Karnataka High Court
Sri.K.H. Venugopal vs Sri.P.Gurumoorthy on 19 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 7559 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO.7559 OF 2015(MV-I)
BETWEEN:
Sri K.H.Venugopal,
S/o Haridass Rao,
Aged about 37 years,
R/at, No.4,
Grance Ground Floor,
15th B Cross,
Muthyala Nagara,
Bengaluru. .. Appellant
(By Sri. Dayanand Hiremath, Advocate)
AND:
1. Sri P.Gurumoorthy,
S/o Pandurangan, Aged Major,
R/at 479, Ramanathapuram,
Mel Karipur,
Chengam Taluk,
Tiruvannamalai District,
Tamil Nadu-6060706.
2. The Divisional Manager,
HDFC ERGO General Insurance Co. Ltd.,
No.14, 2nd Floor,
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MFA No. 7559 of 2015
H.M.Genevo House,
Cunningham Road,
Bangalore-560 052.
...Respondents
(By Sri. B.C.Shivannegowda, Advocate for
Sri. B.Pradeep, Advocate for R-2;
Notice to R-1 is dispensed with
vide Order dated 28.07.2021)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act,1988 praying to modify the
judgment and award dated 20.03.2015 passed in
M.V.C.No.3976/2013 on the file of the Motor Accident Claims
Tribunal at Bengaluru and grant such other relief as deemed fit
in the circumstance of case including the cost of the appeal in
the interests of justice.
This Miscellaneous First Appeal coming having been
heard through Physical Hearing/Video Conferencing and
reserved for judgment on 05.02.2024, this day,
Dr.H.B.Prabhakara Sastry, J., delivered the following:
JUDGMENT.
The present appeal is filed by the claimant under
Section 173 (1) of the Motor Vehicles Act, 1988, seeking
enhancement of the compensation awarded by the learned
II Addl.Small Causes Judge and XXVIII Addl.Chief
Metropolitan Magistrate, Motor Accidents Claims Tribunal,
Bengaluru, (hereinafter for brevity referred to as
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MFA No. 7559 of 2015
'the Tribunal'), in the judgment and award dated
20.03.2015, in M.V.C.No.3976/2013.
2. The summary of the case of the present
appellant as claimant before the Tribunal was that,
at the time of the alleged accident which took place on the
date 03.05.2013, he was aged about 37 years and
was the Investor and active Partner at M/s.Technocorp
(India), Partnership Firm, a leading Engineers
and Consultants for low temperature application/
Industrial refrigeration projects. On 03.05.2013, at about
12.45 p.m., when he was inspecting the Compressor
machine room in Ammapalayam Village, Chengam Taluk,
Thiruvannamalai District, the driver of a JCB bearing
registration No.TN-25-AB-8158, drove the same in high
speed and in a rash and negligent manner and dashed
against the new construction concrete wall, due to which
impact, the cement solid block wall collapsed on the
claimant's left leg and caused grievous injuries to him.
He was immediately shifted to Government Hospital. After
the first aid, he was shifted to CMC Hospital, at Vellore,
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MFA No. 7559 of 2015
wherein he took treatment by spending huge amount of
money towards the medical treatment. In the incident, he
sustained compound comminuted fracture of left leg with
vascular compromise, which resulted in he undergoing
amputation below the left knee. He was hospitalised for
twentytwo days and thereafter continued his treatment as
an outpatient.
He has further stated that, at the time of the
accident, he was earning a sum of `1 lakh per month.
Stating that due to the injuries sustained by him, he could
not continue his avocation, has sought for compensation of
a sum of `1 crore from respondent Nos.1 and 2 holding
them liable as the owner and insurer of the alleged
offending vehicle respectively.
3. Despite the service of notice, since respondent
No.1-owner of the offending vehicle fail to appear in the
matter, he was placed ex parte. The respondent No.2,
which is the Insurance Company, appeared through its
counsel and filed its statement of objections, wherein, it
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MFA No. 7559 of 2015
denied the alleged rash and negligent driving of the JCB by
its driver. On the other hand, it contended that the
accident occurred due to the negligence of the claimant.
