Punjab-Haryana High Court
Sanjay vs Balkishan Etc on 19 December, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:125238
1
FAO-4457-2006 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
104 FAO-4457-2006 (O&M)
Date of Decision: 19.12.2024
Sanjay ......Appellant
Vs.
Balkishan and others ......Respondents
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Ms. Tanya Vashisht, Advocate for
Mr. S.S.Nain, Advocate
for the applicant-appellant.
Mr. Suman Jain, Advocate with
Mr. Manmohan, Advocate
for the respondent -Insurance Company.
****
SUDEEPTI SHARMA J. (ORAL)
C.M. No. 20407-CII-2024 in C.M.17834-CII-2024 The present application has been filed seeking restoration of C.M.17834-CII-2024, which was dismissed for non-prosecution, vide order dated 08.11.2024, passed by this Court.
For the reasons mentioned in the application, which is duly supported by an affidavit, the same is allowed and C.M.17834-CII-2024 is ordered to be restored to its original number. C.M.17834-CII-2024 in/and FAO No. 4457-2006 The present application has been filed seeking restoration of FAO No. 4457-2006, which was dismissed for non-prosecution, vide order dated 20.09.2024, passed by this Court.
For the reasons mentioned in the application, which is duly 1 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 2 FAO-4457-2006 (O&M) supported by an affidavit, the same is allowed and FAO-4457-2006 is ordered to be restored to its original number and is taken on board today itself for disposal. FAO No. 4457-2006
1. The present appeal has been preferred against the award dated 06.05.2006 passed in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Gurgaon (for short, 'the Tribunal'), vide which the claim petition filed by the appellant/claimant was dismissed.
FACTS NOT IN DISPUTE
2. The brief facts of the case are that on 28.12.2002, at about 3.30 p.m., claimant/appellant while driving his motor cycle No. HR-26-Q-7560 on his correct left side and at a moderate speed was proceeding from Gurgaon towards his village. As he reached near Pachgaon chowk, situated at National Highway No.8, offending Jeep bearing registration No. HR-47-6302 driven by respondent No.1 in a rash, negligent and zig zag manner and without caring for traffic rules, by coming on wrong side took a wrong turn and hit against the motor cycle of the claimant/appellant. As a result of impact, claimant/appellant fell down and suffered injuries and, thus, became unconscious. Respondent No.1 after causing accident sped away alongwith his Jeep. Accident was stated to have taken place due to rash and negligent driving of Jeep No.HR-47-6302 by respondent No.1. Jeep was owned by respondent No.3 and was released on superdari to respondent No.2 and was insured with respondent No.4.
3. Upon notice of the claim petition, respondents appeared and denied the factum of accident/compensation.
4. From the pleadings of the parties, the Tribunal framed the following issues:-
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1. Whether the impugned accident was caused by respondent No.1 by driving vehicle No. HR-26-Q-7560 negligently?OPP
2. Whether the petitioner is entitled to any amount of compensation. If so, how much and from whom?OPP
3. Whether the respondent No.4 is exonerated from the liability, for the reasons indicated in the preliminary objections? OPR(3)
4. Relief.
5. After taking into consideration the pleadings and the evidence on record, the learned Tribunal dismissed the claim-petition. The relevant portion of the award reads as under:-
"Issue No. 1
7. Onus of this issue was upon claimant. Except bald statement of claimant himself, there is no other evidence. Though claimant examined PW-6 Lakhan Singh who had shifted the injured to the hospital, however, he has stated that when he reached the place, accident had already taken place. This version appears to be correct as the claimant was initially taken to civil hospital as unknown person as per deposition of PW-3 Dr.Neelam Thapar who medico legally examined the claimant initially.
Claimant in the claim petition has pleaded that on 28.12. 2002 he was riding motor cycle No.HR-26-Q-7560 and when he reached near Pachgaon chowk, Jeep No.HR-47-6302 coming from opposite direction rashly and negligently hit against his motor cycle. However, claimant while appearing as his own witness, has not uttered a word in this regard that while he was driving his motor cycle, offending Jeep caused the accident.
