JUDGMENT : Lok Pal Singh, J. 1. A.O. No.441 of 2012 has been filed by the New India Assurance Company Ltd. against the judgment and award dated 05.06.2012 passed by M.A.C.T./District Judge, Pithoragarh, in M.A.C. Case No.58 of 2009, whereby the learned Tribunal has directed the appellant Insurance Company to pay the compensation to the claimants to the tune of Rs.39,43,320/- with interest @ 6% per annum from the date of filing of claim petition till the date of its realization. 2. A.O. No.552 of 2012 has been filed by the owner of the vehicle Smt. Deepa Tamta against the findings recorded by the Tribunal on issue no.3 in the impugned judgment and award dated 5.6.2012. 3. Brief facts of the case are that on 23.11.2008 Dr. Kamla Joshi (deceased), after attending marriage ceremony, was returning from Pithoragarh to Almora by Alto Car bearing Registration no.UA-01 7319. The car was being driven by its driver in a very rash and negligent manner. At about 4 Pm near Pithoragarh-Tanakpur road, due to rash and negligent driving, the car fell down in a deep gorge, as a consequence whereof Dr. Kamal Joshi received serious injures and he died at the spot. On the date of incident, the deceased was aged about 39 years. He was posted as Agriculture Scientist at Vivekanand Hill Agriculture Research Institute, Almora and was getting salary @ Rs. 19,300/- per month. With these averments, the claimants/respondents, parents, wife and children of deceased Dr. Kamal Joshi filed the claim petition before Motor Accident Claim Tribunal, Pithoragarh, claiming a sum of Rs.24,76,800/- as compensation. 4. Opposite party, owner of the vehicle, filed the written statement and denied most of the averments made in the claim petition. In additional plea, she stated that she has come to know that on the date of incident, Jamuna Prasad was not driving the vehicle, it was being driven by Sunder Singh and he may be summoned to know the correct facts. 5. Opposite party-Jamuna Prasad filed his written statement and denied most of the averments of the claim petition. In additional pleas, he stated that he was asked to drive the vehicle and he had driven the vehicle from Almora to Pithoragarh. 5. Opposite party-Jamuna Prasad filed his written statement and denied most of the averments of the claim petition. In additional pleas, he stated that he was asked to drive the vehicle and he had driven the vehicle from Almora to Pithoragarh. He had already made it clear that he cannot drive the vehicle continuously, on which, the people sitting in the car, had told him to drive the vehicle from Almora to Pithoragarh only and that while returning they themselves will drive it. He also stated that owner of the vehicle has admitted in her written statement that Sunder Singh Bohra was driving the vehicle at the time of accident. 6. Appellant-The New India Assurance Company Ltd., also filed its written statement and denied most of the averments made in the claim petition, due to lack of information. In additional plea, it is stated that on the date of incident, the vehicle was being driven without any valid papers and without any valid driving license and was being plied against the terms and conditions of the policy. 7. Opposite party–Sunder Singh Bohra, driver, filed his written statement and stated that he was driving the vehicle at a very moderate speed. The accident occurred due to some technical fault. 8. On the basis of pleading of the parties, the learned Tribunal framed following issues: (i) Whether on 23.11.2008 when the deceased Dr. Kamal Joshi was travelling in his friend’s Maruti Alto Car bearing Registration no.UA-01 7319 and was returning from Pithoragarh to Almora, then at about 04.30 pm at Pithoragarh-Tanakpur road near Gurna Temple, the said vehicle met with an accident due to rash and negligent, as a result of which Dr. Kamal Joshi died at the spot? If so, its effect. (ii) Whether on the date of incident the driver of the vehicle was having valid and effective driving license? If so, its effect. (iii) Whether on the date of incident, the vehicle was not being driven by Sunder Singh S/o Pratap Singh? If so, its effect. (iv) Whether at the time of accident, the vehicle was carrying gratuitous passengers against the terms and conditions of insurance policy? If so, its effect. (v) Whether the claimants are entitled to get any compensation? If yes, then how much and from which party? 9. Thereafter, the parties led their evidence. If so, its effect. (iv) Whether at the time of accident, the vehicle was carrying gratuitous passengers against the terms and conditions of insurance policy? If so, its effect. (v) Whether the claimants are entitled to get any compensation? If yes, then how much and from which party? 9. Thereafter, the parties led their evidence. In oral evidence, the claimants got examined Smt. Meena Joshi as PW1, Karunesh Joshi as PW2 Manoj Kumar as PW3 and Bhagwan Singh as PW4. In documentary evidence, the claimants filed copy of high school certificate, copy of F.I.R., postmortem report, death certificate, inquest report, charge-sheet, etc. 10. PW1 Smt. Meena Joshi (claimant) in her statement proved the averments made in the claim petition. In cross-examination, she has admitted the fact that she is not aware as to who was driving the vehicle at the time of accident. 