JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The solitary question which is raised in this appeal is whether the Tribunal could have directed the appellant insurance company to pay the compensation first to the respondent No. 1 and then to recover the same from respondent No. 2 herein. 2. The aforesaid question arises in the back drop of the fact that respondent No. 1 was crossing the road on 4.7.2010 at about 4.15 PM when he was hit by the auto-rickshaw bearing registration No. GJ-3W-1115 owned and driven by respondent No. 1 herein. At the relevant time, the offending rickshaw was insured with the appellant-insurance company. 3. The Tribunal has recorded the finding in paragraph 19 of the impugned judgment and award that respondent No. 2 herein was not holding any licence to drive the auto-rickshaw. Still however, the Tribunal directed the appellant - insurance company to pay a sum of Rs. 91,000/- with 7% interest and proportionate costs jointly and severally to respondent No. 1 herein and thereafter to recover it from respondent No. 2. The appellant-insurance company has questioned its liability to pay the compensation in this appeal. 4. I have heard Mr. Nagesh Sood, learned advocate for the appellant and Mr. P.M. Darji, learned advocate for respondent No. 1-original claimant. There is no appearance on behalf of respondent No. 2 despite service of notice of appeal. 5. The question posed in the present appeal is no longer res integra. This Court in the case of United India Insurance Co. v. Jyotibala Ghanshyam Joshi & Ors. 2012 (2) GLR 1681 held that pay and recovery order can be passed only by the Supreme Court exercising the jurisdiction under Article 142 of the Constitution of India to do the complete justice. Here, in the present case also the Tribunal has recorded a definitive finding on the basis of the charge sheet that respondent No. 2 was not holding any licence to drive the auto-rickshaw and therefore, in my opinion, the Tribunal has fallen in error in directing the appellant insurance company to pay the compensation to respondent No. 1-original claimant and then to recover it from respondent No. 2. 6. Mr. P.M. Darji, learned advocate for respondent No. 1 has tried to support the impugned judgment and award on the basis of the decision of the Supreme Court in the case of National Insurance Co. 6. Mr. P.M. Darji, learned advocate for respondent No. 1 has tried to support the impugned judgment and award on the basis of the decision of the Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh, AIR 2004 SC 1531 and an unreported decision of this Court dated 8.5.2014 rendered in First Appeal No. 3289 of 2013 between United India Insurance Co. Ltd. v. Bhikhubhai Amarsinhbhai Parmar. These decisions are not applicable to the facts of the present case. In the case of Swaran Singh (supra) the Hon'ble Supreme Court has culled out the following conclusions: "105. The summary of our findings to the various issues as raised in these petitions are as follows : (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defences raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Sections 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is 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 claim by the Tribunal will be enforceable and 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 as arrears as land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims." 7. Thus, it is very clear from the conclusion recorded by the Supreme Court that in certain special leave petitions where question of drivers not holding any licence at all did not disturb the awards and directed the insurance company to pay the compensation first and then recover the same from the insurance company. The Supreme Court has nowhere recorded a finding that even in case where the Driver of the offending vehicle did not hold any licence at all the insurance company is liable to pay the compensation to the claimant who happens to be a third party. 8. The facts before this Court in First Appeal No. 3289 of 2000 were that the Driver was holding a particular category of licence while he was driving another type of vehicle for which he was not holding any licence. This Court, therefore, relying upon the provisions under section 149(2) of the Motor Vehicles Act, 1988 has held that in such cases the insurance company cannot be absolved of its liability to pay the compensation, but liberty can be reserved in its favour to recover the same from the insured. 9. In view of the above, in the case on hand, respondent No. 2 was not holding any licence at all to drive the vehicle and therefore, in my opinion, the Tribunal ought not to have directed the appellant insurance company to pay the compensation first with a liberty to recover it from respondent No. 2 herein. 10. 9. In view of the above, in the case on hand, respondent No. 2 was not holding any licence at all to drive the vehicle and therefore, in my opinion, the Tribunal ought not to have directed the appellant insurance company to pay the compensation first with a liberty to recover it from respondent No. 2 herein. 10. For the foregoing reasons, the appeal succeeds and is hereby allowed. The judgment and award dated 7th January 2012 passed by the Motor Accident Claims Tribunal (Aux.), Morbi in MAC Petition No. 207 of 2010 is hereby modified and the appellant-insurance company is exonerated from its liability to pay the compensation to respondent No. 1-original claimant. 11. By virtue of the order dated 21.06.2012 passed in Civil Application No. 4066 of 2012, 30% of the deposited amount is disbursed in favour of respondent No. 1 - original claimant and respondent No. 1 has also enjoyed accrued interest on the fixed deposit. The appellant insurance company shall not recover this 30% of the deposited amount as well as interest which the respondent No. 1 has enjoyed. The appellant insurance company shall be at liberty to recover the same from respondent No. 2. 12. The amount lying in the FDR with the Tribunal is ordered to be refunded to the appellant insurance company. It is made clear that the respondent No. 1 shall be at liberty to recover 70% of the awarded amount of compensation from respondent No. 2 in accordance with law. Registry is directed to remit the record and proceedings to the Tribunal forthwith.