Karnataka High Court
The United India Insurance Company ... vs Kumara on 26 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:26008
MFA No. 4149 of 2012
C/W MFA No. 714 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 4149 OF 2012 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 714 OF 2012 (MV)
IN MFA NO. 4149 OF 2012
BETWEEN:
KUMARA,
S/O HUCHANNA,
AGED ABOUT 37 YEARS,
AGRICULTURIST,
R/O ANTHARAGANGE VILLAGE,
BHADRAVATHI TALUK,
SHIMOGA DISTRICT - 577 302.
...APPELLANT
(BY SRI. M. RAVINDRANATH, ADVOCATE)
Digitally signed by AND:
VIJAYALAKSHMI B
N
Location: HIGH 1. SRI. RAMEGOWDA,
COURT OF
KARNATAKA S/O RAMEGOWDA,
AGED ABOUT 60 YEARS,
OWNER OF TRACTOR TRAILOR
REG. NO.CTS-8471/8742
R/O ANTHARAGANGE VILLAGE,
BHADRAVATHI TALUK,
SHIMOGA DISTRICT - 577 302.
2. SRI. RAVI KUAMAR,
S/O KALEGOWDA,
AGED ABOUT 37 YEARS,
DRIVER OF TRACTOR TRAILOR
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NC: 2023:KHC:26008
MFA No. 4149 of 2012
C/W MFA No. 714 of 2012
REG. NO.CTS-8471/8742.
R/O ANTHARAGANGE VILLAGE,
BHADRAVTHI TALUK,
SHIMOGA DISTRICT - 577 302.
3. THE UNITED INDIA INSURANCE CO., LTD.,
C.N. ROAD, BHADRAVATHI-AT/TQ,
REPRESENTED BY BRANCH MANAGER.
POLICY NO.240402/47/06/96/00000140.
...RESPONDENTS
(BY SRI. R1 AND R2 ARE SERVED
SRI. O. MAHESH, ADVOCATE FOR R3 (V/C))
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.10.2011
PASSED IN MVC NO.153/2007 ON THE FILE OF THE SENIOR
CIVIL JUDGE & JMFC., 12TH MMACT, BHADRAVATHI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 714 OF 2012
BETWEEN:
THE UNITED INDIA
INSURANCE COMPANY LIMITED,
C.N. ROAD, BHADRAVATHI.
BY
UNITED INDIA INSURANCE CO., LTD.,
DIVISIONAL OFFICE,
SHIMOGGA, A.C. CIRCLE,
RUB BUILDING,
B.H. ROAD, SHIMOGGA.
...APPELLANT
(BY SRI. O. MAHESH, ADVOCATE (V/C))
AND:
1. KUMARA,
AGED ABOUT 37 YEARS,
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NC: 2023:KHC:26008
MFA No. 4149 of 2012
C/W MFA No. 714 of 2012
S/O HUCHANNA,
R/O ANTHARAGANGE VILLAGE,
BHADRAVATHI TALUK - 577 201.
2. RAMEGOWDA,
AGED ABOUT 65 YEARS,
S/O RAMEGOWDA,
R/O ANTHARAGANGE VILLAGE,
BHADRAVATHI TALUK - 577 201.
...RESPONDENTS
(BY SRI. M. RAVINDRANATH, ADVOCATE FOR R1;
R2 - IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.10.2011
PASSED IN MVC NO.153/2007 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JUDGE. FAST TRACK COURT AND 12TH
A.M.M.A.C.T., BHADRAVATHI, AWARDING A COMPENSATION
OF RS.90,197/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed by the claimant and Insurance Company respectively under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short), challenging the judgment and award passed in MVC No.153/2007 dated 26.10.2011 by the Senior Civil Judge and Additional MACT-12, Bhadravathi. -4-
NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 MFA No.4149/2012 is filed by the claimant seeking enhancement of compensation. MFA No.714/2012 is filed by the Insurance Company questioning the liability.