It disputed the nature of injuries sustained by the
claimant. It also disputed the age, income and alleged
disability of the claimant. It contended that the
compensation claimed by the claimant is exorbitant.
4. Before the Tribunal, the claimant got himself
examined as PW-1 and examined three witnesses from
PW-2 to PW-4 and got marked documents from Exs.P-1 to
P-26. On behalf of the respondents, one Sri Jayashekara
V.R., Assistant Manager of the 2nd respondent-Insurance
Company was examined as RW-1 and the Insurance Policy
was produced and got marked at Ex.R-1.
5. After analysing the evidence and the materials
placed before it, the Tribunal has awarded the
compensation under the following heads with the sum
shown against them:
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MFA No. 7559 of 2015
Sl.
Particulars Amount in `
No.
1 Injury, pain and sufferings 80,000/-
2 Loss of earnings during medical 24,000/-
treatment
3 Medical expenses 2,86,798/-
4 Loss of future earnings 3,78,000/-
5 Loss of amenities 50,000/-
6 Conveyance, Nourishment, Food 34,655/-
and attending charges
7 Future medical expenses 2,00,000/-
Total 10,53,453/-
The Tribunal awarded compensation of a sum of
`10,53,453/- and interest at the rate of `6% per annum is
awarded on `8,53,453/-, which is excluding the
compensation amount awarded towards future medical
expenses i.e., `2,00,000/-, from the date of petition till
the date of realisation, holding the owner and Insurer
jointly and severally liable to pay the said compensation
and directed the Insurer to deposit the award amount. It is
against the said judgment and award passed by the
Tribunal, the claimant has filed this appeal seeking
enhancement of compensation.
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MFA No. 7559 of 2015
6. The respondent No.2 herein (insurer) is
represented by its counsel. The notice to respondent No.1
is dispensed with vide order dated 28.07.2021.
7. Records from the Tribunal pertaining to the matter
were called for and the same are placed before the Court.
8. Heard the arguments of learned counsel for the
appellant and learned counsel for respondent No.2-
Insurance Company. Perused the materials placed before
this Court, including memorandum of appeal, impugned
judgment and also the records of the Tribunal.
9. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the
Tribunal.
10. The learned counsel for the appellant (claimant)
in his argument contended that the claimant was an
investor and active Partner at M/s.Technocorp (India) and
was earning a sum of `1 lakh per month at the time of the
accident, however, due to the injuries sustained by him in
the accident, he is unable to continue his avocation.
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MFA No. 7559 of 2015
He further submitted that due to accidental injuries, the
claimant has undergone amputation of his left leg, as
such, he is unable to do day-today work properly and his
earning capacity has also been reduced. Further, the
notional income recommended by the Karnataka State
Legal Services Authority for the relevant year, which is
2013, was a sum of `8,000/- per month, however, the
Tribunal was at error in taking the income of the claimant
at `6,000/- per month. He further submitted that the
compensation awarded by the Tribunal is on the lower
side, as such, the appeal deserves to be allowed as
prayed.
11. Per contra, learned counsel for respondent No.2-
Insurance Company in his argument fairly conceded that
the notional income prevailing for the relevant year 2013
as per the recommendation of the Karnataka State Legal
Services Authority is `8,000/- per month, however, he
contended that the compensation awarded by the Tribunal
being reasonable, the same does not warrant any
interference or modification at the hands of this Court.
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MFA No. 7559 of 2015
12. After hearing the learned counsels from both
side, the points that arise for our consideration are:
[i] Whether the appellant is entitled for
enhancement in the compensation that has been
awarded by the Tribunal?
[ii] Whether the impugned judgment passed
by the Tribunal warrants any interference at the
hands of this Court?
