Karnataka High Court
Shri D Vijayakumar vs The Managing Director on 7 June, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:19350
MFA No. 6661 of 2012
C/W MFA No. 8140 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 6661 OF 2012 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8140 OF 2012
IN MFA NO. 6661/2012
BETWEEN:
SHRI. D VIJAYAKUMAR,
S/O DODDAMARAIAH,
AGED ABOUT 28 YEARS,
R/AT BASAVESHWARA LAYOUT,
NAGASHETTYHALLI,
SANJAYANAGARA POST,
BANGALORE - 560 094.
...APPELLANT
Digitally signed by (BY SRI. SHRIPAD V SHASTRI, ADVOCATE)
VIJAYALAKSHMI B N
Location: HIGH
COURT OF AND:
KARNATAKA
1. THE MANAGING DIRECTOR,
B.M.T.C., K.H.ROAD,
BANGALORE - 560 027.
2. THE UNITED INDIA INSURANCE COMPANY LIMITED,
NO.40, 1ST FLOOR,'LAKSHMI COMPLEX',
OPP. VANI VILAS HOSPITAL,
K.R.ROAD, FORT,
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NC: 2023:KHC:19350
MFA No. 6661 of 2012
C/W MFA No. 8140 of 2012
BANGALORE - 560 002,
BY ITS MANAGER.
...RESPONDENTS
(BY SRI. F S DABALI, ADVCATE FOR R1;
SRI. RAVISH BENNI, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 03.04.2012 PASSED IN MVC
NO.1961/2009 ON THE FILE OF THE XII ADDITIONAL SMALL
CAUSE JUDGE, MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 8140/2012
BETWEEN:
1. SMT. SHARADAMMA,
W/O LATE CHANNE GOWDA,
AGED ABOUT 48 YEARS
2. SMT. L MAHALAKSHMI,
D/O LATE CHANNE GOWDA,
AGED ABOUT 25 YEARS,
BOTH ARE R/AT NO. 5TH CROSS,
ULLALA MAIN ROAD,
BANGALORE.
...APPELLANTS
(BY SRI. M RAJA SHEKAR, ADVOCATE FOR
SRI. K M SHANMUKHAPPA, ADVOCATE)
AND:
1. BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
NO.40, 1ST FLOOR,
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MFA No. 6661 of 2012
C/W MFA No. 8140 of 2012
'LAKSHMI COMPLEX',
OPPOSITE TO VANI VILAS HOSPITAL,
K.R.ROAD, FORT,
BANGALORE - 560 002
2. MANAGING DIRECTOR,
B.M.T.C, K.H. ROAD,
BANGALORE - 560 002.
3. SRI. V SRINIVASA,
S/O SRI. P VENKATAPPA,
NO.218/A, 3RD CROSS,
NEAR BANASAWADI BUS STOP,
BANGALORE - 560 043.
4. THE MANAGER,
ROYAL SUNDARAM ALLIANZ INSURANCE CO., LTD.,
SUNDARAM TOWERS,
46 WHITES ROAD,
ROYAPETTAH,
CHENNAI - 600 014.
...RESPONDENTS
(BY SRI. RAVISH BENNI, ADVOCATE FOR R1;
SRI. O MAHESH, ADVOCATE FOR R4;
R2 AND R3 NOTICE DISPENSED WITH VIDE ORDER DATED
09.06.2015)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19.1.2012 PASSED IN MVC
NO.4115/2009 ON THE FILE OF THE MEMBER, MACT, X ADDL.
JUDGE, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 6661 of 2012
C/W MFA No. 8140 of 2012
JUDGMENT
MFA No.6661/2012 is filed by the driver of Maruthi Omni Van who is a claimant challenging the judgment and award dated 03.04.2012 passed in MVC No.1961/2009 by the Motor Accident Claims Tribunal, Bengaluru, questioning contributory negligence at 50% held against him and also seeks for enhancement of compensation.
2. MFA No.8140/2012 is filed by the claimants challenging the judgment and award dated 19.01.2012 passed in MVC No.4115/2009 by the Motor Accident Claims Tribunal, Bangalore (SCCH-16) seeking for enhancement of compensation.
