Partly allowed

The Oriental Insurance Co., Ltd., v. Savitri W/O Venktesh Ramadurga

Karnataka HC17 Nov 2023MFA/101120/2016

Case brief

AI extract

What is this about?

This court enhanced compensation from Rs.8.01 lakh to Rs.14.50 lakh in a fatal motorcycle accident case, rejecting the insurer's defense that the passenger traveled illegally in a goods vehicle, and adding statutory percentages for loss of prospects and consortium.

What did the court decide?

Compensation enhanced to Rs.14,50,000 with 6% interest; insurer to deposit the enhanced amount within six weeks;

The Oriental Insurance Co., Ltd., Vs Savitri W/O… — Motor Accident Claims | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 17^th DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL

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MISCELLANEOUS FIRST APPEAL NO. 101120 OF 2016 (MVC) C/W MISCELLANEOUS FIRST APPEAL NO. 103867 OF 2016 (MVC)

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IN MFA NO. 101120/2016:

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BETWEEN:

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THE ORIENTAL INSURANCE COMPANY LTD., BY ITS DIVISIONAL OFFICE, ENKAY COMPLEX, KESHWAPUR, HUBBALLI, NOW R/BY ITS DEPUTY MANAGER, REGIONAL OFFICE, HUBBALLI.

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... APPELLANT

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(BY SRI. RAJASHEKHAR S. ARANI, ADVOCATE)

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AND :

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SMT. SAVITRI W/O VENKTESH RAMADURGA, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O. GURUNATH NAGAR, ARIVIND NAGAR ROAD, HUBBALLI.

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KUMAR GANESH S/O VENKTESH RAMADURGA, AGE. 12 YEARS, OCC: STUDENT.

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KUMAR ABHISHEKH S/O VENKTESH RAMADURGA, AGE. 04 YEARS OCC: STUDENT.

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APPELLANTS NO.2 & 3 ARE MINORS R/BY THEIR NATURAL MOTHER MINOR GUARDIAN APPELLANT NO.1.

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SMT. VIJAYALAXMI W/O RAMACHANDRA RAMADURGA, AGE. 76 YEARS, OCC: HOUSEHOLD WORK, R/O. GURUNATH NAGAR, ANAND NAGAR ROAD, HUBBALLI.

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MOHAMMADALI S/O KHULAHISAB , AGE: MAJOR, OCC: OWNER OF LORRY NO.KA 40/1629, R/O. VEG. MARKET ROAD, HIRIYUR, TQ. HIRIYUR, DIST. CHITRADURGA.

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RELIANCE GENERAL INSURANCE CO. LTD. V A KALBURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBBLLI.

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DIVINE MARKETING ASSOCIATES, NO.504 BULLA COMPOUND, LAMINGTON ROAD, HUBBALLI.

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BASANAGOUDA S/O HANUMANTHGOUDA SANNAGOUDAR, AGE: 59 YEARS OCC: AGRICLUTURE, R/O. ANCHATAGERI, TQ: HUBBALLI.

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SMT. SAVAKKA @ VIJAYALAXMI W/O BASANAGOUDA SANNAGOUDA, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O. ANCHATGERI, TQ: HUBBALLI.

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NATIONAL INSURANCE CO. LTD. BY ITS DIVISIONAL OFFICE, ARIHANT PLAZA, KUSUGAL ROAD, KESHWAPUR, HUBBALLI.

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… RESPONDENTS

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(BY SRI. SIDDAPPA S. SAJJAN, ADVOCATE FOR R1 & R4; R2 & R3 ARE MINORS R/BY R1; R5 SERVED; SRI. SURESH S. GUNDI, ADVOCATE FOR R6; SRI. SHIVAKUMAR R. AMBLI, ADVOCATE FOR R7; SRI. C.S. NAGASHETTI, ADVOCATE FOR R8 & R9; SRI. GANGADHAR S. HOSAKERI, ADVOCATE FOR R10)

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THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 26.02.2016 PASSED IN MVC NO.433/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, AWARDING THE COMPENSATION OF RS.8,01,000/- WITH INTEREST AT THE RATE OF 6% P.A., FORM THE DATE OF PETITION TILL ITS REALISATION.

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IN MFA NO. 103867/2016:

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BETWEEN:

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SMT. SAVITRI W/O VENKATESH RAMADURGA, AGED ABOUT 35 YEARS, OCC: HOUSEHOLD WORK,

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KUMAR GANESH S/O VENKATESH RAMADURGA, AGED ABOUT 12 YEARS, OCC: STUDENT,

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KUMAR. ABHISHEKH S/O VENKATESH RAMADURGA, AGED ABOUT 04 YEARS, OCC: STUDENT, APPELLANTS NO.2 AND 3 ARE SINCE MINORS, R/BY HIS M/G APPELLANT NO.1.

