Karnataka High Court
Smt Shashikala vs Jayalakshmamma on 11 April, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 8991 of 2011
C/W MFA No. 8018 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 8991 OF 2011
C/W
MISCELLANEOUS FIRST APPEAL NO. 8018 OF 2012 (MV-I)
IN MFA NO.8991/2011
BETWEEN:
SMT. SHASHIKALA
AGED ABOUT 26 YEARS
W/O MURTHY,
MALAVALLI TOWN ,
Digitally signed C/O SHIVALINGAIAH
by PAVITHRA B
MARALAGALA VILLAGE,
Location: HIGH
COURT OF SRIRANGAPATNA TALUK.
KARNATAKA ...APPELLANT
(BY SRI. SANTHOSH RAJ C. DESHMUKH, ADVOCATE)
AND:
1. JAYALAKSHMAMMA
MAJOR
DODDANAKUPPE VILLAGE,
VITALAPURA POST,
K R PETE TALUK,
MANDYA DISTRICT.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO LTD.,
NO.442/3-4, 2ND FLOOR,
CHAMARAJA DOUBLE ROAD,
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MFA No. 8991 of 2011
C/W MFA No. 8018 of 2012
RAMASWAMY CIRCLE, MYSORE.
...RESPONDENTS
(BY SRI.H. PAVANACHANDRA SHETTY, ADVOCATE FOR R1;
SRI. O. MAHESH, ADVOCATE FOR R2 (THROUGH VIDEO
CONFERENCE)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:24.6.2011 PASSED IN MVC
NO.1033/2009 ON THE FILE OF PRINCIPAL CIVIL JUDGE
(SR.DN.) & JMFC, SRIRANGAPATNA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.8018/2012
BETWEEN:
THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO LTD.,
NO 442/3/4, 2ND FLOOR,
CHAMARAJA DOUBLE ROAD,
RAMASWAMY CIRCLE,
MYSORE.
BY REGIONAL MANAGER,
UNITED INDIA INSURANCE CO LTD,
5TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD,
HUDSON CIRCLE,
BANGALORE - 560 027,
BY ITS MANAGER
...APPELLANT
(BY SRI. O MAHESH, ADVOCATE(THROUGH VIDEO
CONFERENCE)
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MFA No. 8991 of 2011
C/W MFA No. 8018 of 2012
AND:
1. SHASHIKALA
AGED ABOUT 28 YEARS,
W/O MURTHY,
D/O DOOLAIAH,
R/O MALAVALLI TOWN,
C/O SHIVALINGAIAH,
MARALAGALA VILLAGE,
SRIRANGAPATNA TALUK - 571 438.
2. JAYALAKSHMAMMA
MAJOR,NO 70,
DODDANAKUPPE VILLAGE,
VITALAPURA POST,
BOOKANAGERE HOBLI,
NEAR SCHOOL, K R PETE TALUK,
MANDYA DISTRICT - 571 401.
...RESPONDENTS
(BY SRI. V. N. JAGADEESH, ADVOCATE FOR R1; SRI. H.
PAVANACHANDRA SHETTY, ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:24.06.2011 PASSED IN MVC
NO.1033/2009 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE(SR.DN) AND JMFC, SRIRANGAPATNA, AWARDING A
COMPENSATION OF Rs.6,10,520/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.8991/2011 is filed by the claimant seeking enhancement of the compensation awarded by the Tribunal.
-4-MFA No. 8991 of 2011 C/W MFA No. 8018 of 2012
MFA No.8018/2012 is filed by the insurance company challenging the order of the Tribunal, on the ground that the insurance company is not liable to pay the compensation and also for seeking to reduce the quantum of compensation awarded by the Tribunal and also that the claimant had contributed negligence towards the accident.
Brief facts:
2. On 18.06.2009, at about 12.30 p.m., the claimant herein was standing on the road to cross towards Shikshakara Bhavana, Srirangapatna, at that time one lorry bearing registration No.KA-54-486, being driven by its driver in a rash and negligent manner, came from Bangalore side proceedings towards Mysore and while attempting to overtake another vehicle, came to the extreme right side and dashed against the claimant. Due to the impact, the claimant fell down and the wheel of the lorry ran over the right leg of the claimant. -5- MFA No. 8991 of 2011 C/W MFA No. 8018 of 2012
3. Hence, a claim petition was filed by the claimant under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the road traffic accident. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded compensation of Rs.6,10,520/- and held respondent No.2 therein liable to pay compensation.
4. Heard arguments of the learned counsel for the parties and perused the materials on record.
REGARDING RASH AND NEGLIGENT ASPECT:
5. It is stated that the claimant on 18.06.2009 at about 12.30 p.m., the claimant along with her husband and children were standing on the road to cross the road to go to Shikshakara Bhavana, Srirangapatna for participating in a marriage celebration. At that time, when the claimant had crossed half of the road and was standing on the divider at that time the tipper lorry coming from Bangalore side towards Mysore came in a rash and -6- MFA No. 8991 of 2011 C/W MFA No. 8018 of 2012 negligent manner and dashed the claimant and due to which the claimant sustained severe injuries to the right leg and ultimately resulting in amputation of right leg.
6. Considering the place of accident it is revealed from the FIR, complaint, spot-mahazar and charge-sheet that the accident has occurred in the Srirangapatna town just opposite to bus stand. On the other side of the road, there is Shikshakara Bhavana and the claimant had come from Malavalli and got down from the bus at Srirangapatna bus stand and to go to Shikshakara Bhavana for participating in a marriage celebration was crossing the road. At that time, a tipper lorry had come in a high speed and in rash and negligent manner and dashed the claimant.
7. Considering the place of accident as it is inside the town that too opposite to bus stand, the heavy vehicle, like that of the tipper lorry in question was supposed to drive carefully and cautiously. The place of accident is not -7- MFA No. 8991 of 2011 C/W MFA No. 8018 of 2012 Highway road so as to drive the vehicle speedily. When this tipper lorry being heavy transport was plying in the town that too opposite to bus stand, the driver of the tipper lorry was supposed to drive carefully and cautiously.
Normally, surrounding and opposite to bus stand the area will have thick density of population and there will be accumulation of people and there will be many shops and commercial activities and commuters, auto-rickshaw, bus- stand, cart station, etc., Hence, the driver of the heavy vehicle more particularly like tipper lorry are supposed to drive carefully cautiously. Therefore, it is on practice that when there is no sky-bridge or elevator, therefore, inevitably the people have to cross the road.
8. At this juncture, the drivers of the vehicles compulsorily have to slowed down the speed of the vehicle and drive with care and cautious. But in the present case, the tipper lorry was coming in high speed and in rash and negligent manner, without noticing the busy area and had -8- MFA No. 8991 of 2011 C/W MFA No. 8018 of 2012 dashed the claimant. Therefore, the driver of the tipper lorry was completely rash and negligent in driving the tipper lorry. The claimant was inevitably crossing the road and while crossing half of the road and was standing on the divider and that moment, the driver of the tipper lorry drove the same too extreme edge, which is nothing but rash and negligent driving, resulting in dashing the claimant.
9. Therefore, upon considering the averments in the complaint, FIR, spot-mahazar, charge-sheet, it is proved that the driver of the tipper lorry was completely rash and negligent in driving the lorry. The resultant investigation of the Police culminating into filing the charge-sheet that the driver of the tipper lorry was completely rash and negligent and dashed the claimant. Therefore, there is no negligent act on the part of the claimant. Therefore, it is proved that the tipper lorry was completely rash negligent.
-9-MFA No. 8991 of 2011 C/W MFA No. 8018 of 2012 REGARDING QUANTUM:
10. In the present case, the claimant is a woman aged 25 years and was a tailor and milk vendor. From the medical evidence on record and wound certificate, discharge card, x-ray films and evidence of Doctor PW-2, it is proved that the claimant had sustained compound Type- III fracture of both bones of right leg and the same is grievous in nature. PW-2 Doctor had deposed that initially surgery was conducted, but the bones were broken into pieces below knee and even if it was attempted to join the bones, but did not yield any result. Ultimately, resulting in amputation of right leg above the knee.
11. The Doctor in his evidence had stated that when the treatment was given to severed right leg, but it did not wield result and in order to save the life of the claimant inevitably the right leg was amputated above the knee. The Doctor has stated that the claimant had suffered 74% of physical disability which of permanent physical
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 disability towards right lower limb. The Tribunal has held the same percentage as functional disability while assessing the loss of future income due to disability which is on lower side. The aspect of physical disability and functional disability are two different aspects.
12. The learned counsel for the insurance company submitted that even amputation of one leg makes disability as 60%, as per the provisions of Employees Compensation Act. Therefore, requested to hold 60% as functional disability for assessing the quantum of compensation. But the claimant had suffered fracture of right leg above the knee, therefore the claimant being woman is not able to do her routine house hold work as well as tailor work and milk vending and therefore certainly it affects 100% functional disability.
13. The compensation awarded by the Tribunal is as follows:
- 11 -MFA No. 8991 of 2011
C/W MFA No. 8018 of 2012
1. Pain and Sufferings : Rs. 25,000/-
2. Medical Expenses : Rs. 79,000/-
3. Conveyance Attendant : Rs. 10,000/-
Charges, Nourishing Food
4. Loss of Income during Laid Up : Rs. 12,000/-
period
5. Loss of Future Earning Capacity : Rs. 4,79,520/-
Due to Disability
6. Loss of Amenities : Rs. 5,000/-
TOTAL : Rs. 6,10,520/-
14. In the present case, the claimant was working as a Tailor. The claimant had suffered amputation of right leg above knee, but the functional disability is not the same as that of physical disability. If the injured is not able to do the work as she was doing earlier to the accident, then that would be amounting to 100% of functional disability. The Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another 1, wherein at Paragraph Nos.12, 13 and 19, it is held as under:
1
(2011) 1 SCC 343
- 12 -MFA No. 8991 of 2011
C/W MFA No. 8018 of 2012
"12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning
- 13 -MFA No. 8991 of 2011 C/W MFA No. 8018 of 2012
capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
"19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income."
15. The Hon'ble Supreme Court in the case of Rekha Jain Vs., National Insurance Co., Ltd., and Others2 were pleased to consider that the injured has suffered 100% of functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured has suffered injury on the face and her face was disfigured. The injured is no longer to work in film or as a TV actress and had lost her entire 2 (2013) 8 SCC 389
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 earning capacity as a TV actress. Therefore, the Hon'ble Supreme Court considered it as 100% of functional disability. The principle of law laid down therein is squarely applicable to the case on hand.
16. The Hon'ble Supreme Court in the case of Jakir Hussein Vs. Sabir and Others3 were pleased to hold that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% of permanent physical disability, but it affects the avocation of the injured to carry out the profession as he was doing before the accident. Then it would amount to 100% of functional disability. The injured being a driver met with an accident and as per the doctor's evidence, he suffered 55% of permanent physical disability and cannot drive any motor vehicle in future. Therefore, with such disability, when the driver is not able to carry on the profession as driver, then it is amounting to functional disability and accordingly, awarded compensation by 3 (2015) 7 SCC 252
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 holding function al disability at 100%. Further the Hon'ble Supreme Court in the case of Mohan Soni Vs. Ram Avtar Tomar and Others4 had held that the injured being a cart-puller met with an accident and left leg was amputated below the knee. Under these circumstances, the Hon'ble Supreme Court held the functional disability at 100%. Since, the injured is not able to work as a cart- puller and had suffered functional disability at 100% and accordingly, awarded compensation.
17. The principle of law laid down regarding permanent physical disability and functional disability is applicable in the present case also. There may not be evidence of the doctor that the injured has suffered 100% of permanent physical disability, but the functional disability is to be considered on the basis of nature of injuries sustained and the profession of the injured/claimant.
4 (2012) 2 SCC 267
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012
18. As per the principle of law laid down by the Hon'ble Apex Court in the above stated cases wherein the claimants have suffered 100% disability for the injury sustained, the present case is also not different than assessing injury sustained and the functional disability. Therefore, where the resultant is amputation of right leg above knee hampered the life of the claimant and it substantially affects the earning capacity, future income and also future prospects in life, therefore it is a case of sustaining 100% disability by the claimant. Therefore, where the claimant sustained 100% functional disability, certain income is to be added towards 'loss of future prospects in life' while calculating compensation under head of 'loss of future income due to disability'.
19. The Division Bench of this Court in the case of New India Assurance Company Vs. Abdul S/o Mehaboob Tahasildar5 was pleased to lay down the law 5 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 that even in the case of injuries and disability having effected substantially and affects future prospects in life income is to be added to be towards loss of future prospects in life. Further, the Hon'ble Apex Court, in the case of National Insurance Co. Ltd. Vs. Pranay Sethi6 was pleased to issue guideline for additional income for certain age group. Therefore, 40% of income is to be added towards 'loss of future prospects in life' since the claimant is 25 years old woman.
20. The Tribunal has committed error in taking lesser income at Rs.3,000/- per month. The accident was caused in the year 2009. Therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.5,000/- is to be taken as notional monthly income of the claimant. The appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & DD.27.05.2022 6 (2017) 16 SCC 680
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 Others. Vs. Delhi Transport Corpn And Another7 is '18'. Therefore, the compensation under the head 'Loss of Earning Capacity Due to Disability' is recalculated and quantified as follows:
Rs.5,000/- + 2,000 (40% of 5,000) x 18 x 12 = Rs.15,12,000/-
Accordingly a sum of Rs.15,12,000/- is awarded under the said head.
21. The aforesaid injuries are grievous in nature. Therefore, considering this, the quantum of compensation awarded by the Tribunal under the head 'Pain and Sufferings, at Rs.25,000/-, is on lesser side and hence a sum of Rs.1,00,000/- is awarded.
22. The compensation amount awarded by the Tribunal under the 'Medical Expenses' at Rs.79,000/- is 7 AIR 2009 SC 3104
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 as per actual bills and receipts and the same is kept in tact.
23. In view of the accidental injuries, the claimant would have taken rest for atleast for a period of Six months. Therefore, by taking income at Rs.5,000/- per month and calculating the laid up period for Six months, the claimant is entitled for a sum of Rs.30,000/- (Rs.5,000 x 6 months), under the head 'Loss Of Earning During Laid Up Period'.
24. The Tribunal has awarded compensation towards 'Loss Of Amenities' at Rs.5,000/-, which is on lesser side and hence a sum of Rs.50,000/- is awarded under the said head.
25. The claimant had suffered amputation of right leg therefore the claimant is needed artificial limb and for other cares in case of complication. Therefore a sum of
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 Rs.2,00,000/- is awarded towards 'Future Medical Expenses'.
26. The Tribunal has awarded compensation towards 'Food, Nourishment, Conveyance and Attendant Charges' at Rs.10,000/-, which is on lesser side and hence a sum of Rs.40,000/- is awarded under the said head.
27. Therefore, in modification of the award of the Tribunal, the appellant-claimant is entitled to the following compensation:
1. Pain and Sufferings : Rs. 1,00,000/-
2. Medical Expenses : Rs. 79,000/-
3. Conveyance Attendant : Rs. 40,000/-
Charges, Nourishing Food
4. Loss of Income during Laid Up : Rs. 30,000/-
period (Rs.5,000 x 6)
5. Loss of Future Earning : Rs. 15,12,000/-
Capacity Due to Disability (5000 + 2000 (40% of 5000) x 18 x 12)
6. Loss of Amenities : Rs. 50,000/-
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012
7. Future Medical Expenses : Rs. 2,00,000/-
TOTAL : Rs. 20,11,000/-
28. Therefore, the appellant-claimant is entitled for compensation of Rs.20,11,000/- as against Rs.6,10,520/-. The appellant - claimant is entitled for an additional compensation of Rs.14,00,480/- (Rs.20,11,000 - Rs.6,10,520) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. However, the claimant is not entitled for interest for the delayed period of 12 days in filing the appeal. REGARDING LIABILITY:
29. In the present case, the offending vehicle is a tipper lorry which is Heavy Transport Vehicle. The Tribunal has fastened the liability on the insurance company, only on the ground that there is an existing insurance policy without discussing any other aspect of liability. The appellant - insurance company has filed an application
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 under Order-41, Rule-27 of CPC producing certified copy of history sheet of the Drivers belonging to the driver of the tipper lorry. On perusal of the application, it is seen that there are sufficient grounds made out for allowing the application. Therefore, the application filed for filing additional evidence is allowed and the cross-examination and history of the driving license is considered for appreciating the evidence of record.
30. The appellant - insurance company has produced history sheet of driver which belongs to the driver of the tipper lorry. As per this document evidence the particulars of driving license, the driver of the tipper lorry was holding the driving license to drive Light Motor Vehicle (Non-Transport) also the driver of the tipper lorry was authorised to drive the Heavy Goods Vehicle w.e.f. 2.11.2004 to 1.11.2007.
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012
31. The offending vehicle in question is a Heavy Transport Vehicle. The said Driving License for driving transport expired on 01.11.2007. The accident was caused on 18.06.2009. Therefore, as on the date of accident the driver was not holding the Driving License to drive the Heavy Transport Vehicle, as the license to drive the Heavy Transport vehicle expired much before the accident. Therefore, the insurance company has successfully established the defence under Sub-Section-(2) of Section- 149 of M.V. Act.
32. In the present case, it is proved that the driver of the offending vehicle did not have valid and effective driving license and hence it is a case of 'No Driving License' as observed above. Therefore, the Insurance Company has successfully established its defence as per Sub-section (2) of Section 149 of MV Act as the driver was not holding driving licence. Therefore, as per Sub-sections (1), (5) & (7) of Section-149 of the MV Act, the Insurance
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 Company as if judgment debtor shall satisfy the compensation to the claimant at the first instance, since the claimant is the third party and then recover it from the owner of the tipper lorry bearing No.KA-54-486, as per the principles of law laid down by the Hon'ble Supreme Court in the cases of National Insurance Company Limited Vs. Swaran Singh And Others 8, Pappu And Others -V- Vinod Kumar Lamba and Another9 and full bench decision of the court in New India Assurance Company Limited vs. Yellavva And Another 10. Hence, an order of pay and recovery is made. Accordingly, I proceed to pass the following:
ORDER i. MFA No.8991/2011 filed by the claimant is Allowed In Part.
8 (200 4 ) 3 SCC 29 7 9 (2018) 3 SCC 208 10 2 02 0 ACJ 2 560 (H CK )
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C/W MFA No. 8018 of 2012
ii. MFA No.8018/2012 filed by the insurance company is Allowed in Part.
iii. The impugned judgment and award dated 24.6.2011 , passed in MVC No.1033/2009 on the file of Principal Civil Judge (Sr.Dn.) & JMFC, Srirangapatna is modified to the aforesaid extent.
iv. The appellant - claimant is entitled for an additional compensation of Rs.14,00,480/- (Rs.20,11,000 - Rs.6,10,520) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Insurance Company is directed to deposit the amount of total compensation within Eight Weeks from the date of receipt of the certified copy of this judgment and then recover the said amount from owner of the tipper lorry. However, the claimant is not entitled for
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MFA No. 8991 of 2011C/W MFA No. 8018 of 2012 interest for the delayed period of 12 days in filing the appeal.
v. The amount in deposit shall be transmitted to the Tribunal forthwith.
vi. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
vii. Draw award accordingly.
viii. No order as to costs.
Sd/-
JUDGE JJ List No.: 1 Sl No.: 2