Partly allowed

The Divisional Controller, v. Smt. H. S. Marekka Alias H C Marekka W/O Late H N Panduranga Alias Pandu

Karnataka HC13 Jun 2024MFA/101725/2023

Case brief

AI extract

What is this about?

Two appeals by NEKRTC against compensation awards for deaths of two motorcyclists in a collision with its bus challenged negligence findings, funeral expenses and income assessment. The court upheld liability and income computation but reduced funeral expenses to Rs.15,000/- in each case.

What did the court decide?

Awards modified: funeral expenses reduced from Rs.25,000/- to Rs.15,000/- in both MVCs; other heads unaltered; deposit amount to be transmitted to Tribunal.

The Divisional Controller, Vs Smt. H. S. Marekka… — Motor Accident Claims | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13^TH DAY OF JUNE, 2024

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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 G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO.101903 OF 2023 (MV-D) C/W MISCELALNEOUS FIRST APPEAL NO.101725 OF 2023

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IN MFA NO.101903 OF 2023

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BETWEEN:

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THE DIVISIONAL CONTROLLER, NEKRTC, OWNER, BUS NO.KA-35-F-285, HOSAPETE DIVISION, HOSAPETE TALUK, BALLARI DISTRICT, REPRESENTED BY CHIEF LAW OFFICER, KKRTC CENTRAL OFFICER KALABURAGI.

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…APPELLANT

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(BY SRI S.C. BHUTI, ADVOCATE)

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AND:

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA

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SMT. G. GANGAMMA

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W/O. LATE NAGARAJ @ NAGAPPA @ GUNN NAGARAJ, AGED. 28 YEARS, OCC. HOUSEWIFE,

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G. KOTRESH S/O. LATE NAGARAJ @ NAGAPPA

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@ GUNN NAGARAJ, AGED. 10 YEARS,

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G. NAGENDRA S/O. LATE NAGARAJ @ NAGAPPA @ GUNN NAGARAJ, AGED. 7 YEARS,

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NC: 2024:KHC-D:7965-DB MFA No. 101903 of 2023 c/w MFA No.101725 of 2023

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SMT. G. PAPAMMA W/O. G. SANNA PAPAPPA @ GUN PAPAPPA @ PAPAIAH, AGED 74 YEARS, OCC. HOUSEWIFE,

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RESPONDENTS NO.2 AND 3 ARE MINORS REPRESENTED BY RESPONDENT NO.1 GANGAMMA.

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ALL ARE R/O. NO.179 NAYAPURA VILLAGE, DASAMPURA PANCHAYATH, HAGARIBOMMANAHALLI TALUK, BALLARI DISTRICT, NOW, R/O. KRISHNANAGARA VILLAGE, SANDUR TALUK, BALLARI DISTRICT-583212.

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MARESH ACHARI S.B. @ MARESH S/O. S. BOMMAIAH, AGED. 43 YEARS, DRIVER, KSRTC, BUS NO.35/F-285, KUDLIGI DEPOT, KUDLIGI TALUK, BALLARI DISTRICT-583135.

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…RESPONDENTS

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(BY SRI GURURAJ R.TURAMARI, ADVOCATE FOR R1 TO R3; NOTICE TO R4 SERVED; NOTICE TO R5 DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 05.11.2022 PASSED IN MVC NO.564/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-VI, KUDLIGI, SITTING AT SANDUR AND ETC.,

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IN MFA NO.101725 OF 2023

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BETWEEN:

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THE DIVISIONAL CONTROLLER, NEKRTC, OWNER, BUS NO.KA-35-F-285, HOSAPETE DIVISION, HOSAPETE TALUK, BALLARI DISTRICT,

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REPRESENTED BY CHIEF LAW OFFICER, KKRTC, CENTRAL OFFICER, KALABURGI.

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…APPELLANT

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(BY SRI S.C. BHUTI, ADVOCATE)

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AND:

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SMT. H.S. MAREKKA @ H.C. MAREKKA W/O. LATE H.N. PANDURANGA @ PANDU, AGE. 27 YEARS, HOUSEWIFE,

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YOGESH S/O. LATE H.N. PANDURANGA @ PANDU, AGED. 10 YEARS, MINOR REPRESENTED BY RESPONDENT NO.1 H.S. MAREKKA @ H.C. MAREKKA.

