Partly allowed

The Oriental Insurance Company Ltd., v. Sri Basanagouda S/O Hanamantagouda Sannagoudru

Karnataka HC17 Nov 2023MFA/101170/2017

Case brief

AI extract

What is this about?

High Court of Karnataka partly allowed Miscellaneous First Appeals filed by claimants and an insurance company against Motor Accident Claims Tribunal award. Court modified compensation to Rs.6,59,800/- payable by Oriental Insurance Company based on enhanced assessment of income, multiplier, and additional losses.

What did the court decide?

Total compensation enhanced to Rs.6,59,800/- payable by Oriental Insurance Company with 6% interest from date of petition.

The Oriental Insurance Company Ltd., Vs Sri… — 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.100984/2017

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C/W

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MISCELLANEOUS FIRST APPEAL NO.101170/2017

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IN MFA NO. 100984/2017

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BETWEEN

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BASANGOUDA S/O. HANAMANTAGOUDA SANNAGOUDRA AGE: 52 YEARS, OCC: PVT. SERVICE, R/O: ANCHATAGERI, TQ: HUBBALLI.

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SMT. SAVAKKA W/O. BASANGOUDA SANNAGOUDRA AGE: 42 YEARS, OCC: HOUSEHOLD, R/O: ANCHATAGERI, TQ: HUBBALLI.

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SHIVAKUMAR HIREMATH

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Digitally signed by SHIVAKUMAR HIREMATH Date: 2023.11.21 11:36:57 +0530

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(BY SRI. C. S. NAGASHETTI, ADVOCATE)

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AND

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...APPELLANTS

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MOHAMMADALI S/O. KHULAHISAB, AGE: MAJOR, OCC: OWNER OF LORRY, R/O: VEGETABLE MARKET ROAD, HIRIYUR, TQ: HIRIYUR, DIST: CHITRADURGA-577598.

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RELIANCE GENERAL INSURANCE COMPANY LTD, BY ITS DIVISIONAL MANAGER, V. A. KALBURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI.

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

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4 . THE ORIENTAL INSURANCE COMPANY LIMITED, BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, ENKAY COMPLEX, KESHWAPUR, HUBLI.

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NATIONAL INSURANCE CO. LTD, THE DIVISIONAL MANAGER, ARIHANT PLAZA, KUSUGAL ROAD, KESHWAPUR, HUBLI.

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…RESPONDENTS

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(BY SRI. U. G. KATTIMANI, ADV. FOR R1, SRI. SURESH S. GUNDI, ADV. FOR R2, SRI. SHIVAKUMAR R. AMBLI, ADV. FOR R3, SRI. RAJASHEKHAR S. ARANI, ADV. FOR R4, SRI. GANGADHAR S. HOSAKERI, ADV. FOR R5)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLE ACT, AGAINST THE JUDGMENT AND AWARD DATED 30.11.2016 PASSED IN MVC NO.726/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 101170/2017.

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BETWEEN

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THE ORIENTAL INSURANCE COMPANY LTD., ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, ENKAY COMPLEX, KESHWAPUR HUBBALLI,

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NOW REPRESENTED 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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SRI. BASANAGOUDA S/O. HANAMANTAGOUDA SANNAGOUDRA, AGE: 52 YEARS, OCC: PRIVATE SERVICE, R/O: ANCHATGERI, TQ: HUBBALLI.

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SMT. SAVAKKA W/O. BASANAGOUDA SANNAGOUDRA AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: ANCHATGERI, TQ: HUBBALLI.

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MOHAMMADALI S/O. KHULAHISAB AGE: MAJOR, OCC: OWNER OF LORRY NO.KA-04/1629, R/O: VEGETABLE MARKET ROAD, HIRIYUR, TQ: HIRIYUR, DIST: CHITRADURGA.

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

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BY ITS REPRESENTED BY DIVISIONAL MANAGER.

