Delhi District Court
Smt. Santosh Gupta vs Mohd. Akil on 3 August, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No.: 11/16
Unique Case I.D No.: MACT/1163/2010
1. Smt. Santosh Gupta
W/o Sh. Radhey Shyam Gupta
..... Mother
2. Sh. Radhey Shyam Gupta
S/o Late Ram Lal Gupta
..... Father
Residents of:
H. No. J-7, Ground Floor,
Laxmi Nagar, Delhi-110092
..... Petitioners
VERSUS
1. Mohd. Akil
S/o Sh. Mohd. Abdulla @ Bhura
R/o Deepa Sarai Colony, Gali No. 3,
near Shiv Mandir, Sambhal, Moradabad,
U.P.
Present Add:
H. No. 17, Gharauli Dairy Farm,
Mayur Vihar, Phase-III,
Delhi
..... Driver
2. R. Rajesh
S/o Sh. Ramakrishan
R/o C-1/44A, Pocket C-1,
Mayur Vihar, Phase-III,
Delhi
..... Registered Owner
3. The Oriental Insurance Co. Ltd.
F-14 & F-20, U.I.L. Building,
Connaught Place, New Delhi-110001
..... Insurer
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4. Tajuddin
S/o Sh. Mazid
R/o H. No. B-378, Gharauli Diary Farm,
Mayur Vihar-III, Delhi
..... Owner in Possession
5. Mrs. Aarti Rajpal
W/o Late Jitender Gupta
..... Wife
6. Master Krish Rajpal
S/o Late Jitender Gupta
..... Son
Residents of:
R/o H. No. B-103, Mansa Ram Park,
Uttam Nagar, New Delhi
..... Respondents
Date of Institution : 19.12.2009
Date of Reserving : 20.07.2018
Date of Judgment : 03.08.2018
JUDGMENT
PLEADINGS:
1. Mr. Jitender Gupta, (the deceased), 32 years, born on 22.08.1977, died consequent to 'cranio-cerebral damage' suffered in a motor vehicular accident that occurred at 9.50 p.m. on 01.12.2009 on Pusta Road, near Lalita Park, Laxmi Nagar, Delhi-110092 while he was riding motorcycle bearing registration No. DL 7S AP 4949 (motorcycle) when rural transport vehicle bearing registration No. DL 1VA 0920 (RTV) allegedly driven in high speed in a rash and negligent manner by the respondent No. 1 had hit the motorcycle. The parents, the wife and minor son of the deceased instituted an accident claim case for seeking compensation impleading, inter alia, the driver, registered owner, insurer and subsequent owner as the respondent No. 1 to 4 respectively.
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2. It may be noted that detailed accident report (DAR) was instituted under section 166 (4) of the Motor Vehicles Act, 1988 (MV Act) in the context of FIR No. 727/2009, initially, registered under section 279/337 of the Indian Penal Code, 1860 (IPC) at PS Shakarpur, Delhi.
3. The respondent No. 1, in his written statement, contended that he had not caused any accident. According to him, the deceased was driving the motorcycle in drunken condition in rash and negligent manner on the wrong side of the lane. The deceased had overtaken RTV from left side and the motorcycle slipped and the deceased fell down on the road. He contended that he had stopped his vehicle to help the deceased. He claimed false implication.
4. The respondent No. 2, in his written statement, contended that he is not the real owner of RTV. He stated that he sold RTV to the respondent No. 4 on 08.12.2008.
5. The respondent No. 3 / insurer, in its written statement, conceded that RTV was insured with it for the period from 09.07.2009 to 08.07.2010 in the name of the respondent No. 2. It contended that its liability is subject to the proof of valid and effective driving license of the respondent No. 1.
6. Subsequently, the respondent No. 4 was impleaded, vide order dated 04.07.2013, on the application of the petitioner under Order 1 Rule 10 CPC.
7. The respondent No. 4, in his written statement, contended that he had engaged the respondent No. 1 after taking driving test and verifying his driving license.
