Karnataka High Court
The Oriental Insurance Co.Ltd. vs Kumara on 21 December, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.7792 OF 2015(MV)
C/W.
MFA No.6449 OF 2015 (MV)
IN MFA 7792/2015
BETWEEN:
The Oriental Insurance Co. Ltd.,
D.O.No.2, Kheny Building,
#3, I Floor, 1st Cross,
Gandhi Nagar, Bengaluru,
Mysore Branch, at Thejas Complex,
Sayyaji Rao Road, Mysore and also at
Chamaraja Double Road, Mysore.
Now represented by its
Regional Manager,
Oriental Insurance Co. Ltd.,
Regional Office. #44/45,
Leo Shopping Complex,
Residency Road, Bangalore-560 025.
.... Appellant
(By Sri. A.N.Krishnaswamy, Adv.)
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AND
1. Kumara,
S/o Late. Channegowda,
Now aged about 42 years,
R/at #358, Bannur,
T.Narasipura Taluk,
Mysore District-571 101,
And also R/at No.43,
2nd Cross, Martappa Layout,
Rajeshwari Nagara,
Bengaluru-561 401.
2. Rajesh H.S.,
S/o Shivaramau,
Now aged about 34 years,
R/o Hullenahalli Village, Dudda Hobli,
Mandya Taluk & District-571401.
3. Manu H.N., Major,
S/o Nagaraju H.N.,
R/o Hullenahalli Village, Dudda Hobli,
Mandya Taluk & District-571401.
4. M.Lakshminarayana,
S/o Muninanjappa, Major,
R/o Karahalli, Devanahalli Taluk,
Bengaluru-562102.
...Respondents
(By Sri.Sanathkumara K.M., Adv. for R1:
Sri. R.Pramod, Adv. for R2 & R3:
Sri.S.Vasanth Kumar, Adv. for R4(absent))
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated23.04.2015
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passed in MVC No.91/2013 on the file of the
Additional Judge, Small Causes and Senior Civil Judge,
Mysuru, Prl. Judge, Court of Small Causes, Mysuru, in
concurrent charge Additional Court of Small Causes ,
Mysuru, As a Presiding Officer, MACT, Mysuru
Awarding compensation of Rs.5,39,130/- with interest
@ 9% p.a. from the date of filing of petition until its
realization.
IN MFA 6449/2015
BETWEEN
Kumara,
S/o Late. Channegowda,
Now aged about 42 years,
Bannur, T.Narasipura Taluk,
Mysore District.
Presently residing at No.43,
2nd Cross, Marappa Layout,
Rajarajeshwari Nagara,
Bengaluru-560 098.
... Appellant
(By Sri.Sanath Kumar K.M., Adv.)
AND
1. Rajesh H.S., Major,
S/o Shivaramau,
Hullenahalli Village, Dudda Hobli,
Mandya Taluk
Mandya District-571401.
2. Sri. Manu H.N.,
S/o Nagaraju H.N.,
R/o Hullenahalli Village, Dudda Hobli,
Mandya Taluk,
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Mandya District Pin-571401.
3. M.Lakshminarayana,
S/o Muninanjappa, Major,
R/o Karahalli, Devanahalli Taluk,
Bengaluru-560 087.
4. The Divisional Manager,
Oriental Insurance Company Ltd.,
No.89 D.O. N.2, Kheny Building,
No.3.1st Floor, 1st Cross,
Gandhinagar,
Bangaore-560 001,
P.B.No.95555.
Mysore Branch at
Thejas Complex,
Sayyaj Rao Road,
Mysuru-570 001.
...Respondents
(By Sri. R. Pramod Adv, for R1 & R2:)
Sri.S.Vasanth Kumar, Adv. for R3(absent):
Sri. A.N.Krishnaswamy, Adv. for R4)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated: 23.04.2015
passed in MVC No.91/2013 on the file of the Principal
Judge, Court of Small Causes, Mysuru, in CC of
Additional Court of Small Causes, Mysuru, as a
Presiding Officer, MACT, Mysuru, partly allowing the
claim petition for compensation and seeking
enhancement of compensation.
