JUDGMENT : ASHUTOSH SHASTRI, J. 1. Present set of appeals is arising out of common judgment and award dated 23.12.2005 delivered by Motor Accident Claims Tribunal (Aux.) Fast Track Court, Junagadh in Motor Accident Claim Petition Nos. 518 of 2000, 519 of 2000 and 520 of 2000 and since these claim petitions are arising out of very same accident, this common judgment and award is challenged by way of aforesaid appeals. Since facts are identical, evidence is common and learned advocates have jointly submitted to take up these appeal conjointly, the Court has taken up hearing of the appeals and same are being decided by present common judgment and order. 2. Facts in brief are that original claimant was traveling with minor daughters on 16.4.2000, at around 8.30 p.m. on Shil Rahij Road and carrier rickshaw was driven in a rash and negligent manner by opponent driver and said rickshaw was bearing registration No. GJ-10 V 4258. Original claimant, i.e. Punjabhai Parmar was traveling in said rickshaw to attend Mandap Utsav at village Rahij and by fixing rate of fare for the goods, he along with minor daughters was traveling in said rickshaw. On account of rash and negligent driving, vehicle driver lost control and resulted into accident, wherein claimants were initially taken to a private hospital of Dr. Dolakia and were treated as indoor patients. Father, i.e. Punjabhai Parmar, suffered serious injuries on account of which amputation was made of right lower limb along with other serious injuries. Daughter Daxaben also sustained a hipbone fracture along with other injuries and was taken to hospital for taking treatment which went for a pretty long period. Surgeries were performed and they had to take rest for pretty long period. On account of this vehicular accident, father Punjabhai Jethabhai Parmar filed a claim petition which was numbered as MACP No. 518 of 2000, whereas daughter Daxaben @ Dayaben filed a claim petition which was registered MACP No. 519 of 2000 and similarly daughter Bhavnaben Punjabhai also filed a claimed petition which was registered as MACP No. 520 of 2000. Said claim petitions were taken up, wherein documentary evidence was led in the form of FIR, panchnama of sight, medical certificates, injury certificates, disability certificates, RC book as well as bills pertaining to medical treatment along with several other documents. Said claim petitions were taken up, wherein documentary evidence was led in the form of FIR, panchnama of sight, medical certificates, injury certificates, disability certificates, RC book as well as bills pertaining to medical treatment along with several other documents. It appears that during the course of adjudication of the said claim petitions, which were taken up together, opponent Nos.1 and 2 being driver and owner remained absent though served, whereas opponent No. 3 Insurance Company appeared and submitted written statement opposing the claim petitions. 3. So far as father Punjabhai is concerned, he submitted MACP No. 518 of 2000 for claiming compensation of Rs.7 lac under different heads, whereas daughters filed MACP No. 519 of 2000 for claiming compensation of Rs.2 lacs and MACP No. 520 of 2000 for claiming compensation of Rs.1 lac. 4. Opponent No. 3 Insurance Company submitted a written statement at Exh.21 and contended that claimants were traveling as an unauthorized passengers and have created a story as if they went for selling shawls and thereby hired rickshaw. It was specifically contended that opponent No. 1 was not having a valid and effective driving license and as such Insurance Company is not responsible to make payment of compensation and as such requested that claim petitions qua Insurance Company be dismissed. 5. From the record, it appears that issues were framed at Exh.28 and after considering documentary material on record and after assessing the relevant material, learned Tribunal was pleased to pass a common judgment and award allowing the claim petitions in part, vide judgment and order dated 23.12.2005, operative part thereof reads as under: M.A.C.P. NO. 518/2000. The claim petition is partly allowed. The Opponents No. 1 and 2 shall pay jointly or severally the amount of compensation Rs.1,66,500/-with proportionate cost and interest at the rate of 7.5% per annum from the date of filing the suit till realisation to the applicant. (As Hon'ble Supreme Court has granted 7.5% rate of interest in the case of Tamil Nadu State Transport Corporation vs. S. Rajapriya and Others, 2005 (III) Accident Claims Journal 1441. M.A.C.P. NO. 519/2000. The claim petition is partly allowed. The Opponents No. 1 and 2 shall pay jointly or severally the amount of compensation Rs. 70,200/- with proportionate cost and interest at the rate of 7.5% per annum from the date of filing the suit till realisation to the applicant. M.A.C.P. NO. 519/2000. The claim petition is partly allowed. The Opponents No. 1 and 2 shall pay jointly or severally the amount of compensation Rs. 70,200/- with proportionate cost and interest at the rate of 7.5% per annum from the date of filing the suit till realisation to the applicant. (As Hon'ble Supreme Court has granted 7.5% rate of interest in the case of Tamil Nadu State Transport Corporation vs. S. Rajapriya and Others, 2005 (III) Accident Claims Journal 1441. M.A.C.P. NO. 520/2000. The claim petition is partly allowed. The Opponents No. 1 and 2 shall pay jointly or severally the amount of compensation Rs.39,320/- with proportionate cost and interest at the rate of 7.5% per annum from the date of filing the suit till realisation to the applicant. (As Hon'ble Supreme Court has granted 7.5% rate of interest in the case of Tamil Nadu State Transport Corporation vs. S. Rajapriya