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8. According to the respondent No. 4, RTV was not transferred in his name as the respondent No. 2 filed an objection with the concerned authority. He stated that he was not the registered owner of RTV.
9. The respondent No. 2, in his amended written statement, reiterated that he had sold RTV to the respondent No. 4 on 08.12.2008. He contended that he had applied to the concerned authority for transfer of permit in the name of the respondent No. 4 on 21.02.2009.
10. The respondent No. 3 / insurer, in its amended written statement, contended that the driving license of the respondent No. 1 is a fake license. It contended that the respondent No. 1 was not holding a valid and effective driving license. It denied its liability to pay compensation to the petitioners.
11. On an application under Order 1 Rule 10 CPC, the wife and son of the deceased were transposed as the respondent No. 5 and 6.
ISSUES:
12. On the pleadings, following issues were framed:
(i) Whether Mr. Jitender Gupta, died as a result of injuries suffered in a motor vehicular accident on 01.12.2009 at about 9.50 p.m. at Pusta Road, near Lalita Park Cut, Laxmi Nagar, Delhi-110092 due to rash and negligent driving of motor vehicle bearing registration No. DL 1 VA 0920 (mini bus) by the respondent No. 1 / Mohd. Akil?
(OPP)
(ii) Whether there was contributory negligence on the part of the deceased in causing the accident, if so, its extent?
(OPR3)
(iii) Whether the respondent No. 1 was holding a valid and effective driving license, if not, its effect?
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(iv) Whether the petitioners / parents of the deceased and the respondent No. 5 and 6 / wife and minor child of the deceased are entitled to compensation, if so, to what amount and from whom?
(OPP)
(v) Whether the petitioners / parents of the deceased and the respondent No. 5 and 6 / wife and minor child of the deceased are entitled to interest on the award amount, if so, at what rate of interest and for which period?
(OPP)
(vi) Relief.
PETITIONER'S EVIDENCE:
13. Sh. Radhey Shyam Gupta, father of the deceased appeared as PW-1. He filed evidence by way of affidavit Ex.P1.
He relied on copy of ration card Ex.PW1/1, copy of his voter I- card Ex.PW1/2, copy of voter I-card of Smt. Santosh Gupta Ex.PW1/3, copy of voter I-card of Arti Ex.PW1/4, copy of birth certificate of Krish Gupta Ex.PW1/5, copy of PAN card of the deceased Ex.PW1/6, copy of salary slip of the deceased Ex.PW1/7 and detailed accident report (DAR) Ex.PW1/8.
14. Sh. Pawan Gupta, brother of the deceased appeared as PW-2. He filed evidence by way of affidavit Ex.PW2/A. He deposed the manner of the accident.
15. PW-3 Ajay Parihar, Field Executive, ATS Business Services Pvt. Ltd., B-324, New Friends Colony, Delhi deposed that Mr. Jitender Kumar Gupta was employed as 'supervisor' and he was drawing salary in the sum of Rs. 18,500/- per month. He proved the appointment letter of the deceased Ex.PW3/A, copy of attendance register Ex.PW3/B (colly) and salary slips of the deceased for the month of October, 2009 and November, 2009 Ex.PW3/C (colly).
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16. R2W1 Santosh Kumar, Dealing Assistant, STA, Rajpura Road, Delhi proved the application for transfer of permit Ex.R2W1/A, copy of the application for transfer of the vehicle in the name of the respondent No. 4 Ex.R2W1/B, affidavit of the respondent No. 2 Ex.R2W1/C, affidavit Ex.R2W1/D and indemnity bond of the respondent No. 4 Ex.R2W1/E.