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These MFAs coming on for admission, through
video Conference, this day, H.T. Narendra Prasad
J., delivered the following:
JUDGMENT
MFA No.7792/2015 is filed by the insurance company whereas MFA No.6449/2015 is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 23.04.2015 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident as well as a common judgment, they are heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeals briefly stated are that on 03.11.2012, the claimant was proceeding on his motorcycle bearing registration 6 No.KA-55/J-0614 towards Kaggalipura village to go to his house and when he reached Bannur-T. Narasipura main road, in front of outpost, Somanathapura, T.Narasipura Taluk, at that time, lorry bearing registration No.KA-04/B-0834 being driven by its driver at a high speed and in a rash and negligent manner, dashed against the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was running a canteen and was earning Rs.60,000/- p.m. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
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4. On service of notice, the respondent Nos.3 and 4 filed separate written statements in which the averments made in the petition were denied. It was pleaded by the respondent No.3 that he already sold the offending vehicle to the respondent No.2 and the vehicle was insured with respondent No.4. It was further pleaded that the driver of the offending vehicle was holding a valid and effective driving licence as on the date of the accident. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant.
It was pleaded by respondent No.4 that the driver of the offending vehicle was not holding a valid and effective driving licence as on the date of accident to drive the said vehicle and he has violated the terms and conditions of the policy. It was further pleaded that the petition is bad for non-joinder of necessary parties. The age, income and occupation of the 8 claimant and the factum of accident are denied. Hence, they sought for dismissal of the petition. The respondent Nos.1 and 2 did not appear before the Tribunal inspite of service of notice and were placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.V.Shivananda as PW-2 and got exhibited 25 documents namely Ex.P1 to Ex.P25. On behalf of the respondents, an officer of the insurance company was examined as RW-1 and got exhibited 8 documents namely Ex.R1 to Ex.R8. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is 9 entitled to a compensation of Rs.5,39,130/- along with interest at the rate of 9% p.a. and directed the insurance company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.
6. Sri.A.N.Krishna Swamy, learned counsel appearing for the Insurance Company has raised the following contentions.
Firstly, the offending lorry was not having valid fitness certificate to ply on the road as on the date of alleged accident. Therefore, there is a violation of the terms and conditions of the policy and also Motor Vehicles Act. Hence, the Insurance Company is not liable to indemnify the insured. The Tribunal is not justified in fastening liability on the Insurance Company. He has also relied upon Sections 56 and 84 of the Act and contended that the transport vehicle shall not be deemed to be validly registered for the 10 purpose of Section 39, unless it carries a certificate of fitness. Since there is no valid fitness certificate to the offending vehicle, the finding of the Tribunal that the insurer is liable to pay compensation is unsustainable. In support of his contention, he has relied on the following judgments:
1. 2014 ACJ 2421 in the case of Narinder Singh -v-. New India Assurance Co. Ltd., and Others;
2. 2018 ACJ 2430 in the case of Rani and others -v-. National Insurance Co.
Ltd., and others;
3. 2018 ACJ 2108 in the case of M.S.Middle High School -v-. HDFC ERGO General Insurance Co. Ltd., and others,
4. 2018 ACJ 2633 in the case of New India Assurance Co. Ltd., -v-. Sushma Gupta and others;
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5. AIR 2019 Kerala 9 in the case of Pareed Pillai Vs. Oriental Insurance Company Limited.
6. (2018) 7 SCC 558 in the case of Amrit Paul Singh & another vs. Tata AIG General Insurance Company Limited & others.
Secondly, in respect of quantum of compensation is concerned, the claimant has not produced any disability certificate. Therefore, the Tribunal has rightly not granted any compensation under the head of 'loss of income due to disability'.
Thirdly, the injuries suffered by the claimant were minor in nature. Therefore, the compensation awarded by the Tribunal under the head of 'pain and sufferings' is on the higher side.
Fourthly, for the accident occurred in 2012, the rate of interest awarded by the Tribunal at 9% per annum is on the higher side. Hence, he sought for allowing of the appeal in MFA.No.7792/2015 filed by 12 the Insurance Company and dismissal of the appeal in MFA.No.6449/2015 filed by the claimant.
7. On the other hand, Sri. R. Pramod, learned counsel for the owner of the offending vehicle has contended that as on the date of the accident, the offending vehicle was having valid registration certificate and he has also had permit. In respect of fitness certificate is concerned, same has not been renewed. Even if there is no valid fitness certificate as on the date of accident, it is not the defence available for the insurance company under Section 149(2) of the Act and it is not the condition which is mentioned in the policy, but it is only an offence under the Motor Vehicles Act and the Insurance Company cannot escape from the liability.
