Delhi District Court
Sompal vs Fazal Haque S/O Sh. Mohd. Jan on 30 November, 2007
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IN THE COURT OF SHRI GURDEEP SINGH: JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL: DELHI
Petition Nos. : 335/07; 336/07;
337/07; 338/07;
339/07; 340/07;
341/07; 342/07;
343/07; 344/07;
345/07; 346/07;
347/07; 348/07;
349/07; 350/07;
351/07; 352/07
and 353/07
Date of filing of the petitions : 06.7.2000
Date of assignment to this court : 23.8.2007
Date reserved for judgment : 30.11.2007
Date of award : 30.11.2007
In re:
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Sompal
s/o Late Sh. Ram Charan
r/o B- 63, Sector 5
Dakshin Puri
Dr. Ambedkar Nagar
New Delhi-62. ......Petitioner
Versus
1. Fazal Haque S/o Sh. Mohd. Jan
r/o 402, Ekta Vihar, Sector 6
R.K. Puram, N. Delhi &
Also c/o Tagore International School
East of Kailash, New Delhi
2. Tagore International School
East of Kailash, New Delhi
3. The Oriental Insurance Co. Ltd
88, Janpath, Connaught Place
New Delhi
Iss. Branch: CB0-23, G-8
Hauz Khas Market, New Delhi
Cover Note 21/563305
valid from 3.5.99 to 2.5.00 ...... Respondents
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APPLICATION U/S . 166 & 140 OF MOTOR VEHICLES ACT 1988 FOR GRANT OF COMPENSATION APPEARANCE:
Sh. M S Maan counsel for petitioners Sh. Y P Bhasin counsel for respondent no. 2 Sh. Lalit Dhingra counsel for respondent no. 3. JUDGMENT /AWARD
1. Vide this common judgment, I shall decide 19 petitions bearing new number 335/07; 336/07; 337/07;
338/07; 339/07; 340/07; 341/07; 342/07; 343/07; 344/07; 345/07; 346/07; 347/07; 348/07; 349/07; 350/07; 351/07; 352/07 and 353/07 and old number No. 1004/00, 1005/00, 1006/00, 1007,00, 1008/00, 186/00, 187/00, 183/00, 189/00, 4 192/00, 199/00, 1454/00, 1455/00, 1456/00, 1459/00, 1660/00, 1661/00, 1662/00, 1996/00, 788/00, 335/00, 36/00, 337/00, 132/00, 240/00, 296/00, 701/00 and 737/00 and Claim petition No. 187/00 as rising out of the same Motor Vehicle accident resulting in death of 8 persons and injuries sustained by 11 persons. The facts of all these cases are common to the extent of Motor vehicle accident.
2. The facts averred in the petition titled as Sompal V Fazal Haq bearing petition no 335/07 are that Ramcharan aged about 50 yrs working as Vegetable seller, earning about Rs. 4000/- per month and on 20.8.99 he alongwith his wife and other persons of the same locality had gone for pilgrimage at 'Gogamedi' and were returning from Gogamedi to Delhi. They were travelling in a Swaraj Mazda, 5 bearing registration No. DL IV 2571, driven by driver at a high speed, negligently. The passengers had also requested him to slow down. When the vehicle reached near Bijli road office turning, main road Bhadra. Respondent No. 1 driver while taking turn at a high speed lost control and vehicle went off the road on the kaccha portion and rammed into a wall of house along the road side, which resulted in many deaths and injuries to other persons. A case was registered at PS. Bhadra, Distt. Hanumangarh, FIR No. 368/99. It also resulted in a death of Ramcharan. The claim petition was filed by his son who claims to be dependent on his father.
3. The petition was contested and the written statement was filed on behalf of respondent No 1 and 2 and it was also subsequently amended and amended written statement was 6 filed. The preliminary objections were taken that number of claim petitions arising out of the same accident has been filed before Motor Accident Claims Tribunal Shahpura, Distt. Jaipur. Respondent no 3- insurance company after admitting his liability compromised these claims petition before Lok Adalat and therefore they are estopped from denying its liability.
4. On merit, it is denied that the accident was caused on account of negligent driving of respondent no 1. The insurance of the vehicle was admitted. It is stated that the vehicle was insured with respondent no. 3 for a period from 3.5.99 to 2.5.00. The ownership and the driver of the vehicle was also admitted. It is stated that the bus of the respondent no 2 has gone for the purpose of school to 7 Kalibanga where the ancient civilization i.e remains of Harappa are there. Respondent no 1 was driving the school bus as per the directions of the school authorities. He was to go without any passenger on it. Some poor people requested for lift upto Gogamedi where traditional fair was organised during that time which was on the way to Kalibanga. On humanitarian ground lift was given without any charge or reward. While returning when the bus reached Bijli Office road mod a truck was coming on the opposite side at a very high speed on the wrong side of the road. Since the vehicle was about to take turn the truck could not be spotted, as there were bushes by the side of the road and respondent no 1 had no option but to take his vehicle to other side of the road avoiding head on collision with the said truck. It is also 8 stated that there was also a high speed breaker, the same was not visible as some sand was lying over the same. Due to the same the vehicle toppled over the right side of the road and went into nearby Khad.