2. The brief facts as set out in the claim petition are that on 01.03.2007 at about 2.30 p.m. when the claimant was traveling as a Loader in Tractor-Trailer bearing Reg.No.CTS-8471-72, at that time, when they reached near NH-206, Old Baranduru, due to the negligence of driver of the said Tractor-Trailer, the sugarcane loaded in the said Tractor-Trailer has fell down on the claimant. Due to which, the claimant sustained injuries and was shifted to Meena Nursing Home for first aid and later was shifted to Nanjappa Hospital, Shivamogga for further treatment. Therefore, the claimant has filed the claim petition, seeking enhancement of compensation.
3. Heard the arguments on both sides and perused the records.
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 RE. LIABILITY:
4. In the present case, the Tribunal held that the claimant had sat on the loaded sugarcane on the Trailer attached to Tractor, due to negligent driving of the Tractor and at the same time, the wooden support given to the trailer was broken and thus, entire sugarcane slipped from the trailer and fallen on the ground and at the same time, sugarcane fell on the head of the claimant. Hence, in this way, claimant had sustained injuries. Therefore, the Tribunal has fastened liability on the Insurance Company.
5. Learned counsel for the Insurance Company submitted that the claimant was sitting on the mud guard of the tractor engine and not on the loaded sugarcane on the trailer. This is evident from the FIR at Ex.P.2 and complaint at Ex.P.3. Therefore, submitted that claimant was sitting on the mud guard of engine and hence, risk is not covered under the insurance policy. It is also argued that claimant has not stated before the Tribunal that he was sitting on the loaded sugarcane on the trailer and also -6- NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 it is not stated in the evidence of claimant in examination- in-chief affidavit. Therefore, when it is proved by the complaint and FIR, which is produced by the claimant himself that he sat on the mud guard of engine, Insurance Company is not liable to indemnify and the owner is held liable to pay compensation to the claimant.
6. Upon considering the entire evidence on record and on perusal of the affidavit evidence in lieu of examination-in-chief, claimant has stated that he was sitting on the top of the loaded sugarcane and not on the mud guard of the Tractor-Trailer. But, from the complaint and FIR, it is revealed that claimant was sitting on the mud guard of the Tractor-Trailer. When the question was posed to the claimant during his cross-examination by the Insurance Company, a stray sentence was given from him that he sat on the loaded sugarcane on the Tractor-Trailer. But, it is not the assertive statement given by the claimant that he traveled on the Tractor-Trailer by sitting over the sugarcane. Therefore, on all its preponderance of -7- NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 probabilities, upon considering the evidence on record including claim petition averments, the claimant has failed to prove that he has traveled in the Tractor-Trailer by sitting over the loaded sugarcane and as the sugarcane fell on the claimant, he has sustained injuries. But whereas, at same time, it is proved that the claimant has traveled on the Tractor-Trailer by sitting over the mud guard of Tractor-Trailer.
7. The Full Bench of this Court in the case of Gadhilingappa @ Gadhilinga and another vs. K. Guleppa and others1 has formulated the questions of law to be considered as follows:
I) Whether a person travelling on a mud-guard of a tractor can be construed as an authorized passenger or an unauthorized passenger and liability of such person is covered or not?
II) Whether the persons who are working either on the ploughing or crushing machines attached to the tractor can be construed as employees so as to cover their risk statutorily under Section 147 1 ILR 2021 KAR 3377 -8- NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 of MV Act though there is only one seating capacity in the tractor apart from the driver?
III) Whether the crushing machine or ploughing machine or any other instrument attached to the tractor can be considered to be an attachment to the tractor so as to cover the risk of the insured in respect of employees and the policy taken in respect of the tractor alone?
IV) What is the effect of Section 147 of MV Act to cover the statutory risk under the said situation?
