Kumar Omkar Vs Anil Atmaram Nikam

THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., CLUB ROAD, BELGAUM, REPRESENTED BY ITS DEPUTY MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE, 2^ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI.

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(BY SRI. G.N. RAICHUR, ADVOCATE)

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… APPELLANT

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DHARWAD BENCH

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AND:

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SHRI. PANDURANG RAMACHANDRA BAMANE, AGE: 72 YEARS, OCC: NIL, R/O: GAJABARWADI, POST: KUNUR, TQ: CHIKODI, DIST: BELGAUM.

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SMT. LAXMI PANDURANG BAMANE, AGE: 67 YEARS, OCC: NIL, R/O: GAJABARWADI, POST: KUNUR, TQ: CHIKODI, DIST: BELGAUM.

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HC-KAR

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SMT. SHEETAL CHANDRAKANTH BAMANE, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: GAJABARWADI, POST: KUNUR, TQ: CHIKODI, DIST: BELGAUM.

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KUMAR HARSHAD S/O. CHANDRAKANTH BAMANE, AGE: 12 YEARS, OCC: STUDENT, R/O: GAJABARWADI, POST: KUNUR, TQ: CHIKODI, DIST: BELGAUM.

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KUMARI VISHNAVI S/O CHANDRAKANT BAMANE, AGE: 07 YEARS, OCC: STUDENT, R/O: GAJABARWADI, POST: KUNUR, TQ: CHIKODI, DIST: BELGAUM.

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(R4 AND R5 ARE MINORS R/BY R3 MOTHER N/G)

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SHRI ANIL ATMARAM NIKAM, AGE: MAJOR, OCC: BUSINESS, R/O: GAJABARWADI, POST: KUNUR, TQ: CHIKODI, DIST: BELGAUM, (OWNER OF THE TRACTOR NO.KA-23/TA-3492 AND TRAILOR NO.KA-23/TA-4604 AND KA-23/TA-4605).

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SHRI DILIP SHIVRAM KHANDGALE, R/O: A/P TIRUMRTH COLONY, POL MALA 100 FEET ROAD, SANGLI, STATE OF MAHARASHTRA, (OWNER OF MOTOR CYCLE NO.MH-10/T-2822).

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… RESPONDENTS

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(BY SRI. SANJAY S. KATAGERI, ADVOCATE FOR R1-R5 R4 AND R5 ARE MINORS R/BY R3; SRI. H.D. PATIL, ADVOCATE FOR R7)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED: 30-09-2013 PASSED IN MVC NO.777/2011 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM.

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HC-KAR

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IN MFA NO. 100279 OF 2014:

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BETWEEN:

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SHRI PANDURANG RAMACHANDRA BAMANE, AGE: 72 YEARS, OCC: NIL, R/O: GAJABARWADI, POST: KUNUR, TQ: CHIKKODI, DIST: BELGAUM.

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SMT. LAXMI PANDURANG BAMANE, AGE: 67 YEARS, OCC: NIL, R/O: GAJABARWADI, POST: KUNUR, TALUK: CHIKKODI, DIST: BELGAUM.

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SMT. SHEETAL CHANDRAKANT BAMANE, AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O: GAJABARWADI, POST: KUNUR, TALUK: CHIKKODI, DIST: BELGAUM.

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KUMAR HARSHAD S/O CHANDRAKANT BAMANE, AGE: 12 YEARS, OCC: STUDENT, R/O: GAJABARWADI, POST: KUNUR, TALUK: CHIKKODI, DIST: BELGAUM.

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KUMARI VAISHNAVI D/O CHANDRAKANT BAMANE, AGE: 09 YEARS, OCC: STUDENT, R/O: GAJABARWADI, POST: KUNUR, TALUK: CHIKKODI, DIST: BELGAUM.

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(APPELLANTS NO.4 AND 5 ARE BEING MINOR REPRESENTED BY MINOR GUARDIAN NATURAL MOTHER APPELLANT NO.3.)

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… APPELLANTS

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(BY SRI. SANJAY S. KATAGERI, ADVOCATE)

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AND:

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SHRI ANIL ATMARAM NIKAM, AGE: MAJOR, OCC: BUSNIESS,

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HC-KAR

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R/O: GAJABARWADI, POST: KUNUR, TALUK: CHIKKODI, DIST: BELGAUM.

