The 'pay and recover' doctrine applies when an insurance company proves the driver lacked a valid license, requiring the insurer to satisfy the compensation award to the claimants first and subsequently recover the amount from the vehicle owner.

(Order on Board)

1. In this appeal filed under Section 173 of the Motor Vehicle Act, 1988 (for short the “MV Act”) the appellant- Insurance Company is questioning the award dated 02.08.2019, whereby learned Claims Tribunal has awarded compensation of Rs.4,94,000/- to the claimants on account of death of Suraj Kehsar, who died in road accident on 03.12.2017 and the said amount is held to be payable by the appellant- Insurance Company.

2. Learned counsel for the appellant submits that though application under Order 11 Rule 12 of CPC was filed by the Insurance Company to produce the driving license by the owner and driver of the offending vehicle, but the said application was rejected by the learned Claims Tribunal on 23.01.2019 and the driving license could not be produced. The driver of the offending vehicle proceeded ex-parte and, therefore, the fact that the driver of the offending vehicle was having valid and effective driving license on the date of accident was not established. Even, the owner of the offending vehicle neither produced the driving license nor he was examined before the Claims Tribunal. As such, the Insurance Company is not liable to pay the amount of compensation. Learned counsel also submits that at the best, doctrine of pay and recover would be applicable under the facts and circumstances of the present case.

3. On the other hand, learned counsel appearing for the owner/respondent supported the impugned award and prays for dismissal of this appeal by stating that it was the responsibility of the Insurance Company to prove that the driver of the offending vehicle was not having valid and effective driving license to ply the same on the date of accident, which they have failed to do and, therefore, the learned Claims Tribunal has rightly fastened the liability to pay the compensation upon the Insurance company.

4. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the record with utmost circumspection.

5. In the case at hand, definitely the Insurance Company took a plea that the driver of the offending vehicle was not having valid and effective driving license to ply the same on the date of accident and, in order to prove the said fact, an application under Order 11 Rule 12 of CPC was filed before the Claims Tribunal, but eventually the said application stood rejected on untenable ground. Thereafter, neither the owner produced the driving license nor he entered into the witness-box to be examined before the Claims Tribunal. As such, the learned Claims Tribunal ought not to have rejected the application filed by the Insurance Company under Order 11 Rule 12 of CPC and could have directed the owner of the offending vehicle to produce the driving license of the driver. Even, the owner could himself produce the driving license of the driver of the offending vehicle to clear the doubt of the Court as whether on the date of accident the driver of the offending vehicle was having valid and effective driving license or not. Furthermore, the evidence led by the Insurance Company in shape of statement of their Officer, namely, Jitendra Kuamr Sinha (Witness No.1) would also show that he has clearly stated that the on the date of accident the driver of the offending vehicle was not having valid and effective driving license to ply the offending vehicle and there is no cross-examination to the said fact on behalf of the owner of the offending vehicle. Therefore, the plea of the Insurance Company that the driver of the offending vehicle was not having valid and effective driving license to ply the same on the date of accident could not have been rejected by the Claims Tribunal.

6. In that view of the matter, I of the considered opinion that doctrine of pay and recover is clearly applicable in the present. As such, in light of the decision of the Supreme Court rendered in National Insurance Co. Ltd. v. Swaran Singh ¹(2004) 3 S