3. Brief facts in both the cases are that:
On 21.12.2008 at about 10.45 a.m., one Mr. G. Ravish, S/o. Gangaiah being the driver of a BMTC bus bearing No. KA-01-F-2433 drove the same on Laggere new ring road in a direction from South to North with high speed and in a rash and negligent manner, in front of -5- NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 Ashwini Granites near Chowdeshwari pipe line, he abruptly took right turn without showing any indication with intent to take 'U' turn and in doing so, he dashed left side front door of the Maruthi Omni Van bearing No.KA-01-MC-5691 which was coming from behind in the same direction on the said road. As a result, the said Maruthi Van crossed the median line and dashed against the lorry bearing No.KA-17-2208 coming from opposite direction. The claimant in MVC No.1961/2009 sustained injuries and he has filed claim petition and the deceased in MVC No.4115/2012 succumbed to injuries and his L.Rs have filed claim petition, seeking compensation.
4. Heard arguments of learned counsel for the appellant and the learned counsel for the respondent- Insurance Company and perused the records.
5. Learned counsel for claimant who was driving Maruthi Omni Van submitted that the BMTC bus and Maruthi Omni Van are moving in the same direction on the outer ring road and there is a 'U' turn and the driver of -6- NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 BMTC bus in order to take 'U' turn, abruptly turned to the right side of the road without giving any indicator/signal, dashed the Maruthi Omni Van which is on the right side of the bus and in turn the Maruthi Omni Van hit the lorry which was coming from the opposite side and thus in this way, the claimant being driver of Maruthi Omni Van had sustained injuries but the accident was caused entirely due to rash and negligence by the driver of BMTC bus which is also observed in the complaint given by the Police constable. The Tribunal has given a finding that the driver of Maruthi Omni Van has contributed 50% rash and negligence which is not correct and prays for modification of the judgment and award holding that the driver of the BMTC bus is completely 100% rash and negligent in causing the accident and also prays for enhancing the compensation.
6. On the other hand, learned counsel for respondent-BMTC justifies the judgment and award passed -7- NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 by the Tribunal. Therefore, prays to dismiss the appeal filed by the claimants.
Regarding rashness and negligence:
(In MFA No.6661/2012 and in MFA No.8140/2012)
7. The Tribunal has held that the drivers of both Maruthi Omni Van and BMTC bus have contributed 50% rashness and negligence in causing the accident. As such, there is equal contribution of rashness and negligence by both drivers of BMTC bus and Maruthi Omni Van. But upon perusing Ex.P2-complaint which is lodged by police constable, the police constable who was on duty, upon receiving information that the accident was occurred, he immediately rushed to the place of accident and saw that the driver of BMTC without giving signal or indicator drove the bus towards right side and hit the Maruthi Omni Van. The bus was also moving in the same direction as that of Maruthi Omni Van. The place of accident is at outer ring road. Therefore, in the complaint, it is revealed that the driver of the bus without giving any indicator/signal drove -8- NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 the bus towards right side of the road. Ex.P4 is the spot sketch and Ex.P3 is the spot mahazar. More particularly, Ex.P4 - spot sketch proves that the drivers of BMTC bus and Maruthi Omni Van are moving in the same direction and there was a space for taking 'U' turn on the same road and the BMTC bus was on the left side of the Maruthi Omni Van drove the bus abruptly towards right side and thus, the bus had impacted on the left front portion of Maruthi Omni Van, in turn, Maruthi Omni Van hit the lorry which was coming from South to North direction. Therefore, when the entire scenario of the accident is perused, the road is outer ring road and it is expected that the movement of vehicles on both sides of the road is in a slight faster manner. There is a median on the middle of the two roads and also there is space for taking 'U' turn. The evidence on record proves that there is space for taking 'U' turn and when the BMTC bus and Maruthi Omni Van were moving in the same direction parallel to each other and the BMTC bus was on the left side of Maruthi Omni Van, if the driver of BMTC bus intended to take the -9- NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 bus towards right side, it is incumbent on the driver of BMTC bus to slow down the bus until the Maruthi Omni Van passes ahead and making free space towards right side for the purpose of taking 'U' turn, then the driver of BMTC bus was supposed to move the bus on right side that too by giving indicator/signal compulsorily. When this scenario is considered, the accident was caused because of the fact that the BMTC bus driver even though noticing that Maruthi Omni Van was in the same direction to that of bus which was maintaining its lane may be to move towards right side, the driver of BMTC bus ought to have slowed down the bus and then after making free space towards right side for taking 'U' turn, should have moved the bus. Without taking this precaution, the driver of BMTC bus has suddenly moved to the right side, hit the left front portion of the Maruthi Omni Van and in turn Maruthi Omni Van had hit the lorry which was coming on other side of the road from South to North direction. Therefore, considering this entire scenario of the accident, the BMTC bus driver was found to be entirely rash and
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 negligent in driving the bus and responsible for this multiple accident. Just because in the charge sheet, offence is foisted against drivers of both BMTC and Maruthi Omni Van, that does not mean that the driver of Maruthi Omni Van has also contributed his rashness and negligence in causing the accident.
