JUDGMENT: 1. This is an appeal preferred by the appellant challenging the judgment and award dated 12.05.2017 passed by the learned Motor Accident Claims Tribunal (Auxi.) and Additional District Judge, Devbhoomi Dwarka, Khambhalia in Motor Accident Claim Petition No.234 of 2007. 2. Ms.Moxa Thakkar, learned advocate for defendant No.2 – New India Insurance Company Ltd., submits that the appeal would not lie referring to the judgments of Oriental Insurance Company Vs. Brij Mohan, reported in (2007) 7 SCC 56 and Balu Krishna Chavan Vs. The Reliance General Insurance Company Ltd. & Ors. passed by the Hon’ble Supreme Court in Civil Appeal of 2022 (Arising out of SLP (C) No.33638 of 2017) decided on 03.11.2022 and stated that this Court would have no power to pass an order of pay and recover since such jurisdiction can be invoked under Article 142 of the Constitution of India. 3. Countering the same, Mr.Rachh relied upon the judgments of the Hon’ble Apex Court in case of Parminder Singh Versus New India Assurance Co. Ltd. reported in 2019 (0) AIJEL-SC-64351, Papu and Others Vs. Vinod Kumar Lamba and Another reported in (2018) 3 SCC 208 and Shamanna & Another Vs. Divisional Manager, Oriental Insurance Company Ltd. and Others, reported in (2018) 9 SCC 650 , to submit that now the issue has been clear and the judgments as laid down in National Insurance Co. Ltd. Vs. Swarn Singh, (2004) 3 SCC 297 and National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, reported in (2007) 3 SCC 700 , would hold the field, and therefore, in case of third party risk, where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding 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 the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental, and thus, the Insurance Company is liable to pay as it involved third party risk and submitted that the Tribunal can certainly direct the Insurance Company to pay and recover from the owner of the vehicle. 4. In case of National Insurance Co. Ltd. Vs. 4. In case of National Insurance Co. Ltd. Vs. Swarn Singh reported in (2004) 3 SCC 297 , the Hon’ble Supreme Court has observed in para-107, which is as under: “We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” 5. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” 5. The facts of the present case suggest that on 15.02.2007 at about 8.00 hours, one Jagu Naga was driving motorcycle being registration No. GJ-11- P-7678, on the right side of the road, while the pillion rider was the minor-claimant, Vipulbhai Devshibhai Ghevala, and when they reached at Bhatiya GMDC weighing bridge, at that time, the driver of the mini bus without blowing the horn and without giving any sign, suddenly started to drive the vehicle and reversed the truck and dashed the motorcycle and the minor sitting as a pillion rider sustained fractures and severe injuries on all parts of the body, and thereafter was treated in the hospital as an indoor patient and operation was performed; he took a long treatment for such grievous injury. At the time of accident, the minor was aged about 17 years. 6. The learned Tribunal had considered the negligence of Truck driver as 100%, as the truck was insured with defendant No.2. The learned Tribunal while appreciating the argument from the side of the Insurance Company contending that there was breach of policy, as driver of the offending truck was not having licence, disallowed the contentions raised by the applicant’s Advocate who contended that order of pay and recover ought to have been made, but the learned Tribunal considering it as is breach of conditions of contract, has not fasten the liability on the Insurance Company. 7. Ms.Thakkar has relied upon both the judgments to support the observations of the learned Tribunal; while the case of Balu Krishna Chavan (supra), recently decided on 03.11.2022, is a case of ‘gratuitous passenger’ and therefore, the Apex Court had concluded that, on the legal aspect in all such cases order of ‘pay and recover’ would not arise when the Insurance Company is not liable but would in facts and circumstances, it has been observed to be considered by the Apex Court to meet the ends of justice. While the present matter is of third party’s liability and in para-13 of Shamanna & Another Vs. While the present matter is of third party’s liability and in para-13 of Shamanna & Another Vs. Divisional Manager, Oriental Insurance Company Ltd. and Others (supra) it has been observed, as under: “Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.” 