Karnataka High Court
Smt Saramma vs D.Jagadish, Major, on 22 March, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO. 4363/2009(MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 609/2009
M.F.A.4363/2009
BETWEEN:
1. SMT.SARAMMA,
AGED ABOUT 45 YEARS,
2. ABUBACKER SIDDIQUE,
AGED 26 YEARS,
3. MUMTAZ,
AGED 22 YEARS,
4. ISSAC,
AGED 21 YEARS,
5. KAIRUNNISA,
AGED 17 YEARS,
6. SAIFUNNISA,
AGED 16 YEARS,
(APPELLANT NOS.5 & 6 ARE MINORS
AND REPRESENTED BY THEIR NEXT
FRIEND MOTHER-APPELLANT NO.1
AS GUARDIAN)
APPELLANT NO.1 IS THE WIFE AND
2
APPELLANT NO.2 TO 6 ARE THE
CHILDEREN OF K.M.MOHMMED AND
ALL ARE RESIDING AT MORANKALA HOUSE,
NELLJADY VILLAGE & POST,
PUTTUR TALUK, D.K.
...APPELLANTS
(BY SRI.PUNDIKAI ISHWARA BHAT, ADV.)
AND:
1. D.JAGADISH, MAJOR,
S/O DORE SWAMY NAIDU,
NO.625, 80, PETE ROAD,
2ND BLOCK, DR.RAJKUMAR ROAD,
BANGALORE-10.
2. UNITED INDIA INSURANCE CO.LTD.,
B.O.NO.89, 11TH CROSS,
SAMPIGE ROAD,
MALLESHWARAM,
BANGALORE,
REPTD. BY ITS MANAGER.
3. MOHAMMED BASHEER,
MAJOR,
S/O ABDUL RAHIMAN
BADRIA CROSS ROAD,
BUNDER, MANGALORE, D.K.
4. THE NEW INDIA ASSURANCE CO. LTD.,
RAMA BHAVAN COMPLEX,
KODIALBAIL,
MANGALORE,
REP. BY ITS MANAGER.
5. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
BHARATH BUILDING,
P.M.RAO ROAD,
3
MANGALORE ...RESPONDENTS
(BY SRI.P.B.RAJU, ADV. FOR R2;
SRI.R.RAJAGOPALAN, ADV. FOR R4;
SRI.A.RAVI SHANKAR, ADV. FOR R5;
NOTICE TO R1 AND R3 HELD SUFFICIENT
V/O DATED 1.2.13)
THIS MFA IS FILED U/S.173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 17.10.2008 PASSED
IN MVC NO.1657/1999 ON THE FILE OF THE MEMBER,
MACT, PUTTUR, D.K, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENCHANCEMENT OF COMPENSATION.
M.F.A.609/2009
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE,
BHARATH BUILDING,
P.M.RAO ROAD,
MANGALORE.
REPRESENTED BY:
THE REGIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
SHUBHARAM COMPLEX,
144, M.G.ROAD,
BANGALORE,
BY ITS MANAGER.
...APPELLANT
(BY SRI.A.RAVISHANKAR, ADV.)
AND:
4
1. SMT.SARAMMA,
AGED ABOUT 45 YEARS,
W/O LATE K.M.MOHAMMED,
2. ABUBACKER SIDDIQUE,
AGED ABOUT 26 YEARS,
S/O LATE K.M.MOHAMMED.
3. MUMTAZ,
AGED ABOUT 22 YEARS,
D/O LATE K.M.MOHAMMED.
4. ISSAC,
AGED ABOUT 21 YEARS,
S/O LATE K.M.MOHAMMED.
5. KAIRUNNISA,
AGED ABOUT 18 YEARS,
D/O LATE K.M.MOHAMMED.
6. SAIFUNNISA,
AGED ABOUT 17 YEARS,
D/O LATE K.M.MOHAMMED.
MINOR REPRESENTED BY HER NATURAL
GUARDIAN MOTHER
SMT.SARAMMA, CLAIMANT NO.1
7. KHATIZAMMA,
AGED ABOUT 74 YEARS,
W/O LATE K.N.SULAIMAN,
DEAD BY LR'S OF RESPONDENTS 1-6
8. D.JAGADISH,
S/O DORE SWAMY NAIDU,
AGED ABOUT 45 YEARS,
NO.625, 80, PETE ROAD,
2ND BLOCK, DR.RAJKUMAR ROAD,
BANGALORE-10.
