JUDGMENT : 1. Heard, Shri Deepak Kumar, learned counsel for the appellant and Shri U.P.S. Kushwaha, learned counsel for the respondent no.1 New India Assurance Company Ltd. 2. The instant appeal has been filed for modification of the judgment and award dated 17.02.2005 passed in claim petition no. 35 of 1988; Smt. Pramila Chopra and others versus New India Assurance Company Ltd. and others by Motor Accident Claims Tribunal, /Additional District Judge, Court no. 1, Lucknow by means of which the claim petition has been partly allowed and enhancement of the amount of compensation. 3. The brief facts of the case for adjudication of the present appeal are that on 18.06.1988 deceased Madan Chopra was coming from Bareilly to Kanpur by Jeep no. UMF-6695. When he reached near village Dinmayapur Vivku at about 08:30 A.M. within the circle of Police Station Shahabad, district Hardoi, a Matador no. DBL- 6897 coming from the opposite side, driven by it's driver rashly and negligently, dashed the jeep of the deceased. The Madan Chopra, died on the spot on account of injuries sustained by him in the accident. The deceased was travelling as a passenger in the jeep. The jeep was being plied on a normal speed. The entire responsibility of the accident rests on the owner and the driver of the matador. The owner of the matador no.DBL-6897 is responsible vicariously along with the driver of the matador, and liable to pay compensation to the respondents/petitioners who are wife, son and daughter of the deceased. With the aforesaid the claim petition was filed claiming compensation. 4. The respondents filed their written statements. On the basis of pleadings of the parties, two issues were framed. The first issue, is as to whether Madan Chopra died due to rash and negligent driving of matador no. DBL 6897. The issue was decided holding that the Madan Chopra died on 18.06.1988 due to rash and negligent driving of matador no. DBL 6897 and jeep no. UMF 6695 and the drivers of both the vehicles are responsible for the alleged accident, as such, there was composite negligence of the drivers of both the vehicles in the accident. 5. The second issue as to whether the petitioners are entitled to get compensation, if yes, its amount and from which of the opposite parties, has been decided assessing the total amount of compensation as Rs.3,02,980/-. 5. The second issue as to whether the petitioners are entitled to get compensation, if yes, its amount and from which of the opposite parties, has been decided assessing the total amount of compensation as Rs.3,02,980/-. However, the learned Tribunal held that since there was composite negligence of both the drivers and the petitioners have claimed compensation only from the owner, driver and Insurance company of matador no. DBL 6897, therefore they are entitled to get only half of the amount from them and the remaining amount can be claimed from the other vehicle. 6. The learned tribunal partly allowed the claim petition for an amount of Rs.1,51,490/- along with interest at rate of 8 per cent per annum from the date of filing of petition till the realization of the amount excluding the interest for the period from 18.05.1994 to 01.05.1999 as the claim petition was dismissed in default on 18.05.1994 and the restoration application was moved on 01.05.1999. It has further been provided that the compensation shall be realized first from the respondent no. 1 i.e. New India Assurance Company Ltd and each of the petitioner shall get one third share. 7. Being aggrieved, the instant appeal has been filed for enhancement of the amount of compensation as claimed in the claim petition and to modify the judgment and award dated 17.02.2005 passed by the MACT. 8. Learned counsel for the appellant had submitted that the learned tribunal has come to the conclusion that the deceased Madan Chopra had died in the accident between the matador no. DBL 6897 and Jeep no. UMP 6695 on account of rash and negligent driving of their drivers and there was composite negligence of the drivers of both the vehicles in the accident. But wrongly and illegally deducted 50 per cent of the amount of compensation assessed by the Tribunal on the ground that the appellant/claimants have claimed compensation only from the owner, driver and Insurance company of matador no. DBL 6897. While it is a settled law that in the case of composite negligence both are liable for payment of compensation jointly and severely. Therefore, the appellant/claimants are entitled for payment of the total compensation from the owner/driver/insurance company of any of the vehicle involved in the accident and they are liable to pay the total compensation and they may recover it from the other. 9. Therefore, the appellant/claimants are entitled for payment of the total compensation from the owner/driver/insurance company of any of the vehicle involved in the accident and they are liable to pay the total compensation and they may recover it from the other. 