8. The Tribunal/this Court has to assess the evidence on record independently without being influenced by the charge sheet. The purpose of filing charge sheet is for the offence committed by the offenders by alleging guilt of rashness and negligence in causing the accident. But the Tribunal/this Court has to evaluate the evidence in order to find out whether the drivers of BMTC bus or Maruthi Omni Van were rash and negligent or not but also to consider who is completely rash and negligent in driving the vehicle. This makes the difference in evaluating and appreciating evidence before the Tribunal and before the Criminal Court. The Tribunal has also observed that if the driver of BMTC bus had slowed down the bus, then
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 accident could have been avoided. But the Tribunal while fastening the liability, held that the driver of Maruthi Omni Van is also responsible for causing accident but has not discussed the manner in which the driver of Maruthi Omni Van is responsible for causing accident. Therefore, upon re-appreciating the entire evidence on record as discussed above, the driver of the BMTC bus is found to be completely rash and negligent but not the claimant being the driver of Maruthi Omni Van. Therefore, in this regard, the finding on Issue No.1 as held by the Tribunal holding 50% contributory negligence is liable to be set aside. Accordingly, it is held that driver of BMTC bus was completely rash and negligent in driving the bus and caused accident for the reasons discussed above.
9. The Tribunal while answering issue No.1 and giving a finding, held that Maruthi Omni Van has contributed 50% of rashness and negligence and the driver of lorry had contributed 50% of rashness and negligence and caused accident. There is no finding on
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 issue No.1 that the BMTC bus driver had caused accident and what percentage is not mentioned but it has mentioned directly in the operative portion of the judgment. The Tribunal had held that the insurer of BMTC bus and Maruthi Omni Van are liable to pay the compensation. Therefore, there is no coherence in the finding and conclusion of the Tribunal regarding the driver of the BMTC bus which has contributed rashness and negligence and how much percentage of negligence is contributed in causing the accident has to be mentioned. Therefore, upon appreciating the evidence on record, the finding given by the Tribunal is completely perverse and illegal and the same has to be modified upon re- appreciating the evidence on record. Therefore, it is held the driver of BMTC bus was completely 100% rash and negligent.
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 Regarding compensation:
In MFA No.6661/2012:
10. The Tribunal has awarded compensation under various heads as follows:
SL. PARTICULARS AMOUNT
NO. (IN.RS.)
1. Pain and agony 60,000.00
2. Loss of income during laid up 40,000.00
period
3. Loss of earning capacity on 1,62,000.00
account of permanent
disability
4. Loss of happiness and future 5,000.00
amenities
5. Medical and incidental 1,35,000.00
expenses
6. Future medical expenses 20,000.00
Total 4,22,000.00
11. The medical evidence on record, viz., the discharge summary and other medical records including the evidence of doctor prove that upon taking x-ray and scan, the claimant had suffered following injuries:
a) closed fracture shaft of left femur upper 1/3rd
b) closed fracture shaft of right femur upper 1/3rd
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c) Type II compound fracture left distal radius with lower 1/3rd fracture ulna and
d) fracture distal radius right wrist Therefore, considering the injuries sustained by the claimants, the compensation amount awarded under the head injuries for pain and suffering is on lower side and the same is enhanced to Rs.75,000/-.
12. The compensation awarded by the Tribunal under the head 'loss of income during laid up period' is found to be just and proper and the same is kept intact.
