learned counsel further submitted that violation of Chapter VIII of the Act of 1988 may be an offence under the M.V. Act, but it does not ipso facto constitute a breach for which the Insurance Company can be exonerated from its liability. Learned counsel put heavy reliance on the decisions of the Supreme Court in the case of United India Insurance Company Limited v. Doddapapaiah and Anr., (2000) 1 ACC 373; State of Maharashtra and Ors. v. Nanded Parbhani, Z.I.B.M.V. Operator Sangh, AIR 2000 SC 725, and National Insurance Company Ltd., Chandigarh v. Nicoletta Rohtagi and Ors., 2002 (3) JCR 201 (SC) : AIR 2002 SC 3350. Mr. Lal then submitted that traveling on the roof-top of the Bus or violation of Section 123 of the Act will not, in any way, deprive the defendants of payment of compensation. In this connection, learned counsel relied upon decisions of various High Courts, 1989 (2) TAC 482; 1998 ACJ 1177; 2002 JLJR 411.

7. On the other hand, Mr. Basav Chatterjee and Mr. Alok Lal, learned