Karnataka High Court
Munikrishna Murthy @ Munikrishna vs Abraham on 29 September, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.677/2010 (MV)
BETWEEN:
MUNIKRISHNA MURTHY @ MUNIKRISHNA
S/O. LATE MUNIYAPPA,
AGED ABOUT 23 YEARS,
RESIDING AT C.T. GOLLAHALLI VILLAGE,
NANDAGUDI HOBLI,
HOSKOTE TALUK,
BENGALURU DISTRICT.
... APPELLANT
(BY SRI.B.N. MURALIDHAR, ADVOCATE - THROUGH VC)
AND:
1. ABRAHAM,
S/O. MUNIVELA,
AGED ABOUT 50 YEARS,
NO.346, CHIRANJIVI LAYOUT,
HEBBALA, KEMPAPURA MAIN ROAD,
BENGALURU.
2. THE ORIENTAL INSURANCE CO.LTD.,
CB 07, PENYA B.O. NO.20,
100 FEET ROAD, JALAHALLI CROSS,
CHOKKASANDRA,
BENGALURU.
.... RESPONDENTS
(BY SRI.M. SOWRIRAJU, ADV. FOR R2 - PHYSICAL
HEARING; NOTICE TO R1 IS HELD SUFFICIENT)
-:2:-
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWRD DATED
01.09.2009 PASSED IN MVC NO.286/2005 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT-I, KOLAR,
FOR ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL DISPOSAL THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment and award dated 1.9.2009 passed in MVC No.286/2005 by the Presiding Officer, Fast Track Court - I, Kolar, challenging the liability and also the quantum of compensation, since the Tribunal has fastened liability on the owner - respondent No.1.
2. The factual matrix of the case is that:
On 2.3.2005 at about 1.30 p.m., the petitioner/ appellant was traveling in a Tempo bearing Registration No.KA-04/B-622 owned by respondent No.1 with his mother as coolies for loading and unloading carrot bags and the driver of the Tempo drove in a rash and negligent manner. As a result, the Tempo was turtled. The claimant and other persons who were traveling in the said Tempo sustained grievous injuries. Immediately, the claimant -:3:- was shifted to SNR Hospital, Kolar, where he was inpatient for about two months, spent Rs.75,000/- towards medical expenses. The claimant has become physically handicapped due to the injuries sustained by him in the said accident and hence, the claim petition was filed before the Tribunal.
In pursuance of the notice issued to respondent Nos.1 & 2, both of them appeared and filed their written statement through their respective counsels.
The first respondent denied the averments made in the claim petition. However, contended that the vehicle is insured with the second respondent, if there is any liability, the same has to be fastened on the second respondent insurance company.
The second respondent - insurance company in the written statement denied the averments made in the claim petition and contended that the claimant was traveling in the Tempo as a passenger in the goods Carrier Tempo, so there is a breach of policy. Hence, the insurance company is not liable to pay any sort of compensation. -:4:-
The claimant in order to substantiate the claim has examined the brother of the injured as PW-1 and also examined the doctor as PW-2. The claimant got marked the documents Exhibits P-1 to P-20. The respondents have not adduced any evidence before the Tribunal. The Tribunal after considering both oral and documentary evidence, allowed the claim petition in part granting compensation of Rs.1,81,600/- with interest at 6% p.a., directing the owner of the vehicle to pay compensation and exonerated liability of the insurance company. Hence, the present appeal is filed before this court.
3. In the present appeal, the main contention of the claimant is that the Tribunal has committed an error in not considering both oral and documentary available on record. The Tribunal has committed an error in awarding an amount of Rs.30,000/- under the head of pain and sufferings and also erred in awarding an amount of Rs.50,000/- towards medicine and attendant charges, food and nourishment despite arriving at a finding that only medical bills for Rs.30,912/- has been produced. The Tribunal also committed an error in awarding an amount of -:5:- Rs.20,000/- under the head 'loss of future amenities' without appreciating the total disability at 80%, since he has suffered brain damage and has ignored the evidence of the doctor who has been examined as PW-2. The Tribunal has also committed an error in taking the annual income of the petitioner at Rs.80/- per day and also committed an error in taking the multiplier 16 instead of 18. The Tribunal also committed an error in awarding interest at the rate of 6% p.a., and hence it requires interference by this court.
