JUDGMENT : 1. By way of present First Appeal under Section 173 of the Motor Vehicles Act, 1988, a challenge is made to an order dated 7.3.2005 passed by Motor Accident Claims Tribunal (Aux.) Fast Tract Court No.3, Bhavnagar in Motor Accident Claim Petition No.524 of 1999, which came to be partly allowed. 2. The background of facts which has given rise to present appeal is that on 31.5.1999, Tinabhai Madhavbhai, son of applicant Nos.1 and 2, was plying Luna scooter bearing registration No.GJ-4 3426 and passing towards Vaghnagar of Mahuva Taluka. He was driving his vehicle cautiously on the correct side of the road, but when he reached at bridge of the river Malan, opponent No.1 who was driving his vehicle, i.e. three-wheeler tempo bearing registration No.GJ-4 U 6811 carelessly, dashed with scooter of Tinabhai, which resulted in an accident and said Tinabhai, i.e. son of the original claimants, died on the spot. Opponent No.2 was owner of the above-mentioned three-wheel tempo which was insured with opponent No.3 Insurance Company and for the said accident, a criminal was also registered against opponent No.1. 3. It is the case of the original applicants-claimants that at the time of occurrence of accident, son Tinabhai was aged about 20 years and was doing earning activity of diamond cutting and polishing work and was earning Rs.4,000/- per month and on account of a sudden death of their son, original claimants lost their only bread-earner and as such by submitting a claim petition under Section 166 of the Motor Vehicles Act, 1988, a compensation was sought to the extent of Rs.3 lacs under multiple heads which was registered as Motor Accident Claim Petition No.524 of 1999. 4. It appears that later on, after summons having been duly served upon the opponents, opponent No.3 Insurance Company did appear and submitted its reply at Exh.18 and though served, opponent Nos.1 and 2 chose not to submit any reply, which led learned Tribunal to proceed ahead with the case. Opponent No.3 Insurance Company in its reply has categorically submitted that there was no rash and negligent driving by tempo vehicle and it was also denied that deceased was earning Rs.4,000/- per month and by indicating that Insurance Company is not responsible for payment of any compensation, said claim was opposed. 5. Opponent No.3 Insurance Company in its reply has categorically submitted that there was no rash and negligent driving by tempo vehicle and it was also denied that deceased was earning Rs.4,000/- per month and by indicating that Insurance Company is not responsible for payment of any compensation, said claim was opposed. 5. With a view to establish the claim, original applicant No.1 has been examined at Exh.35, whereas one Mr. Pravinbhai Mangalbhai Makwana was examined at Exh.37 and by producing several documents, vide list Exh.25, claim was tried to be justified by leading such oral as well as documentary evidence. As against this, opponent Insurance Company in addition to its reply has examined one Keshubhai Tejabhai Maru at Exh.44 and also relied upon few documents at Exh.4, i.e. policy of three-wheel tempo and at Exhs.45 and 46 replies/ statements taken by PSI Mahuva of Mr. Ganesh and Nanji Gaful. After considering such material, issues were framed at Exh.23 by learned Tribunal and after considering documentary as well as oral evidence, petition came to be partly allowed by passing an order on 7.3.2005, operative part of the same thus reads as under:- "This Petition is partly allowed. (1) The applicants do recover Rs.2,91,128/- (Rupees Two-lakhs, Ninety-one-thousand, One-hundred and Twenty-eight only) from the opponent Nos.1 to 3 jointly and severally together with proportionate cost and interest at the rate of 6% from the date of application till realisation. (2) Interim compensation, if any paid, shall be adjusted from the aforesaid amount of compensation, awarded in this final adjudication. (3) Deficit Court fees, if any, be recovered from the applicant. (4) Out of the above amount so awarded, 60% of amount shall be invested in fixed deposit in any Nationalised Bank in the joint name of applicants for a period of 3 years with condition to collect interest as the case may be. The remaining 40% of amount shall be paid to the applicants equally immediately by account payee cheque. The Bank shall not grant any loan or advance against the aforesaid deposit in any manner without prior permission of this Tribunal. However, the applicants are entitled to withdraw the amount of Interest. Award be drawn accordingly. The remaining 40% of amount shall be paid to the applicants equally immediately by account payee cheque. The Bank shall not grant any loan or advance against the aforesaid deposit in any manner without prior permission of this Tribunal. However, the applicants are entitled to withdraw the amount of Interest. Award be drawn accordingly. Pronounced in the open Court today on this 7th day of March 2005." It is against this judgment and order passed by learned Tribunal, the Insurance Company, which was opponent No.3 in the said claim petition, has brought present First Appeal under Section 173 of the MV Act by raising multiple contentions. 6. The appeal was admitted on 23.1.2006 and thereafter, it has come up for consideration before this Court for hearing. 