Gujarat High Court
Varshaben Narendrasinh Thakor vs Ajmelsinh Madhusinh Thakor on 25 February, 2026
NEUTRAL CITATION
C/FA/3043/2022 JUDGMENT DATED: 25/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3043 of 2022
With
R/FIRST APPEAL NO. 3068 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
============================================
Approved for Reporting Yes No
============================================
VARSHABEN NARENDRASINH THAKOR
Versus
AJMELSINH MADHUSINH THAKOR & ANR.
============================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 25/02/2026
COMMON ORAL JUDGMENT
Since both these appeals are arising out of the same
accident and the grounds and issue involved in both the appeals
are common, they have been heard together and are being
decided by this common judgment. The First Appeal No.3043 of
2022 arises out of MAC Petition No.1080 of 2013 and the First
Appeal No.3068 of 2022 arises out of MAC Petition No.1079 of
2013.
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1) Feeling aggrieved and dissatisfied with the judgment and award
dated 14.10.2019 passed by learned Motor Accident Claims
Tribunal (Auxi.), Nadiad (which shall hereinafter be referred to
as “the Tribunal” for short), in Motor Accident Claim Petition
Nos.1079 of 2013 and 1080 of 2013, the appellants – original
claimants have preferred the present appeals under Section 173
of the Motor Vehicles Act, 1988 (which shall hereinafter be
referred to as “the Act” for short).
2) Heard learned Advocate Mr. N. A. Bhalodi, for the appellants –
original Claimants and learned Advocate Mr. R. P. Raval, for
respondent no.2 – Insurance Company. The respondent no.1 is
duly served but remained absent. Perused the original record
and proceedings.
3) It is the case of the appellants that on 27.03.2014, the deceased
Narendrasinh Kalusinh Baraiya (who shall hereinafter be referred
to as “deceased / victim”) along with his wife Varshaben
Narendrasinh Thakor (who shall hereinafter be referred to as
“injured / victim / appellant”) were going on motorcycle
bearing Reg. No.GJ-09-CE-1671, on correct side. At about 10:30
am when they reached at the place of incident at that time one
Tata Magic bearing Reg. No.GJ-07-VW-6981, (which shall
hereinafter be referred to as “offending vehicle” for short)
owned by the opponent no.1 – respondent no.1 herein, was
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coming in rash and negligent manner and dashed with the
motorcycle due to which the deceased sustained serious injuries
and thereafter expired, whereas, his wife i.e. appellant sustained
serious and multiple injuries. Therefore, the appellants have filed
MAC Petitions seeking compensation, wherein, the learned
Tribunal after appreciating the evidence produced on record has
held the driver of the offending vehicle sole negligent for the
accident, however, exonerated the Insurance Company from its
liability and held the respondent no.1 bound to indemnify the
claim and partly allowed both the claim petitions.
4) Learned Advocate for the appellants has submitted that the
learned Tribunal has committed error by holding that the
respondent no.2 – Insurance Company is not liable to pay the
compensation as the respondent no.1 was not holding driving
license ignoring the fact that the deceased and injured are third
party to the contract between the respondent no.1 and
respondent no.2 – Insurance Company and hence they cannot
be deprived of the compensation from the Insurance Company.
He has further submitted that the Hon’ble Supreme Court in
ample judgments held that in case of successful breach of policy
terms and conditions by the Insurance Company, the Insurance
Company may be directed to pay the compensation to the victim
or the legal representatives of the victim and then recover from
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the owner of the insured vehicle. He has further submitted that
the Tribunal has not properly assessed the income of the
deceased and injured and awarded meager compensation. With
these submissions he has requested to allow both the appeals.
5) Learned Advocate for the respondent no.2 – Insurance Company
has opposed the present appeals on the ground that the
compensation awarded by the Tribunal is just, legal and proper
and no interference is required to call for. With these
submissions he has requested to dismissed both the appeals.
