Partly allowed

Smt. Girija Bhaskar v. the Managing Director

Karnataka HC15 Nov 2022MFA/360/2014

Case brief

AI extract

What is this about?

This Bench modified the compensation awards in two motor vehicle accident cases filed by injured riders. One award was enhanced due to higher notional income and disability assessment, while the other was reduced as the appellate court found the original compensation excessive.

What did the court decide?

Compensation awarded is modified in one case to Rs.8,12,108 (enhanced from Rs.6,06,500) and reduced in another from Rs.4,00,500 to Rs.2,92,500. Insurance Company directed to pay.

Smt. Girija Bhaskar Vs the Managing Director — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.360/2014 (MV-I) C/W. M.F.A.NO.940/2014 (MV) M.F.A.NO.941/2014 (MV)

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IN M.F.A.NO.360/2014:

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BETWEEN:

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SMT. GIRIJA BHASKAR W/O. J. BHASKAR, NOW AGED ABOUT 53 YEARS, R/AT NO.983, 4^TH CROSS, 3^RD MAIN, T.C.PALYA MAIN ROAD, HOYSALANAGAR, R.M.NAGAR, HORAMAVU, BENGALURU-560 016. ... APPELLANT

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(BY SRI MANMOHAN D., ADVOCATE)

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AND:

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THE MANAGING DIRECTOR B.M.T.C., K.H. ROAD, SHANTHINAGAR, BENGALURU-560 027 ... RESPONDENT

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(BY SRI F.S.DABALI, ADVOCATE)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.09.2013

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PASSED IN MVC NO.4886/2012 ON THE FILE OF THE 9^TH ADDITIONAL SMALL CAUSES JUDGE, 34^TH ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.940/2014:

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BETWEEN:

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THE MANAGING DIRECTOR B.M.T.C., K.H. ROAD, SHANTHINAGAR, BENGALURU-560 027 REPRESENTED BY ITS CHIEF LAW OFFICER ... APPELLANT

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(BY SRI F.S.DABALI, ADVOCATE)

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AND:

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KUM. SINDHU D/O. RENGARAJ @ RANGARAJAN AGED ABOUT 25 YEARS, R/AT NO.3/288, 9^TH CROSS, II MAIN ROAD, KRISHNANAGAR THIRUPPALLAI POST MADURAI-625 014 TAMILNADU

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... RESPONDENT

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(BY SRI MANMOHAN D., ADVOCATE)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.09.2013 PASSED IN MVC NO.4887/2012 ON THE FILE OF IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, AWARDING COMPENSATION OF RS.4,00,500/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL PAYMENT.

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IN M.F.A.NO.941/2014:

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BETWEEN:

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THE MANAGING DIRECTOR B.M.T.C., K.H. ROAD, SHANTHINAGAR, BENGALURU-560 027 REPRESENTED BY ITS CHIEF LAW OFFICER ... APPELLANT

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(BY SRI F.S.DABALI, ADVOCATE)

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AND:

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SMT. GIRIJA BHASKAR W/O. J. BHASKAR, AGED ABOUT 54 YEARS, R/AT NO.983, 4^TH CROSS, 3^RD MAIN, T.C. PALYA MAIN ROAD, HOYSALANAGAR, R.M.NAGAR, HORAMAVU, BENGALURU-560 016.

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... RESPONDENT

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(BY SRI MANMOHAN D., ADVOCATE)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.09.2013 PASSED IN MVC NO.4886/2012 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE, & XXXIV ACMM, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF Rs.6,06,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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These appeals are filed by the B.M.T.C. as well as the claimants challenging the judgment and award dated 24.09.2013 passed in M.V.C.Nos.4886/2012 and 4887/2012 on the file of the IX Additional Small Causes and Additional MACT, Bengaluru (‘the Tribunal’ for short) questioning the quantum of compensation.

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of the claimants before the Tribunal is that on 15.06.2012, they were proceeding in the two wheeler as rider and pillion rider. At that time, BMTC bus came and dashed against them. As a result, both of them sustained injuries and immediately, the injured were shifted to Hosmat Hospital.

