Of High Court
Case Details
2024:BHC-AUG:4989 IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD FIRST APPEAL NO. 1328 OF 20101.Dattatraya s/o Namdeo Undare,Age 42 years, Occupation Agriculturist,2.Sau. Damyanti w/o Dattatraya Undare,Age 37 years, Occupation Household,Both R/o Washi Tq. Washi,Dist. Osmanabad....Appellants(Original Claimants)VERSUS1.Shrihari s/o Kalyanrao Parkale,Age Major, Occupation Business,R/o Hasegaon Tq. Kallam,Dist. Osmanabad.2.New India Assurance Co. Ltd.,Through Branch Manager,Near Sanjivani Hospital,Osmanabad, Dist. Osmanabad....Respondents(Original Respondents)...Advocate for Appellant : Ms. Sayali S. Tekale and Mr. PrasannaDadpeAdvocate for Respondent No.2 : Mr. A. B. Gatne...WITHFIRST APPEAL NO. 1329 OF 2010 1.Arun s/o Bhagwat Shinde (Mali),Age 55 years, Occupation Agriculture,2.Sau. Mangal w/o Arun Shinde (Mali),Age 49 years, Occupation Household,Both R/o Washi Tq. Washi,Dist. Osmanabad....Appellants(Original Claimants)VERSUS1.Shrihari s/o Kalyanrao Parkale,Age Major, Occupation Business,
Legal Reasoning
10FA 1328-2010entire amount from the insured /owner of the offending vehicle beforereleasing the claim amount to the claimants and submitted that similardirections be passed in the present matter.13.The question thus arises before this Court is,“whether the directions to give security by the insured tothe insurer before the disbursal of the claim amount to theclaimant is the ratio decidendi of the Judgments of theSupreme Court in the case of Challa (Supra) andMushtari Begum (Supra) as quoted in the case of Veena(Supra) and thus constitutes a binding precedent and hasto be followed in all the cases ?”14.Before dealing with the said Judgment of Veena (Supra), it isnecessary to consider the Judgment of this Court in Writ petitionNo.4147 of 2015, Manish Madhukar Gajbhiye and Others VersusThe Oriental Insurance Co. Ltd. And Another, decided on02/09/2016, (Coram: Prasanna B. Varale, J. as he then was),wherein this Court after considering the Judgment of the Hon’bleSupreme Court in the case of Pramdo Kumar Vs. Mushtari Begum(Supra) and also by considering the Judgment of the High Court ofAllahabad in the case of I.C.I.C.I. Lombard General Insurance Co.Ltd. Versus Sirajuddin and Ors., reported in I (2014) ACC 958(All) has held that, when the owner is avoiding service with an 11FA 1328-2010intention and with purpose is not attending the claim tribunal, theclaimants for the willful act of the respondent owner may not besubjected to sufferance for indefinite period and that the claimantswere permitted to withdraw the amount deposited in the claim tribunalwithout furnishing the surety by the insured, and the InsuranceCompany was permitted to recover the same from the owners of theoffending vehicle.15.It is also required to be noted that in the case of ParminderSingh (Supra), the Supreme Court while considering the case of theoffending insured vehicle driven by a person who did not have a licenceto drive, had directed the Insurance Company to pay the compensationto the claimants and applied the principle of “pay and recover”, andgave following directions in the Judgment : -“7.On the issue of liability to pay the compensationawarded, we affirm the view taken by the High Court thatthe respondent Insurance Company is absolved of theliability to bear the compensation, as evidence has beenproduced from the office of the Regional Transport Office toprove that the drivers of the two offending trucks weredriving on the basis of invalid driving licences. It is alsorelevant to note that the owners and drivers of theoffending trucks have not appeared at any stage of theproceedings, including this Court.7.1This Court in Shamanna v. Oriental Insurance Co. 12FA 1328-2010Ltd., held that if the driver of the offending vehicle doesnot possess a valid driving licence, the principle of “payand recover” can be ordered to direct the insurancecompany to the pay the victim, and then recover theamount from the owner of the offending vehicle.7.2We deem it just and fair to direct the respondentInsurance Company to pay the enhanced amount ofcompensation as indicated in para 6 above, to theappellant within a period of 12 weeks from the dare of thisjudgment. The respondent Insurance Company is directedto make out a demand draft in the name of the appellant,which can be used for his care for the rest of his life. Therespondent Insurance Company is entitled to recover theamount from the owners