Karnataka High Court
The National Insurance Company Ltd vs Sri Damodara on 30 March, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 3849 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO. 3849 OF 2020 (MV-I)
Between:
The National Insurance Company Ltd.,
No.144, 2nd Floor,
Subharam Complex. M.G Road,
Bengaluru-560 001
Represented By
The Regional Manager,
National Insurance Co.Ltd.,
Regional Office,
No.144, II Floor,
Shubharam Complex.
M.G Road,
Bangalore-1.
...Appellant
(By Smt. Manjula Nemichandra Tejaswi, Advocate)
Digitally signed
by BANGALORE
MADHAVACHAR
VEENA
Location: High And:
Court of
Karnataka
1. Sri.Damodara
S/o. Gattappa.
Aged About 39 Years,
2. M/s.PLR Projects Pvt. Ltd.,
D.No.1043, Maruthi Nagar,
M.R. Pally, Tirupathi Urban,
Chittoor District-517701
Andhra Pradesh,
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MFA No. 3849 of 2020
Represented By
Its Managing Director
...Respondents
(Respondents 1 and 2 are served and
un-represented)
***
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to set aside the
judgment and award passed by the learned Chief Judge, Court
of Small Causes, Bengaluru and Member Principal, MACT at
Bengaluru, in MVC No.3756/2018 dated 29-01-2020, produced
at Annexures A and B respectively, for the reasons stated
above and in the interest of justice and equity.
This Miscellaneous First Appeal coming on for Final
Hearing through Physical Hearing/Video Conferencing, this day,
the Court delivered the following:
JUDGMENT
The present appellant - The National Insurance Company Limited, M.G. Road, Bangalore, (hereinafter referred to as "the Insurance Company" for brevity) was respondent No.2, in M.V.C.No.3756/2018, in the Court of the learned Chief Judge, Court of Small Causes, Bengaluru and Member, Principal Motor Accident Claims Tribunal, at Bengaluru, (hereinafter referred to as "the -3- MFA No. 3849 of 2020 Tribunal" for brevity), which was instituted by the present respondent No.1, who, as a claimant had instituted a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the M.V.Act" for brevity), seeking compensation of a sum of `10,00,000/- for the injuries alleged to have been sustained by him in a road traffic accident said to have occurred on the date 13-05-2018.
The respondent No.2 herein, who was the respondent No.1 before the Tribunal, is said to be the owner of the alleged offending vehicle.
2. The summary of the case of the claimant before the Tribunal was that, on the date 13-05-2018, while himself along with his wife deceased Smt. G. Mamatha and their deceased son G. Lohith, as pillion riders were travelling on his Motor Cycle bearing registration No.AP- 03/B-9407, from Baireddypalle Village towards V. Kota, at about 3:45 p.m., near Kaigal village, on NH-42, Chittoor District, a Motor vehicle Lorry bearing registration No.AP- -4- MFA No. 3849 of 2020 03/TD-9390, being driven by its driver at a high speed, in a rash and negligent manner, dashed to the Motor Cycle, ridden by the claimant, causing the road traffic accident in question. In the said road traffic accident, all the three riders including the claimant sustained multiple injuries. His wife Smt. G. Mamatha succumbed to the injuries at the P.E.S. Institute of Medical Sciences and Research, Kuppam, while under treatment. His son Master G. Lohith died on the spot of the occurrence of the road traffic accident. However, the claimant suffered grievous injuries and was initially shifted to the P.E.S. Institute of Medical Sciences and Research, Kuppam and from there to R.L. Jalappa Hospital and Research Centre, Kolar, where he took treatment as an in-patient and incurred huge expenses for his treatment.
The claimant has stated that at the time of the occurrence of the road traffic accident, he was aged about 37 years and doing agriculture and also working as a Cook and earning a sum of `20,000/- per month, however due -5- MFA No. 3849 of 2020 to the injuries suffered by him in the accident, he was not able to work as before and thus has suffered loss of future income. With this, the claimant claimed compensation of a sum of `10,00,000/- from the respondents No.1 and 2 before the Tribunal, arraigning them respectively as the owner and insurer of the alleged offending vehicle Lorry.
