Dismissed

E. Pandu v. D. Swaleha S/O Late Dadapeer

Karnataka HC9 Jul 2020MFA/100975/2016

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed appeals filed by an insurance company and accident victims seeking to vary compensation awarded by the Motor Accident Claims Tribunal. The court upheld the Tribunal's award, refusing to interfere with income assessments and rejecting the insurer's claim that liability was wrongly fastened upon it due to permit conditions.

What did the court decide?

All appeals dismissed; no order as to costs; amount in deposit if any to be transmitted to the Tribunal.

E. Pandu Vs D. Swaleha S/O Late Dadapeer — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 09^TH DAY OF JULY 2020

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PRESENT

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THE HON’BLE MR. JUSTICE S.G. PANDIT

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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MFA NO.100975 OF 2016 (MV) C/W

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M.F.A. NO. 100976 OF 2016, M.F.A. NO. 100977 OF 2016, M.F.A. NO. 101247 OF 2016, M.F.A. NO. 101249 OF 2016, M.F.A. NO. 101250 OF 2016

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IN MFA NO.100975 OF 2016 (MV)

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BETWEEN

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E. PANDU S/O. LATE RANGANNA, AGE: 27 YEARS, R/O: SINDIGERI VILLAGE, IN BALLARI TALUK AND DISTRICT, PRESENTLY RESIDING AT 3^RD CROSS, 3^RD ROAD, KUVEMPUNAGAR, BALLARI.

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E.RANGASWAMY @ RANGANATH S/O. LATE RANGANNA, AGE: 25 YEARS, R/O: SINDIGERI VILLAGE, IN BALLARI TALUK AND DISTRICT, PRESENTLY RESIDING AT 3^RD CROSS, 3^RD ROAD, KUVEMPUNAGAR, BALLARI.

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KUM. RADHA W/O SHIVALINGA, AGE: 23 YEARS,

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R/O: SINDIGERI VILLAGE, IN BALLARI TALUK AND DISTRICT, PRESENTLY RESIDING AT 3^RD CROSS, 3^RD ROAD, KUVEMPUNAGAR, BALLARI.

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... APPELLANTS

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(BY SRI. M. AMARE GOUDA, ADVOCATE)

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AND

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D. SWALEHA S/O LATE DADAPEER, AGE: 53 YEARS, DRIVER OF BUS BEARING REG.NO.KA.16/A-9078 R/O 3^RD CROSS, GANDHI NAGAR, SANGOLLI RAYANNA RASTHE, CHELLAKERE IN CHITRADURGA DISTRICT.

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A. SANNATHI S/O. D. AMBANNA, AGE: 48 YEARS, SREE MAHADEVI TRANSPORT, RAILWAY STATION ROAD, MADAKARI NAGAR, CHELLAKERE IN CHITRADURGA DISTRICT.

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THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, B.M. COMPLEX, LAXMI BAZAAR, CHITRADURGA.

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... RESPONDENTS

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(BY SRI. MANJUNATH G PATIL, ADV., FOR R2; SRI. S. S. JOSHI, ADV., FOR R3; R1- NOTICE DISPENSED WITH)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT 1988, AGAINST THE JUDGMENT & AWARD DATED 01.01.2016, PASSED IN MVC.NO.983/2013 ON THE FILE OF

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THE MOTOR ACCIDENT CLAIMS TRIBUNAL -XII, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO. 100976 OF 2016

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BETWEEN

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SMT. SWAPNA W/O DHANU, AGE: 22 YEARS, HOUSEWIFE, R/O: NEAR TARANATH HOSPITAL, ANANTAPUR ROAD, BALLARI.

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... APPELLANT

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(BY SRI. M. AMARE GOUDA, ADVOCATE)

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AND

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D. SWALEHA S/O LATE DADAPEER, AGE: 53 YEARS, DRIVER OF BUS BEARING REG.NO.KA.16/A.9078 R/O 3^RD CROSS, GANDHI NAGAR, SANGOLLI RAYANNA RASTHE, CHELLAKERE IN CHITRADURGA DISTRICT.

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A. SANNATHI S/O. D. AMBANNA, AGE: 48 YEARS, SREE MAHADEVI TRANSPORT, RAILWAY STATION ROAD, MADAKARI NAGAR, CHELLAKERE IN CHITRADURGA DISTRICT.

