The breach of condition in an insurance policy prohibiting the carrying of passengers for hire does not absolve the insurer from liability if it is not fundamental to the main purpose of the policy.

( 1 ) THIS appeal is by the insurer of dumper truck No. NP 26 AO-459 which caused an accident on 29-11-1990 resulting in fatal injuries to Raja Ram Kunwar who died in consequence thereof the following day in District Hospital, Raigarh. By an award dated l5th April, 1993, the Claims Tribunal awarded compensation of Rs. l,18,800/- to the respondents No. 1 and 2, being the widow and son of the deceased. This award has been challenged in this appeal on the ground that the insurer was absolved from liability on account of breach of conditions of policy in so far as the dumper was being used for carrying passengers for hire.

( 2 ) THE facts of the case which are not in dispute may be briefly stated. The dumper belonged to respondent No. 3 and was being driven by respondent No. 4 at the time of the accident. Raja Ram had boarded the dumper at Gharghode and had paid Rs. 5/- as fare. About 3 kms from Gharghode, the dumper fell down into a field from a height of 20 ft. The accident was as a result of rash and negligent driving of the dumper.

( 3 ) THE Tribunal made the award recording a finding of rashness and negligence. The dependency of the claimant was taken to be of Rs. 470/- p. m. and taking the multiplier to be 20, the compensation was calculated to be Rs. 1,12,800/ -. To this a sum of Rs. 5,000/- as consortium to the widow and a lump sum of Rs. 1000/- towards the loss of protection of the father was also added, bringing the total sum of Rs. 1,18,800/ -.

( 4 ) THIS award has been challenged only by the insurer. The ground of attack is that insurance policy specifically imposes restriction that the vehicle shall not be used for carrying passengers except employees. And since the deceased was travelling in the vehicle for hire, it amounted to a breach of condition of policy thereby absolving the Insurance Company.

( 5 ) WE have heard counsel for both sides and we are of the view that the appeal has no force and must be dismissed. It must be stated at the outset that in the written statement the insurer did not specifically plead the breach of any particular term of the policy. Nor adduced any evidence. However, the Tribunal considered the plea that there was a term prohibiting carrying passengers for hire and held that the evidence shows that the owner had specifically asked the driver not to carry passengers for hire. Therefore, relying on Skandia Ins. Co. Limited v. Kokilaben Chandravadan, AIR 1987 SC 1184, it cannot be said that the insured had committed any breach of condition of policy.

( 6 ) TRUE, clause 3 of limitation as to use, carrying of passenger was prohibited under the exclusion term of Insurance Policy that would not affect the respondents to claim compensation as increase of one passenger beyond the limit of carrying six workmen excluding the driver without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. Recently the Supreme Court in case of B. V. Nagaraju v. M/s. Oriental Insurance Co. Limited Divisional Office, Hassan AIR 1996 SC 2054, referring to its earlier decision in case of Skandia Insurance Co. Limited (supra) observed in paras 7 and 8 thus :-"7. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is poser, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the on coming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the