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SMT. VIJAYALAXMI W/O VENKATESH RAMADURGA, AGED ABOUT 76 YEARS, OCC: HOUSEHOLD WORK,

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ALL ARE R/O. GURUNATH NAGAR, ANANDA NAGAR ROAD, HUBBALLI, DIST. DHARWAD-580029.

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... APPELLANTS

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(BY SRI. SIDDAPPA S. SAJJAN, ADVOCATE)

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AND :

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MR.MOHAMMADALI S/O KULAHISAB, AGED ABOUT 48 YEARS, OCC: OWNER OF LORRY NO.KA 40/1629, R/O: VEG MARKET ROAD, HIRIYUR-572143, TQ. HIRIYUR, DIST: CHITRADURGA.

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RELIANCE GENERAL INSURANCE CO. LTD., V.A. KALBURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI-580029.

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DIVINE MARKETING ASSOCIATES, NO.504, BULLA COMPOUND, LAMINGTON ROAD, HUBBALLI, HUBBALLI-580029.

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THE ORIENTAL INSURANCE CO. LTD., BY ITS DIVISIONAL OFFICE, ENKAY COMPLEX, KESHWAPUR, HUBBALLI-580029.

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SRI. BASANAGOUDA S/O HANAMANTAGOUDA SANNAGOUDRA, AGED ABOUT 58 YEARS, OCC: AGRICULTURE, R/O: ANCHATAGERI, TQ. HUBBALLI.

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SMT. SAVAKKA @ VIJAYALAXMI W/O BASANAGOUDA SANNAGOUDRA, AGED ABOUT 54 YEARS, OCC: HOUSEHOLDL WORK, R/O: ANCHATAGERI, TQ. HUBBALLI, DIST. DHARWAD-580029.

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NATIONAL INSURANCE CO. LTD., BY ITS DIVISIONAL OFFICE, ARIHANT PLAZA, KUSUGAL ROAD, KESHWAPUR, HUBBALLI-580029. … RESPONDENTS

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(BY SRI. U.G. KATTIMANI, ADVOCATE FOR R1; SRI. SURESH S. GUNDI, ADVOCATE FOR R2; R3 SERVED; SRI. RAJASHEKHAR S. ARANI, ADVOCATE FOR R4; SRI. C.S. NAGASHETTI, ADVOCATE FOR R5 & R6; SRI. GANGADHAR S. HOSAKERI, ADVOCATE FOR R7) THIS MFA IS FILED U/O.41 RULE 22 OF CPC, AGAINST THE

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JUDGMENT AND AWARD DATED 26.02.2016 PASSED IN MVC

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NO.433/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, PARTYLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS HAVING BEEN HEARD, RESERVED ON 08.11.2023 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, VIJAYKUMAR A. PATIL, J. , PRONOUNCED THE FOLLOWING:

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JUDGMENT

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MFA No.103867/2016 is filed by the appellantsclaimants, who are the legal representatives of deceased Venkatesh, seeking for enhancement of compensation. MFA No.101120/2016 is filed by the appellant-Insurance Company challenging the liability as well as the quantum of compensation awarded in the Judgment and award dated 26.02.2015 in MVC No.433/2015 by the I Additional Senior Civil Judge and Addl. MACT, Hubli, (hereinafter referred to as ‘the Tribunal’).

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Brief facts giving rise to filing of these appeals

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are that the legal heirs of the deceased Venkatesh have filed a claim petition seeking compensation before the Tribunal contending that, on 05.05.2015 the deceased

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Venkatesh was travelling in Tata 407 vehicle bearing No.KA-25/C-7809 from Hubli to Udupi. The driver of the said vehicle was driving the same in rash and negligent manner without observing traffic rules and lost control over the vehicle and dashed to the rear part of one stationed lorry which was parked, resultantly, Venkatesh suffered grievous injures and died on the spot. It is averred that, the deceased Venkatesh was hale and healthy prior to the accident and was working as Technician (Electronic and Communication) and earning Rs.11,500/- per month and Rs.10,000/- from private concern and contributing to his family. It is further averred that, the deceased Venkatesh was the only bread earner and due to the sudden death, the claimants have suffered financially and mentally as they are dependent on the deceased.

