JUDGMENT :

M.G. Giratkar, J.

Deceased appellant has challenged the judgment of Motor Accident Claims Tribunal (MACT), Achalpur in Motor Accident Claim Petition No. 21/2008 by which the claim petition is allowed against the driver and owner of the offending vehicle directing them to pay compensation of Rs. 17,36,217/- along with interest at the rate of 6% per annum from the date of petition till the realization of the amount. Claim petition against the respondent no. 3 i.e. insurance company came to be dismissed.

2. The appellant challenged the dismissal of claim petition against the insurance company. Fact in the claim petition is not in dispute. There is no dispute about the accident. There is no dispute that at the relevant time, insurance company i.e. the respondent no. 3 insured the said offending vehicle owned by the respondent no. 2.

3. Heard learned Advocate Shri Agrawal for the appellant. He has pointed out paragraph no. 19 of the judgment of MACT. By the side of claimants, reliance was placed on the decision of Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and ors., (2004) ACJ 1. MACT not relied on the said judgment of National Insurance Co. Ltd. Vs. Swaran Singh and ors. but relied on the judgment of National Insurance Co. Ltd. Vs. Vidyadhar Mahariwala and ors., (2008) AIRSCW 7145 and held that insurance company is not liable to pay the compensation.

4. The material fact in dispute is that the driver of offending vehicle was not having licence at the time of accident. The judgment in the case of National Insurance Co. Ltd. Vs. Swaran Singh and ors. (supra) is relied by all the Courts till date. Section 149 of the Motor Vehicle Act is clear. It is the statutory duty of insurance company to pay the amount of compensation to the dependents of deceased in respect of accident by the vehicle which is insured by the insurance company.

5. Learned counsel Shri Agrawal has pointed out decision of the Apex Court in the case of Shamanna and anr. Vs. The Divisional Manager, The Oriental Insurance Co. Ltd. and ors., (2018) 9 Scale 456. In the cited decision, it is held by the Lordships of Apex Court that since the driver of the jeep had not valid driving licence at the time of the accident and since there was violation of the terms of insurance policy, the Tribunal directed the insurance company to pay the compensation to the claimants and granted liberty to the insurance company to recover the same from the owner of the offending vehicle. In appeal, High Court enhanced the compensation awarded by the Tribunal while setting aside the direction to the insurance company to 'pay and recover'. High Court reversed the award passed by the Tribunal. It is held that :

"In the case of third party risks, as per the decision in National Insurance Company Ltd. v. Swaran Singh and others, (2004) 3 SCC 297, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. Doctrine of 'pay and recover' was considered by the Supreme Court in Swaran Singh case wherein the Supreme Court examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving licence of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Elaborately considering the insurer's contractual liability as well as statutory liability vis-a-vis the claims of third parties, the Supreme Court issued detailed guidelines as to how and in what circumstances, 'pay and recover' can be ordered."

6. In another case pointed out by learned Advocate Shri Agrawal i.e. Kusum Lata and others Vs. Satbir and others, (2011) ACJ 926, Hon'ble Apex Court has held that "the dispute about licence of driver of the offending vehicle : the Tribunal directed insurance company to pay compensation am