- (1.) AMITAVA Lala, J. This is an appeal of the claimants arising out of the judgment and award passed on 9th April, 1992 by the Motor Accident Claims Tribunal, Basti. The motor accident claim case is admittedly filed under the old Act, i. e. , Motor Vehicles Act, 1939 (hereinafter in short called as the "act, 1939") since the accident took place on 29th August, 1988 prior to coming into force of the new Act, i. e. , Motor Vehicles Act, 1988 (hereinafter in short called as the "act, 1988") with effect from 1st July, 1989. The period of the policy expired on 22nd May, 1989, therefore, under no stretch of imagination it can be said that new Act will be applicable in the case of the claimants. Proviso under Section 147 (2) of the new Act, i. e. , Act, 1988 is categorical in this respect, which is as follows : "provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. "
(2.) NOW the question arose about the quantification of the compensation. A boy of six years age died in a road accident. The compensation awarded by the tribunal is to the extent of Rs. 25,200/ -. The claimants thought that the awarded amount is unjust, therefore, they preferred the instant appeal. The appeal has been contested between the claimants and the insurance company. Direction for payment of compensation was given against all the respondents, i. e. , the respondent Nos. 1 and 2, being driver and owner of the vehicle, as well as the insurance company, the respondent No. 3 herein. NOW question arose before this Court whether the liability of the insurance company is limited or unlimited in view of the applicability of Section 95 of the old Act, i. e. , Act, 1939. Section 110-B of the Act, 1939 speaks as follows : "110-B. Award of the Claims Tribunal.- On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 109-B, may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be : Provided that where such application makes a claim for compensation under Section 92-A in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter VII-A. " Section 95 (2) of the Act, 1939 is as follows : " (2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely- (a) where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle; (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, - (i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all; (ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger; (c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred; (d) irrespective of the class of the vehicle, a limit of rupees six thousand in all in respect of damage to any property of a third party. xxx xxx xxx Learned Counsel appearing for the insurance company contended that under no stretch of imagination the liability of the insurance company can be made beyond Rs. 50,000/-, which is prescribed under the relevant provisions in Section 95 (2) as above. In such circumstances, on the last occasion when the hearing was continuing, we wanted to go through the records to verify the policy. Today, at the time of hearing the copy of the policy was produced before this Court wherefrom we found that the liability is unlimited. Now, further question arose whether the insurance company even after making certain payments being limited or unlimited can be able to recover the same from the owner of the vehicle if the case of rash and negligent driving is made out. We are of the view that the law is not silent on that score and the order of the tribunal itself speaks for joint liability. Therefore, there is no bar for the insurance company to recover such amount from the owner, if it pays on his account. Learned Counsel appearing for the appellants first of all cited two decisions to establish before the Court that just compensation in case of children aged about between 5-10 years would be Rs. 2 lacs. Claim petition was also filed claiming Rs. 2 lacs. As there is no question of any income of the children, there is no question of any deduction. Therefore, the claimants are entitled to have Rs. 2 lacs. He cited a decision, which arose in connection with an accident took place in Tata Iron and Steel Company, reported in AIR 2001 SC 3218, Lata Wadhwa & Ors. v. State of Bihar & Ors. . Since it has been held only in case of just compensation but out of a writ petition not in respect of the motor accident claims, we wanted further hearing on the part of the appellants to establish whether the same is applicable here or not. He further cited a decision being 2002 (1) JCLR 468 (SC) : AIR 2001 SC 3660, M. S. Grewal & Anr. v. Deep Chand Sood & Ors. , wherein the decision of Lata Wadhwa (supra) was applied principally in case of motor accident even under the Fatal Accidents Act, 1855. The relevant portion is as follows : "34. In Lata Wadhwa's case, however, this Court came to a conclusion that upon acceptability of the multiplier method and depending upon the facts situation namely the involvement of TISCO in its tradition that every employee can get one of his child employed in the company and having regard to multiplier 15 the compensation was calculated at Rs. 3. 60 lacs with an additional sum of Rs. 50,000/- as conventional figure making the total amount payable at Rs. 4. 10 lacs for approach of the claimants of the deceased children. 35. The decision in Lata Wadhwa, thus, is definitely a guiding factor in the matter of award of compensation wherein children died under an unfortunate incident as noticed more fully hereinbefore in this judgment. "
(3.) LEARNED Counsel appearing for the insurance company by citing a Division Bench judgment of the Calcutta High Court reported in 2002 (3) TAC 453 (Cal), National Insurance Co. Ltd. v. Srimatya Basanti Mondal & Ors. , wanted to establish that there is no scope of any claim against the insurance company more than the fixed amount since the liability is limited. In that case there is a reference of the Supreme Court judgment being 2002 (1) JCLR 766 (All) : AIR 2002 SC 651, New India Assurance Co. Ltd. v. C. M. Jaya & Ors. , wherein a Five Judges' Bench of the Supreme Court considered the liability under the old Act i. e. Act, 1939 whether limited or unlimited. The relevant part is as follows : "the liability of Insurance Company could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term of clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to re-writing the statute or the contract of insurance, which is not permissible. " Initially, we were under the impression that even if in the earlier judgments of the Supreme Court in Lata Wadhwa (supra) and M. S. Grewal (supra) the amount has been enhanced upto the extent of Rs. 2 lacs, but if the statute does not permit, how it will be prescribed to pay. However, from the aforesaid judgments we can get the guideline. The guideline is that either it will be a statutory liability or it will be a contractual liability. If there is no contract for unlimited liability, it has to be guided by the statutory liability under Section 95 of the Act. But if the insurance policy speaks that the same is unlimited, it has to be governed by the principles of Section 110-B of the old Act, i. e. , Act, 1939. Therefore, there is no bar even under the statute unless and until it is hit by Section 95 of the Act itself. Since factually we find that the insurance policy is unlimited, there is no bar for the purpose of granting an unlimited compensation in favour of the claimants. Hence, the tribunal has committed an error in giving an award only to the extent of Rs. 25,200, which, according to us, is totally unjust in nature. Therefore, in disposing of the appeal we fix the liability of compensation to be paid to the claimants by the insurance company for a sum of Rs. 2,00,000 alongwith the interest, as awarded by the tribunal, at the rate of 12% simple interest in the light of the judgment of the Supreme Court in Lata Wadhwa (supra) as claimed by the appellants without any deduction since there is no question of income and dependency on account of death of a boy of six years old. However, the insurance company will be entitled to recover the said sum from the owner of the vehicle. The amount which has already been paid to the claimants will be adjusted. Thus, the appeal stands disposed of.;