8. Since Swaran Singh and Laxmi Narayan Dhut’s cases still holds the field, as the case of third party liability, where the claimant involved is a minor, it would be appropriate to pass an order of ‘pay and recover’, where the payment of liability should be on the Insurance Company enabling them to recover the money from the owner. 9. Mr.Racch relying on the case of Master Mallikarujun Vs. Divisional Manager, National Insurance Co. Ltd. & Others, reported in AIR (2014) SCC 736, submitted that in case of minor, no standard has been laid down for any income, therefore, the Apex Court considering the facts has observed that, the child cannot be equated to non-earning person, and the compensation is to be worked out under the non-pecuniary head in addition to the actual amount incurred for treatment done and/or to be done, transportation, assistance or attendant etc. Mr. Mr. Rachh, submitted that the Hon’ble Apex Court has rightly considered the main elements of damage in case of a child victim as pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs, and thus stated that the Hon’ble Apex Court has considered to grant just compensation to enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. 10. Here, in this case, the permanent physical disability of the minor has been assessed as 65% for body as a whole, but the parties have agreed to 25% by a pursis at Exhibit-36, and thus, going by the pursis, as was consented, and following the yardsticks laid down in Master Mallikarjun (supra), the minor, who sustain disability upto 30%, would be entitled to receive a total amount of Rs.3 Lakhs; and further compensation for discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization. As per the Discharge Certificate, the injured was admitted on 20.02.2007 and was operated on 26.02.2007 and discharged on 15.03.2007; thus the hospitalization of 25 days is required to be considered; and thus, there would be loss of about a month and taking the date of accident as 15.02.2007, following the daily wages schedule Rs.2,500/- be assessed as loss of income. 11. This Court deems fit to compensate even for the discomfort and inconvenience suffered by parents during hospitalization and adding the loss of income of a month as Rs.2,500/-, this Court considers to grant Rs.10,000/- under the head of loss of income for discomfort and inconvenience. The amount granted by the Tribunal were medical expenditure, special diet requires no change, while making thus granted under the head of attendant charges would be considered as loss of income and for discomfort and inconvenience to parents during hospitalization in the proportion as noted hereinabove. 12. The Tribunal has granted the compensation under the different heads as under: Future loss of income Rs.67,500.00 Pain, Shock and Sufferings Rs.15,000.00 Transportation charges Rs.10,000.00 Medical Expenditure Rs.2,60,000.00 Attendance charges Rs.10,000.00 Special diet Rs.5,000.00 Total compensation Rs.3,67,500 13. Now the appellant would be entitled to get the compensation as follows: Sr.No. Head Compensation Amount in Rs. 1 Loss of amenities in life on account of permanent disability and discomfort. 3,00,000/- 2. Medical expenses 2,60,000/- 3. Now the appellant would be entitled to get the compensation as follows: Sr.No. Head Compensation Amount in Rs. 1 Loss of amenities in life on account of permanent disability and discomfort. 3,00,000/- 2. Medical expenses 2,60,000/- 3. Special diets 5,000/- 4. Transportation charges 10,000/- 4. Loss of earnings to the parents and discomfort and inconvenience during the period of hospitalization 10,000/- Total 5,85,000/- 13.1 The Tribunal has granted total compensation of Rs.3,67,500/- to the appellant. Thus, in addition thereto, now the appellant would be entitled to get additional amount of Rs.2,17,500/- @ 7.5% per annum from the date of petition. The Insurance Company is directed to deposit the enhanced compensation with interest as above within a period of Two months from the receipt of copy of this order. Upon such deposit, it will be open to the appellant to approach the Tribunal for appropriate orders for withdrawal. 14. In view of the above, the appeal is partly allowed. The award dated 12.05.2017 passed by the learned Motor Accident Claims Tribunal (Auxi.) and Additional District Judge, Devbhoomi Dwarka, Khambhalia in Motor Accident Claim Petition No.234 of 2007 is accordingly modified. The Record & Proceedings, if received, be sent back to the concerned Court.