1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 944 of 2025 1 - Bajaj Alliance General Insurance Company Limited Through The Branch Manager, Branch Office 3rd Floor, Near Gurukripa Tower, Vyapar Vihar Road, Bilaspur (C.G.) (Insurer Of Motor Cycle No. Cg-10-Ay-7925) ... Appellant versus 1 - Manoj Kumar Madhukar S/o Late Geeta Prasad Madhukar Aged About 50 Years R/o. Village- Singhri, Nahar Para, Laxmi Chowk, P.S. Ratanpur, Distt.- Bilaspur (C.G.) 2 - Punit Ram Indua S/o Late Ram Das Indua R/o Bharvidih, P.S. Ratanpur, Distt.- Bilaspur, (C.G.) (Owner And Driver Of Motorcycle Bearing No. Cg 10 Ay 7925) ... Respondent(s) For Appellant/Insurance Company : Mr. Sangeet Kumar Kushwaha, Adv. For respondent No.2 : Mr. Nitansh Kumar Jaiswal, Adv. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 15.10 .2025 1. The appellant/Insurance Company has challenged the award passed by the learned First Additional Motor Accident Claims Tribunal, Bilaspur, District Bilaspur (C.G.) in Claim Case No.1110/2023 dated 22.01.2025, whereby, the learned Tribunal has granted compensation to the tune of Rs.2,25,664/- with interest @ 9% per annum on account of injuries sustained by the claimant/respondent No.1. 2. Learned counsel appearing for the appellant/Insurance Company would argue that on 02.06.2023, the injured Vikas Madhukar and claimant Manoj Kumar Madhukar were going to their home on motorcycle bearing registration No.C.G.10/EL/4839. He would contend that the driver of the offending vehicle/motorcycle bearing registration No.C.G.10/AY/7925, by 2 driving it rashly and negligently dashed into the motorcycle of the claimant, consequently, they sustained multiple injuries including permanent disability. Mr. Kushwaha would submit that the drivers of both motorbikes were not having effective and valid driving licence at the time of accident and the learned Tribunal has not considered this issue. He would further submit that the learned Tribunal fastened liability with the driver and owner of the offending vehicle but applied principle of pay and recover which is contrary to the provisions of Section 3/181 of the Motor Vehicles Act, 1988. He would pray to set aside the award passed by the learned Tribunal. 3. On the other hand, learned counsel appearing for respondent No.2 would oppose the submission made by Mr. Jaiswal. He would submit that the learned Tribunal has passed just and proper award. He would contend that the drivers of both motorbikes were not having valid driving licence, therefore, the learned Tribunal applying the law rendered by the Hon’ble Supreme Court In the matter of Shamanna and another v. Divisional Manager Oriental Insurance Co. Ltd. and others, reported in (2018) 9 SCC 650 applied principle of pay and recover. 4. I have heard learned counsel for the parties and perused the records with utmost circumspection. 5. A perusal of the record and award passed by the learned Tribunal would show that the offending motorcycle bearing registration No.C.G.10/EL/4839 was being driven in breach of policy as driver was not having valid and effective driving licence. The learned Tribunal while deciding issue No.3 held that the driver of the offending vehicle by driving it rashly and negligently, caused an accident and he was also not having effective driving licence. The driver and owner of the offending vehicle could not adduce evidence to establish that on the date of accident, he was having 3 valid driving licence, thus, in my opinion, the learned Tribunal has rightly decided this issue. 6. In the matter of Shamanna (supra), the Hon’ble Supreme Court while dealing with the similar issue in paras 6, 11, 13 and 14 held as under :- “6. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third-party risks. The Tribunal is required to consider “as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver … does not fulfil the requirements of law or not will have to be determined in each case”. 11. In the present case, to deny the benefit of "pay and recover", what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathnenis which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni cases, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that: (SCC p. 786, para 5) "5. If the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle." 13. Since the reference to the larger Bench in Parvathneni cases has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the 4 compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored. 14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan wherein this Court held that: (SCC p. 226, para 8) "8. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject- matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer." 7. Taking into consideration the facts of the present case and law laid down by the Hon’ble Supreme Court in the matter of Shamanna (supra), in my opinion, the learned Tribunal has rightly fastened liability with the driver and owner of the offending vehicle and also justified in applying the principle of pay and recover. Accordingly, this appeal fails and is hereby dismissed. Sd/-Sd/- (Rakesh Mohan Pandey) Judge Rekha