ORDER
M.V. Visa, J.
1. This appeal has been heard when it was listed for hearing under Order XLI, Rule 11 of the Code of Civil Procedure and with the consent of both the parties is being finally disposed of at this stage.
2. The appellant filed claim case No. 11 of 1989/14 of 1992 claiming compensation of Rs. 2 lacs stating therein that on 3.6.1989 in the morning her husband deceased Jagarnath Singh was travelling on a maxi bearing No. BHZ 8445 for going to Doudnagar. The vehicle in village Janauria on Aurangabad-Doudnagar road met with an accident and turned down causing death of deceased. The vehicle was being driven negligently and rashly by its driver Abdul Rahim Khan, respondent No. 2. Rameshwar Singh, respondent No. 1 is said to be the owner of vehicle and New India Assurance Company, respondent No. 3 is said to be the insurer of the vehicle. About the deceased, the claimant stated that he was a Government servant employed as Panchayat Sewak posted at Doudnagar Block and his monthly income was Rs. 2071.75 and he was aged about 50 years.
3. All the three respondents appeared and the Court of 1st Additional Sessions Judge-cum-Additional M.V. Claim Tribunal, Aurangabad, directed respondent No. 1 to pay a sum of Rs. 1,09,200/- together with a sum of Rs. 1,000/-as consolidated cost of litigation with interest @ 6% per annum from the date of filing of claim petition till the date of recovery and respondent No. 3 to pay a sum of Rs. 15.000/- with interest @ 6% per annum from the date of filing of claim petition till the date of recovery. Both the aforesaid respondents were directed to pay compensation within one month from the date of the order.
4. Being aggrieved by the order of Tribunal appellant filed this appeal on the ground that the Court below has committed error in calculating the compensation amount taking the pay of deceased as Rs. 1760/- per month and it has not taken into account medical allowance, house rent allowance, dearness allowance and fixed travelling allowance which together with the basic pay of deceased makes the monthly income of deceased as Rs. 2460/. The further grievance of the appellant is that the Tribunal has wrongly applied the multiplier as 9 considering his age at the time of accident as 51 years and if pay of deceased is calculated at the rate of Rs. 2460/- the amount of compensation will be Rs. 2,87,785/-.
5. Respondent Nos. 1 and 3 have appeared and contested the appeal but respondent No. 2 did not appear in spite of service of notice.
6. Learned counsel of appellant has argued that by considering letter No. 74 dated 17.1.1997 issued by B.D.O., Doudnagar which is marked as Ext. 4, the Tribunal has held that monthly income of deceased was Rs. 1760 per month which is not correct because a perusal of this document shows that on 31.5,1989 deceased was getting pay of Rs. 1760 besides medical allowance of Rs. 20/-, house rent allowance of Rs. 100/-, dearness allowance of Rs. 510/- and fixed travelling allowance of Rs. 707- per month and he was receiving the aforesaid amount. In para 2 of this letter it is further stated that the 5th Pay Revision Committee had fixed the pay of deceased at Rs. 1760 per month which is entered in his service book. The argument advanced on behalf of the appellant is that Tribunal has excluded all allowances including the dearness allowance which was admissible to deceased and for fixing compensation has taken into consideration the basic pay only. The lower Court record has been called for and perusal of Ext. 4 shows that Rs. 1760 was the basic pay of deceased at the time of his death and besides basic pay, he was getting Rs. 20/- as medical allowance, Rs. 100/- as house rent allowance, Rs. 510/- as dearness allowance and Rs. 70/- as fixed travelling allowance. Adding these allowances to the basic pay, monthly income of deceased comes to Rs. 2460/-.
7. From the judgment of the Tribunal I find that it has applied multiplier as 9 considering the age of the deceased at the time of his death as 51 years. So far the age of deceased was concerned, although in the memo of appeal appellant has stated that learned Court below has committed error in calculating compensation only for 9 years after holding that the age of deceased was of 51 years at the time of his death but in the claim petition itself age of deceased had been shown as 51 years and in her evidence the appellant clearly stated that her husband died on 3.6.1989 and had he remained alive he would have continued in service till one year after the date of her deposition. She was examined on 27.6.1995. So, according to her evidence, had her husband remained alive he would have continued in service till June, 1996. Admittedly, deceased died in the year 1989 and at the time of death of deceased, retirement age of a Government servant was 58 years. So I find that there is no dispute on the point that deceased at the time of his death was of 51 years. According to the Second Schedule of MV Act, 1988 (hereinafter to be referred to as the Act) multiplier in such type of cases is 11.