17. R3W1 Vikram Singh, Assistant, Oriental Insurance Co. Ltd. proved copy of insurance policy Ex.R3W1/A, copy of notice under Order 12 Rule 8 CPC issued to the respondent No. 1 Ex.R3W1/1, copy of notice under Order 12 Rule 8 CPC issued to the respondent No. 2 Ex.R3W1/2, postal receipts Ex.R3W1/3 to Ex.R3W1/7, report of investigator Ex.R3W1/8, extract of driving license on Form 54 Ex.R3W1/9 and report of concerned Motor Licensing Officer (MLO) Ex.R3W1/10. He deposed that the driving license of the respondent No. 1 is a fake license.
18. R3W2 Anal Bihari Sahai, Clerk, Transport Authority, Mathura brought the summoned record in respect of driving license No. 11683/MTR/2007. He stated that the said driving license was issued on 20.08.2007 in the name of Ms. Rashmi for the period from 20.08.2007 to 19.08.2027 for driving motorcycle and light motor vehicle (LMV). He stated that said driving license was not issued in the name of the respondent No. 1 which is Mark 'A'.
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19. The respondent No. 4 appeared as R4W1. He filed evidence by way of affidavit Ex.R4W1/A. He stated that he is not the registered owner of RTV. He stated that he had engaged the respondent No. 1 after taking driving test and verifying his driving license.
FINAL ARGUMENTS:
20. I have heard arguments of Sh Dhiraj Kulshreshtha, Advocate for the petitioners, Sh. Ravi Prakash, Advocate for the respondent No. 1, Sh. Pankaj Bhushan, Advocate for the respondent No. 2, Ms. Shalini Upadhyay, Advocate for the respondent No. 3 / insurer, Sh. A.K. Mehta, Advocate for the respondent No. 4 and Sh. Jitender Kumar, Advocate for the respondent No. 5 and 6, and perused the evidence, oral and documentary, on the file of the tribunal. ISSUE NO. 1:
21. In an action instituted on the principle of fault liability under section 166 of the MV Act, the petitioners must prove involvement of the offending vehicle, and rash and negligent driving thereof. Standard of proof is not that stringent as that applied in criminal cases that is proof beyond reasonable doubts. In claims founded on tort liability, the principle of preponderance of probabilities applies.
22. The petitioners, in order to prove rash and negligent driving of RTV, examined PW-2 Pawan Gupta. He deposed, on the strength of affidavit Ex.PW2/A, the mode of the accident. He deposed that on 01.12.2009 at about 9.50 p.m., he was going towards Pandav Nagar on his motorcycle and the deceased was moving on the other motorcycle ahead of him.
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23. PW-2 Pawan Gupta deposed that when they reached Pusta Road, Lalita Park Cut, Laxmi Nagar, Delhi, RTV bearing registration No. DL 1 VA 0920 came from the side of Gandhi Nagar in high-speed and hit the motorcycle of the deceased. He was cross-examined by counsel for the respondent No. 1 and 2. However, there is nothing in his cross-examination which can discredit him. He deposed that the accident was caused from the left side of RTV. It may be noted that the respondent No. 1, in his written statement, had stated that the deceased was driving the motorcycle in drunken condition in wrong side of the lane and overtaken RTV from its left side and as a result, the motorcycle slipped on the road and the deceased fell on the road. He also stated that he had stopped to help the deceased. However, he has not put forth his case to PW-2 Pawan Gupta. It is further relevant to note that PW-2 Pawan Gupta was not cross-examined by counsel for the respondent No. 3 / insurer, on the aspect of rash and negligent driving of RTV. The evidence of PW-2 Pawan Gupta is corroborated by the criminal case record. Mechanical Inspection Report (MIR) of RTV would show that RTV suffered extensive damage on its front portion. Motorcycle of the deceased suffered serious damage on its front and left part.
24. It is therefore, evident that RTV had hit the motorcycle of the deceased with its left side. However, the respondent No. 1 has not explained as to why he could not avoid the collision. In the accident of this nature, the burden to prove the contrary primarily lies on the driver of vehicle which was on the rear.
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25. The manner of the accident and the resultant damage to RTV and the motorcycle and the evidence of PW-2 Pawan Gupta would show that RTV driven by the respondent No. 1 had hit the motorcycle of the deceased from behind and due to the forceful impact of the collision, the deceased suffered cranio- cerebral damage which proved fatal.
