JUDGMENT :

Ilesh J. Vora, J.

1. This appeal is filed under section 173 of the MOTOR VEHICLES ACT , 1988 by the Oriental Insurance Company Limited, assailing the judgement and award dated 25.11.2011, passed in MACP No.427 of 2010, wherein the MACT (Aux.), Gondal at Upleta, District: Rajkot by allowing the claim petition filed under section 163A of the Act, fastened the liability of the Insurance Company and directed the Company to pay the amount of compensation and recover it from the owner of the vehicle involved.

2. Facts and circumstances giving rise to file this petition are that deceased minor aged about 8 years was hit by the rickshaw GJ-3V-6089 when he was on his foot going towards the market. The deceased succumbed to his injuries. The claimants respondents being legal heirs and representatives filed a claim case under section 163 of the Act. After adducing the evidence and hearing the parties, the Tribunal vide its judgement and award dated 25.11.2011 partly allowed the application and directed the Insurance Company to indemnify the amount of the award with interest at the rate of 9%. Before the Tribunal, the Insurance Company contested the claim raising the dispute about statutory liability, stating inter alia that the vehicle was driven by the driver without valid licence. The Tribunal, considering the defence raised by the Insurance Company, directed the Insurance Company to pay the amount of compensation and granted liberty to recover it from the owner.

3. Learned counsel Ms.Ami N.Bhatt appearing for and on behalf of the appellant-Insurance Company, has submitted that the Tribunal failed in error, directing the Insurance Company to pay the amount of compensation as the driver of the vehicle was not holding a valid licence to drive a transport vehicle and, therefore, under section 149(2) of the Act, the Insurance Company cannot be held liable, as there is breach of the terms and conditions of the insurance policy. She further submitted that the direction for pay and recover is only the province of the Supreme Court of India under Article 142 of the Constitution of India and, therefore, the order impugned is bad in law.

4. On the other hand, learned counsel Mr.Nisarg Desai, appearing for the original claimants submitted that the Insurance Company failed to discharge their burden to prove that the driver was not having valid licence to drive the vehicle. He submitted that the larger Bench of the Apex Court in the judgment of Mukund Dewangn vs. Oriental Insurance Company Limited reported in 2017 (14) SCC 663, has clarified on the issue, when driver holding a licence to drive LMV vehicle, he is competent to drive a transport vehicle of that category without specific endorsement to drive the transport vehicle.

5. In the aforesaid contention, learned counsel appearing for the respondents claimants submitted that the ground raised in the appeal is not sustainable in law and, thus, therefore, the appeal deserves to be dismissed.

6. Having heard the learned counsel for the respective parties, the issue for determination arise is whether Tribunal was justified in directing the Insurance Company to pay the amount of compensation and then recover it from the owner of the vehicle in question.

7. The factum of accident and the amount of compensation awarded is not in dispute. On the day of incident, the valid policy was in existence. The driver of the vehicle was having a licence to drive LMV vehicle, but in the licence there was no any endorsement to drive the transport vehicle. This issue is settled by the larger Bench of the Supreme Court in the case of Mukund Dewangn(supra). Befo