An insurer cannot avoid liability under the Motor Vehicles Act, 1939, on the ground of breach of conditions of the policy, unless the defence falls within the ambit of Section 96(2) of the Act.

R. N. MISRA, J.

( 1 ) THESE are appeals under the Letters Patent read with the Orissa High Court Order directed against the common appellate decision of B. K. Ray, J. under Section 110-D of the M. V. Act rendered in Miscellaneous Appeals Nos. 148 and 181 of 1974.

( 2 ) ON 12-7-1973 at about 3. 30 P. M. one Niranjan Senapati, a Class IV employee in the Establishment of the Gold Controller was knocked down while coming on bicycle on the Link Road within the town of Cuttack by a motor truck bearing registration number ORU 5905, Niranjan succumbed to the injuries while attempts were being made to take him to the hospital. His dependants filed a claim under Section 110-A of the M. V. Act asking for compensation of Rs. 40,000/ -. They im-pleaded the owner of the truck as also the Insurer thereof as respondents. It was pleaded that at the time of death, Niranjan was getting a monthly salary of Rs. 157/ -. He was aged about 30 and his contribution to the family was above Rs. 90/-per month. Niranjan's dependents happen to be the mother, the widow and a son.

( 3 ) RESPONDENT No. 1, the owner, filed a Written statement denying that his truck had caused the accident. He also denied all other allegations that were made in the petition of claim. The Insurer did not file any written statement until the trial was over and the matter had been reserved for award. At that stage in its written statement, the Insurer pleaded that on account of breach of the conditions of the policy issued by it to the owner of the Vehicle; it had no liability at all.

( 4 ) BEFORE the Tribunal, 5 witnesses were examined in support of the claim while the owner examined only one witness. Several documents were produced on behalf of the claimants while on behalf of the owner the route permit and the certified copy of the driving licence of the truck driver were marked as Exts. A-1 and B-1 respectively and on behalf of the Insurer the Policy Bond was marked as Ext. A-2. The Tribunal held that the accident was caused due to rash and negligent driving of the truck in question and the claimants were entitled to compensation of Rs. 14,000/- besides costs. He further found that the Insurer was not liable to meet the compensation payable to the claimants as there was a breach of the condition of the Policy.

( 5 ) THE claimants preferred Miscellaneous Appeal No. 181 of 1974 asking for higher compensation and the owner preferred Miscellaneous Appeal No. 148 of 1974 challenging the direction of the Tribunal that the entire compensation was payable by him and the Insurer was not liable for it. The learned single Judge on re-assessing the evidence allowed the claimants' appeal by enhancing the quantum of compensation to 27,140/ -. Besides the quantified amount, the learned single Judge directed that the order for costs of Rs. 400/- would stand and on the compensation amount the claimants would be entitled to receive six per cent interest per annum from the date of the claim till payment. In the appeal by the owner, the learned single Judge came to notice :-

". . . . . A reading of the written statement of respondent No. 1 (owner) filed before the tribunal shows that he simply denied the allegations made by the appellants (claimants) in their claim petition. He never took the plea that the vehicle in question belonging to him was not involved in the accident. Curiously, however, during hearing before the Tribunal he came forward with a new stand that prior to the date of the accident the motor vehicle in question was in the garage of O. P. W. 1 for repairs and that it was made over to him after repairs in the evening of that day. Therefore, according to respondent No. 1, his truck could not have caused the accident resulting in the death of Niranjan. The tribunal, after very carefully scrutinizing the evidence of O. P. W. 1 and relying on the evidence of the witnesses to the accident, has recorded a definite finding that it was the truck of respondent No. 1 which had caused t