8. For the purpose of comoutation of compensation I find that monthly income of deceased at the time of his death was Rs. 2460/-. After deducting 1/3rd of this amount as personal expenses of deceased the balance comes to Rs. 1640/-and thus, the annual income of deceased comes to Rs. 1640 x 12 = Rs. 19,680.00. If it is multiplied with 11 it comes to Rs. 2,16,480/-. The Court below has allowed a sum of Rs. 1000A as consolidated cost of litigation. With this the total amount of compensation comes to Rs. 2,17,480/-. The Court below has allowed interest (c) 6% per annum from the date of filing of claim petition till its realisation. The appellant has not challenged this rate of interest,
9. The Tribunal by its award holding that the liability of respondent No. 3 was maximum upto Rs. 1500/- directed respondent No. 3 to pay a sum of Rs. 15,000/-out of the amount of award with interest @ 6% from the date of filing of claim petition till the date of recovery within one month to appellants and directed respondent No. 1 to pay balance amount of award with interest at the same rate within one month to appellants. While coming to a finding on the point of liability of respondent No. 3, the Insurance Company, the Tribunal taking into consideration the insurance policy which was marked Ext. A in which liability for passenger was limited to Rs. 15,000.
10. Learned counsel appearing on behalf of the appellants has argued that the order of Tribunal directing the Insurance Company to pay a sum of Rs. 15000/-only is not correct according to law and the Tribunal has committed error in holding that Insurance Company is liable to pay a sum of Rs. 15.000/- only particularly in view of the fact that earlier it had directed the Insurance Company to pay a sum of Rs. 25,000/- as ad interim compensation. From perusal of the original record of Tribunal which was called for and which has been received it appears that no doubt by its order dated 5.4.1991 the Court on the prayer of the appellants for payment of claim as provided under Section 140 of the MV Act directed the Insurance Company to pay a sum of Rs. 25,000/- to appellants within a month from the date of the order. Admittedly, the accident in this case is said to have taken place on 3.6.1989. In view of this fact the present case will be guided by the provisions of Motor Vehicle Act, 1939 (in short, the old Act) because Motor Vehicle Act, 1988 came into force from 1.7.1989. The statutory liability under the principle of no fault as provided under the provisions of Section 140 of the Act was earlier provided in Section 92-A of the old Act and on the date of accident maximum liability of Insurance Company under Section 92-A of the old Act was a sum of Rs. 15.000/- in respect of death of any person. The insurance policy which is Ext. A, also shows that Insurance Company had accepted liability for payment of compensation to third party in case of death up to a sum of Rs. 15,000/-only and it does not show that it had taken higher liability by accepting higher premium for payment of compensation to a third party in case of death. This matter has been considered by the Supreme Court in the case of New India Assurance Co. Ltd, v. C.M. Jaya and Ors. , when the Court by considering to decisions of Supreme Court in the cases of New India Assurance Co. Ltd. v. Shanti Bai and Amrit Lal Sood v. Kaushalya Devi Thapar, held that “in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the Insurance Company is neither unlimited nor higher than the statutory liability fixed under Section 95(2) of the Act.
11. I, therefore, find that the Tribunal has rightly held that liability of respondent No. 3 which is Insurance Company is limited upto Rs. 15.000/- only and it has rightly passed order directing the respondent to pay this amount with interest as indicated above.
12. In the result, this appeal is allowed against respondent No. 1 who is directed to pay a sum of Rs. 2,02,480/- with interest @ 6% from the date of filing of claim petition till its recovery to appellants within two months from today failing which the appellants are entitled to recover this amount through process of law. The balance amount of Rs. 15,000/- with interest @ 6% from the date of filing of claim petition till the date of its recovery will be paid to appellants by respondent No. 3 failing which appellants will be entitled to recover this amount through process of law and with this observation appeal against respondent No. 3 stands dismissed. It goes without saying that any amount if paid earlier by respondents or any of them to appellants will be adjusted against the amount to be paid as ordered above.