6) The factum of accident, issue of negligence and involvement of
the vehicles are not in dispute in the present appeal and both
the appeals are filed on limited grounds the same are required
to be decided in narrow compass. The deceased was riding the
motorcycle bearing Reg. No.GJ-09-CE-1671, whereas, the
injured was a pillion rider on the said motorcycle. The
respondent no.1 is owner-cum-driver of Tata Magic bearing Reg.
No.GJ-07-VW-6981 and the respondent no.2 is the insurer of the
Tata Magic – offending vehicle.
7) Having heard the learned Advocates for the respective parties, it
appears that the common issue in both the appeals is the issue
of liability fasten on the respondent no.1 only as he was not
holding the Driving License on the day of accident. The learned
Tribunal has taken into consideration that the Insurance
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Company had disputed the liability by filing written statement
and stated that the driver of offending vehicle was not holding
Driving License on the date of accident. Hence, the Insurance
Company is not liable to indemnify the claim. To prove the same
the Insurance Company has examined the Investigating Officer
at Exhibit 65, wherein, he has stated that during the
investigation he found that the driver was not having any
Driving License and in the police statement the driver of
offending vehicle has stated that he has not applied for Driving
License but he has admitted that due to mistake or inadvertence
Section 3, 181 of the MV Act have not been invoked against the
driver for not holding Driving License. To prove the said defence
the Insurance Company has also examined two witnesses i.e.
the Officer of Insurance Company at Exhibit 70, wherein, he has
stated that at the time of accident, the driver was not having
any Driving License and further also admitted that the Insurance
Company had issued a notice as per Section 134(c) which is
produced on record at Exhibit 72, which was served upon the
owner cum driver through Registered Post A.D., which is
produced on record at Exhibit 73, but no Driving License was
produced. Further to prove the said defence the Insurance
Company has also examined RTO Officer at Exhibit 75, wherein,
he has stated that they had inquired with the office on the basis
of date of birth but no Driving License was available. Not only
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that he has stated that prior to 2010 there was no system of
updation on issuance of Driving License. If we consider the
documents of the aforesaid witnesses examined by the
Insurance Company it reveals that no clear evidence is produced
of the Insurance Company failed to prove that on the date of
accident the owner-cum-driver having no Driving License.
Further at the same time the Insurance Company has issued the
notice as per Section 134(c) which was duly served but the
respondent no.1 failed to rebut the said evidence or produced
any license and he did not appear to contest the petition.
Looking to the aforesaid facts being owner and driver of
offending vehicle he failed to produce Driving License and failed
to appear before this Court also.
8) Further, the insurance policy is a statutory contract entered into
between the insurer and the insured for the benefit of third
parties. The aforesaid ratio has also been followed by the
Hon’ble Apex Court in Shamanna vs. Oriental Insurance Co.
Ltd., reported in (2018) 9 SCC 650, wherein, while considering
Sections 147 and 149 of the Motor Vehicles Act, it has been held
that the victim of a motor vehicle accident is a third party, and it
is the statutory duty of the insurer to satisfy the award. The
principle of “pay and recover” has been reiterated, holding that if
the driver had no valid driving licence and there was a breach of
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policy conditions, the High Court ought not to interfere with the
order of “pay and recover” passed by the Tribunal. If the
Insurance Company has paid any amount, the mode of recovery
is also provided, and the insurer has the liberty to initiate
proceedings before the executing Court concerned, if the dispute
is between the insurer and the owner. In the present case, the
victims are third parties and has no concern with the inter se
terms and conditions of the insurance policy. Hence, in view of
the decisions of the Hon’ble Supreme Court in Anu Bhanvara &
Ors. vs. IFFCO Tokio General Insurance Co. Ltd. & Ors.,
reported in (2020) 20 SCC 632; Sunita & Ors. vs. United
India Insurance Co. Ltd. & Ors.; and Rama Bai vs. M/s.
Amit Minerals, reported in 2025 INSC 1162, the learned
Tribunal has committed error by not passing the order of “pay
and recover”.