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It is the contention of the claimant in MVC No.4886/2012 that the claimant Girija Bhaskar contended that she had sustained zygomatic maxillary complex fracture, head

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injury with major haematoma scalp, fracture of 4^th rib of right side and other injuries and she also underwent for surgery and discharged on 27.06.2012 and the accident was occurred on 15.06.2012 and again she was readmitted on 09.07.2012 and discharged on 17.07.2012 and spent more than Rs.6,00,000/towards medical treatment and also it is the claim of the claimant that she was a tailor by profession and earning Rs.10,000/- per month and in order to substantiate the same, she has produced the documents at Ex.P1 to P14. In support of her claim, she examined the doctor as PW4 who is the Consultant, Neuro and Spine Surgeon, Hosmat hospital and he assessed the disability of 30% and the same has been accepted by the Tribunal and awarded the compensation of Rs.6,06,500/-.

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The other claimant in MVC No.4887/2012 contended

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that she being the engineer graduate and also persuaded the masters’ and it is her claim that she had sustained the lacerated wound over right parieto occipital region, superficial abrasion over right leg on lateral side 20 x 10 complaint, 3 x 3 complaint necrotic area over lateral malleolus with tenderness and oedema

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over right ankle. It is also her claim that she was an inpatient from 15.06.2012 to 23.06.2012 and she was operated on 21.06.2012. The claimant also examined the doctor as PW3 who has assessed the disability of 14.5% and the Tribunal has taken the disability of 10% and the doctor has opined that she has suffered from difficulty in movement of right lower limb, she has suffered loss of muscle strength and loss of sensation and out patient record also produced at Ex.P21 and P22 and she was an inpatient for a period of 9 days. The Tribunal after considering both the oral and documentary evidence, taken the income of Rs.10,000/- per month and assessed the disability of 10% and awarded the compensation of Rs.4,00,500/-. Hence, the present appeals are filed by the claimants as well as the Insurance Company.

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The claimant in MVC No.4886/2012 filed an appeal contending that the Tribunal has committed an error in awarding paltry compensation towards ‘loss of future income due to suffering permanent disability’ taking income of Rs.4,000/- per month and also committed an error in taking 30% disability to

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the whole body even though she has lost the right vision and Schedule -I of the Employees Compensation Act, it has fixed 40% for loss of one eye without complications and not considered the disability with regard to the head injury which the claimant had sustained and the compensation awarded is very meager in all heads. Hence, it requires interference.

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The learned counsel appearing for Insurance Company in both the appeals contended that the Tribunal has committed an error in awarding the exorbitant compensation and in MVC No.4886/2012 it is contended that the Tribunal has committed an error in taking the disability of 30% and ought to have considered the contributory negligence on the part of the rider of the motorcycle who was riding the Scooty. The Tribunal ought to have considered Ex.P6-IMV report and damages caused to both the vehicles and the material clearly discloses that the bus was moving in the right direction and the claimant tried to overtake the bus from the left side and the Scooty came in contact with rear left side body of the bus and this material has not been considered the Tribunal. The counsel also vehemently

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contend that the Tribunal has committed an error in considering the evidence of PW4 and except of marking of document at Ex.P23 and P25, not examined the author of the document and only considered the evidence of PW4 who is not competent to assess the disability to the eye and taken the disability of 30% and the same is erroneous hence, it requires interference.

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In MFA No.940/2014, it is contended that the

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Tribunal has committed an error in taking the disability of 10% and no fractures and inspite of no fractures, assessed the disability of 14.5% in respect of right lower limb and the Tribunal Considered the disability of 10% taken the income of Rs.10,000/-. The claimant was not an employee as on the date of the accident and the disability assessed by the doctor is 14.5% and the Tribunal ought to have taken 1/3^rd instead of 10% and the compensation awarded on the other heads also on the higher side. Hence, it requires interference.

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record it discloses that in MVC No.4886/2012, the injured was shifted to

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Hosmat hospital immediately after the accident and the wound certificate also discloses that she had suffered zygomatic maxillary complex fracture, head injury with major haematoma scalp, fracture of 4^th rib of right side and she was also subjected to surgery and also readmitted to the hospital and conducted one more surgery. In support of her claim, she has been examined the doctor as PW4 who is consultant and Neuro and Spine Surgeon at Hosmat hospital and he has assessed the disability of 30% to the whole body and in the cross-examination he categorically admitted that while assessing the disability of 30% he has not bifurcated the same regarding head injury as well as the disability to the loss of vision of right eye. Admittedly, the Ophthalmologist has not been examined before the Tribunal and mainly the claimant relied upon the document at Ex.P23 report given by Bangalore Eye Hospital and said the document was issued in the moth of April 2013 and the accident was occurred in the year 2012 i.e., 15.06.2012 and on perusal of the case sheet of Hosmat hospital, it shows that there was an injury to the eye and photographs also produced before the Court and injured was not in a position to open her right eye