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

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

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…RESPONDENTS (BY SRI. C. S. NAGASHETTI, ADV. FOR R1 & R2, SRI. SURESH S. GUNDI, ADV. FOR 4, SRI. SHIVAKUMAR R. AMBLI, ADV. FOR R5, SRI. GANGADHAR S. HOSAKERI, ADV. FOR R6, NOTICE TO R3 SERVED)

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THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 30.11.2016 PASSED IN MVC NO.726/2015 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBLI, AWARDING COMPENSATION OF RS. 4,31,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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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.100984/2017 is filed by the appellantsclaimants, who are the father and mother of deceased Hanamantagouda, seeking for enhancement of compensation. MFA No.101170/2017 is filed by the appellant-Insurance Company challenging the liability as well as the quantum of compensation awarded in the Judgment and award dated 30.11.2016 in MVC No.726/2015 by the Principal 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 are that the legal heirs of the deceased Hanamantagouda have

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filed a claim petition seeking compensation before the Tribunal. It is averred that, deceased Hanamantagouda was proceeding on his motorcycle bearing registration No.KA25/TA-3548 from Hubli to Anchatageri on Hubli-Karwar road, at that time, he was going behind TATA 407 vehicle bearing registration No.KA-25/7809 driven by its driver in a rash and negligent manner and dashed rear of the stationed lorry bearing registration No.KA-40/1629 and impact of the said collision, the deceased who was riding the motorcycle behind the TATA 407 vehicle could not control his motorcycle resulted in colliding with the ongoing TATA 407 vehicle, which resulted in death of the rider Sri. Hanamantappa. It is submitted that, the accident has caused due to the rash and negligent driving of the TATA 407 vehicle and the deceased was hale and healthy, was a plumber and was earning Rs.30,000/- per month from his avocation and due to the sudden death the claimants have suffered financially and mentally as they were dependent on the deceased.

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The respondent No.1 is the owner of the stationed

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lorry, respondent No.2 Insurer of the said lorry and the respondent No.3 is the owner of TATA 407 vehicle and the respondent No.4 is insurer of the said TATA 407 vehicle and respondent No.5 is insurer of motorcycle. The respondent No.1 has remained absent. The respondent Nos.2, 4 and 5 have filed objections denied the place, date, time and nature of the accident and it is averred that, due to the negligence on the part of the driver of the motorcycle, the accident has happened. It is averred that, the owners of the respective vehicle involved in the accident have failed to intimate about

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the accident and also failed to furnish the relevant documents. Hence, the owners are liable to pay the compensation and not the Insurance company. It is further averred that, the drivers of the respective vehicle were not having a valid and effective driving licence on the date of accident, hence, they have denied the liability. The respondent No.2-Insurance company contended that, the lorry was parked on the extreme left side of the road and no

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charge-sheet is filed against the driver of the stationed lorry. Hence, they are not liable to pay compensation as they have contributed to the accident in question. The respondent No.5 the Insurer of the motorcycle of the deceased has averred that, the driver of the TATA 407 was driven in rash and negligent manner and has caused the accident in question. The respondent No.3 has denied the liability, income and avocation of the deceased and averred that, his vehicle TATA 407 has a valid Insurance policy. The tribunal has framed the issues, recorded the evidence. The appellant-claimants examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.9. The respondent examined R.W.1 to R.W.4 and got marked Ex.R1 to Ex.R8. The tribunal has awarded the compensation of Rs.4,31,000/- with interest at the rate of 8%. The tribunal has fastened the liability of 50% on the TATA 407 vehicle bearing registration No.KA-25/C-7809 insured with the respondent No.4 and 50% on the deceased.

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Sri. C.S.Nagashetty, learned counsel for the appellant-claimants submits that, the tribunal has committed

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an error in fastening 50% liability on the deceased, holding that the deceased has contributed 50% to the accident in question. It is submitted that, the tribunal has committed an error in assessing the income of the deceased at Rs.3,000/as the deceased was working as plumber and was earning Rs.30,000/- per month. It is submitted that the tribunal has committed an error in not awarding any compensation under the head of loss of future prospects and also committed an error in not awarding any compensation under the head of loss of consortium. He seeks to allow the appeal filed by the claimants by enhancing the compensation.