9. He had further submitted that the deceased Madan Chopra was an employee in the UP Handloom Corporation. He was getting a salary of Rs. 4376/- per month. In proof, there of a salary certificate vide paper no. C-40 issued by the Corporation was filed, which was also proved by adducing oral evidence of Shri Kuber Nath as PW 1 who was an employee in the UP Handloom Corporation. The learned tribunal also came to the conclusion that the total salary of the deceased was Rs. 4376/- but considered only Rs. 3335/- on the ground that it has been mentioned in Para 6 of their petition. Once the income of the deceased was proved by oral as well as documentary evidence the learned tribunal ought to have considered the same for assessing the compensation. 10. He had further submitted that no future prospects have been allowed while the appellant is also entitled for the future prospects and lesser amounts have been allowed towards conventional heads which are also liable to be enhanced. The learned counsel for the appellant lastly submitted that the learned tribunal has wrongly and illegally disallowed the interest with effect from 18.05.1994 to 01.05.1999. While once the application for recall of the order and restoration of the claim petition was allowed, the appellant/claimants are entitled interest for the whole period. 11. Per contra, learned counsel for the respondent no.1; insurance company had submitted that the date of accident in the instant case is 18.06.1988 and the new Motor Vehicles Act, 1989 came into effect w.e.f. 01.07.1989. Therefore, the accident in question was governed by the Motor Vehicles Act, 1939 under which the liability of the insurance company was limited under section 95(A)(2) to the extent of Rs.1,50,000/- as the vehicle insured was a goods vehicle. It was further submitted that policy was an act policy and for any additional liability the extra premium was to be paid, which was not paid. It was further submitted that since the awarded sum by the tribunal was Rs. It was further submitted that policy was an act policy and for any additional liability the extra premium was to be paid, which was not paid. It was further submitted that since the awarded sum by the tribunal was Rs. 1,51,490/- along with interest which has already been satisfied by the insurance company, therefore any additional liability, in case the appeal is allowed, should not be saddled on the insurance company since it has already exhausted its liability. He had also submitted that the applicability of the old act on the accident in question was a question of law which need not be pleaded but the learned tribunal, without considering the same, has allowed the claim-petition on the basis of the new act. 12. On the basis of affidavit filed in compliance of the order passed by this court learned counsel for the respondent no.1 had also submitted that in view of the India Motor Tariff three types of policies were issued. The comprehensive insurance of the vehicle and payment of higher premium on this score does not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability. The additional benefits under the commercial vehicle tariff were not applicable to motor trade road risk as per Annexure No.C to the affidavit. He had also pointed out that offending vehicle was covered under Clause A(2) and for any additional liability the additional premium was to be paid, which was not paid in the instant policy therefore the answering insurance company is not liable to make the payment of any amount enhanced by this Court. He had further submitted that interest for the period from the date of dismissal of the claim petition up to the date of recall and restoration of the claim petition is not admissible because in that there was no fault of the insurance company. However, he submitted that in regard to the claim of the petitioner regarding income of Rs.4376/- in place of Rs.3335/- and composite negligence there is no quarrel. 13. On the basis of above, learned counsel for the insurance company had submitted that the appeal is liable to be dismissed against the answering insurance company. 14. I have considered the submissions of learned counsel for the parties and perused the record. 15. 13. On the basis of above, learned counsel for the insurance company had submitted that the appeal is liable to be dismissed against the answering insurance company. 14. I have considered the submissions of learned counsel for the parties and perused the record. 15. The undisputed facts are that the deceased- Madan Chopra had died in the accident on 18.06.1988 while he was travelling in jeep no.UMF 6695 and the driver of the matador no. DBL 6897 came from the opposite side and dashed the jeep. The claim petition filed by the appellants in regard to the accident in question has been allowed and an amount of Rs.3,02,980/- has been assessed as compensation by the learned tribunal out of which, on account of composite negligence of the drivers of both the vehicles, the tribunal has directed to the respondent insurance company to pay Rs.1,51,490/- along with interest @ 8% per annum from the date of filing of the petition till the date of realization excluding the interest for the period from 18.05.1994 to 01.05.1999, the period within which the claim petition was dismissed and application for restoration was filed. 