Secondly, Ex.R8-True extract of B-register was not proved by the Insurance Company by examining the author of the said document.
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Thirdly, it is very clear from the IMV report that the accident was not due to any mechanical defects of the vehicle.
Fourthly, the Hon'ble Supreme Court in the case of Amrith Paul Singh (supra) has held that the offending vehicle was not having valid permit, since it is a defence available under Section 149(2) of the Act. The same is not applicable to the case on hand. Hence, he sought for dismissal of the appeal.
8. Per contra, Sri. K.M.Sanath Kumara, the learned counsel for the claimant has raised the following contentions:
Firstly, the claimant has examined Dr.V.Shivananda, Consultant Neurosurgeon as PW.2, who has deposed that the claimant was not able to concentrate and had hearing loss in the right side ear, he had difficulty in walking, unsteadiness and has assessed disability of 25% to the whole body. The 14 Tribunal is not justified in not granting any compensation under the head of 'loss of income due to disability'.
Secondly, the compensation awarded by the Tribunal under the heads of 'pain & sufferings' and 'loss of amenities' are on the lower side. Hence, he sought for allowing of the appeal in MFA.No.6449/2015 filed by the claimant and dismissal of the appeal in MFA.No.7792/2015 filed by the Insurance Company.
9. We have considered the submissions made by the learned counsel for the parties and have perused the records.
10. It is not in dispute that the claimant has suffered injuries in a road traffic accident occurred on 03.11.2012 due to rash and negligent driving of the lorry bearing Reg.No.KA-04/B-0834 by its driver. Due 15 to the accident, the claimant has suffered following injuries.
"1. Lacerated wound over right frontal region extending to parietal region with brain tissue seen outside. Bilateral black eye seen. CT scan brain showed comminuted depressed fracture of frontal bone right side, fracture superior wall of orbit right side, diffuse cerebral edema, multiple heamorrage contusion in right frontal lobe,
2. Abrasion over front right shoulder in an area of 5cmx4cm,
3. Abrasion over right leg anterior aspect measuring 6cmx1cm and
4. Superficial laceration over dorsum of right foot in an area of 8cmx0.5cm."
The claimant has examined Dr.V.Shivananda as PW.2, who has deposed that the claimant has difficulty in walking, unsteadiness and there was 16 hearing loss on the right side at present and has assessed disability to the extent of 22% to 25% to the whole body. The claimant has not proved before the Tribunal that due to disability the claimant lost future income and there is no disability certificate produced. Therefore, the Tribunal has rightly not granted any compensation under the head of 'loss of future income due to disability'. Taking into consideration the nature of injuries and deposition of the doctor and considering the fact that he has taken treatment as an inpatient for the period from 03.11.2012 to 26.11.2012, he has suffered lot of pain during the treatment and he has to suffer with this disability throughout his life, we are inclined to enhance the sum awarded by the Tribunal under the head of 'pain & sufferings' from Rs.20,000/- to Rs.40,000/-, under the head of 'loss of amenities' from Rs.5,000/- to 17 Rs.30,000/- and under the head of 'attendant charges' from Rs.10,000/- to Rs.20,000/-.
The compensation awarded by the Tribunal under other heads remains unaltered.
11. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Loss of income for laid 10,000 10,000 up period Medicines and medical 4,84,130 4,84,130 expenses Pain & sufferings 20,000 40,000 Conveyance & special 10,000 10,000 diet Attendant charges 10,000 20,000 Loss of amenities of life 5,000 30,000 Total 5,39,130 5,94,130 The claimant is entitled to a total compensation of Rs.5,94,130/-.18
12. In respect of liability is concerned, with respect to the fitness certificate, it is worth noticing a few relevant Sections namely, 56(1), 66(1), and 84(a) of the Motor Vehicles Act, 1988 touching the aspect of the fitness certificate, which are extracted herein below:-
"56. Certificate of fitness of transport vehicles.--
(1) Subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder:19
Provided that where the prescribed authority or the "authorized testing station"
refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
66. Necessity for permits.--
(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage: Provided further that a stage carriage permit may, subject to any conditions that may be 20 specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
84. General conditions attaching to all permits. -The following shall be conditions of every permit--
(a) that the vehicle to which the permit relates carries valid certificate of fitness issued under Section 56 and is at all times so maintained as to comply with the requirements of this Act and the rules made thereunder;
13. According to Section 56(1) of the Motor Vehicles Act, 1988, for registration of transport vehicles under Section 39, a valid fitness certificate is 21 required and in the absence of such fitness certificate, transport vehicle shall not be deemed to have valid registration.