3. The claimant filed three claim petitions in M.V.C.No.3754/2018, M.V.C.No.3755/2018 and M.V.C.No.3756/2018. The present appeal has arisen from the claim petition filed in M.V.C.No.3756/2018. The other two claim petitions were with respect to the alleged death of the wife of the claimant, i.e. Smt. G. Mamatha and the alleged death of the son of the claimant, i.e. Master G. Lohith.
4. Before the Tribunal, though notices was served upon the respondents, the respondent No.1 did not choose to appear, however, respondent No.2, appeared in all the three claim petitions and filed its statement of objections. The respondent No.2 in its Statement of Objections, -6- MFA No. 3849 of 2020 denied the occurrence of the road traffic accident in the manner as contended by the claimant in his claim petition. It contended that there was contributory negligence on the part of the claimant who was the rider of the Motor Cycle. It also denied that the claimant sustained any grievous injuries in the accident and has undergone treatment at different Hospitals. It also denied that the claimant has suffered any permanent physical disability and has suffered loss of future income.
5. Before the Tribunal, the claimant got himself examined as PW-1 and also examined one Sri. Dr. Nagaraj B.N., as PW-2 and got marked documents from Exs.P-1 to P-19. On behalf of the respondents, neither any witness was examined nor any documents were got marked.
6. After framing the issues and recording the evidence led by both side, the Tribunal, by its impugned common judgment dated 29-01-2020, allowed all the three claim petitions in part, holding the respondents 1 -7- MFA No. 3849 of 2020 and 2 before it jointly and severally liable to pay the compensation to the claimant and directed the respondent No.2 before it i.e. the appellant herein to indemnify the Respondent No.1 therein - owner. The compensation awarded by the Tribunal to the claimant in his claim petition in M.V.C.No.3756/2018 (present appeal) for the injuries alleged to have been suffered by him in the road traffic accident was a sum of `2,62,500/-, under the following heads with the respective amounts shown against them, together with interest thereupon at the rate of `6% per annum from the date of the claim petition till the date of realisation of the amount.
Sl.
Particulars Amount in `
No.
1 Pain and sufferings 20,000-00
2 Medical expenses 16,186-00
3 Food and nourishment, attendant 10,000-00
and conveyance expenses
4 Loss of income during laid up 18,000-00
period
5 Loss of future income due to 1,78,200-00
permanent disability
6 Loss of amenities in life 20,000-00
Total 2,62,386-00
Rounded off to `2,62,500-00
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MFA No. 3849 of 2020
Challenging the said judgment and award passed by the Tribunal, the appellant - Insurance Company has preferred this appeal, seeking substantial reduction in the compensation awarded by the Tribunal.
7. In spite of service of notice before this Court, neither of the respondents herein appeared through their counsels, as such, they have remained absent. Even after service of notice, till today, sufficient adjournments were given in the matter to see that the respondents may appear and contest the matter. But they did not choose to do so. As such, once again, as a final opportunity, waiting for the appearance of the respondents, the appeal stood adjourned from the date 28-02-2023 to today. Even today, the respondent No.1 (claimant) having remained absent, this Court was constrained to proceed further in the matter and hear the argument of the learned counsel for the appellant - Insurance Company alone, who is physically present.
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8. Records from the Tribunal pertaining to the matter were called for and the same are placed before the Court.
9. Heard the arguments of learned counsel for the appellant - Insurance Company, who is physically present. Perused the materials placed before this Court, including memorandum of appeal, impugned judgment and also the records of the Tribunal.
10. It is not in dispute that, with respect to the very same accident said to have taken place on the date 13-05-2018, the very same claimant, who is respondent No.1 herein had instituted three claim petitions, as observed above, bearing M.V.C.No.3754/2018, M.V.C.No.3755/2018 and M.V.C.No.3756/2018. The Tribunal has passed a common judgment in all these three claim petitions.
The present appeal has arisen from the claim petition filed in M.V.C.No.3756/2018.
