Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Smt. Rita Sharma & Others on 20 November, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 4228 of 2013 along with Cross objections No. 10 of 2014.
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Reserved on : 13th November, 2018.
Decided on : 20th November, 2018.
Oriental Insurance Company Ltd. .....Appellant.
Versus Smt. Rita Sharma & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Ashwani K. Sharma, Sr. Advocate with Mr. Jeevan Kumar, Advocate.
For Respondents No.1 to 4/Cross-objectors: Mr. Y. P. Sood, Advocate.
For Respondent No.5: Mr. D.S. Kainthla, Advocate.
Sureshwar Thakur, Judge.
The instant appeal stands directed by the aggrieved respondent/appellant herein, against the award pronounced, upon, Claim Petition No. 39-S/2 of 2010, (i) whereunder, vis-a-vis, the compensation amount, as stood determined qua the 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 24/11/2018 22:56:24 :::HCHP
...2...
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claimants/respondents No.1 to 4 herein, the, apt indemnificatory liability thereof hence stood fastened, upon, it, (ii) whereas the claimants/respondents No.1 to 4 herein/cross-objectors, also prefer cross-objections, vis-a-
vis, the impugned award, whereunder, they seek
2. to enhancement, of, compensation amount.
The liability, for, liquidating the compensation amount, as, assessed under the impugned award, stands fastened, upon, the insurer of the offending vehicle. The learned counsel appearing for the insurer/appellat herein has contended with much vigour, before, this Court that
(i) with the apposite driving licence borne in Mark-C, being testified, by the clerk concerned, of, the licencing authority located at Agra, while his rendering his deposition, in, Workmen Compensation petition bearing Case No.RBT 14/2 of 11/2010, qua the afore driving licence not standing issued from the afore licencing authority concerned, (ii) thereupon, the fastening of the ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...3...
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apposite indemnificatory liability, upon, the insurer rather being both infirm, and, frail. He strengthens his afore submission, by contending with vigour, (iii) that, with RW-
2, while proving the abstract of pariwar register, embodied in Ex.RW2/A, (iv) and, with the latter exhibit hence making clear voicings qua at the time of issuance, of, the afore licence, the driver concerned being aged lesser, than, the age whereat he could be issued any driving licence, (v) and, hence thereupon, Mark-C, being wholly ridden with falsity, and, the further concomitant effect thereof being qua the owner of the offending vehicle, who, executed a contract of insurance, vis-a-vis, the insurer, per se hence not exercising reasonable care, and, diligence, dehors, the fakeness, and, unauthenticity of the driving licence, of the driver concerned, (vi) and, its, further, apt effect thereof being qua the owner of the offending vehicle, not, standing entitled to derive any benefit from decisions, of, the Hon'ble Apex Court, ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...4...
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rendered in a case titled as National Insurance Company Ltd. v. Swaran Singh, reported in (2004)3 SCC 297, and, from a verdict rendered in a case titled as PEPSU Road Transport Corporation vs. National Insurance Company, reported in (2013)10 SCC 217.
In nutshell, he
contends that
indemnificatory liability, vis-a-vis, the apt compensation r the apposite amount, being enjoined to be fastened, upon, the owner of the offending vehicle.
3. Apparently, there is no wrangle, qua, Mark-C, being unauthentic or fake. However, the effect, of, its unauthenticity, and, fakeness, rather stands propounded in Swaran Singh's case (supra) {(2004)3 SCC 297} in para 110 thereof, para whereof stands extracted hereinafter:-
"110. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...5...
legislation to extend relief by compensation to victims of accidents caused by use of motor .
vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as toeffectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' onthe part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...6...
unless the said breach or breaches on the condition of driving licence is/ are so fundamental .
as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...7...
insurer has satisfactorily proved its defence in .
accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...8...
might delay the adjudication of the claims of the .
victims."
Conspicuously, in clauses (i), (iii), (iv), (v), (vi), (vii), and, in clause (x) thereof, (a) to not constitute any valid ground for the insurer, to hence exculpate its liability rather it being permissible, for the MACT concerned, to initially direct the insurer, to deposit the compensation amount, and, thereafter liberty being reserved, vis-a-vis, the insurer to recover it, under, the statutory contemplated mode enshrined in Section 174, of, the Motor Vehicles Act.
4. Nowat, the learned counsel appearing, for the insurer, depends upon the testification of RW-2, who, has proven the abstract of pariwar register embodied, in Ex.RW2/A. On a perusal thereof, it is apparent, that, the driver concerned was at the time of issuance of Mark-C, merely 14 years old, and, when, his apparent minority was ex-facie discoverable by the owner, who employed him, as, a driver upon the offending vehicle, (i) ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...9...