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The respondent No.1 was placed ex-parte. The respondent No.2 has filed objections denying the averments made in the claim petition and further

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contended that the accident is question occurred due to the rash and negligent driving of the vehicle bearing No.KA-25/C-7809 and the rider of the motorcycle bearing No.KA-25/TA-3548. There is no contributory negligence on the part of the driver of the stationed lorry as the lorry was parked on the extreme left side of the road with the parking lights and after completion of the investigation, the police have not filed any charge-sheet against the driver of the stationed lorry. The respondent Nos.3 and 4 have filed objections denying the age, earning, occupation of the deceased. The respondent No.3 has contended that, his vehicle was covered with a valid Insurance policy of the respondent No.4. Respondent No.4 inter-alia contended that, accident was not caused due to rash and negligent driving of the driver of the TATA 407 but the accident was caused, due to the parking of the lorry by its driver without any indication, which has resulted in the accident in question and the Insurance company which has indemnified the stationed lorry is liable to pay

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compensation. Respondent No.7 denied the averments of the claim petition and contended that, the driver of the vehicle bearing No.KA-25/TR 3548 was not having a valid driving licence, hence, he has violated the terms of the policy. Hence, Insurance company is not liable to pay the compensation.

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The tribunal has framed the issues and recorded the evidence of the parties. The appellants/claimants have examined as P.W.1 and another witness as P.W.2 and got marked Ex.P.1 to Ex.P.6. Respondent has examined R.W.1 and R.W.2 and got marked Ex.R.1 to Ex.R.4. The tribunal has awarded total compensation of Rs.8,01,000/- with interest at the rate of 6% per annum and held that the respondent No.4 is liable to pay the said compensation.

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Sri. Siddappa S. Sajjan, learned counsel

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appearing for the appellant/claimants submits that, the deceased was aged about 45 years at the time of accident and was the holder of Diploma, working as Technician in

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the Private company and was drawing salary of

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Rs.11,500/- per month, however, the tribunal has incorrectly assessed the income of the deceased at Rs.6,000/- per month. It is submitted that, the tribunal has failed to add 25% of the assessed income under the head of loss of future prospects and failed to award consortium to each of the appellants and award of compensation on other heads is on the lower side. It is submitted that, the tribunal has rightly fastened the entire liability on the appellant-Insurance company, it has assigned detailed reasons in the impugned Judgment and award which does not call for any interference in the appeal filed by the Insurance company. He seeks to allow the appeal filed by the claimants by enhancing the compensation by dismissing the appeal filed by the Insurance Company.

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6. Per contra, Sri. Rajashekhar S. Arani, learned

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counsel appearing for the appellant-Insurance company submits that, the tribunal has committed grave error in

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fastening the liability on the Insurance company as the deceased Venkatesh was traveling in the goods vehicle as a passenger which is prohibited under Section 147 of the Motor Vehicle Act, 1988. Hence, fastening of the liability on the Insurance Company is contrary to the settled principle of law. It is submitted that, the tribunal has incorrectly understood the policy issued in favour of the offending vehicle. Admittedly, the deceased was the passenger as he was not carrying any goods nor was an employee of the owner of the offending vehicle. It is submitted that, the evidence on record clearly indicates that, the deceased was the passenger in the Goods vehicle. Hence, the Insurance Company is not liable to pay any compensation as ordered by the tribunal. It is further submitted that, the tribunal taking note of the evidence on record, has awarded just and proper compensation, which does not call for any interference in the appeal filed by the claimant.

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Having heard the learned counsel for the appellants/claimants, learned counsel for the

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appellants/Insurance company, perused the memorandum

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of appeals and tribunal records, the point that arises for consideration in these appeals are;

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(a) Whether the tribunal has justified in fastening the liability on the insurance company ?

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(b) Whether the appellants/claimants are entitled for the enhanced compensation?

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The answer to the above points are in affirmative for the following reason:

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(a) It is not in dispute that, the deceased

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Venkatesh was travelling in TATA 407 vehicle bearing No.KA-25/C-7809 from Hubli to Udupi and it is also not in dispute that, the said vehicle met with an accident on 05.05.2015 resulting in the death of Sri.Venkatesh in the said accident. It is not in dispute that, the appellant/claimants are the legal heirs of the deceased Venkatesh. The appellant-Insurance company has

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contended that, the deceased was traveling as an unauthorized passenger in a goods vehicle, which amounts

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to violation of the terms of the policy. Hence, the Insurance company is not liable to pay the compensation. On close scrutiny of oral testimony of P.W.1, it is evident that, the deceased Venkatesh was travelling from Hubli to Udupi on a specific work to repair the refrigerator. In cross-examination of P.W.1 she has categorically stated that, the deceased was working in a private company and he was traveling in the offending vehicle with an intention to bring back the refrigerator for the purpose of repair. On bare perusal of Ex.R.4 the policy in question it is evident that, use of vehicle for carriage of goods within the meaning of Motor Vehicle Act and the policy does not cover (i) Use of vehicle for organized racing xxxxxxxx

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(ii) xxxxxxxx

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(iii) Use for carrying passenger in the vehicle, except employees other than the driver not exceeding the number permitted.

