JUDGMENT [ENTITY], J.
1. With the consent of the parties this appeal has been heard for its final hearing when it was listed under the heading for hearing under [SECTION] of the [ACT].
2. Appellants have filed this appeal against the judgment dated 2.5.2000 and award dated 17.5.2000 passed by 2nd Additional District Judge cum Claim Tribunal, Jehanabad, in [CASE NUMBER] for enhancement of amount of compensation and 12 per cent interest from the date of filing of the claim petition before the Tribunal.
3. [ENTITY] aged about 5 years was son of appellant Nos. 1 and 2 and brother of remaining appellants. On 6.2.1987 at about 4.45 p.m. appellant No. 1 came from Kurtha on his Moped and stopped the Moped before his house and at that time deceased [ENTITY] was coming near him by the left flank of road when a truck bearing registration No. BRV 8755 which was being driven negligently and rashly by the truck driver crushed [ENTITY] who died at the spot. The appellants filed petition under [SECTION] of [ACT] for compensation amounting to Rs. 2 Lacs with interest at the rate of 18% per annum pendente lite. The Tribunal awarded a sum of Rs. 25,000/- as compensation with interest at the rate of 9% from 8.5.1995 and ordered the respondent to pay the amount within three months. It was also ordered that the amount paid to the appellants as interim compensation, if any, shall be adjusted in the amount of the award.
4. Appellants have preferred this appeal on the grounds that Tribunal has wrongly assessed the quantum of compensation ignoring the mental and emotional injury and future economic prospect of deceased and Tribunal also failed to appreciate the family background and other consideration and amount awarded by the Tribunal is not reasonable and proper. It is also claimed that the Tribunal completely omitted to consider the effect of [ACT] by which second schedule was added to [ACT] for determination of compensation in cases where death has occurred, fixing minimum income for non earning person at Rs. 15,000/-per annum and multiplier of 15 upto the age of 15 years and in this way the compensation payable in the present case comes to Rs. 2,25,000/- besides funeral expenses and interest from the date of filing of the claim application. It is further stated that in the present case compensation has been ordered to be paid from 8.5.95 whereas the claim petition was filed on 8.4.87 and the Tribunal has wrongly excluded the period from filing of the claim petition to 8.5.95 on the ground that during this period the case of appellants was dismissed for default on 10.1.94 and it was restored on 8.5.95. According to the appellants, the case stood dismissed for default on the ground of transfer of case from Gaya to Jehanabad when Jehanabad was bifurcated from Gaya district and was declared as a district.
5. In the memo of appeal owner and driver of the vehicle were added as respondents No. 1 and 2 but during the pendency of appeal, by order dated 24.2.2004 of this Court appellants were permitted to expunge their names at their risk. In this view of the matter, now respondent No. 3 remains the only respondent who has contested the appeal.
6. Learned Counsel of contesting respondent has argued that accident took place on 6.2.1987, therefore, the present case will be guided by the [ACT]. The fact that accident in this case took place on 6.2.1987 is not in dispute. In the case of [PRECEDENT] it has been held that the liability of an insurer would be to the extent of legal provision as it stood on the date of accident. In this view of the matter, this case under consideration will be guided by the provisions of [ACT] (in short, old Act).
7. The fact that the vehicle involved in the accident was a truck bearing registration No. BRV 8755 which was insured on the date of occurrence by the contesting respondent, is admitted. A copy of Insurance Policy was produced before the Tribunal which was marked Ext-A showing that liability of respondent was limited to Rs. 50,000/-. The fact that liability of respondent was limited to Rs. 50,000/- has not been challenged by appellants. Finding the liability of Insurance Company upto Rs. 50,000/-the Tribunal fixed the compensation of Rs. 25,000/- after holding that amount of award, interest and cost shall not exceed the insured sum of Rs. 50,000/-. The grievance of appellants is that quantum of compensation is not adequate and the Tribunal completely omitted to consider the effect of [ACT] by which [SECTION] was added to [ACT] (hereinafter to be referred as new Act) for determination of compensation. According to the appellants, the compensation should have been calculated on the basis of [SECTION] of the new Act.
Learned Counsel appearing on behalf of the appellants has relied upon the decision of the Supreme Court in the case of [PRECEDENT]. in which compensation was awarded to appellant on a structured formula basis as set out in second schedule of the new Act although in that case accident had taken place on 20.3.1986. The Tribunal on the point of liability of Insurance Company has considered the decision of this Court in the case of [PRECEDENT]. In that case it was held that since the vehicle was insured with limited liability, therefore, the Tribunal was not right in holding that owner and insurer are jointly and severally liable to pay Rs. 1,50,000/- The Court further finding that in the award it was not specified how much amount shall be paid by the owner of the vehicle and how much amount shall be paid by Insurance Company, passed order directing the Insurance Company to pay Rs. 50,000/- and the owner to pay Rs. 1,00,000/-.
8. The present case is fully covered by a decision of the Supreme Court in the case of [PRECEDENT]. . In this decision a Bench of 5 Judges of the Supreme Court finding some apparent conflict in two three Judge Bench decisions in the case of New India Assurance Co. Ltd. v. [ENTITY] and [ENTITY] v. Kaushalya Devi Thapar , on the question of the extent of the liability of the insurer in such cases, referred the matter to a larger Bench. In this case, the Supreme Court held as follows :
9. In [ENTITY] Case a Bench of three learned Judges of this Court, following the case of [ENTITY] has held that:
(i) a comprehensive policy which has been issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third-party risk for an amount higher than the statutory limit.