.
thereupon, per se, there being apparent lack of exercise, of due care and diligence by the owner, of, the offending vehicle, in engaging him as a driver thereon, (ii) hence, the apposite indemnificatory liability being fastenable, upon, the owner concerned. Since, the afore espousal, is, wholly anchored upon to the afore exhibit, Ex.RW2/A, thereupon, sanctity thereof, is to be gauged.
r borne in However, a reading of the deposition of RW-2, comprised in his cross-examination unfolds qua the entries in the abstract, of Pariwar Register, being made in consonance, with, the apt reflections, occurring in the birth register.
He has also further echoed in his cross-examination, that, at the time of recording of his deposition, his, not carrying with him the apposite birth register, given it not standing summoned. Despite RW-2, making the afore echoings, in his cross-examination, yet, the counsel for the insurer rather omitted to summon the birth register, for, ensuring qua the reflection(s) occurring in Ex.RW2/A, ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...10...
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standing sequeled, by deference being meted, to the apposite birth register, (ii) and, wherefrom rather it was garnerable, whether the reflections, occurring in the pariwar register, stood hence borrowed therefrom, and, concomitantly, theirs hence acquiring sanctity, (iii) omission whereof, contrarily erodes, the efficacy of the submission, of the learned counsel for the insurer, that, the owner of the offending vehicle, at the time of his engaging the driver concerned, upon, the offending vehicle, his despite noticing the ex-facie minority, of, his employee, his yet engaging him thereon, (iv) and hence, his breaching the standards of due care, and, caution nor hence he can contend that the benefits, of the judgment rendered by the Hon'ble Apex Court in Swaran Singh's case (supra), being not recourseable by him or meted qua him.
5. Further more, the expostulation of law occurring, in a judgment rendered by the Hon'ble Apex ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...11...
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Court in PEPSU Road Transport Corporation vs. National Insurance Company, reported in (2013)10 SCC 217 (i) qua it being sufficient, dehors, fakeness of the driving licence, qua, the owner per se hence being inferable, to, evidently exercise reasonable care and diligence, in engaging a person as a driver, upon the offending vehicle, inference, of, exercise, of, diligence by him being firmly drawable, upon, mere engagement thereon, as obviously he would not beget endanger to his life, upon, engaging an improficient driver, unless contra therewith best evidence, stands adduced, (ii) and, hence it not being incumbent upon the owner concerned, to, verify the genuineness, of, the driving licence, issued from the licencing authority concerned, (iii) unless, at the time of execution of contract of insurance, the insurer insists, upon, the owner to verify, the, genuineness of the apposite driving licence, issued from the licencing authority concerned. Since, the insurer has not adduced ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...12...
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evidence, that, at the time of execution of contract of insurance, it hence insisting, upon, the owner of the offending vehicle, to verify the genuineness of the Mark-
C, (iv) thereupon, when apt evidence also remains unadduced, that, at the time of engagement, by the owner of the offending vehicle, of deceased, as, a driver thereon, he was unskilled or improficient in driving the category of the vehicle, whereon he was engaged as driver, hence, it is aptly concludable, that, the fastening of the indemnificatory liability, vis-a-vis, compensation amount, by the MACT concerned, upon, the insurer of the offending vehicle, is, neither erroneous nor is ingrained with any legal fallacy, rather falls within the ambit, of, verdicts supra.
6. The claimants/respondents No.1 to 4, through, the cross-objections bearing No. 10 of 2014, strived, to seek enhancement of compensation, as, assessed qua them. The learned tribunal had assessed, the, per ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...13...
.
mensem income, of, the deceased, to, stand borne, in, a sum of Rs.3300/-, and, obviously aptly discarded, the, testification rendered by PW-4 Smt. Rita Shrma, wherein, she had voiced qua her deceased husband hence earning horticulture and agricultural income, borne in a sum of Rs.45,000/- per mensem.
to However, in support of the afore oral testification, as, rendered, r by the claimant, vis-a-vis, the per mensem income reared by the deceased, no documentary evidence stood adduced, hence, in absence of any documentary evidence qua the rearing, of any income by the deceased, from, his horticulture and agriculture crops, rather the learned tribunal aptly concluded qua the deceased, drawing an income of Rs.3300/- per mensem.
7. Be that as it may, the learned counsel appearing for the claimants, has canvassed with much vigour, before this Court, that, the non meteing of incremental hikes, vis-a-vis, the afore income, rather ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...14...
