- (1.) The appeal is reported to be defective on account of non-filing of an application under Section 170 of the Motor Vehicles Act. The submission of Mr. M.K. Nigam, learned Counsel for the appellant is that in the present case no such application was filed before the Tribunal and as such its copy cannot be enclosed with the memo of appeal. In view of the above, the defect reported in presentation of the appeal does not exist.
(2.) Appeal be given a regular number. Heard Mr. M.K. Nigam, learned Counsel for the appellant on merits of the appeal. The submission is that the offending vehicle was being driven without a valid permit and therefore the condition to pay and recover could not have imposed upon the Insurance Company. It has to be remembered that the Motor Vehicles Act, 1988 is a beneficial piece of legislation which is meant to protect the interest of the sufferers/claimants. Therefore, the law Courts have evolved a principle that where the vehicle is insured and there is breach of policy, the liability to pay compensation may rest upon the owner but the insurer will pay the compensation in the first instance and recover it from the owner. This principle safeguards the interest of the sufferers/claimants and at the same time saves the insurer from the liability by giving right to recover the compensation from the owner of the vehicle.
(3.) The above principle placing initial burden to pay compensation upon the Insurance Company and permitting it to recover it from the owner of the vehicle, later on is enunciated in a number of decisions of the Supreme Court in Oriental Insurance Co. Ltd. v. Brij Mohan, 2007 7 SCC 56; New India Insurance Co. v. Darshana Devi, 2008 7 SCC 416; National Insurance Co. Ltd. v. Yellamma and Others, 2008 7 SCC 526; Samundra Devi v. Narendra Kaur, 2008 9 SCC 100. A Division Bench of this Court in National Insurance Company Limited v. Chotey Lal and Others, while considering the condition imposed in the award of the Motor Accident Claims Tribunal directing the insurer to pay and recover the amount from the owner held it is an equitable principle and that such a direction is only a stop gap arrangement which does not ultimately make the insurer liable for compensation. Thus, principle of pay and recover as a condition in the award was held to be valid in view of the beneficial scheme of the Act. Following the aforesaid principle and the Division Bench decision of this Court, I myself dismissed First Appeal From Order No. 3337 of 2011 including similar question vide my order dated 12.10.2011.;