and Others, 2005 (III) Accident Claims Journal 1441. The Opponent. No. 3 United India Insurance Co. Ltd. is exonerated from the liability of paying the amount of compensation to the applicant in each case and is entitled for reimbursement of the amount towards interim compensation if any paid by it. The interim compensation if any paid to the applicant, be adjusted from the awarded amount. The deficit court-fees if any, be recovered from the awarded amount. Out of compensation amount, 70% amount shall be invested in any nationalised Bank of the choice of applicant for the period of 5 years with condition that applicant shall not be entitled for any loan, advance or any kind of withdrawal without prior permission of this Tribunal, however, applicant is entitled for periodical interest thereon. The remaining 30% amount be paid to the applicant by Account Payee Cheque. Award be drawn accordingly. Pronounced in open Court today on this 23rd day of December, 2005. 6. Present First Appeals feeling aggrieved by and dissatisfied with judgment and award are filed not only against inadequate amount of compensation awarded but basically it appears that Insurance Company which has been exonerated was according to the appellants was erroneously exonerated and as such under Section 173 of the Motor Vehicles Act, present First Appeals have been submitted. Since issues arising in these appeals are identical and common. learned advocates have requested to take up hearing conjointly and as such, the Court heard learned advocate Mr. Since issues arising in these appeals are identical and common. learned advocates have requested to take up hearing conjointly and as such, the Court heard learned advocate Mr. Amar Mithani for appellants and learned advocate Mr. Palak H. Thakkar for opponent No. 3 Insurance Company. Though served, opponent Nos.1 and 2 remained absent and as such, it is placed ex-parte against them. 7. Learned advocate Mr. Amar Mithani appearing on behalf of the claimants has submitted that on account of unfortunate incident, serious injuries have been suffered by all three claimants and so far as main claimant of First Appeal No. 454 of 2009, Punjabhai Jethabhai Parmar is concerned, his right lower limb was required to be amputated along with other injuries and sustained serious disability. Similarly, other claimants have also suffered fracture injuries which are mentioned, but unfortunately, ignoring seriousness of injuries, a meagre amount of compensation has been awarded and as such, award passed deserves to be corrected. Mr. Mithani has further submitted that reasons which are assigned by learned Tribunal are also not germane to law and not in consonance with evidence on record. It was specifically submitted that on account of this vehicular accident, injuries have been caused and disability of main appellant i.e. Punjabhai was to an extent that functional disability was assessed to the extent of 75% and disability certificate was also produced at Exh.34. It was also contended that though there was monthly income of Punjabhai to an extent of Rs.3,000/-, learned Tribunal erroneously assessed the same to the extent of Rs.1500/- per month and thereby a consequential effect resulted into inadequate amount of compensation as against claim of Rs.7 lac. It was also contended that opponent Nos.1 and 2 have not remained present and as such a bare assertion was made by Insurance Company that driver was not having a valid license at the relevant point of time, therefore, he cannot be allowed to be exonerated and as such there is an error committed by learned Tribunal in passing the impugned award. It has further been contended that claimant Punjabhai was engaged in the business of weaving and selling of blankets and was traveling in a carrier rickshaw and as such income which has been assessed by Tribunal is on a lower side and there also appears to be a clear error on the part of learned Tribunal in assessing the disability at 35% body as a whole and this being a clear error on the part of learned Tribunal in passing an award, same deserves to be modified. On the contrary, by giving a calculation chart, learned advocate Mr. Mithani has submitted that on the basis of income of Rs.3,000/- per month, if calculation under various heads is to be considered, total comes to Rs.2,78,000/- and if same is to be adjusted with amount which has been awarded, additional amount is required to be awarded to an extent of Rs.1,11,500/- and as such to that effect, impugned award may be modified by considering income at Rs.3000/- per month. 8. In respect of other claimants, learned advocate Mr. Mithani has submitted that though nothing much to be conveyed, but at the same time, looking to injuries which are caused in respect of other claimants of MACP Nos.519 of 2000 and 520 of 2000, it appears that calculation arrived at is at much lower side and therefore, same deserves to be enhanced by suitably modifying the award which has been passed by learned Tribunal. Mr. Mithani has further submitted that Insurance Company has been erroneously exonerated and simply because driver was not having a valid license, same cannot be a ground to exonerate Insurance Company especially when undisputedly, coverage of insurance policy is already available at the time when accident took place and as such by placing reliance upon the decision delivered by High Court of Karnataka at Dharwad Bench dated 14.9.2016 passed in MFA No. 24131 and 24534 of 2010 a request is made to modify the award and appropriate amount of compensation be enhanced. Another decision has also been brought to the notice of this Court dated 11.12.2015 passed by High Court of Karnataka, Bengaluru Bench in Misc. First Appeal