Altaf S/O Hazarathali Pattegoudar, Vs the Managing Director

MISCELLANEOUS FIRST APPEAL NO. 100787 OF 2017 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 21316 OF 2011 MISCELLANEOUS FIRST APPEAL NO. 21317 OF 2011 MISCELLANEOUS FIRST APPEAL NO. 100788 OF 2017

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IN MFA NO. 100787 OF 2017: BETWEEN:

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MOHAMMAD GOUSE S/O ISMAILSAB PATTEGOUDAR, AGE: 39 YEARS, OCC: MASON, R/O: HIREHALLI, RANEBENNUR-591 115, TQ: RANEBENNUR, DIST: HAVERI.

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… APPELLANT

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(BY SRI SIDDAPPA S. SAJJAN, ADVOCATE.)

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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AND:

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THE MANAGING DIRECTOR, KSRTC, NOW NWKRTC, CENTRAL OFFICE, GOKUL ROAD, HUBBALLI-580 030, DIST: DAHRWAD.

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… RESPONDENT (BY SRI CHANDRASHEKHAR B. PATIL, ADVOCATE.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 02.11.2010 PASSED IN MVC NO.412/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ITINERATE COURT, BYADAGI AND ETC.,.

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IN MFA NO. 21316 OF 2011: BETWEEN:

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THE MANAGING DIRECTOR, KSRTC NORTH-WEST DIVISION, GOKUL ROAD, HOSUR, HUBBALLI.

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… APPELLANT

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(BY SRI CHANDRASHEKHAR B. PATIL, ADVOCATE.)

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AND:

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SRI. MOHAMMAD GOUSE S/O ISMAILSAB PATTEGOUDAR, AGE: 34 YEARS, OCC: MASON, R/O: HIREHALLI, TQ: BYADAGI, DIST: HAVERI.

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… RESPONDENT

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(BY SRI SIDDAPPA S. SAJJAN, ADVOCATE.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO QUASH THE JUDGMENT AND AWARD DATED 02.11.2010 PASSED IN MVC NO.412/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ITINERATE COURT, BYADAGI AND ETC.,.

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IN MFA NO. 21317 OF 2011: BETWEEN:

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THE MANAGING DIRECTOR, KSRTC NORTH-WEST DIVISION, GOKUL ROAD, HOSUR, HUBBALLI.

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… APPELLANT

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(BY SRI CHANDRASHEKHAR B. PATIL, ADVOCATE.)

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AND:

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SRI. ALTAF S/O HAZARATHALI PATTEGOUDAR, AGE: 24 YEARS, OCC: MASON, R/O: HIREHALLI, TQ: BYADAGI, DIST: HAVERI.

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… RESPONDENT

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(BY SRI SIDDAPPA S. SAJJAN, ADVOCATE.)

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO QUASH THE JUDGMENT AND AWARD DATED 02.11.2010 PASSED IN MVC NO.413/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ITINERATE COURT, BYADAGI AND ETC.,.

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IN MFA NO. 100788 OF 2017: BETWEEN:

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ALTAF S/O HAZARATHALI PATTEGOUDAR, AGE: 29 YEARS, OCC: MASON, R/O: HIREHALLI, RANEBENNUR-591 115, TQ: RANEBENNUR, DIST: HAVERI. (BY SRI SIDDAPPA S. SAJJAN, ADVOCATE.)

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… APPELLANT

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AND:

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THE MANAGING DIRECTOR, KSRTC, NOW NWKRTC, CENTRAL OFFICE, GOKUL ROAD, HUBBALLI-580 030, DIST: DAHRWAD.

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… RESPONDENT

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(BY SRI CHANDRASHEKHAR B. PATIL, ADVOCATE.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 02.11.2010 PASSED IN MVC NO.413/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ITINERATE COURT, BYADAGI AND ETC.,.

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THESE APPEALS ARE COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS 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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MFA No.100787/2017 is filed by the claimant and MFA No.21316/2011 is filed by the KSRTC challenging the judgment and award dated 02.11.2010, passed by the Additional Senior Civil Judge and Additional MACT, Itinerate Court, Byadagi, in MVC No.412/2007, seeking for enhancement of compensation and questioning the apportionment of rashness and negligence, respectively.