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MFA No. 3849 of 2020
11. According to the learned counsel for the appellant herein (Insurance Company), the appellant Insurance Company has satisfied the award in the remaining two Motor Vehicle Cases i.e. in M.V.C.No.3754/2018 and M.V.C.No.3755/2018. Thus, the occurrence of the road traffic accident on the date, time and place mentioned in the claim petition and also the liability of the respondent No.2 before the Tribunal i.e. the Insurance Company (appellant herein) to pay the compensation to the claimant has not been disputed or challenged by the present appellant which is an Insurance Company. As such, the said aspect of occurrence of the road traffic accident at the fault of the driver of the Lorry under the ownership of the respondent No.1 before the Tribunal, of which vehicle, respondent No.2 before the Tribunal (appellant herein) is the insurer need not be revisited.
12. Learned counsel for the appellant (Insurance Company) in her argument submitted that, the only
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MFA No. 3849 of 2020contention of the appellant is this appeal is regarding the quantification of the compensation awarded by the Tribunal. She submitted that after the occurrence of the road traffic accident in question, the injured claimant was shifted to the P.E.S. Institute of Medical Sciences and Research, Kuppam and was treated in the said Hospital. The Wound Certificate issued by the said Hospital would go to show that the nature of injury sustained by the claimant was in the form of multiple laceration on the right leg and a laceration, on diagnosing both of which were considered as simple in nature.
Learned counsel further submitted that for the said simple injury, the claimant could able to procure the documents from P.E.S. Institute of Medical Sciences and Research, Kuppam, as well from R.L. Jalappa Hospital and Research Centre, Kolar, showing that, he was treated as an in-patient in both the Hospitals and has wrongly contended that he was suffered with some percentage of permanent disability, on account of the road traffic
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MFA No. 3849 of 2020accident and also succeeded in getting a huge compensation from the Tribunal. Further, stating that the evidence of the Doctor itself would go to show that, there was no such grievous injury suffered by the claimant nor there was any fracture injury, the learned counsel further submitted that the compensation awarded by the Tribunal under all the heads deserves to be set aside except awarding reasonable compensation towards the two simple injuries suffered by the claimant.
13. The claimant has stated in his evidence as PW-1 that, after the accident, he was shifted to the P.E.S. Institute of Medical Sciences and Research, Kuppam, where he was treated as an in-patient from the date 13-05-2018 to the date 17-05-2018. Thereafter, he got admitted to R.L. Jalappa Hospital and Research Centre, Kolar, on the very same day, i.e. on the date 17-05-2018 and was treated there as an in-patient upto the date 23-05-2018. He has also stated that he has suffered multiple injuries in the accident.
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MFA No. 3849 of 2020In support of his contention, he got examined one Dr. Nagaraj B.N., an Orthopedic Surgeon shown to have been working at SOADS. The said witness, except stating that based on the discharge summary of R.L. Jalappa Hospital and Research Centre, Kolar, he has assessed the disability of the claimant, has not stated anything about the causing of the alleged injury and its nexus with the alleged road traffic accident and has categorically stated that the medical records pertaining to the P.E.S. Institute of Medical Sciences and Research, Kuppam, was not placed before him for his verification before he assessed the disability of the claimant.
It is in the light of the above evidence of PW-1 and PW-2, the case of the claimant is required to be analysed carefully.
14. The claimant, as PW-1 in his examination-in- chief in the form of affidavit evidence has stated that, he sustained grievous injuries and at the P.E.S. Institute of Medical Sciences and Research, Kuppam, certain injuries
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MFA No. 3849 of 2020were noticed clinically. Stating so he has listed the injuries as below:
1. 8x2 cm laceration in right parietal region.
2. Abrasion 2 x 1 cm above upper lip
3. Multiple abrasions on the dorsal aspect
4. Avulsed laceration of 10 x 5 cm with 1 x 0.5 cm bone spicules with muscle injury over middle 1/3rd of leg
5. Multiple small abrasions over right lower limb.
6. small abrasions over root of penis.
PW-1 has stated that, finally, he was diagnosed with 'soft tissue injury secondary to RTA'. In the light of the said evidence, when the documents are verified, it could be seen that the Wound Certificate which is at Ex.P-10 mentions in it only about the two simple injuries in the form of multiple laceration on right leg and a laceration on the penis. Incidentally, the said Wound Certificate is also issued by the P.E.S. Institute of Medical Sciences and Research, Kuppam. The very same claimant has got produced two discharge summaries, one from the P.E.S.