11. PW2 Karunesh Joshi is brother of deceased Dr. Kamal Joshi. He has lodged the report of the incident. In cross-examination, he has stated that he is not aware as to who was driving the vehicle on the date of incident and, as per the fact told by persons, he mentioned the name of Jamuna Prasad in the F.I.R. 12. PW3 Manoj Kumar, who was working as Senior Clerk in Vivekanand Hill Agriculture Research Institute, has proved the income of the deceased as Rs.19,350/- per month. 13. PW4 Bhagwan Singh is a Jeep driver. He has stated that on the date of incident, he was going from Pithoragarh to Gangolihat. In petrol pump, when he was filling petrol in his jeep, then Alto car which was being driven by Sunder Singh also arrived, in which Deep Chandra Tamta, husband of car owner, Jamuna Prasad and Dr. Kamal Joshi were sitting. Thereafter, he headed towards Gangolihat. On the way, he saw that Sunder Singh is driving the vehicle in a very rash and negligent manner and he also overtook his jeep, and after travelling 50 mts. his vehicle met with an accident due to his rash and negligent driving. 14. The owner of the vehicle got examined her husband Deep Chandra as DW2 and filed registration certificate and insurance policy. Opposite party no.3 Insurance Company got examined Surveyor Chandra Pal Singh as DW1 and filed surveyor report. Opposite party Sunder Singh got examined himself as DW3 and filed list 51c. 15. 14. The owner of the vehicle got examined her husband Deep Chandra as DW2 and filed registration certificate and insurance policy. Opposite party no.3 Insurance Company got examined Surveyor Chandra Pal Singh as DW1 and filed surveyor report. Opposite party Sunder Singh got examined himself as DW3 and filed list 51c. 15. DW1 Chandra Pal Singh, Surveyor of the appellant Insurance Company, has stated in his testimony that at the relevant time Jamuna Prasad was not having valid driving license. 16. DW2 Deep Chandra, husband of owner of vehicle, was examined to prove that at the time of accident, friend of Dr. Kamal Joshi, namely, Mr. Sunder Singh was driving the vehicle. He has also stated that on the relevant date and time, all the papers of the vehicle were valid and the vehicle was insured with the New India Assurance Company Ltd. In cross-examination, he has stated that she did not lodge any report regarding the incident. 17. DW3 Sunder Singh has stated that at the time of incident he was driving the vehicle. When the vehicle met with an accident, he fell out from the vehicle and became unconscious. He does not know as to who took him to his house. He also stated that as he also had to attend the marriage, therefore, he was called by Dr. Kamal Joshi to drive the vehicle and he was not paid any remuneration for the same. 18. After hearing the parties and upon perusal of the evidence led by the parties, the learned Tribunal passed the impugned judgment and award, as above. On issue no.1, learned Tribunal held that the accident occurred due to rash and negligent of the driver and decided this issued in favour of the claimants. The Tribunal before deciding issue no.2, decided issue no.3 and held that at the time of accident, the vehicle was not being driven by Sunder Singh, in fact, it was being driven by Jamuna Prasad and accordingly decided the issue in favour of Insurance Company. Thereafter, the Tribunal decided issue no.3 and held that on the date of accident, driver Jamuna Prasad was not having valid and effective driving license. Thereafter, the Tribunal decided issue no.3 and held that on the date of accident, driver Jamuna Prasad was not having valid and effective driving license. On issue no.4, the Tribunal held that burden lies upon the Insurance Company to prove that on the date of incident the vehicle was carrying gratuitous passengers against the terms and conditions of insurance policy, but the insurance company has not lead any evidence in this regard and even no suggestion was made to PW2 in cross-examination, as such the Tribunal decided this issue against the Insurance Company. On issue no.5, the Tribunal after taking into consideration the evidence led by the claimants and the pleadings of the parties, came to the conclusion that the deceased was earning Rs.19,800/- per month and as such calculated his annual income @ Rs.2,37,600/-. The Tribunal further observed that after deducting income tax from the annual income of the deceased, net income of the deceased comes to Rs.2,31,900/-, and enhanced 50% on the annual income towards future prospects, and thus fixed Rs.3,47,850/-. The Tribunal in view of Sarla Verma & Ors. v. Delhi Transport Corporation and another, 2009 ACJ 677 , deducted 1/4 from the annual income of the deceased towards personal expenses and applied multiplier of ‘15’ on the age of deceased and calculated annual dependency @ Rs.39,12,320/-. In addition, the tribunal granted Rs. 10,000/- towards loss of estate and Rs. 10,000/- towards loss of consortium. Accordingly, by impugned judgment and award, the tribunal awarded Rs. 39,43,320/- as compensation to the claimants along with interest @ 6% per annum from the date of filing of the claim petition till the date of its realization. 