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4] The respondent no.1 resisted the claim petitions with contention that the accident occurred solely due to negligence on the part of driver of the Truck i.e. respondent no.3. The respondent no.2 adopted the written statement fled by the respondent no.1. The respondent no.3, though served, failed to appear and contest the claim petitions. The appellant - insurance company (respondent no.4) resisted the claim petitions with contention that on account of breach of policy condition, the respondent no.4 - insurance company is not liable to pay compensation. It is claimed that at the time of accident, the driver of the ofending vehicle was not holding the requisite driving license to drive the vehicle and thereby the respondent no.3 - insured had committed breach of policy condition.

- 7- claimants, inclusive of no fault liability, with future interest at the rate of 7.5% p.a. from the date of application till the date of realization of the amount. In MACP No.192/2003, the Tribunal has directed the respondent no.1 3 to pay compensation of Rs.1,06,500/- to claimants and further directed the respondent no.3 to pay compensation of Rs.2,48,500/- to claimants, inclusive of no fault liability, with future interest at the rate of 7.5.% p.a. from the date of application till the date of realization of the amount. The Tribunal has directed that the amount payable by the respondent no.3 shall be initially paid by the respondent no.4 - insurance company to claimants and thereafter same be recovered by the respondent no.4 from the respondent no.3. Being aggrievedby the order of 'pay and recover' passed by the Tribunal, the appellant - respondent no.4 - insurance company has preferred these appeals. 6] Learned counsel for the appellant assailed the impugned judgments and awards passed by the Tribunal with contention that the order to pay and recover passed by the Tribunal against the appellant - insurance company is not legally sustainable in law. It is submitted that in view of the conclusion to which the Tribunal has reached that there was breach of policy condition on the part of the respondent no.3 - insured, no such order of 'pay and recover' should have passed by the Tribunal. It is submitted that it has been FA 1135/07 & another

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but we direct that the Appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (supra)."

9] Now the next question posed for consideration in view of the fnding reached by this Court that the Tribunal has erred in placing reliance upon the decision in the case of National Insurance Co. Ltd. v. Kusum Rai & others reported at 2006 TAC (2), page 1, the order passed by the Tribunal to pay and recover the amount deserves to be set aside. Learned counsel for the respondent - claimants have placed reliance upon decision in the case of National Insurance Co. Ltd. v. Swaran Singh & others reported at (2004) 3 SCC 297 wherein the Apex Court has considered the doctrine of 'pay and recover' to be applied by the Tribunal. It is held that even if insurance company proves that there was breach of policy condition on the part of insured regarding holding of valid driving license by the driver, still the insurance company cannot avoid its liability towards the insured unless such breach or breaches of the condition of driving license is / are found to be so fundamental or contributed to the cause of accident. It is further held that on adjudication of the claim if the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in terms of Section 149(2) read with Sub-section (7), still the Tribunal FA 1135/07 & another

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1996, the license was renewed from time to time. The driver of the ofending vehicle acquired the driving license to drive heavy motor vehicle on 14.2.1996 and same was valid upto 13.2.1999. Subsequently, it was renewed from 13.2.1999 to 12.2.2002. Thereafter, the license was renewed from 26.6.2003 to 25.6.2006 i.e. few days after the accident. The accident occurred on 12.6.2003. In the light of evidence on record, it can be safely inferred that the driver of the Truck had longstanding experience to drive heavy motor vehicle. Except for a short period covering the date of accident, the license was not renewed. In that view, it cannot be stated that the driver of the Truck was novice and not holding requisite eligibility criteria to drive the ofending vehicle. Therefore, the cause of accident cannot be co-related as an act contributed for the cause of accident. In that view, the breach of policy condition cannot be termed as fundamental breach of policy condition to prevent the Tribunal not to pass the order of 'pay and recover'. Thus, in the light of decision in the case of National Insurance Co. Ltd. v. Swaran Singh & others reported at (2004) 3 SCC 297, which still holds the feld, the judgments and awards passed by the Tribunal deserve no interference in exercise of appellate jurisdiction. In the recent decision by the Apex Court in the case of Shamanna & another v. Divisional Manager, Oriental FA 1135/07 & another