5. Respondent no 3 also contested the claim petition and raised preliminary objections that the respondent no 2 has committed breach of terms and condition of policy as well as the provisions of Motor Vehicle Act therefore they are not liable. It is stated that the respondent no 3 has issued policy for passenger carrying commercial vehicle and charged premium of Rs. 5664/- for covering the risk of 32 passengers and Rs. 30/- for driver and conductor. It is stated that from their investigation, it revealed that more than 32 passengers were travelling in the bus and some of the 9 injuries and fatal case were filed in different cities. In case if any liability arises, the liability of respondent no 3 can not be more than 32 passengers. Insurance has been admitted. The negligence is also denied.
6. Vide order dated 6.5.2003, my Ld. Predecessor framed the issues. The issues as framed in main petition are as under:
(i) Whether deceased Sh. Ramcharan suffered fatal injuries in an accident which took place on 20.8.99 due to rash and negligent driving of vehicle No. DL IV 2571, driven by R1 owned by R2 and insured with R3? OPP.
(ii) Whether R3 is not liable to pay compensation on account of preliminary objections 10 No. 2 and 3, taken in its written statement?
OPR.
(iii) Whether petitioner is entitled for compensation? If so, what amount and from whom?
(iv) Relief
7. Thereafter vide order dated 23.8.03 a preliminary issue was framed:
"Whether respondent no 3 is estopped from contesting the petition for the reasons that 11 cases pertaining to the same accident have already been settled by RN 3, in the Court of Ld. Motor Accident Claim Tribunal, Shahpura, Distt. Jaipur, Rajasthan?
8. However subsequently vide order dated 17.8.04, the preliminary issue was treated as issue No. 3 and issue No. 3 11 was renumbered as issue No. 4 and the case was listed for evidence and this issue was also to be decided alongwith other issues.
9. Vide order dated 7.12.04 my Ld. Predecessor consolidated all 19 claims petition treating claim petition No. 187/00 as the main petition and further directed that the evidence will be led in the main claim petition and shall be read in all other cases.
10. The petitioner examined PW 1 Sh. Sompal, PW2, Premwati W/o Sh Brijbhushan. PW 3, Sh. Ramavtar, PW 4, Sh. Vijay Kumar Aggarwal, PW 5 Sh. J.P. S. Negi, Suptd. Air Force Station, Tuglakabad. PW 6 Yogesh Sood, PW 7 Smt. Amrawati, PW 8 Smt. Chandra Devi, PW 9 Suresh, PW 10 , Sh. G.R. Vatsa, Asst. Manager, Air India Ltd. PW 12 11 Ms. Savitri, PW 12 Sh. Mohinder Singh, PW 13, Sh. Vijender, he was again examined as PW 14 and 15. Sh. Vishambhar, PW 16, PW 17, Sh. Mohan Sarin, record technician, Batra Hospital, PW 18, Sh. Anoop Kaushik, PW 19 Sh. Narender Pal Singh, UDC, Safdarjang Hospital, Smt. Cheena, PW 20, PW 21, Santosh, Smt. Amrawati PW 22, PW 23, Riyauddin, record clerk, Majidha hospital, Hamdard Nagar, PW 24, Subhash Chand, record clerk, CMC hospital.
11. Respondent No. 1 died during the proceedings.
12. Respondent No. 2, on the other hand examined RW 1, Sh. Nalin Chester.
13. Respondent no 3 examined R3W1- Sh. Neeraj Bidani- UDC, STA branch, Transport Department Delhi. R3W2- Sh. M.S. Tokas, UDC, MLO, Transport Department, 13 R3W3- Sh. M. John, Asst. Secretary, RTO, Rajpur road, R3W4- SI Kayum Khan, R3W5- Sh. Radhey Shyam Sharma, Divisional Manager of insurance company and R3W6- Sh. Imtiyaz Ahmed.
14. The driver died during the proceedings and vide order dated 15.3.07 the petitioner made statement that they do not want to bring the LRs of the deceased driver on record and do not press the claim against respondent no 1. Thereafter, the amended memo of parties was directed to be filed.
15. I have heard counsel for the parties. Counsel for petitioner also has filed the synopsis of the arguments.
16. My issue wise findings are as under:
17. Issue no 1 to 3 are intermixed and common 14 to all the petitions and hence they will be decided together. Issue no 4 are to be dealt as per the individual cases and they will be decided accordingly separately.
ISSUE NO 1 TO 3
18. The burden to prove issue no 3 is on the respondent. Respondent no 3 has taken preliminary objection in their written statement that the insured had committed breach of terms and condition of the policy therefore, they are not liable to pay the compensation. And further in case it is found that the driver of the insured vehicle was not holding valid driving license at the time of accident or there is breach of terms and condition of the policy then they are not liable to pay the compensation. As regards the driving license there is no dispute that the driver was holding valid driving license 15 therefore their preliminary objection has no meaning.
19. Primarily, respondent no 3 has pressed upon the breach of terms and condition of the policy and the provisions of the Motor Vehicle Act, 1988 149 (2) (a) (I) ©. Section 149 (2) provides that the claim can be defended on the following grounds by the insurance company that there has been a breach of specified condition of the policy, being one of the following condition namely (i) a condition excluding the use of the vehicle. ( c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle.
