The main legal point established is that the insurance company's liability arises from a contractual and statutory obligation regarding third party risk, and it must establish a breach of policy conditions to escape liability.

JUDGMENT :

Vikas Kunvar Srivastav, J. - This first Appeal from Order under Section 173 of the Motor Vehicle Act, 1988 has arisen from the judgment and award dated 28.02.2002 passed by Motor Accident Claims Tribunal/Ist Additional District Judge, Sultanpur under Section 166 of the Motor Vehicle Act in Motor Accident Claim Petition No.19 of 1999 (Ram Pher and Anr. v. National Insurance Co. Ltd.).

2. Learned Motor Accident Claims Tribunal has awarded compensation to the tune of Rs. 50,000/- to the claim petitioner whose son aged about 18 years namely Ajay Kumar Verma met the accident with offending motor vehicle, tempo (U.P. 44 A9883). The accident was occurred on 17.4.1998 at 9:00 a.m., while the deceased-Ajay Kumar Verma was driving the aforesaid Tempo in question, due to a sudden burst of tyre, the same flipped over. He fell beneath the Tempo, sustained severe injuries and died. It is alleged in the claim petition that the deceased was earning Rs. 3,000/- per month as wages by driving the said tempo.

3. Learned court below has directed the insurer (National Insurance Co. Ltd.) of the offending motor vehicle i.e. Tempo to pay compensation for and on behalf of the owner (the insured) of the said vehicle to the claim petitioner no.2, mother of the deceased.

4. Aggrieved thereby the National Insurance Co. Ltd. has presented this appeal in which the appellant-National Insurance Co. Ltd. has challenged the impugned judgment and award of the Motor Accident Claims Tribunal on following grounds:-

"(1) that the finding of M.A.C.T. is perverse erroneous and contrary to the provision of the Act and law

(2) Evidence available on record was not properly appreciated.

(3) The main contention of the appellant in challenging the appeal as given in the memo of appeal is that the appellant cannot be saddled with the responsibility of indemnifying the claimants as the vehicle in question was being driven in violation of motor vehicle Act and Rules.

(4) Further, that the offending vehicle was being driven in contravention to the terms and condition of the policy.

(5) It is also raised while challenging the impugned judgment and award that the deceased was having a driving license for non-commercial motor vehicle while he was driving the Tempo for carrying passengers

(6) permit to drive the vehicle was not found valid on the date of the accident as validity of the route permit was only for driving within circumference of 25 K.M. from Jagdishpur.

(7) Lastly, the death was caused due to contributory negligence of the deceased himself and as he negligently overturned rear wheel of the vehicle and got punctured."

5. Heard learned counsel Sri H.P. Srivastava for the appellant and learned counsel Sri Anil Kumar Mishra for the respondents and perused the lower court record.

6. Learned counsel for the appellant in support of his arguments as to the irregularities and illegalities committed by the deceased-Tempo driver regarding permit to ply the vehicle placed reliance on the judgment of Hon'ble Apex Court in (National Insurance Company v. Challa Bharathamma) reported in [2005 (1) T.A.C. 4 (S.C)]. He further argued that a vehicle must have certificate of insurance, route permit under law and as such fastening the liability to pay compensation on the insurance company is not proper, the owner of the vehicle should be held liable to pay compensation to the claimants. Para 12 and 13 of the said judgment of Hon'ble Apex Court is being reproduced hereunder:

"12. High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-avis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The questi