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being ridden, with, a gross fallacy, (i) and when he anchors, the aforesaid submission, upon, the apt mandate of the Hon'ble Apex Court, as, borne in the judgement rendered by the Hon'ble Apex Court, in, a case titled as National Insurance Co. Ltd. vs. Pranay rather vindicating, r to Sethi and others, reported in 2017 ACJ 2700, given, it monetary hikes towards future incremental prospects, vis-a-vis, any income reared, by, the self employed deceased or qua income reared from rendering services with a non governmental organization or entity, (ii) whereas, with the deceased, being self employed or being aged more than 28 years, it being incumbent, to mete 40% hikes towards, future incremental prospects. The afore submission, rather finds strength, given, the Hon'ble Apex Court in Pranay Sethi's case (supra) rather validating the meteing of hikes, vis-a-vis, future incremental prospects, even qua a self-employed deceased, being aged more than 38 years, ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...15...
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as, the deceased hereat evidently, is. The relevant paragraphs whereof stand extracted hereinafter:-
"57. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...16...
balance between the two extremes, that is, a windfall and the pittance, a bonanza and the .
modicum. In such an adjudication, the duty of the tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. We approve the principle of "standardization" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.
58. The seminal issue is the fixation of future prospects in cases of deceased who is self-
employed or on a fixed salary. Sarla Verma (supra) has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.
59.Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...17...
be entitled to the benefit of future prospects for the purpose of computation of compensation .
would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self- employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...18...
adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the .
inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life,etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
60. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts. "
(p.2721-2722)
8. Since the postmortem report reflects, qua the deceased being aged 38 years, at the relevant time, hence with the afore extracted paragraph, mandating, ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...19...
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qua, accretions towards future prospects, vis-a-vis, the per mensem income of the the deceased, being pegged upto 40% thereof. Consequently, after meteing 40% increase(s), vis-a-vis, the apposite per mensem income of the deceased, (i) thereupon, the relevant per mensem [Rs.3300/-(per r mensemto income of the deceased is recoknable at Rs.4620/-, income of the deceased) +Rs.1320/-(40% of the per mensem income of the deceased). Significantly, the number of dependents, of, the deceased, are, two, hence, 1/3rd deduction is to be visited, upon, a sum of Rs.4620/-. Consequently, the monthly dependency, including the future hikes towards incremental prospects, is, worked out, now at Rs.3080/-
(Rs.4620-Rs.1540/- (1/3rd of the income of the deceased). In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is, computed, at Rs.3080/- x 12=Rs.36,960/-. After applying thereon the apposite multiplier of 15, the, total ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...20...
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compensation amount, is assessed in a sum of Rs.36,960 x 15=Rs.5,54,400/- (Rs. Five lacs, fifty four thousands and four hundred only).
9. Furthermore the learned tribunal concerned, in conflict with the verdict of the Hon'ble Apex Court rendered in a case titled as National Insurance Co.
Ltd. vs. Pranay Sethi and others, reported in 2017 ACJ 2700, assessed a sum of Rs. 10,000/-, under, the head "Loss of estate" a sum of Rs. 10,000/- under the head of "Funeral charges", a sum of Rs.5,000/-, under the head "Transportation Charges" and a sum of Rs.
Rs.10,000/- under the head "loss of consortium, to, petitioner No.1". Consequently, the assessment of compensation, under, the head "Transportation charges"
borne, in a sum of Rs. Five thousand, vis-a-vis, the claimants is set aside, whereas, quantification of compensation, under, the head "funeral expenses" in a sum of Rs.10,000/-, vis-a-vis, the claimants, is, increased ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP ...21...
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to Rs.15,000/-, as also, the quantification of compensation, under, the head "loss of consortium to petitioner No.1" borne in a sum of Rs.10,000/-, is increased to Rs.40,000/-, and, further quantification of compensation under the head "Loss of Estate" borne in a
9. to sum of Rs.10,000/-, is, increased to Rs.15,000/-.
For the foregoing reasons, the appeal filed by the insurer is dismissed, and, the cross-objections instituted by the cross-objectors/claimants are partly allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the petitioners, are, held entitled to a total compensation of Rs.6,24,400/-
(Rs. Six lacs, twenty four thousands and four hundred only), along with pending and future interest @7.5 % per annum, from, the date of petition till the date, of, deposit, of the compensation amount. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment.
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Compensation amount be apportioned, amongst the claimants as ordered by the learned tribunal. The share of the minor petitioner No.2 (respondents No. 2 herein), shall remain invested, in FDRs, upto, the stage of his attaining majority. However, interest accrued thereon, shall be releasable vis-a-vis his mother, only when she explains, of, its being required, r for, the upkeep and benefit of the minor child. All pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) th 20 November, 2018. Judge.
(jai) ::: Downloaded on - 24/11/2018 22:56:24 :::HCHP