13. The present appeal being the claimant's appeal
and respondent No.2 (insurer) having not preferred either
cross-objection or a counter appeal, the question of
occurrence of accident on the date, time and place as
alleged by the claimant and also the alleged rash and
negligent driving on the part of the driver of the offending
vehicle is not in dispute.
14. Further, the accident in question is corroborated
by the evidence of the claimant, who got himself examined
as PW-1 and got examined one Sri K.R.Somashekar, who
is said to be one of the Partners of M/s.Technocorp
(India) and got marked documents from Exs.P-1 to P-26,
which inter alia includes, certified copy of the FIR at
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MFA No. 7559 of 2015
Ex.P-1, Discharge Summary at Ex.P-2, notorised copy of
Disability Certificate at Ex.P-5, notorised copy of Disability
Identity Card at Ex.P-6, notorised copy of the Partnership
Deed at Ex.P-7, Wound Certificate at Ex.P-15, copy of the
order in Crime No.75/2013 at Ex.P-16, Motor Vehicle
Inspector's report at Ex.P-17, copy of Case Diary at
Ex.P-18, Final Report with translated copy at Ex.P-19,
observation mahazar with translated mahazar at Ex.P-20,
deposition of the claimant with the translated copy at
Ex.P-21, statement of few other witnesses to the alleged
accident at Exs.P-22 to P-25 and statement of the
Regional Transport Officer with its translated copy at
Ex.P-26.
15. The claimant as PW-1 has reiterated the
contentions of his claim petition regarding the occurrence
of the accident and he sustaining injuries in the said
accident even in his examination-in-chief filed in the form
of affidavit evidence. PW-2, another partner of
M/s.Technocorp (India) also has supported the contentions
of the claimant.
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MFA No. 7559 of 2015
16. Exs.P-1, P-15, P-16, P-17, P-18 and P-19
corroborates the evidence of PW-1 and PW-2 that the
accident in question has occurred on the date, time and
place as mentioned by the claimant in his claim petition,
as well in his evidence. The Final Report filed by the
Investigating Officer in Crime No.75/2013 of Pachal Police
Station, Thiruvannamalai District, which is at Ex.P-19,
shows that the Investigating Officer has submitted his final
report accusing the driver of the vehicle - JCB bearing
registration No.TN-25-AB-8158 of having committed the
offences punishable under Sections 279, 338 of Indian
Penal Code, 1860 (hereinafter for brevity referred to as
`IPC').
17. Further the certified copy of the order passed by
the Court of Judicial Magistrate, Chengam,
Thiruvannamalai District, in Crime No.75/2013, on the
date 02.12.2013, which is at Ex.P-16, go to show that the
accused in the said Crime No.75/2013, who is the driver of
the JCB bearing registration No.TN-25-AB-8158 has
pleaded guilty, as such, finding him guilty of the offences
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MFA No. 7559 of 2015
punishable under Sections 279, 338 of IPC, he was
sentenced to pay a fine as shown in the order.
18. The respondent No.2 though examined its
Assistant Manager by name Jayashekara V.R., as RW-1
and the said witness denied the involvement of JCB
bearing registration No.TN-25-AB-8158 in the accident and
the alleged rash and negligent driving of the said vehicle
by its driver, however, the evidence of PW-1, PW-2 and
the documents produced by them as exhibits, more
particularly, Exs.P-1, P-15, P-16, P-17, P-18, P-19 and P-
20 proves that the accident in question has occurred in the
manner and on the date, time and place as contended by
the claimant in his claim petition.
19. The contention of the claimant that in the said
accident, he sustained grievous injuries, which according
to him, was a crush injury over left lower limb at the upper
third and middle third junction, due to which, he
underwent amputation below left knee, was reiterated by
PW-1 in his evidence and the same is further corroborated
by the evidence of PW-2 and the evidence of one
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MFA No. 7559 of 2015
Mr.Harish S., who claims to be the maid servant of the
claimant attending to the claimant in the post-operative
period and more importantly, by the evidence of PW-4
Dr.K.Vignesh Prasad, an Orthopaedic Surgeon and
Associate Professor at Christian Medical College Hospital,
Vellore.