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MFA No.100788/2017 is filed by the claimant and MFA No.21317/2011 is filed by the KSRTC challenging the judgment and award dated 02.11.2010, passed by the very same Court, in MVC No.413/2007, seeking for enhancement of compensation and questioning the apportionment of rashness and negligence, respectively.

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Heard the arguments of learned counsels appearing for both the sides and perused the material placed before the Court.

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HC-KAR

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In the present case, the claimants being the rider

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and pillion rider on a motorcycle bearing No.KA-27/5469 met with an accident against a KSRTC bus bearing No.KA-25/F-1392, which occurred on 14.06.2006 and sustained injuries.

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The tribunal has held that the driver of KSRTC

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bus was completely rash and negligent in driving the bus and caused the accident. The tribunal has appreciated the documentary evidence which are FIR, complaint, spot mahazar, IMV report, charge sheet, from which it is forthcoming that the driver of the KSRTC bus was completely

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rash and negligent in driving the bus and caused the accident. There is no allegation against the rider of motorcycle. Though the driver of KSRTC bus is examined as RW.1, but his evidence is not corroborated with the documentary evidence to prove his innocence, whereas the documentary evidence conclusively prove the fact that driver of KSRTC bus was completely rash and negligent in driving the bus and caused the accident. Therefore, on the rashness

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and negligence aspect the appeals filed by the KSRTC are

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liable to be dismissed.

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Re: Quantum of Compensation.

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MFA No.100787/2017.

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In the present case, from the medical evidence

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on record it is proved that the claimant had suffered the following injuries.

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“Abrasion over right chin 1 cm x 1 cm; Tenderness over right hip joint; Blunt injury over right side of chest; Blunt injury over lower back; Tenderness over right side of lower half of face.”

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The tribunal has awarded compensation under

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various heads as under:

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Sl. No.	Heads.	Amount in (Rs.)
1.	Pain and suffering.	30,000
2.	Medical expenses.	20,568
3.	Food and nourishment.	5,000
4.	Attendant charges.	5,000
5.	Loss of future income.	1,29,600
	Total:	1,90,168

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HC-KAR

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Considering the nature of injuries sustained,

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

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Considering the injuries sustained, a

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compensation of Rs.45,000/- towards pain and suffering, Rs.25,000/- towards loss of amenities are awarded. The compensation awarded towards medical expenses and hospital charges of Rs.20,568/- is as per the actual bills and receipts produced; therefore, the same is kept intact. Further, Rs.20,000/- towards incidental expenses like food, nourishment, travelling, attendant charges, etc., is awarded.

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The doctor PW.3 has stated that the claimant had suffered permanent physical disability of 40%. The claimant has suffered tenderness over right hip joint, blunt injury over right side of chest, blunt injury over lower back and tenderness over right side of lower half of face. Therefore, the disability considered by the tribunal at 15% is on lower side. The same is to be considered at 20%. Therefore,

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considering the evidence of the doctor and the injuries sustained by the claimant, 20% functional disability is taken into consideration as the claimant had suffered fracture and multiple injuries as stated above.

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The accident is caused on 14.06.2006. The claimant was a mason by profession. Therefore, in the absence of proof of income, notional income of Rs.3,750/per month is to be taken into consideration for the accident year 2006, which is recognized by the Karnataka State Legal Service Authority. The claimant was aged 30 years at the time of accident. Therefore appropriate applicable multiplier is 17. Hence, loss of future income due to disability is hereby

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re-assessed and quantified as Rs.1,53,000/- (Rs.3,750 x 20% x 12 x 17).

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Further, a sum of Rs.11,250/- is awarded towards

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loss of income during laid up period for a period of three months (Rs.3,750/- x 3 months).

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Thus, the claimant is entitled for total

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compensation under various heads as under:

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HC-KAR

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Pain and suffering.	45,000
2.	Loss of amenities.	25,000
3.	Medical expenses and hospital charges.	20,568
4.	Loss of income during laid up period and medical treatment period.	11,250
5.	Incidental charges like attendant charges, food, nourishment, conveyance, etc.,.	20,000
6.	Loss of future earning capacity.	1,53,000
	Total:	2,74,818

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Therefore, the claimant is entitled for total compensation of Rs.2,74,818/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,90,168/- awarded by the Tribunal. The respondent KSRTC is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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MFA No.100788/2017.