and drivers of the two offendingtrucks.”16.From the directions as quoted above in the case of ParminderSingh (Supra), it would be clear that the Supreme Court has notdirected the insured/ owners of the vehicle to furnish security beforethe release of the claim amount to the claimant. The Supreme Courtdirected the Insurance Company to make payments within 12 weeks,and such a direction is also not issued by invoking Article 142 of theConstitution of India.17.The Hon’ble Supreme Court in case of Pappu and OthersVersus Vinod Kumar Lamba and Another, reported in (2018) 3 13FA 1328-2010Supreme Court Cases 208, considered the question that in absenceof a valid licence of the driver of the insured vehicle, whether theinsurance company can be directed to pay the claim amount withliberty to recover the same from the owner of the insured vehicle. Inresponse to the question formulated before Supreme Court, theSupreme Court relied upon the Judgment of National Insurance Co. Ltd.Versus Swaran Singh, reported in 2 (2004) 3 SCC 297, and held asunder : -“16.The next question is: whether in the fact situationof this case the insurance company can be and ought tobe directed to pay the claim amount, with liberty torecover the same from the owner of the vehicle(respondent No.1) ?” “17.This issue has been answered in the case ofNational Insurance Company Ltd. In that case, it wascontended by the insurance company that once thedefence taken by the insurer is accepted by the Tribunal,it is bound to discharge the insurer and fx the liabilityonly on the owner and/or the driver of the vehicle.However, this Court held that even if the insurersucceeds in establishing its defence, the Tribunal or theCourt can direct the insurance company to pay theaward amount to the claimant(s) and, in turn, recoverthe same from the owner of the vehicle. The three-JudgeBench, after analysing the earlier decisions on the point,held that there was no reason to deviate from the said 14FA 1328-2010well-settled principle. In paragraph 107, the Court thenobserved thus:“107.“We may, however, hasten to add that theTribunal and the court must, however, exercisetheir jurisdiction to issue such a direction uponconsideration of the facts and circumstances ofeach case and in the event such a direction hasbeen issued, despite arriving at a fnding of fact tothe efect that the insurer has been able toestablish that the insured has committed a breachof contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from theowner or driver of the vehicle, as the case may be,in execution of the same award having regard tothe provisions of Sections 165 and 168 of the Act.However, in the event, having regard to the limitedscope of inquiry in the proceedings before theTribunal it has not been able to do so, theinsurance company may initiate a separate actiontherefor against the owner or the driver of thevehicle or both, as the case may be. Thoseexceptional cases may arise when the evidencebecomes available to or comes to the notice of theinsurer at a subsequent stage or for one reason orthe other, the insurer was not given an opportunityto defend at all. Such a course of action may alsobe resorted to when a fraud or collusion between 15FA 1328-2010the victim and the owner of the vehicle is detectedor comes to the knowledge of the insurer at a laterstage.”18....“19.In the present case, the owner of the vehicle(Respondent 1) had produced the insurance certificateindicating that Vehicle No.DIL 5955 was comprehensivelyinsured by Respondent 2 (insurance company) forunlimited liability. Applying the dictum in NationalInsurance Co. Ltd. Versus Swaran Singh, to subserve theends of justice, the insurer (Respondent 2) shall pay theclaim amount awarded by the Tribunal to the appellants inthe first instance, with liberty to recover the same from theowner of the vehicle (Respondent 1) in accordance withlaw.”The Supreme Court has held in case of Pappu (Supra) that evenif the insurer succeeds in establishing its defence, the Tribunal or theCourt can direct the insurance company to pay the claim amount to theclaimant(s) and, in turn, the insurance company may recover the samefrom the owner of the vehicle. The same has been held by placingreliance upon the Judgment of Swaran Singh (Supra).18.Thus, in the above Judgment of Pappu (Supra), so also theJudgment in case of Parminder Singh (Supra), the Supreme Courthas not directed the insured/ owner of the vehicle to give security for 