20. In the present case it is not disputed that the vehicle was insured vide policy no 215200/2000/586 for passenger carrying commercial vehicle in which the premium charged 16 is covering the 32 passengers and additional premium of Rs. 30/- for driver and conductor. It is argued on behalf of insurance company that the present vehicle was a school bus which as per section 66 (h) of the Act of 1988 was not requiring any permit, if such transport vehicle is owned and used solely for the purpose of any educational institution which is recognised by the Central or State Government. Admittedly the vehicle in question does not require the permit on the date of accident and was not having any such permit. It is not disputed that the vehicle is owned by school which is recognised educational institution i.e. respondent no 2. Now the only question to be examined is whether the vehicle was used solely for the purpose of education institution and for the for the said purpose. 17
21. The insurance company in support of their case examined R3W1 Sh. Neeraj Bidani- UDC from STA, Rajpur Road who produced the permit file of the vehicle. The permit was issued on 8.4.01 and copy of same is Ex. R3W1/1 and deposed that necessity of permit for plying the bus arose only after amendment of section 66 w.e.f. 11.8.00 and prior to that there was no necessity of permit.
22. R3W2 Sh. N S Tokas UDC from MLO Transport, Rajpur Road produced the record of the vehicle w.e.f. 1.2.99 to 31.7.06 and stated that as per the record the subject bus was exempted from paying road tax. The exemption of road tax is granted every year. The affidavit seeking exemption is required every time the exemption is sought. He produced the first affidavit seeking exemption Ex. R3W2/1 and stated 18 that the exemption from payment of road tax is granted to the buses run by recognised school and Government vehicles and while granting exemption certain conditions are imposed by the department.
23. In his cross examination he stated that in case the vehicle is run contrary to terms and conditions of the exemption of road tax the exemption is revocable and as per the record there is no revocable of the exemption.
24. R3W3 Sh. M John- Assistant Secretary from RTO similarly stated that the school bus does not require any permit as per section 66 (3) (h) of Motor Vehicle Act.
25. R3W4 SI Abdul Kayum Khan is the investigating officer of the case. He deposed that he reached at the hospital on the information of the accident and recorded the 19 statement of one Sunil. The FIR contains the same verbatim as in the statement of injured. The bus was carrying 35-40 passengers at time of accident and 11 of them expired and remaining sustained injuries. It was a school bus and all the passenger were from Delhi. From his investigation he came to know that the passenger had booked the bus from Delhi to Gogamedi mela. The bus met with accident on return from the mela.
26. In his cross examination he stated that when he say that they had booked the bus he mean to say that they had hired the bus, however, he could not tell as to what was the hire charges. He further stated that he recorded the statement of other witnesses also but does not know the name of the person who had hired the bus. The witnesses 20 did not tell the name of the person who had hired the bus. He did not produce the statement of the witnesses as they were filed in the court. He was not present at the time of accident. He does not know as what was the outcome of the criminal case.
27. The insurance company also examined R3W6 Sh. Imtiyaz Ahmad who is the investigator for the insurance company. He submitted his report alongwith the photographs Ex. R3W5/15. The objections were raised regarding the inadmissibility of the evidence as the entire evidence was hearsay evidence. Interestingly, in his cross examination witness stated that the accident pertains to the year 1999 and he had for the first time visited the site on 12.5.07. Admittedly he is not the eye witness and he had 21 investigated the matter on behalf of insurance company after expiry of about eight years. The evidence of the witness is based on the statement of other witness who were not examined by the insurance company, therefore, his evidence is firstly inadmissible and secondly not reliable and no credence can be given to his evidence.
28. The argument of the insurance company is that the vehicle although did not required permit but its permit was exempted since it was owned by a school and was to be used solely for the purpose of an educational institution. It is submitted that the vehicle was hired by the insurer and the bus was going to a mela at Gogamedi and therefore the vehicle was not being used solely for the purpose of educational institution and hence the exemption granted to 22 the vehicle for the said purpose cannot be said to have been available and hence it would mean that the vehicle was being plied without permit.
29. The case of the petitioner are that the they had gone for pilgrimage at Gogamedi and were returning from Gogamedi. The transport vehicle was Swaraj Mazda which caused accident.
30. PW2 Smt. Premwati in her cross examination on behalf of insurance company stated that all the passenger in the vehicle were resident of Dakshin Puri and it was organised by one Ram Chander and it was agreed upon that the bus be booked and they will see about the expenses on their return from the journey. She stated that they were coming from Gogamedi where they had gone from Delhi to 23 attend the mela.
31. On behalf of respondent no 2 R2W1 Sh. Nalin Chester from Tagore International School was examined who filed his evidence by way of affidavit. He stated that during the period from 17.8.99 to 21.8.99 an educational- cum-leadership development tout of few students of the school had gone to Kalibanga, Rajasthan. The student and one teacher had gone in another vehicle. In the evening of 18.8.99 an intimation was received from the said group that there is acute shortage of drinking water and suitable food for the students and it was decided to send drinking water and food packets for the students so that there is no problem for them. On the next day they arranged food packets and drinking water and the same was loaded in the dikki of the 24 vehicle. Later on they came to know that the said vehicle met with accident and there were a number of persons travelling in said bus. Neither the management of the school nor any person from the school authorised the driver to give lift or in any manner allow any person to board the bus.