9. UNITED INDIA INSURANCE CO.LTD.,
B.O.NO.89, 11TH CROSS,
5
SAMPIGE ROAD,
MALLESHWARAM,
BANGALORE,
REPTD. BY ITS MANAGER.
10. MOHAMMED BASHEER,
AGED ABOUT 48 YEARS,
S/O ABDUL RAHIMAN
BADRIA CROSS ROAD,
BUNDER, MANGALORE.
11. THE NEW INDIA ASSURANCE CO. LTD.,
RAMA BHAVAN COMPLEX,
KODIALBAIL,
MANGALORE0560010.
...RESPONDENTS
(BY SRI.PUNDIKAI ISHWAR BHAT, ADV. FOR R1 - R6;
SRI.P.B.RAJU, ADV. FOR R9;
SRI.R.RAJAGOPALAN, ADV. FOR R11;
R1 TO R6 ARE TREATED AS LR'S OF R7;
SERVICE OF NOTICE TO R8 AND R10 HELD
SUFFICIENT V/O DATED 1.2.13)
THIS MFA IS FILED U/S.173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 17.10.2008 PASSED
IN MVC NO.1657/1999 ON THE FILE OF THE MEMBER,
MACT, PUTTUR, D.K, AWARDING A COMPENSATION OF
RS.3,11,732/- WITH INTEREST AT 6% P.A FROMJ
20.08.2005 TILL DEPOSIT.
THESE MFAs COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are directed against the judgment and award passed by the MACT, Puttur in MVC.No.1657/1999 dated 17.10.2008 where under, the 6 claim petition came to be allowed in part and a compensation of Rs.3,11,732/- with interest at 6% p.a. from 20.08.2005 till date of deposit or recovery by apportioning the liability in the ratio of 50% on the Tipper Lorry bearing registration No.KA 02 A 6085 and to the extent of 50% on insurer of the hazardous chemical carried in the tanker bearing registration No.KA 19 2391.
2. Heard the arguments addressed on behalf of the parties namely by Sriyuths: A.Ravishankar appearing on behalf of the insurer of the hazardous chemical in the tanker, P.B.Raju, appearing for the United India Insurance Company Limited i.e., the insurer of the Tipper Lorry, R.Rajagopalan, appearing for Insurer of Tanker Lorry and Pundikai Ishwar Bhat, learned counsel appearing for the claimants.
3. The contention of Sri.A.Ravishankar is to the following effect.
i) The accident in question occurred on 25.06.1999 between two vehicles namely 7 Tipper Lorry bearing No.KA02 A 6085 and a Tanker bearing No.KA 19 2391 which was carrying hazardous chemical and the accident according to the records as well as the finding of the Tribunal was on account of rash and negligent driving of Tipper Lorry, as such, the appellant insurance company which had only insured the hazardous chemical being carried in the Tanker cannot be called upon to indemnify the claim arising out of the said accident,
ii) The insurance policy to the chemical which was in transit had been issued by appellant and if at all, if there is any liability on the Tanker, the said claim arising out of the accident has to be indemnified by the insurer of the vehicle namely National Insurance Company Limited,
iii) The liability of the appellant Insurance company (National Insurance Company Limited) was arising out of the policy issued 8 under the Public Liability Insurance Act, 1991 and payment of the compensation as determined by the Deputy Commissioner under the said Act though had been satisfied, it was on account of the statutory liability as defined under the said Act and same cannot be extended to the liability arising out of the road traffic accident and claim raised before Deputy Commissioner was not under the provisions of the Motor vehicles Act, 1999. As such, he contends a distinction has to be drawn to absolve the appellant from indemnifying the claim arising under M.V.Act.
iv) Tribunal, having held that accident had occurred on account of negligence of Tipper Lorry, it ought not have restricted the fastening of the liability to the extent of 50% but it ought to have been 100% or in the alternative, the remaining 50% ought to have been ordered to be indemnified by the insurer 9 of the Tanker i.e., New India Assurance Company Limited.
