Judgment : 1. This common judgment disposes of M.A.C.M.A. No.3250 of 2011 as well as M.A.C.M.A(SR).No.31192 of 2012. M.A.C.M.A.No.3250 of 2011 is laid by the 2nd respondent in M.V.O.P.No.771 of 2008 on the file of the Chairman, Motor Accident Claims Tribunal cum III Additional District Judge (Fast Track Court), Rajampet, Kadapa District (the Tribunal, for short). The claimants 2 to 4 therein preferred M.A.C.M.A(SR). No.31192 of 2012. The 1st claimant died during the pendency of M.V.O.P.No.771 of 2008 itself. Compensation at Rs.3,35,000/-together with interest at 6% per annum from the date of the petition till deposit was granted by the Tribunal as payable to the claimants 2 to 4. Contending that the calculation in awarding compensation was incorrect, the claimants filed M.A.C.M.A(SR).No.31192 of 2012. Claiming that the 2nd respondent-insurer is not liable since the driver of the offending tractor violated the terms and conditions of the policy, the insurer preferred M.A.C.M.A.No.3250 of 2011. 2. The 1st claimant was the husband of the deceased Ramalakshumma. The claimants 2 to 4 are the children of the 1st claimant and the deceased. The deceased was statedly an agricultural labourer. She was allegedly earning Rs.4,000/- per month. On 15-4-2008, while the deceased was returning home along with the 3rd claimant, at about 12.00 noon, the tractor bearing registration No. AP 04FTR 8107 approached the deceased from behind. The claimants contend that the driver of the tractor drove the same in a rash and negligent manner and hit the deceased. When the tractor hit the deceased, she sustained serious injuries and died on the spot. Contending that the accident was due to the rash and negligent driving of the driver of the offending tractor and that the owner of the tractor and the insurer of the tractor therefore were jointly and severally liable to satisfy the claim, M.V.O.P.No.771 of 2008 was laid under Section 166 of the Motor Vehicles Act, 1988 (the Act, for short), seeking compensation at Rs.4,00,000/-. 3. The claimants examined the 1st claimant as P.W.1. He, however, is now no more. The 3rd claimant, who was an eyewitness for the accident proper, was examined as P.W.2. The claimants also marked Exs.A-1 to A-5. The insurer, on the other hand, examined R.Ws.1 and 2 and marked Exs.B-1 to B-3. 3. The claimants examined the 1st claimant as P.W.1. He, however, is now no more. The 3rd claimant, who was an eyewitness for the accident proper, was examined as P.W.2. The claimants also marked Exs.A-1 to A-5. The insurer, on the other hand, examined R.Ws.1 and 2 and marked Exs.B-1 to B-3. The Tribunal held that the accident was due to the rash and negligent driving of the driver of the offending tractor and held that the owner and the insurer of the tractor are jointly and severally liable to satisfy the claim. The Tribunal worked out compensation at Rs.3,35,000/- and accordingly awarded compensation. 4. Smt. A.Jayanthi, learned Standing Counsel for the insurer, contended that the driver of the tractor is not liable to answer the claim. The learned counsel for the claimants submitted that even if there was any violation of the terms and conditions of the policy such as that the driver did not hold valid and effective driving licence, nevertheless the insurer would be answerable at the outset and may recover the amount paid by it from the owner of the tractor subsequently. She has placed reliance upon the famous National Insurance Co. Ltd. v. Swaran Singh ( (2004) 3 SCC 297 )in support of her contention. The Supreme Court directed the insurer to pay and then recover the amount paid from the owner of the vehicle in that case in the event the insurer was not otherwise liable. However, the Supreme Court clarified that the order was passed under Article 142 of the Constitution of India and that the order of ‘pay and recover’ should not be treated as a precedent. But, in a recent decision in Jayaprakash Agarwal v. Mohd. Kaleemulla ( 2012 (3) ALT 494 ), a learned single Judge of this Court exhaustively examined the march of law regarding the pay and recovery procedure and directed that the insurer shall first pay the amount to the claimants and initiate separate proceedings against the owner of the vehicle for recovery of the said amount. 5. In NATIONAL INSURANCE CO. LTD. v. KUSUM RAI ( (2006) 4 SCC 250 ), the policy of ‘pay and recover’ was adopted. The Supreme Court held that the principle was adopted in exercise of the jurisdiction of the Supreme Court under Article 136 of the Constitution of India. 