Partly allowed

The Oriental Insurance Company Ltd. v. Bhaskar Dewangan

Chhattisgarh HC1 May 2024MAC/1477/2015

Case brief

AI extract

What is this about?

The High Court disposed of three appeals arising from the same motor vehicle accident. It dismissed the insurance company's appeal, holding the insurer liable as the driver held a valid light motor vehicle licence. It partly allowed the injured claimant's appeal, enhancing the compensation award suitably.

What did the court decide?

Appeals of insurance company dismissed; claimant's appeal allowed in part with enhancement of compensation by Rs. 35,000/- plus interest.

The Oriental Insurance Company Ltd. Vs Bhaskar… — Motor Accident Claims | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 1477 of 2015

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The Oriental Insurance Company Ltd. Through its Divisional Manager, Branch Office Dhamtari, Near Balak Chowk, Dhamtari, Post Tahsil, Zilla Dhamtari Chhattisgarh.

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---- Appellant

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Versus

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Bhaskar Dewangan S/o Shri Virendra Dewangan, R/o Khosta Para, Dhamtari, Thana Dhamtari, Tahsil and Zilla Dhamtari Chhattisgarh.

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Lalit Nirmalkar S/o Kartikram Nirmalkar, R/o Fagundah, Post Guroor, Zilla Durg Chhattisgarh.

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Rajendra Kumar Patel S/o Babulal Patel, R/o Bhothidih, Post Bhothidih, Tehsil Kurud, Zilla Dhamtari Chhattisgarh.

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Balmukund Nirmalkar S/o Sahasram Nirmalkar, R/o Biretara (Sikosa), Post Sikosa, Tahsil Gunderdehi, Zilla Balod Chhattisgarh.

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---- Respondents

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MAC No. 1379 of 2015

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Ravi Dewangan S/o Ramesh Dewangan, Aged About 24 Years R/o Koshtapara Dhamtari, Police Station Dhamtari, Tehsil and District Dhamtari, Chhattisgarh.

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---- Appellant

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Versus

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Lalit Nirmalkar S/o Kartikram Nirmalkar, R/o Fagundah, Post Gurur, District Durg, Chhattisgarh.

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Rajendra Kumar Patel S/o Babulal Patel, R/o Bhothidih, Post Bhothidih, Tehsil Kurud, District Dhamtari, Chhattisgarh.

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Balmukund Nirmalkar S/o Sahasram Nirmalkar, R/o Biretara (Sikosa), Post Sikosa, Tehsil Gunderdehi, District Balod, Chhattisgarh.

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Manager, The Oriental Insurance Company Limited, Near Balak Chowk Branch Dhamtari, Post, Tehsil and District Dhamtari, Chhattisgarh.

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---- Respondents

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MAC No. 1478 of 2015

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The Oriental Insurance Company Ltd. Through its Divisional Manager, Branch Office Dhamtari, Near Balak Chowk, Dhamtari, Post Tahsil, Zilla Dhamtari Chhattisgarh.

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---- Appellant

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Versus

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Ravi Dewangan S/o Shri Ramesh Dewangan, Aged About 24 Years, R/o Khosta Para, Dhamtari, Thana Dhamtari, Tahsil and Zilla Dhamtari Chhattisgarh.

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Lalit Nirmalkar S/o Kartikram Nirmalkar, R/o Fagundah, Post Guroor, Zilla Durg Chhattisgarh.

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Rajendra Kumar Patel S/o Babulal Patel, R/o Bhothidih, Post Bhothidih, Tahsil Kurud, Zilla Dhamtari Chhattisgarh.

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Balmukund Nirmalkar S/o Sahasram Nirmalkar, R/o Biretara (Sikosa), Post Sikosa, Tahsil Gunderdehi, Zilla Balod Chhattisgarh.

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---- Respondents

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MAC No.1477 of 2015

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For Appellant : Ms. Chitra Shrivastava, Advocate. For Respondents No.1 : Mr. Amit Kumar Sahu, Advocate on behalf of Mr. Rajkumar Pali, Advocate. For Respondents No.2 to 4 : Mr. Rajendra Patel, Advocate on behalf of Mr. Sunil Sahu, Advocate.