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THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, B.M. COMPLEX, LAXMI BAZAAR, CHITRADURGA.

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... RESPONDENTS

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(BY SRI. MANJUNATH G PATIL, ADV., FOR R2;

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SRI. S. S. JOSHI, ADV., FOR R3; R1- NOTICE DISPENSED WITH)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 01.01.2016 PASSED IN MVC NO.985/2013 ON THE FILE OF THE MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.100977 OF 2016

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BETWEEN

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E. RANGASWAMY @ RANGANATH S/O LATE RANGANNA, AGE: 25 YEARS, R/O: SINDIGERI VILLAGE IN BALLARI TALUK AND DISTRICT, PRESENTLY RESIDING AT 3^RD CROSS, 3^RD ROAD, KUVEMPUNAGAR, BALLARI.

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... APPELLANT

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(BY SRI. M. AMARE GOUDA, ADVOCATE)

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AND

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D. SWALEHA S/O LATE DADAPEER, AGE: 53 YEARS, DRIVER OF BUS BEARING REG.NO.KA.16/A9078 R/O 3^RD CROSS, GANDHI NAGAR, SANGOLLI RAYANNA RASTHE, CHELLAKERE IN CHITRADURGA DISTRICT.

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A. SANNATHI S/O. D. AMBANNA,

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AGE: 48 YEARS, SREE MAHADEVI TRANSPORT, RAILWAY STATION ROAD, MADAKARI NAGAR, CHELLAKERE IN CHITRADURGA DISTRICT.

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THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, B.M. COMPLEX, LAXMI BAZAAR, CHITRADURGA.

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... RESPONDENTS

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(BY SRI. MANJUNATH G PATIL, ADV., FOR R2; SRI. S. S. JOSHI, ADV., FOR R3; R1- NOTICE DISPENSED WITH)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 01.01.2016 PASSED IN MVC NO.986/2013 ON THE FILE OF THE MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.101247 OF 2016

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BETWEEN

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THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, B.M. COMPLEX, LAXMI BAZAAR, CHITRADURGA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ARIHANT PLAZA, 2^ND FLOOR, KUSUGAL ROAD, HUBLI.

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... APPELLANT

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(BY SRI. S. S. JOSHI, ADVOCATE)

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AND

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D. SWALEHA S/O LATE DADAPEER, AGE: 52 YEARS, DRIVER OF BUS BEARING REG.NO.KA.16/A-9078, R/O 3^RD CROSS, GANDHI NAGAR, SANGOLLI RAYANNA RASTHE, CHELLAKERE IN CHITRADURGA DISTRICT.

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A SANNATHI S/O D. AMBANNA, AGE: 47 YEARS, SREE MAHADEVI TRANSPORT, RAILWAY STATION ROAD, MADAKARI NAGAR, CHELLAKERE IN CHITRADURGA DISTRICT.

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E. PANDU S/O LATE RANGANNA, AGE:26 YEARS, R/O: SINDIGERI VILLAGE, IN BALLARI TALUKA AND DISTRICT AND PRESENTLY R/AT: 3^RD CROSS, 3^RD ROAD, KUVEMPU NAGAR, BALLARI.

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E. RANGASWAMY @ RANGANATH S/O LATE RANGANNA , AGE:24 YEARS, R/O: SINDIGERI VILLAGE, IN BALLARI TALUKA AND DISTRICT AND PRESENTLY R/AT: 3^RD CROSS, 3^RD ROAD, KUVEMPU NAGAR, BALLARI.

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KUM. RADHA W/O SHIVALINGA, AGE: 22 YEARS, R/O: SINDIGERI VILLAGE, IN BALLARI TALUKA AND DISTRICT

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AND PRESENTLY R/AT: 3^RD CROSS, 3^RD ROAD, KUVEMPU NAGAR, BALLARI.