19. Mr. V.K. Kohli, learned Senior Counsel appearing for the appellant has submitted that the Tribunal has recorded the findings that the vehicle was being driven by Jamuna Prasad and that he was not carrying valid driving license on the date of incident, as there was no occasion for the Tribunal in fastening liability upon the appellant Insurance Company to pay the compensation. He further submitted that as recorded by the Tribunal as the vehicle was insured with the appellant company, then at the most, the Tribunal must have passed order directing the appellant Insurance Company to initially pay the amount of compensation to the claimants and thereafter to recover the same from the owner. Besides this, learned Sr. He further submitted that as recorded by the Tribunal as the vehicle was insured with the appellant company, then at the most, the Tribunal must have passed order directing the appellant Insurance Company to initially pay the amount of compensation to the claimants and thereafter to recover the same from the owner. Besides this, learned Sr. Counsel submitted that the Tribunal has committed illegality in awarding an exorbitant amount of compensation of Rs. 39,43,320/- as against the prayer of Rs. 24,76,800/- made by the claimants in the claim petition. 20. On the other hand, Mr. Neeraj Uprety, learned counsel appearing for the owner has submitted that the vehicle was being driven by Sunder Singh who was having a valid and effective driving license on the date of incident, therefore, the finding recorded by the Tribunal to the effect that at the relevant date and time, Sunder Singh was not driving the vehicle and that it was being driven by Jamuna Prasad, is perverse and is liable to be set aside. 21. I have heard learned counsel for the parties and perused the entire record. 22. From the perusal of F.I.R. and the charge-sheet, it is evidently clear that at the relevant date and time, Jamuna Prasad was driving the vehicle without any valid and effective driving license. The driving license of Jamuna Prasad was not valid on the date of incident, however, it was renewed on 17.01.2009, after the accident. In the present case, the owner and Sunder Singh tried their best to plant Sunder Singh as driver in the accident, but the fact remains that Sunder Singh did not sustain any injury in the accident, whereas, claimant’s husband Dr. Kamal Joshi died and Jamuna Prasad and Deep Chandra sustained injuries in the incident. Further, in cross-examination, husband of owner of vehicle, namely, Deep Chandra (DW1) had stated that Sunder Singh was driving the vehicle at the relevant date and time but he did not lodge any report of the incident. When the owner and Sunder Singh were themselves concealing the true facts, there was no occasion for him to lodge report against Sunder Singh. It is well-settled that a man may speak lie but circumstances and the document never lie. When the owner and Sunder Singh were themselves concealing the true facts, there was no occasion for him to lodge report against Sunder Singh. It is well-settled that a man may speak lie but circumstances and the document never lie. In respect of present accident, F.I.R. was lodged and the investigation was conducted and the I.O. after conducting the investigation in the matter submitted charge-sheet against Jamuna Prasad, whose driving license was not valid on the date of incident. This fact also reflects the guilt of Jamuna Prasad. Thus, in my considered opinion, the Tribunal has rightly recorded finding that Jamuna Prasad was driving the vehicle and not Sunder Singh. 23. As discussed above and as has been recorded by the Tribunal, this Court also observes that Jamuna Prasad was driving the vehicle on the relevant date and time. Now, it is to be ascertained as who is liable to pay the compensation. In this regard, the Tribunal on issue no.4 has recorded finding that it is the Insurance Company who is liable to pay the compensation, but the Tribunal, while doing so, has lost sight of the fact that this finding recorded on issue no.4 is contrary to the findings recorded on issue nos.2 and 3 by which the Tribunal had held that Jamuna Prasad was driving the vehicle without a valid driving license. In such view of the matter, it was not proper for the tribunal to fix the liability upon the Insurance Company. Though, the vehicle was insured with the appellant, but as it was being driven by Jamuna Prasad without any valid driving license, thus in my firm opinion, the owner is liable to pay the compensation. 24. In Manuara Khatun and others vs. Rajesh Kr. Singh and others, 2017 (2) T.A.C. 5 (S.C.), the Hon’ble Apex Court has observed as follows: “16. This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover". 17. Justice R.M. Lodha (as His Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under: "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein). 26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 ; (2004) 1 TAC 366 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 (National Insurance Co. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 (National Insurance Co. Ltd. vs. Saju P. Paul, SLP (C) No. 20127 of 2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao (supra)." 18. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Paul's case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings.” 25. In view of the above facts and circumstances of the case and in view of aforesaid judgment, A.O. No.441 of 2012, filed by the New India Assurance Company Ltd. is allowed. Impugned judgment and award dated 05.06.2012 passed by M.A.C.T./District Judge, Pithoragarh, in M.A.C. Case No.58 of 2009, is modified to the extent that the amount of compensation shall be first paid by the Insurer i.e. the appellant New India Assurance Company Ltd. and thereafter it shall recover the same from the insured, i.e., the owner of the vehicle. 26. In view of the above, A.O. No.552 of 2012 is dismissed. 27. No order as to costs.