14. Section 66(1) provides necessity for permit for the use of a vehicle as a transport vehicle in a public place. According to Section 66(1), a transport vehicle shall be used or permitted to be used by owner of vehicle in any public place in accordance with the condition of permit.
15. Section 84(a) provides the general condition which are attached to all the permits. One of the condition as contemplated under Section 84(a) of the Motor Vehicles Act, 1988 is that vehicle to which the permit relates carries valid certificate of fitness issued under Section 56 and is at all times so maintained as to comply with the requirements of the Act, 1988 and the rules made thereunder.
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16. From the aforesaid provisions, it can be safely culled out that for the purposes of registration of transport vehicle, a fitness certificate as contemplated under Section 56 of the Motor Vehicles Act, 1988 is mandatory and plying of a transport vehicle without a valid fitness certificate amounts to violation of condition of permit.
17. At this juncture, it is useful to notice Section 86(1) (a) which provides that the transport authority which has granted permit may cancel the permit or suspend it for the period as it thinks fit on the breach of any condition specified in Section 84 or of any condition contained in the permit. The proviso to Section 86 (1) of the Motor Vehicles Act, 1988 provides that no permit shall be suspended or cancelled unless an opportunity of hearing has been given to the holder of permit to furnish his 23 explanation. Section 86(1) of the Act, 1988 is reproduced herein below:-
"86. Cancellation and suspension of permits.- (1) The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit -
(a) on the breach of any condition specified in Section 84 or of any condition contained in the permit, or
(b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or
(c) if the holder of the permit ceases to own the vehicle covered by the permit, or
(d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or
(e) if the holder of the goods carriage permit, fails without reasonable cause, to 24 use the vehicle for the purposes for which the permit was granted, or
(f) if the holder of the permit acquires the citizenship of any foreign country :
Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation."
18. The proviso to Section 86 (1) clearly contemplates an opportunity of hearing to the holder of permit before cancellation or suspension of the permit on the ground specified in Section 86 (1) (a) to
(f). Thus, it is evident that the Act does not contemplate that if there is violation of any condition of the permit, the permit shall automatically be deemed to have been cancelled. In fact competent authority has to pass an order before cancelling or suspending the permit after affording opportunity of hearing to the holder of permit.
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19. In the instant case, it is also not in dispute that the offending vehicle has a valid registration certificate and as on the date of the accident it has a valid permit and the same has not been cancelled by the competent authority by exercising the powers under the Motor Vehicles Act. There is no order passed by the competent authority as regards the cancellation of the permit after giving an opportunity of hearing to the owner of the truck on the ground that the condition has been violated by the owner of the truck by plying without valid fitness certificate. Thus, in such a situation, it cannot be said that truck was not having a valid permit. It is further useful to notice that Section 149(2)(a)(i)(c) of the Motor Vehicles Act specifies about the breach of condition of the policy where vehicle is used for the purpose not allowed by the permit.
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20. In so far as the judgment of the Kerala High Court in the case of PAREED PILLAI (supra) relied upon by the learned counsel appearing for the insurance company is concerned, in the first place, a Division Bench of this Court in the case of UNITED INDIA INSURANCE COMPANY LIMITED vs. SMT.YASMIN BEGUM @ YASMIN passed in MFA No.5159/2016 decided on 19.07.2019 has held as hereinbelow:
"17. The controversy is with regard to there being any breach in the terms and conditions of the policy which according to learned counsel for the appellant-insurer would call for exoneration of the insurance company. In this regard, learned counsel for the appellant-insurance company drew our attention to Section 66 of the Act which deals with necessity for permit of vehicle used as a transport vehicle in any public place and Section 56 of the Act which deals with regard to transport vehicle possessing 27 a certificate of fitness. He contended that both these are mandatory requirements and in the instant case, the offending vehicle, the tipper lorry neither possessed a certificate of fitness nor had a permit to ply the vehicle on Bannerghatta Road. He further drew our attention to column No.7 of the charge-sheet wherein, it has been stated that the vehicle did not possess the fitness certificate as well as the permit.