16FA 1328-2010release of the claim amount to the claimants. In the above Judgmentof the Supreme Court there is direction to the insurance company tomake the payment and it is observed that the insurance companywould be entitled to recover the same from the insured.19.While dealing with the doctrine of precedent, in case of LaxmiDevi Versus State of Bihar and Others., reported in (2015) 10SCC 241, has observed at paragraph No.23 and 24 as under : -“23.The following paragraph from the determination of theThree-Judge Bench in Sanjay Singh vs. U.P. Public ServiceCommission, Allahabad, 2007 (3) SCC 720, is instructive and isreproduced for this reason :“10. The contention of the Commission also overlooksthe fundamental diference between challenge to thefnal order forming part of the judgment and challenge tothe ratio decidendi of the judgment. Broadly speaking,every judgment of superior courts has three segments,namely, (i) the facts and the point at issue; (ii) thereasons for the decision; and (iii) the fnal ordercontaining the decision. The reasons for the decision orthe ratio decidendi is not the fnal order containing thedecision. In fact, in a judgment of this Court, though theratio decidendi may point to a particular result, thedecision (fnal order relating to relief) may be diferentand not a natural consequence of the ratio decidendi ofthe judgment. This may happen either on account of anysubsequent event or the need to mould the relief to do 17FA 1328-2010complete justice in the matter. It is the ratio decidendi ofa judgment and not the fnal order in the judgment,which forms a precedent.”“24.We also commend a careful reading of the followingparagraphs from the decision of the Constitution Bench inIslamic Academy of Education vs. State of Karnataka, 2003 (6)SCC 697, which we shall reproduce for facility :”139. A judgment, it is trite, is not to be read as a statute.The ratio decidendi of a judgment is its reasoning whichcan be deciphered only upon reading the same in itsentirety. The ratio decidendi of a case or the principles andreasons on which it is based is distinct from the relieffinally granted or the manner adopted for its disposal. (SeeExecutive Engineer, Dhenkanal Minor Irrigation Division v.N.C.Budharaj).”“140. In Padma Sundara Rao v. State of T.N it is stated:(SCC p. 540, paragraph 9) “9....There is always peril in treating the words ofa speech or judgment as though they are words in alegislative enactment, and it is to be remembered thatjudicial utterances are made in the setting of the facts of aparticular case, said Lord Morris in Herrington v. BritishRailways Board(Sub nom British Railways Board v.Herrington). Circumstantial flexibility, one additional ordifferent fact may make a world of difference betweenconclusions in two cases.”145. It is further trite that a decision is an authority for what itdecides and not what can be logically deduced therefrom.” 18FA 1328-201020.The Supreme Court in the above Judgment of Laxmi (Supra)while considering the earlier Judgments has held that it is the ratiodecidendi of the Judgment that forms the precedent and not the finalorder in the Judgment.21.The Hon’ble Supreme Court in the case of Suneja Towersprivate Limited and Another Versus Anita Merchant,reported in (2023) 9 Supreme Court Cases 194, considered thecase of Manjeet Kaur Monga Versus K.L. Suneja (2018) 14 SCC 679,wherein the Competition Appellate Tribunal, while exercising powersunder Section 12-B of the MRTP Act, directed the builder to paycompound interest @ 15% p.a. from the date of deposit and untilthe date on which allotment was cancelled. In view of the Judgmentof Manjeet Kaur the question arose whether compound interestcould be granted as a measure of compensation. The SupremeCourt in Suneja Towers (Supra) observed that, the questionraised in the case of Manjeet Kaur Monga (Supra) was not asregards grant of compound interest as a measure of compensation,and at paragraph No.48, 49 and 51 observed as under : -“48.In the aforesaid decision in Dr. Manjeet KaurMonga by this Court, the question was not raised as towhether compound interest could be granted as a 19FA 1328-2010measure of compensation nor this Court decided so. Thequestion raised had been the other way round thatCOMPAT had not specified the amount of compensationpayable, to which, this Court observed that calculatingthe amount as per directions of COMPAT would lead tothe quantum of compensation.”