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(OWNER OF TRACTOR BEARING REGD.NO.KA-23/TA-3492 NO.KA-23/TA-4604 AND KA-23/TA-23/TA-4605)

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., CLUB ROAD, BELGAUM.

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SHRI DILIP SHIVARAM KHANDAGALE, R/O: A/P TRIMURTH COLONY, POL MALA, 100 FEET ROAD, SANGLI, STATE: MAHARASHTRA.

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(OWNER OF MOTOR CYCLE NO.MH-10/T-2822)

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… RESPONDENTS

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(BY SRI. G.N. RAICHUR, ADVOCATE FOR R2; R1 AND R3-SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED: 30-09-2013 PASSED IN MVC NO.777/2011 ON THE FILE OF LEARNED PRL. SENIOR CIVIL JUDGE AND ADDL. MACT, BELGAUM.

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IN MFA NO. 100278 OF 2014:

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BETWEEN:

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KUMAR OMKAR ANKUSH JAGATAP, AGE: 13 YEARS, OCC: STUDENT, R/O: GAJABARWADI, POST: KUNUR, TALUK: CHIKKODI, DIST: BELGAUM.

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(APPELLANT BEING MINOR REPRESENTED BY GUARDIAN NATURAL FATHER, SHRI ANKUSH TUKARAM JAGATAP,

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HC-KAR

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AGE: 37 YEARS, OCC: AGRICULTURE AND COOLIE, R/O: GAJABARWADI, POST: KUNUR TALUK: CHIKKODI, DIST: BELGAUM.

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… APPELLANT

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(BY SRI. SANJAY S. KATAGERI, ADVOCATE)

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AND:

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SHRI ANIL ATMARAM NIKAM AGE: MAJOR, OCC: BUSINESS, R/O: GAJABARWADI, POST: KUNUR, TAL: CHIKKODI, DIST: BELGAUM.

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(OWNER OF TRACTOR BEARING REGD.NO.KA-23/TA-3492 NO.KA-23/TA-4604 AND KA-23/TA-23/TA-4605)

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., CLUB ROAD, BELGAUM.

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SHRI DILIP SHIVARAM KHANDAGALE, R/O: A/P TRIMURTH COLONY, POL MALA, 100 FEET ROAD, SANGLI, STATE: MAHARASHTRA. (OWNER OF MOTOR CYCLE NO.MH-10/T-2822)

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…RESPONDENTS

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(BY SRI. G.N. RAICHUR, ADVOCATE FOR R2; R1 AND R3-SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, SET ASIDE THE JUDGMENT AND AWARD DATED: 30-092013 PASSED IN MVC NO.775/2011 ON THE FILE OF THE LEARNED PRL. SENIOR CIVIL JUDGE AND ADDL. MACT, BELGAUM.

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THESE APPEALS, COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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Though these appeals are listed for admission, with the consent of learned counsel for the parties, they are taken up for final disposal.

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MFA No.24897/2013 is filed by the Insurance Company challenging the liability fastened on it. Whereas, MFA Nos.100278/2014 and 100279/2014 are filed by the claimants challenging the contributory negligence to an extent of 50% saddled on the owner of motorcycle bearing registration No.MH-10/T-2822 as well as seeking enhancement of compensation.

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All these appeals are arising out of the common judgment and award dated 30.09.2013, passed in MVC Nos.775/2011, 776/2011 and 777/2011, on the file of Principal Senior Civil Judge and Motor Accident Claims Tribunal, Belgaum (for short, ‘Tribunal’).

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Tribunal.

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HC-KAR

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Brief facts leading to filing of these appeals are that

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on 08.11.2010, the deceased-Chandrakant (for short, the ‘deceased’) was travelling along with two other pillion riders from Nipani towards Gajabarwadi on motorcycle bearing registration No.MH-10/T-2822 as a rider. When they reached near Ramchandra Goswal’s land, dashed the tractor and trailer bearing registration No.KA-23/TA-4605 and caused the accident in question. Due to which, the rider- Chandrakant died on the spot and other two pillion riders sustained grievous injuries.