16. The deceased- Madan Chopra aged about 52 years was employed as Marketing Inspector in U.P. Handloom Corporation. He was getting a salary of Rs.4676/-. The last pay certificate of the deceased was filed as paper No.C40. The salary certificate was proved by Shri Kuber Nath, PW-1, who was an employee in the U.P. Handloom Corporation. He has specifically stated that the deceased was drawing monthly salary of Rs.4376/- on the date of accident i.e. 18.06.1988. But since the appellants had mentioned the income of the deceased as Rs.3335/- in the claim petition, therefore, that amount has only been taken into consideration for assessing and calculating the compensation, which could not have been done by the learned tribunal. The deceased was an employee of the corporation and his certificate of last pay was filed which were proved by documentary and oral evidence of an employee of the Corporation, the same was liable to be considered for determining the compensation. It is settled proposition of law that the tribunal has to consider and award the just compensation. Therefore, the income of the deceased for determining the compensation at the time of accident was Rs.4376/- per month. 17. The Hon'ble Apex Court in the case of Jitendra Khimshankar Trivedi & Others Vs. It is settled proposition of law that the tribunal has to consider and award the just compensation. Therefore, the income of the deceased for determining the compensation at the time of accident was Rs.4376/- per month. 17. The Hon'ble Apex Court in the case of Jitendra Khimshankar Trivedi & Others Vs. Kasam Daud Kumbhar & Others; 2015 (1) TAC 673, has observed that it is obligatory on the part of the courts / the tribunals to award just and reasonable compensation. The Hon'ble Apex Court, in the case of Ramla Vs. National Insurance Company Limited; (2019) 2 SCC 192 , has held that grant of amount in excess of claimed is permissible because a "just compensation" is one which is reasonable, based on evidence produced on record. 18. The next question for consideration is the deduction of 50% of the amount of compensation assessed by the tribunal on account of contributory negligence of drivers of jeep no.UMF 6695 and the driver of the matador no. DBL 6897. The present case can not be a case of contributory negligence because in the case of contributory negligence the person himself contributes to the accident for which he can not claim any compensation. In the present case the deceased- Madan Chopra was travelling in the jeep no.UMF 6695 and as per finding recorded by the learned tribunal the accident had occurred due to negligence of drivers of both the vehicles i.e. the jeep and the metador. Therefore, the deceased can not be said to have contributed in the happening of the accident and it can be on account of the composite negligence of the drivers of both the vehicles that the deceased had died in the accident in question. It has also been held by the tribunal that both the drivers were responsible. However, if the owner, driver and insurer of the jeep no.UMF 6695 were not impleaded the learned tribunal was not justified in determining the extent of composite negligence of drivers of both the vehicles in absence of evidence of other driver and awarded only half of the compensation assessed by it from the insurance company of the vehicle which was impleaded. 19. 19. The learned tribunal, has recorded a finding that it appears that alleged accident had occurred on the middle of the Damar road due to rash and negligent driving of both the vehicles and there had been a head on collision between the two vehicles. It appears that being impressed by the evidence to the effect that the accident had occurred on account of head on collision in the middle of the road, the learned tribunal has recorded a finding of negligence by both the drivers while such finding should have been recorded on the basis of the cogent evidence and not on probability. In the present case the driver of matador has also given evidence contrary to stand in written statement which has been categorically recorded by the tribunal therefore it is not believable at all. Learned counsel for the respondent insurance company had also not disputed the fact of composite negligence in the present case. 20. The Hon'ble Apex Court considered the difference between the contributory and composite negligence in the case of Khenyei Vs. New India Assurance Company; 2015 (2) TAC 677 (SC) and held that in the case of contributory negligence a person, who has himself contributed to the extent, can not claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons and he need not establish the extent of responsibility of each wrong doer separately. The Hon'ble Apex Court in regard to the claim in the case of composite negligence and how it is to be dealt has held as under in paragraph 18:- "(18) What emerges from the aforesaid discussion is as follows : (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award." 