32. In his cross examination on behalf of insurance company he stated that he does not know whether the school had written any letter to the insurance company regarding the vehicle having met with accident in which persons were travelling. He admitted the motor claim form Ex. R1W1/X1R3 which bears his signatures. He admitted that the reason for accident recorded in the said claim form is overturn of the vehicle due to brake failure and they had not mentioned the description of the passengers and in what 25 capacity they were abroad the bus. He denied the suggestion that they had not complied with the terms and condition of the permit of the vehicle. He was also cross examined on the aspect whether there was any place for living at Kalibanga or whether any shop were there for providing any any food items and water to the students or not.
33. The whole line of the cross examination and argument of respondent no 3 is that the bus was infact used for hire and the passenger had taken the bus on hire from Delhi to Gogamedi to attend the mela and while they were returning it met with accident and therefore, since it was not plying for the purpose of educational institution there is violation of permit condition. Admittedly, Sunil Kumar whose statement was recorded by the investigation officer 26 who claimed that he had hired the vehicle has not been examined on behalf of insurance company to show that the vehicle was booked by them for hire. Respondent no 2 at the time of filing the claim of the bus had not disclosed the entire facts. It is not plausible that the bus would take only food packets for the children in the bus while one witness has stated that they had booked the bus. Unfortunately, the driver of the bus could not come in the witness box to give his evidence as he died subsequently who had filed the written statement had given his version as to how he gave lift to the passenger.
34. Now the question arises when statue does not require the vehicle to have the permit, can by any stretch of imagination the court come to the conclusion that the since 27 the vehicle was not being plied for the purpose used it require the permit which it does not have and therefore, there is breach of condition? The argument on the face of it appears to be far fetched. Moreover, none of the witnesses stated that any amount was given by them to the driver. So far as respondent no 2 is concerned, they had sent the vehicle for the very purpose and even if there is some fault on part of respondent no 1 the insured cannot be held liable vicariously for the acts of respondent no 1 which respondent no 1 was not authorised to do which will ultimately fasten the liability upon them. Even otherwise there has to be wilful breach of condition.
35. Respondent no 2 also cited Skandia Insurance Co Ltd V. Kolilaben Chandravadan & Ors SCC Motor 28 Accident Claims page 396 civil appeal decided on 1.4.1987. It was held in this case that unless the insured is at fault and guilty of wilful infringement or violation of condition of policy of insurance, the insurer cannot escape from the obligation to indemnify the insured.
36. Ld. Counsel for the insurance company has cited National Insurance Co V. Challa Bharathama AIR 2004 ACJ- 2094 SC. This is a case where an auto met with accident resulting in death of two persons and injury to another. The injured had not obtained the permit to ply the vehicle therefore, it is was held that the insurance company is not liable and the insurance company was directed to deposit the amount and was given recovery rights. This case is distinguishable on the facts of present case as this is a case 29 where no permit was required to ply the vehicle.
37. They also cited State of Andhra Pradesh V. B Noorullah Khan IV (2004) SLT 172. This is a case where the distinction between the contract carriage and the All India Tourist vehicle is given. The Hon'ble Supreme Court has explained the distinction between the Stage Carriage Permit and the Contract Carriage Permit in writ petition where the vehicle were seized by authorities having the opinion that the vehicle was used for Stage Carriage. This judgment is not applicable to the facts of the present case.
38. The insured cannot be burden with the onerous duty to prove that the each and every time the vehicle is used for the purpose of school. The fact that the vehicle was subsequently used for the purpose of school would suffice to 30 satisfy the condition that it is being used for the school purpose, therefore, I am of the opinion that there is no violation of the permit condition.
39. Issue no 3 is also arising out the issue no 2 and since it is argued that respondent no 3 should be estopped from contesting this petition for the reason of the 11 petition that have already been settled by respondent no 3 in the court of Motor Accident Claims Tribunal at Rajasthan. It is not disputed that out of the 11 cases settled also have arisen from the same accident and was settled before the Lok Adalat.
40. Now the question arises whether the insurance company be estopped from taking defence in the present petition when they have already settled earlier the petition 31 arising out of the same accident?
41. The burden of this issue is on respondent no 2. Respondent no 2 has cited Sailendra Narayan Bhanja Deo V. The State of Orissa AIR -1956 SC 346. In this case case the Hon'ble Supreme Court held that the judgment by consent or default is as effective and estoppal between the parties operate. He also cited Haryana State through Secretary Transport, Chandigarh V. Sudesh Raizada & Ors 1991 ACJ- 54 a judgment of Punjab & Haryana High Court wherein it was held that the finding on negligence in the connected case are binding in the subsequent cases and in the said case others cannot challenge the same in the subsequent proceedings arising out of the same accident. He also cited Rattan Lal Mehta V. Rajinder Kappor & Anr 32 II(1996) ACC 1 (DB) a judgment of division bench of our own High Court. In this case the insurance company has pleaded that the injured has written to them to accept a particular amount and therefore, he is barred to claim more which was declined in the absence of evidence on record. They also cited State of Punjab V. Mehar Devi & Ors 1990 ACJ- 274 a judgment of Punjab & Haryana High Court. In this case also similarly once the claim case is settled arising of the same accident where the finding on the negligence has not been appealed from is binding in the connected petition which has also arisen from the same and it was held that the principle of estoppal will estopp them from reagitating. He also cited Sandhya V. Karnataka State Road Trans Corpn 2000 ACJ- 1565 a judgment of 33 Karnataka High Court wherein similarly it was held that the finding on negligence in earlier claim cannot be reagitated and amounts to res-judicata. He also cited New India Assurance Co Ltd V. Satpal Singh & Ors 2000 ACJ- 1 where it was held that the third party risk covers gratuitous passenger.