4. The other contention of the claimant before this court is that the Tribunal has committed an error in holding that the petitioner is a gratuitous passenger even though it is not the case of either of the parties and erred in dismissing the petition against the second respondent without appreciating the terms and conditions of the policy. Hence, it requires interference by this court.
5. The learned counsel appearing for the claimant in his argument has re-iterated the grounds urged in the appeal memorandum and also brought to the notice of this court about the contention mentioned in paragraph 7 of -:6:- the judgment, has come to the conclusion that he was traveling in the said Tempo for loading carrot bags in the said Tempo and on the basis of oral and documentary evidence, the court has come to the conclusion that the petitioner's brother has proved that the accident was due to the rash and negligent driving of the Tempo. The learned counsel also brought to the notice of this court paragraph 9 of the judgment wherein, it has held that the petitioner was traveling in a goods vehicle and the company is not liable to pay any sort of compensation as there was a breach of policy.
6. As per the arguments canvassed by the learned counsel for the respondent, the Tribunal again observed on going through the decision of the Hon'ble Apex Court, it is clear that the petitioner was traveling as a gratuitous passenger in the goods vehicle and therefore, the liability or the risk will not be covered by the insurance company and hence, exonerated the insurance company.
7. The learned counsel for the appellant submits that in the document Ex.P-1 copy of FIR, a specific averment is made that the injured was traveling in the -:7:- goods vehicle as loader and un-loader and the other materials placed before the court is clear that he was traveling as a loader and un-loader i.e., as coolies. The Tribunal has failed to consider the fact that though the insurance company took the defence of he was a gratuitous passenger, but no evidence has been adduced and none of the documents are placed before the Tribunal, in spite the defence was taken that he was a gratuitous passenger. In the absence of any materials both oral and documentary and cogent evidence, the Tribunal has given a finding in one breadth that he was a gratuitous passenger and in another breadth he was a loader and un- loader and hence, the Tribunal has committed an error.
8. The learned counsel for the appellant also submits that he was aged about 18 years at the time of accident and the Tribunal has taken the income at Rs.80/- per day. Though PW-2 doctor has deposed in his evidence that the claimant has suffered brain injury and suffered damage to upper limp and lower limp taken 20% of income for assessing future loss of income and committed and -:8:- error in awarding just and reasonable compensation and hence, requires interference by this Court.
9. Per contra, the learned counsel appearing for the insurance company submits that the Tribunal has not committed any error in exonerating liability on the insurance company since the claimant was traveling as a gratuitous passenger. Even though no evidence has led before the Tribunal, the claimant has not substantiated the contention that he was traveling as a coolie and when such being the case, the question of fastening liability does not arise.
10. In reply to the arguments advanced by respondent No.2 - insurance company, the learned counsel for the appellant relies upon the judgment of this court reported in MANU/KA/0778/2011 in the case of The New India Assurance Co. Ltd., Vs. Manjulamma and Others and brought to my notice paragraph 12 of the judgment, wherein this court has held that - "risk of workmen/loaders in a Tractor and Trailor is necessary to be covered u/s.147 of the Act as an Act policy without collecting any additional premium and the insurer would be -:9:- liable to pay the entire compensation amount in terms of the Act by relying upon the judgment rendered in Mounesh Vs. Thimmanna and Others [MANU/KA/1359/2010 : 2011 (1) KCCR 341]."
11. The learned counsel for the appellant also relied upon the judgment of the division bench of this court reported in MANU/KA/1110/2009 in the case of Shivarama Parameshwara Hegde Vs. Subray Honnappa Naik and Others wherein this court at paragraph 24 has observed thus:
"24. xxxxx the claimant has specifically contended that he was accompanying the goods i.e., cow and calf for transporting from one destination to another. It is during transit that the unfortunate accident occurred. He therefore, claimed to have accompanied the goods. The provisions of Section 147 extracted above undoubtedly covers the person accompanying the goods as also his representative. Therefore, statutorily also, the person accompanying the goods is covered."