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when she was examined and photographs are marked as Ex.P13, wherein also it shows that an observation was made that she was unable to open her right eye and she was treated in the hospital as an inpatient but no material is placed with regard to surgery or any treatment given to the right eye injury and she was treated in the hospital conservatively in respect of eye injury is concerned since she has suffered right forehead injury and there was a cut lacerated wound and subsequently went to the Bangalore Eye hospital and report was given in terms of Ex.P23 and in terms of Ex.P23, there was a loss of right vision and Ex.P25 is the document of out patient case sheet and Tribunal while considering the material on record taken note of head injury as well as the evidence of the doctor-PW4 and on perusal of wound certificate it is very clear that she had suffered zygomatic maxillary complex fracture, head injury with major haematoma scalp, fracture of 4^th rib of right side and underwent for operation of wound deprivation in the second admission and in the first admission also surgery was conducted and she was an inpatient for a period of 13 days. In second admission, she

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was an impatient for 9 days and in all, she was an inpatient for a period of 22 days.

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The main contention of the counsel appearing for BMTC that the assessment of disability of 30% is on higher side and there was no document to establish that she lost right eye vision and the expert has not been examined and no doubt, in the cross-examination of PW4 with regard to the eye injury is concerned, he has been cross-examined in length and suggested that he is not competent to assess the disability in respect of eye vision but the document at Ex.P23 which is the report given by the Bangalore Eye hospital discloses the same and also there is an admission with regard to the disability which is not separately bifurcated and in the case sheet also it is mentioned that there was a cut lacerated wound over the eye. When such being the material on record, the Tribunal cannot ignore the evidence of PW4 who is though not the Ophthalmologist but he is a Consultant, Neuro and Spine surgeon and the report was taken from the concerned hospital and though it is not separated and in a case of loss of permanent vision for one eye it would be

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30% of disability. But in a case on hand it is not only the evidence of doctor with regard to the loss of right vision but also she has suffered the head injury and in total 30% disability is assessed hence, the same is not exorbitant as contended by the counsel appearing for BMTC.

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The very contention of the counsel appearing for the claimant that the Tribunal ought to have taken 40% of disability in respect of loss of one eye vision cannot be accepted and there is a force in the contention of counsel appearing for BMTC that the author of the document at Ex.P23 has not been examined. Under the circumstances, considering total disability both in respect of eye vision and head injury, is not on higher side as contended by the counsel for the BMTC and also not on the lower side as contended by the claimant counsel.

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Now coming to the aspect of quantum of compensation is concerned, the appellant in MFA No.360/2014 was an inpatient totally for a period of 22 days i.e., at the first instance, she was in impatient 13 days and underwent for surgery and in the second admission, she was in impatient for 9

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days and also underwent for wound debridement and also removal of implant. Having considered the nature of injuries, the Tribunal has rightly awarded the compensation of Rs.60,000/- on the head of pain and sufferings and it does not requires any interference.

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The Tribunal has committed an error in taking income of Rs.4,000/- since the accident of the year 2012 and the notional income would be Rs.7,000/- and it is the claim of the claimant that she is a tailor and earning Rs.12,000/- but no material has been placed before the Tribunal. Under such circumstances, the Tribunal has to take the notional income and she is aged about 52 years and the relevant multiplier would be 11. In view of the judgment of the Apex Court in the case of ERUDHAYA PRIAYA vs STATE EXPRESS TRANSPORT CORPORATION LIMITED reported in 2020 SCC ONLINE 601,

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the Apex Court has considered the future prospects. Hence, in the case on hand, if 10% added to the income of Rs.7,000/-, it comes to Rs.7,700/- (7,000 + 700) and having considered the

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income of Rs.7,700/-, the future loss of income comes to Rs.3,04,920/- (7,700 x 12 x 11 x 30%).