7. Learned advocate Mr. Sunil B. Parikh appearing on behalf of Insurance Company has vehemently contended that Tribunal has seriously erred in passing the order by concluding that driver of three-wheel tempo, i.e. GJ-4U 6811, was not holding a valid driving license on the date of accident, which is not of any consequence. In fact, when vehicle was driven without having valid license, Insurance Company cannot be saddled with liability in view of the terms of insurance policy. It has further been contended that learned Tribunal ought to have relied upon and examined investigation papers of the police authority, which has clearly revealed that driver was not having a valid driving license. In fact, charge-sheet has also been submitted in the said FIR which was registered. In the said proceedings also, factum of not having a driving license was established and as such on this sole ground, Insurance Company deserves to be absolved. Though it was a statutory embargo under the provisions of the MV Act not to drive any vehicle without any driving license, said tempo was being run in such a manner and as such, Insurance Company cannot be saddled with liability of payment of compensation. 8. Mr. Parikh has alternatively submitted that apart from said circumstance having not been considered in its true perspective, there is one another circumstance which cannot be un-noticed that deceased was aged about 18 years, was an unmarried young boy and the Tribunal ought to have applied proper multiplier looking to the age. In such a circumstance, it is the submission of Mr. In such a circumstance, it is the submission of Mr. Parikh that learned Tribunal ought to have applied multiplier of 12 keeping in view the age of parents as observed by Hon'ble the Apex Court in the case of UPSRT vs. Trilokchand and as such has submitted that excess amount has been awarded in respect of certain heads and as such even on quantum also, learned Tribunal was not justified in awarding said amount of compensation. By submitting this, learned advocate Mr. Parikh has then relied upon decision delivered by Coordinate Bench of this Court dated 11.3.2022 in First Appeal No.3599 of 2013, decision reported in AIR 2018 SC 3726 , order dated 2.12.2016 passed by yet another Coordinate Bench in First Appeal Nos.3280 of 2013 to 3286 of 2013 and by submitting this, a request was made to allow the first appeal. No other submissions have been made. 9. As against this, learned advocate Mr. U.I. Vyas appearing on behalf of original claimants, i.e. opponent No.1 and 2 herein, has submitted that learned Tribunal while passing the order has thoroughly examined oral as well as documentary evidence and it is only thereafter passed an order which cannot be said to be perverse in any form and as such has submitted that appeal lacks merits and same be dismissed. In addition to this submission, it has further been contended that deceased was a young boy aged about 20 years at the time of his death and was only bread-earner of the family and looking to the fact that three-wheel tempo was established to have been driven in rash and careless manner, resulted in filing of charge-sheet against driver and as such when son has expired not on account of any fault by him, Insurance Company cannot be absolved from its liability. At the best, when vehicle was very much insured, prime responsibility to compensate deserves to be discharged by Insurance Company and in case, any internal dispute is there between owner of vehicle and Insurance Company, same may be inter-se resolved, but ground that vehicle even if was driven without any driving license cannot absolve the Insurance Company from its prime liability of paying compensation when it was specifically established that policy was in existence. 10. Learned advocate Mr. 10. Learned advocate Mr. U.I. Vyas has further submitted that looking to documentary evidence and material on record, claim which has been allowed to the extent is on the contrary inadequate and as such even on the issue of quantum, Insurance Company is not justified at all in challenging the order which has been passed. Mr. Vyas has then submitted that apart from said technical issue, even if assuming without admitting that Insurance Company can avoid liability of payment of compensation, then also on principle enunciated by series of decisions about Pay and Recovery order can be passed and as such has alternatively submitted that even if Court comes to a conclusion that Insurance Company can be absolved from its responsibility for want of valid driving license, then Hon'ble Court may pass an order of payment of compensation reserving liberty to the Insurance Company to recover from owner of the offending vehicle. To strengthen his submissions, learned advocate Mr. Vyas has referred to and relied upon decision delivered by the Hon'ble Apex Court in the case of Shamanna and Another v. Divisional Manager, Oriental Insurance Co. Ltd. and others reported in AIR 2018 SC 3726 as well as (2018) 10 SCC 432 and AIR 2018 SC 592 and by referring to the said decisions, a request is made to dismiss the First Appeal being without any merit. 