4. Per contra, Sri.P.B.Raju, learned counsel appearing for the insurer of the Tipper Lorry namely on behalf of the United India Insurance would contend as under:
1) Proximate cause for the death in the accident that occurred on 25.06.1999 was on account of carrying of hazardous chemical;
2) Under Section 3(1) of Public Liability Insurance Act, the liability is statutorily covered on the owner of the hazardous chemicals and it has to be indemnified by the insurer in the event of there being any insurance and in the instant case, undisputedly, the hazardous chemical that was carried in tanker was insured with National Insurance Company Limited and accepting their liability under the Act, they have paid compensation determined under Section 6 of the Public Liability Insurance Act by the Deputy Commissioner and as such, they cannot now contend that they are not to be fastened with the liability.10
3) Section 8 (1) of the said Act provides for right to claim compensation not withstanding the compensation determined and awarded under Sub Section (1) of sub Section 3 and as such, the insurer of the hazardous chemical in question cannot now contend that it is not liable to indemnify the claim particularly in the background of the said insurance company having admitted its claim and satisfied the claim by payment of compensation determined by the Deputy Commissioner.
5. Sri R.Rajgopalan, learned counsel appearing for the insurer of the tanker namely, The New India Assurance Co., Ltd., would support the judgment and award passed by the Tribunal and contends that in either case, the insurer of the vehicle is not liable to indemnify the claim arising out of the accident and as such, he seeks for confirming the award passed by the Tribunal.
6. Sri Pundikai Ishwar Bhat, learned counsel appearing for the claimant on the issue of quantum of compensation awarded by the Tribunal would contend that what has been awarded by the Tribunal is absolutely on the lower side and Tribunal ought to have taken the 11 income of the deceased at Rs.4,500/- per month and by adding 30% to the said income as future prospects compensation ought to be computed, since deceased was aged around 45 years and as such, the principles laid down in Santhosh Devi V/s National Insurance Co., Ltd. reported in 2012 ACJ 1428 would squarely apply to the facts on hand and as such, he seeks for enhancement of the compensation towards loss of dependency and also submits that compensation awarded by Tribunal towards conventional heads is also on lower side and prays for same being suitably enhanced.
7. In so far as apportionment of liability is concerned, learned counsel submits that in either case, insurance company has to pay since it is a 3rd party claim and as such, he prays for suitable orders being passed in this regard.
8. Having heard the learned advocates appearing for the parties and on perusal of the judgment and award passed by the Tribunal and also records secured from 12 Tribunal and contentions raised at the Bar, and also having bestowed my attention carefully to the statutory provisions pressed into service, I am of the considered view that following points would arise for my consideration:
1. Whether Tribunal was justified in apportioning the liability of compensation awarded by Tribunal in the ratio of 50:50 between the insurer of hazardous material carried in the tanker bearing No.KA 19 2391 and the insurer of Tipper Lorry bearing No KA 02 A 6085? If not, which insurance company is liable to indemnify the claim? and, in what ratio?
2. Whether compensation awarded by the Tribunal is just and reasonable? and, if the answer is in negative; whether award is to be modified? And, if so, in what manner?
9. The facts in brief leading to filing of these appeals can be crystallized as under:
On 25.06.1999, a tanker bearing Reg.No.KA 19 2391 carrying "Benzine chemical" was proceeding from Mangalore to Bangalore. The said vehicle was insured by New India Assurance Company Ltd. 'Benzine Chemical' namely the hazardous chemical carried in the said tanker was insured with National Insurance Company as required 13 under the Public Liability Insurance Act, 1991. While the said vehicle was proceeding on the National Highway-48 at Nelyadi, a Tipper Lorry bearing No.KA 02 A 6085 coming from the opposite direction namely proceeding from Bangalore towards Mangalore collided head on with the said tanker resulting in the tanker turning turtle and spilling of hazardous chemical to adjoining nearby water channel which was in existence in the said highway and it further reached the Areca garden of one Sri K.Mohammad at which point of time, the said person was washing his legs and face and on account of sudden accident of fire that occurred, he was burnt including the entire Areca garden. Said K.Mohammad was admitted to Mahaveera Medical Centre at Puttur and was administered treatment and on his condition getting worse, he was shifted to City Hospital, Mangalore and treatment administered was not fruitful and as such, he succumbed to the injuries on 01.07.1999. On account of his death, his legal representatives namely mother, wife and children filed claim petition seeking compensation of Rs.6,00,000/-. 14
RE: POINT NO:1
10. Before the Tribunal, the owner of the tanker remained absent and was placed exparte. Respondent Nos.2, 4 and 5 have appeared and filed their separate written statement interalia denying the averments made in the claim petition. Though respondent No.3 appeared before the Tribunal, did not file the statement of objections. Both the parties tendered their evidence and after considering the same, the Tribunal framed several issues and one of the issues which came to be framed was:
"Whether the petitioner has proved that the occurrence of the accident in question was on account of rash and negligent driving of No.KA 02 A 6085 Tipper Lorry and KA 19 2391 tanker lorry?"