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MFA No. 3849 of 2020Institute of Medical Sciences and Research, Kuppam, which is at Ex.P-11 and another from the R.L. Jalappa Hospital and Research Centre, Kolar at Ex.P-12. It is in Ex.P-11, on physical examination, the following injuries are noticed:
(i) right lower limb;
Avulsed laceration of around 10x5 cms. with 1x0.5 cms.bone spicules with muscle injury over middle 1/3 of leg
(ii) Multiple small abrasions over right lower limb
(iii) External genitalia: small abrasion over root of penis It is also stated therein that they have treated the claimant conservatively. The discharge summary at Ex.P-11 does not mention as to what conclusion the Doctors there have arrived at and also as to what was diagnosed of the alleged injuries. Interestingly, though the claimant was discharged, confirming his condition as vitals were stable and the patient was also stable, the
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MFA No. 3849 of 2020claimant claims to have proceeded on the very same day to the R.L. Jalappa Hospital and Research Centre at Kolar and claims to have got admitted to the said Hospital as an in-patient and continued his treatment for a period of six days upto 23-05-2018. In the said Hospital, they have diagnosed his complaint as 'soft tissue injury over right leg with anterior cortex chip avulsion of right tibia at proximal and middle third junction shaft without neurovascular deficit. The very same discharge summary at Ex.P-12 shows that the patient was treated conservatively with the above knee slab and wound dressing. It also mentions that the patient improved symptomatically and was being discharged from the Hospital. Thus, neither the claimant underwent any surgical operation nor any other special therapy except a conservative treatment with wound dressing. Neither of these two documents, i.e. the discharge summaries of the two different Hospitals at Ex.P-11 and Ex.P-12 shows that the alleged injury sustained by the claimant was grievous in nature, requiring any long treatment or surgical operation. As
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MFA No. 3849 of 2020such, it cannot be presumed that the claimant has suffered considerable pain and agony due to the injuries suffered by him. In the said circumstance, the quantum of compensation awarded by the Tribunal towards pain and sufferings at `20,000/- appears to be on the higher side. The same deserves to be reduced by a sum of `10,000/-, thus confining it to a sum of `10,000/- only.
15. Even though the injuries suffered by the claimant were shown to be simple in its nature in the Wound Certificate at Ex.P-10, however, the discharge summaries issued by the two different Hospitals at Exs.P-11 and P-12 shows that he was treated as an in- patient in both the Hospitals, in total for a period of ten days. There is no reason to disbelieve that he was treated in the said Hospitals as an in-patient. Therefore, naturally he should have incurred some expenses towards his treatment. As such the argument of the learned counsel for the appellant that for having suffered simple injury, the claimant would not have incurred medical expenses is not
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MFA No. 3849 of 2020acceptable. On the other hand, since the claimant has been treated as an inpatient in the two Hospitals and discharge summaries shows the hospitalisation, examinations and tests conducted and the treatment given in the case, he should have definitely incurred some medical expenditure. It is considering the medical bills and receipts produced by him at Ex.P-13 and Ex.P-14, since the Tribunal has awarded a sum of `16,186/-, which is the actuals, I do not find any reason to modify the same.
16. The Tribunal has awarded a compensation of a sum of `10,000/- towards food, nourishment and attendant and conveyance charges. Since the medical documents at Ex.P-10, Ex.P-11 and Ex.P-12 shows that he was treated as an in-patient, in total for a period of ten days, he should have necessarily utilized the services of an attendant and incurred some expenses towards food nourishment and conveyance. Thus the quantum of compensation awarded by Tribunal at `10,000/- is just and
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MFA No. 3849 of 2020proper and I do not consider that it warrants any interference at the hands of this Court.