12. The learned counsel for the appellant also relied upon the judgment of this Court reported in
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MANU/KA/0659/2020 in the case of The New India Assurance Co. Ltd., Vs. Ramesh and Others, and brought to the notice of this court paragraph 10 wherein this court has held that - "the evidence on record clearly indicated that the owner of the goods Basavarajappa had employed the claimants who were engaged in the business of loading and un-loading. In my view, the claimants thus would be the authorized representatives of the owner of the goods."
13. The learned counsel for the appellant has also relied upon the judgment of Orissa High Court reported in MANU/OR/0182/2013 in the case of Pinkey Naik vs. ICICI Lombard General Insurance Co. Ltd., and Others, wherein the Orissa High Court has held at Head Note that -
"Payment of liability - deceased traveling as a Khalasi or coolie for loading and un-loading of the goods - the vehicle in question is a 'goods carriage' and the deceased was being carried as a Khalasi, within the permissible seating or carrying capacity specified in the policy - deceased covered
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under the insurance policy issued in respect of such a vehicle, as per the proviso to Section -
insurance company is liable to pay the awarded compensation."
14. Having heard the arguments of the learned counsel for the appellant and also the learned counsel appearing for respondent No.2 and also on perusal of the materials available on record, the points that would arise for consideration of this court are:
(1) Whether the Tribunal has
committed an error in exonerating the
liability of the insurance company in
coming to the conclusion that the
claimant/injured was a gratuitous
passenger?
(2) Whether the Tribunal has
committed an error in not awarding just
and reasonable compensation?
(3) What order?
15. Having heard the arguments of the respective counsels and on perusal of the materials available on record, the claimant in the claim petition has specifically contended that on the date of the accident, he was traveling in the vehicle of the first respondent Tempo with
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his mother as coolies for loading and un-loading carrot bags and due to the rash and negligent driving of the vehicle, the accident occurred and the claimant sustained grievous injuries. The respondent No.2 - insurance company in the written statement denied the averments made in the claim petition and contended that the liability is subject to the terms and conditions of the policy. At paragraphs 19 and 20 of the written statement, the insurance company has taken a specific contention that - Since the tempo is a goods vehicle and is intended to carry goods only and any person traveling in the Tempo, the risk of such person or passenger has not been covered under the policy of insurance. As such, the insurance company is not liable to pay any compensation to the claimant, as he was an un-authorised passenger.
16. The claimant in order to substantiate his contention examined his brother as PW-1. PW-1 Muniraja has deposed in paragraph 3 of his affidavit and re-
iterated that his brother was traveling in the vehicle of the first respondent insured with the second respondent insurance company along with his mother as coolies for
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loading and unloading carrot towards Thoranahalli village and he was subjected to cross examination. In the cross examination, PW-1 re-iterates that both of them were traveling as loader and un-loader in the vehicle belongs to the first respondent as coolies. In the cross examination, a suggestion was made that more than 20 persons were traveling as passengers but the said suggestion was denied and nothing is elicited in the cross examination that he was traveling as passenger as contended in the written statement. The respondent insurance company though took a specific defene that the claimant was a gratuitous passenger but not adduced any oral evidence and also not produced any documentary evidence before the Tribunal.
17. On perusal of the document Ex.P1 complaint, which clearly discloses that as on the date of the accident, they were proceeding in the vehicle as coolies and that they pluck the carrots and they were transporting the same in the goods vehicle towards Thoranahalli. In the cross examination of PW-1, with regard to Ex.P1, there is no cross examination except suggesting that they were
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proceeding as passengers and not disputed the document Ex.P-1.
18. On perusal of both oral and documentary evidence, PW-1 has re-iterated the averments of claim petition and also the complaint which was given on the same day of the accident i.e., on 2.3.2005. The driver of the vehicle also pleaded guilty before the Court in terms of Ex.P-18. Though the respondent insurance company took the defence that the claimant was traveling as passenger, but not produced any material before the court that he was traveling as passenger. The very document Ex.P-1 complaint discloses that the claimant was travelling as a coolie. Merely taking the defence that he was a passenger without any document, the same has to be substantiated.