20. The doctor has stated that he has examined the
claimant who had sustained injuries in the accident that
occurred on 03.05.2013 due to the fall of heavy cement
block on his left leg and noticed that he had crush injuries.
He also stated that the patient had undergone left below
knee amputation, left below knee stump revision and left
below knee stump closure. Thus, the medical evidence
supports that the claimant sustained grievous injuries in
the accident.
21. Added to the above, the Discharge Summary at
Ex.P-2, the Wound Certificate at Ex.P-15, three
photographs with CD. at Ex.P-14, also corroborates the
evidence of the claimant that in the accident, he sustained
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MFA No. 7559 of 2015
crush injuries on the left lower limb at U-1/3 and M-1/3
junction, which was a compound comminuted fracture of
left leg with vascular compromise. Thus, it stands
established that, due to the rash and negligent driving of
JCB bearing registration No.TN-25-AB-8158, the claimant
sustained grievous injuries which resulted in he
undergoing surgery, where his left leg below the knee was
amputated. Therefore, he is entitled for compensation
from respondent No.1, who is the owner of the said
JCB bearing registration No.TN-25-AB-8158 and
respondent No.2, which is the insurer of the said
JCB bearing registration No.TN-25-AB-8158.
22. The Tribunal after noticing the injuries, has
awarded compensation of a sum of `80,000/- towards
`pain and suffering'. The Wound Certificate at Ex.P-15
reveals that the claimant had sustained crush injury over
left limb at upper 1/3rd and middle 1/3rd junction. It was
a compound comminuted fracture of left leg with vascular
compromise. The evidence of PW-1 and the Discharge
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MFA No. 7559 of 2015
Summary at Ex.P-2 shows that he was treated as inpatient
in CMC Hospital, Vellore, from 04.05.2013 to 25.05.2013,
where he had undergone amputation of left knee and
stump revision and stump closure was also done. The
same is further corroborated by the evidence of PW-4, the
doctor who is an Orthopaedic Surgeon in the very same
hospital. Thus, the nature of the injury, length of his
treatment in the hospital and the nature of operation he
has undergone shows that he has suffered a serious pain
due to the injuries suffered by him in the accident.
23. Under the said circumstances, the compensation
awarded by the Tribunal at `80,000/- towards `pain and
suffering' appears to be not reasonable and requires to be
enhanced by another sum of `30,000/-, thus, making the
compensation towards `pain and suffering at `1,10,000/-.
24. The claimant has contended that on account of
the injuries sustained by him in the accident, he was
inpatient in the hospital for twentytwo days and had taken
rest. The Tribunal has considered the duration of the rest
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MFA No. 7559 of 2015
at four months and awarded compensation of a sum of
`24,000/- towards loss of earning during medical
treatment taking the income of the claimant at `6,000/-
per month.
25. Learned counsel for the appellant/claimant in his
argument contended that the Tribunal taking the income
of the claimant at `6,000/- per month is very meagre. He
contended that the Income-tax documents produced by
him at Ex.P-4 shows that his income has been reduced,
as such, the Tribunal ought to have taken the income on
higher side, at least to the notional income at `8,000/- per
month which is recommended by the State Legal Services
Authority for the relevant year 2013.
26. Learned counsel for the respondent No.2-
Insurance Company contended that the Income-tax
document at Ex.P-4 does not give any details about the
alleged loss of income of the claimant during the period of
his rest and the post accidental period.