9) Further, this Court deems it fit to refer to the judgment of the
Hon’ble Apex Court in Sadhna Tomar v. Ashok Kushwaha,
reported in 2025 ACJ 414, wherein, the Tribunal was pleased
to pass an award of compensation in favour of the claimant,
holding that the Insurance Company shall pay the amount of
compensation to the claimant and thereafter recover the same
from the driver and owner of the offending vehicle, who were
held jointly and severally liable, relying on the decision in
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National Insurance Co. Ltd. v. Swaran Singh, reported in
(2004) 3 SCC 297. The said view was affirmed by the High
Court, and the order of “pay and recover” was also upheld by
the Hon’ble Apex Court.
10) The Hon’ble Supreme Court in the cases of Shamanna (supra),
Rama Bai (supra), and Swaran Singh (supra) has
consistently held that the insurer must first pay the
compensation amount to the third party and may thereafter
recover the same from the insured. Even though the insurer is
entitled to raise a valid defence regarding the driver not
possessing a valid driving licence under Section 149(2)(a)(ii) to
avoid liability, and even if the conditions of law are satisfied to
absolve the insurer from paying the compensation, the doctrine
of “pay and recover” continues to apply.
11) In view of the above, the Hon’ble Apex Court has already
decided the issue in Swaran Singh (supra). Considering the
subsequent pronouncements discussing the scope of the ‘pay
and recover’ order and the benevolent object of the legislation,
the principle of ‘pay and recover’ reflects judicial empathy
ensuring that victims are not left uncompensated due to
disputes between the owner and the insurer. At the same time,
considering contractual accountability, an owner who breaches
the conditions of the policy cannot escape financial
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responsibility, as insurers retain the right to recover the amount
paid to the claimant. This dual balance justice to the victim and
fairness to the insurer strengthens the integrity of the Motor
Vehicles accident compensation system.
12) In view of above discussion, as the victims have nothing to do
with the alleged breach of condition of policy, it is expedient to
pass order of pay and recover. Accordingly, the respondent no.2
– Insurance Company is directed to pay the amount of
compensation determined by the Tribunal in both the MAC
Petitions, with liberty to recover the same from the owner of the
offending vehicle in accordance with law.
13) Since the methods of calculation of quantum in injury case and
fatal case are different, the same are dealt with separately
hereinafter.
FIRST APPEAL NO.3068 of 2022
(MAC PETITION NO.1079 of 2013)
14) The another ground raised by the appellants is that the learned
Tribunal has considered the monthly income of the deceased as
Rs.2,86,856/- per annum instead of Rs.3,27,232/- per annum
by relying upon the Form No.16 of the deceased produced on
record. To prove the income of the deceased the appellants have
produced the Form No.16 before the learned Tribunal at Exhibits
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38 and 39 for the AYs 2011-12 and 2012-13. If we peruse the
same, it appears that income of the deceased in the respective
Form No.16 is shown as Rs.2,34,873/- and Rs.3,27,372/- and
therefore, the learned Tribunal has considered average yearly
income of the deceased at Rs.2,86,856/-. The Hon’ble Supreme
Court in the case of Nidhi Bhargava v. National Insurance
Co. Ltd. reported in 2025 SCC OnLine 872, wherein the
Hon’ble Supreme Court in paragraph 12 has observed and held
as under:
“12. Just because on the date of the accident i.e.,
12.08.2008, the Return for the Assessment Year 2008-
2009 had not been filed, cannot disadvantage the
appellants, for the reason that the period for which the
Return is to be submitted covers the period starting 1 st of
April, 2007 and ending 31st March, 2008. Thus, for
obvious reasons, the Return would be only for the period
01.04.2007 to 31.03.2008, and date of submission would
be post-31.03.2008. No income earned beyond
31.03.2008 would reflect in the Income Tax Return for the
Assessment Year 2008-2009. To reject the Return on the
sole ground of its submission after the date of accident
alone, in our considered view, cannot be legally sustained.
