The principle under Section 149(4) of the Motor Vehicles Act allows the insurer to recover the amount paid under the contract of insurance from the insured in specified contingencies.

Heard Mr. R. Subramani, learned for the appellant. The insurance company has filed this appeal challenging the award of the claim Tribunal whereunder the Tribunal has awarded a sum of Rs.1,13,000/- as compensation to the claimant/respondent No.1 on account of the injuries sustained by the claimant/respondent No.1 in an accident caused by the vehicle belonging to the 2nd respondent. Learned counsel for the appellant primarily raised regarding the liability of the insurance company though he had also haltingly raised the question relating to the quantum. However, when it is found that the claimant had sustained two fractures one in the mandible and another in the leg and was hospitalized for 40 days, counsel for the appellant-fairly stated that keeping in view the principle that normally the appellate Court does not interfere with the award unless the award is excessively high, there may not be any scope for interference in such matter, and therefore, he would concentrate only on the question of liability of the insurance company.

2. It is contended, by him that the offending vehicle was being driven by the son of the owner and such driver didn’t have any driving licence, as has been found by the claims Tribunal, the Tribunal however, invoked the principle under Section 149(4) of the Motor Vehicles Act and has directed the appellant to pay the amount to the claimant and, thereafter to recover the same from the owner/respondent.

3. Learned counsel has placed reliance upon the decision of the Supreme Court in National insurance Co. Ltd. v. Vidhyadhar Mahariwala and Others (2008) 8 MLJ 206: (2008) ACJ 2860, in support of his contention that the policy of pay and recover as enshrined in Section 149 of the Motor Vehicles Act may not be applicable in all cases. In the aforesaid decision of the Supreme Court, the accident had taken place on 16. 2004 and the driving licence of the driver was valid for a period between 212. 2002 to 212. 2003 and it was again renewed from 15. 2005. The High Court, keeping in view the fact that previously there was valid driving licence and such licence was also renewed after the accident had taken place, had fastened the liability on the insurance company. In an appeal against such decision of the High Court, it was observed that during the interagnum period, there being no driving licence, the insurance company was not liable. The question relating to applicability of Section 149

(4) was never considered in the aforesaid decision by the Supreme Court nor it had been applied by the High Court in these circumstances, I don’t think it can be said that the Supreme Court has laid down an inexorable principle when there is no valid driving licence, the principle of Section 149(4) cannot be applied. On the other hand, there are several decisions of the Supreme Court which categorically recognises the underlaying facility in Section 149(4) by giving direction regarding pay and recovery when there was absence of valid driving licence. In the decision in National Insurance Co. Ltd. v. Swaran Singh and Others AIR 2004 SC 1531: (2004) 3 SCC 297: (2004) ACJPg 1, the Supreme Court observed as follows:

“(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defences in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable are the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land