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MFA No. 7559 of 2015
27. Except his statement that he was earning a sum
of `1 lakh per month at the time of the accident, the
claimant has not produced any document to show his
alleged income at the time of the accident. Ex.P-4
contains two documents in it, one is Form No.16AA
pertaining to the Income-tax which gives a total sum of
`2,50,000/- as the gross salary and after deductions of
allowances, a sum of `2,23,500/- as the gross total
income of the claimant for the period from 01.11.2012 to
31.03.2013. The other document under Ex.P-4 is Income-
tax Return Verification Form of the claimant for the
Assessment Year 2013-14, which shows his gross total
income for the said Assessment Year at `2,23,500/-.
Except producing the documents, no evidence as to what
said document denotes and what were the sources of
income, have not been stated by the claimant in his
evidence. Ex.P-4 in Form No.16AA would go to show that
the said document was filed with Income-tax authority on
31.05.2013 i.e., within four weeks of the accident and
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MFA No. 7559 of 2015
confining only for three months probably only to show an
exaggerated figure of the income.
28. When the claimant contends that his monthly
income was `1 lakh at the time of the accident, he could
have produced his previous year's Income-tax return,
which he has not done for the reasons best known to him.
Therefore, Ex.P-4 cannot be taken as a convincing proof of
his alleged income. Further he has not even stated about
his educational qualification and professional expertise of
his alleged job and in what capacity he was inspecting the
compressing machine at the time of the accident has also
not been stated by him. Therefore, it is only the notional
income prevailing for the relevant year is required to be
taken into consideration.
29. The Tribunal has taken the income of the
claimant at `6,000/- per month. As proved, the accident
has taken place in May 2013. The notional income
prevailing for the said year as recommended by the State
Legal Services Authority and being adopted by a
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MFA No. 7559 of 2015
considerable number of Motor Accident Claims Tribunals in
the State is at `8,000/- per month. Therefore, the income
of the present claimant is required to be taken at `8,000/-
per month.
With the said quantification, the compensation
towards loss of earning during medical treatment, which is
for four months, would come `8,000/- x 4 = `32,000/-.
Since the Tribunal has awarded a sum of `24,000/-, the
claimant is entitled for a differential amount of `8,000/-,
making the total compensation under the said head at
`32,000/-.
30. It is after taking into consideration the evidence
of PW-1 to PW-4 and the fourteen medical bills at Ex.P-9
and two advance receipts at Ex.P-10, the Tribunal has
awarded compensation of a sum of `2,86,798/- as the
compensation towards medical expenses. The learned
counsel for the claimant/appellant did not canvas his
argument for any enhancement under the said head.
Since the Tribunal after considering the oral and
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MFA No. 7559 of 2015
documentary evidence has awarded the actuals of medical
expenses incurred by the claimant, the same does not
warrant any interference at the hands of this Court.
31. The claimant in his evidence has stated that due
to the injuries sustained by him in the accident, he has
become permanently disabled and he is not able to
discharge his normal activities, as such, he has engaged a
maid servant to take care of him. He also got examined
PW-4, the doctor, who has stated that, by his examination
of the claimant, he came to an opinion that the claimant
was suffering with permanent disability of about 70%. He
has identified an Out-patient record and In-patient record
issued by the hospital at Ex.P-12 and P-13.
The said witness in his cross-examination from
respondent No.2-Insurance Company, has stated that, his
assessment of disability at 70% pertains to left limb and
it is based on the records. It is considering these aspects,
the Tribunal has rightly taken the percentage of disability
of the claimant at 35%, in which, we do not find any
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MFA No. 7559 of 2015
reason to interfere. As such, the argument of learned
counsel for the claimant that the percentage of disability
was required to be taken at 70% is not acceptable.
However, since the Tribunal has taken the income of the
claimant at `6,000/- per month, the calculation of the
quantum of compensation towards loss of future income is
required to be redone by taking the income of the claimant
at `8,000/- per month as discussed above. However, the
age of the claimant, which is said to be 37 years, is being
not in dispute, the multiplier applicable remains to be
`15' only. As such, the quantum of compensation towards
loss of future earnings would come to `8,000/- x 12 x 15 x
35/100 = `5,04,000/-. After deducting a sum of
`3,78,000/- awarded by the Tribunal under the said head,
the claimant is entitled for a differential amount of
`1,26,000/- as enhancement towards loss of future
earnings.