(ii) that even though it is not permissible to use a vehicle unless it is covered at least under an "Act only" policy, it is not obligatory for the owner of a vehicle to get it comprehenstively insured, and
(iii) that the limit of liability with regard to third party risk does not become unlimited or higher than the statutory liability in the absence of specific agreement to make the insurer's liability unlimited or higher than the statutory liability.
10. On a careful reading and analysis of the decision in [ENTITY] it is clear that the view taken by the Court is no different. In this decision also, the case of [ENTITY] is referred to. It is held :
(i) that the liability of the insurer depends on the terms of the contract between the insured and the insurer contained in the policy;
(ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby risk to the gratuitous passenger could also be covered; and
(iii) in such cases where the policy is not merely statutory policy, the terms of the policy have to be considered to determine the liability of the insurer.
Hence, the Court after noticing the relevant clauses in the policy, on facts found that under [SECTION] of the policy, the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to "any person". The expression "any person" would undoubtedly include an occupant of the car who is gratuitously travelling in it. Further, referring to the case of [ENTITY] it was observed that the said decision was based upon the relevant clause in the insurance policy in that case which restricted the legal liability of the insurer to the statutory requirement under [SECTION] of the Act. As such, that decision had no bearing on [ENTITY] case as the terms of the policy were wide enough to cover a gratuitous occupant of the vehicle. Thus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the differences in [ENTITY] case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in the policy. The said decision cannot be read as laying down that even though the liability of the Insurance Company is limited to the statutory requirement, an unlimited or higher liability can be imposed on it. The liability 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] 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 or 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 rewriting the statute or the contract of insurance which is not permissible.
The Supreme Court answered the question which was referred to it for consideration by giving the following finding :
14. In the premise, we hold that the view expressed by the Bench of three learned Judges in the case of [ENTITY] is correct and answer the question set out in the order of reference in the beginning as under:
In the case of the Insurance Company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, the Insurer would be liable to the extent limited under [SECTION] of the Act and would not be liable to pay the entire amount.
9. In the present case, there is nothing on the record to show that the respondent who is admittedly the Insurance Company had liability by accepting a higher premium for payment of compensation to a third party. Therefore, according to the principle laid down by the Supreme Court in the case of [PRECEDENT]. (Supra) the liability of Insurance Company would be to the extent limited under [SECTION] of the old Act which was Rs. 50,000/-.
10. On the point of interest I find that the Tribunal in its judgment has observed that as a general rule interest is payable from the date of filing of the claim application. It is also observed that the application for claim of compensation was filed on 8.4.1987 but it has granted interest @ 9 per cent from 8.5.1995 after observing that the case was dismissed for default on 10.1.94 and it was restored on 8.5.1995. So, I find that only for a period from 10.1.94 to 8.5.95 when the case remained pending for restoration after its dismissal, the Tribunal has denied the appellants the interest for the period from 8.4.87, the date of filing of application for compensation to 10.1.1994 when the case was running.
The case of the appellants is that the petition for claim was filed on 8.4.1987 in the Court of District Judge, Gaya and when Jehanabad which was a sub-division of Gaya district was declared as a district all the case records were transferred from Gaya to Jehanabad but appellants had no knowledge of this fact and therefore, the case was dismissed.
11. Considering the aforesaid fact I find that the Tribunal was not justified in refusing the interest to appellants on the awarded compensation from 8.4.1987, the date of filing of the application for compensation. About the amount of compensation I find that the Tribunal by relying upon the decision reported in 1994 TAC page 156 of Orissa High Court where it was held that in case of children above 5 years and below 10 years of age it will not be possible to ascertain a suitable multiplier because of the fairly higher mortality rates in that period and future of child is uncertain fixed the compensation at Rs. 25,000/-. The case of the appellants is that deceased was aged about 5-6 years and was a brilliant student of Class I and appellant No. 1 who is father of deceased is a doctor by profession. According to the appellants, Tribunal failed to appreciate and consider the family status, and economic graph of the appellants if deceased would have not died in the accident.
12. Considering the entire material on record I find that compensation of Rs. 25,000/- is not adequate and the amount of compensation, therefore, is enhanced from Rs. 25,000/- to Rs. 50,000/-.
13. The further case of appellants is that after passing judgment on 2.5.2000 the Tribunal by subsequent order dated 9.5.2000 passed order that the amount paid to the appellants as interim compensation shall be adjusted in the amount of award to be prepared. Learned counsel for appellants has argued that subsequent order was passed behind the back of appellants and besides this, after passing the award on 2.5.2000 the Tribunal has become functus officio and it had no jurisdiction to amend the award. It is the own case of appellants that the order for interim compensation for Rs. 25,000/- was passed on 3.4.96 but that has remained unpaid to appellants in spite of certificate proceeding and they have not received this amount. In this view of the matter I do not find any necessity to discuss this issue any further.
14. In the result, this appeal is allowed in part. The amount of compensation is enhanced from Rs. 25,000/- to Rs. 50,000/- with interest @ 9% from 8.4.1987, the date of filing of the application for compensation till the date of realisation of the amount of award. Respondent No. 3 is directed to pay the aforesaid amount to claimant appellants within a month from today failing which claimant appellants will be entitled to get the amount recovered from Respondent No. 3 in according with law.
15. No cost.