21. In view of above, this court is of the considered opinion that since there was no contribution of the deceased in the accident in question therefore even if it was a case of composite negligence he was entitled to claim it from any one of them and the compensation could not have been reduced on the ground that the owner, driver and insurance company of other vehicle has not been impleaded. Therefore, the appellant / claimants are entitled for whole of the compensation from the Driver / Owner / Insurance Company of the vehicle impleaded i.e. the respondents in the present case, who may sue the other. 22. The learned tribunal has allowed Rs.2000/- towards funeral expenses, Rs.5000 towards loss of consortium and Rs.2500 towards loss of estate in total Rs.9500/- which the learned counsel for the appellants had submitted that they are liable to be enhanced and the appellants are also entitled for the future prospects. Learned counsel for the appellants has relied on Rajesh & Others Vs. Learned counsel for the appellants has relied on Rajesh & Others Vs. Rajbir Singh & Others; (2013) 9 SCC 54 / 2013 (3) TAC 679 and Sandhya Rani Debbarma & Others Vs. The National Insurance Company Limited & Others; 2016 (4) TAC 165 SC. A constitution Bench judgment of the Hon'ble Apex Court after considering several judgments of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others; (2017) 16 SCC 680 has overruled the case of Rajesh & Others (Supra) and in para 59.8 held that the reasonable figures on conventional heads namely loss of estate, loss of consortium and funeral expenses shall be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Therefore, this court is of the view that the appellants are entitled for Rs.15,000/-, Rs.40,000/- and Rs.15,000/- towards loss of estate, loss of consortium and funeral expenses respectively in place of Rs.2500/-, Rs.5000/- and Rs.2000. The appellants are also entitled for addition of 15% towards future prospects in view of paragraph 59.3 of the said Constitution Bench judgment as the deceased was 52 years of age. 23. The learned tribunal has allowed the interest @ 8% per annum from the date of filing of the claim petition till the date of realization excluding the interest from the date of 18.05.1994 to 01.05.1999 on the ground that the claim petition was dismissed on 18.05.1994 and the application for restoration was filed on 01.05.1999. It is not permissible once the application for restoration was allowed after considering the ground sufficient in the application. The Division Bench of this Court in the case of Sri Niwas Mani Tripathi and Others Vs. New India Assurance Company Limited and Others; 2014 (2) AICC 1066 has held as under in paragraph 33:- "(33). Further this is sufficient ground to interfere in the appeal filed for enhancement of the award to the extent that the interest would not be applicable for the period, when the claim was dismissed. We find that the restoration application is allowed only when the Court finds sufficient grounds for non-appearance of the claims, where the claimants have shown good and sufficient cause, they cannot be blamed or denied subsequently with the interest on the amount awarded to them as compensation." 24. The Hon'ble Apex Court in the case of Alok Shankar Pandey Vs. We find that the restoration application is allowed only when the Court finds sufficient grounds for non-appearance of the claims, where the claimants have shown good and sufficient cause, they cannot be blamed or denied subsequently with the interest on the amount awarded to them as compensation." 24. The Hon'ble Apex Court in the case of Alok Shankar Pandey Vs. Union of India and Others; AIR 2007 SC 1198 has held that interest is not a penalty or punishment at all but it is a normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B. 25. In view of above, this court is of the considered opinion that the learned tribunal has erred in deducting the interest for the period from 18.05.1994 to 01.05.1999 and the appellants are entitled for the interest awarded by the tribunal w.e.f. the date of filing of the claim petition till the date of realization. 