32. The Tribunal has awarded a sum of `50,000/-
towards loss of amenities. After considering the nature of
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MFA No. 7559 of 2015
injuries sustained by the claimant and more particularly,
the amputation of the left lower limb below the knee level
which has resulted in the claimant deprived with
considerable amenities in his life, including restrictions in
his movement without the aid of crutches, we are of the
view that the compensation awarded by the Tribunal
requires to be enhanced by another sum of `50,000/-,
thus, making the total compensation towards loss of
amenities at `1 lakh.
33. The Tribunal has awarded compensation of a sum
of `34,655/- towards conveyance, nourishment, food and
attendant charges by giving detailed reasons to arrive at
the said quantum. Since the said quantification is well
reasoned, we do not find any reason to make any
modification in it.
34. Towards future medical expenses, the Tribunal
has awarded compensation of a sum of `2 lakhs. To arrive
at such a quantification, the Tribunal has rightly
considered the evidence of the doctor, who has deposed
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MFA No. 7559 of 2015
that the claimant may have to go for artificial limb on
account of his amputation of his left leg below the knee.
The Tribunal has also considered the quotation given by
M/s.KARE Prosthetics and Orthotics Company and awarded
compensation of a sum of `2 lakhs. The same being
reasonable in the facts and circumstances of the case, we
do not find any reason to modify the same.
35. Barring the above, the claimant/appellant is not
entitled for compensation under any other heads or for
enhancement of compensation under any other heads.
Thus, in total the appellant is entitled for the modified
compensation as below :
Sl.
Particulars Amount in `
No.
1 Injury, pain and sufferings 1,10,000/-
2 Loss of earnings during medical 32,000/-
treatment
3 Medical expenses 2,86,798/-
4 Loss of future earnings 5,04,000/-
5 Loss of amenities 1,00,000/-
6 Conveyance, Nourishment, Food 34,655/-
and attending charges
7 Future medical expenses 2,00,000/-
Total 12,67,453/-
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MFA No. 7559 of 2015
Since the Tribunal has awarded a sum of
`10,53,453/- only, the appellant/claimant is entitled for an
enhancement of a sum of `2,14,000/- in addition to what
is awarded by the Tribunal. It is for this enhancement
amount only, the present appeal deserves to be allowed
in part.
36. Accordingly, we proceed to pass the following:
ORDER
[i] The appeal filed by the claimant stands allowed in part;
[ii] The impugned judgment and award passed by the learned II Addl.Small Causes Judge and XXVIII Addl.Chief Metropolitan Magistrate, Motor Accidents Claims Tribunal, Bengaluru, dated 20.03.2015, in M.V.C.No.3976/2013, is hereby modified to the extent that the compensation awarded at `10,53,453/- is enhanced by a sum of `2,14,000/- (Rupees Two Lakhs Fourteen Thousand only), thus fixing the total
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MFA No. 7559 of 2015 compensation at `12,67,453/- (Rupees Twelve Lakhs Sixtyseven Thousand Four Hundred and Fiftythree only).
[iii] The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the respondent No.2 - Insurance Company to deposit the awarded amount, awarding the interest, its rate awarded by the Tribunal shall remain unaltered.
[iv] The enhanced amount being not a huge amount, the entire enhanced amount is directed to be released in favour of the claimant/appellant after its deposit by the respondent.
[v] However, as per the order dated 15.09.2021, the appellant/claimant is not entitled for interest for the delayed period of 1307 days in filing the present appeal. Draw the modified award accordingly.
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MFA No. 7559 of 2015 Registry to transmit a copy of this judgment along with its records to the concerned Tribunal without delay.
Sd/-
JUDGE Sd/-
JUDGE bk/