The Hon'ble Apex Court in the judgment reported in AIR 2018 SC 2057 in the case of Smt. Suvarnamma and another Vs. United India Insurance Co.Ltd., has categorically held that - mere statement that victim was unlawfully traveling in the tractor without any evidence cannot be taken into consideration. The insurance company in order to substantiate the defence did not
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choose to examine either any official or driver of the goods vehicle and also any of the persons including the Investigating Officer. The defence remains as defence only and when such being the case and when the oral and documentary evidence substantiate the contention that the claimant was coolie and traveled in the goods vehicle, the Tribunal has committed an error in coming to the conclusion that he was a gratuitous passenger. The Tribunal has committed an error though in paragraph 7 of the judgment comes to the conclusion that he was a coolie, but while fastening the liability, the Tribunal has come to the conclusion that he was a gratuitous passenger. In order to substantiate that he was a gratuitous passenger, there is no material before the court either oral or documentary. Hence, the Tribunal has committed an error in exonerating the insurance company and fastening the liability against the owner. Hence, I answer Point No.1 in the 'Affirmative'.
19. POINT NO.2: With regard to the quantum of compensation is concerned, it is seen that the accident is of the year 2005 and it is the case of the claimant that he
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was a coolie. Though the claimant claims compensation, no where he has mentioned as to what was his income. In order to prove this, the brother of the claimant is examined as PW-1. PW-1 in his affidavit has stated that he was earning Rs.250/- to 300/- per day. In the cross examination, he has categorically admits that he has not produced any document to prove his earnings. However, he claims that he was earning Rs.400/- per day. The claimant was also examined the doctor as PW-2 and in his evidence, has deposed that the claimant has suffered - "diffuse axonal injury and motor weakness on the right side of the body and cerebellar symptoms on the left side. He is having difficulty in doing daily activities for living due to the above symptoms. He has difficulty in feeding himself, inability to express in spoken language, difficulty in maintaining personal hygiene and self care, has difficulty in walking and has shaking of left upper limb." The doctor who examined before the Tribunal with regard to Right Upper Limb is concerned, has assessed Motor Power 2/5 in shoulders; 2/5 in Elbow; 0/5 in wrist; and Hand Grip 0; Muscle wasting in biceps, triceps, muscles of
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arm and forearm. With regard to Right Lower Limb is concerned, the doctor has deposed that he has got shortening of right lower limb to the extent of 7 cms. Compared to left lower limb and assessed Motor Power 2/5 in hip; 2/5 in Knee and 0/5 in ankle and wasting of muscle as noted in thigh and calf muscles. With regard to Left Upper Limb is concerned the doctor has deposed that Tremulousness of the left lower limb noted on initiation of movement or action and opined that Finger nose test - positive. Motor power 3/5 in shoulder; 3/5 in elbow, 3/5 in wrist. With regard to Left Lower Limb is concerned, the doctor has deposed that the patient has difficulty in walking. Knee heel test positive and has opined that no sensory deficlets and no bowel/bladder mrolrement. The doctor has further deposed that the examination of the patient reveals that he was suffering from (a) Right Hemi paresis; (b) Left Cerebellar symptoms; and (c) Severe Dysarthria - as a result of post head injury sequelae and to assess the degree of disability the disability rating scale was administered. The doctor has assessed the disability to the extent of 80% and the patient requires attendant.
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This witness was subjected to cross examination. In the cross examination, he has categorically admits that the claimant has suffered injury to left side head and tried to treat him suggesting tablets, but the claimant has not recovered. He also admits that he cannot assess the disability in respect of orthopedic disability and he has assessed the disability in respect of nerve disability. He further re-iterates that when there is a damage to brain, there is a chance of shaking of the hand. He also says that due to brain injury, his memory is also affected. It is suggested that in order to help the claimant he has issued false certificate and giving false evidence before the Tribunal but the said suggestion was denied.