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OBALESHAPPA @ OBALESHAPPA KANEKANHALLI, S/O. LATE K.MUDDAPPA @ MUDDAPPA KANEKANHALLI, AGED. 63 YEARS,

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ALL ARE R/O. NO.21 NANYAPURA VILLAGE, DASAMPURA PANCHAYATH, HAGRIBOMMANAHALLI TALUK, BALLARI DISTRICT-583212.

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MARESH ACHARI S.B. @ MARESH S/O. S. BOMMAIAH, AGED. 43 YEARS, DRIVER, KSRTC BUS NO.KA-35/F-285, KUDLIGI DEPOT, KUDLIGI TALUK, BALLARI DISTRICT-583135.

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…RESPONDENTS

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(BY SRI GURURAJ R.TURUMARI, ADVOCATE FOR R1 TO R3 NOTICE TO R4 DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 05.11.2022 PASSED IN MVC NO.565/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL VI KUDLIGI, SITTING AT SANDUR AND ETC.,

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Since these appeals are preferred against the common judgment and award impugned in these appeals and are pertaining to the same accident, both are clubbed, heard together and are disposed of by this common judgment.

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The Appellant Northeast Karnataka Road Transport Corporation has preferred these appeals against the Judgments and Award dated 05^th November, 2022 passed in MVCs No.564 of 2019 and 565 of 2019 by the Senior Civil Judge and Motor Accident Claims Tribunal-VI, Kudligi sitting at Sandur (for short hereinafter referred to as "the Tribunal"), questioning the saddling of entire liability, as also, negligence on it and also the quantum of compensation.

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For the sake of convenience, the parties in these appeals are referred to with their rank and status before the Tribunal.

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The brief relevant facts leading to filing of these appeals are that the claimants have filed claim petitions before the Tribunal in MVC No.564 of 2019 and MVC No.565 of 2019 under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Nagaraja and Panduranga respectively, in the road traffic accident. It is contended in the claim petitions that on 25^th April, 2019 at about 9.30 am, deceased Nagaraja and Panduranga were proceeding on motorcycle bearing Registration No.KA-35/V-1632 as rider and pillion riders towards Narayanapura village and were cautiously riding the motorcycle on the proper side of the road. When they were so proceeding on Sandur-Kudligi road near HRG Cross, Dharmapura village, at that time, the driver of the NEKRTC Bus bearing Registration No.KA-35/F-285 driven by its driver in a rash and negligent manner dashed to the said motorcycle. The impact of the accident is that both the rider and pillion riders fell and were dragged by the bus to some distance. Due to the injuries suffered, both the rider and pillion rider died on the spot. Claimants in MVC No.564 of 2019 are wife, children and mother of the deceased; and claimants in MVC No.565 of 2019 are wife, son and father of the deceased.

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It is contended that prior to accident, Nagaraja was aged 26 years and Panduranga was aged 25 years, both were hale and healthy and were working as Lorry cleaners and each were earning Rs.12,000/- per month as salary and Rs.100/- per day as batta. The petitioners were dependent on the earning of the deceased and due to untimely death of the bread-earners in the family, the dependents are now suffering mentally and financially. It is further contended that Sandur police have registered case in Crime No.61 of 2019 against the respondent No.1 driver of the bus belonging to Respondent No.2 for the offences punishable under Section 279 and 304-A of Indian Penal Code. As the accident took place due to the rash and negligent driving of the respondent No.1, respondents are liable to pay compensation and accordingly sought for allowing the claim petitions.

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Respondent No.2 in both the petitions filed objections denying the petition averments and further contended that respondent No.1-driver is not responsible for causing the accident. It is further contended that petitions are bad for non-joinder of owner and insurer of the motorcycle. It is also contended that the compensation claimed by the

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petitioners is on the higher side. On all these grounds sought to dismiss the claim petitions.

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Based on the pleadings, the Tribunal has framed appropriate issues in both cases. To prove the case of the petitioners, claimant No.1 in MVC No.564 of 2019 was examined as PW1 and marked sixteen documents as Exhibits P1 to P16; and the claimant No.1 in MVC No.565 of 2019 was examined as PW2 and got marked eight documents as Exhibits P17 to P24. On closure of petitioners’ side evidence, respondent No.1-driver is examined as RW1. Having heard the arguments on both sides, the Tribunal passed the judgment allowing both the claim petitions in part and awarded compensation of Rs.30,77,844/- in MVC No.564 of 2019 and Rs.28,31,056/- in MVC No.565 of 2019 with interest at 6% per annum from the date of petition till realisation. Being aggrieved by the judgment and award passed by the Tribunal, the appellant-NEKRTC has preferred these appeals.