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MAC No.1379 of 2015

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For Appellant : Mr. Amit Kumar Sahu, Advocate on behalf of Mr. Rajkumar Pali, Advocate. For Respondents No.1 to 3 : Mr. Rajendra Patel, Advocate on behalf of Mr. Sunil Sahu, Advocate. For Respondent No.4 : Ms. Chitra Shrivastava, Advocate.

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MAC No.1478 of 2015

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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02.05.2024

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1. By this common judgment, all the three appeals being MAC Nos.1477 of 2015, 1379 of 2015 and 1478 of 2015 are being disposed of as the same are arising out of same accident.

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2. MAC Nos. 1477 of 2015 and 1478 of 2015 are filed by the insurance company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “M.V. Act”) arises out of the award dated 25.08.2015 passed by the Additional Motor Accident Claims Tribunal (F.T.C.), Dhamtari District Dhamtari (C.G.) (hereinafter referred to as “Claims Tribunal”) in Claim Case Nos.63 of 2013 and 59 of 2013 respectively, by which, insurance company was liable to satisfy the amount of compensation to the respective claimants.

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3. It is notable that MAC No.1470 of 2015 filed on behalf of claimant Bhaskar Dewangan arising out of Claim Case No.63 of 2013 for enhancement of compensation has been dismissed for want of prosecution vide order dated 18.01.2024.

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4. MAC No.1379 of 2015 is filed by the appellant/injured claimant Ravi Dewangan under Section 173 of the M.V. Act arises out of the award dated 25.08.2015 passed by the Additional Motor Accident Claims Tribunal (F.T.C.), Dhamtari District Dhamtari (C.G.) (hereinafter referred to as “Claims Tribunal”) in Claim Case Nos.59 of 2013 for enhancement of the amount of compensation.

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5. Brief facts for disposal of all the three appeals, are that, on 03.12.2011, Ravi Dewangan and Bhaskar Dewangan were coming to their home at Dhamtari from village Arjunda on motorcycle. When they reached near village Potiyadeeh Aamdi road bridge at about 8.00 PM, Lalit Nirmalkar (driver) while driving the Tractor bearing registration No.CG-05C-9386 (hereinafter referred to as “offending vehicle”), dashed the motorcycle in front side, due to which, both the persons i.e. Ravi Dewangan and Bhaskar Dewangan suffered grievous injuries over their person and they were taken to the Christian Hospital, Dhamtari for treatment. Thereafter, Crime No.284 of 2011 was registered against Lalit Nirmalkar at Police Station Arjuni for the offence punishable under Sections 279, 337 and 338 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).

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6. After recovery from injuries, both the claimants (Ravi Dewangan and Bhaskar Dewangan) filed claim petitions under Sections 166 & 140 of M.V. Act seeking total compensation of Rs.16,65,000/- and 20,45,000/respectively, pleading therein that in motor accident, they have suffered grievous injuries.

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7. After appreciating the evidence available on record as well as after hearing learned counsel for the parties as also

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considering the pleadings made in the claim petitions respectively, learned Claims Tribunal considered that the accident occurred due to rash and negligence act of Lalit Nirmalkar, who was driver of offending vehicle and on the date of accident, offending vehicle was insured with the insurance company, as such, insurance company is liable to satisfy the amount of compensation in favour of claimants.

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8. Learned counsel for the insurance company in MAC Nos.1477 of 2015 & 1478 of 2015, submits that on the date of accident, driver of offending vehicle was not possessed with valid and effective driving licence as the driving licence was not renewed, hence, there was violation of conditions of insurance policy, but Claims Tribunal directed the insurance company to satisfy the amount of compensation to the claimants, which is not proper in the given facts and circumstances of the case. He further submits that on the date of accident, the driver who was driving the offending vehicle was having the licence only to drive the ‘light motor vehicle/light transport vehicle’. Hence, the appeals filed by the insurance company be allowed and insurance company be exonerated to satisfy the amount of compensation.