26. It is therefore, proved that the deceased died due to the accident caused by rash and negligent driving of RTV driven by the respondent No. 1.
27. Accordingly, issue No. 1 is decided in favour of the petitioners and the respondent No. 5 and 6 and against the respondent No. 1 to 4.
ISSUE NO. 2:
28. The respondent No. 3 / insurer had pleaded that there was contributory negligent on the part of the deceased in causing the accident. However, it has neither cross-examined PW-2 Pawan Gupta nor led any evidence on this aspect. Accordingly, issue No. 2 is decided in favour of the petitioners and the respondent No. 5 and 6 and against the respondent No. 1 to 4.
ISSUE NO. 3:
29. The respondent No. 3 / insurer pleaded breach of terms and conditions of insurance policy on the ground that the respondent No. 1 / driver of RTV was holding a fake license. It has examined R3W2 Anal Bihari Sahai, Record Clerk, Mathura Transport Authority. He proved that DL No. 11683/MTR/07 was issued in the name of Ms. Rashmi for the period from 20.08.2007 to 19.08.2027 for motorcycle and LMV only.
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30. R3W2 Anal Bihari Sahai proved a copy of license register Ex.R3W2/1. He proved that license Mark 'A' was not issued to the respondent No. 1. It is proved that the driving license, as relied by the respondent No. 1, is a fake license.
31. The case of the respondent No. 2 / registered owner is that he had sold RTV to the respondent No. 4 on 08.12.2008.
He examined R2W1 Santosh Kumar, Dealing Assistant, STA, Rajpur Road, Delhi. He proved that an application for transfer of RTV bearing registration No. DL 1 VA 0920 Ex.R2W1/B was filed by the respondent No. 2 and 4 on 21.02.2009. He proved that an application for transfer of permit of RTV Ex.R2W1/A was filed by the respondent No. 2 and 4 on 13.01.2009. He proved affidavit sworn by the respondent No. 2 Ex.R2W1/C and by the respondent No. 4 Ex.R2W1/D. He proved indemnity bond Ex.R2W1/E executed by the respondent No. 4. It is therefore, proved that the respondent No. 2 had sold RTV to the respondent No. 4 on 13.01.2009. He has not stated the reason for not registering RTV in the name of the respondent No. 4. Failure of registering authority in not transferring the ownership of RTV would not make the respondent No. 2 an owner of RTV. It is clear that the respondent No. 4 had got RTV released on superdari. RTV is in his possession. Superdari bond is Ex.R4W1/DX2. Therefore, it is proved that the respondent No. 4 is the real owner of RTV.
32. The respondent No. 4, in his evidence, categorically stated that he had taken the driving test of the respondent No. 1 and seen his driving license before employing him as a driver of RTV for a period of one week on 28.11.2009.
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33. There is no evidence that the respondent No. 4 was privy to the issuance of fake driving license to the respondent No. 1. Therefore, possession of fake driving license by the respondent No. 1 cannot be treated as breach of term and condition of insurance policy. The respondent No. 3 / insurer would be liable to pay compensation to the petitioners and the respondent No. 5 and 6. Accordingly, issue No. 3 is decided in favour of the respondent No. 1, 2 and 4 and against the respondent No. 3 / insurer.
ISSUE NO. 4:
34. The petitioners being parents and the respondent No. 5 and 6 being wife and minor son of the deceased are entitled to seek compensation for his death in the motor vehicular accident caused by rash and negligent driving of the insured vehicle by the respondent No. 1.
ASSESSMENT OF INCOME OF THE DECEASED:
35. First step towards computation of loss of dependency is the ascertainment of income of the deceased.
36. The case of the petitioners, as pleaded in the petition, was that the deceased was employed as a 'supervisor' in ATS Business Services (P) Ltd. at salary of Rs. 18,300/- per month.