17. The claimant in his claim petition as well in his evidence has stated that, prior to the occurrence of the road traffic accident, he was doing agriculture work and also working as a Cook and earning a sum of `20,000/- per month. Admittedly, he has not produced any documents in support of his contention regarding his alleged monthly income. Thus, the Tribunal has rightly considered the notional income as the income of the claimant for the purpose of computing the compensation. It has taken a sum of `9,000/- per month as the notional income. The Tribunal observing that for the injuries suffered by him, the claimant must have been laid down for a period of two months, has awarded a compensation of a sum of `18,000/- (i.e. `9,000/-x 2 months) towards loss of income during the laid up period.
However, a perusal of the discharge summaries at Ex.P-11 and Ex.P-12 nowhere shows that the claimant was
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MFA No. 3849 of 2020advised any rest or bed rest. Ex.P-11 only shows the discharge advise as "Wound Care, right lower limb elevation, soft diet". The discharge summary at Ex.P-12 shows that the claimant has been advised as "Non weight bearing ambulation with help of walker, regular sterile dressing". The discharge summary of both these Hospitals shows that at the time of the discharge, his vitals were stable, he was stable, conscious, oriented and afebrile. Therefore, I do not find any reason to come to the conclusion that he was required to be under any rest or bed-rest much less for a period of two months. However, considering the advise of the regular dressing and taking care of the wound, I am of the view that at the maximum, he might have taken rest for a period of one month. As such, the compensation towards loss of income during the laid up period requires to be reduced by a sum of `9,000/-.
18. Towards loss of amenities in life, the Tribunal has awarded a sum of `20,000/-, without attributing any
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MFA No. 3849 of 2020specific reason in that regard. When the injuries are not classified as grievous in nature, but it was only a soft tissue injury and when there is no medical evidence that due to the alleged soft tissue injury to his leg, he has been deprived of any amenities of life or comforts in life, I do not consider that the compensation awarded under the said head is required to be retained as it is, however, since the Tribunal has awarded some compensation under the said head, the same requires not to be allowed to an extent of `20,000/- but to be confined only to a sum of `10,000/-.
19. Lastly, depending upon the evidence of PW-1 and PW-2, the Tribunal has assessed that the claimant has suffered permanent disability at 11% as applicable to the whole body. In that regard, it relied upon the evidence of PW-2 Doctor, who, in his evidence, has stated that the assessment of the whole body disability of the claimant was at 11%. Admittedly the said Doctor, as PW-2, was not a treating Doctor of the claimant. When the claimant
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MFA No. 3849 of 2020had taken treatment in two major Hospitals, he could have requested one of the Doctors who treated him from either of those two Hospitals to come and depose about his injury and also with respect to the alleged disability, if any. However, for the reasons best known to him, the claimant has examined PW-2 - Doctor, who was not a Doctor working in either of those two Hospitals which have issued the discharge summaries at Ex.P-11 and Ex.P-12. The said PW-2 Doctor who claims to have been working at the relevant point of time at SOADS, has, in his cross- examination, clearly stated that he has not seen the discharge summary issued by the P.E.S. Institute of Medical Sciences and Research, Kuppam and that his assessment of disability is only based upon the discharge summary issued by the R.L. Jalappa Hospital and Research Centre only. The said witness has stated that in Ex.P-11, there was no mention that the claimant has been referred to the R.L. Jalappa Hospital and Research Centre, Kolar. Incidentally, there is no mention in Ex.P-11 that the patient required any further treatment by any
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MFA No. 3849 of 2020higher/superior Hospitals. On the other hand, as observed above, the claimant was discharged upon his request after ascertaining that his vitals were stable and that he was also stable. Therefore, there is nothing on record to show that it is on medical advise, the claimant had gone and admitted in the R.L.Jalappa Hospital and Research Centre as an in-patient. Thus, the discharge summary of the very first Hospital, i.e. P.E.S. Institute of Medical Sciences and Research, Kuppam, which in full-fledge treated the claimant for initial four days was not placed before PW-2 Doctor, for his verification and the alleged assessment of disability. Thus, PW-2 Doctor was handicapped with the necessary medical inputs for his assessment of alleged disability with which the claimant claims to have been suffering. The said witness in his cross-examination admitted as true that the discharge summary at Ex.P-12 issued by the R.L. Jalappa Hospital and Research Centre, Kolar, mentions that with respect to the right lower limb, the range of movements at knee as full and painless. The distal pulsations and sensations were stated to be
