Judgment ( 1. ) THIS appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the award dated 24-7-97 passed by III rd Additional Motor Accident claims Tribunal, Satna in Claim Case No. 112/97. ( 2. ) CLAIMANTs case, in brief, is that on 31 -1 -90 deceased Roshanlal and his wife were going to Maihar Market for selling two bags of vegetables in truck no. M. P. A. 8217 by making payment of Rs. 50/ -. The aforesaid truck was driven by respondent No. 3 who is the real brother of Roshanlal. When truck reached near the Tamas River, Bus No. CPU 7587 driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 5 dashed against the standing truck. Roshanlal was sitting in the standing truck sustained injuries and taken to the hospital where in the evening he died. ( 3. ) THE Tribunal framed as many as four issues and came to hold that the deceased was travelling in the truck as a gratuitous passenger hence, the liability cannot be fastened on the respondent No. 5/insurance Company and the accident took place due to 50% - 50% contributory negligence of both the drivers of bus and truck. The Tribunal has awarded Rs. 1,29,400/- with simple interest from the date of filing of application before the Tribunal to the claimants for the death of deceased Roshanlal and directed that respondent nos. 1 and 2 will jointly and severally make good 50% and rest 50% will be paid by respondent Nos. 3 and 4 jointly and severally with a direction that owner of the truck respondent No. 4 should be return the initial amount of Rs. 12,500/- (awarded for no fault liability) to the respondent No. 5 Insurance Company. ( 4. ) LEARNED Counsel for the appellant has raised the following contentions before us:- (I) The compensation granted by Tribunal Rs. 1,29,400/- is neither just and proper and deserves to be enhanced ? (II) Tribunal has erroneously exonerated the Insurance Company of the truck on the ground that deceased was travelling as a gratuitous passenger in truck ? (III) Whether the Tribunal has rightly held that respondent Nos. 1 and 2 are jointly and severally liable for 50 % of award and rest 50% will be paid by respondent Nos. 3 and 4 jointly and severally ? (III) Whether the Tribunal has rightly held that respondent Nos. 1 and 2 are jointly and severally liable for 50 % of award and rest 50% will be paid by respondent Nos. 3 and 4 jointly and severally ? (IV) Whether truck owner respondent No. 4 should return the initial amount of Rs. 12,500/- awarded on no fault liability to the respondent No. 5 Insurance Company ? ( 5. ) CLAIMANT Sunita Bai has admitted in Para 8 of her cross-examination that the truck driver/respondent No. 3 is her real brother-in-law and on that day along with her husband after making payment of Rs. 50/- to her brother-in-law she was going in the aforesaid truck with two bags of vegetables to Maihar. She has further admitted that they had a plan to visit religious temple of Maihar. In these circumstances, the Tribunal has rightly disbelieved the a. W. 2 Rambadal who has stated that the deceased along with his wife was not travelling as gratuitous passengers. Respondent No. 3 truck driver has not entered the witness box as a witness. In these circumstances, Tribunal has rightly held that deceased along with his wife was travelling in Truck No. MPA 8217 as gratuitous passengers. ( 6. ) IT is submitted by learned Counsel for the claimants that deceased roshanlal was aged about 28 years and he was a vegetable seller. Tribunal has assessed his yearly income at Rs. 10,800/- per annum and dependency at rs. 7200/ -. Multiplier of 17 has been applied and the total compensation of rs. 1,22,400 with 12 % interest has been awarded to the claimant by the tribunal. As per the Second Schedule of Section 163-A of Motor Vehicles Act the notional income of any person is Rs. 15,000/- per annum. Deceased was maintaining a family therefore, we think he must be earning about Rs. 21,000/-per year. Therefore, the dependency would come to Rs. 14,000/- per annum. Deceased Roshanlal was aged about 28 years, as such multiplier of 17 would apply. Thus, the amount of compensation on this score would come to Rs. 14,000 17 = 2,38,000/ -. To which we add a further sum of Rs. 10,000/-on three counts, i. e. , loss of estate, loss of consortium and funeral expenses. Therefore, in toto, the claimants would be entitled to get Rs. 2,48,000/-(Rupees Two lacs forty eight thousand only ). Thus, the amount of compensation on this score would come to Rs. 14,000 17 = 2,38,000/ -. To which we add a further sum of Rs. 10,000/-on three counts, i. e. , loss of estate, loss of consortium and funeral expenses. Therefore, in toto, the claimants would be entitled to get Rs. 2,48,000/-(Rupees Two lacs forty eight thousand only ). The differential enhanced sum shall