13. … In K Ramya v. National Insurance Co. Ltd., 2022
SCC OnLine SC 1338, after taking note of, inter alia,
Ningamma v. United India Insurance Co. Ltd., (2009) 13
SCC 710, the Court held that the ‘…Motor Vehicles Act of
1988 is a beneficial and welfare legislation that seeks to
provide compensation as per the contemporaneous
position of an individual which is essentially forward-
looking. Unlike tortious liability, which is chiefly concerned
with making up for the past and reinstating a claimant to
his original position, the compensation under the Act is
concerned with providing stability and continuity in
peoples’ lives in the future. …’
15) Relying on the said decision, in the case of Sayar Ram vs. Ram
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Kara rendered in SLP (Civil) No. 24501/2025, the Hon’ble
Supreme Court in paragraph 12 has observed & held as under:
“12. What flows from Nidhi Bhargava (supra) is that the
Income Tax Returns filed after the accident/death can also
be taken into consideration for calculation of income to
award compensation. However, having due regard for the
Tribunal’s well-placed doubts, in so far as returns filed for
the relevant year, we take a different approach. In the
instant case, it cannot be simply assumed that there is no
profit accruing from the business of the deceased at the
time of the accident. To adopt such a presumption would
be contrary to the settled principles guiding the
assessment of compensation. Rather, the returns for the
preceding year or years must be taken as a foundational
benchmark, subject to careful judicial examination,
recognizing that business profits are seldom static and
often exhibit a progressive growth trajectory. The exercise
thus calls for a fair and reasonable assessment, grounded
in available evidence, of the financial benefits that the
deceased would have justifiably earned but for the
untimely accident. In our considered view, in order to
award just and fair compensation, the annual income of
the deceased is re-assessed at Rs.3,50,000/- per annum.”
16) Hence, in considered view of this Court, in view of the decision
of the Hon’ble Supreme Court in the case of Malarvizhi & Ors
vs. United India Insurance Company Limited & Anr.
reported in 2020 ACJ SC 526, annual income of the deceased is
required to be reassessed at Rs.3,19,264/-. Accordingly, the
monthly income of the deceased is reassessed as Rs.26,605/-
per month. Further, as the deceased was aged 32 years at the
time of accident and was serving in Central Reserve Police Force
having permanent job and on the basis of which the learned
Tribunal has considered future prospective income as 50% and
as the deceased left behind 4 dependents 1/4 deduction towards
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personal and living expenses of the deceased and multiplier of
16 were considered by the learned Tribunal as per the judgment
of the Apex Court in the case of Sarla Verma (Smt) & Ors.
Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC
121] and National Insurance Company Ltd. Vs. Pranay
Sethi, reported in 2017 ACJ 2700, which are just and proper.
17) Therefore, calculating the income of the deceased as
Rs.26,605/- and future prospect of 50% = Rs.13,303/- which
comes to Rs.39,908/- and 1/4 amount is required to be
deducted towards personal living expenses of the deceased
which comes to Rs.9,977/- and the net amount comes to
Rs.29,931/-. In view of above the amount under the head of
future economic loss is required to be reassessed as Rs.29,931/-
x 12 x 16 = Rs.57,46,752/-. Therefore, the appellants are
entitled to get additional amount of Rs.5,83,488/- under the
head of future economic loss.
18) Further, the learned Tribunal by relying on the judgment of
National Insurance Company Ltd. Vs. Pranay Sethi,
reported in 2017 ACJ 2700, has awarded total Rs.70,000/-
under the conventional heads, however, this Court is of the view
that amount is required to be reassessed as Rs.18,150/- towards
loss of estate, Rs.18,150/- towards funeral expenses. Therefore,
the appellants – original claimants are entitled for additional
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amount of Rs.6,300/- (i.e. Rs.18,150/- – Rs.15,000/- =
Rs.3,150/- towards loss of estate and Rs.18,150/- – Rs.15,000/-
= Rs.3,150/- towards funeral expenses).
19) Similarly, in view of ratio laid down by the Hon’ble Supreme
Court in the case of Magma General Insurance Co. Ltd., Vs.