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In the present case, from the medical evidence on record it is proved that the claimant had suffered the following injuries.

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HC-KAR

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“Blunt injury over right shoulder; Abrasion over front of right ankle ½ cm x ½ cm; Blunt injury over lower back; Blunt injury over left hip.”

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The tribunal has awarded compensation under

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various heads as under:

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Sl. No.	Heads.	Amount in (Rs.)
1.	Pain and suffering.	35,000
2.	Medical expenses.	24,315
3.	Food and nourishment.	5,000
4.	Attendant charges.	5,000
5.	Loss of future income.	1,45,800
	Total:	2,15,115

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Considering the nature of injuries sustained,

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

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Considering the injuries sustained, a

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compensation of Rs.50,000/- towards pain and suffering, Rs.25,000/- towards loss of amenities are awarded. The compensation awarded towards medical expenses and hospital charges of Rs.24,315/- is as per the actual bills and

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receipts produced; therefore, the same is kept intact. Further, Rs.20,000/- towards incidental expenses like food, nourishment, traveling, attendant charges, etc., is awarded.

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The doctor PW.3 has stated that the claimant had suffered permanent physical disability of 45%. The claimant has suffered blunt injury over right shoulder, abrasion over front of right ankle ½ cm x ½ cm, blunt injury over lower back and blunt injury over left hip. Therefore, the disability considered by the tribunal at 15% is on lower side. The same is to be considered at 20%. Therefore, considering the evidence of the doctor and the injuries sustained by the claimant, 20% functional disability is taken into consideration as the claimant had suffered fracture and multiple injuries as stated above.

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The accident is caused on 14.06.2006. The

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claimant was a mason by profession. Therefore, in the absence of proof of income, notional income of Rs.3,750/per month is to be taken into consideration for the accident year 2006, which is recognized by the Karnataka State Legal

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HC-KAR

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Service Authority. The claimant was aged 20 years at the time of accident. Therefore appropriate applicable multiplier is 18. Hence, loss of future income due to disability is hereby re-assessed and quantified as Rs.1,62,000/- (Rs.3,750 x 20% x 12 x 18).

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Further, a sum of Rs.11,250/- is awarded towards loss of income during laid up period for a period of three months (Rs.3,750/- x 3 months).

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Thus, the claimant is entitled for total

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compensation under various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Pain and suffering.	50,000
2.	Loss of amenities.	25,000
3.	Medical expenses and hospital charges.	24,315
4.	Loss of income during laid up period and medical treatment period.	11,250
5.	Incidental charges like attendant charges, food, nourishment, conveyance, etc.,.	20,000
6.	Loss of future earning capacity.	1,62,000
	Total:	2,92,565

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HC-KAR

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Therefore, the claimant is entitled for total

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compensation of Rs.2,92,565/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.2,15,115/- awarded by the Tribunal. The respondent KSRTC is directed to deposit the compensation within eight weeks from the date of receipt of a 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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i) The appeals in MFA No.21316/2011

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and MFA No.21317/2011 filed by the KSRTC are dismissed.

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ii) The appeals in MFA No.100787/2017

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and MFA No.100788/2017 filed by the claimants are allowed in part.

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iii) The judgment and award dated 02.11.2010, passed by the Additional Senior Civil Judge and Additional MACT, Itinerate Court,

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HC-KAR

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Byadagi, in MVC No.412/2007 and MVC

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No.413/2007, are modified.

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iv) The claimant in MFA No.100787/2017 (MVC No.412/2007) is entitled for total compensation of Rs.2,74,818/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,90,168/- awarded by the Tribunal.

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v) The claimant is not entitled for interest

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for the delayed period of 2219 days in filing the appeal in MFA No.100787/2017.

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vi) The claimant in MFA No.100788/2017 (MVC No.413/2007) is entitled for total compensation of Rs.2,92,565/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.2,15,115/- awarded by the Tribunal.

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