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Per contra, Sri. Rajashekhar S. Arani, learned

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counsel appearing for the appellant-Insurance company submits that, the tribunal has committed an error in holding that the driver of the TATA 407 was negligent and has contributed to the accident and fastened liability of 50% on

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the appellant-Insurance company. It is submitted that, the driver of the stationed lorry bearing No.KA-40/1629 was also negligent as he has parked the vehicle on the road without

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any indication or switching on the indicators. Hence, the tribunal ought to have fastened certain extent of liability on the driver of the stationed lorry. He seeks to modify the impugned Judgment and award by fastening the liability on the stationed lorry also. To substantiate the said submission, learned counsel refers to the evidence and crossexamination of R.W.2, who is the Investigating Officer has deposed that, the lorry was parked on the right side of the road and submits that the driver of stationed lorry is also liable for the accident in question. It is submitted that, the tribunal considering the evidence on record has awarded just and proper compensation on all the heads, and the same does not call for any enhancement in the appeal filed by the claimants. He seeks to allow the appeal filed by the Insurance company by dismissing the appeal of the claimants.

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Having heard the learned counsel for the appellants/claimants, learned counsel for the appellantInsurance company, perused the appeal memorandums and

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

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(a) Whether the tribunal was justified in fixing the liability on the appellant-Insurance company at 50%?

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(b) Whether the appellant-claimants are entitled for the enhancement of compensation?

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

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(a) The parties to the proceeding do not dispute that, Sri. Hanamantagouda has died in the road accident dated 05.05.2015 and it is also not in dispute that, the deceased was riding motorcycle bearing No.KA-25/TA-3548 and it is also not in dispute that, the said motorcycle dashed to TATA 407 vehicle bearing No.KA-25/C-7809. It is also not in dispute that, TATA 407 vehicle bearing No.KA-25/C-7809 has dashed to the stationed lorry bearing registration No.KA40/1629. It is not in dispute that, all these three vehicles have been insured with the Insurance companies who are

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the respondents before the tribunal. The contention of the

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appellant-Insurance company that, the driver of KA-40/1629 was negligent in parking his lorry on the road without any indication or switching on the indicators and has contributed to the accident in question. On close scrutiny of the evidence on record, it is evident that, the investigating officer after completion of investigation had filed charge-sheet only against the deceased Hanumantagouda and the driver of TATA 407 vehicle and no charge-sheet is filed against the driver of the stationed lorry. Merely a stray sentence in the evidence of R.W.1 that the lorry was parked on the right side of the road cannot be the basis to come to the conclusion

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that, the driver of the stationed lorry was negligent and has contributed to the accident in question. On close perusal of the sketch at Ex.P.6 would clearly demonstrate that the lorry was parked on the extreme left side of the road and based on the collected evidence the investigation officer has filed the charge-sheet against the deceased as well as the driver of the TATA 407. Hence, no evidence is available on record to come to a conclusion that the driver of the stationed lorry

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has contributed to the accident in question. Admittedly, The Insurance company admittedly has not adduced the evidence of driver of TATA 407 vehicle to substantiate their contention. In the absence of any cogent and acceptable evidence that the driver of stationed lorry was negligent, this Court is of the considered view that the reasoning adopted by the tribunal while fastening the liability of the appellant Insurance company to 50% is based on the evidence available before it and such reasoning is neither perverse nor

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contrary to the evidence on record calling for any interference in this appeal. Insofar as contention of the claimant that the tribunal has committed an error in fastening 50% of contributory negligence on the deceased, said contention has no merit. On perusal of the charge-sheet and other evidence on record, clearly demonstrates that the deceased was just behind TATA 407 lorry and was negligent in riding the motorcycle. Hence, this Court does not find any reason to modify the contributory negligence fastened on the

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deceased.