carry interest at the rate of 6% per annum from the presentation of this application before the tribunal till realisation. ( 7. ) THE Tribunal has held that above accident took place due to 50% contributory negligence of bus driver/respondent No. 2 and 50% contributory negligence of truck driver/respondent No. 4. In this respect, Tribunal has properly assessed the evidence of claimant No. 1 Sunita Bai who was travelling in the truck and respondent No. 1 Murlidhar Mishra who was driving the bus. From their statements, it is clear that on Allahabad-Maihar main road this head on collusion has taken place due to contributory negligence of both the drivers equally respondent Nos. 1 and 4. Accordingly, the Tribunal has rightly decided that respondent Nos. 1 and 2 are liable to pay the 50% compensation and rest 50% compensation amount will be paid by the respondent Nos. 3 and 4 with interest at the rate of 12%. ( 8. ) IT is undisputed that truck No. MPA/8217 was insured with respondent No. 5 at the time of accident. The Tribunal has held that because deceased Roshanlal was travelling as a gratuitous passenger in the truck, therefore, respondent No. 5 is not liable to satisfy the award. The question that emerges for consideration is whether the Tribunal is justified in directing refund of the amount to the Insurance Company by the respondent No. 2, owner of the truck. ( 9. ) IN this context we may refer with profit to the decision rendered in the case of National Insurance Co. Ltd. Vs. Jethu Ram and others, 1998 ACJ 921, wherein the Apex Court has held as under:- "on a close scrutiny of the aforesaid provisions, we do not find anything contained therein which would suggest that the liability which accrues under the provisions of Section 92-A has to be borne by the insurer even if it is ultimately held that under the policy of insurance of the insurer is not liable to pay the compensation in question. In our considered opinion the Tribunal and the High court have misread the aforesaid provisions of the Motor Vehicles act. In the aforesaid premises the impugned judgment of the tribunal and High Court cannot be sustained so far as it relates to the liability of the insurer arising under Sections 92-A and 92-B of the Act. These appeals are allowed. The insurer having paid the amount under the aforesaid provisions is entitled to get it reimbursed from the owner. " ( 10. ) IN Jaganoo Vs. Chhote, 1996 ACJ 958 , this Court has expressed the opinion as under:-"when the Tribunal has found that the Insurance Company is not liable to compensate the insured, the amount deposited by the company towards no fault liability has to be refunded by virtue of provisions under Section 149 (4) of the Motor Vehicles Act, 1988. " ( 11. ) SIMILAR view has been reiterated in New Delhi Assurance Co. Ltd. Vs. Smt. Prabha Jain, 1998 (1) MPLJ 43 . ( 12. ) IN Sukhnandan Ram Sahu Vs. Oriental Insurance Co. Ltd. and others, 1999 ACJ 750 , the Division Bench of this Court while exonerating the insurer from the liability has expressed the opinion as under:-Since we have taken the view that the Insurance Company is totally exonerated of its liability. As such, the amount of interim compensation of Rs. 7,500/- deposited by the Insurance Company is entitled to be recovered. Since the owner of the vehicle is liable for the entire compensation, as such, we allow this revision petition and direct that a sum of Rs. 7,500/- should be deposited by sukhnandan, owner of the vehicle within three months in the Court and the same may be permitted to be withdrawn by the Insurance company ( 13. ) IN United India Insurance Co. Ltd. Vs. Rukhmani and others, 1998 acj 1378, it has been held that when the Tribunal passed the final award and exempted the Insurance Company from its liability and directed that the insurance Company may recover the amount paid by it for no fault liability from the owner by filing a suit, the High Court of Rajasthan came to hold that the tribunal ought to have directed the owner to pay the amount to the Insurance company. ( 14. ( 14. ) SIMILAR view has been expressed by the Division Bench of Patna high Court in the case of Kanhai Rai and others Vs. Dharampal and others, 2002 acj 260 , in Para 20 as under:- "20. In view of my conclusion arrived at above, it is clear that the insurer cannot escape from the liability to pay the interim compensation under Section 140 of the Act provided other conditions, as enumerated above, are fulfilled. Once it is found that the Insurance Policy is in force with regard to use of a motor vehicle at a public place, the Tribunal can pass order against the insurer also. However, at the stage of considering an application under section 140 of the Act, the Court has to take prima facie view in the sense that once