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MFA No. 3849 of 2020present and it was also shown that there was no distal neuro vascular deficits and that all other long bones and joints were clinically found normal. Despite such an observation about the absence of any peculiar or significant abnormalities about the injured right lower limb, still the claimant since was said to have complained about the weakness and stiffness in the right knee, inability to sit down, squat and cross-legged, the said PW-2 claims himself to be having clinically examined and assessed the disability at 11% to the whole body, but called the said disability as the physical disability which to right lower limb was assessed at 34% and when applied to the whole body, it was at 11%. Admittedly, nowhere the said witness has stated that the said disability, has, in any manner, affected the day-to-day routine work of the claimant. Nowhere, he (PW-2) has whispered about the alleged disability coming in the way of continuation of the avocation of the claimant. However, the Tribunal, without applying its mind, simply has been carried away with the Doctor's evidence about the percentage of disability and
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MFA No. 3849 of 2020applied the same percentage as the disability to compute the compensation under the head of loss of future income. Since the said percentage of disability now shown to be without any nexus with the alleged future loss of income, though the compensation awarded could have been negatived, still, I am of the view that, since the claimant is said to have complained about the inability to sit cross- legged and squat, the percentage of disability is confined only to 5% affecting his future income, but not at the extent of 11% as contended by PW-2 Doctor.
Admittedly, the age of the claimant was 38 years as at the time of the occurrence of the road traffic accident, as could be seen from his Aadhar Card produced at Ex.P-15, as such, the applicable multiplier is '15'. Thus the quantum of compensation towards loss of future income due to alleged permanent disability would come to a sum of `81,000/- (`9,000/-x12x'15'x5/100). Since the Tribunal has awarded a sum of `1,78,200/- under the said
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MFA No. 3849 of 2020head, the same is in excess of a sum of `97,200/- and needs to be disallowed.
20. Barring the above, the claimant is not entitled for compensation under any other heads or modification of the compensation under the existing heads, as such, the claimant (respondent No.1) is held entitled for a total compensation as follows:
Compensation Compensation Sl. awarded in Heads awarded by No. this Court in Tribunal in (` `) (` `) 1 Pain and sufferings 20,000-00 10,000-00 2 Medical expenses 16,186-00 16,186-00 Food and nourishment, 10,000-00 10,000-00 3 attendant and conveyance expenses Loss of income during 18,000-00 9,000-00 4 laid up period Loss of future income 1,78,200-00 81,000-00 5 due to disability Loss of amenities and 20,000-00 10,000-00 6 comforts in life Total 2,62,386-00 1,36,186-00 Rounded off to `2,62,500-00
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21. Since the Tribunal has awarded a compensation which is in excess by a sum of `1,26,314/-, the impugned judgment and award warrants interference in the form of modification at the hands of this Court. Thus, it is for the said extent, the compensation deserves to be reduced.
Accordingly, I proceed to pass the following:
ORDER [i] The appeal filed by the appellant- Insurance Company stands allowed in part;
[ii] The impugned common judgment and award, passed by the learned Chief Judge, Court of Small Causes, Bengaluru and Member, Principal Motor Accident Claims Tribunal, at Bengaluru, dated 29-01-2020, in so far as it pertains to M.V.C.No.3756/2018 is hereby modified to the extent that the compensation awarded at `2,62,500/- is reduced and restricted
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to a sum of `1,36,186/- (Rupees One Lakh Thirty Six Thousand One Hundred and Eighty Six only).
[iii] The rest of the order of the Tribunal with respect to fixing the liability upon the appellant Insurer and directing it to deposit the awarded amount, awarding the interest, its rate, by Tribunal shall remain unaltered and unmodified.
However, in view of the reduction of compensation in this appeal, the terms regarding the deposit and release of the compensation amount gets proportionately reduced to the extent of reduction of compensation by this Court.
The statutory amount in deposit by the appellant - Insurance Company in the Registry be transmitted to the Tribunal, without delay;
Draw the modified award accordingly.
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Registry to transmit a copy of this judgment to the concerned Tribunal, along with its records, without delay.
Sd/-
JUDGE BMV* List No.: 1 Sl No.: 63