11. Having heard learned advocates appearing for the parties and having gone through the material from the perspective of the main contention raised by appellant Insurance Company about its liability in the event of vehicle being plied without any valid license, though specific issue appears to have not been framed in the learned Tribunal below but it appears that specific contention has been raised not only at the first instance by Insurance Company before learned Tribunal in its written statement but same was also raised before this Court which has been confronted and dealt with by learned advocates appearing for the respective sides while submitting their respective contentions and as such the Court has examined the said issue in the aforesaid circumstance as same being a center of controversy. 12. From the application submitted at Exh.43 for issuance of witness summons dated 29.10.2004, it has been categorically stated that policy which has been produced at Exh.19 incorporates a specific contention that a person plying the vehicle must have a valid license. 12. From the application submitted at Exh.43 for issuance of witness summons dated 29.10.2004, it has been categorically stated that policy which has been produced at Exh.19 incorporates a specific contention that a person plying the vehicle must have a valid license. Unless that is available, no liability of Insurance company can be fixed. Said assertion contained in paragraph 2 of aforementioned application reflects the stand of Insurance Company before learned Tribunal below. Additionally in the deposition at Exh.44 of witness No.1 Keshubhai Tejabhai Maru, Police Officer in-charge of Mahuva Police Station who also recorded statement where on 31.5.1999, it was informed that Nanjibhai who was driving had no valid license and in cross-examination, said witness has confirmed the fact that tempo driver was driving without a valid license. Though it may be that offence related to it might not have been registered separately but fact is admitted that driver of tempo was not having a valid license. This fact is also further fortified by submitting statement of Nanjibhai Gafulbhai recorded by PSI Mahuva who clearly conveyed that he has merely studied upto 4th Std. and having no driving license. Fact regarding want of valid license is clearly reflecting from the record and here also, in present appeal, appellant Insurance Company has raised this contention in specific terms in paragraphs 3 to 6 by way of grounds and as such it appears that there is a clear case of appellant Insurance Company from beginning that at the time of occurrence of accident, tempo driver was not having any license. 13. To meet with this specific contention, even from the record, learned advocate appearing on behalf of the opponents has not been able to controvert, but has merely submitted that in a situation like this, time and again Hon'ble the Apex Court has observed to apply doctrine of Pay and Recovery and as such, aforesaid material clearly goes to indicate that there was no valid license at the time of occurrence of accident with driver who was driving the offending vehicle. 14. Now, in a situation like this, what should be the approach of the Hon'ble Court, whether to follow doctrine of Pay and Recovery or not since apparently liability of Insurance Company itself would not incur in view of settled proposition of law. 15. 14. Now, in a situation like this, what should be the approach of the Hon'ble Court, whether to follow doctrine of Pay and Recovery or not since apparently liability of Insurance Company itself would not incur in view of settled proposition of law. 15. At this stage, a reference deserves to be made to one of the decisions delivered by this Court in case of National Insurance Company v. Laxmiben Ramanbhai Patel and others being First Appeal No.1278 of 2010 and in almost similar circumstance, the Court has taken view that Insurance Company would not be responsible moment vehicle was driven without any license and said view had been taken by relying upon previous decision delivered by Coordinate Bench which has been referred to hereunder. So, the Court would like to quote relevant paragraphs from the decision hereunder:- 7.1. From the overall material on record, when it comes on record, that a case is put-forth by the Insurance Company that there was no driving license and as against that the opponent has also miserably failed to produce such driving license and the said issue appears to have been emerged in which the stand of the appellant Company has gone unchallenged and as such, the case appears to have been made out by the appellant. Here even during the course of hearing present appeal proceedings as well, such issue has not been controverted. Resultantly, the appellant has justified itself in its stand about no liability of Insurance Company for want of license. 