Partly allowed

The Claim Manager v. Yashodamma

Karnataka HC24 Nov 2020MFA/4952/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the insurance company's appeal partially. The Court upheld the negligence finding but enhanced the compensation from Rs.9,66,000 to Rs.13,37,880 by reassessing income and awarding full medical expenses. It also modified the interest rate from 9% to 6% per annum.

What did the court decide?

Compensation enhanced to Rs.13,37,880/-; interest rate modified to 6% p.a.; liability, apportionment and disbursement found to be intact.

The Claim Manager Vs Yashodamma — Civil Procedure and Limitation | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON'BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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MFA.NO.4952 OF 2016(MV-D) C/W MFA.CROB.NO.59/2017(MV-D)

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IN MFA.NO.4952 OF 2016

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BETWEEN:

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THE CLAIM MANAGER ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE - 9 NO. 70/5, SUVARNA TOWER 1^ST FLOOR, VIJAYANAGAR BENGALURU-560 040 BY THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, 2^ND FLOOR SUMANGALA COMPLEX LAMINGTION ROAD HUBLI-580 020. BY IT'S MANAGER

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....APPELLANT

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(BY SRI. O. MAHESH, ADVOCATE)

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AND:

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YASHODAMMA AGE 52 YEARS W/O. LATE. SHIVANNA @ SHVANNAGOWDA

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PUSHPANJALI AGE 37 YEARS D/O. LATE. SHIVANNAGOWDA

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SHASHI AGE 35 YEARS D/O. LATE. SHIVANNAGOWDA

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RADHAMANI AGE 33 YEARS D/O. LATE. SHIVANNAGOWDA

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ALL ARE RESIDING AT GOVT. COLLEGE HOSTEL BACK DIDAGA VILLAGE, HIRISAVE HOBLI CHANNRAYAPATNA TALUK HASSAN DISTRICT-573 201

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NOW PRESENTLY RESIDING AT

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YOSHODAMMA, AGE 52 YEARS W/O LATE SHIVANNAGOWDA C/O K. KRISHNEGOWDA S/O. LATE KARIYAPPA, KUVEMPU NAGAR BELURU TOWN - 573 115

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DR. BOJARAJA MAJOR, S/O. LATE DYAVEGOWDA NO.1384, 10^TH MAIN RPC LAYOUT, VIJAYANAGAR BANGALORE-560 040

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….RESPONDENTS

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(BY SRI. S.B. SRINIVASA AND SARITHA A.L ADVOCATE FOR R1 TO R4, NOTICE TO R5 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 13.04.2016 PASSED IN MVC NO.24/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BELURU, AWARDING COMPENSATION OF RS.9,66,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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IN MFA.CROB.NO.59 OF 2017

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BETWEEN:

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1 . YASHODAMMA W/O LATE SHIVANNA GOWDA, AGED 52 YEARS OCC: HOUSEHOLD WORK

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2 . PUSHPANJALI K.S. D/O LATE SHIVANNA GOWDA, AGED ABOUT 37 YEARS,

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3 . SHASI K.S.

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D/O LATE SHIVANNA GOWDA, AGED ABOUT 35 YEARS,

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4 . RADHARANI K.S. D/O LATE SHIVANNA GOWDA, AGED ABOUT 33 YEARS,

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ALL ARE PRESENTLY RESIDING AT

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C/O K.KRISHNE GOWDA, S/O LATE KARIYAPPA, KUVEMPU NAGAR, BELUR TOWN, BELUR TALUK, HASSAN DISTRICT.

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....CROSS OBJECTORS

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(BY SRI. S.B. SRINIVASA AND SARITHA A.L, ADVOCATE)

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AND:

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1 . THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE-9 NO. 70/5, SUVARNA TOWER, 1^ST FLOOR, VIJAYANAGAR, BENGALURU - 560 040 EARLIER HASSAN, BY PRESENTLY THE ORIENTAL INSURANCE CO LTD., REGIONAL OFFICE, 2^ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI - 580 020. 2 . DR. BHOJARAJ S/O LATE DYAVEGOWDA, NO.1384, 10^TH MAIN, RPC LAYOUT, VIJAYANAGAR, BENGALURU - 40. (KA -04-MQ-123 OWNER OF THE CAR)

