S.B. Shukre, J.

This is an appeal preferred against the judgment and order dated 4th April, 2005 rendered by the Member, Motor Accident Claims Tribunal, Nagpur in Claim Petition No.792/1998.

2. The claim petition was filed under section 166 of the Motor Vehicles Act, 1988 claiming compensation for the untimely death of deceased Janabai, who was the wife of the claimant i.e. the respondent No.1 in an accident which occurred while deceased Janabai was travelling in a truck bearing registration No.MH31M8185 on a road between village Bina and village Khaperkheda. The accident occurred on 2.5.1998 and according to the claimant, it was due to rash and negligent driving of the truck. The claimant also contended that his deceased wife was travelling in the said truck along with bagful of vegetables, as owner thereof and, therefore, the appellant-insurer of the truck was also liable to pay the compensation. The Tribunal, however, on merits of the case found that the deceased Janabai was an unauthorized passenger and that there was no evidence showing that she travelled by the said truck alongwith goods as owner thereof and, therefore, exonerated the appellant of its liability under the insurance policy by the award impugned in the instant petition. However, the Tribunal directed that the appellant shall satisfy the award and may recover the amount of award from the owner of the truck i.e. respondent No.2. The total compensation awarded was of Rs. 2,20,000/- together with interest at the rate of 9% p.a. from the date of petition till realization. It is the direction of pay and recover which is challenged in the present appeal.

3. I have heard Shri D.N. Kukday, learned counsel for the petitioner. None for the respondent though duly served and noticed on final disposal. I have gone through the record of the case including the impugned judgment and order. The only point which arises for my determination is as under :

Whether the direction of pay and recover issued by the Tribunal to the appellant is justified by the facts and circumstances available on record ?

4. Shri D.N. Kukday, learned counsel for the appellant submits that it is the discretion of the Tribunal to issue a kind of direction which is impugned in the present appeal, but the discretion has to be exercised judiciously and not capriciously. He submits that although the learned Member of the Tribunal has found support in the direction of the Hon'ble Apex Court given in the case of National Insurance Co. Ltd., v. Baljit Kaur and others, reported in 2004 (1) ACC 259 (SC) to issue the impugned direction, the direction issued in Baljit Kaur was on the facts and circumstances of the case peculiar to that case and it was in exercise of Apex Court's jurisdiction under Article 142 read with Article 136 of the Constitution of India for doing complete justice between the parties. He invites my attention to the observations of the Hon'ble Apex Court appearing in paragraphs 19 and 20 of the case Baljit Kaur (supra) to support the contention. He also relies upon the Division Bench decision of this Court in the case of Traders Pvt. Ltd., Ahmedabad and another v. Sunanda wd/o. Krishna Machivale and others, reported in 2009(1) Mh.L.J. 898.

5. A perusal of the impugned judgment and order shows that the direction regarding pay and recover has been issued by the learned Member of the Tribunal completely drawing strength from the case of Baljit Kaur (supra). The decision of Baljit Kaur together with other similar decisions, such as Oriental Insurance Co. Ltd. v. Nanjappan and others, reported in (2004) 13 SCC 224, National Insurance Company Limited v. Kusum Rai and others, reported in (2006) 4 SCC 250, Oriental Insurance Co. Ltd. v. Brij Mohan and others, reported in (2007) 7 SCC 56, Oriental Insurance Co. Ltd. v. Syed Ibrahim and others, reported in 2007 ACJ 2816 was considered by the Division Bench of this Court in Traders Pvt. Ltd. (supra). The Division Bench opined that the directions fac