8. While answering the said referred questions of law of Full Bench of this Court, it is answered as follows:
"33. Hence, in view of the decisions of the Apex Court in the case of V. Chinnamma, Shivaraj and Darshana Devi (supra) and the analysis made above, we have no manner of doubt that a liability of a person working either on the ploughing or crushing machines attached to the tractor and who is travelling on the mud-guard of the tractor is not required to be covered by the statutory insurance as contemplated under sub-section (1) of Section 147 of the M.V.Act."
9. Therefore, it is held by the Full Bench of this Court that a person who is sitting on the mud-guard of a Tractor is not required to be covered by statutory -9- NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 insurance policy, as contemplated by Sub-section (1) of Section 147 of the Motor Vehicle Act. Therefore, the Insurance Company is not liable to indemnify the owner and the Insurance Company is liable to be exonerated for payment of compensation to the claimant. Therefore, the appeal filed by the Insurance Company is liable to be allowed in part by holding that the Insurance Company is not liable to indemnify the owner of Tractor and Trailer. Therefore, it is proved that the Tractor and Trailer admittedly is the transport vehicle used for the purpose of carrying agricultural produce and the insurance policy is a package policy for covering the risk of transporting agricultural produce only.
10. From the discussion made above, it is held that the claimant had travelled by sitting over the mud guard of Tractor engine. Hence, the Tractor and Trailer is used for the purpose other than the permit is given. The permit is given for the purpose of transportation of agricultural produce, but not for carrying persons on the mud guard.
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 The insurance coverage is there for agricultural purpose only. If it is proved that the claimant had travelled by sitting on the Trailer as an agricultural coolie relating to the transportation of agricultural produce, then the risk would have been covered. But as emerged from the evidence on record as discussed above, the claimant had travelled by sitting on the mud guard of Tractor engine, which means as a gratuitous passenger. Even though, the claimant is claiming to be as loader and un-loader, but the facts in issue remain to prove that the claimant had travelled by sitting over the mud guard of Tractor and Trailer. Upon considering these facts involved in the case, one thing is unequivocally proved that the Tractor and Trailer is used for the purpose other than the permit as per the insurance policy. Admittedly, the Tractor and Trailer is a transport vehicle permitted for transportation of agricultural produce. Therefore, as per the submissions made by the learned counsel for the claimant as to whether an order of pay and recovery can be made is the question for consideration.
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012
11. Sub-section (2) of Section 149 of Motor Vehicle Act reads as follows:
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.
(1) X X X (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular."
12. Various defences are available to the Insurance Company for establishing the same for denying their liability as per Sub-section (2) of Section 149 of Motor Vehicle Act. As per Sub-sections (1), (5), (7) of Section 149 of Motor Vehicle Act, an order of pay and recovery can be made where the defence of the Insurance Company is shifted to Sub-section (2) of Section 149 of Motor Vehicle Act. Therefore, third parties are entitled for the benefit of pay and recovery only in case establishment of defence by the Insurance Company as ingrained in Sub-
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 section (2) of Section 149 of Motor Vehicle Act. The Insurance Company may take any defence other than those mentioned under Sub-section (2) of Section 149 of Motor Vehicle Act. If the Insurance Company has successfully established the defence even other than what is mentioned in Sub-section (2) of Section 149 of Motor Vehicle Act, but third party is entitled for the benefit of order of pay and recovery only in case of established defence under Sub-section (2) of Section 149 of Motor Vehicle Act, otherwise not.
13. Learned counsel for the claimant submitted that the defence of the Insurance Company is established as per Sub-clause (c) of Clause (i)(a) of Sub-Section (2) of Section 149 of Motor Vehicle Act. Therefore, pay and recovery can be ordered.
14. Considering the above submissions, it is to be considered as to whether the tractor is a transport vehicle or non-transport vehicle, if the tractor is attached with trailer, then it can termed as a transport vehicle or non
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 transport vehicle and as to whether for tractor permit can be given or not, these are all to be considered for coming into conclusion as to whether Sub-clause (c) of Clause
(a)(i) of Sub-Section (2) of Section 149 of Motor Vehicle Act is applicable or not.
