R.S. Mongia, C.J.
1. The brief facts giving rise to the latters Patent Appeal at the behest of the Insurance Company may be noticed :
2. Respondent Mustt. Piarjan Bibi preferred a Claim Petition before the MACT, Kamrup, Guwahati in the year 1995 claiming compensation on account of the death of her husband, who died in an accident while he was travelling in a bus owned by Respondent No. 3. The further facts, which are not disputed, are that the bus in question in which the husband of the claimant was travelling was insured with the present appellant. It was the case of the Insurance Company that the company is not liable to pay any compensation, inasmuch as, there was violation of the terms of the insurance policy as the deceased was travelling on the roof of the bus when the accident occurred on account of which he died. According to the Insurance Company, if a passenger or a person travels on the roof of the bus, which amounts to violation of the terms of the permit and when the accident occurred for such violation the Insurance Company is not liable. The Tribunal after going into the evidence, awarded a compensation of Rs. 1,75,000 with interest @ 12% from the date of the claim petition till deposit was made. Against the award of the MACT the Insurance Company filed M.A. (F) 101/96 in this Court, which was dismissed on 22.2.2001.
3. While dealing with the point raised by the appellant that the Insurance Company was notliable as there was violation of the terms and conditions of the policy, the learned Single Judge observed as under:
'.... The only ground which is urged on behalf of the appellant is that the deceased was travelling on the roof top of the bus and it is urged that it is a breach of the policy and as such the Insurance Company is not liable. This aspect of the matter has been decided by a catena of decisions and if any authority is required, one may have a look at the recent decision of the Apex Court reported in AIR 1996 SC 2627 (Sohan Lal Passi v. P. Seeh Reddy and Ors.) wherein the Apex Court has pointed out as follows :
'The Tribunals and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds, unless it is established on the materials or record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act.'
It is common knowledge in India that person because of lack of proper transport has to travel like that and if the Insurance Company wants to avoid such liability, it must incorporate specific clause in the policy to that effect so that the owner of the vehicle is put on guard and without that being done, the Insurance Company cannot escape the liability and accordingly the appeal shall stand dismissed. However I leave the parties to bear their own costs.'
4. Hence the present LPA at the behest of the Insurance Company.
5. It may be observed here that learned counsel for the Respondent raised a point that LPA is not maintainable against the judgment of the learned single Judge. For the view we are taking in the matter we refrain ourselves from going into that point and rather we assume that LPA is competent.
6. Learned counsel for the appellant again urged the same point as was urged before the learned Single Judge that the Insurance Company is not liable, inasmuch as, there has been a violation of the terms of the Insurance Policy. We are of the view that the learned Single Judge rightly rejected the submission of the learned counsel for the appellant on the basis of the judgment of the Apex Court in Sohan Lal Passi v. P. Seek Reddy and Ors. AIR 1996 SC 2627. In that case the facts were that the owner of the vehicle who had duly insured his vehicle had appointed a licensed driver for driving the vehicle. However, that licenced driver had allowed the vehicle to be driven by an unauthorised person, who did not hold a driving license. Allowing by the appointed driver to drive the vehicle by an unauthorised person was not with the permission or knowledge of the owner. In these circumstances, the Apex Court held that the Insurance Company could not escape liability on the ground that at the relevant time when the accident occurred, the vehicle was being driven by an unauthorised person. Analogy on facts in the present case would be that the conductor or the driver was not to permit the violation of the terms of the permit by allowing the passenger to sit on the roof of the bus. However, if the conductor or the driver does so without the permission or knowledge of the insured, i.e., the owner, the Insurance Company cannot escape its liability. There is no evidence in the case that the violation, if any, by the conductor or the driver was with the permission of the owner (insured) or to his knowledge.
7. Faced with this situation, learned counsel for the appellant submitted that the Tribunal had awarded simple interest @ 12% P.A. on the amount awarded from the date of the claim application till its deposit, was not correct in law, inasmuch as, the rate of interest should be 9% per annum as at is the prevailing rate of interest. For this purpose learned counsel cited an Apex Court judgment reported in AIR 2001 SC 485 (S. Kaushnuma Begum and Ors. v. The New India Assurance Co. Ltd. and Ors.). Paragraph 24 of the said judgment is in the following terms :
'24. Now, we have to fix up the rate of interest. Section 171 of the M.V. Act empowers the Tribunal to direct that 'in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf. Earlier, 12% was found to be the reasonable rate of simple interest. With a change in economy and the policy of the Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9% on fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9% per annum from the date of the claim made by the appellants. The amount of Rs. 50,000 paid by the Insurance Company under Section 140 shall be deducted from the principal amount as on the date of its payment, and interest would be recalculated on the balance amount of the principal sum from such date.'
8. It may be observed here that in the case before the Supreme Court, the accident had occurred in the year 1986 and the claim petition had also been filed in the year 1986. However, the Tribunal dismissed the claim application, which was upheld by the High Court and the claimants preferred an appeal before the Apex Court and it was for the first time that the Apex Court found that in fact the claimants were entitled to compensation and it awarded a particular sum as compensation and it was under these circumstances that when the compensation was awarded on 3.1.2001 by the judgment of the Apex Court that interest @ 9% was awarded from the date of the claim application to the date of payment. What is deducible from the aforesaid judgment is that what is the prevalent rate of interest in the bank is to be seen on the date the amount of compensation is awarded. Since by the Apex Court the amount was awarded for the first time, the Apex Court awarded the prevalent rate of interest the bank which was 9%. However, in the present case, the Tribunal gave the award in the year 1996 when the prevalent rate of interest was 12%. If we were to agree with the learned counsel for the appellant that would mean that all appeals which may be pending against the award given by MACT many years back, in which 12% interest might have been awarded that will be reduced to 9%. We do not think that this is the intention of the Apex Court in the case referred to above. Learned counsel also pointed out to us that the learned Single Judge in his judgment observed that if the Insurance Company wants to avoid such liability, it must incorporate specific clause in the policy to that effect so that the owner of the vehicle would be put on guard. He submitted that by the aforesaid direction, the Insurance Company is obliged to put such a condition in the Insurance Policy. We do not think that the learned Judge meant to give any such direction to the Insurance Company to incorporate such a term. Without opining regarding the validity of such a term, we leave it to the Insurance Company whether to incorporate such a term or not.
Subject to the observations made above, we do not find any merit in this appeal, which is hereby dismissed.