Doctrine of Pay and Recover in Motor Vehicle Act - Accident Cases

In this recent case, Shamanna v. The Divisional Manager, Oriental Insurance Co. Ltd. 

Date of Judgment: August 08, 2018

In the present case, the driver of the offending vehicle had no valid driving licence, at the time of the accident. This was clear violation of the terms of the insurance policy. The Tribunal had directed the insurance company to pay the compensation to the claimants and granted liberty to the insurance company to recover the same from the owner of the offending vehicle as "Pay and Recover".

In this particular case, the court held that it is the duty or obligation of the insurance company to prove that the driver had no valid driving license and such things lead to the breach of terms and conditions of the policy “pay and recover”  which can be ordered in cases of third-party risks. 

The High Court in appeal however held that only the owner of the offending vehicle was liable to make the payment of the compensation amount and that the Tribunal had no power to order for “pay and recover”.

The Supreme Court however held that the High Court could not interfere with the Tribunal’s order and that there was nothing in law or precedents which mandated that the power to order for pay and recover could be made by the Supreme Court only under Article 142 of the Constitution of India. Other observations made by the Supreme Court in the case are as under:

That as per the decision in National Insurance Company Ltd. v. Swaran Singh and others, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured.

In this particular case, the court held that it is the duty or obligation of the insurance company to prove that the driver had no valid driving license and such things lead to the breach of terms and conditions of the policy “pay and recover”  which can be ordered in cases of third-party risks. 

Holding on to the decision of Laxmi Narain Dhut, the apex court directed the insurance company to pay the amount of compensation to the claimant accordingly and also said, “So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. vs. Nanjappan and others (2004) 9 13 SCC 224 where this court was held. Also, said, "…that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit." It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer”. 

Doctrine of “pay and recover” implies the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving licence of the driver and in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured.