Karnataka High Court
Smt Mamatha vs Aliakbar on 21 February, 2023
-1-
MFA No. 3374/2018
C/w MFA No. 3371/2018
MFA No. 4066/2018
MFA No. 4067/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
MISCELLANEOUS FIRST APPEAL No.3374/2018 (MV-D)
C/w
MISCELLANEOUS FIRST APPEAL No.3371/2018 (MV-D),
MISCELLANEOUS FIRST APPEAL No.4066/2018 (MV-D),
MISCELLANEOUS FIRST APPEAL No.4067/2018 (MV-D)
M.F.A.No.3374/2018:
BETWEEN:
1. SMT MAMATHA
W/O LATE VENKATRAJU
AGED ABOUT 28 YEARS
2. KUMARI PRATIKSHA @ MAHADEVAMMA
D/O LATE VENKATRAJU
AGED ABOUT 4 YEARS
APPELLANT NO.2 BEING MINOR
REP.BY HER NATURAL GUARDIAN
MOTHER, APPELLANT NO.1
Digitally
signed by K S BOTH ARE R/AT KALALE VILLAGE
RENUKAMBA NANJANGUD TALUK
Location: High
Court of MYSURU DISTRICT - 571 118 ...APPELLANTS
Karnataka
(BY SRI H.V.BHANU PRAKASH, ADVOCATE)
M.F.A.NO.3371/2018:
BETWEEN:
1. SMT CHIKKANNAMMA
D/O SHANKARNAYAKA
AGED ABOUT 42 YEARS
2. SMT LAKSHMAMMA
W/O SHANKARNAYAKA
AGED ABOUT 62 YEARS
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MFA No. 3374/2018
C/w MFA No. 3371/2018
MFA No. 4066/2018
MFA No. 4067/2018
BOTH ARE R/AT YECHAGUNDLA VILLAGE
NANJANGUD TALUK, MYSURU DISTRICT
MYSURU - 571 118 ...APPELLANTS
(BY SRI H.V.BHANU PRAKASH, ADVOCATE)
AND:
1. ALIAKBAR
S/O KOCHUMUKHAHMED
MAJOR
R/AT ARREPPURATH HOUSE
VELLANGALLUR POST, TRISHUR
KERALA-680 662
2. DIVISIONAL MANAGER
HDFC ERGO GENERAL INSURANCE
COMPANY LIMITED
MAHARAJA COMPLEX
OPPOSITE TO SUB-URBAN BUS STATION
B N ROAD, MYSURU - 570 001 ...RESPONDENTS
(COMMON)
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH VIDE COURT ORDER
DATED 14.06.2022 IN M.F.A.NO.3374/2018;
R1 SERVED IN M.F.A.NO.3371/2018)
THESE MISCELLANEOUS FIRST APPEALS ARE FILED U/S
173(1) OF M.V.ACT PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED 01.03.2018 PASSED BY THE SENIOR CIVIL
JUDGE & JMFC, MACT, NANJANGUD IN MVC NO.1095/2016 AND
MVC NO.1094/2016.
M.F.A.No.4066/2018:
BETWEEN:
THE DIVISIONAL MANAGER
HDFC ERGO GENERAL INSURANCE
COMPANY LIMITED
MAHARAJA COMPLEX
OPPOSITE TO SUB-URBAN BUS STAND
B N ROAD, MYSURU
NOW REPTD. BY THE LEGAL MANAGER
HDFC ERGO GIC LTD.,
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MFA No. 3374/2018
C/w MFA No. 3371/2018
MFA No. 4066/2018
MFA No. 4067/2018
NO.25/1, SHANKARA NARAYANA BUILDING
M.G.ROAD, BENGALURU - 560 001 ...APPELLANT
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE)
AND:
1. SMT CHIKKANNAMMA
D/O SHANKARANAYAKA
AGED ABOUT 42 YEARS
2. SMT LAKSHMAMMA
D/O SHANKARANAYAKA
AGED ABOUT 62 YEARS
BOTH ARE R/AT YECHAGUNDLA VILLAGE
NANJANGUD TALUK, MYSURU DISTRICT
MYSURU - 571 118
3. SRI ALIAKBAR
S/O KOCHUMUKHAHMED
MAJOR
R/AT ARREPPURATH HOUSE
VELLANGALLUR POST, TRISHUR
KERALA-680 662 ...RESPONDENTS
(BY SRI H.V.BHANU PRAKASH, ADVOCATE FOR R1 & R2;
R3 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V.ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 01.03.2018 PASSED BY THE
SENIOR CIVIL JUDGE & JMFC, MACT, NANJANGUD IN MVC
NO.1094/2016 AWARDING COMPENSATION OF RS.7,32,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
ITS DEPOSIT.
M.F.A.No.4067/2018:
BETWEEN:
THE DIVISIONAL MANAGER
HDFC ERGO GENERAL INSURANCE
COMPANY LIMITED
MAHARAJA COMPLEX
OPPOSITE TO SUB-URBAN BUS STAND
B N ROAD, MYSURU
NOW REPTD. BY THE LEGAL MANAGER
-4-
MFA No. 3374/2018
C/w MFA No. 3371/2018
MFA No. 4066/2018
MFA No. 4067/2018
HDFC ERGO GIC LTD.,
NO.25/1, SHANKARA NARAYANA BUILDING
M.G.ROAD, BENGALURU - 560 001 ... APPELLANT
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE)
AND:
1. SMT MAMATHA
W/O LATE VENKATARAJU
AGED ABOUT 32 YEARS
2. PRATIKSHA @ MAHADEVAMMA
D/O LATE VENKATARAJU
AGED ABOUT 4 YEARS
R2 BEING MINOR
REP. BY HER NATURAL GUARDIAN
MOTHER R1
BOTH ARE R/AT KALALE VILLAGE
NANJANGUD TALUK
MYSURU DISTRICT - 571 118
3. SRI ALIAKBAR
S/O KOCHUMUKHAHMED
MAJOR
R/AT ARREPPURTH HOUSE
VELLANAGALLUR POST, TRISHUR
KERALA-680 662 ...RESPONDENTS
(BY SRI H.V.BHANU PRAKASH, ADVOCATE FOR R1 & R2;
R3 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V.ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 01.03.2018 PASSED BY THE
SENIOR CIVIL JUDGE & JMFC, MACT, NANJANGUD IN MVC
NO.1095/2016 AWARDING COMPENSATION OF RS.9,02,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
ITS DEPOSIT.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
FURTHER HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
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MFA No. 3374/2018
C/w MFA No. 3371/2018
MFA No. 4066/2018
MFA No. 4067/2018
JUDGMENT
These four appeals arise out of common award dated 01.03.2018 passed in M.V.C.No.1094/2016 and M.V.C.No.1095/2016 on the file of the Senior Civil Judge & JMFC, MACT, Nanjangud.
2. M.V.C.No.1094/2016 was filed by the claimants claiming compensation for death of one Nagaraju. M.V.C.No.1095/2016 was filed by the claimants claiming compensation for death of one Venkataraju. For the purpose of convenience, the parties will be referred to according to their ranks before the Tribunal.
3. Claimant Nos.1 and 2 in M.V.C.No.1094/2016 are the mother and grandmother of the deceased Nagaraju. Claimant Nos.1 and 2 in M.V.C.No.1095/2016 are the widow and the minor son of the deceased Venkataraju.
4. On 29.04.2016 at 2.00 p.m. when Nagaraju and Venkataraju were traveling in lorry bearing registration No.KL-07-Z-2142 from Harepura to Nanjangudu, the said lorry met with accident at Sindhuvallypura within the limits of Nanjangudu Traffic Police Station. Due to the injuries suffered in the accident, Venkataraju died on the spot and -6- MFA No. 3374/2018 C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 Nagaraju was shifted to K.R.Hospital, Mysore. He succumbed to the injuries in the hospital on 30.04.2016. At the relevant time, respondent Nos.1 & 2 were the registered owner and Insurer of the lorry bearing No.KL-07-Z-2142. The police on investigation charge sheeted the driver of the lorry as per Ex.P7 for the offences punishable under Sections 279, 337, 338, 304A of IPC r/w Section 187 of the Motor Vehicles Act, 1988 ('M.V.Act' for short).
5. The claimants filed M.V.C.No.1094/2016 and M.V.C.No.1095/2016 claiming that they were dependant on the income of the deceased Venkataraju and Nagaraju respectively, due to their deaths, they have suffered damages. They claimed that respondent Nos.1 and 2 being owner and Insurer of the offending lorry were liable to pay the compensation.
6. Respondent No.2 alone contested the matters denying occurrence of the accident due to rash and negligent driving of the lorry, age, occupation, income of the deceased and its liability to pay the compensation. Respondent No.2 contended that at the time of the alleged -7- MFA No. 3374/2018 C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 accident, the driver of the lorry was not holding valid driving licence and the vehicle had no fitness certificate and permit. It was denied that the deceased were traveling in lorry as loaders. It was contended that they were gratuitous passengers, thereby insured has committed breach of the policy conditions. Therefore Insurer is not liable to pay the compensation.
7. The Tribunal on recording the evidence of the parties and on hearing them, by the impugned award held that the accident occurred due to rash and negligent driving of the lorry by its driver. It was further held that the Insurer has failed to prove its defence of breach of policy conditions viz., the driver not holding valid driving licence, vehicle had no fitness certificate and permit etc. Therefore Insurer is liable to compensate the damages. In M.V.C.No.1094/2016 the Tribunal awarded compensation of Rs.7,32,000/-. In M.V.C.No.1095/2016 the Tribunal awarded compensation of Rs.9,02,000/-.
8. Questioning the adequacy of the compensation awarded to them, the claimants have preferred M.F.A.No.3374/2018 and M.F.A.No.3371/2018. Questioning -8- MFA No. 3374/2018 C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 its liability to pay the compensation and quantum of compensation, the Insurer has preferred M.F.A.No.4066/2018 and M.F.A.No.4067/2018. Submissions of Sri A.N.Krishnaswamy, learned Counsel for the Insurer:
9. The evidence on record shows that the victims were traveling as gratuitous passengers. The Tribunal did not consider the defence of the Insurer regarding respondent No.1 not possessing valid fitness certificate and permit of the vehicle. The Tribunal failed to note that the liability of Insurer is subject to the insured adhering to the provisions of the M.V.Act including Section 134(c) of the M.V.Act. Even assuming that the claimants are entitled to any compensation, the Tribunal should have directed the Insurer to pay the compensation and recover from the Insured. The owner of the vehicle did not comply with the notice of the Insurer to produce the documents. The judgments of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh1 and Pappu v. Vinod Kumar Lamba2 apply to the third party victims and not to 1 (2004) 3 SCC 297 2 (2018) 3 SCC 208 -9- MFA No. 3374/2018 C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 the gratuitous passengers. Even assuming that the deceased were traveling in the vehicle as loaders, then the judgment of the Hon'ble Supreme Court in Beli Ram v. Rajinder Kumar3 applies. In such cases, the employer and consequently the Insurer are liable to pay the compensation as per the Schedule under the Workmen's Compensation Act, 1923. Neither the police nor the owner of the vehicle has issued notice to the Insurer regarding occurrence of the accident which is mandatory as per the judgment of the Hon'ble Supreme Court in Gohar Mohammed v. Uttar Pradesh State Road Transport Corporation4. Submissions of Sri H.V.Bhanu Prakash, learned Counsel for the claimants:
10. The policy Ex.R2 clearly shows that the same covers the risk of loaders. The evidence of RW.1 shows that respondent No.2 had not made any efforts to collect the copies of the driving licence, permit from the RTO office. RW.1 admits that she had seen the RC Book of the vehicle and where that was registered. The burden of proving its defence was on the Insurer, which was not done. Therefore 3 2020 ACJ 3000 4 2022 SCC Online 1769
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 the Tribunal was justified in fastening the liability to the Insurer. The compensation awarded to the claimants on all the heads is on the lower side. In support of his submissions, he relies on the following judgments:
(i) Rishi Pal Singh v. New India Assurance Co.
Ltd.5
(ii) Oriental Insurance Co. Ltd. v. Dyamavva6
(iii) The Branch Manager v. Shakuntala @ Shankunthalamma7
11. In the light of the submissions of both side and material on record, the points that arise for consideration of this Court are:
(i) Whether the Insurer proved its defence that, there was breach of policy condition, therefore it was exonerated of its liability?
(ii) Whether the compensation awarded in M.V.C.No.1094/2016 is just one?
(iii) Whether the compensation awarded in M.V.C.No.1095/2016 is just one?
Reg. Point No.1:
12. The first contention of the Insured was that the policy did not cover the risk of the loader. Ex.R2 the policy 5 Civil Appeal No.4919/2022 DD 26.07.2022 6 (2013) 9 SCC 406 7 MFA Nos.8715/2017 C/w 336/2018 DD 03.01.2023
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 shows that the premium of Rs.50/- was collected towards liability to person employed in connection with the operation (Indian Motor Tariff-39). IMT-39 in the General Regulations for the Insurer reads as follows:
"IMT.39. Legal Liability to persons employed in connection with the operation and/or maintaining and/or Loading and/or Unloading of Motor Vehicles"
13. Reading of IMT 39 shows that in case of goods vehicle in consideration of the payment of an additional premium, insurer shall indemnify the insured against the liability under the Workmen's Compensation Act, 1923 and Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver or that of the loader. Therefore there is no merit in the contention that the policy did not cover the risk of loaders.
14. Then the question is whether the deceased was traveling as loaders in the vehicle. To prove that the claimants relied on Exs.P1 to P5 the complaint, first information report, spot mahazar, sketch, certified copy of the MV Inspector's Report and the charge sheet. The aforesaid documents show that at the time of the accident, the victims were traveling in the lorry loaded with sized
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 stone. In the complaint, it is alleged that the deceased were traveling as loaders in the lorry.
15. PW.3 was another inmate of the lorry. He was also injured witness. He is cited as CW.2 in the charge sheet as per Ex.P7. He deposes that on the ill fated day he was the cleaner in the lorry and the lorry was carrying load of building stones and the victims were traveling as loaders in the lorry. PW.3 in his cross-examination denies the suggestion that he was not the cleaner of the lorry. Though in the cross-examination he says that there were six persons in the cabin, his evidence in the chief examination that the victims were traveling as loaders was not controverted in his evidence or in his cross-examination. By such evidence, the claimants discharged their initial burden of proving the fact that the deceased were traveling in the lorry as loaders. To substantiate its defence, the Insurer examined only RW.1 the legal Manager. But RW.1 was not the eyewitness to the incident. It is not the case of the Insurer that it got conducted internal investigation. The evidence of RW.1 was of no help to the Insurer to show that the victims were travelling as gratuitous passengers.
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018
16. Regarding the vehicle not possessing valid registration certificate, fitness certificate and the driver not possessing the driving licence, RW.1 in her cross- examination admits that she has examined the RC book of the offending lorry which contained the particulars of office of the regional transport officer where the vehicle was registered. She also admits that during the course of internal investigation, the company has secured Xerox copy of the driving licence from the police station. She states that they have not collected any record from the RTO regarding the driving licence and the permit of the vehicle. She deposes that only because the owner of the lorry did not produce the documents in reply to their notice, she says that there was no valid driving licence and permit.
17. When the insurer had seen the RC book of the offending vehicle, then the burden was on them to examine the concerned RTO to show that the vehicle did not possess required fitness certificate and permit. Under the circumstances, the Tribunal was justified in holding that the insurer has failed to prove its defence that the driver was
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 not possessing valid driving licence or the vehicle had valid registration certificate or fitness certificate.
18. The next contention of respondent No.2 is that at the time of accident, vehicle was not having valid fitness certificate, permit and driver of vehicle was not possessing valid driving license. To substantiate the said contention, respondent No.2 examined its official as RW.1. She deposed in consonance with the pleadings regarding lack of valid driving license, permit and fitness certificate. Though in the cross-examination she stated that insurer has not tried to get copies of driving license and permit from the concerned RTO. The records show that respondent No.2 filed an application before the Tribunal under Order XI Rule 14 read with Section 151 of CPC calling upon respondent No.1 to produce permit and driving licence. Despite service of notice, he did not turn up and produce the said documents. The claimant's own document Ex.P.7 shows that driver of the vehicle was charge sheeted for the offence punishable under Section 187 of M.V. Act.
19. Section 187 of M.V.Act makes punishable the act of infringement of Sections 132 to 134 of M.V.Act.
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 Section 132 of M.V.Act requires driver of motorcycle to stop the vehicle on the requisition of Police whenever accident occurs, Section 133 of M.V.Act imposes duty on the owner of vehicle to give information of the name, address and license of the driver or conductor of the vehicle on requisition of Police. Section 134(c) of the M.V.Act requires the driver to furnish information regarding insurance policy, accident, particulars of the persons injured or killed and particulars of driving license whenever the accident occurs. Thereby, it goes to show that before the police also, particulars of driving license or copy of driving license or vehicle documents were not produced.
20. Respondent No.1 firstly did not contest the matter and secondly, despite service of notice for production of documents did not produce the same. Therefore, adverse inference has to be drawn against him. Still the policy being in force as on the date of accident was not disputed. Under such circumstances, the judgment of the Hon'ble Supreme Court in Pappu and Swaran Singh's cases referred to supra apply and the insurer is liable to
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 pay the compensation to the claimants and recover the same from respondent No.1.
Reg. Quantum of compensation in MVC No.1094/2016:
21. In this case, as per PM Report Ex.P8, victim Nagaraju was aged 20 years. Though the claimants claim that he was earning Rs.18,000/- p.m. as a loader, there was no proof of actual income. The Tribunal considered his notional income at Rs.6,500/- per month. Having regard to age, occupation of deceased, the prevailing rate of wages during the said period, notional income considered by the Tribunal is on the lower side. The Tribunal should have considered the same at Rs.9,500/- p.m.
22. Since the deceased is not in any permanent job, in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi8, 40% of the income has to be super added by way of future prospects, which comes to Rs.9,500/- +Rs.3,800/- = Rs.13,300/-. Since the deceased Nagaraju was a bachelor, for his personal expenses half of his income has to be deducted. Therefore, loss of dependency per 8 AIR 2017 SC 5157
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 month comes to Rs.13,300/-x1/2 = Rs.6,650/-. The applicable multiplier for his age is 18. Therefore, the compensation payable on the head of loss of dependency is Rs.6,650/- x 12 x 18 = Rs.14,36,900/-.
23. As per the judgment of the Hon'ble Supreme Court in Pranay Sethi's case and Magma General Insurance Company Ltd. v. Nanu Ram9 case, each of the claimants are entitled to compensation of Rs.40,000/- on the head consortium. The claimants are entitled to compensation of Rs.15,000/- on the head of loss of estate and Rs.15,000/- for funeral expenses and transportation. Therefore, the just compensation payable to claimants in this case is as follows;
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency 14,36,400/-
2. Loss of consortium 80,000/-
3. Loss of estate 15,000/-
4. Funeral expenses & 15,000/-
Transportation
Total 15,46,400/-
Reg. Quantum of compensation in MVC No.1095/2016:
24. In this case, as per PM Report Ex.P6, deceased Venkataraju was aged 34 years and was a loader. In this 9 2018 (18) SCC 130
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018 case also, there was no proof of actual income and the Tribunal took Rs.6,500/- per month. For the reasons applied in the connected case, the Tribunal should have taken the notional income of the deceased as Rs.9,500/- per month, super-adding 40% to the same as future prospects, it comes to Rs.13,300/-. Since the deceased had two dependents, 1/3rd has to be deducted for his personal expenses. Therefore, monthly income on the loss of dependency is Rs.13,300/-x 2/3=Rs.8,866.66 rounded off to Rs.8,867/-. For his age, the applicable multiplier is
16. Therefore, the compensation payable on the head loss of dependency comes to Rs.8,867x12x16 = Rs.17,02,464/-.
25. In this case, each of the claimants are entitled to consortium of Rs.40,000/-. They are entitled to compensation of Rs.15,000/- on the head loss of estate and Rs.15,000/- for funeral expenses. Therefore, the just compensation payable in this case are as follows:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency 17,02,464/-
2. Loss of consortium 80,000/-
3. Loss of estate 15,000/-
4. Funeral expenses & 15,000/-
Transportation
Total 18,12,464/-
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MFA No. 3374/2018
C/w MFA No. 3371/2018
MFA No. 4066/2018
MFA No. 4067/2018
26. For the aforesaid reasons, the appeals of the insurer and claimants deserve to be allowed in part. Hence, the following:
ORDER The appeals are partly allowed. The award in M.V.C.No.1094/2016 and M.V.C.No.1095/2016 are modified as follows:
(i) The claimants in M.V.C.No.1094/2016 are entitled to compensation of Rs.15,46,400/- with interest thereon at 6% p.a. from the date of petition till the date of deposit.
(ii) The claimants in M.V.C.No.1095/2016 are entitled to compensation of Rs.18,12,464/- with interest thereon with 6% p.a. from the date of petition till date of realization.
(iii) Respondent No.1 is liable to pay the said compensation. However, respondent No.2 shall deposit the said compensation before the Tribunal on adjusting the compensation already deposited, if any, within four weeks from the date of receipt of copy of this order and recover the same from respondent No.1.
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MFA No. 3374/2018C/w MFA No. 3371/2018 MFA No. 4066/2018 MFA No. 4067/2018
(iv) The awards of the Tribunal with regard to apportionment and investment are maintained.
(v) Registry shall transmit the amount in deposit, if any, and the records to the Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE KSR,MV List No.: 1 Sl No.: 26