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8. FIR is on the file as Ex.P-1 and was lodged by one Kuldeep Singh son of Surjeet Singh. Even in the FIR, he has got recorded that he saw a crowd having collected at Pachgaon chowk and saw a motor cycle lying there and was told by some passers-by that Jeep No.6302(without giving any series of registration) had caused the accident. This kuldeep Singh is real uncle of claimant and has not been examined. Who told his Kuldeep Singh about jeep No.6302 having caused the accident has not come forward. The procedure being summary and Tribunal to hold an enquiry, even criminal case file was also summoned and perused which also did not reveal the motor cycle having been taken into possession or the presence of motor cycle at the place of accident or any photograph showing damage to the motor cycle. Even mechanical report of neither of Jeep; nor of motor cycle is on the criminal case file. Under these circumstances, except the bald statement of claimant himself that he was hit by Jeep No.HR-47-6302 cannot be accepted at its face value, as the claimant being interested witness had all reasons to depose in his own favour.
9. In Smt.Chand Kaur and others versus Mohinder Singh and others, 2001[1] Criminal Court Judgments 648, our own Hon'ble High Court in a case under the Motor Vehicles Act where presence of witness was found doubtful, claim petition was dismissed. Though claimant relied upon Judgment Karnataka State Road Transport Corporation versus K.Chandrasekhara Raju, 1999 ACJ 1462 on the point that when driver of bus was not produced an adverse inference was drawn, the judgment has not applicability as in the case in hand, claimant himself 4 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 5 FAO-4457-2006 (O&M) has failed to given cogent evidence pointing out involvement or negligence of Jeep No.HR-47- 6302 which might have caused the accident.
10.In the considered opinion of the Tribunal, Claimant has failed to discharge the onus under issue No.1. This issue is decided against the claimant and in favour of the respondents."
6. Hence the claimant/appellant filed the present appeal for grant of compensation.
SUBMISSIONS OF THE LEARNED COUNSELS FOR THE PARTIES
7. Learned counsel for the appellant contends that the learned Tribunal did not appreciate the evidence on record and wrongly dismissed the claim petition only on the ground that the appellant failed to discharge the onus under Issue No. 1.
8. Per contra, learned counsel for the respondent-Insurance Company, however, vehemently argues that the claim petition has rightly been dismissed. Therefore, he prays for dismissal of the appeal.
9. I have heard learned counsel for the parties and perused the whole record of this case.
Analysis of the Record
10. A perusal of the record shows that the learned Tribunal has failed to appreciate the evidence on record which apparently proves the factum of accident and negligence of driver/respondent No.1 .
11. Reference can be made to statement of PW1-Head Constable Nityananad No. 695, Police Line, Gurgaon, who in his statement stated that he brought the summoned record from the police station. Further in his cross 5 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 6 FAO-4457-2006 (O&M) examination, he stated that challan has also been presented against Bal Kishan s/o Siri Chand.
12. PW2-Neelam Thapar, Medical Officer, General Hospital, Gurgaon appeared in the witness box as PW2 and stated that on 28.12.2002 at 4:15 PM, she medico-legally examined an unknown person, who was in a drowsy condition. He had been brought to the hospital by two persons namely Bhim Singh son of Ganpat, r/o Pachgaon and Lakhan Singh son of Om Parkash r/o Pachgaon. She observed that the patient was drowsy. Pupils were normal size and sluggishly reacting to light. His BP was 110/70. Pulse rate was 72 per minute. Bleeding from nose was present and there was no other obvious injury, which could be detected. The patient was referred to Safdarjang Hospital, Delhi. Ex P2 is the copy of MLR.
13. Rajesh Kumar, Ahlmad while appearing in witness box as PW3 stated that he brought the summoned record of case titled State vs. Bal Kishan, bearing FIR No. 286 dated 29.12.2002 under Sections 279/337 IPC, P.S Bilaspur. Further that charges against Bal Kishan s/o Siri Chand, r/o Khor, P.S. Bilaspur were framed under Section 279/337 IPC on 30.11.2004 and the case was fixed for 13.10.2004 for evidence of the prosecution.