13. The Tribunal has awarded compensation of Rs.1,62,000/- under the head 'loss of earning capacity on account of permanent disability' is on lesser side. From the above reasoning, it is proved that the claimant had suffered multiple fracture injuries which are grievous in nature. Doctor is examined as PW.3 and he has stated that the claimant had suffered following physical disability:
a) He has persistent stiffness in the knee with inability to squat and difficulty to climb up stairs,
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012
b) He has stiffness of both wrists making difficult tasks to perform,
c) The range of movements of right knee is lost by 33%,
d) There is no loss of muscle strength acting on the right lower limb,
e) unable to squat
f) The range of movements of left knee is lost by 33%,
g) There is no loss of muscle strength acting on the left lower limb,
h) unable to squat,
i) decreased movements in the right wrist,
j) wrist flexion and extension 40%,
k) There is no involvement of hand function,
l) decreased movements of the left wrist,
m) wrist flexion and extension is 50%,
n) there is no involvement of hand function.
14. The doctor who treated the claimant has assessed the physical disability of the claimant at 19.3% to the right lower limb and 25.3% to the left lower limb and 9% to the right upper limb and 11% to the left upper limb
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 and also there is a evidence that the doctor has stated that the claimant had suffered 22% physical disability towards whole body. The Tribunal upon accepting the evidence of PW.3-doctor had considered that the claimant had suffered 22% physical disability towards whole body. The aspect of physical disability and functional disability are different. The claimant was driver by profession. Certainly, the fractures caused to the claimant for all the four limbs affects his earning capacity and also his profession as driver. Therefore, by following the principle of law laid down in case of Raj Kumar Vs. Ajay Kumar and Another,1, it is just and proper to take 25% as functional disability which affect the earning capacity of the claimant. Further, as per the judgment of this Court in the case of New India Assurance Company Ltd., Vs. Abdul & Others2, has held that in the case of injury suffered like in the present case, additional income has to be added towards loss of 1 reported in (2 01 1) 1 SC C 3 43 2 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018 DD.27.05.2022
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 future prospects due to disability due to injuries sustained. Therefore, as per judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi3 and considering the age of the claimant, 40% of his monthly income is added towards 'Loss of Future Prospects in Life' and the appropriate multiplier to be taken is 18. The accident is of the year 2008. The notional income of the claimant has to be taken at Rs.4,500/- p.m. as recognized by the Karnataka State Legal Services Authority. Therefore, loss of earning capacity on account of permanent disability is hereby re-assessed and quantified as follows:
4,500/- + 1,800/- (40% of 4,500) x 25/100x18 x 12 = Rs.3,40,200/-.
15. Further, the compensation awarded under the head 'loss of amenities' is meager. Considering the nature of injuries and disability suffered by the claimant, the same is enhanced to Rs.50,000/-. Further, the 3 reported in (2017) 16 SCC 680
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 compensation of Rs.1,35,000/- awarded under the head 'medical and incidental expenses' is on the lower side. The claimant had produced the medical bills and other incidental charges at Rs.1,28,426/. Therefore, a compensation of Rs.1,30,000/- is awarded under the head medical expenses and hospitalization charges.
16. Considering the nature of injuries sustained by the claimant and also he has taken treatment and undergone surgery, Rs.40,000/- is awarded for incidental expenses like food, conveyance, nursing and attendant charges. Further, the compensation awarded under 'Future medical expenses' is not disturbed and the same is kept intact.
17. Thus, in all, the claimant is entitled for the following compensation:
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NC: 2023:KHC:19350
MFA No. 6661 of 2012
C/W MFA No. 8140 of 2012
SL.NO. PARTICULARS AMOUNT
(IN.RS.)
1. Pain and agony 50,000.00
2. Loss of income during laid up 40,000.00
period
3. Loss of earning capacity on 3,40,200.00
account of permanent
disability
4. Loss of happiness and future 50,000.00
amenities
5. Medical and incidental 1,70,000.00
expenses
6. Future medical expenses 20,000.00
7. Incidental expenses 40,000.00
Total 7,10,200.00
18. The Tribunal has awarded the compensation of Rs.4,22,000/-, but the appellant/claimant is entitled to total compensation of Rs.7,10,200/-. Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.2,88,200/- (Rs.7,10,200/- - Rs.4,22,000/-) along with interest @ 6% p.a., from the date of petition till its realization.
In MFA No.8140/2012:
19. The Tribunal has awarded compensation under various heads as follows:
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NC: 2023:KHC:19350
MFA No. 6661 of 2012
C/W MFA No. 8140 of 2012
SL. PARTICULARS AMOUNT
NO. (IN.RS.)
