ORDER : 1. The instant appeal has been preferred by the insurance company against the award dated 15.3.2016 passed by the 5th Additional Motor Accidents Claims Tribunal, Durg in Claim Case No.13 of 2013, whereby the Tribunal has awarded compensation of Rs.4,10,000 in favour of the claimants/Respondents No.1 to 3 and fastened liability to pay the compensation on the Appellant/insurance company. 2. According to the claim petition moved before the Tribunal, on 24.12.2012, Deepak Kumar Sen was standing near a road. At that time, he was dashed by a tractor bearing registration No.CG 04 DA 9953 and trolley bearing registration No.CG 04 DA 9954, which was owned by Respondent No.5 and was being driven by Respondent No.4. Due to the accident, Deepak Kumar Sen died. The claimants/Respondents No.1 to 3 filed the claim petition under Section 166 of the Motor Vehicles Act before the Tribunal. After submission of their written statement before the Tribunal, Respondents No.4 and 5, i.e., driver and owner of the offending tractor and trolley did not appear before the Tribunal and remained ex parte. In their written statement, they took a plea that no accident occurred from their vehicle and a false and fabricated case has been registered against the driver of the offending vehicle. The Appellant/insurance company filed its written statement before the Tribunal and took a plea that the vehicle was being driven by the person who was not having any licence to drive the vehicle. Therefore, there was a breach of insurance policy on the part of the owner. Thus, the insurance company is not liable to pay any compensation. After recording evidence and hearing the parties, the Tribunal passed the impugned award dated 15.3.2016 and fastened liability for payment of the compensation on the Appellant/insurer. Hence, this appeal. 3. Learned Counsel appearing for the Appellant/insurer submitted that present is a case where the driver had not possessed any licence to drive the offending vehicle and, therefore, the offence under Section 3/181 of the Motor Vehicles Act has been added by police while filing the charge-sheet. The Tribunal has also recorded a finding that there was a breach of the insurance policy, but, despite that, the Tribunal has fastened liability on the Appellant/insurance company on the ground that the breach is not fundamental. The Tribunal has also not granted any right of recovery to the Appellant/ insurer. The Tribunal has also recorded a finding that there was a breach of the insurance policy, but, despite that, the Tribunal has fastened liability on the Appellant/insurance company on the ground that the breach is not fundamental. The Tribunal has also not granted any right of recovery to the Appellant/ insurer. According to the Learned Counsel, in light of the judgments of this Court as well as of the Supreme Court, since the driver of the offending vehicle had not possessed any licence, order of “pay and recover” has to be passed. 4. Learned Counsel appearing for Respondents No.1 to 3 also supported the above arguments raised by Learned Counsel appearing for the Appellant/insurer. 5. I have heard Learned Counsel appearing for the parties and perused the record of the Tribunal minutely. 6. Before the Tribunal, the driver and owner of the offending vehicle, after submission of their written statement, did not appear nor did they adduce any evidence and remained ex parte. Before this Court also, even after service of notice, they did not appear. From perusal of the charge-sheet filed by police, it is well established that the charge-sheet has been filed against the driver of the offending vehicle for the offence punishable under Section 304A of the Indian Penal Code and Sections 3/181 and 5/180 of the Motor Vehicles Act. The Administrative Officer of the Appellant/insurance company, namely, S.R. Sahu, in his statement, recorded before the Tribunal, stated that at the time of accident, the driver of the offending vehicle had not possessed any valid and effective driving licence. In this regard, the insurance company demanded the driving licence of the driver of the offending vehicle through a registered letter, but, despite receipt of the letter, no driving licence was produced. He further deposed that the investigator of the insurance company, namely, Chhaganlal Sahu also visited the houses of the driver and the owner of the offending vehicle and there he demanded driving licence from them, but they stated that they did not have any driving licence. The above statement of witness S.R. Sahu is not rebutted during his cross-examination. Thus, from the statement of this witness and from perusal of the charge-sheet, it is well established that at the time of accident, the driver of the offending vehicle had not possessed any valid and effective driving licence. 7. The above statement of witness S.R. Sahu is not rebutted during his cross-examination. Thus, from the statement of this witness and from perusal of the charge-sheet, it is well established that at the time of accident, the driver of the offending vehicle had not possessed any valid and effective driving licence. 7. Dealing with the issue in (2004) 3 SCC 297 (National Insurance Co. Ltd. v. Swaran Singh, it is held by the Supreme Court as under: “110. The summary of our findings to the various issues as raised in these petitions is 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) An 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 the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how the 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 the 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 insurer 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 t 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. 