42. On the other hand Ld. Counsel for the insurance company submitted that there is no estoppal against the statute and cited Chaggan Lal Keshav Lal Mehta V. Patel Narain Dass Hari Bhai AIR 1982- SC 121. There is no dispute to the legal proposition that there cannot be estoppal against the statute.
43. The petitioner also cited United India Insurance Co V. Muthanna & Ors 2000 ACJ 289 a judgment of 34 Karnataka High Court. In this case the claims were settled in the Lok Adalat and the compensation were paid. In two other other claim petitions it was held that they cannot raise the plea of negligence of driver in the subsequent petition arising out of the same accident and held that the law of estoppal will come in the way.
44. Now the question arises whether the settlement of the 11 claim petition before the Lok Adalat at Rajasthan amount to estoppal and the insurance company be estopped from contesting the present petition? It is not disputed that in each cases there are two types of findings. One finding is on the facts and judgment cited are primarily on the findings of the facts regarding the negligence which cannot be reagitated and amounts to estoppal.
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45. What is the law of estoppal? The Hon'ble Supreme Court in the cited case of Chaggan Lal held that Estoppal deals with the question of facts and not of rights. To bring the case within the scope of estoppal as defined in section 115 of the Indian Evidence Act (i) there must be representation by a person or his authorised agent to another in any form, a declaration, act or omission; (ii) the representation must have been of the existence of a fact and not of promises de-futuro or intention which might or might not be enforceable in contract; (iii) the representation must have been meant to be relied upon; (iv) there must have been belief on the part of the other party in its truth; (v) there must have been action on the faith of that declaration, act or omission must have actually caused another to act on 36 the faith of it and to alter his former position to his prejudice or detriment; (vi) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (vii) the person claiming the benefit of an estoppal must show that the was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppal; (viii) only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppal in his own individual character and not as a representative of his assignee.
46. It is also settled law that the strict rule of evidence are not applicable to the proceedings laid down in the motor accident claims tribunal. Therefore, it is evolved in the 37 claim compensation jurisprudence that the insurance company be estopped from shifting stands in different petition and is not allowed to reagitated in subsequent petitions. In the present case, the present claim petitions are being contested by the insurance company on the plea that the vehicle was not being used solely for the purpose provided in the statute. It is question of facts therefore, the doctrine of estoppal is applicable to the present case. Now whether the insurance company can be stopped from contesting the petition. The insurance company surprisingly has not placed their defence taken in the earlier petition which they have settled before the claims tribunal, therefore, it cannot be said that they can take this plea before this court and now it is open for them to reagitate the same. They also 38 have sought to contest the present petition on the ground that on their investigation they have found that the vehicle was not used solely for the purpose of education. This again is question of facts however, once the insurance company is not able to show that these grounds were taken by them before the Jaipur court or it came to their notice subsequently, they cannot be allowed to reagitate the same. The principle of estoppal as evolved in the claim petition would be applicable as it is not the question of law whether the vehicle was being run for the said purpose or not. Accordingly, I hold that there is no wilful breach of condition of the policy on behalf of respondent no 2 by not holding permit and secondly I am also of the opinion that the insurance company should be stopped from reagitating the 39 issue with respect to the claim and the breach of condition of policy.
47. With regards to the negligence, once the insurance company has settled the claim before Motor Accident Claims Tribunal a Rajasthan, they cannot deny the negligence and they are estopped from reagitating the issue on account of award passed in the claim petition arisen out of the same accident and the cited judgment of Karnataka High Court in Muthanna's case squarely applies to the facts of the present case. Accordingly, I hold that the injured/deceased suffered injuries/fatal injuries on account of rash and negligent driving on part of driver/respondent no
1. ISSUE NO 4 40
48. As regards the individual case with regard to the grant of compensation, it is submitted on behalf of petitioner that future prospect of the deceased is to be taken into account and cited Smt. Sarla Dixit V. Balwant Yadav 1996 III AD SC 13. In this case a 27 years old Army Officer who was qualified for promotion had died and therefore, Hon'ble Supreme Court had taken into consideration the future prospect. On the other hand counsel for insurance company cited Bijoy Kumar Duggar V. Bidhyadhar Dutta 2006 (ii) AD SC-601 wherein Hon'ble Supreme Court has held that if there is no evidence of future prospect, it cannot be granted.
49. Further, Ld. Counsel for the insurance company cited NIAC V. Shanti Phatak 2007 ACJ- 2188- SC and also cited NIAC V. Kalpana 1(2007) ACC 356-SC. In the 41 Shanti Phatak's case the tribunal applied the multiplier of 13 and the same was upheld by Hon'ble High Court and the Hon'ble Supreme Court held that the in a fatal accident case where the deceased was aged about 52 years, earning about Rs. 11,684/- per month reduced the multiplier of 8 after deducting 1/3rd for personal expenses of the deceased. However, in Kalpana's case where the deceased was aged about 35 years Hon'ble High Court had applied the multiplier of 14 but it was reduced to 13. Therefore, both the authorities are with respect to multiplier method in order to ascertain the loss of dependency.