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... RESPONDENTS

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(BY SRI. MANJUNATH G. PATIL, ADV., FOR R2; SRI. M. AMARE GOUDA, ADV., FOR R3 TO R5; R1 – NOTICE SERVED)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT & AWARD DATED 01.01.2016, PASSED IN MVC.NO.983/2013 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL - XII, AT BALLARI, AWARDING THE COMPENSATION OF RS.6,95,200/- WITH INTEREST AT THE RATE OF 7% P.A. FROM THE DATE OF PETITIONS TILL THE DATE OF DEPOSIT.

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IN M.F.A.NO.101249 OF 2016

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BETWEEN

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THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, B.M. COMPLEX, LAXMI BAZAAR, CHITRADURGA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ARIHANT PLAZA, 2^ND FLOOR, KUSUGAL ROAD, HUBLI.

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... APPELLANT

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(BY SRI. S. S. JOSHI, ADVOCATE)

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AND

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D. SWALEHA S/O LATE DADAPEER, AGE: 52 YEARS,

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DRIVER OF BUS BEARING REG.NO.KA.16/A-9078, R/O 3^RD CROSS, GANDHI NAGAR, SANGOLLI RAYANNA RASTHE, CHELLAKERE IN CHITRADURGA DISTRICT.

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A SANNATHI S/O D. AMBANNA, AGE: 48 YEARS, SREE MAHADEVI TRANSPORT, RAILWAY STATION ROAD, MADAKARI NAGAR, CHELLAKERE IN CHITRADURGA DISTRICT.

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SMT. SWAPNA W/O DHANU, AGE:21 YEARS, OCC:HOUSEWIFE, R/O:NEAR TARANATH HOSPITAL, ANANTHAPUR ROAD, BALLARI.

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... RESPONDENTS

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(BY SRI. MANJUNATH G. PATIL, ADV., FOR R2; SRI. M. AMARE GOUDA, ADV., FOR R3; R1 – NOTICE SERVED)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT & AWARD DATED 01.01.2016, PASSED IN MVC.NO.985/2013 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, AWARDING THE COMPENSTION OF RS.1,48,600/WITH INTEREST AT THE RATE OF 7% P.A., FROM THE DATE OF PETITION TILL ITS DEPOSIT.

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IN M.F.A.NO.101250 OF 2016

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BETWEEN

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THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED,

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B.M. COMPLEX, LAXMI BAZAAR, CHITRADURGA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ARIHANT PLAZA, 2^ND FLOOR, KUSUGAL ROAD, HUBLI. ... APPELLANT

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(BY SRI. S. S. JOSHI, ADVOCATE) AND

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D. SWALEHA S/O LATE DADAPEER, AGE: 52 YEARS, DRIVER OF BUS BEARING REG.NO.KA.16/A-9078, R/O 3^RD CROSS, GANDHI NAGAR, SANGOLLI RAYANNA RASTHE, CHELLAKERE IN CHITRADURGA DISTRICT.

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A SANNATHI S/O D. AMBANNA, AGE: 48 YEARS, SREE MAHADEVI TRANSPORT, RAILWAY STATION ROAD, MADAKARI NAGAR, CHELLAKERE IN CHITRADURGA DISTRICT.

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E. RANGASWAMY @ RANGANATH S/O LATE RANGANNA, AGE:24 YEARS, R/O:SINDIGERI VILLAGE IN BELLARI TALUKA & DIST. PRESENTLY R/AT: 3^RD CROSS, 3^RD ROAD, KUVEMPU NAGAR, BELLARI.

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... RESPONDENTS

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(BY SRI. MANJUNATH G. PATIL, ADV., FOR R2; SRI. M. AMARE GOUDA, ADV., FOR R3 TO R1 – NOTICE SERVED)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT & AWARD DATED 01.01.2016, PASSED IN MVC.NO.986/2013 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL - XII, AT BALLARI, AWARDING THE COMPENSATION OF RS.2,08,000/- WITH INTEREST AT THE RATE OF 7% P.A. FROM THE DATE OF PETITIONS TILL THE DATE OF DEPOSIT.

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THESE MFAs COMING ON FOR HEARING THIS DAY, V. SRISHANANDA, J DELIVERED THE FOLLOWING:

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JUDGMENT

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All these appeals are arising out of the common judgment and award dated 01.01.2016 passed in MVC

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No.983/2016 to 986/2016 by the Motor Accident Claims Tribunal – XII, Ballari (hereinafter referred to as “the Tribunal” for short).