“49.What has been argued before us on behalf ofrespondent is essentially on the basis of the reliefgranted by COMPAT to the said complainant Dr. ManjeetKaur Monga, which was not interfered with by this Court.That aspect, in our view, only relates to the conclusion ofthe decision and not to its ratio decidendi.” “51.Keeping the principles aforesaid in view and forwhat has been discussed hereinbefore in regard to ratiodecidendi of the decision in Dr. Manjeet Kaur Monga, it isbut clear that the said decision cannot be read in supportof the principle that compensation and/or punitivedamages in terms of the Act of 1986 could also be byway of compound interest. As noticed, the StateCommission has awarded compound interest, andNational Commission has approved such awarding ofcompound interest to the present respondent, only withreference to the said decision in the case of Dr. Monga.When we do not find ratio decidendi of Dr. Mongaleading to the enunciation in favour of awardingcompensation and/or punitive damages by way ofcompound interest, the substratum of the orders 20FA 1328-2010impugned is knocked to the ground.”22.From the Judgment of Laxmi Devi (Supra) and SunejaTowers (Supra), it is apparent that it is the ratio decidendi of theJudgment is the binding precedent which has to followed and not thefinal order. The final order directing the insured to give security beforethe claim amount is disbursed to the claimant is not the ratio decidendiof the Judgment of the Supreme Court Judgments in Challa UpendraRao (Supra) and Mushtari Begum (Supra). These are mere finaldirections given in the fact situation and also is apparent from theJudgments of the Supreme Court in the cases of Pappu (Supra) andParminder Singh (Supra) that similar directions need not be issuedin every case to the insured to give security before the disbursal ofcompensation amount to the claimant and the same would dependupon the fact of each case. The Judgments of the Supreme Court asreferred in the case of Veena (Supra) does not lay down a law thatthe owners of the insured vehicle be directed to give security beforerelease of the compensation amount to the claimants where thedefence under Section 149 (2) of the MV Act is established by theinsurance company. The final order would be depending upon the factsituation. No clear formulation is made in that regard.23.The Judgment of this Court in the case of Manish Gajbhiye 21FA 1328-2010(Supra) is not noticed in the subsequent Judgment in Veena (Supra)and so also for the fact that it is not the law laid down by the SupremeCourt that a particular modality has to be followed while directing theInsurance Company to “pay and recover” as is apparent from theJudgment of Parminder (Supra) and Pappu (Supra) that theSupreme Court has not subsequently applied any such method oftaking security while directing “pay and recover”. Thus, the claimantscannot be made to wait forever for the security from the insured of theclaim amount and thus it would be appropriate to direct InsuranceCompany to pay the claim amount to the claimants and liberty beinggranted to the insurance company to recover the same from theinsured/owner of the vehicle, if so desired by them. The insurancecompany is a business entity and is aware of the risk of ‘pay andrecover’. It is also to be noted that the third party insurance is astatutory insurance and the third party cannot be made to wait until theinsurance company is able to secure the claim amount from theinsured. 24.Now coming to the next submission as regards enhancement ofcompensation, in the case of Meena Devi (Supra) at paragraph No.14the Supreme Court has observed that the Three-Judge Bench of theSupreme Court in Nagappa Vs. Gurdayal Singh and others, (2003) 22FA 1328-20102 SCC 274, that there is no restriction that the Tribunal/Court cannotaward compensation exceeding the amount so claimed. TheTribunal/Court ought to award ‘just’ compensation which is reasonablein the facts relying upon the evidence produced on record. Therefore,less valuation, if any, made in the claim petition would not beimpediment to award just compensation exceeding the claimedamount.25.In the case of Meena Devi (Supra) the Hon’ble Supreme Courtat paragraph No.10 and 14 has observed as under : -“10.Thus relying upon the observation, it is said that inplace of issuing any guidelines for determination ofcompensation in case of death of a child, it may be leftopen to be decided in the facts and circumstances