20. Having perused the oral and documentary evidence, particularly Ex.P-4 NIMHANS Hospital report and Ex.P-10 Disability Assessment issued when the injured was taken to NIMHANS Hospital, wherein it is specifically mentioned that the claimant has suffered Diffuse Axonal injury and Motor weakness on the right side of the body and cerebellar symptoms on the left side and also mentioned that there is a shortening of 7 cms. in the right
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lower limp compared to left lower limp and this document was issued on 26.11.2008 i.e., almost after three years of the accident. The claimant also relies upon the document Ex.P-5 discharge summary issued by the R.L. Jalappa Hospital & Research Centre, Kolar. He was discharged on
14.4.2005 after hospitalization for a period of two months from 3.3.2005. The claimant also relies upon the document Ex.P-6 RL Jalappa Hospital's OPD Card. The claimant also relied upon - Ex.P--7 Prescription slip of Wockhardt Hospital, Ex.P-8 CT scan report, Ex.P-9 Bill of Narayana Hrudayalaya. CT Scan report of brain which is marked at Ex.P-8 discloses that there is a focal hypo density in the posterior limb of internal capsule on the left side. The left mid brain cerebral peduncle is hypodense and atrophic and there is likelihood of representing Wallerian degeneration. These could be changes secondary to diffuse axonal injury from prior trauma. This was done on 9.1.2006. The disability certificate is also produced as Ex.P-10. The same is issued by the doctor PW-2 and his signature is marked as Ex.P10(A).
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21. Having taken note of all these oral and documentary evidence, it is clear that though this accident was taken in the year 2005, he was continued to take treatment till 2008 and thereafter, he was not examined before the Tribunal and the doctor PW-2 has categorically deposed that the claimant was not in a position to speak and hence, the brother of the claimant was examined as PW-1.
22. Having taken note of the nature of injuries suffered and hospitalization, the Tribunal has not awarded the just and reasonable compensation and the same requires re-consideration. The claimant was in the hospital from 2.3.2005 till April, 2005 and subsequently also, he was treated in different hospitals and hence, I am of the opinion that the claimant is entitled for the just and reasonable compensation and it is modified awarding a sum of Rs.75,000/- as against Rs.30,000/- awarded by the Tribunal under the head of 'pain and sufferings'.
23. On perusal of the records, it is seen that medical bills worth Rs.30,912/- are produced apart from Rs.10,400/- awarded towards, nutritious food and
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nourishment, attendant charges conveyance and other incidental expenses. The Tribunal has awarded an amount of Rs.50,000/- towards Medical and other expenses. Based on the documentary evidence, it appears that he had spent more amount than the amount awarded, as he was an inpatient for about two months in the hospital and thereafter he took follow up treatment and hence, the same has to be enhanced to another sum of Rs.10,000/- under the head of conveyance, food and nourishment and other incidental expenses instead of Rs.50,000/-, the same is enhanced to Rs.60,000/-.
24. The Tribunal has awarded an amount of Rs.20,000/- under the head of 'loss of amenities'. The doctor who has been examined before the Tribunal assessed disability at 80%. No doubt he has suffered brain injury and also the other injuries which resulted disability in upper limb and lower limb and he is not in a position to speak and PW-2 has assessed the disability in respect of his mental condition and when such being the case and when he is not able to speak, the Tribunal ought to have considered the loss of amenities little more because he was
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aged about 18 years at the time of accident and he has to live with the disability of 80% throughout the rest of his life. Therefore, the Tribunal has committed an error in taking the disability at 20% when the claimant has suffered brain injury and there was a disability in respect of both the upper limb and lower limb, the Tribunal ought not to have taken the disability at 20% which is nothing but functional disability of a person. The Tribunal has lost sight of the evidence of the doctor PW-2 who has stated 80% disability. The court has to look into the functional disability as the claimant is not in a position to speak, move and there is a shortening of leg by 7 cms. and the same has not been appreciated properly by the Tribunal. It is a case of 100% disability if we take into consideration the evidence of PW-2 . Though PW2 is not an orthopedic doctor, his evidence is clear and has stated that the claimant is almost in a position of vegetable status. Therefore, the claimant is entitled for a sum of Rs.1,00,000/- as against Rs.20,000/- awarded by the Tribunal towards 'loss of amenities'.