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….RESPONDENTS

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(BY SRI. O.MAHESH, ADVOCATE FOR R1, V/O DATED 24.07.2017 NOTICE TO R2 IS D/W)

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THIS MFA CROB IN MFA NO.4952/2016 PASSED U/O.41 RULE 22(1) OF CPC, AGAINST THE JUDGMENT AND AWARD DATED: 13.04.2016 PASSED ON MVC NO.24/2015

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ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, BELURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA AND MFA CROB COMING ON FOR HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The Insurance Company has preferred an appeal in MFA No.4952/2016 challenging the judgment and award dated 13.04.2016 passed in MVC No.24/2015

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by the Senior Civil Judge and MACT, Belur on the ground of negligence as well as quantum, whereas the cross objection is filed by the claimants in MFA Crob No.59/2017 seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their rank before the Tribunal.

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The facts leading to the case are as under:

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The claimants filed a claim petition by specifically

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contending that on 11.05.2014 at about 6.45 p.m., the husband of claimant No.1 namely Shivanna @ Shivannagowda was proceeding on his TVS Scooty bearing Reg. No.KA-03-EN-4871 along with his wife i.e., claimant No.1 and when they reached Chakenahalli (Varahasandra) Gate at MangaloreBengaluru National Highway No.75, the driver of the offending car bearing Reg. No.KA-04-MQ-123 came in a rash and negligent manner and dashed against TVS Scooty on which claimant No.1 and her husband were proceeding. In the said accident, husband of claimant No.1 sustained grievous injuries and he was immediately shifted to Adichunchanagiri Hospital, Bellur cross and after securing First Aid, he was shifted to Hosmat Hospital at Bengaluru. It is stated that inspite of best treatment, Shivanna @

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Shivannagowda succumbed to the injuries on 02.06.2014. The claimants contended that prior to the accident, the deceased was hale and healthy and was doing electrical as well as agriculture work. It is stated in the claim petition that the deceased had an income of Rs.30,000/- per month. The claimants have specifically contended that they were totally dependent on the income of the deceased and he was the sole bread earner of the family. On these set of contentions, the claimants filed the claim petition claiming compensation of Rs.50,00,000/-.

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On receipt of notice by the Tribunal,

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respondent No.2-Insurance Company contested the proceedings by filing written statement. The Insurance Company has stoutly denied the entire averments made in the claim petition. In para No.8 of the written statement, the Insurance Company contended that

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the claimants have filed the claim petition in collusion

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with the owner of the offending vehicle and also with the assistance of the police. The Insurance Company has also disputed the exorbitant claim made by the claimants in the claim petition. It is also contended in the written statement that the deceased himself was negligent and was responsible for the accident and hence, on these set of defence, the Insurance Company sought for dismissal of the claim petition.

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Based on the pleadings, the Tribunal

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formulated the following issues:

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¢£ÁAPÀ 11-05-2014 gÀAzÀÄ gÁwæ 6-45 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è ªÀÄAUÀ¼ÀÆgÀÄ - ¨ÉAUÀ¼ÀÆgÀÄ gÁ¶ÖçÃAiÀÄ ºÉzÁÝjAiÀÄ ZÁPÉÃ£ÀºÀ½î UÉÃmï §½ J£ïºÉZï-75gÀ mÁgÀÄ gÀ¸ÉÛAiÀÄ°è 1£ÉÃ CfðzÁgÀ¼À UÀAqÀ ²ªÀtÚ gÀªÀgÀÄ PÉJ-03-EJ£ï-4871gÀ n«J¸ï ¨ÉÊPï£À°è gÀ¸ÉÛAiÀÄ£ÀÄß zÁn ZÁPÉÃ£ÀºÀ½î UÁæªÀÄzÀ PÀqÉUÉ ºÉÆÃUÀÄwÛgÀÄªÁUÀ, PÉJ-04-JAPÀÆå-123gÀ PÁj£À ZÁ®PÀ£À ¤®ðPÀëvÀ£À ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvÉAiÀÄ ZÁ®£É¬ÄAzÀ dgÀÄVzÀ ªÁºÀ£À C¥ÀWÁvÀzÀ°è UÁAiÀÄUÉÆAqÀÄ ªÀÄÈvÀ¥ÀlÖ£ÉAzÀÄ ªÀÄvÀÄÛ vÁªÀÅ CªÀgÀ ªÁgÀ¸ÀÄzÁgÀgÀÄ ºÁUÀÆ CªÀ®A©üvÀgÉAzÀÄ CfðzÁgÀgÀÄ ¸ÀÄ¸ÁÜ¦¸ÀÄvÁÛgÉAiÉÄÃ?