on the basis of materials on record it is proved that there is insurance policy in force in terms of provisions contained in Chapter XI of the Act liability of a third party risk, the tribunal may pass an order for payment of interim compensation against the insurer. At that stage, the Tribunal cannot hold a mini enquiry nor can it take into consideration the defence, which is available to the insurer, which has to be considered at the time of final determination of the said question under Section 168 of the act. If at the stage of Section 140, the insurer is allowed to take defence as provided under Section 149 (2) then that will frustrate the very object, for which the provision has been made as it cannot be disposed of expeditiously in terms of the statutory provision and the proceeding will linger and in all purposes will assume in. . character of determination of a final compensation under Section 168 of the Act. " ( 15. ) IN view of the aforesaid, the direction given by the Tribunal that the insurer is entitled to refund of Rs. 12,500/-, which was paid towards no fault liability is totally presentable. ( 16. ) THE Tribunal has completely exonerated the Insurance Company for satisfying the award. As far as non-saddling of liability on the insurer, the conclusion in that regard cannot be found fault with since the deceased was travelling as a gratuitous passenger in a goods vehicle and accordingly we concur with the view expressed by the Tribunal with this modification. ( 17. As far as non-saddling of liability on the insurer, the conclusion in that regard cannot be found fault with since the deceased was travelling as a gratuitous passenger in a goods vehicle and accordingly we concur with the view expressed by the Tribunal with this modification. ( 17. ) PRESENTLY to the facet of pay and recovery principle, in this context, we may refer with profit to the decision rendered in the case of National insurance Co. Ltd. Vs. Baljit Kaur and others, (2004) 2 SCC 1 , wherein a three-Judge Bench of the Apex Court in Paragraph 21 has held thus :- "21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of the Court in New India assurance Co. Vs. Satpal Singh, (2000) 1 SCC 237 . The said decision has been overruled only in New India Assurance Co. Ltd. Vs. Asha rani, (2003) 2 SCC 223 . We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the Executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor vehicles Act, 1988, in terms where of, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding. " ( 18. ) IN this regard, we may fruitfully refer to the law laid down in the case of Pramod Kumar Agrawal and another Vs. Mushtari Begum (Smt.) and another, (2004) 8 SCC 667 , wherein Paragraph 12, Their Lordships directed as under:- "12. Therefore, while upholding the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur case, that the insurer shall pay the quantum of compensation fixed by the tribunal, about which there was no dispute raised to the respondent claimants within three months from today. For the purpose of recovering the same from the owner, the insurer shall not be required to file a suit. I may initiate a proceeding before the executing Court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the tribunal and the issue is decided against the owner and in favour of insurer. Before release of the amount to the claimants, owner of the vehicle, i. e. , appellant, I shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises, the Executing Court shall take assistance of the Regional Transport authority concerned. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle, i. e. , appellant, I shall make payment to the insurer. In case there is any default, it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured (appellant No. 1 ). " ( 19. ) IN these circumstances, respondent No. 5/insurance Company with respondent Nos. In case there is any default, it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured (appellant No. 1 ). " ( 19. ) IN these circumstances, respondent No. 5/insurance Company with respondent Nos. 3 and 4 jointly and severelly will satisfy the 50% of the award with 6% interest. ( 20. ) IN the result- (I) Claimants are entitled for total compensation of Rs. 2,48,000/-with 6% interest from the date of filing application before the tribunal. (II) Respondent Nos. 1 and 2 shall jointly and severelly make the payment of 50% compensation amount with 6% interest to the complainant. (III) Respondent Nos. 3, 4 and 5 shall jointly and severelly make payment of 50% compensation amount with interest to claimant and if amount is paid by respondent No. 5 then respondent No. 5 may recover it from respondent Nos. 3 and 4. In the facts and circumstances of the case, there shall be no order as to costs.