THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 2082 of 2005 JUDGMENT: The appeal is filed against the judgment dated 14.06.2005 in O.P.No.391 of 2002 on the file of the Motor Accident Claims Tribunal- cum-District Judge, Adilabad, whereunder for the death of the deceased Srinivas in a motor accident on 20.09.1999 a claim was made for Rs.20 lakhs and the lower Tribunal after considering the evidence and material on record, came to the conclusion that the claimants will be entitled for a sum of Rs.2,95,000/-. The insurance company and the owner of the vehicle were held liable to pay the compensation. The owner of the vehicle has not preferred any appeal and the insurance company is challenging the judgment about the extent of the liability. According to the appellant, the policy Ex.B-7 marked before the lower Tribunal shows that the risk is covered for 10 passengers and the extent of liability, which was covered is only Rs.1,00,000/- for each of the passengers and extra premium was collected to a tune of Rs.500/- and consequently the insurance company did not pay the entire amount. The lower Tribunal has taken into consideration the cases where the vehicle was not insured or where there was no proper license and applied the theory of pay and recover. In fact that theory of pay and recover is also not held to be good by virtue of the judgment of the Hon’ble Supreme Court in NEW INDIA ASSURANCE CO. LTD. v. ASHA RANI[1]. But, however, in this case since the liability under the policy was admitted to a tune of Rs.1,00,000/-, the insurance company cannot avoid the liability. Therefore, while confirming the order of the lower Tribunal for a sum of Rs.2,95,000/-, a sum of Rs.1,00,000/- shall be realized from the appellant herein and the balance shall be recovered from the owner of the vehicle. If any amount over and above Rs.1,00,000/- has been deposited or paid by the insurance company and received by the claimants, the amount can be recovered by the insurance company from the owner of the vehicle. Accordingly, the appeal is allowed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 14-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A.No. 2082 of 2005 DATE: 14-09-2011 MR [1] (2003)2 SCC 223