11. Copy of the FIR and charge sheet came to be produced by the claimants which was marked as Exhibit P1 and Ex.P2 as also the spot mahazar and spot sketch marked as Exhibit P3 and Ex.P4 respectively. 15 Undisputedly, charge sheet is filed against the driver of Tipper Lorry bearing No.KA 02 A 6085. Tribunal, on appreciation of documentary evidence as well as evidence of PWs 1 and 2, held spot sketch at Exhibit P4 would indicate that at the time of accident, the offending lorry was coming from Mangalore to Bangalore on left side of road and Tipper Lorry coming from Bangalore side and though there was sufficient space on its left side, instead of going to its left side, it came on the wrong side i.e., to the right side and as such, accident had occurred. It is also held by the Tribunal that none of the drivers namely drivers of both the vehicles were examined. Tribunal concluded that evidence on record would indicate that accident in question occurred due to the rash and negligent driving of the Tipper Lorry driver. At paragraph 12 of its judgment and award, it has been held as under:
I conclude that the accident in question was occurred due to the sole rash and negligent driving of the offending Tipper Lorry bearing No.KA-02 A 6085 by its driver and the tanker was severely damaged and as a result of the accident, there was 16 leakage of Benzine chemical from the tanker to the road, flowing of the same through water channel up to the land of the deceased K.Mohammed and sudden fire accident and sustaining of the injury by the deceased (emphasis supplied by me)
12. On the basis of the said finding, it proceeded to fasten the liability to an extent of 50% on the Tipper Lorry and 50% liability has been fastened on the insurer of the hazardous chemical carried in the vehicle namely National Insurance Company. The said finding when examined with reference to the available records of the Tribunal, it would indicate as per sketch Exhibit P4 that Tipper Lorry was on the extreme left side of the road and it is the Tipper Lorry which caused the accident since it came to the extreme right and thereby collided with tanker as rightly held by the Tribunal and it was not the Tanker which was responsible for the accident since it was on the extreme left side of the road. The spot of the accident as per Exhibit P-4 would indicate the fact that Tipper Lorry has come to the 17 extreme right of the main road and the distance between the road and the place of the accident is about 7 feet and on account of the impact or colliding with the tanker lorry it was suddenly pushed to the "kaccha"
road as seen from the said sketch Exhibit P4. Coupled with this, records would indicate that police have conducted investigation and on conclusion of the investigation, they have filed charge sheet against the driver of the Tipper Lorry for causing the accident. Having accepted this evidence available on record, Tribunal arrived at a conclusion that accident in question occurred due to the rash and negligent driving of the offending Tipper Lorry which was also collaborated by an eye-witness who was examined as PW-2 before the Tribunal. Despite this evidence available on record, Tribunal has still proceeded to apportion the liability on the insurer of the hazardous material namely National Insurance Company to an extent of 50% only on the ground that the drivers of both the vehicles were not examined.
18
13. At this juncture, it would be appropriate to consider the contention of Sri.P.B.Raju as already noticed herein above and to delve upon the said contention, it would be necessary to extract Section 3 and Section 8 of the Public Liability Insurance Act, 1991 which reads as under:
Sec.3. Liability to give relief in certain cases on principle of no fault -
(1) Where death or injury to any person (other than a workman) or damage to any property has resulted from an accident, the owner shall be liable to give such relief as is specified in the Schedule for such death, injury or damage.
(2) In any claim for relief under sub-section (1) (hereinafter referred to in this Act as claim for relief), the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person.
Sec.8. Provisions as to other right to claim compensation for death, etc. -
19
(1) The right to claim relief under sub- section (1) of Section 3 in respect of death of, or injury to, any person or damage to any property shall be in addition to any other right to claim compensation in respect thereof under any other law for the time being in force.
(2) Notwithstanding anything contained in sub-section (1), where in respect of death of, or injury to, any person or damage to any property, the owner, liable to give claim for relief, is also liable to pay compensation under any other law, the amount of such compensation shall be reduced by the amount of relief paid under this Act.
14. It is not in dispute that owner of the tanker and hazardous chemical namely "Benzine chemical"
which was being carried in the said tanker had insured the said material goods as required under the Public Insurance Liability Act, 1991 with the National Insurance Company. Under sub-section (1) of Section 3, liability is cast on the owner of the goods carried in the vehicle. Under Section 6 of the Act, when an application is filed for compensation by the injured or the legal representatives of the deceased, same has to be determined by the jurisdictional Deputy 20 Commissioner/Collector and on adjudication there of, an award would be passed under Section 7.