Compensation in death cases Regarding death of Sriram Charan (335/07)
50. As per the petition the deceased was aged about 50 42 years, was self employed earning about Rs. 4000/-. The petition is filed by son of deceased, however, as per the detailed facts in para 23 in the petition the age of deceased is mentioned as 60 years who was a vegetable seller.
51. PW1 has filed his evidence by way of affidavit and was collectively examined to prove the factum of accident and the post mortum report, police report for all the petitions. He filed the certified copies of the criminal court record including the FIR, chargesheet, insurance, driving licence, site plan, inner case diary, mechanical inspection alongwith the post mortem of Kalawati, Ramcharan, Brij Bhushan, Murai Lal, Babu Lal, Sumitra, Ramesh, Parkash and MLC of Savitri, Mahender Pal Singh, Mohinder, Ram Avtar, Amrawati, Mansiya, Shashi Kumar, Sompal. In his 43 cross examination stated that he is a daily wage earner, married, earning about Rs. 3000/- per month. He stated that he has been working since the age of 20-22 years and at present he is aged about 35 years.
52. No income or educational proof has been filed. However, keeping in view the age of the deceased, the deceased can be treated as semi skilled person. In the absence of income proof, I take help from the minimum wages index and as per the minimum wages index the minimum wage payable to a semi skilled person at relevant time was Rs. 2514/-. Further, the deceased would have been spending 1/3rd of his income on his own maintenance and pleasure thereby leaving Rs. 1676/- (2514 - 1/3rd) with his family.
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53. The principal of calculating the compensation has been enunciated by their Lordship Wright in Davies V. Powell Duffregn Associated Collieries Limited 1942 AC 601 wherein it has been held that the appropriate method to calculate the compensation is multiplier method. By this method the compensation is arrived at by estimating the amount of wage which the deceased was earning, estimating as how much was required for his own living and saving. The balance will give a datum or basic figure which will generally be turned into lump sum by taking a certain number of years purchase. That sum, is to be taxed down by having due regard to the un-certainties such as the victim would be married and would ceased to be dependent and like other matters of speculation and doubt. The same has 45 also been cited in a number of judgment including the celebrated judgment of General Manager, Kerala State Road Transport Corporation V. Mrs. Susamma Thomas & Ors (SC) 1994 ACJ 1. It would be worthwhile to quote the observation of the Hon'ble Supreme Court in Susama Thomas case as to what is multiplier method. To quote: In para 8 "The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the 46 multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last."
54. Keeping in view the present rate of interest and the stability in the economy it would be appropriate to adopt the multiplier of 5. While adopting the multiplier to the multiplicand the loss of dependency comes to Rs. 1,00,560/- (1676 x 12 x 5). Having regard to the fact that the capital sum should also be consumed up over the period for which the dependency is expected to last, if this sum is invested in a safe investment it would fetch approximately the same amount of interest which the claimants have suffered on account of death.
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55. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 1,00,560/-
(1676 x 12 x 5)
(ii) Funeral expenses Rs. 10,000/-
(iii) Loss of love & affection Rs. 5,000/-
TOTAL Rs. 1,15,560/-
(rounded off) Rs. 1,16,000/-
RELIEF
56. Accordingly, I award a compensation of Rs. 1,16,000/- (Rupees One Lacs Sixteen Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be adjusted.
57. Out of the total amount of compensation awarded Rs. 48 50,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of ten years with quarterly interest payable to petitioner, however, with no facility of loan or advance on said amount.
Regarding death of Kalawati (337/07)
58. As per the petition the deceased was aged about 50 years. She was a housewife doing the household and stitching work earning about Rs. 2500/- per month. The petition is filed by her son Sompal.
59. No income proof has been filed, however, as per the judgment of Lata Wadhwa & Ors V. State of Bihar & Ors ACJ 2001 ACJ 1735 the Hon'ble Supreme Court has taken the value of the domestic work as Rs. 3000/- per month for ladies in the age group of 34 to 59 years in which 49 case the value was assessed where the husband was employed in TISCO and earning handsomely. In the present case the income is assessed as claimed by the petitioner, therefore, I take the income as Rs. 2500/-. Further, she would have been spending 1/3rd of the income on her own thereby leaving Rs. 1667/- (2500 - 1/3rd) with her family.
60. Keeping in view the present rate of interest and the stability in the economy it would be appropriate to adopt the multiplier of 8. While adopting the multiplier to the multiplicand the loss of dependency comes to Rs. 1,60,032/- (1667 x 12 x 8). Having regard to the fact that the capital sum should also be consumed up over the period for which the dependency is expected to last, if this sum is invested in a safe investment it would fetch approximately the same 50 amount of interest which the claimants have suffered on account of death.
61. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 1,60,032/-
(2500 - 1/3rd x 12 x 8)
(ii) Funeral expenses Rs. 10,000/-
(iii) Loss of love & affection Rs. 5,000/-
TOTAL Rs. 1,75,032/-
(rounded off) Rs. 1,75,000/-
RELIEF
62. Accordingly, I award a compensation of Rs. One Lac Seventy Five Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be adjusted. 51
63. Out of the total amount of compensation awarded Rs. 1,00,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of ten years with quarterly interest payable to the petitioner, however with no facility of loan or advance on said amount.