14. The claimant/appellant himself was examined as PW4 and in his statement he stated as under:-
"On 28.12.2002 I was proceeding from Gurgaon towards Bilaspur Toll Plaja. When I reached near Panchgaon Chowk. a jeep bearing registration No.HR-47-6302 came from Tauru side. It came over to the wrong hand side of the road and hit me inspite of my efforts to save myself. I was first brought to Govt. Hospital, Gurgaon. Thereafter, I was taken to Delhi. I 6 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 7 FAO-4457-2006 (O&M) was under treatment at Mool Chand Hospital, Delhi. I was hospitalised there from 28.12.2002 to 1.7.2003. I had sustained a head injury. It was on account of the head injury that medicines have been prescribed for me. On account of head injury I cannot run and cannot drive a motor cycle. Prior to the impugned accident, I was working as an electrician at Bilaspur Toll Plaza. I spent a sum of Rs.55,000/- on my treatment. My father and first cousins used to attend upon me in the hospital during the period of hospitalisation. Even after discharge from the hospital, I had to come at home for a period of eight months. I am still not feeling normal and I have to take medicines on regular basis. After discharge from the hospital, I used to visit the hospital, every fortnight and also once a month the after to collect medicines.
I used to get a salary of Rs.4000/- from the Bilaspur Plaza."
In his cross examination, his veracity could not be shaken.
15. Dr. Jawahar Garg, Neuro Surgeon, Mool Chand Hospital, Delhi while appearing as PW5 stated as under:-
"On 20.12.2002 I had treated Sanjay 28 years male, resident of Village Bhora Khurd, District Gurgaon, He was admitted to the hospital with the alleged history of road side accident. He was unconscious at the time of admission. He had vomitting, bleeding from the left ear and had one episode of conversion. C.T. Scan did not show any cross-abnormality.
7 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 8 FAO-4457-2006 (O&M) He remained unconscious for two days and on conservative treatment improved and was discharged on 7.1.2003. Discharge summary Ex. PA bears my signatures. He had also been visiting the OPD thereafter. The relevant OPD cards are Ex.P4 to Ex.P9. As recorded in the record Ex.P8, the patient had indicated weakness using the left side of his body. He also had delayed C.S.F. leak from the nose. by C.S.F. I suggest fracture in the base of the skull causing leak of the brain fluid through the nose."
16. Lakhan Singh s/o Om Parkash s/o Hoshiar Singh while appearing in witness box as PW6 deposed as under:-
On 28.12.2002, at about 3/3:30 PM, I was returning from my fields to my house. When I reached at Pachgaon Chowk, an accident had already taken place. The injured was brought by me to Civil Hospital, Gurgaon. From where he was referred to Safdarjang Hospital, Delhi. His name was ascertained to be Sanjay. After about, 45 minutes of our stay at Safdarjang Hospital, father of injured reached there. He took the injured on his own to Mool Chand Hospital, where he was hospitalized. Two police officials came there and examined me. My signatures were obtained by the medical officer, Civil Hospital, Gurgaon, on the MLR. Bhim Singh had also accompanied when we had taken the injured to the hospital and his signatures appear on the MLR."
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17. The statement of Dr. Neelam Thapar is corroborated by the statement of PW6-Lakhan Singh, who took the injured to the Civil Hospital, Gurgaon. His veracity could not be shaken.
18. Further Harish Kumar, Licence Clerk, SDM Office, Gurgaon while appearing as RW1 deposed that he brought the summoned record. The entry at Sr. No. 1002 of 1997 pertains to the issuance of driving licence in the name of Bal Kishan son of Siri Chand resident of Kho, Manesar for the period from 14.02.1997 to 13.02.2002. This licence authorized the holder to drive motor cycle, scooter, car and jeep. It was renewed on 03.01.2003 upto 02.01.2006. LTV authorization was added w.e.f 03.01.2003.