18. Section 56 of the Act states that subject to the provisions of Sections 59 and 60 of the Act, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of the Act and Rules made thereunder.28
19. The contention of appellant- insurer is that vehicle did not possess a fitness certificate, but the fact remains that in the instant case, the vehicle being a transport vehicle, had a valid registration under Section 39 of the Act. Registration of the vehicle under Section 39 of the Act would call for compliance of a condition precedent namely, possessing of a valid fitness certificate. In the instant case, since the vehicle in question was validly registered, it implies that it had a fitness certificate. Further, this is not a case where there has been cancellation of the fitness certificate. When once registration of the vehicle has been made under Section 39 of the Act, it is presumed that the vehicle possesses a valid fitness certificate. There is no evidence on record to the effect that the fitness certificate of the vehicle had expired and if so, as to on what date it had expired. In the circumstance, we do not find any substance in the contention of learned counsel for the appellant-insurance 29 company on the aspect that the offending vehicle did not possess a valid fitness certificate on the date of the accident. Further, it is noted that this is not a case where the Registration Certificate of the vehicle in question had been cancelled on account of the cancellation of the fitness certificate. No evidence has been let-in in that regard by the insurance company. Moreover, the necessity of the vehicle having a fitness certificate is not a condition of the policy at the time of issuance of the insurance policy. But before a vehicle could be registered, there is a need for such a vehicle to have a fitness certificate and in the instant case even as per Ex.R.3, the vehicle in question had a valid Registration Certificate."
21. This Court in RAJESH POOJARY vs. RAJESH AND ANOTHER reported in ILR 2019 Kar.2940 following another Division Bench judgment has held that as on the date the policy was in force 30 and that the permit is not cancelled, the insurance company is liable to pay the compensation. It has also opined that even if the insured did not possess the 'fitness certificate' for the offending vehicle, the Insurance Company cannot be exonerated on that ground.
22. In so far as the judgment of Kerala High Court in the case of PAREED PILLAI (supra) relied on by the learned counsel for the insurance company is concerned, in the first place the decision of one High Court is not binding as a precedent on another High Court unlike a decision of the Apex Court. The Apex Court in the case of VALLIAMMA CHAMPAKA PILLA vs. SHIVATHANU PILLAI AND OTHERS reported in 1979 (4) SCC 429 has held that a decision of one High Court is not binding precedent on another High Court and that does have a persuasive value. In the second place, the Kerala High Court, 31 while deciding the case, has proceeded on the basis that it is a mandatory requirement that every vehicle must have a route permit and carry valid certificate of fitness issued under Section 56 of the Motor Vehicles Act at all times, absence of which constitutes technical breach and that vehicle shall not be deemed to have any valid permit, thus there is violation of insurance policy. With great respect to the judgment of the Kerala High Court, in the judgment it is not noticed that provisions of Section 86(1) of the Motor Vehicles Act which talks about the situation that even if there is a breach of any condition of permit specified in Section 84 of the Motor Vehicles Act, the competent authority is required to give an opportunity of hearing to the holder of the permit.
23. In the case on hand, it is not in dispute that as on the date of the accident the offending vehicle was having a valid registration certificate and also 32 valid permit issued under the Act and the same has not been cancelled by the competent authority as per Motor Vehicles Act.
24. In view of the above discussion, the submission of the learned counsel for the Insurance Company that insured has violated policy conditions and the insurer is not liable to pay the compensation, is unsustainable. Accordingly, Insurance Company is held liable to indemnify the insured and Insurance Company is directed to pay compensation awarded along with interest.
25. The Insurance Company is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment.
In respect of rate of interest is concerned, since the accident is of the year 2012, as per the RBI 33 guidelines, during the period 17.3.2011 to 2.5.2013, the rate of interest was 6.75%. Therefore, the compensation amount shall carry interest at the rate of 6.75% p.a. from the date of petition till payment is made instead of 9% p.a. granted by the Tribunal.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE Mkm/-