5. In NATIONAL INSURANCE CO. LTD. v. KUSUM RAI ( (2006) 4 SCC 250 ), the policy of ‘pay and recover’ was adopted. The Supreme Court held that the principle was adopted in exercise of the jurisdiction of the Supreme Court under Article 136 of the Constitution of India. As rightly submitted by Smt. A. Jayanthi, learned Standing Counsel for the insurer, the High Court does not possess the powers under Article 136 or Article 142 of the Constitution of India, both of which confer special powers upon the Supreme Court. In ORIENTAL INSURANCE CO. LTD. v. ANGAD KOL ( (2009) 11 SCC 356 ), once again the Supreme Court directed pay and recover by exercise of the jurisdiction under Article 142 of the Constitution of India. 6. On the basis of these decisions, it is contended by the learned Standing Counsel for the insurer that the pay and recover policy adopted by Swaran Singh (1 supra) cannot be exercised by the High Court. However, as held by the learned single Judge of this Court in Jayaprakash Agarwal (2 supra), I consider that the policy of pay and recover has come to stay in the motor vehicle accident claims jurisprudence. In the event the insurer is not liable on account of the violation of the terms and conditions of the policy, it would become the obligation on the part of the insurer to satisfy the claimants at the outset and recover the same from the insured-owner of the vehicle. 7. Whether there was a violation of the terms and conditions of the policy in this case is a concrete question, which now deserves to be examined. In NEW INDIA ASSURANCE CO. LTD. v. PRABHU LAL (2008) 1 SCC 696 ), the driver held valid and effective driving licence authorising the driver to drive a transport vehicle. When the owner claimed damages for the vehicle, the Supreme Court held that the owner of the vehicle was not entitled to claim compensation from the insurer on the ground that the driver did not hold valid and effective driving licence. 8. In National Insurance Co., Ltd., Eluru, West Godavari v. Dupati Singaiah ( 2009 (3) ALD 616 ), persons having fake driving licence were held to be deemed to be persons not possessing valid and effective driving licence in view of Section 3 of the Motor Vehicles Act, 1988. 9. 8. In National Insurance Co., Ltd., Eluru, West Godavari v. Dupati Singaiah ( 2009 (3) ALD 616 ), persons having fake driving licence were held to be deemed to be persons not possessing valid and effective driving licence in view of Section 3 of the Motor Vehicles Act, 1988. 9. The learned Standing Counsel for the insurer contended on the strength of these decisions that the driver of the offending tractor did not hold valid and effective driving licence at the time of the accident. Exs.B-2 and B-3 are driving licence extracts. Both of them show that the driver of the offending vehicle held valid and effective driving licence to drive non-transport variety of tractors. It is contended by the learned Standing Counsel for the insurer that the driver shall be deemed to have no valid and effective driving licence where the tractor per se is a transport vehicle. 10. The Tribunal considered that the licence to drive a tractor automatically implies licence to drive a transport vehicle. Admittedly, there was no endorsement on Exs.B-2 and B-3 permitting the driver of the tractor to drive transport vehicles. Admittedly, there is no bar to the driver of the offending vehicle to drive transport vehicles. The Tribunal considered that the driving licence to drive non-transport variety of tractors is no different from the driving licence to drive transport variety of tractors. The main point is that the driver possessed driving licence to drive tractor, albeit non-transport variety of tractors. It is not as though the driver did not have any driving licence to drive tractors. 