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C¥ÀWÁvÀªÁzÀ ¢£ÁAPÀPÉÌ C¥ÀWÁvÀ ¥Àr¹zÀ ªÁºÀ£ÀzÀ ZÁ®PÀ¤UÉ ¸ÀÆPÀÛªÁzÀ ZÁ®£Á ¥ÀgÀªÁ¤UÉ ZÁ°ÛAiÀÄ°®è CAvÀ JzÀÄgÀÄzÁgÀ£ÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛ£ÉAiÉÄ?

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ºÁUÁzÀgÉ, AiÀiÁjAzÀ, JµÀÄÖ ¥ÀjºÁgÀªÀ£ÀÄß CfðzÁgÀ£ÀÄ ¥ÀqÉAiÀÄ®Ä CºÀð£ÀÄ?

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AiÀiÁªÀ DzÉÃ±À ªÀÄvÀÄÛ LwÃ¥ÀÄð?

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The claimants in support of their contention

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have examined the widow of the deceased as P.W.1 and in corroboration of ocular evidence, they have relied on documentary evidence vide Exs.P1 to 19. Claimants have sought for witness summons to the Hosmat Hospital Authorities, Bengaluru and accordingly, Hospital Authorities have produced the documents, which are marked as per Exs.C.1 and 2. Respondent No.2, in support of their contention, examined one witness as R.W.1 and relied on two documentary evidence vide Exs.R.1 and 2.

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The Tribunal having assessed the oral and

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documentary evidence has answered Issue No.1 in the affirmative and Issue No.2 in the negative. The Tribunal while quantifying the compensation, has assessed the income of the deceased at Rs.6,000/per month and by deducting 1/4^th and applying multiplier of 9 has awarded a sum of Rs.4,86,000/under the head "loss of dependency" and under conventional heads, the Tribunal has awarded a sum of Rs.90,000/-. The Tribunal in all awarded a sum of Rs.9,66,000/- with interest at the rate of 9% p.a. from the date of petition till realization. Being aggrieved by the same, the Insurance Company as well as claimants have preferred these appeals.

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Learned counsel appearing for the Insurance

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Company - respondent No.2 would vehemently argue and contend before this Court that the evidence on record clearly establishes that the deceased himself

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was rash and negligent and was responsible for the accident. He would submit to this Court that the records available on record would clearly indicate that the deceased had overtaken the lorry, which was plying towards Bengaluru and thereafter, lost control and dashed against the car. This material aspect is not at all not taken into consideration by the Tribunal while examining the Issue No.1. On quantum, learned counsel appearing for the Insurance Company would vehemently argue and contend before this Court that the claimants have not produced any iota of evidence and in absence of income proof, the Tribunal was not justified in notionally assessing the income of the deceased at Rs.6,000/-. He would also submit to this Court that the Tribunal erred in deducting 1/4^th without taking into consideration that there are major sons and married daughter. On these set of grounds, learned counsel appearing for the Insurance Company

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would submit to this Court that finding recorded by the Tribunal on the negligence and quantum is erroneous and contrary to clinching evidence on record. On these set of grounds, he would request this Court to reassess compensation.

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In contra, learned counsel appearing for the claimants repelling the contentions raised by the Insurance Company would submit to this Court that the findings recorded by the Tribunal on Issue No.1 is in accordance with law and would not warrant any interference by this Court. He would submit to this Court that the Tribunal ought to have assessed the income of the deceased at Rs.30,000/- per month as claimed in the petition. He would further submit to this Court that the Tribunal erred in taking the age of the deceased as 60 years and the same is contrary to Exs.P.4 and 17, which would clearly establish that the deceased was aged 55 years.