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(b) The tribunal has assessed the income of the

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deceased at Rs.3,000/- per month and determined the compensation. The appellant-claimants have contended that,

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the deceased was working as a Plumber and was earning Rs.30,000/- per month, however, no material were placed before the tribunal to substantiate the said contention. This Court and Lok Adalaths normally rely on the notional income chart prepared by the Karnataka State Legal Service Authority to assess the income in the road accident cases, in the absence of any evidence on record. In the instant case, the accident is of the year 2015 placing reliance on the aforesaid chart, this Court assesses the notional income of the deceased at Rs.8,000/-.

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(c) The tribunal has committed an error in applying 17 multiplier. Keeping in mind the enunciation of law laid down by the Hon’ble Supreme Court in the case Sarala

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Verma and others Vs. Delhi Transport Corporation Limited and another, reported in (2009) 6 SCC 121 the

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deceased was aged about 25 years as on the date of the accident. Hence, the appropriate multiplier would be ‘18’.

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(d) The deceased was a bachelor. Hence, the tribunal

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has rightly deducted 50% of the assessed income towards the personal and living expenses of the deceased. The tribunal has failed to add 40% to the assessed income of the deceased under the head of loss of future prospects as held by the Supreme Court in the case of National Insurance

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Company Limited Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680. The appellants are entitled for addition of 40% under the head of loss of future prospects of the deceased.

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(e) Keeping in mind the enunciation of law, laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited Vs Nanu Ram ,

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reported in (2018) SCC 130, the appellants are the parents of

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the deceased are entitle to Rs.40,000/- each as a parental consortium. The tribunal has committed an error in awarding

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8% interest on the compensation amount. Taking note of the rate of interest paid in the nationalized Bank on the fixed deposits in the year 2015, this Court is of the view that, the appellants are entitled for the interest at the rate of 6% per annum on the compensation amount from the date of petition, till its realization. The tribunal has committed an error in awarding compensation under the head of loss of pain and mental agony and loss of love and affection and funeral and death ceremony expenditure. The appellants are entitled to 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 in place of the aforesaid heads of compensation awarded by the tribunal.

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(f) This Court has not altered the ratio of contributory negligence fixed by the tribunal in these appeals.

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

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Rs.8,000/- + Rs.3,200/- (40% addition) = Rs.11,200/minus 50% = Rs.5,600/-

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Rs. 5,600 X 12 X 18 = Rs.12,09,600/-

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(h) Since the accident was caused due to the 50%

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equal negligence on the part of TATA 407 driver of the goods

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vehicle bearing No.KA-25/C-7809 insured with the 4^th respondent-Oriental Insurance Company Limited, the 4^th respondent-Oriental Insurance Company Limited is liable to pay 50% of the total compensation amount to the claimants.

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Thus, the appellants/claimants would be entitled for modified compensation on the following heads:

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Sl.No.	Particulars	Amount
1.	Loss of dependency	Rs.12,09,600/-
2.	Loss of estate and funeral expenses & transportation of dead body	Rs.30,000/-
3.	Loss of consortium	Rs.80,000/-
	(Rs.40,000/-x2)
	Total	Rs.13,19,600/-

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In view of the aforementioned, we pass the

following:

ORDER

(i) MFA No.101170/2017 filed by the Insurance company is dismissed;

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(ii) MFA No.100984/2017 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.13,19,600/- as against Rs.4,31,000/- awarded by the Tribunal;

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(iv) Since, the accident was caused due to the contributory negligence of 50% determined on the part of TATA 407 driver of the goods vehicle bearing No.KA-25/C7809 insured with the 4^th respondentOriental Insurance Company Limited, the 4^th respondent-Oriental Insurance Company Limited is liable to pay 50% of the total compensation amount to the claimants i.e. Rs.6,59,800/- of the total compensation amount of Rs.13,19,600/-.

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(v) The enhanced compensation amount will bear interest at the rate of 6% per annum

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from the date of claim petition till date of realization;

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(vi) 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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