Nanu Ram, reported in (2018) 18 SCC 130 and Janabai Wd/
o Dinkarrao Ghorpade & Ors., Vs M/s ICICI Lambord
Insurance Company Ltd., reported in 2022 LiveLaw (SC)
666, the learned Tribunal has committed error in awarding only
Rs.40,000/- each towards loss of consortium, however, in view
of above judgments the appellants – original claimants being
legal heirs of the deceased they are entitled for Rs.48,400/-
each towards the head of loss of consortium. Therefore, the
amount towards loss of consortium is reassessed as
Rs.1,93,600/- (i.e. Rs.48,400/- X 4). Therefore, the appellants
are entitled for additional amount of Rs.33,600/- under the
head of loss of consortium.
20) As discussed above, the appellants – original claimants are
entitled to get compensation computed as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future economic loss Rs.51,63,264/- Rs.57,46,752/-
including additional
amount of Rs.5,83,488/-
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compensation of Rs.53,53,264/-, however, as discussed above
the appellants are entitled to get additional amount of
Rs.6,23,388/- (Rs.59,76,652/- – Rs.53,53,264/-) with
proportionate costs and interest as awarded by the learned
Tribunal.
22) The Hon’ble Supreme Court in case of Nagappa Vs Gurudayal
Singh and others, reported in (2003) 2 Supreme Court
Cases 274, has observed that there is no restriction that
compensation could be awarded only up to the amount claimed
by the claimant and in an appropriate case, where from the
evidence brought on record if the Tribunal / Court considers that
the claimant is entitled to get more compensation than claimed,
the amount of compensation more than the claimed amount can
be awarded.
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FIRST APPEAL NO.3043 of 2022
(MAC PETITION NO.1080 of 2013)
23) With regard to quantum part the learned Tribunal has observed
that the petition is silent about the income of the appellant. In
her examination-in-chief at Exhibit 28, her occupation is
mentioned as household and therefore in absence of any
evidence the Tribunal has assessed her income as Rs.4,000/-
per month. However, as per the law laid down by the Hon’ble
Supreme Court in the case of Govind Yadav Vs. National
Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), that if
no proof of income is produced on the record then Tribunal has
to consider prevailing rate of minimum wages in absence of
evidence of monthly income of the claimant. In the present case
the accident occurred on 28.08.2013 and during that time the
appellant – injured was doing household work and the Tribunal
has assessed the income of the appellant as Rs.4,000/- per
month, whereas, the rate of minimum wages for unskilled
worker of prevalent time is Rs.5,300/-, therefore, the income of
the appellant is required to be enhanced and reassessed as
Rs.5,300/- per month. It appears that the learned Tribunal
has observed the age of the appellant as 29 years at the time of
accident and the learned Tribunal has committed error in not
considering future prospect, however, this Court is of the view
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that 40% addition towards future prospectus is required to
be awarded as per the case of National Insurance Company
Ltd. Vs. Pranay Sethi, reported in 2017 ACJ 2700.
24) Further, considering the age of claimant as 29 years at the time
of accident the Tribunal has considered multiplier of 17 which as
per the judgment of the Apex Court in the case of Smt. Sarla
Verma & Ors. Vs. Delhi Transport Corporation & Anr.
[2009 (6) SCC 121] is just and proper and no interference of
this Court is required. Further, the Tribunal has awarded
Rs.5,000/- towards Medical Expense; Rs.30,000/- towards pain,
shock and suffering and Rs.20,000/- towards transportation,
special diet and attendant charges which are just and proper.
25) So far the disability is concerned, as per the Disability Certificate
at Exhibit 33, disability is shown as 35% body as a whole. As per
the deposition of Dr. Shantiswaroop Ramjidas at Exhibit 32, if
the claimant takes physiotherapy her disability can be reduced.
Hence, the learned Tribunal has properly considered disability of
30% body as a whole.