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9. On the other hand, learned counsel for the claimant in MAC No.1379 of 2015, submits that learned Claims Tribunal

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erred in awarding meagre amount of compensation. He further submits that in the accident, appellant suffered fracture of pelvic and fracture of tibia-fibula. Appellant appeared before the Medical Board, who issued disability certificate (Ex.P/45) opining 50% temporary disability. It is contended that learned Claims Tribunal has not awarded any amount towards disability misreading the evidence of Dr. Vinod Pandey (AW-2), who is member of Medical Board. He lastly submits that considering the nature of injuries, disability certificate (Ex.P/45) issued by Medical Board and evidence of Dr. Vinod Pandey (AW-2) being member of Medical Board, amount of compensation be enhanced suitably.

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10. I have heard the learned counsel for the parties and perused the record of claim cases with utmost circumspection.

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11. I shall first deal with the appeals filed by the insurance company being MAC Nos.1477 of 2015 and 1478 of 2015.

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12. The submission of learned counsel for the insurance company is that on the date of accident, driver of the offending vehicle was not possessed with valid and effective driving licence as his licence was renewed on the date of

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accident.

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13. Insurance company has filed its written statement before the claims Tribunal pleading therein that at the time of accident dated 03.12.2011, Lalit Nirmalkar did not have a valid and effective licence to drive the offending vehicle and in this regard, it has examined Suresh Yadu, Assistant Grade-2, District Transport Office, Dhamtari (NAW4-1), Pradeep Kumar Vishwas, Administrative Officer, Oriental Insurance Company Limited, Dhamtari (NAW4-2) and Shiv Kumar Kosare, Advocate (NAW4-3). According to registration certificate, on the date of the accident, offending vehicle was registered in the name of Rajendra Kumar Patel. Pradeep Kumar Vishwas, Administrative Officer (NAW4-2) has stated in his evidence that on the date of accident offending vehicle was insured by the insurance company.

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14. Regarding availability of driving licence, Lalit Nirmalkar has stated in his evidence that he had a valid and effective licence on the date of accident, which is clear from the documents produced by the insurance company i.e. Ex.D/2C, according to which, Lalit Nirmalkar had got a licence to drive a ‘light motor vehicle/light transport vehicle’ on 14.12.1992, which is valid up to 04.12.2014. Suresh Yadu, Assistant Grade-2 (NAW4-1) has admitted in his

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evidence that a diving licence has been issued on the name of Lalit Nirmalkar 04.12.1992 valid till 04.12.2014. Similarly, from the statement of Pradeep Kumar Vishwas (NAW4-2) and Shiv Kumar Kosare (NAW4-3), it is found that on the date of accident, driver of offending vehicle had a valid and effective licence to drive the vehicle.

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15. The issue with respect to persons having a licence authorizing to drive Light Motor Vehicle, but on the date of accident found driving the commercial vehicle, but of the same category, has been considered by the Hon'ble Supreme Court in case of Mukund Dewangan v. Oriental

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Insurance Company Limited reported in (2017) 14 SCC 663 and held as under :-

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“60. Thus we answer the questions which are referred to us thus:

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60.1. ‘'Light motor vehicle'’ as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994.

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60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle”

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as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or roadroller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28-03-2001 in the form.

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60.3. The effect of the amendment made by virtue of Act No.54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of Section 10(2) which contained “medium goods vehicle” in Section 10(2)(e), “medium passenger motor vehicle” in Section 10(2)(f), “heavy goods vehicle” in Section 10(2)(g) and “heavy passenger motor vehicle” in Section 10(2)(h), with expression “transport vehicle” as substituted in Section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle.

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60.4. The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.”

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16. In the light of law laid down by Hon'ble Supreme Court in the aforementioned case as well as considering the fact of

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the case, it is quite vivid that on the date of accident, Lalit Nirmalkar (driver of offending vehicle) was possessing licence to drive the 'Light Motor Vehicle'. Insurance Company has failed to prove the fact that weight of offending vehicle was more than 7500 kg. Therefore, terms and conditions of the insurance policy are not violated and learned Claims Tribunal has rightly fastened the liability to satisfy the amount of compensation upon the insurance company.