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(b) On bare perusal of the policy conditions and

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provision of law, it is evident that, law does not permit traveling of public in a goods vehicle, however, in the instant case the deceased was traveling in the goods vehicle for the purpose of procuring/bringing back the refrigerator for work and he is the representative of the employee. Hence, he cannot be called as gratuitous passenger or an unauthorized passenger in the goods vehicle. The tribunal has recorded detailed reasons while fastening the liability on the Insurance company from paragraph No.19 and 20 of the impugned Judgment. The findings recorded by the tribunal are based on the evidence available on record and findings are neither perverse nor contrary to the material available on record, calling for any interference in the appeal filed by the Insurance Company. Hence, there is no merit in the contention urged by the Insurance company that the deceased was traveling in the goods vehicle contrary to the law.

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the tribunal this Court is of the considered view that, the tribunal has committed an error in assessing the income of the deceased at Rs.6,000/-. The appellant-claimants have contended that, the deceased was diploma holder and was working in the private company and was drawing Rs.11,500/- per month as is evident from Ex.P.6 is required to be rejected as the appellants have failed to examine the author of the Ex.P.6, nor they have placed any corroborative evidence to substantiate the claim that the deceased was drawing Rs.11,500/- per month. In the absence of any cogent and acceptable evidence on record with regard to the income of the deceased. This Court and the Lok Adalaths, normally rely on the chart prepared by the Karnataka State Legal Services authority to assess the notional income. In the instant case, the accident is of the year 2015 placing our reliance on the aforesaid chart, this Court assesses the notional income of the deceased at Rs.8,000/- per month.

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(d) The tribunal has committed an error in not

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awarding any compensation for loss of future prospects of the deceased. Keeping in mind, the enunciation of law laid down by the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others , reported in (2017) 16 SCC 680 , the appellants claimants are entitle addition of 25% to the assessed income of the deceased under the head of loss of future prospects of the deceased as the deceased was 45 years as on the date of the accident and was self employed.

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(e) As per the ratio laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram , reported in (2018) SCC 130 . The appellants being the wife, two children and one parent are entitled for consortium of Rs.40,000/each. The appellants are entitled for Rs.15,000/- under the head of loss of estate and Rs.15,000/- under the head of transportation of dead body and funeral expenses. The

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appellants are entitled for interest at the rate or 6% from

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the date of petition till its realization. The tribunal has rightly deducted 1/4^th of the assessed income which is unaltered. The award of compensation under the head of loss of expectancy, towards funeral and transportation charges and towards consortium as awarded by the tribunal is modified to the aforesaid extent.

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(f) The loss of dependency is calculated as under:

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Rs.8,000/- + 25% addition Rs.2,000/- = Rs.10,000/minus 1/4^th deduction = Rs.7,500/-

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Rs.7,500/- X 12 X 14 = Rs.12,60,000/-

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Thus, the appellants/claimants would be

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entitled for modified compensation on the following heads:

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Sl.No.	Particulars	Amount
1.	Loss of dependency	Rs.12,60,000/-
2.	Loss of estate and funeral expenses & transportation of dead body	Rs.30,000/-
3.	Loss of consortium (Rs.40,000/-x4)	Rs.1,60,000/-
	Total	Rs.14,50,000/-
	Compensation awarded by the Tribunal	Rs.8,01,000/-
	Enhanced compensation by this Court	Rs.6,49,000/-

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10. In view of the aforementioned, we pass the

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following:

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ORDER

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(i) MFA No.101120/2016 filed by the Insurance company is dismissed;

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(ii) MFA No.103867/2016 filed by the claimants/appellants is partly allowed;

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(iii) The impugned judgment and award of the Tribunal is modified to the extent that the claimants are entitled for total compensation Rs.14,50,000/- as against Rs.8,01,000/- awarded by the Tribunal;

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(iv) The enhanced compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization;

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(v) The respondent-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment;

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