8. At this stage, on the basis of the aforesaid circumstance, learned advocate Mr. Mehta has drawn attention to few decisions delivered by the co-ordinate Bench which is again based upon the decision delivered by the Division Bench of this Court, in which, on the basis of such admitted position, since there was no license on the date of the accident, the Insurance Company is absolved from the responsibility and as such, in view of such proposition having been laid by the coordinate Bench of this Court, the same deserves to be considered. Hence, the Court deems it proper to reproduce the said observations contained in paragraph 8 from the decision dated 18.01.2022, reads as thus:- “8.0. In case on hand also it clearly transpires that the driver of offending vehicle had no license on the date of accident. Hence, the Court deems it proper to reproduce the said observations contained in paragraph 8 from the decision dated 18.01.2022, reads as thus:- “8.0. In case on hand also it clearly transpires that the driver of offending vehicle had no license on the date of accident. As per the provision of the Motor Vehicles Act leverage of 30 days was given on license having expired whereas in this case one year has passed and same has not renewed. It is an admitted position that driver of offending vehicle did not possess any license on the date of accident. Following the ratio laid down by the Coordinate Bench of this court in the case of Mahmad Rafik Munnebhai Ansari (supra), the appellant-Insurance Company cannot be therefore, held liable to indemnify the award. The conclusion arrived at by the Tribunal that the license was not cancelled also is against the provision of Act and that would not create any liability of the appellant. In light of the aforesaid, therefore, the appellant cannot be held to be liable to satisfy the award and appellant Insurance Company therefore, deserves to be exonerated. It goes without saying that the opponent nos. 1 and 2 would be jointly and severely liable to satisfy the award. In light of the above fact, the contention raised by Mr. Patel that order of pay and recovery deserves to be passed, cannot be accepted. That as per the order dated 18.09.2012 passed in Civil Application No.7758 of 2012, the appellant Insurance Company has deposited whole awarded amount with interest and no disbursement is made in favour of the claimant. However, the respondent claimant was permitted to withdraw the interest that may be accrued on such deposit. If any such interest is permitted to be disbursed in favour of the claimant, as per the order dated 18.09.2012 in Civil Application No. 7758 of 2012, the same cannot be recovered from the claimant. Rest of the amount be refunded back to the appellant Insurance Company forthwith with proportionate costs and interest. The impugned judgment and award is hereby quashed and set aside. Appeal is thus, partly allowed to the aforesaid extent. Registry is directed to transmit back the Record and Proceedings of the case to the Tribunal forthwith.” 9. Rest of the amount be refunded back to the appellant Insurance Company forthwith with proportionate costs and interest. The impugned judgment and award is hereby quashed and set aside. Appeal is thus, partly allowed to the aforesaid extent. Registry is directed to transmit back the Record and Proceedings of the case to the Tribunal forthwith.” 9. In addition to the aforesaid decision, the Division Bench of this Court has also taken a similar view which was relied upon by the co-ordinate Bench and the said decision is dated 22.10.2021 passed in First Appeal No. 3173 of 2021, wherein also few observations contained in paragraph 12 deserves to be quoted hereunder :- “12. Thus, insurer would be entitled to raise a defense that driver of the offending vehicle was not possessing a valid driving license at the time of the accident and as such it is not entitled to indemnify the claim. If it is to be construed that burden was on the insurance company to prove that owner of the vehicle had consciously allowed the driver of the vehicle whom he knew, did not possess driving license, then in such circumstances also insurer would not be required to indemnify the award. In the instant case, said situation would not arise, inasmuch as, the owner of the vehicle who was arraigned as respondent No. 2, did not appear before the Tribunal and did not contest the matter. As such, burden had shifted on the insurance company. Only on initial burden cast on the insured namely the owner of the vehicle was discharged, it would have shifted to the claimant to dispense the same. The said exercise having not been done and undisputedly Exh. 43 and 67, the driving license which was produced by the claimant disclosing that driver of the motorcycle was possessing the driving licence which was effective from 26.06.2009 onwards, and he did not possess the driving license as on the date of accident i.e. 22.02.2009, it cannot be gainsaid by the claimant that insurer was required to indemnify the claim. It is not the case of the claimant that either the driver of the motorcycle was possessing a learner license or the said driving license which had been issued, had expired. In that view of the matter, the contention raised by the learned counsel appearing for the claimant, cannot be accepted and it stands rejected. It is not the case of the claimant that either the driver of the motorcycle was possessing a learner license or the said driving license which had been issued, had expired. In that view of the matter, the contention raised by the learned counsel appearing for the claimant, cannot be accepted and it stands rejected. In the facts obtained in the present case clearly disclosing that driver of the offending vehicle namely driver of the motorcycle was not possessing the driving license as on the date of accident, insurer of the motorcycle cannot be made to indemnify the claim. However, we make it clear that the claimant would be at liberty to proceed against owner of the said vehicle for recovering the compensation. Hence, point no. 1 is answered in favour of the insurer and held that insurer of motorcycle had proved that driver of the motorcycle did not possess valid driving licence as on date of accident.” 