1. This common judgment disposes of M.A.C.M.A. No.3250 of 2011 as well as M.A.C.M.A(SR).No.31192 of 2012. M.A.C.M.A.No.3250 of 2011 is laid by the 2nd respondent in M.V.O.P.No.771 of 2008 on the file of the Chairman, Motor Accident Claims Tribunal cum III Additional District Judge (Fast Track Court), Rajampet, Kadapa District (the Tribunal, for short). The claimants 2 to 4 therein preferred M.A.C.M.A(SR). No.31192 of 2012. The 1st claimant died during the pendency of M.V.O.P.No.771 of 2008 itself. Compensation at Rs.3,35,000/-together with interest at 6% per annum from the date of the petition till deposit was granted by the Tribunal as payable to the claimants 2 to 4. Contending that the calculation in awarding compensation was incorrect, the claimants filed M.A.C.M.A(SR).No.31192 of 2012. Claiming that the 2nd respondent-insurer is not liable since the driver of the offending tractor violated the terms and conditions of the policy, the insurer preferred M.A.C.M.A.No.3250 of 2011.

2. The 1st claimant was the husband of the deceased Ramalakshumma. The claimants 2 to 4 are the children of the 1st claimant and the deceased. The deceased was statedly an agricultural labourer. She was allegedly earning Rs.4,000/- per month. On 15-4-2008, while the deceased was returning home along with the 3rd claimant, at about 12.00 noon, the tractor bearing registration No. AP 04FTR 8107 approached the deceased from behind. The claimants contend that the driver of the tractor drove the same in a rash and negligent manner and hit the deceased. When the tractor hit the deceased, she sustained serious injuries and died on the spot. Contending that the accident was due to the rash and negligent driving of the driver of the offending tractor and that the owner of the tractor and the insurer of the tractor therefore were jointly and severally liable to satisfy the claim, M.V.O.P.No.771 of 2008 was laid under Section 166 of the Motor Vehicles Act, 1988 (the Act, for short), seeking compensation at Rs.4,00,000/-.

3. The claimants examined the 1st claimant as P.W.1. He, however, is now no more. The 3rd claimant, who was an eyewitness for the accident proper, was examined as P.W.2. The claimants also marked Exs.A-1 to A-5. The insurer, on the other hand, examined R.Ws.1 and 2 and marked Exs.B-1 to B-3. The Tribunal held that the accident was due to the rash and negligent driving of the driver of the offending tractor and held that the owner and the insurer of the tractor are jointly and severally liable to satisfy the claim. The Tribunal worked out compensation at Rs.3,35,000/- and accordingly awarded compensation.

4. Smt. A.Jayanthi, learned Standing Counsel for the insurer, contended that the driver of the tractor is not liable to answer the claim. The learned counsel for the claimants submitted that even if there was any violation of the terms and conditions of the policy such as that the driver did not hold valid and effective driving licence, nevertheless the insurer would be answerable at the outset and may recover the amount paid by it from the owner of the tractor subsequently. She has placed reliance upon the famous National Insurance Co. Ltd. v. Swaran Singh ((2004) 3 SCC 297)in support of her contention. The Supreme Court directed the insurer to pay and then recover the amount paid from the owner of the vehicle in that case in the event the insurer was not otherwise liable. However, the Supreme Court clarified that the order was passed under Article 142 of the Constitution of India and that the order of ‘pay and recover’ should not be treated as a precedent. But, in a recent decision in Jayaprakash Agarwal v. Mohd. Kaleemulla (2012 (3) ALT 494), a learned single Judge of this Court exhaustively examined the march of law regarding the pay and recovery procedure and directed that the insurer shall first pay the amount to the claimants and initiate separate proceedings against the owner of the vehicle for recovery of the said amount.

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