No. 4330 of 2012 and has contended that impugned order be suitably modified not only by enhancing the amount of compensation but by holding Insurance Company responsible for compensation. Another decision has also been brought to the notice of this Court dated 11.12.2015 passed by High Court of Karnataka, Bengaluru Bench in Misc. First Appeal No. 4330 of 2012 and has contended that impugned order be suitably modified not only by enhancing the amount of compensation but by holding Insurance Company responsible for compensation. In the alternate, it has further been submitted that in case the Court is of the view that Insurance Company is not responsible, then in that case, in view of the consistent practice and in view of the proposition of law laid down by Hon’ble Apex Court, Pay and Recovery order may be passed which would meet the ends of justice and as such has requested to allow the appeals to the aforesaid extent. 9. As against this, learned advocate Mr. Palak H. Thakkar appearing on behalf of the Insurance Company has submitted that appeal lack merits, on the contrary Insurance Company has rightly been exonerated. Not only that, even otherwise driver of the vehicle was not having a valid license and as such also liability of Insurance Company cannot be fixed in any circumstance and in respect of quantum of compensation, Mr. Thakkar has submitted that there is no material sufficient enough to produce on record which can justify the claim of income of Rs.3000/- per month and as such whatever amount which has been assessed by learned Tribunal is reasonable and as such no interference deserves. Mr. Thakkar has submitted that this being a first appeal, in absence of any other distinguishable material, view taken by learned Tribunal in this peculiar background of facts may not be disturbed. It has been contended that it is now settled by catena of decisions that moment Insurance Company is not responsible, usual order of pay and recovery cannot be passed and for that purpose, Mr. Thakkar has referred to the decisions delivered by this High Court based upon several other judgments and has produced on record a list of decisions by way of a separate chart and by referring to this, it has been contended that pay and recovery order may not be applied herein in this case, especially when Insurance Company is not held responsible. Hence, a request is made not to entertain the appeals. 10. Hence, a request is made not to entertain the appeals. 10. Having heard learned advocates appearing for the parties and having gone through the material on record, it appears that in a vehicular accident dated 16.4.2000, not only original claimant, i.e. father of minor daughters was undisputedly traveling with goods in a carrier rickshaw No. GJ-10 V 4258 and rickshaw was driven in an excessive speed and while overtaking a camel-cart, driver lost control and vehicle turned turtle, which has resulted into serious injuries. Claimants were taken first for primary treatment and then were shifted to Mangrol Hospital but in view of the fact that injuries were serious enough, Punjabhai was shifted to a private hospital of Dr. Dolakia, Junagadh where he appears to have been treated as an indoor patient for quite some time. It was contended by appellant that he was doing labour work and was earning Rs.2500/- by selling blankets and on account of serious injuries, huge medical expenditure has taken place and as such has claimed a compensation. 11. Apart from that, from the record, it appears that learned Judge in absence of any proof with regard to income, a notional income was considered and was assessed at Rs.1500/- per month and considering the overall disability at 35% of body as a whole, amount was then calculated and ultimately, a compensation of Rs.1,66,500/- was awarded. Here, it emerges from the record that for claiming compensation, income has been stated to be Rs.3000/- per month in the appeal by learned advocate Mr. Mithani, but there is an absolutely no material to substantiate either in the form of bill for selling blankets or any amount which might have been spent for preparation of blankets or any other kind of documents relating to income. It also appears from the memo of appeal that there is no assertion made with regard to income and as such in the absence of any material or in the absence of any documentary evidence with regard to income, it is difficult for this Court to arrive at a conclusion de hors the conclusion which has been arrived at by learned Tribunal in respect of assessment of income and therefore, the Court is not in a position to substitute the income of claimant Punjabhai as that of Rs.3000/- per month. It is a trite law that in absence of any distinguishable material, view taken by Trial Court may not be substituted just for sake of substitution. Hence, the Court is not in a position to determine the income of Rs.3000/- per month as canvassed by learned advocate Mr. Mithani, in place of Rs.1500/- per month which has been arrived at by learned Tribunal. Had there been any material even remote in nature to justify the income as tried to be projected, the Court might have considered in view of the fact that Act is based upon benevolent principle, but in absence of any such material, possible view adopted by learned Tribunal is not in a position to be disturbed or substituted. In the memo of appeal also, there is no assertion with regard to such income as tried to be projected by learned advocate Mr. Mithani. Hence, the Court is not inclined to accept the stand of appellant that income of claimant Punjabhai was Rs.3000/- per month and based upon that, amount may be modified. 