To avoid liability, the insurer must demonstrate that policy breaches were fundamental and related to the accident, which was not proven in this case.

ORDER :

1. Insurance Company has preferred this appeal against the award of compensation passed in M.A.C. Case No.72/2013 whereby and whereunder the Tribunal awarded compensation of Rs.4,50,880/- with interest 7% per annum from the date of institution of the case till its realization.

2. This appeal has been preferred by the Insurance Company mainly on three grounds. Firstly, there was breach of policy of insurance as the driver of the vehicle was not having a valid driving license. Secondly, the said vehicle being a Tempo, was a commercial vehicle and was being used for hire or reward and was being plied without any valid permit. Thirdly, as per the evidence, there was overloading in the said Tempo as the witnesses have stated that there were 15-20 passengers in the said vehicle which met with an accident whereas as per the registration book of the Tempo (Exhibit 7), only four persons were permitted to travel in the said vehicle.

3. Learned counsel on behalf of the owner of the vehicle (respondent no.7) argued that there is a definite finding of the Tribunal that the driver was having a valid driving license which had been adduced into evidence and marked as Exhibit 8. The driving license was issued on 03.08.2015 in the name of Gyan Sahu and was valid from 14.02.2008 till 13.02.2028 and the accident took place on 02.05.2013 therefore, the plea that the driver was not having valid driving license, is not factually correct.

4. Secondly, on the point of permit, it is argued that vehicle carrying passenger up to four, was not required permit under Section 66(1) of the Motor Vehicle Act unless it was being used for carrying passengers for hire or reward. The requirement of permit under Section 66(4) of the Motor Vehicle Act read with Rule 70, arises only in cases of motor vehicle with carrying capacity of nine or more persons. Offending vehicle being a Tempo with carrying capacity of only four, there was no requirement of any permit and therefore, the learned Tribunal did not accept this plea. Reliance in this is placed on the judgment of this Court in M.A. No.161 of 2023.

5. Having considered the submissions advanced on behalf of both sides and on perusal of the record of the case, it is evident that the instant claim application has been brought for the death of Bihari Oraon in a motor vehicle accident, who was travelling on a Tempo bearing registration no. JH 07C 4917 at the relevant time of accident. As per the FIR, the accident took place due to rash and negligent driving of the Tempo by the driver as a result it overturned, causing death of the deceased. After investigation, charge sheet was filed against the driver of the Tempo for the rash and negligent driving resulting in the accident.

6. Witnesses have deposed that 15 – 20 persons were travelling in the Tempo which met with an accident. Gulfa Oraon (A.W. 1), Amit Toppo (A.W. 2) and Dhonjo Orain (A.W. 3), who were travelling in the said Tempo, have given consistent account regarding the manner of accident. Nevertheless, mere overloading cannot amount to breach of the fundamental terms and condition of the insurance policy under Section 149(2) of the MV Act.

7. Main point for determination before this Court is whether there was a breach in terms of insurance policy for want of a valid permit for plying the tempo.

8. Relevant definitions as contained in various Sub-sections of Section 2 of MOTOR VEHICLES ACT , 1988 for the purposes of this case are quoted as under:

“(7) “Contract carriage” means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the u