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25. Now, coming to the quantum of compensation, in respect of loss of income is concerned, the claimant was in the hospital for a period of two months and also suffered brain injury and also injury to the left and right, upper and lower limb on account of the accident. The question of awarding compensation under the head of loss of income during laid up period does not arise since the disability is taken at 100%.
26. Now, with regard to future loss of income is concerned, the Tribunal has taken the future loss of income at Rs.81,600/-. Since this accident is of the year 2005, the Tribunal ought to have taken atleast appropriate notional income of the claimant as Rs.3,000/- per month. Hence, taking the income at the rate of Rs.3,000/- per month with 18 multiplier, the loss of future income on account of disability works out to Rs.6,48,000/- [3,000/- x 12 x 18 M x 100% disability] as against Rs.81,600/- awarded by the Tribunal.
27. The claimant was aged about 18 years at the time of accident. Due to the accident, the claimant has lost the marriage prospectus. Taking note of his pathetic
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condition, I am of the opinion that it is appropriate to award an amount of Rs.1,00,000/- towards marriage prospectus.
28. The doctor who has been examined as PW-2 has deposed categorically in his evidence that the claimant requires an attendant and also considering 100% disability and in view of the judgment of the Hon'ble Apex Court reported in (2020) 4 SCC 413 in the case of Kajal Vs. Jagdish Chand and Others, wherein the Hon'ble Apex Court has held that - not only the court has to multiply the loss of future income of the injured who has suffered disability to the extent of 100%, the court has to assess the pecuniary damages other than loss of income applying the multiplier system but also the factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant and also other issues such as the uncertainties of life for determining the attendant charges to ensure the award is just compensation.
29. Having taken note of the fact that the accident is of the year 2005 and the pathetic condition of the claimant who is not able to speak and move and lost the memory
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power and needs an attendant to attend his daily activities throughout his life as deposed by PW-2 it is appropriate to award compensation under the head of attendant charges. Considering the attendant charges though he do not need a full fledged attendant, some body has to take care of him and hence, it is appropriate to take 1/3rd of the income which has been calculated in respect of loss of future income and if it is calculated with the relevant multiplier of 18, it comes to Rs.2,16,000/- and the same is awarded towards 'attendant charges'.
30. The Tribunal has not awarded any compensation towards future medical expenses. However, taking into account the medical bills produced before the Tribunal to the extent of Rs.30,912/- only, therefore, it is appropriate to award an amount of Rs.25,000/- towards future medical expenses.
31. In view of the discussions made above, I pass the following:
ORDER:
(1) The appeal is allowed in part.
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(2) The impugned judgment and award of the Tribunal dated 01.09.2009 passed in M.V.C.No.286/2005 by the Fast Track Court-I, Kolar, is modified enhancing compensation to Rs.12,24,000/- as against a sum of Rs.1,81,600/- with interest at 6% per annum on Rs.11,99,000 [i.e., excluding a sum of Rs.25,000/- awarded towards future medical expenses] from the date of petition till realization.
(3) Further, the impugned judgment and award of the Tribunal is modified fastening liability on the insurance company instead of the insured. (4) The respondent No.2 Insurance Company is directed to deposit the entire compensation amount within eight weeks from the date of receipt of the certified copy of this order. (5) The Registry is hereby directed to transmit the entire records to the Tribunal forthwith for needful.
(6) On deposit of the entire compensation
amount by the insurance company, the
Tribunal is directed to deposit 50% of the amount with interest in any nationalized bank initially for a period of 10 years with periodical renewal from time to time. The remaining
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50% of the amount with interest shall be released to the brother and mother of the claimant to enable them to bear the medical and attendant expenditure.
(7) It is further ordered that the brother and mother of the claimant can draw interest on the deposit amount quarterly to meet the expenditure of the claimant.
(8) Ordered accordingly.
Sd/-
JUDGE PL*