26. In view of above, this court is of the considered opinion that the claimant-appellants are entitled for enhancement of the compensation. Thus, the claimant-appellants are entitled to get Rs.4,376 + (15% of Rs.4,376) Rs.656.40 = Rs.5,032.40 x 12 x 11 = Rs.6,64,276.80 and by deducting 1/3rd (6,64,276.80x1/3=2,21,425.60) amount, the payable amount comes to Rs.4,42,851.20. The appellants are also entitled to get Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively towards loss of estate, loss of consortium and funeral expenses. Thus, the total amount of compensation comes to Rs.512851.20, which is to be paid along with interest @ 8% awarded by the tribunal w.e.f. the date of filing of the petition till the date of realization after adjusting the amount already paid. 27. Thus, the total amount of compensation comes to Rs.512851.20, which is to be paid along with interest @ 8% awarded by the tribunal w.e.f. the date of filing of the petition till the date of realization after adjusting the amount already paid. 27. Adverting to the question of plea of the learned counsel for the respondent no.1 regarding limited liability of Rs.1,50,000/- under Section 95(2)(A) of the Motor Vehicles Act, 1939, this court finds that this plea was neither raised before the tribunal nor such objection has been filed before this court. This plea was raised during course of arguments. It can not be said to be a purely question of law because it was required to be pleaded that what type of policy was issued by the insurance company for the vehicle in question and as to whether any additional premium was paid or not towards the additional liability for claiming benefit of limited liability. On the other hand the insurance company has satisfied the award of Rs.1,51,490/- along with interest @ 8% per annum awarded by the tribunal which is much more than Rs.1,50,000/-, without any demur. However, Since a plea was raised at the time of arguments therefore this court had directed to file an affidavit explaining the position. 28. In compliance thereof an affidavit was filed annexing some photo copies of Motor Insurance Rating Guide which has been referred as India Motor Tariff and a photo copy of the Guide Book for Motor Insurance Under Writing containing the Motor Insurance Rating Guide was produced. On the top of which private and confidential (for use by employee and field staff of the company only) is mentioned. Therefore, the respondent insurance company is trying to take a shelter for non-payment of the additional amount over and above Rs.1,50,000/- on the basis of a document which is private and confidential while it has already paid the compensation more than Rs.1,50,000/-. 29. Paper No. C-36/1, which is a copy of the insurance certificate of vehicle matador no.DBL-6897 involved in the accident in question, indicates that Rs.240/- has been charged as premium for third party alongwith an additional sum of Rs.16/- and Rs.08/-, as such total of Rs.264/- has been charged along with premium of comprehensive . The policy is a comprehensive policy. Paper No. C-36/1, which is a copy of the insurance certificate of vehicle matador no.DBL-6897 involved in the accident in question, indicates that Rs.240/- has been charged as premium for third party alongwith an additional sum of Rs.16/- and Rs.08/-, as such total of Rs.264/- has been charged along with premium of comprehensive . The policy is a comprehensive policy. In terms of Section 95(2)(A) of the Motor Vehicles Act, 1939 the insurance company is obliged to satisfy the liability to an extent of Rs.1,50,000/- in so far as goods carriage vehicle is concerned unless an additional premium is paid for additional liability. 30. The Motor Insurance Rate Guide filed by the respondent insurance company sets out the provisions relating to the benefits under the Motor Insurance, types of insurance policy and payment of premium, the relevant portion of which has been filed along with the affidavit and a photo copy was produced at the time of arguments. As per the definition of the three types of policy, each one of them are distinct and separate. In the present case this court is concerned with the first type of policy which is a comprehensive insurance policy which provides the contingencies of loss or damage to the damaged vehicle subject to the limitation mentioned in the policy and liability to the public risk including Act liability. 31. The provision of India Motor Tariff indicates that the premium of Rs.200/- is the premium for the Act only and Rs.240/- for the liability to the public risk. So far as the plea of the respondent counsel regarding non-applicability of the additional benefit under the commercial vehicle tariff is concerned, it is mentioned in paragraph-11 of Annexure No.C filed by the appellants that the benefits mentioned herein may not be insured separately but only in conjunction with a "Comprehensive" or "liabilities to the public risk" policies only by charging extra premium as stated above. Above that in N.B.2, it is mentioned that the rates are subject to minimum of Rs.75/- for comprehensive cover, Rs.40/- for liability to the public risks and Rs.25/- for 'Act only Cover'. Above that in N.B.2, it is mentioned that the rates are subject to minimum of Rs.75/- for comprehensive cover, Rs.40/- for liability to the public risks and Rs.25/- for 'Act only Cover'. In the present case Rs.240/- has been charged for the third party towards the liability to the public risk but the learned counsel for the appellant