1. Compensation towards loss of 4,86,000.00
dependency
2. Compensation towards 10,000.00
funeral expenses
3. Compensation towards loss of 10,000.00
estate
4. Compensation towards loss of 10,000.00
love and affection
5. Compensation towards 5,000.00
transportation of dead body
Total 5,21,000.00
20. In the present case, the deceased was 20 years old and she was working as Receptionist at HCL Technologies Limited and she was earning a salary of Rs.8,372/- p.m. The claimants are mother and sister of deceased.
21. The Tribunal has taken the income at Rs.4,500/- p.m. which is not correct and it ought to have been taken at Rs.7,487/- i.e. actual salary paid to the deceased.
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22. Ex.P14 is the salary slip of the deceased and Ex.P13 is the appointment letter which proves that the deceased was working as Receptionist in HCL Technologies Limited and was receiving a salary of Rs.7,487/-p.m. Further, 40% of income is added towards future prospects as per Pranay Sethi's case. Since the deceased was a bachelor, 1/2 of the amount is to be deducted towards her personal expenses. Therefore, the appropriate multiplier is '18'. Therefore, the loss of dependency is hereby re- assessed and quantified as under:
Rs.7,487 + Rs.2,995 (40% of Rs.8,500) = Rs.10,482/- Rs.10,482 x 1/2 x 18 x 12 = Rs.11,32,056/-
Accordingly, a sum of Rs.11,32,056/- is awarded under the head 'loss of dependency'.
23. Further, the Tribunal has granted Rs.10,000/- under the head 'loss of love and affection' which is on the lesser side. The claimants are mother and sister. Therefore, they are entitled Rs.40,000/- each under the head 'loss of consortium'. The loss of love and affection
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 and loss of consortium are more or less having similar connotations. Therefore, the compensation of Rs.80,000/- (Rs.40,000x2) is awarded under the head 'loss of consortium'. Further, the compensation of Rs.15,000/- each is awarded under the heads 'funeral expenses' and 'transportation charges'. A sum of Rs.5,000/- is awarded towards transportation of dead body.
24. Thus, in all, the claimants are entitled for the following sums:
Sl. Particulars Amount
No. (in.Rs.)
1. Compensation towards loss of 11,32,056.00
dependency
2. Compensation towards 15,000.00
funeral expenses
3. Compensation towards loss of 15,000.00
estate
4. Compensation towards loss of 80,000.00
consortium
5. Compensation towards 5,000.00
transportation of dead body
Total 12,47,056.00
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MFA No. 6661 of 2012
C/W MFA No. 8140 of 2012
25. The Tribunal has awarded the compensation of Rs.5,21,000/-, but the appellants/claimants are entitled to total compensation of Rs.12,47,056/-. Therefore, the appellants/claimants are entitled to enhanced compensation of Rs.7,26,056/- (Rs.12,47,056/- - Rs.5,21,000/-) with interest at the rate of 6% p.a., from the date of petition till realization, in addition to what has been awarded by the Tribunal.
26. Accordingly, I pass the following:
ORDER i. The appeals in MFA No.6661/2012 and MFA No.8140/2012 are allowed in part.
ii. The impugned judgment and award dated 03.04.2012, passed in MVC No.1961/2009, (MFA No.6661/2012) on the file of Motor Accident Claims Tribunal, Bengaluru, is modified to an extent that the appellant -
claimant is entitled for an additional compensation of Rs.2,88,200/- (Rupees two Lakhs eighty eight thousand and two hundred only), along with interest at 6% per
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NC: 2023:KHC:19350 MFA No. 6661 of 2012 C/W MFA No. 8140 of 2012 annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal.
iii. The impugned judgment and award dated 19.01.2012, passed in MVC No.4115/2009, (MFA No.8140/2012) on the file of Motor Accident Claims Tribunal, Bengaluru, is modified to an extent that the appellants - claimants are entitled for an additional compensation of Rs.7,26,056/- (Rupees Seven lakhs twenty six thousand and fifty six Only) (Rs.12,47,056/- - Rs.5,21,000/-) along with interest at 6% per annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal.
iv. The appellant/claimant is not entitled for interest for the delayed period of 105 days in filing the appeal.
v. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order forthwith without any delay.
vi. Draw award accordingly.
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C/W MFA No. 8140 of 2012
vii. Costs made easy.
viii. The other observations and findings of the Tribunal are kept in tact.
Sd/-
JUDGE SSD