The petitioner in M.V.C. No. 2805 of 1998 sustained personal injuries in the motor vehicle accident. The Tribunal awarded compensation of Rs. 72,000/- with interest at 8% p.a., from the date of petition till payment. The Tribunal directed the owner of the motor-cycle to pay the compensation. The claim against the insurer is dismissed on the ground that the driver had no driving licence but the driver holding only the learner's licence. The owner and rider of the motor-cycle are in appeal seeking avoidance of the liability and fastening the liability on the insurer.

2. The facts disclose that the owner and rider of the vehicle have participated in the proceedings before the Tribunal. It is not established by the rider and a owner that the learner's licence conditions were duly complied while getting the vehicle. There is no evidence to show that the instructor was accompanying the rider. Therefore, the owner and driver cannot avoid liability. The rule of "pay and recover" can only be invoked by the victim-petitioner. The insured cannot invoke the rule since ultimately there is a liability on him to reimburse the insured. Therefore, the decision of the Supreme Court in National Insurance Company Limited v. Swaran Singh and Others has no application to the facts of the case.

3. Accordingly, the appeal is dismissed. The amount in deposit to be transferred to the Tribunal for payment.