19. A perusal of the above statement shows that respondent No. 1 was holding a valid driving licnece on the date of the accident. This witness was not cross examined by the Insurance Company. Thus, it is proved that the accident had taken place due to rash and negligent driving of respondent No. 1
20. Since, in the present case, FIR was duly registered against the driver of the tractor i.e Balkar Puri and the challan was also filed against the driver, the Tribunal has erred in law in dismissing the claim petition of the appellant/claimant. Once the driver was facing trial, it was sufficient to held that the accident had taken place due to his rash and negligent driving.
21. On the touchstone of hereinabove discussed findings and judicial precedent, the award dated 06.05.2006 passed by learned Tribunal, Gurgaon, stands vitiated by a complete absence of application of judicial mind.
22. Since Issue No. 2 i.e "Whether the petitioner is entitled to any amount of compensation. If so, how much and from whom?" was not decided by the learned Tribunal, therefore, this Court decides as follows:-
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(a) As per record, the appellant received injuries i.e fracture in the base of the skull causing leak of the brain fluid through the nose. In view of the above stated injuries, the appellant is entitled for compensation on account of the injuries suffered by him in the accident.
SETTLED LAW ON COMPENSATION
23. Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation and Another [(2009) 6 Supreme Court Cases 121], laid down the law on assessment of compensation and the relevant paras of the same are as under:-
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having a considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, 10 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 11 FAO-4457-2006 (O&M) subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings, only d the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
* * * * * *
42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas³, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-
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24. Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following aspects:-
(A) Deduction of personal and living expenses to determine multiplicand;
(B) Selection of multiplier depending on age of deceased; (C) Age of deceased on basis for applying multiplier; (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation; (E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed or fixed salary.
The relevant portion of the judgment is reproduced as under:-
"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh². It has granted Rs.25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any 12 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 13 FAO-4457-2006 (O&M) quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.
* * * * * 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition 13 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 14 FAO-4457-2006 (O&M) should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed (or) on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. 59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma⁴ which we have reproduced hereinbefore.
59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma¹ read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier.
59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
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25. Hon'ble Supreme Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Others [2018(18) SCC 130] after considering Sarla Verma (supra) and Pranay Sethi (Supra) has settled the law regarding consortium. Relevant paras of the same are reproduced as under:-
"21. A Constitution Bench of this Court in Pranay Sethi² dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation".
21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training".
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An 15 of 18 ::: Downloaded on - 22-12-2024 06:29:22 ::: Neutral Citation No:=2024:PHHC:125238 16 FAO-4457-2006 (O&M) accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.
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24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi². In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium.
CONCLUSION
26. In view of the law laid down by the Hon'ble Supreme Court in the above referred to judgments, the present appeal is allowed. The award dated 06.05.2006 is hereby set aside. The appellant-claimant is held entitled to compensation as per the calculations made here-under:-
HEAD COMPENSATION AMOUNT
Medical Expenses Rs.30,000/-
Pain and suffering Rs.40,000/-
Attendant Charges Rs.15,000/-
Transportation Charges Rs.10,000/-
Loss of amenities Rs.30,000/-
Special Diet Rs.10,000/-
Total compensation awarded:- Rs.1,35,000/-
27. So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nadu State Transport Corporation (2022) 5 Supreme Court Cases 107, the appellant-claimant is granted the interest @ 9% per annum on the compensation amount from the date of filing of claim petition till the date of its realization.
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28. The Insurance Company is directed to deposit the amount of compensation along with interest with the Tribunal within a period of two months from today. The Tribunal is further directed to disburse the amount of compensation along with interest in the accounts of the claimant/appellant. The claimant/appellant is directed to furnish the bank account details to the Tribunal.
29. Further Insurance Company is directed to disburse the current schedule fee to Mr. Suman Jain, Advocate, within a period of twenty days from the date of receipt of copy of this judgment.
30. Disposed of accordingly.
31. Pending applications, if any, also stand disposed of.
(SUDEEPTI SHARMA) JUDGE 19.12.2024 G Arora Whether speaking/non-speaking : Speaking Whether reportable : Yes 18 of 18 ::: Downloaded on - 22-12-2024 06:29:22 :::