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The brief facts which are necessary for disposal

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of these appeals are as under:

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The claim petitions were filed by the claimants under Section 166 of the Motor Vehicles Act alleging that on 23.05.2013 at about 11.30 p.m. when Smt. Mallamma @ Malleshwari along with others were traveling in an Auto-

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rickshaw bearing No.KA-34/A-4209 and when they reached near KEB Power Station on Bengaluru road in Ballari, a bus bearing No.KA-16/A-9078 came in a rash and negligent manner and dashed against the autorickshaw resulting in serious injuries to the inmates of the auto-rickshaw. Thereafter, they were shifted to VIMS Hospital, Bellari and then to Community Health Center, Dhone in Karnool District, but Mallamma @ Malleshwari succumbed to the injuries on the way to hospital itself. It is further contended that the other two claimants in MVC No.985/2016 and 986/2016 also sustained grievous injuries and spent huge money towards medical treatment. The claimants in MVC No.983/2016 have sought for compensation for the death of Mallamma and claimants in MVC No.985/2016 and 986/2016 have sought for compensation for the injuries sustained by them in the said accident.

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In pursuance of notice issued, respondents 1 to 3 appeared before the Tribunal and filed their separate

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written statements denying the averments made in all the claim petitions.

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In order to prove the claim petition averments, totally six witnesses were examined on behalf of the claimants as P.W.1 to P.W.6 and relied on documentary evidence which were marked vide Exs.P.1 to 20. On behalf of the respondent/insurance company, one T.V.Mahesh the Administrative Officer got examined as R.W.1 and relied on two documents which were marked vide Ex.R.1/copy of insurance policy and Ex.R.2/copy of charge sheet.

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The Tribunal after considering the entire material on record and hearing the parties allowed the petitions by awarding compensation on the following heads:

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	MVC No.983/2013
1.	Towards loss of dependency	Rs.6,55,000/-
2.	For the loss of estate	Rs. 10,000/-
3.	For the loss of love and affection	Rs. 10,000/-
4.	Towards funeral expenses	Rs. 20,000/-
	Total	Rs.6,95,200/-

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	MVC No.985/2013
1.	For the injuries pain and sufferings	Rs. 50,000/-
2.	Towards medical expenses and also attendant charges	Rs. 40,000/-
3.	For the loss of future earning capacity or for disability	Rs. 48,600/-
4.	For the loss of future amenities of life	Rs. 10,000/-
	Total	Rs.1,48,200/-

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	MVC No.986/2013
1.	For the injuries pain and sufferings	Rs. 40,000/-
2.	Towards medical expenses and also attendant charges	Rs. 50,000/-
3.	For the loss of future earning capacity or for disability	Rs.1,08,000/-
4.	For the loss of future amenities of life	Rs. 10,000/-
	Total	Rs.2,08,000/-

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It is that common judgment, which is under

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challenge in these appeals.

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appellants/claimants submits that the compensation awarded by the Tribunal is on the lower side and sought for enhancement. The learned counsel for claimants contends that the monthly income of the deceased assessed by the Tribunal at Rs.4,500/- is incorrect and also contends that the compensation awarded by the Tribunal on conventional heads is also on the lower side and sought for enhancement. The learned counsel for the claimants also contend that the compensation awarded for injured claimants is on lower side and sought for enhancement.

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Per contra, the learned counsel Sri. S. S. Joshi,

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appearing for the insurance company contends that the compensation awarded by the Tribunal itself is on the higher side and sought for reduction of the same. Further he contended that there was clear breach of permit condition as such the fastening of the liability on the

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Insurance Company is erroneous and sought for allowing the appeals filed by the Insurance Company.

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In view of the rival contentions of the parties,

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the points that would arise for our consideration are as under:

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i) Whether the compensation awarded by the Tribunal is just and proper?

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ii) Whether the appellants/claimants have made out a case for enhancement of compensation?

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iii) Whether the insurance company proves that the Tribunal has erred in fastening the liability on the insurance company and makes out a case for reduction of compensation?