They examined PW-3 Ajay Parihar, Field Executive, ATS Business Services Pvt. Ltd. to prove the employment and salary of the deceased. He proved appointment letter of the deceased Ex.PW3/A. He proved attendance register for the period from January, 2009 to March, 2010 Ex.PW3/B (colly, 15 sheets). He proved salary slips of the deceased for the month of October, 2009 and November, 2009 Ex.PW3/C (colly).
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37. The evidence led by the petitioners, on the aspect of employment and salary of the deceased, is unimpeachable and credit worthy. According to the appointment letter Ex.PW3/A, the deceased was appointed as a 'supervisor' in ATS Business Services Pvt. Ltd. w.e.f. 05.05.2008. The terms and conditions of his employment would prove that the nature of the employment was permanent. Attendance register Ex.PW3/B (colly) would show that he was a regular employee of the said company. Salary slips for the month of October, 2009 and November, 2009 would show that he was drawing Rs. 18,500/- per month including 'Basic - Rs. 15,000/-, HRA - Rs. 3,000/- and Medical Allowance - Rs. 500/-'.
38. It is proved that the deceased was drawing net salary in the sum of Rs. 18,500/- per month.
DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
39. The deceased was survived by his parents, wife and minor son. The deceased was survived by four dependents. Therefore, one-fourth of his income is deducted towards his personal living expenses.
APPLICATION OF MULTIPLIER:
40. The deceased was 32 years old. His date of birth is mentioned as 22.08.1977 in PAN card Ex.PW1/6. Therefore, multiplier of 16 as applicable to age group between 31 to 35 years would apply.
FUTURE PROSPECTS:
41. The deceased was in permanent job. He was below 40 years.
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42. Following the judgment of the Hon'ble Supreme Court delivered on 31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd. vs. Pranay Sethi and Ors., there will be addition of income to the extent of 50%. LOSS OF DEPENDENCY:
43. Applying the multiplier of 16 after making deduction to the extent of one-fourth from the income of the deceased and addition of 50% of future prospects, the loss of dependency is computed as (18,500 x 150 / 100 x 3 / 4 x 12 x 16) = Rs. 39,96,000/-.
NON-PECUNIARY DAMAGES:
44. As per dispensation in Pranay Sethi (supra), Rs. 40,000/- towards loss of consortium and Rs. 15,000/- each on account of loss of estate and funeral expenses are added.
45. The compensation awarded to the petitioners is computed, as under:
Sl. No. Head of compensation Amount
1. Loss of dependency Rs. 39,96,000/-
2. Non-pecuniary (in view of Pranay Sethi (supra) Rs. 70,000/-
3. - Interim award Rs. 50,000/-
Total Rs. 40,16,000/-
INTEREST:
46. The accident claim case was dismissed for non- prosecution on 29.04.2016. It was restored on 19.01.2018. While restoring the accident claim case, it was directed that the petitioners will not entitled to interest for the intervening period. Accordingly, the petitioners and the respondent No. 5 and 6 shall not be entitled to interest on the award amount for the period from 29.04.2016 to 19.01.2018.
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47. The petitioners and the respondent No. 5 and 6 are awarded compensation in the sum of Rs. 40,16,000/- alongwith interest @ 9% per annum from the date of filing of the petition (19.12.2009) till the date of award (except the period from 29.04.2016 to 19.01.2018). The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petition till realization except the period stated above. [See: judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.] APPORTIONMENT AND MODE OF DISBURSAL:
48. The respondent No. 5 / wife has remarried on 14.04.2012.
49. The petitioner No. 1 / Smt. Santosh Gupta (mother), the petitioner No. 2 / Mr. Radhey Shyam Gupta (father), the respondent No. 5 / Smt. Aarti Rajpal and the respondent No. 6 / Master Krish Rajpal (son) shall be entitled to award amount alongwith corresponding interest in the ratio of 30:20:20:30.
50. The petitioner No. 1 / Smt. Santosh Gupta shall be entitled to amount of Rs. 12,04,800/- alongwith corresponding interest, being 30% of the award amount. An amount of Rs.