15. In the instant case, undisputedly proceedings have been initiated by Deputy Commissioner, Mangalore and an award came to be passed on 20.09.2000 as per Exhibit R-4. The insurer of the hazardous chemical namely National Insurance Company has also satisfied the said award. The issue would be in view of the said claim having been indemnified by the insurer of the hazardous chemical, does it prevent the said insurer from taking a stand or contending that liability cannot be fastened on it in any subsequent proceedings initiated either by the insurer or by the legal representatives of the deceased seeking compensation under the Motor Vehicle Act or in any other law. In view of Section 8 of the Public Liability Insurance Act, 1991, the answer has to be necessarily in the affirmative for the reason, Section 8 is a right given to the claimants to raise further claim even though they have claimed compensation under Section 21 3(1) and same is satisfied. It is to ensure that their claim for compensation should not get restricted to what is provided under sub section (1). Further right to claim the compensation is provided to such persons under sub section (1) of Section 8. Merely because a claim had been made under Section 3 on account of death, injury or damage to property would not prevent them from making further claim for compensation under any other law. Thus, when a claim is made under M.V.Act, insurer would be definitely entitled to raise all such defence available under that act to defeat the claim. As such, contention of Sri P.B.Raju that in view of insurer of the hazardous chemical had admitted its liability and paid the compensation as required under sub section (1) of Section 3 of 1991 Act it need not indemnify the claim which arose under the Motor Vehicles Act cannot be accepted. It would be still open to the insurer of the 'hazardous chemical' to demonstrate that the accident in question did not occur on account of "hazardous chemical" being carried in the vehicle but for other reasons. If this exercise of proving 22 its defence to defeat the claim is undertaken by the insurer and same is demonstrated before the jurisdictional Motor Vehicle Tribunal namely, accident in question had occurred on account of any other reason, it would have been well within its bounds to stave off its liability to indemnify the claim.
16. Keeping this in mind when the facts are examined, it would clearly indicate that accident in question occurred on account of Tipper Lorry bearing No.KA 02 A 6085 and on appreciation of the entire evidence, Tribunal has rightly arrived at a conclusion that accident in question occurred on account of the negligent driving of the Tipper Lorry alone. FIR and the charge sheet would also indicate that driver of the Tipper Lorry was responsible for causing the accident in question. The proximity of death of a 3rd party on account of spilling of the 'Benzine chemical' from tanker being the resultant act of the accident it has to be necessarily held that death occurred on account of a road traffic accident. It is the accident which is the prime cause for spilling of 'Benzine chemical' from 23 tanker and not vice-versa. Hence, I am of the considered view that Tribunal was in error in fastening the liability to an extent of 50% on the insurer of the hazardous chemical and liability had to be fastened 100% on the owner of the Tipper Lorry which was duly insured and as such, same is liable to be indemnified by the insurer of Tipper Lorry namely United India Insurance Company Ltd. Accordingly, point No.1 is answered in favour of the appellant in MFA.No.609/2009 and against the 9th respondent. RE: POINT NO:2
17. On appreciation of entire evidence, Tribunal has awarded compensation of Rs.3,11,732/- to the legal representatives of deceased K.Mohammed under the following heads:
Heads Amount
Loss of dependency 2,88,000/-
Loss of consortium 5,000/-
Loss of expectancy 5,000/-
Funeral Expenses 3,000/-
Medical Bills 10,732/-
Total 3,11,732/-
24
Tribunal, while determining loss of dependency has taken into consideration the income of the deceased at Rs.2,400/- per month. Though Mr.Pundikai Ishwara Bhat would contend that Tribunal ought to have taken the income of the deceased at Rs.4,500/- per month on the ground that deceased was a mason by profession, I am not inclined to accept said submission not only for the reasons assigned by Tribunal but also for the reason that accident is of the year 1999 and Tribunal has rightly taken the wages at Rs.80/- per day which was prevalent during relevant point of time i.e, during the year 1999 and minimum wages that was being paid as per the notifications issued under the Minimum Wages Act was also in the vicinity of Rs.80/-. Hence, I do not find any infirmity in the said finding. However, contention of Mr.Pundikai Ishwara Bhat that deceased was aged 45 years and having good health and as such, the prospects of earning in future was bright deserves to be accepted in view of Law laid down and by the Hon'ble Apex Court in the case of Santhosh Devi Vs. National Insurance Company Limited reported in 2012 25 ACJ 1428 and same would be applicable to the facts on hand in all force, for the reason deceased was aged about 45 years as on the date of accident as per post mortem report Ex.P5 and he was not suffering from any ailment and as such, 30% is required to be added to the income of the deceased namely a sum of Rs.720/-. By adopting the multiplier of 14 which is the relevant multiplier as per the dictum of Sarala Verma's case reported in 2009 (6) SCC 121 wherein it has been held that appropriate multiplier to be adopted for the age group of 41 to 45 years is 14 and by adopting the same, compensation towards loss of dependency has to be determined.