11. The Tribunal considered that the driver held valid and effective driving licence as he possessed driving licence to drive tractors. I see no reason to differ from the view of the Tribunal. There would appear to be no difference in the skill to drive a transport and non-transport variety of tractors. Added to it, there cannot be any non-transport tractor. Perhaps, it should even be read that Exs.B-2 and B-3 was a licence to drive transport variety of vehicles. I see no reason to differ from the view of the Tribunal. There would appear to be no difference in the skill to drive a transport and non-transport variety of tractors. Added to it, there cannot be any non-transport tractor. Perhaps, it should even be read that Exs.B-2 and B-3 was a licence to drive transport variety of vehicles. At any rate, when the driver of the offending tractor did not hold valid and effective driving licence, I consider that the absence of endorsement on the licence permitting the driver of the vehicle to drive transport variety of vehicles is not a fundamental breach but is a technical shortfall on the part of the driver of the offending tractor. In such circumstances, the driver of the tractor should be considered to be holding valid and effective driving licence. 12. In BHUWAN SINGH v. ORIENTAL INSURANCE CO. LTD. ( (2009) 5 SCC 136 ), the driver possessed Learner’s Licence. Even the Learner’s Licence also expired before the date of the accident. The Supreme Court held that the driver did not hold valid and effective driving licence and that the insurer was not liable. However, the driver in the present case held valid and effective driving licence as he was permitted to drive non-transport variety of tractors. I therefore consider that this is a case where the driver held valid and effective driving licence. The question of the insurer evading liability on the ground of absence of driving licence therefore is not sustainable. The insurer consequently is jointly and severally liable with the owner of the tractor for the damages that the deceased and her dependants suffered. I therefore reject the contention of the learned Standing Counsel for the insurer that the driver of the offending vehicle did not hold valid and effective driving licence and that the insurer was not liable to satisfy the claim. 13. Regarding the quantum of compensation payable to the claimants, the claimants contended that the calculation arrived at by the Tribunal was not correct and deserves to be rectified. The Tribunal took the stand of the claimants into consideration regarding the calling of the deceased and considered that the deceased was an agricultural labourer. It determined the income of the deceased at Rs.150/- per day but confined the same to 22 working days and arrived at the monthly income at Rs.3,300/-. The Tribunal took the stand of the claimants into consideration regarding the calling of the deceased and considered that the deceased was an agricultural labourer. It determined the income of the deceased at Rs.150/- per day but confined the same to 22 working days and arrived at the monthly income at Rs.3,300/-. The learned counsel for the claimants contended that the income of the deceased should have been computed at Rs.150/- per day for every day in a month and should have determined the notional income of the deceased at Rs.4,500/- per month and at Rs.54,000/- per annum. The Tribunal determined the income of the deceased at Rs.39,600/- per annum calculating the same at Rs.3,300/- per month. Where the accident occurred in 2008, the calculation adopted by the Tribunal cannot be found fault with. I therefore deem it appropriate to determine the income of the deceased at Rs.39,600/- per annum calculated at Rs.3,300/- per month at Rs.150/- per day for 22 days in a month. 14. The deceased was said to be 42 years old. Ex.A-3 post-mortem report described the deceased to be 42 years old. The Tribunal applied multiplier ‘15’ correctly for a 42year old person. The learned Standing Counsel for the insurer disputes the age of the deceased. There is no concrete evidence regarding the age of the deceased barring for the post-mortem report under Ex.A-3. The 2nd claimant was described to be 32 years old. The learned Standing Counsel for the insurer contended that the deceased could not have been 42 years old if her eldest son was 32 years old and that the deceased must have been over 50 years old. On the basis of this contention, the learned Standing Counsel for the insurer submitted that the Tribunal did not apply proper multiplier. In the light of Ex.A-3 post-mortem report and in the absence of other evidence, I agree with the contention of the learned counsel for the claimants that the age of the deceased deserves to be treated as 42 years. When the deceased was 42 years old at the time of her death, multiplier 15 was the appropriate multiplier. 