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17. Considering the ratio laid down in above decision of the Hon'ble Supreme Court as also considering the beneficial object of M.V. Act as well, this Court is of the view that learned Claims Tribunal has not committed any error in fastening the liability to satisfy the amount of compensation upon the insurance company. The said finding of fact based on evidence and same is neither perverse nor contrary to the record. I hereby affirm the said finding.

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18. Now, I shall deal with the appeal filed by the claimant being MAC No.1379 of 2015 for enhancement of the award.

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19. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager

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amount of compensation, nor a Bonanza.

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20. Now this Court examine as to whether the compensation of Rs.58,100/- awarded by the Claims Tribunal is just and proper compensation in the given facts and circumstances of the case.

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21. Learned Claims Tribunal has recorded in paragraph-8 that Ravi Dewangan in his claim petition has stated that due to the said accident, the right kneecap and pelvic bone was broken into many parts and there was a huge crater in the skull at the back of the head as well as there were internal injuries in many parts of the body. He further stated that his bone of right leg and kneecap have been fractured. In support of his contention, he has submitted medical documents like MLC report (Ex.P/7 & Ex.P/8) of Frature Care Hospital, disability certificate issued by Medical Board Dhamtari (Ex.P/45), Treatment slip of District Hospital Dhamtari (Ex.P/46) as well as X-ray report (Ex.P/47). In support of the above evidence, he has examined Dr. Vinod Pandey (AW-2), who deposed in his evidence that Medical Board, Dhamtari has issued disability certificate on 28.02.2013 to Ravi Dewangan mentioning 50% disability of temporary nature. The said medical certificate mentioned malunited fracture over right inter condylar femur condule

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plating in right knee. Dr. Vinod Pandey (AW-2) has further stated that after providing the disability certificate, complainant was called back for re-evaluation after one year. In cross-examination, he has stated that after receiving disability certificate, he did not appear before Medical Board. In such a situation, learned Claims Tribunal has held that the claimant has suffered only grievous injury and not permanent disability. The said finding is correct finding of fact and needs no interference.

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22. Learned Claims Tribunal has awarded Rs.25,100/- towards medical expenses, Rs.25,000/- towards grievous injuries, Rs.5,000/- towards pain and suffering and Rs.3,000/towards special diet. As such, total compensation of Rs.58,100/- has been awarded to the claimant Ravi Dewangan.

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23. Taking into consideration the nature of injuries suffered by appellant, part of body, which are proved by Dr. Vinod Pandey (AW-2), in the considered opinion of this Court, compensation awarded by learned Claims Tribunal needs to be enhanced suitably.

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24. Keeping in mind the beneficial object of the M.V. Act as well as looking to the facts and circumstances of the case, I

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award further compensation of Rs.12,000/- towards loss of income during treatment, Rs.10,000/- towards future medical expenses and Rs.13,000/- towards inconvenience in future, which comes to Rs.35,000/- in total.

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25. Thus, the total compensation is recomputed as Rs.93,100/-. After deducting Rs.58,100/- as awarded by the Claims Tribunal, the enhancement would be Rs.35,000/-.

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26. In the result :

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(i) MAC No.1477 of 2015 and 1478 of 2015 filed on behalf of the insurance company are dismissed being devoid of substance.

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(ii) MAC No.1379 of 2015 filed on behalf of claimant Ravi Dewangan is allowed in part. The claimant shall be entitled to Rs.35,000/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. It is made clear that the remaining amount of award shall be paid by the insurance company. Other conditions imposed by learned Claims Tribunal shall remain intact.

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27. The Registry is directed to communicate the claimant in writing “the enhanced amount” in these appeals as against the award passed by the learned Claims Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a coordination of Secretary, Legal Aid of the concerned area wherein the claimants reside.

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(Sanjay Kumar Jaiswal) Judge

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Yogesh

The Oriental Insurance Company Ltd. v. Bhaskar Dewangan

Case brief

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The Oriental Insurance Company Ltd. v. Bhaskar Dewangan

Case brief

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