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Sri S.C. Bhuti, learned counsel appearing for the appellants would submit that the judgment and award passed by the Tribunal saddling the entire liability upon the appellant,

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so also, awarding exorbitant and excessive compensation is opposed to material on record. It is submitted that the interest awarded is also on the higher side and contrary to law, facts and evidence of case. He further submits that accident occurred between two vehicles that too a head-on collision. The Tribunal ought to have held about the contributory negligence on the part of the deceased instead of saddling the entire negligence on the part of the driver of the bus. He submits that the Tribunal, merely relying upon the police documents, has saddled the entire negligence upon the appellant which is illegal, perverse and erroneous. His further submission is that the Tribunal ought to have considered the evidence of the driver of the bus who is an eye-witness to the accident. It is also submitted that the appellant, to prove the negligence of the rider of motorcycle, has examined the driver as RW1 and he has stated in his evidence that the rider of the motorcycle was riding the same in rash and negligent and in zig-zag manner and though he tried to avoid the alleged accident by applying brakes and even took the bus from left to right side, in spite of the same, the rider of the motorcycle lost control over the motorcycle dashed to the bus and caused

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accident. However, the Tribunal, without considering these vital aspects, has erroneously saddled the entire negligence on the part of the driver/appellant which is illegal, erroneous and perverse. He further submits that the claim petitions are not maintainable on the ground of non-joinder of necessary parties, i.e. owner and insurer of the motorcycle, as parties to the proceedings. Further, the Tribunal has erroneously awarded Rs.25,000/- under the head of funeral expenses instead of Rs.15,000/- as held by the Hon'ble Supreme Court in the case NATIONAL INSURANCE COMPANY v. PRANAY SETHI AND OTHERS. Further, the Tribunal also erroneously and exorbitantly considered the income of the deceased at Rs.13,250/- per month and added 40% to it towards future prospects without any proof of income which is illegal and erroneous. On all these grounds sought for dismissal of the appeals.

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Per contra, Sri Gururaj Turamari, learned counsel appearing for the respondent-claimants, submits that the Tribunal has properly appreciated the evidence on record in accordance with law and facts and also the decision of the

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Hon'ble Supreme Court, which needs no interference in these appeals and sought for dismissal of both appeals.

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Having heard the arguments of learned counsel

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appearing for the parties and on perusal of appeal papers, the following points would arise for our consideration:

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Whether the Tribunal has committed an error in fastening the liability on the appellant-NEKRTC?

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Whether the Tribunal committed an error in awarding compensation of Rs.25,000/- in both the cases towards funeral expenses instead of awarding Rs.15,000/- as held by the Hon'ble Supreme Court?

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Whether the Tribunal has committed an error in assessing the income of the deceased at Rs.13,250/- per month and adding 40% to it towards future prospects?

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What order or award?

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Our answer to the above points is as under:

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Point No.1: in the negative;

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Point No.2: in the affirmative;

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Point No.3: partly in the affirmative;

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Point No.4: as per final order

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Regarding Point No.1:

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We have examined the material placed before this Court. It is the case of the claimants that on 25^th April, 2019 at about 9.30 am, deceased Nagaraja and Panduranga were proceeding on motorcycle bearing Registration No.KA-35/V1632 as rider and pillion riders towards Narayanapura village and were cautiously riding the motorcycle on the proper side of the road. When they were so proceeding near HRG Cross Sandur-Kudligi road, Dharmapura village, at that time, the driver of the NEKRTC Bus bearing Registration No.KA-35/F-285 driven by its driver in a rash and negligent manner dashed to the said motorcycle. The impact of the accident is that both the rider and pillion riders fell and were dragged by the bus to some distance and due to the injuries suffered, both the rider and pillion rider died on the spot. To prove the case of the petitioners, two witnesses were examined as PWs.1 and 2 and