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The legal heirs of deceased-Chandrakant and other two claimants/injured preferred claim petitions under Section 163-A of the Motor Vehicles Act, 1988 (for short, ‘M.V. Act, 1988’), seeking compensation. The Tribunal while awarding compensation has fastened liability on respondent Nos.1 and 2 on the one hand as jointly and severally to pay compensation amount to the extent of 50% together with interest in each case and on the other hand has fastened balance 50% of compensation amount on respondent No.3 together with interest in each case.

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HC-KAR

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The learned counsel for the Insurance Company submitted that the accident occurred due to rash and negligent driving of the deceased. Therefore, the driver of tractor and trailer bearing registration No.KA-23/TA-4605 is not at all responsible for occurrence of accident. Hence, prays for exonerating the insurance company from payment of compensation to the claimants.

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The learned counsel for the claimants/injured submitted that the claim petitions are filed under Section 163-A of the M.V. Act, 1988. Therefore, there is no need to plead and prove rashness and negligence of the vehicles involved in the accident. If involvement of vehicles is proved that is sufficient for holding for grant of compensation under Section 163-A of the M.V. Act, 1988. Therefore, submitted that the Tribunal has committed error in fastening 50% of contributory negligence on the part of owner of motorcycle bearing registration No.MH10/T-2822.

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Admittedly, the claim petitions are filed under Section 163-A of the M.V. Act, 1988. When the claim petitions are filed under Section 163-A of the M.V. Act, 1988, then

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HC-KAR

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rashness and negligence of vehicles need not be pleaded and proved. Mere involvement of vehicles is necessary in maintaining the petitions filed under Section 163-A of the M.V. Act.

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In the present case, the Tribunal has committed error in fastening contributory negligence on the part of deceased, who was riding the motorcycle bearing registration No.MH-10/T-2822. Since the claim petitions are filed under Section 163-A of the M.V. Act, 1988 and police records state that the tractor and trailer bearing registration No.KA-23/TA4605 is also involved in the accident. Therefore, the owner and insurer of tractor and trailer bearing registration No.KA-23/TA4605 are jointly and severally liable to pay compensation. Since, the claim petitions are filed under Section 163-A of the M.V. Act, 1988, there could not be a contribution of rashness and negligence on the deceased, who was riding the motorcycle. Therefore, the appeal filed by the Insurance Company is liable to be dismissed.

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Hence, the owner and insurer of the tractor and trailer are jointly and severally liable to pay compensation.

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HC-KAR

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Since the insurance policy was in force, the Insurance Company

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shall pay entire compensation amount to the claimants.

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Regarding Quantum of Compensation in MFA No.100278/2014 (MVC No.775/2011):

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In the present case, from the medical evidence on record, it is proved that the claimant-Omkar Ankush Jagatap had suffered the following injury.

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“Blunt abdominal injury causing AC abdomen (Haemoperitonium).”

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The Tribunal has awarded compensation under

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various heads as under:

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Sl.	Heads.		Amount in
No.			(Rs.)
1.	Pain and sufferings.		5,000/-
2.	Medical expenses (sup medical bills).	ported by	15,000/-
		Total:	20,000/-

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Hence, considering the nature of injuries sustained,

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compensation awarded by the Tribunal is lesser side. Therefore, the same is required to be enhanced by modifying the judgment and award.

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HC-KAR

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The doctor-PW.3 has stated that the claimant had suffered 15% physical disability to the whole body. Therefore, considering the nature of injury sustained and evidence of doctor, 10% functional disability is taken into consideration as the claimant had suffered grievous injury i.e., ‘blunt abdominal injury causing AC abdomen (Haemoperitonium).’

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Insofar as quantum of compensation, as per Second Schedule appended to the MV Act, maximum income of the claimant/injured is fixed at Rs.40,000/- per annum. Hence, taking note of the same, this Court assesses the income of the claimant at Rs.40,000/- per annum. The age of the claimant is 10 years at the time of accident and appropriate multiplier of 15. Thus, the claimants would be entitled to compensation under the head of loss of future income due to disability as under:

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Rs.40,000 x 10% x 15 = Rs.60,000/-

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The Tribunal awarded a sum of Rs.5,000/- under the head of pain and sufferings and Rs.15,000/- towards medical expenses, which is unaltered.