18. Undisputedly, as on the date of accident, there were seven persons who were dependent on the income of the deceased. During the pendency of the proceedings, the mother of the deceased has expired. Thus, six persons were depending on deceased. As per the principles laid down in Sarala Verma's case referred to supra, living expenses requires to be deducted namely 1/4th from the income of the deceased i.e., 26 Rs.3,120-1/4th i.e., Rs.780=Rs.2340/-. Thus, compensation that becomes payable towards loss of dependancy is:
Income is taken as Rs.2,400
30% to be added Rs. 720
Total Income Rs.3,120
Less 1/4th Living expenses Rs. 780
Net Income Rs.2,340
Rs. 2340X12X14=Rs.3,93,120/-
Tribunal has awarded a sum of Rs.2,88,000/- and same has to be deducted. After so deducting, claimants would be entitled to additional compensation of Rs.1,05,120/- (3,93,120-2,88,000).
19. Tribunal has awarded compensation of Rs.13,000/- under conventional heads which is marginally on the lower side. Considering the age of the wife being 35 years as on the date of accident and there being four minor children in the age group of 7 to 13 years, I am of the considered view that compensation of Rs.50,000/- under conventional heads 27 requires to be awarded and it is accordingly awarded. Since sum of Rs.13,000/- has been awarded by the Tribunal same requires to be deducted and when so deducted amount payable by way of additional compensation under conventional head would be Rs.37,000/-(50,000-13,000). Thus, in all, claimants are entitled to additional compensation of Rs.1,42,120/-
20. The award of interest from 20.08.2005 and denying the claim of the petitioners for interest from date of filing of the petition by the Tribunal is erroneous for two reasons namely,
i) Tribunal has not assigned as to why it is depriving the claim for interest from the date of filing of the petition till 20.08.2005.
ii) Even otherwise, perusal of judgment and award would indicate that immediately after transfer of the claim petition from District Court, Mangalore to Civil Judge (Sr.Dn.) Puttur i.e., in the beginning of the year 2000 itself, the respondents had appeared and they were represented by their learned advocates. 28 Statement of objections have been filed in 2002. Proceedings have not been delayed on account of claimants. Hence, I do not find any justification for refusal of interest for the period from date of filing of the petition to 20.08.2005. In that view of the matter, the award of the Tribunal, on this ground also requires to be modified by awarding interest to claimants from the date of filing of the petition i.e., on 14.10.1999 till date of deposit of compensation awarded by Tribunal. For the reasons aforesaid, the following order is passed:
(i) MFA.No.609/2009 is hereby allowed.
(ii) Judgment and award passed by the Tribunal in MVC.No.1657/1999 dated 17.10.1980 in so far as directing the appellant insurer to indemnify the claim to the extent of 50% is hereby set aside and 100% liability is fixed on the owner and insurer of the Tipper Lorry. United India Insurance Company Limited namely 9th 29 respondent in the instant case is absolved to indemnify the claim.
(iii) MFA.No.4363/2009 is hereby allowed in part.
Additional compensation of Rs.1,42,120/- is awarded which shall carry interest at the rate of 6% p.a. from the date of petition till date of payment or deposit which ever is earlier.
(iv) The insurer of Tipper Lorry, 9th respondent shall deposit the additional compensation awarded with interest from the date of petition till the date of payment or deposit before the jurisdictional Tribunal within an outer limit of four (4) weeks from the date of receipt of certified copy of this order and it shall also deposit the interest for the compensation awarded by the Tribunal from 14.10.1999 till date of deposit.
(v) The amount in deposit in MFA.NO.609/2009 is ordered to be paid over to the appellant/insurance company 30 herein by the Registry on proper identification.
Sd/-
JUDGE Vg/-