10. Hence, considering the aforesaid proposition of law laid down by this Court, the Insurance Company cannot be statutorily held responsible for liability which arose pursuant to the accident and as such, a case is made out by the appellant – Insurance Company. Hence, on consideration of the entire material on record, the award under challenge deserves to be modified. At this stage, it is also worth to be taken note of the principle of ‘pay and recover’ which is tried to be insisted upon by the learned advocate representing the opponents, but it appears that the Hon’ble Apex Court in exercise of jurisdiction under Article 142 of the Constitution of India has passed such order which discretion is not available to this Court and as such, the said submission made by learned advocate appearing for the opponents is not possible to be considered by this Court. Yet another observations of co-ordinate Bench of this Court is also not possible to be unnoticed which is contained in order dated 20.01.2012 rendered in First Appeal 543 of 1992 and the Court deems it proper to reproduce the said observation since the same is also passed upon the decision delivered by the Hon’ble Supreme Court. Yet another observations of co-ordinate Bench of this Court is also not possible to be unnoticed which is contained in order dated 20.01.2012 rendered in First Appeal 543 of 1992 and the Court deems it proper to reproduce the said observation since the same is also passed upon the decision delivered by the Hon’ble Supreme Court. Hence, the Court deems it proper to quote hereunder:- “Going through those two decisions, I find that the Supreme Court, in those two cases, passed the direction for payment in exercise of powers conferred on it under Article 142 of the Constitution of India. Therefore, in my opinion, the discretion exercised by the Supreme Court by taking aid of Article 142 of the Constitution of India not being available to this Court, the learned Single Judge was not justified in passing such direction and the said decision of the learned Single Judge cannot be held to be a good law.” 11. Hence, the impugned award deserves to be modified to the extent that the same should be recoverable from the owner or driver of the vehicle in question and not from the Insurance Company since there appears to be no independent appeal filed by the opponent with respect to quantum, the award dated 17.11.2019 is not being disturbed by this Court and the same shall remain unaltered and it is however, observed that the same shall be recoverable from other opponents except present appellant - Insurance Company. 16. No-doubt, in the judgments which have been pointed out by learned advocate Mr. Vyas on behalf of the opponent that doctrine of Pay and Recovery can be applied even in case where Insurance Company is not responsible for compensation, but as pointed out earlier, in view of the recent decisions which have been delivered by the Coordinate Bench and in view of the previous decisions of this Court, the Court is of the opinion that it would be apt and appropriate not to apply such principle of Pay and Recovery. Accordingly, since the fact is established from the record and proceedings that undisputely offending vehicle was being run without any valid license, question of saddling the Insurance Company for any liability of compensation appears to be out of place. Other judgments cited by learned advocate Mr. Vyas are not applicable to the facts of the present case. Accordingly, since the fact is established from the record and proceedings that undisputely offending vehicle was being run without any valid license, question of saddling the Insurance Company for any liability of compensation appears to be out of place. Other judgments cited by learned advocate Mr. Vyas are not applicable to the facts of the present case. Accordingly, the Court is of the opinion that present appeal deserves to be allowed on this short ground alone. 17. However, it is made clear that disposal of this appeal would not deter the claimant-opponents to seek remedial measure of recovery from other opponents, except appellant Insurance Company. The order passed by learned Tribunal deserves to be modified. 18. It is also made clear that in respect of quantum, since there was no much resistance or submission and opponents though served have chosen not to appear, as usual, from the original proceedings as well, the Court is constrained to dispose of present appeal by accepting the stand of appellant Insurance Company. Hence, following order would meet the ends of justice : ORDER (1) First Appeal is ALLOWED. Impugned award dated 7.3.2005 is hereby modified only to the extent that amount crystallized should be recoverable from owner and/ or driver of the offending vehicle in question except from appellant Insurance Company. Rest of the order is unaltered. (2) Since the owner and driver of the offending vehicle has not assailed the judgment and order passed by learned Tribunal below, same would be binding and it would be open for the original claimants to carryout necessary steps / proceedings known to law. (3) Record and Proceedings to be sent back to the concerned Trial Court.