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got marked 24 documents as Exhibits P1 to P24. Respondent No.2 by filing statement of objections, denied the averments made in the claim petitions as false and further contended that the petitions are bad in law for non-joinder of owner and insurer of the motorcycle as necessary parties to the proceedings. To substantiate the same, the driver of the bus was examined as RW1. A perusal of material placed before this Court makes it clear that on the basis of the complaint filed by the complainant, Sandur Police have registered a case in Crime No.61 of 2019 against the respondent No.1-driver of NEKRTC bus for commission of offence punishable under Sections 279 and 304-A of Indian Penal Code and submitted First Information Report to the Court. Thereafter, police went to the spot and conducted spot panchanama, inquest panchanama in the presence of panchas and also prepared rough sketch on the spot, obtained post-mortem report, motor vehicle report and recorded statement of witnesses and on thorough investigation, investigating officer submitted charge sheet against RW1-driver of the bus for commission of offence punishable under Section 279 and 304-A of Indian Penal Code. Respondent No.1, who is examined before the Tribunal as RW1 has filed written

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statement in both the cases. He has deposed that the accident occurred due to rash and negligent act on the part of the rider of the motorcycle. Without pleading, his evidence cannot be accepted. Moreover, RW1 has not challenged/questioned the charge sheet submitted by the police. None of the eyewitnesses are examined before the Tribunal to prove that the accident occurred due to the sole negligence on the part of the rider of motorcycle. Even during the course of crossexamination of PWs1 and 2, respondents have failed to elicit any favourable answer from them to substantiate their defence. Considering the oral and documentary evidence placed by both the parties, the Tribunal has held that the petitioner/claimants have proved that the accident occurred due to rash and negligent act on the part of the driver of bus belonging to respondent No.2.

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The learned counsel for the appellant contended that the petitions are bad in law for non-joinder of necessary parties, i.e. the owner and insurer of the motorcycle. The accident occurred due to sole negligence on the part of the driver of the bus. Hence, owner or insurer of the motorcycle are not parties to the proceedings. On re-appreciation and re-

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examination of the entire evidence on record, we are of the considered opinion that the Tribunal has properly appreciated the evidence on record in accordance with law and facts and we do not find any infirmity as to the liability of the respondents. Accordingly, we answer point No.1 in the negative.

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Regarding Point No.2:

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In both the cases, the Tribunal has awarded an amount of Rs.25,000/- towards funeral expenses, which is contrary to the decision of the Hon'ble Supreme Court in the case of PRANAY SETHI supra. In view of the abovesaid judgment of the Hon'ble Supreme Court, claimants are entitled for an amount of Rs.15,000/- towards transportation of dead body and funeral expenses. Accordingly we find force in the submission of the learned counsel for the appellants. Hence, we answer point No.2 in the affirmative.

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Regarding Point No.3

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In both the cases, the Tribunal has assessed the notional income of the deceased at Rs.13,250/- per month which is in accordance with the chart prepared by the

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Karnataka State Legal Services Authority. Relying upon the decision of the Hon'ble Supreme Court in the case of PRANAY SETHI (supra), the Tribunal has added 40% to the income towards future prospects as the deceased were in the age group of below 40 years. In both the cases, the Tribunal has properly deducted one-third and one-fourth in both petitions respectively, towards personal and living expenses of the deceased considering the dependents on the deceased relying upon the decision of Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121. The Tribunal has awarded appropriate compensation on all heads as per the judgment of the Hon'ble Supreme Court and also following the chart issued by the Karnataka State Legal Services Authority, except under the head Funeral Expenses, under which head, the Tribunal awarded an amount of Rs.25,000/- instead of awarding Rs.15,000/-. Accordingly, this Court deducts the amount of Rs.10,000/- each in both cases under the head funeral expenses and modify the award passed by the Tribunal. Accordingly, we answer point No.3, partly in the affirmative.

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Regarding point No.4:

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For the aforestated reasons and discussions, we proceed to pass the following:

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O R D E R

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Appeals are allowed in part;

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Judgment and award dated 05^th November, 2022 passed in MVCs No.564 of 2019 and 565 of 2019 by the Senior Civil Judge and Motor Accident Claims Tribunal-VI, Kudligi sitting at Sandur, is modified by holding that the claimants in both the appeals are entitled for compensation of only Rs.15,000/- under the head Funeral Expenses in lieu of Rs.25,000/- awarded by the Tribunal. The compensation awarded by the Tribunal under other heads remain unaltered;

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