of eachcase. In the case of M. S. Grewal (Supra), 14 schoolstudents died due to drowning in a river. This Courtnoticing that the students were belonging to upper middleclass background, however awarded the compensation tothe tune of Rs.5,00,000/-. Thereafter in the case ofKishan Gopal (Supra), a child aged about 10 years diedin a road accident took place on 19/7/1992, this Courtmade departure from the IInd Schedule of M.V.Act andaccepted the notional income of Rs.30,000/- in place ofRs.15,000/- applying the analogy that the value of rupeehas come down drastically since 1994 when the notionalincome of Rs.15000/- was fixed in IInd Schedule of the MV 23FA 1328-2010Act. However accepting the notional income as Rs.30,000/-and as per the age of the parents i.e. 36 years, the loss ofdependency was calculated applying the multiplier of 15 atRs.4,50,000/- and a sum of Rs.50,000/- was awardedunder conventional heads awarding a total sum ofcompensation of Rs.5,00,000/-.”“14.At this stage, it is necessary to clarify that as per thedecision of a Three-Judge Bench of this Court in Nagappavs. Gurdayal Singh and others (2003) 2 SCC 274, it wasobserved that under the MV Act, there is no restriction thatthe Tribunal/Court cannot award compensation exceedingthe amount so claimed. The Tribunal/Court ought to award‘just’ compensation which is reasonable in the facts relyingupont he evidence produced on record. Therefore, lessvaluation, if any, made in the claim petition would not beimpediment to award just compensation exceeding theclaimed amount.” 26.Coming to the quantum of the compensation, in a case of MeenaDevi (Supra), at paragraph No.10 has applied the quantum ofcompensation for minors as discussed in case of Kishan Gopal(Supra). The same can be applied in the instant case also. In the factsof present petition young brilliant girls studying in private school of 14and 15 years have died in the accident. Therefore, accepting thenotional income of Rs.30,000/- including the future prospect andapplying the multipliers of 15, and the loss of dependency, the amount 24FA 1328-2010comes to Rs.4,50,000/- and Rs.50,000/- in conventional heads, thenthe total sum of compensation comes to Rs.5,00,000/- in eachpetitions.27.It is directed that the claimants should get Rs.5,00,000/- in eachof the claim petitions after deducting the amounts already paid (if any).The enhanced balance amount shall carry interest at the rate of 7% perannum from the date of the claim petition till the realization of theamount due to be paid by the respondent No.2 New India AssuranceCo. Ltd., within a period of six weeks from the date of uploading thisJudgment. The respondents No.2 New India Assurance Co. Ltd., wouldbe entitled to recover the amount of compensation from the insuredrespondent No.1.28.With directions as above, the First Appeals are allowed.( ARUN R. PEDNEKER, J. )vj gawade/-.
Arguments
2FA 1328-2010R/o Hasegaon Tq. Kallam,Dist. Osmanabad.2.New India Assurance Co. Ltd.,Through Branch Manager,Near Sanjivani Hospital,Osmanabad, Dist. Osmanabad....Respondents(Original Respondents)….Advocate for Appellant : Ms. Sayali S. Tekale and Mr. PrasannaDadpeAdvocate for Respondent No.2 : Mr. A. S. Osmanpurkar….CORAM : ARUN R. PEDNEKER, J.DATE : 08/03/2024JUDGMENT :-1.Heard the learned Advocate Ms. Sayali S. Tekale for theappellants and Mr. A. B. Gatne and Mr. A. S. Osmanpurkar for therespondent No.2- Insurance Company.2.Both the appeals are identical and arise out of one accident, theclaimants are identically placed. The facts and law involved is alsoidentical. Thus, both the appeals are taken up for hearing together.3.By the present appeals the appellants are challenging theJudgment and award dated 26/03/2010, passed by the learnedMember, Motor Accident Claims Tribunal in M.A.C.P. No.100/2008 andM.A.C.P.No.101/2008, whereby the Tribunal was pleased to allow the 3FA 1328-2010claim of the claimants against the opponent No.1 i.e. the owner of theoffending insured vehicle and dismissed the claim against the opponentNo.2 i.e. the New India Insurance Company Limited. The amount ofRs.1,50,000/- in each petition, is directed to be paid to the applicantsby the opponent No.1 @ of 8% p.a. from the date of the petition untilrealization minus ‘No fault liability’ amount if any is already paid undersection 140 of the Motor Vehicles Act. 4.The appeal is preferred against the order of the Tribunal by theclaimants on two grounds. The first ground is