Violations of the conditions imposed.

JUDGMENT:- The Insurance Company, against which the Motor Accidents Claims Tribunal, had passed an award for Rs. 44,800/- for the injury sustained by the second respondent herein, has filed the present appeal challenging its liability to pay the compensation.

2. Facts briefly are: - On 5-3-1980, the second respondent was knocked down by an auto-rickshaw TMZ 5785 belonging to the first respondent and insured with the appellant. The vehicle was driven in a rash and negligent manner. The second respondent sustained very serious injuries, which necessitated prolonged treatment and finally left him with permanent disablement. He filed O.P. No.233 of 1980 under S.110-A of the Motor Vehicles Act (hereinafter referred as to the Act) before the Motor Accidents Claims Tribunal (Court of Small Causes), Madras claiming a total compensation of Rupees 50,000/-.

3. The first respondent remained ex parte.

4. The appellant resisted the claim contending that the accident was not due to the rash and negligent driving of the auto-rickshaw, but was due to the negligence of the second respondent himself. The appellant also disputed its liability on the ground that there was breach of condition of the policy of insurance, since the auto-rickshaw had no permit to ply in the City of Madras and in violation of the terms of the permit was found plying in Madras.

5. Before the Tribunal, the second respondent examined himself as P.W.1 and examined the Medical Officer, who treated him as P.W. 2 and the Inspector of Police, who investigated into the case, as P.W.3, Exts. P-1 to P-18 were marked. An assistant of the appellant was examined as R.W. 1. Exts. R-1 to R-3, were marked.

6. On the above material, the Tribunal found that the accident was due to the rash and negligent driving of the auto-rickshaw and assessed the compensation at Rupees 44,800/-. The Tribunal also held that there was no breach of the terms of the policy of insurance and made the appellant liable to pay compensation. Aggrieved with the latter finding, this appeal has been preferred.

7. Thiru B.S.Gnandesikan, learned counsel for the appellant contended that the auto-rickshaw belonging to the first respondent, as per its permit could not ply in the City of Madras and that in violation of the terms of the permit, the vehicle was found plying in Madras and that in view of this violation of the terms of the permit, there was also violation of the terms of the policy of insurance and as such the appellant was exonerated from liability to indemnify, the claim. Learned counsel also contended that the appellant had called upon the first respondent to produce the permit relating to the vehicle and the failure on the part of the first respondent to produce the permit or even send any reply, would necessarily lead to the inference that the permit for the vehicle did not include plying within the limits of the City of Madras.

8. Thiru S. Gangaram Prasad, learned Counsel for the second respondent; in particular contended that the burden was upon the appellant, the insurance company, which sought to avail of the exclusion clause in the policy of insurance, to prove that a breach of any of the terms of the policy of insurance had beaten committed and in the instant case the appellant had not discharged that burden. Secondly, learned counsel contended that the appellant was liable under the insurance policy.

9. The short question that arises for consideration is whether the violation of the conditions in the permit relating to the geographical limits within which the vehicle could ply would entitle the insurance company to disclaim its liability under the policy of insurance?

10. The insurance policy is essentially a contract between the insurer and the insured, whereby the former in consideration of receiving monetary payment in the form of premiums, undertakes to indemnify the latter in the event of certain contingencies happening. Being an agreement between the two parties, the policy of insurance is