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 the insurer and the insured. 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 the 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 Section 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 of 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. (xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the 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.” 8. Reiterating the judgment of Swaran Singh case (supra), in (2018) 9 SCC 650 (Shamanna v. Divisional Manager, Oriental Insurance Company Limited), it is held by the Supreme Court as follows: “6. As per the decision in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 , onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third-party risks. The Tribunal is required to consider “as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver … does not fulfil the requirements of law or not will have to be determined in each case”. 7. The Supreme Court considered the decision of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 in subsequent decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 , wherein this Court held that: (SCC p. 705, para 5) “5. The decision in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 has no application to cases other than third-party risks and in case of third-party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.” 9. In (2011) 6 SCC 425 (Jawahar Singh v. Bala Jain), it is held by the Supreme Court as follows: “10. On behalf of Respondent 6, National Insurance Company Ltd., it was sought to be urged that at the time of the accident, the motorcycle was being driven in breach of the terms and conditions of the insurance policy and, accordingly, the Insurance Company could not be held liable for making payment of the compensation awarded by the Motor Accidents Claims Tribunal. Apart from the fact that Jatin, who was riding the motorcycle, did not have a valid driving licence, it had also been established that he was a minor at the time of the accident and consequently the Insurance Company had been rightly relieved of the liability of payment of compensation to the claimants and such liability had been correctly fixed on the owner of the motorcycle, Jawahar Singh. 11. 11. It has been well settled that if it is not possible for an awardee to recover the compensation awarded against the driver of the vehicle, the liability to make payment of the compensation awarded fell on the owner of the vehicle. It was submitted that in this case since the person riding the motorcycle at the time of accident was a minor, the responsibility for paying the compensation awarded fell on the owner of the motorcycle. In fact, in Ishwar Chandra v. Oriental Insurance Co. Ltd., (2007) 10 SCC 650 , it was held by this Court that in case the driver of the vehicle did not have a licence at all, the liability to make payment of compensation fell on the owner since it was his obligation to take adequate care to see that the driver had an appropriate licence to drive the vehicle. 12. Before the Tribunal reliance was also placed on the decision in National Insurance Co. Ltd. v. Gh. Mohd. Wani, 2004 ACJ 1424 (J&K) and National Insurance Co. Ltd. v. Gadigewwa, 2005 ACJ 40 (Kant), wherein it was held that if the driver of the offending vehicle did not have a valid driving licence, then the Insurance Company after paying the compensation amount would be entitled to recover the same from the owner of the vehicle. It was submitted that no interference was called for with the judgment and order of the High Court impugned in the special leave petition.” 10. In (2019) 7 SCC 217 (Parminder Singh v. New India Assurance Company Limited), it is held by the Supreme Court as under: “7. On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the respondent Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licences. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. 7.1 This Court in Shamanna v. Oriental Insurance Co. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court. 7.1 This Court in Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650 , held that if the driver of the offending vehicle does not possess a valid driving licence, the principle of “pay and recover” can be ordered to direct the insurance company to pay the victim, and then recover the amount from the owner of the offending vehicle.” 11. Recently, in (2022) 1 SCC 317 (Kurvan Ansari alias Kurvan Ali v. Shyam Kishore Murmu), it is held by the Supreme Court as under: “17. Accordingly, the appellants are entitled for a sum of Rs.4,70,000 (Rupees four lakhs seventy thousand only) towards total compensation with interest @ 6% p.a. from the date of claim petition till the date of realisation. The enhanced compensation shall be apportioned between the appellants as ordered by the Tribunal. The entire compensation shall be paid to the appellants by Respondent 2 insurance company, and we keep it open to the insurance company to recover the same from Respondent 1 owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident.” 12. Since in the case in hand also, the insurer has established that the driver of the offending vehicle had not possessed any licence to drive the offending vehicle, breach of the insurance policy on the part of the owner of the offending vehicle is established. 13. Keeping in view the decisions rendered by the Supreme Court in the above mentioned supra cases, in the instant case also, it would be appropriate to order the principle of “pay and recover” and direct the Appellant/insurer to first satisfy the impugned award and then recover the paid sum from the insured/owner of the offending vehicle by initiating an appropriate execution proceeding. Ordered accordingly. 14. Consequently, the appeal is allowed in part to the extent shown above.