15. There are two keywords used in the said Sub- clause (c) which are "permit" and "transport vehicle".
16. The word used "permit" is a certificate to be issued by the transport authority and it cannot be used as a general term. The word "permit" used in the said Sub- clause (c) is a certificate to be issued by the transport authority. Therefore, if the said certificate that means permit is issued and if the transport vehicle is used other than for the purpose allowed in the permit, then only it can be said that the Insurance Company has established its defence, then the claimant is entitled for the benefit of order of pay and recovery.
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012
17. Section 2(31) of Motor Vehicle Act reads as follows:
"2(31)-"permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;"
18. Rule 28 of Rules of Road Regulations, 1989 reads as follows:
"28 Driving of tractors and goods vehicles --A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward."
19. Rule 2(b) and Rule 2(c) of the Central Motor Vehicle Rules, 1989 reads as follows:
(b) "authorisation fee" means the fee to be paid by the permit holder of one country to the other country for obtaining authorisation ;
(c) "bus crew" means driver, conductor and the liaison officer;
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012
20. Therefore, upon combined reading of these definitions, agricultural tractor is a non-transport vehicle when it is not attached to trailer. It can be said that the tractor and trailer combined together is a transport vehicle because of having characteristic of transporting agricultural materials.
21. The Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Sri Maruthi and Others2 has held at paragraph No.33 as follows:
"33. As per the table agricultural tractor and power tiller are shown in the non-transport classification, but power tiller and tractors using public roads are shown as transport vehicle. The tractor-tiller is a non-transporting vehicle but when used on roads, is considered as a transport vehicle from the gist of the judgments referred to above. It is crystal clear when the tractor-trailer combined would constitute a goods carriage, therefore permits are necessary for its use on the roads. Under Motor Vehicles Act, by Sections 2 (44) and 2 (46) the definitions of tractor- trailer would definitely indicate when the trailer drawn or intended to be drawn by motor vehicle, it becomes a goods vehicle."2
ILR 2011 KAR 4139
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012
21. According to this, a tractor is attached to trailer can be said as a transport vehicle, but definitely no person can be permitted to travel or allowed to travel by sitting on the mud guard of tractor engine. In the present case, as held above, it is proved that the claimant was allowed to sit on the mud guard of the tractor engine. Therefore, it is the violation of Regulation 28 of Rules of the Road Regulations, 1989. Therefore, in the present case, defence available for the Insurance Company is violation of Regulation 28 of Rules of the Road Regulations, 1989, but not as stated under Sub-section (2) of Section 149 of Motor Vehicles Act. Therefore, order of pay and recovery cannot be made.
22. If tractor and trailer is combinedly used for transporting agricultural materials and if there is any violation or the said Tractor and Trailer is used other than the permit given, then it can be said that the Insurance Company has established its defence under Sub-clause (c) of Clause (i)(a) of Sub-Section (2) of Section 149 of Motor
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 Vehicle Act. Therefore, under those circumstances only, third party is entitled for the statutory benefit of pay and recovery.
23. Therefore, under these circumstances only, the third party is entitled for statutory benefit of pay and recovery. But in the present case, the claimant is allowed to travel on the mud-guard of tractor engine which is prohibited under Regulation 28 of the Karnataka Motor Vehicle Regulations, 1989 and therefore, for this establishment of defence, an order of pay and recovery cannot be made. The benefit of pay and recovery is a statutory benefit and protection given to the third party. The benefit of pay and recovery is not an absolute right, but it is a statutory right of the third party. In the present case, the claimant by sitting over mud-guard of tractor engine, cannot claim to be a third party. Therefore, for the persons who are not third parties, benefit of pay and recovery cannot be given. Benefit given to third party by giving statutory protection as per sub-section (1), (5) and
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 (7) and as per Judgment of the Hon'ble Supreme Court in PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER (2018) 3 SCC 308; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS (2020) ACJ 2560 and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER (2020 ACJ 2560). the benefit of third party claim is available only on establishment of defence available under sub-section (2) of Section 149 only, but not otherwise. Therefore, in the present case, the Insurance Company is not liable to pay compensation and at the same time, the claimant is not entitled for the benefit of an order of pay and recovery for the reasons above discussed.