Regarding death of Babu Lal (343/07)
64. As per the petition the deceased was aged about 57 years and was working in Air India earning about Rs. 7000/- per month. The petition was filed wife aged 55 years; three married daughters Kranti, Santosh and Mamta aged about 35, 32, and 28 years; three son and a daughter Suresh, Vijay, Bijender and Ms Geeta aged about 33, 30, 26 and 24 years respectively.
65. With regard to the future prospect, keeping in view 52 the age of the deceased there is hardly any future prospect at this age therefore, the future prospect is not to be taken into considered.
66. PW9 Suresh deposed that the deceased/his father was employed in Government service and was getting a salary of Rs. 11,188/- per month as per the salary slip. His mother died during the proceedings and she was petitioner no 1 in the petition. They also examined PW10- Sh. G R Vats Assistant Manager from Air India regarding the income of deceased. He proved the salary slip Ex. PW10/A. He stated that the deceased would have retired on 30.11.00 on reaching the age of superannuation.
67. As per the salary slip Ex. PW9/1 the gross salary was Rs. 12,746/- for the month of May '99. It shows that there 53 was some deductions approximately of Rs. 6000/- out of which Rs. 3500/- was on account of Corporative Bank. It would mean that his gross salary was around Rs. 10,500/-. Whereas PW10 proved the salary slip for the month of July '99. It shows the gross salary as Rs. 11,188/- therefore, it would be proper to take the net salary of the deceased around Rs. 10,500/- per month. As per the judgment of Asha V. United India Insurance Co Ltd 2004 ACJ 448 (SC) while calculating the loss of dependency the net income is to be taken into account. Further, he would have been spending 1/3rd of his income for his own maintenance due to old age thereby leaving Rs. 7000/- (10500 - 1/3rd) with his family. As per the age of deceased the appropriate multiplier would be 8.
54
68. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 6,72,000/-
(10500 -1/3rd x 12 x 8)
(ii) Funeral expenses Rs. 10,000/-
(iii) Loss of love & affection Rs. 5,000/-
(iv) Loss of consortium Rs. 5,000/-
TOTAL Rs. 6,92,000/-
RELIEF
69. Accordingly, I award a compensation of Rs. Six Lacs Ninety Two Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be adjusted.
APPORTIONMENT
70. Out of the total amount of compensation awarded the 55 same is apportioned amongst 8 claimants. Petitioner no 1 Sumarti Devi shall get a sum of Rs. 3,00,000/- out of which Rs. 2,00,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of five years with quarterly interest payable to the petitioner, however, with no facility of loan or advance on the said amount.
71. Petitioner no 2 to 8 i.e. Ms. Kranti, Ms. Santosh, Ms. Mamta, Sh. Suresh, Sh. Vijay, Sh. Bijender and Ms. Geeta shall get equal amount of Rs. 56,000/- and the same alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of ten years, however, with no facility of loan or advance on the said amount.
Regarding death of Murari Lal (350/07) 56
72. As per the petition the deceased was aged about 56 years; self employed working as vegetable seller earning about Rs. 4000/- per month. The petition is filed by the wife aged about 54 years; three sons Bishamber, Surender and Mahinder aged about 34, 32, 28 years respectively; two daughters Sarvesh and Geeta aged about 36 and 30 years respectively and mother of deceased namely Bhagwan Dai aged about 70 years.
73. PW8 Smt. Chandra Devi was examined and she gave the age of deceased as 56 years. Admittedly no documentary proof regarding the income of the deceased has been filed and in the absence of the same I take help from the minimum wages index and as per the minimum wages index, the minimum wage payable to the semi skilled person 57 at the relevant period was Rs. 2514/-. Further, the deceased would have been spending 1/3rd of his income on his own maintenance and pleasure thereby leaving Rs. 1676/- (2514
- 1/3rd) with his family.
74. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 1,60,896/-
(1676 x 12 x 8)
(ii) Funeral expenses Rs. 10,000/-
(iii) Loss of love & affection Rs. 5,000/-
(iv) Loss of consortium Rs. 5,000/-
TOTAL Rs. 1,80,896/-
(rounded off) Rs. 1,81,000/-
RELIEF
75. Accordingly, I award a compensation of Rs. 58 1,81,000/- (Rupees One Lacs Eighty One Thousand Eight Hundred Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be adjusted.
APPORTIONMENT
76. Out of the total amount of compensation awarded the same is apportioned amongst 7 claimants. Petitioner no 1 Smt. Chandra Devi shall get a sum of Rs. 90,000/- and out of which Rs. 50,000/- be kept in fixed deposit in a Nationalised Bank for a period of five years with quarterly interest payable to the petitioner, however, with no facility of loan or advance on this amount.
77. Petitioner no 2 to 7 i.e. Sh. Bishamber, Sh Surender, Sh. Mahinder, Ms. Sarvesh, Ms. Geeta and 59 Smt. Bhagwan Dai shall get equal amount of Rs. 13,000/- and the same alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of ten years, however, with no facility of loan or advance on the said amount.