that the liability shouldbe jointly fastened upon the insurance company so also the opponentNo.1. Alternatively the Insurance Company should have been directedto pay and recover from the opponent No.1. The second ground is asregards insufficient compensation granted to the claimants.5.Briefly facts are summarized as under : -The claimants/ appellants in both the petitions are the parents ofthe deceased Pallavi Dattatraya Undare, aged 14 years and deceasedRevati, aged 15 years. Their daughters Pallavi and Revati were friendsand were riding bicycle on Washi to Dasmegaon road. A truck No.MH-12/Q-9645 came in rash and negligent manner and gave dash to them.The truck was in a high speed and the deceased Pallavi and Revatisustained multiple grievous injuries on vital parts of the body and died 4FA 1328-2010on the spot. Crime No.31/2008 was registered at Washi Police Stationagainst the driver of truck and the driver of the truck was prosecutedfor the offence punishable under Section 279, 304-A, 337, 338 of IPCand 184, 134 (A)(B) of M.V.Act. The claimants/parents of deceasedalso filed claim petitions before the Motor Accident Claim Tribunal. It iscontended in the claim petition that the deceased Pallavi was 14 yearsof age and learning in 8th standard and while Revati was 15 years ofage and learning in 9th standard. The claimant’s daughters died ofaccidental death in the above accident and the parents claimedcompensation @ Rs.1,50,000/-. The claim was resisted by opponentNo.2 by filing written statement, whereas the opponent No.1- owner ofthe vehicle did not appear and contest the claim. 6.After considering the evidence on record, the Tribunal held thatthe truck driver was negligent and that the truck was driven in rash andnegligent manner, and there was no contribution of any negligence onthe part of the cyclists, and as such, the tribunal held that theapplicants have established that the accident had occurred due to therash and negligent driving of Truck bearing No.MH-12/Q-9645. TheTribunal further held that the driver of the truck was holding LMVlicence only at the relevant time and did not hold a licence for drivingheavy vehicle, and as such, the liability was only fasten on the 5FA 1328-2010opponent No.1- the owner of the truck, and the Insurance Companywas absolved from the liability. Against the order passed by theTribunal absolving the Insurance Company, the present petitions arefiled.7.The learned Advocate Ms. Sayali S. Tekale appearing for theappellants relied upon the Judgment in Shamanna and AnotherVersus Divisional Manager, Oriental Insurance Company Limitedand Others, reported in (2018) 9 Supreme Court Cases 650, andalso relied upon the Judgment in S. Iyyapan Versus United IndiaInsurance Company Limited and Another, reported in (2013) 7Supreme Court Cases 62, to contend that when a third party sufferson account of the negligent act of the driver of the insured vehicle, thenthe insurance company is liable to pay compensation to the claimantseven if the driver of the insured vehicle does not have a valid licence orno licence at all. The learned Advocate submits that in such a situationthe settled law is that the insurance company has to pay first and isentitled to recover from the insured/owner of the insured vehicle.8.The learned Advocate also relied on the paragraph No.10 of theJudgment of Hon’ble Supreme Court in Meena Devi’s Versus NunuChand Mahto @ Nemichand Mahto & Ors. reported in (2023) 1SCC 204, wherein Judgment of M. S. Grewal and another Versus 6FA 1328-2010Deep Chand Sood and Others, reported in (2001) 8 SCC 151, andKishan Gopal and another Versus Lala and Others, reported(2014) 1 SCC 244, are discussed. In case of Kishan Gopal (Supra),a child of ten years had died in the accident which took place on19/07/1992 and the notional income was accepted of Rs.30,000/- inplace of Rs.15,000/- and the computation was calculated @ ofRs.5,00,000/-. The learned Advocate for the appellants submits thatshe would be entitled for compensation more than granted atparagraph No.10 of the above Judgment of Meena Devi (Supra) asthe deceased were brilliant girls of 14 and 15 years of middle incomefamily when the accident had take place.9.Per contra, the learned Advocate Mr. A. B. Gatne and Mr. A. S.Osmanpurkar appearing for the Insurance Company in respectiveappeals submits that as regards the first contention of the petitionerthat in case of a third party liability, it is not disputed that now the lawis settled that the insurance company have to pay and recover theclaim amount. However, they have placed reliance upon theJudgments of this Court in case of National Insurance Co. Ltd.Versus Veena and others, reported in 2018 ACJ 1558, to contendthat before the claim amount is disbursed, the owner of the offendingvehicle should be directed to furnish the security of entire 7FA 1328-2010compensation amount which the insurer will have to pay to theclaimants. 