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The Tribunal also awarded the compensation of Rs.3,50,000/- towards medical expenses and the medical bills at Ex.P12 total 57 in numbers which comes to Rs.3,59,188/- and the Tribunal rounded of p the same to Rs.3,50,000/- when the bills are produced to the tune of Rs.3,59,188/- and when the Tribunal has not pointed out that any bills are doubtful bills or duplication of bills, ought not to have reduced the same to Rs.3,50,000/- and ought to have awarded entire medical expenses of Rs.3,59,188/-.

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The Tribunal has award the compensation of Rs.20,000/- in total for attendant charges, conveyance, food, nourishment, diet, etc., and she was an inpatient for a period of 22 days and hence, I do not find any error committed by the Tribunal in awarding the same hence, it does not require any interference.

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However, the Tribunal has committed an error in awarding only an amount of Rs.10,000/- towards loss of amenities is very meager when the claimant has suffered disability of 30% and aged about 52 years and the same is enhanced to Rs.40,000/- against Rs.10,000/-.

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The Tribunal has awarded an amount of Rs.8,000/on the head of loss of earning during laid up period taking the income of Rs.4,000/- per month and the same is also erroneous when the claimant had suffered the head injury as well as the loss of right eye vision, it requires minimum 4 months to reunite the fracture as well as rest and taking income of Rs.7,000/-, it comes to Rs.28,000/- (7,000 x 4) as against Rs.8,000/- and in all, the claimant is entitled for Rs.8,12,108/- as against Rs.6,06,500/-.

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In MVC No.4887/2012, the injured who has been examined as PW2 has stated that she had suffered head injury as well as injury to her leg and she also underwent for an operation and she was an inpatient from 15.06.2012 to 23.06.2012 and in support of her claim, she has also examined

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the doctor as PW3 and the doctor has assessed the disability of 14.5% to the particular limb and the Tribunal has taken the disability of 10% and no doubt, the claimant is also an Engineering Graduate and persuaded MBA and the Provisional Certificate which shows that the claimant has completed her MBA decree in the month of June 2012 in First Class and having taken note of the injuries to the leg, the Tribunal has committed an error in taking the disability of 10% when physical disability of 14.5% is assessed to the particular limb, the Tribunal ought to have taken 1/3^rd and there are no fractures and only the grievous injuries to her right leg. When such being the material on record, it is appropriate to take 5% of disability and having taken note of the income taken by the Tribunal is Rs.10,000/- is not on the higher side as contended by the counsel appearing for BMTC.

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The Tribunal has awarded the compensation of Rs.50,000/- on the head of ‘pain and sufferings’ and the same is just and reasonable.

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The Tribunal has awarded an amount of Rs.94,000/towards medical expenses and the same is also based on the documentary evidence and hence, it does not require interference.

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The loss of income during the treatment considered for a period of two months and the same is also reasonable having taken note of the nature of the injuries.

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The Tribunal has awarded an amount of Rs.10,000/towards loss of amenities and in all Rs.10,000/- towards attendant charges, conveyance, food and nourishment, diet and etc and the same are just and reasonable since she was an inpatient for a period of 9 days hence, it does not require any interference in respect of other heads. Hence, the compensation is reduced to Rs.2,92,500/- as against Rs.4,00,500/-.

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In view of the discussions made above, this Court pass the following:

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ORDER

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(i) MFA No.360/2014 arising out of MVC No.4886/2012 is allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 24.09.2013 passed in M.V.C.No.4886/2012 is modified granting compensation of Rs.8,12,108/- as against Rs.6,06,500/- with interest at 6% per annum from the date of petition till deposit.

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(iii) MFA No.940/2014 arising out of MVC No.4887/2012 by the Insurance Company is partly allowed reducing the compensation from Rs.4,00,500/- to Rs.2,92,500/- with interest at 6% per annum from the date of petition till deposit.

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(iv) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(v) MFA No.941/2014 arising out of MVC No.4886/2012 by the Insurance Company is dismissed.

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(vi) The amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith.

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(vii) In case of excess amount deposited by the appellant in MFA No . 940/2014, the same is

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ordered to be refunded in respect of BMTC on proper identification.

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(viii) The Registry is directed to send the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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ST/SN

Smt. Girija Bhaskar v. the Managing Director

Case brief

What is this about?

What did the court decide?

Smt. Girija Bhaskar v. the Managing Director

Case brief

What is this about?

What did the court decide?

What the court decided

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