15. If the annual notional income of Rs.39,600/-is multiplied by 15, the amount would be Rs.5,94,000/-. The learned counsel for the claimants claimed that there were four dependants upon the deceased including her husband. The husband died before the claim was adjudicated before the Tribunal. 15. If the annual notional income of Rs.39,600/-is multiplied by 15, the amount would be Rs.5,94,000/-. The learned counsel for the claimants claimed that there were four dependants upon the deceased including her husband. The husband died before the claim was adjudicated before the Tribunal. Consequently, there were only three dependants at the time of the passing of the award. Deduction of 1/3rd towards living and personal expenses would be just and proper where there were only 3 dependants. After deducting 1/3rd of Rs.5,94,000/-, an amount of Rs.3,96,000/- deserves to be awarded towards loss of income, loss of dependency and future expectancy of life. 16. Curiously, no compensation was awarded towards loss of estate. Where the deceased was a 42-year old lady, awarding Rs.5,000/-towards loss of estate would be just and reasonable. Awarding compensation at Rs.3,000/-for each claimants 2 to 4 towards love and affection (at Rs.9,000/- in all) is fairly reasonable. Award of Rs.5,000/-towards funeral expenses as granted by the Tribunal deserves to be maintained. I also deem it appropriate to award Rs.2,000/- towards transport charges. 17. The claimants accordingly are entitled to compensation at: 18. The claimants themselves sought compensation at Rs.4,00,000/-. Where the claimants themselves considered that it was just and proper to award compensation at Rs.4,00,000/-, awarding compensation beyond the claimed amount is not justified in the present case. Consequently, the claimants shall be entitled to compensation at Rs.4,00,000/- as claimed by them. 19. However, it is the case of the learned Standing Counsel for the insurer that there was no loss of dependency and that the claimants are not entitled to any compensation towards loss of dependency and future expectancy of life. The 1st claimant, who is now no more, was the husband of the deceased. The claimants 2 and 4 are the major sons of the deceased and the 1st claimant. They are shown to be agricultural labourers. The 3rd claimant is a major daughter, who was already given in marriage. 20. It is the case of the learned Standing Counsel for the insurer that as the claimants 2 to 4 failed to show that they are the dependants upon the deceased, the claimants 2 to 4 shall not be entitled to compensation under the head of loss of income, loss of dependency and future expectancy of life. The record does not show that the claimants are dependents upon the deceased. The record does not show that the claimants are dependents upon the deceased. More so, the claimants 2 and 4 are described as labourers whereas the 3rd claimant is a married lady. Unless there is fairly clinching evidence, they cannot be considered to be dependent upon their deceased mother. As there is no satisfactory evidence regarding their dependency, I agree with the contention of the learned Standing Counsel for the insurer that the claimants 2 to 4 are not dependent upon the deceased. Consequently, they are not entitled to compensation towards loss of income, loss of dependency and future expectancy of life at Rs.3,96,000/-. They are entitled to the balance amounts at Rs.21,000/- only. The Tribunal awarded interest at 6% per annum from the date of the petition till deposit. Where the accident occurred in 2008, it would be just and reasonable to award interest at 7.5% per annum. 21. Accordingly, both the appeals are allowed in part without costs. The claimants are found to be entitled to compensation at Rs.4,00,000/-(Rupees four lakhs only) as claimed by them. However, as there is no loss of dependency, the claimants are awarded compensation at Rs.21,000/-(Rupees twenty one thousand only) together with interest at 7.5% per annum from the date of the petition till deposit. The claimants 2 to 4 are entitled to equal amounts out of the awarded amount together with interest over their respect share of awarded amount. The owner of the offending tractor and the insurer are jointly and severally liable to satisfy the claim. They shall deposit the awarded amount within one month from today. In view of the quantum awarded, after deposit, the claimants are entitled to withdraw the same.