10.With response to the submissions in relating to the Judgmentrelied upon by the appellant in Meena Devi’s Versus Nunu ChandMahto @ Nemichand Mahto & Ors. (Supra) for enhancement ofcompensation, the learned Advocate for the Insurance Companysubmits that no such grounds are raised in the petition.11.As regards the submission of ‘pay and recover’, the Hon’bleSupreme Court in the case of Parminder Singh Versus new IndiaAssurance Company Limited and Others, reported in (2019) 7Supreme Court Cases 217, relying upon the Judgment of theSupreme Court in case of Shamanna Versus Oriental InsuranceCo. Ltd. (Supra) has held that if the driver of the offending vehicledoes not possess a valid driving licence, the principle of ‘pay andrecover’ can be applied to direct the insurance company to the pay theclaimant, and then recover the amount from the insured /owner of theoffending vehicle. There is no contest on the same proposition by theInsurance Company, as such, the directions of “pay and recover” canbe made in this case also. However, learned Advocate for theInsurance Company has placed reliance upon the Judgment of thisCourt in the case of National Insurance Co. Ltd. Versus Veena 8FA 1328-2010and others, reported in 2018 ACJ 1559, wherein this Court atparagraph No.36 and 38 has observed as under :-“36.In my considered opinion, however, though thissubmission appears to be ‘just’, so as to subserve thecause of justice, having regard to the law laid down by theHon’ble Apex Court in all the above said authorities likeChalla Bharathamma, 2004 ACJ 2094 (SC); MushtariBegum, 2004 ACJ 1903 (SC); and others, this court cannotdeviate from the mode prescribed by the Hon’ble SupremeCourt, in order to enable the claimants to get amount ofcompensation. After all, the appellant insurance company,which is required to be exonerated from paying thecompensation amount in view of the breach of the termsand conditions of the insurance policy, is now beingdirected to pay the said amount and, therefore, theinterests of the insurance company are also required to beprotected before the claimants are permitted to withdrawthe said amount. The court has to, in such cases, take thebalanced view. Therefore, the directions given in the saidauthorities need to be issued in this case also, so as tosafeguard the rights of appellant insurance company andalso that of the respondents-claimants.”“38.As a result, the appeal stands dismissed. Thedirection given by the Claims Tribunal to appellant tosatisfy the award and recover the same from the owner inexecution proceeding is confirmed with further direction asfollows :Before the release of the amount of compensation 9FA 1328-2010deposited by the appellant in this court to the respondents-claimants, the owner of the offending vehicle, respondent,shall furnish security for the entire amount which theinsurer will pay to the claimants.If necessity arises, the executing court shall take theassistance of the concerned Regional Transport Authorityfor attachment of the vehicle.The executing court shall pass appropriate order inaccordance with law as to the manner in which the ownerof the vehicle shall make payment to the insurer. In case there is any default, it shall be open to theexecuting court to direct realization of the amount bydisposal of the securities to be furnished or from any otherproperty or properties of the owner of the vehicle.In this case, considering the quantum involved, it isleft to the discretion of the insurer to decide whether itwould take steps for recovery of the amount from theinsured….”12.The learned Advocate for the Insurance Company submits thatthe Supreme Court in the case of National Insurance Co. Ltd.Versus Challa Upendra Rao and Others, reported in (2004) 8Supreme Court Cases 517 and Pramod Kumar Agrawal andanother Versus Mushtari begum and Others, reported in 2004ACJ 1903, has prescribed a mode for release of compensation amountto the claimant, whereby directions are given to take security of the