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Heard learned counsel for the Insurance

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Company and the claimants. Perused the pleadings and we have meticulously perused the entire evidence on record.

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11. Regarding negligence:

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The claimants to substantiate their contention that the death of the husband of claimant No.1 occurred on account of rash and negligent driving by the driver of the offending car have relied on first information report as per Ex.P.1, complaint as per Ex.P.2, spot mahazar as per Ex.P.9 and charge sheet

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as per Ex.P.11. Relying on these documents, the widow of the deceased herself has got examined as P.W.1 and Respondent No.2-Insurance Company has examined its Development Officer as R.W.1. R.W.1 is not an eye witness to the accident and his evidence would not come to the aid of the Insurance Company

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to disprove the clinching evidence adduced by the claimants. The Police Records relied on by the claimants clearly establish that the death of the husband of claimant No.1 has occurred on account of the rash and negligent driving by the driver of the offending car. The Tribunal has meticulously examined the records and has come to the conclusion that the driver of the offending car was responsible for the accident. The finding arrived at by the Tribunal while examining Issue No.1 is in accordance with law and the same does not suffer from any illegality or infirmity. In that view of the matter, in absence of rebuttal evidence, we are of the view that the findings recorded by the Tribunal does not warrant any interference by this Court. Accordingly, the contentions raised by the Insurance Company in regard to negligence is negatived.

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12. Regarding quantum:

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The Tribunal in absence of income proof has

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proceeded to assess the income of the deceased at Rs.6,000/- and has proceeded to award compensation under the head "loss of dependency". Though we cannot find fault with the Tribunal in assessing the income of the deceased notionally, however, we are of the view that the income assessed by the Tribunal notionally appears to be on the lower side. In absence of income proof, we would rely on the chart issued by the Legal Services Authority and assess notional income of the deceased at Rs.8,500/- per month having regard to the date of the accident. The Tribunal was justified in considering the age of the deceased as 60 years and the said finding does not suffer from any infirmity. Hence, by adding 10% towards future prospects, which works out to (8500x10/100) = 850/-, the income of the deceased

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is reassessed at Rs.8500+850 = Rs.9350/-. By deducting 1/4^th and applying multiplier of 9, the compensation payable under the head "loss of dependency" works out to Rs.9,350x12x9x3/4 = Rs.7,57,350/- and under conventional heads, it is only claimant No.1 who being the wife of the deceased is entitled for spousal consortium and accordingly, a sum of Rs.40,000/- is awarded to claimant No.1 towards spousal consortium and a sum of Rs.30,000/- is awarded under the head "loss of estate and funeral expenses".

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The Tribunal has awarded a sum of Rs.4,00,000/- under the head of medical expenses. We have re-examined the medical bills produced by the claimants as per Ex.P.12, the total medical bills produced by the claimants indicate that the claimants have spent a sum of Rs.5,10,530/-. No reasons are forthcoming as to why the Tribunal has discarded

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some of the medical bills. The medical bills produced as per Ex.P.12 are to be accepted and accordingly, we hold that the claimants are entitled for a sum of Rs.5,10,530/- towards medical treatment. Thus, the compensation re-determined by this Court comes to Rs.13,37,880/- as against Rs.9,66,000/-.

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However, on perusal of the judgment and award under challenge, we find that the Tribunal has awarded interest at the rate of 9% per annum, which appears to be on the higher side. This Court has been consistently awarding interest at the rate of 6% per annum. In that view of the matter, we deem it fit to allow the appeal filed by the Insurance Company only to that extent and the interest awarded at the rate of 9% stands modified and the Insurance Company is directed to pay compensation at the rate of 6% per annum from the date of claim petition till its realization.

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Hence, the following:

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ORDER

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i) The appeal in MFA No.4952/2016 is allowed in part.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.13,37,880/- as against Rs.9,66,000/with interest at the rate of 6% per annum on the total compensation amount re-determined from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The Insurance Company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of

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receipt of the certified copy of the

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judgment and order.

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v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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vi) MFA CROB No.59/2017 is allowed as indicated above.

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vii) Draw modified award accordingly.

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viii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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NBM

The Claim Manager v. Yashodamma

Case brief

What is this about?

What did the court decide?

The Claim Manager v. Yashodamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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