12. In respect of other appeals arising out of common judgment and award, being First Appeal Nos.519 of 2000 and 520 of 2000, there are no other separate submissions made by learned advocate Mr. Mithani, except the fact that serious injuries have taken place on account of no fault on their part. Therefore, amount of compensation may be enhanced but again Mr. Mithani reiterates that in absence of any material, even at appellate stage, the Court is not in a position to enhance the amount. Hence, in the considered opinion of this Court, no case is made out to call for any interference. 13. Apart from that, even stand of Insurance Company that at the time of occurrence of accident, driver was not having a valid license and that fact has been proved during the course of adjudication of main claim petition and in counter to that, appellants have not led any evidence to suggest that stand taken by Insurance Company is erroneous, on the contrary, learned Tribunal on the basis of material on record has accepted the stand of Insurance Company and exonerated it since there appears to be violation of the terms of insurance policy. Be that as it may, a case is made out by the appellants to fix liability of Insurance Company in respect of compensation which has already been awarded. Be that as it may, a case is made out by the appellants to fix liability of Insurance Company in respect of compensation which has already been awarded. Hence, there appears to be no error committed by learned Tribunal while passing the impugned award. 14. So far as alternative submission of learned advocate Mr. Mithani that Insurance Company at the best may be directed to pay the amount of compensation first to the appellants and then recover the same from the original owner of the vehicle in question, this principle of Pay and Recovery is no longer continued to be recognized and recent pronouncements are clearly indicating that when Insurance Company is not responsible then pay and recovery principle may not be applied. Hence, this alternative submission made by advocate Mr. Mithani is of no substance. The Court is not in a position to apply such principle especially when Insurance Company has already been exonerated. That being so, no case is made out by the appellants to call for any interference. 15. At this stage, on the issue of Pay and Recovery, this Court has clearly propounded that such principle may not be applied and such proposition can be culled out from the decision delivered by the Coordinate Bench of this Court dated 8.12.2021 passed in First Appeal Nos.2911, 2912 and 2913 of 2010, wherein it was observed in paragraph 12 that Pay and Recovery order can be passed by Hon’ble the Apex Court in exercise of jurisdiction under Article 142 of the Constitution of India and same principle has been reiterated in series of decisions, including the decision delivered by Hon’ble the Chief Justice (the then) in First Appeal No. 2121 of 2008 decided on 18.11.2013, wherein in paragraph 13, it has also been clearly mentioned that there is no scope for passing such order of pay and recovery as same can only be in exercise of power conferred under Article 142 of the Constitution of India and Hon’ble the Supreme Court in particular facts might have exercised, but said discretion is not available to be helpful and that being so, principle as tried to be canvassed by learned advocate for appellants is not possible to be stretched over here, especially when Insurance Company is not held responsible for liability of compensation. 16. 16. Hence, considering the aforesaid overall facts on hands, particularly when there is no evidence worth the name with respect to income criteria of main claimant Punjabhai, the Court is not in a position to substitute the finding arrived at by learned Tribunal and no case is made out for modification of the award. 17. So far as the decisions which have been tried to be pressed into service by counsel for appellants of High Court of Karnataka, Benches of Dharwad and Bengaluru, having gone through the same and considered the proposition, this Court is of the opinion that in different background of facts, this Court is not in a position to apply such decision here since overall material on record does not support the stand taken by learned counsel for the appellants. Hence, it appears to this Court nodoubt, injuries had been caused, but then in the absence of any relevant material, which may permit the Court to enhance the amount, it is difficult for this Court to just substitute the order of the Tribunal and modify it. Accordingly, first appeals lack merit, same deserve to be dismissed. 18. Since common evidence is relied upon and reasons are same, no separate finding is incorporated in respect of other first appeals since same has not been so succinctly argued as well, as such, impugned award appears to be not disproportionate, hence does not deserve to be modified. 19. In absence of any perversity or material irregularity, no substitution is possible in the present proceedings. Hence, the appeals deserve be dismissed. 20. Even the Court has also made attempt since this being First Appeals to find out the material if it can help out the appellants or not. But, learned counsel for appellants has not been able to point out even from the paper-book which has been submitted to substantiate his contention with regard to income to be treated on a higher side. Hence, when this be the situation, order passed by learned Tribunal is confirmed and it would be open for the appellants to pursue the remedy of recovery against opponent Nos.1 and 2. With these observations, present First Appeals stand DISMISSED with no order as to costs. 21. Since the main First Appeal is disposed of, connected Civil Application stands consigned to records.