26) Therefore, recalculating the income of the claimant as
Rs.5,300/- and future prospect of 40% = Rs.2,120/- which
comes to Rs.7,420/-. Now total income under the head of future
economic loss is required to be considered as Rs.7,420/- x 12 x
17 x 30% / 100 = Rs.4,54,104/-. Therefore, the appellant is
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entitled to get additional amount of Rs.2,09,304/- towards
future economic loss. Similarly, as this Court has reassessed
the income of the appellant the amount of Rs.8,000/- is required
to be enhanced to Rs.10,600/- towards loss of income
during the treatment.
27) As discussed above, the appellant – injured – original claimant is
entitled to get compensation computed as under:
Heads Awarded by Reassessed by this Court
Tribunal
Future economic loss Rs.2,44,800/- Rs.4,54,104/-
including additional
amount of Rs.2,09,304/-
Loss of income during Rs.8,000/- Rs.10,600/-
treatment including additional
amount of Rs.2,600/-
Medical expenses Rs.5,000/- Rs.5,000/-
Pain, shock and Rs.30,000/- Rs.30,000/-
suffering
Transportation, Rs.20,000/- Rs.20,000/-
special diet and
attendant charges
Total compensation Rs.3,07,800/- Rs.5,19,704/-
including total additional
amount of Rs.2,11,904/-
28) In view of above, as the Tribunal has awarded total
compensation of Rs.3,07,800/-, however, as discussed above
the appellant is entitled to get additional amount of
Rs.2,11,904/- (Rs.5,19,704/- – Rs.3,07,800/-) with
proportionate costs and interest as awarded by the learned
Tribunal.
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29) The Hon’ble Supreme Court in case of Nagappa Vs Gurudayal
Singh and others, reported in (2003) 2 Supreme Court
Cases 274, has observed that there is no restriction that
compensation could be awarded only up to the amount claimed
by the claimant and in an appropriate case, where from the
evidence brought on record if the Tribunal / Court considers that
the claimant is entitled to get more compensation than claimed,
the amount of compensation more than the claimed amount can
be awarded.
30) Hence, both the present appeals are partly allowed. The
judgments and awards dated 14.10.2019 passed by the learned
Motor Accident Claims Tribunal (Aux), Nadiad, in MAC Petition
Nos.1080 of 2013 and 1079 of 2013 stand modified to the
aforesaid extent. Rest of the judgment and award remains
unaltered.
31) In First Appeal No.3068 of 2022, the respondent no.2 –
Insurance Company shall deposit the said additional amount of
Rs.6,23,388/- along with interest as awarded by the Tribunal,
before the Tribunal within a period of four weeks from the date
of receipt of this order.
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NEUTRAL CITATION
C/FA/3043/2022 JUDGMENT DATED: 25/02/2026
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32) In First Appeal No.3043 of 2022 the respondent no.2 –
Insurance Company shall deposit the said additional amount of
Rs.2,11,904/- along with interest as awarded by the Tribunal,
before the Tribunal within a period of four weeks from the date
of receipt of this order.
33) As discussed above with regard to order of pay and recover, the
respondent no.2 – Insurance Company is directed to pay the
amount of compensation determined by the Tribunal in both the
MAC Petitions, with liberty to recover the same from the owner
of the offending vehicle in accordance with law. In view of the
law laid down by the Hon’ble Apex Court in Oriental Insurance
Co. Ltd. v. Nanjappan, (2004) 13 SCC 224, it is always open
for the Insurance Company to recover the amount from the
respondent no.1 by initiating appropriate proceedings before the
Executing Court, without being required to file a separate suit.
Further, to take appropriate steps against the owner of the
vehicle, i.e., respondent No.1 for furnishing security of amount
that the insurer is required to pay or paid to the claimants, and
the offending vehicle shall be attached as part of such security.
If necessity arises, the respondent no.2 – Insurance Company
may take assistance from the concerned Regional Transport
Authority also, and make request to the Executing Court to pass
appropriate orders in accordance with law.
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NEUTRAL CITATION
C/FA/3043/2022 JUDGMENT DATED: 25/02/2026
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34) The learned Tribunal is directed to recover or deduct the deficit
court fees on enhanced amount and thereafter disburse the
amount accordingly.
35) Award to be drawn accordingly.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
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