24. Hence, it is ordered that the owner of the tractor-trailer shall pay compensation to the claimant. Thereby, the Insurance Company is exonerated by indemnifying the owner and to pay compensation.
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 RE. COMPENSATION:
25. The accident was caused in the year 2007. From the evidence on record including that of the doctor, the claimants have suffered the following injuries:
1) Tenderness over left iliac & umbilical reaction
2) Abrasion over left pelvic and iliac area
3) Abrasion over left elbow
26. The Tribunal has awarded compensation as follows:
Sl. Particulars Amount
No (in Rs.)
1) Pain and suffering 25,000/-
2) Medical expenses 55,097/-
3) Special diet 1,700/-
4) Attendant Charges 1,700/-
5) Towards loss of income
1,700/-
during laid up period
6) Loss of amenities of life 5,000/-
Total 90,197/-
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NC: 2023:KHC:26008
MFA No. 4149 of 2012
C/W MFA No. 714 of 2012
27. Considering the nature of injuries sustained by the claimant, the compensation granted for the injuries is on the lesser side. Therefore, the claimant is entitled for Rs.50,000/- towards injuries, pain and suffering. The amount granted under the head medical expenses is as per medical bills and the same is kept in tact.
28. There is no evidence that the claimant has suffered disability and how much percentage of functional disability. Therefore, the Tribunal is correct in not awarding compensation under loss of income due to disability. But the claimant being coolie has suffered grievous injuires, resulting in mental agony and discomfort and thus, lost enjoyment of life in connection with the accident. Therefore, a compensation of Rs.50,000/- is awarded under the head loss of amenities. The claimant must not have worked at least for a period of six months and has lost income during laid up period and that has to be compensated. Considering that the accident is of the year 2007, notional income of Rs.4,000/- p.m., is taken
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 into consideration. Accordingly, a compensation of Rs.24,000/- is awarded towards loss of earning during laid up period. Further, a compensation of Rs.20,000/- is awarded for incidental expenses like food, nourishment, traveling, conveyance etc. Thus, in all, compensation is awarded under various heads as follows:
Injuries, Pain and suffering Rs. 50,000/-
Loss of amenities Rs. 50,000/- Medical expenses Rs. 27,000/- Loss of income during laid up period Rs. 24,000/- Incidental expenses like attendant Rs. 20,000/- charges, food etc. Total Rs.1,71,000/-
Thus, the claimant is entitled for a compensation of Rs.1,71,000/-.
29. In the result, I pass the following:
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NC: 2023:KHC:26008 MFA No. 4149 of 2012 C/W MFA No. 714 of 2012 ORDER
i) The appeal filed in MFA No.4149/2012 by the claimant is allowed-in-part.
ii) MFA No.714/2012 filed by the Insurance Company is allowed.
iii) The Judgment and Award passed in MVC No.153/2007 dated 26.10.2011 by the Senior Civil Judge and Additional MACT-12, Bhadravathi, is modified holding that the claimant is entitled for compensation of Rs.1,71,000/- along with interest at the rate of 6% p.a., from the date of petition till realization.
iv) The owner of the tractor-trailer bearing No. CTS-8471-72 shall pay compensation to the claimant.
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v) The liability saddled on the Insurance Company is hereby set aside.
vi) The claimant is not entitled for interest for the delayed period of 85 days in filing the appeal.
Sd/-
JUDGE MH:Para 1 to 6 PB: Para 7 to 22 BNV: Para 23 to 29