had failed to clarify as to when Rs.240/- has been charged towards liability to the public risk and Rs.200/- is for Act only Policy then how the liability of the respondent insurance company is limited only to Rs.1,50,000/-. Therefore, it is apparent that the premium for public risk was charged which was with additional premium to Act only therefore the contention of the learned counsel for the respondent insurance company regarding limited liability is misconceived and for enhanced liability a sum of Rs.240/- was charged and it is nothing but implicit agreement between the owner and the insurance company for taking additional and extra premium for covering the public risk. 32. The Gujarat High Court in the case of Kantibhai Valjibhai Shah Vs. Kokilaben & Others; 2011 (3) TAC 112 (Gujarat) has considered the India Motor Tariff and it has recorded that only in respect of the common policy a sum of Rs.200/- is chargeable whereas for enhanced liability a sum of Rs.240/- is charged and it is nothing but implicit agreement between the owner as well as insurance company for taking additional and extra premium for covering the public risk. Therefore, the extra premium was charged for covering the public risk which includes unlimited liability. 33. Perusal of the policy (Paper No.C-36/1) also indicates that it contains "avoidance of certain terms and right of recovery" clause which is given in Paper No.C-68 issued by the respondent insurance company which provides that nothing in this policy or any endorsement thereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of provisions of the Motor Vehicles Act, 1939, Section 96. But the insured shall repay to the company all sums paid by the company which the company would not have been liable to pay but for the said provisions. But the insured shall repay to the company all sums paid by the company which the company would not have been liable to pay but for the said provisions. Therefore, even in the case of limited liability the insurance company is liable to discharge the entire liability of compensation but the insured would have to repay to the company all the sums paid by the company which is in excess of its liability under the policy of insurance. 34. The Hon'ble Apex Court in the case of New India Assurance Company Limited Vs. Vimla Devi & Others; 2011 (3) TAC 70 (SC) after considering the aforesaid avoidance clause, and referring to the decision in the case of Amrit Lal Sood & Another Vs. Kaushalya Devi Thaper & Orthers;1998 (2) TAC 97 (SC) held that the insurance company was rightly directed by the High Court to make payment of the full amount of compensation and to recover the excess amount from the owner of the motor vehicle. A full Bench of Gujarat High Court in the case of Shantaben & Others Vs. Yakubbhai Ibrahimbhai Patel & Others; 2013 (2) TAC 791 (Gaj.) and framed the question for consideration in paragraph-25 and answered the same in paragraph-41, which are extracted below:- "25. Having thus heard the learned counsel for the parties, short question that calls for consideration is whether the Insurance Company can be directed to discharge the entire liability of compensation fixed by the claims tribunal or whether the liability of the Insurance Company would be restricted too the statutory liability of Rs.50,000/- prevailing at the relevant time." "41. Our answer to the question farmed is that wherever the insurance policy contains an avoidance clause providing that nothing in the policy shall affect the right of any person indemnified by the policy or any other person by recovering amount under or by virtue of provisions of Motor Vehicle Act, but further requires insured to repay to the Insurance Company all such sums paid by the company which the company would not have been liable to pay, but for this provision, the Insurance Company cannot press in service the statutory limit of liability under the Motor Vehicles Act insofar as the claimants are concerned. But the insured would have to repay to the company all the sums paid by the company which is in excess of its liability under the policy of insurance." 35. In view of above, this Court is of the considered opinion that the appeal is liable to be allowed and the impugned judgment and award modified and the respondent insurance company is liable to pay the entire amount of compensation. Accordingly, the judgment and award dated 17.02.2005 passed in claim petition no. 35 of 1988; Smt. Pramila Chopra and others versus New India Assurance Company Ltd. and others by Motor Accident Claims Tribunal, /Additional District Judge, Court no. 1, Lucknow is modified. The respondent no.1 / New India Assurance Company Ltd. shall pay amount of compensation to the tune of Rs.5,12,851.20 along with interest @ 8% per annum w.e.f. the date of filing of petition till the date of realization, after adjusting the amount already paid within a period of six weeks from today. 36. The appeal is, accordingly, allowed. No order as to costs.