Ajoy Nath Ray, J. - (1.) This disposes of by a common order, a modification application made by the Insurance Company and also the appeal preferred by it. The Award which went against the appellant was for a principal sum of Rs. 1,06,500/- with interest at the rate of 6% per annum from the date of filing of the claim which dated 6.3.78. The Award was passed on 18.3.81 for granting compensation to the mother of the victim who was a 27 years old Diploma Holder Engineer.
(2.) In the beginning, after preferment of the appeal an order was passed granting stay upon deposit of Rs. 5,000/-. This deposit, according to the insurer, was made although later than within the time originally stipulated. By a subsequent order dated 2.8.95, since the earlier deposit had not been made in time, half the principal awarded sum, i.e., Rs. 53,000/- was directed to be deposited. On 6.12.95 this order was varied and the deposit which was called for was for the said sum, less : Rs. 5,000/-. This last order specifically made it peremptory and mandatory. The said balance sum of Rs. 48,000/- was never deposited. Instead the 1 variation application was made alleging that the Insurance Company could never be asked to deposit more than Rs. 5,000/-. The reason in support of the modification application and of the appeal is one and the same. It is submitted that at the material time, the Act which was in operation was the Motor Vehicles Act, 1939. Under Section 95, sub-section (2) (b) of the said Act, a person under the circumstances of the victim, could not get from the insurer more than Rs. 5,000/-. Several cases were relied upon by the appellant but the case most important is that of New India Assurance Co. Ltd. v. Krishan Pal Singh & Ors. reported in 2000(1) TAC 210 (SC), there the Supreme Court in Paragraphs 6 and 7 opined that the insurer's liability was limited to Rs. 5,000/-.
(3.) However, the specific limit of the above section was not made a subject of argument before the Tribunal. The Award does not mention this as a point of law argued before it at all. In the Memorandum of Appeal, the sum of Rs. 5,000/- as the outer limit is mentioned.;