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HC-KAR

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Thus, the claimant would be entitled to modified

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compensation on the following heads:

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Particulars		Amount (in Rs.)
Loss of future income due	to	60,000/-
disability.
Pain and sufferings.		5,000/-
Medical expenses.		15,000/-
Total		80,000/-

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Thus, the claimant is entitled to total compensation of Rs.80,000/- as against Rs.20,000/- awarded by the Tribunal.

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Regarding Quantum of Compensation MFA

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No.100279/2014 (MVC No.777/2011):

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The Tribunal has awarded compensation under various heads as under:

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Sl.	Heads.		Amount in
No.			(Rs.)
1.	Loss of dependency.		3,84,000/-
2.	Loss of consortium.		5,000/-
3.	Funeral expenses.		2,000/-
4.	Loss of estate.		2,500/-
		Total:	3,93,500/-

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HC-KAR

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The compensation awarded by the Tribunal is on

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lesser side. Therefore, the same is required to be enhanced by modifying the judgment and award.

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The Tribunal has assessed income of the deceased at Rs.3,000/- per month. As per Second Schedule appended to the M.V. Act, maximum income of deceased is fixed at Rs.40,000/- per annum. Hence, taking note of the same, this Court assesses the income of the deceased at Rs.40,000/- per annum. The deceased was aged 38 year as on the date of accident and the Tribunal has taken multiplier of 16, which is unaltered. As per Second Schedule appended to the M.V. Act, 1/3^rd of the total annual income is to be deducted towards personal and living expenses. Thus, the claimants would be entitled to compensation under the head of loss of dependency as under:

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Rs.40,000 x 16 x 2/3 = Rs.4,26,667/-

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The Tribunal awarded a sum of Rs.5,000/- under the head of loss of consortium, Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate, which is as per

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HC-KAR

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the Second Schedule to the M.V. Act. Hence, the same is kept intact.

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Thus, the claimants would be entitled to modified compensation on the following heads:

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Sl.	Heads.		Amount in
No.			(Rs.)
1.	Loss of dependency.		4,26,667/-
2.	Loss of consortium.		5,000/-
3.	Funeral expenses.		2,000/-
4.	Loss of estate.		2,500/-
		Total:	4,36,167/-

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Thus, the claimant is entitled to total compensation of Rs.4,36,167/- as against Rs.3,93,500/- awarded by the Tribunal.

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The Tribunal has awarded interest on the compensation at 9% per annum, which is on the higher side. Considering the rate of interest awarding on the fixed deposits, this Court is awarding interest at the rate of 6% per annum.

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The appellant/insurance company is liable to pay entire compensation amount in each case and is directed to deposit the same with accrued interest before the Tribunal

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HC-KAR

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within a period of six weeks from the date of receipt of certified copy of this judgment.

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In the result, I proceed to pass the following:

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ORDER

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a) All the appeals are allowed in part.

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b) The common judgment and award dated 30.09.2013 passed in MVC Nos.775/2011, 776/2011 and 777/2011, on the file of Principal Senior Civil Judge and Motor Accident Claims Tribunal, Belgaum, stands modified.

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c) The appellant/claimant in MFA No.100278/2014 (MVC No.775/2011) is entitled to total compensation of Rs.80,000/as against Rs.20,000/- awarded by the Tribunal.

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d) The appellants/claimants in MFA No.100279/2014 (MVC No.777/2011) are entitled to total compensation of

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HC-KAR

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Rs.4,36,167/as against Rs.3,93,500/-

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awarded by the Tribunal.

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e) The compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

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f) The Insurance Company shall deposit the compensation in each case along with interest as stated above, within a period of four weeks from the date of receipt of a copy of this judgment.

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g) The order with regard to apportionment of compensation, deposit and release of amount would be as per order of Tribunal.

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h) Send a copy of this judgment and award to the Tribunal.

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i) The amount in deposit made by the Insurance Company shall be transmitted to the Tribunal.

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