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We answer point No.(i) in the affirmative ,

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point Nos.(ii) & (iii) in the negative for the following:

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REASONS

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The learned counsel for the claimants argued

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that the amount of compensation awarded by the Tribunal in all the claims is too meager. It is contented that on

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conventional heads also, the Tribunal has not awarded reasonable compensation and sought for enhancement.

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Per contra, the learned counsel for the

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insurance company contends that having regard to permit conditions as well as other material on record, especially when the driver of offending vehicle has been charge-

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sheeted under Section 66(1) and 192(A) of Indian Motor Vehicles Act, fastening liability on the insurance company by the Tribunal is wrong and sought for allowing the appeals preferred by the insurance company.

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We have carefully perused the records.

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The Tribunal has taken into consideration that

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the deceased was aged 45 years. On record, there was no material to show that the deceased and the claimants in MVC No.985/2013 and 986/2013 were having any definite source of income. In the absence of such material on record, the Tribunal made a guesswork and notionally assessed their income at Rs.4,500/- per month in MVC

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Nos983/2013 and 985/2013 and Rs.5,000/- in MVC No.986/2013, which we do not incline to interfere with.

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The Tribunal, while awarding compensation in MVC No.983/2016 for the death of Mallamma @ Malleshwari has taken into consideration the decision in the case of Rajesh and others v. Rajbir Singh and others reported in 2013 ACJ 1403 and added 30% of the income towards future prospects to the monthly income of Rs.4,500/- and arrived at Rs.5,850/- and deducted 1/3^rd of the income towards personal and living expenses of the deceased and arrived at Rs.3950/- per month, in the absence of any plausible material to prove the monthly income that was placed on record and awarded the compensation towards loss of dependency including future prospects.

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As per the decision of the Hon’ble Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi and others, reported in AIR 2017 Supreme Court 5157, the Tribunal ought to have added

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25% of the assessed income towards future prospects but since we are not inclined to reassess the monthly income of Rs.4,500/- and if reassessed, it would be much more than Rs.4,500/- p.m., hence we do not want to disturb the addition of 30% of the assessed income made by the Tribunal towards future prospects in the peculiar facts and circumstances of the case. With regard to compensation awarded by the Tribunal on other heads also, we do not find any error and same is maintained.

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As regards compensation awarded by the Tribunal in MVC No.985/2016 and 986/2016 is concerned, we do not find any serious error. In our considered opinion, the compensation awarded by the Tribunal in the above claim petitions is just and proper, which needs no interference.

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Now adverting to the defence taken by the insurance company, on record, R.W.1 is examined on behalf of the insurance company. In his evidence he has stated that the driver of the offending vehicle was charge-

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sheeted under Section 66(1) and 192(A) of Indian Motor Vehicles Act and therefore, fastening liability on the insurance company by the Tribunal is incorrect.

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In his cross-examination, he denied that the accident has occurred on account of rash and negligent driving of the bus by its driver but attributed the negligence on the part of the driver of the auto-rickshaw. In this regard, he has relied on the copy of charge-sheet filed before the jurisdictional Criminal Court. In his crossexamination, he admits that there was investigation conducted by his company and he agreed to produce the investigation report made by insurance company. He admitted that the Secretary of Road Transport Authorities is having power to transfer permit from one vehicle to another vehicle. In his cross-examination, he admits that a contract carriage means there was a permit throughout Karnataka State.

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Since the insurance company has failed to produce the investigating report, the Tribunal on

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appreciation of materials placed before it, has negatived the contention of the insurance company that the insurance company is not liable to pay the compensation and has fastened the liability on the insurance company to pay the compensation.

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Even after re-appreciation of the entire

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material on record and moreover since the insurer has failed to place on record the investigation report, adverse inference will have drawn against the insurer, hence we are unable to accept the contentions urged on behalf of the insurance company that the insurance company is not liable to pay the compensation. The grounds urged by the insurance company sans merit.

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In view of the foregoing discussions, we find that the Tribunal is right in awarding the above mentioned compensation and is also right in fastening the liability on the insurance company. Accordingly, we answer Point No.(i) in affirmative and point Nos.(ii) and (iii) in negative and proceed to pass the following:

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ORDER

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All appeals sans merit and are hereby dismissed.

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No order as to costs.

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The amount in deposit, if any, made by

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the insurance company is directed to be

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