2,04,800/- will be released to the petitioner No. 1 / Smt. Santosh Gupta and balance amount of Rs. 10,00,000/- alongwith accrued interest will be secured in the form of fixed deposit receipts for the period, as under:
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1. Rs. 1,00,000/ 6 month
2. Rs. 1,00,000/ 12 months
3. Rs. 1,00,000/ 18 months
4. Rs. 1,00,000/ 24 months
5. Rs. 1,00,000/ 30 months
6. Rs. 1,00,000/ 36 months
7. Rs. 1,00,000/ 42 months
8. Rs. 1,00,000/ 48 months
9. Rs. 1,00,000/ 54 months
10. Rs. 1,00,000/ 60 months
11. Interest component 72 months
51. The petitioner No. 2 / Mr. Radhey Shyam Gupta shall be entitled to amount of Rs. 8,03,200/- alongwith corresponding interest, being 20% of the award amount. An amount of Rs.
1,03,200/- will be released to the petitioner No. 2 / Mr. Radhey Shyam Gupta and balance amount of Rs. 7,00,000/- alongwith accrued interest will be secured in the form of fixed deposit receipts for the period, as under:
Sl. No. Amount Period of FDR
1. Rs. 70,000/ 6 month
2. Rs. 70,000/ 12 months
3. Rs. 70,000/ 18 months
4. Rs. 70,000/ 24 months
5. Rs. 70,000/ 30 months
6. Rs. 70,000/ 36 months
7. Rs. 70,000/ 42 months
8. Rs. 70,000/ 48 months
9. Rs. 70,000/ 54 months
10. Rs. 70,000/ 60 months
11. Interest component 72 months
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52. The respondent No. 5 / Smt. Aarti Rajpal shall be entitled to amount of Rs. 8,03,200/- alongwith corresponding interest, being 20% of the award amount. An amount of Rs. 3,03,200/- will be released to the respondent No. 5 / Smt. Aarti Rajpal and balance amount of Rs. 5,00,000/- alongwith accrued interest will be secured in the form of fixed deposit receipts for the period, as under:
Sl. No. Amount Period of FDR
1. Rs. 50,000/ 6 month
2. Rs. 50,000/ 12 months
3. Rs. 50,000/ 18 months
4. Rs. 50,000/ 24 months
5. Rs. 50,000/ 30 months
6. Rs. 50,000/ 36 months
7. Rs. 50,000/ 42 months
8. Rs. 50,000/ 48 months
9. Rs. 50,000/ 54 months
10. Rs. 50,000/ 60 months
11. Interest component 72 months
53. An amount of Rs. 12,04,800/- alongwith
corresponding interest, being 30% of the award amount, will be secured in the form of fixed deposit receipt in the name of the respondent No. 6 / Master Krish Rajpal till he attains the age of majority.
54. Copy of award be supplied to the petitioners and the respondent No. 3 / insurer for compliance. File be consigned to record room. SANJAY Digitally signed by SANJAY SHARMA Location: East District, Karkardooma Courts, Delhi SHARMA Date: 2018.08.03 15:58:09 +0530 Announced in the open Court Sh. Sanjay Sharma Dated: 03th August, 2018 Presiding Officer MACT (East) Karkardooma Court, Delhi Suit No.: 11/2016 Santosh Gupta & Anr. vs Mohd. Akil & Ors. 16 of 17 Suit No. 11/16 03.08.2018 Present : Sh. Dhiraj Kulshreshtha, Advocate for the petitioners.
Sh. Ravi Prakash, Advocate for R1.
Sh. Pankaj Bhushan, Advocate for R2.
Ms. Shalini Upadhyay, Advocate for R3 / Insurance Co. Sh. A.K. Mehta, Advocate for R4.
Sh. Jitender Kumar, Advocate for respondent No. 5 and 6.
Vide separate judgment, award is passed. To come up for compliance on 02.11.2018.
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