Regarding death of Smt. Sumitra (342/07)
78. As per the petition the deceased was aged about 38 years. She was a housewife and was also doing the stitching and tuition work earning about Rs. 100 to 150/- per day. The petition is filed by the husband aged about 40 years; one son Ajit Kumar aged about 19 years; two daughters Renu and Rinki aged about 17 and 11 years respectively.
79. PW9 Suresh deposed that his wife was aged about 38 years at time of her death and was earning about Rs. 100- 60 150/- per day in addition to doing the household work. He stated that he has not remarried. He denied the suggestion that the deceased was a simple housewife and was not engaged in any stitching and tuition work. 61
80. As per the caste certificate mark A the date of birth of deceased is shown as 2.5.1963 meaning thereby that she was aged about 36 years old at time of her death. However, since the witness has deposed her age as 38 years therefore, I take her age as 38 years. There is no evidence on record regarding the work of deceased except the oral statement. In the circumstances, I take her income as Rs. 3000/- per month as per the judgment of Lata Wadhwa. Further, she would have been spending 1/3rd of the income for her own maintenance thereby leaving Rs. 2000/- (3000 - 1/3rd) with her family.
81. Keeping in view the present rate of interest and the stability in the economy it would be appropriate to adopt the multiplier of 10. While adopting the multiplier to the 62 multiplicand the loss of dependency comes to Rs. 2,40,000/- (2000 x 12 x 10). Having regard to the fact that the capital sum should also be consumed up over the period for which the dependency is expected to last, if this sum is invested in a safe investment it would fetch approximately the same amount of interest which the claimants have suffered on account of death.
82. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 2,40,000/-
(2000 x 12 x 10)
(ii) Funeral expenses Rs. 10,000/-
(iii) Loss of love & affection Rs. 5,000/-
(iv) Loss of consortium Rs. 5,000/-
TOTAL Rs. 2,60,000/-
63
RELIEF
83. Accordingly, I award a compensation of Rs. 2,60,000/- (Rupees Two Lacs Sixty Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be adjusted.
APPORTIONMENT
84. Out of the total amount of compensation awarded the same is apportioned amongst 4 claimants. The petitioner no 1 Suresh shall get a sum of Rs. 1,10,000/- out of which Rs. 80,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of ten years with quarterly interest payable to the petitioner, however, with no facility of loan or advance on the said amount. 64
85. Petitioner no 2 to 4 i.e. Sh. Ajit Kumar, Ms. Renu and Ms. Rinki shall get a sum of Rs. 50,000/- each and the same alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of twenty years renewable after ten years, however, with no facility of loan or advance on the said amount.
Regarding death of Ramesh Kumar (340/07)
86. As per the petition the deceased was aged about 40 years was working in Government service at Race Course getting salary of Rs. 3500/- per month. The petition is filed by wife Smt. Santosh and son Sashi of deceased.
87. They examined PW6 Sh. Yogesh Sood from Delhi Race Club who deposed that deceased was employed with them as sweeper. His salary on the total gross was Rs. 65 2500/- per month and proved the salary slip Ex. PW6/A. He stated that there is no chance of him getting promotion in any capacity.
88. PW21 Smt. Santosh admitted that as per the photocopy of ration card the age of her husband is 45 years. She does not know the date of birth of her husband. She denied the suggestion that her husband was more than 50 years at time of death.
89. The deceased was working as sweeper and the witness has stated that there is no chance of promotion in any capacity therefore, I take the income of deceased as stated by witness. Further, the deceased would have been spending 1/3rd of his income for his own maintenance and pleasure thereby leaving Rs. 1667/- (2500- 1/3rd) with his 66 family.
90. Keeping in view the present rate of interest and the stability in the economy it would be appropriate to adopt the multiplier of 13. While adopting the multiplier to the multiplicand the loss of dependency comes to Rs. 2,60,052/- (1667 x 12 x 13). Having regard to the fact that the capital sum should also be consumed up over the period for which the dependency is expected to last, if this sum is invested in a safe investment it would fetch approximately the same amount of interest which the claimants have suffered on account of death.
91. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 2,60,052/-
(1667 x 12 x 13)
67
(ii) Funeral expenses Rs. 10,000/-
(iii) Loss of love & affection Rs. 5,000/-
(iv) Loss of consortium Rs. 5,000/-
TOTAL Rs. 2,80,052/-
(rounded off) Rs. 2,80,000/-
RELIEF
92. Accordingly, I award a compensation of Rs. 2,80,000/- (Rupees Two Lacs Eighty Thousand Eight Hundred Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be adjusted.
APPORTIONMENT
93. Out of the total amount of compensation awarded the same is apportioned amongst 2 claimants. Petitioner no 1 Smt. Santosh shall get a sum of Rs. 1,80,000/- out of which 68 Rs. 80,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of ten years with quarterly interest payable to the petitioner, however, with no facility of loan or advance on the said amount.
94. Petitioner no 2 Sh. Sashi shall get a sum of Rs. 1,00,000/- and the same alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of twenty years renewable after ten years, however, with no facility of loan or advance on the said amount.
Regarding death of Brij Bhushan (352/07)
95. As per the petition the deceased was aged about 40 years was working as Library Attendant at Supreme Court getting salary of Rs. 9023/- per month. The petition is filed by wife Smt. Premwati aged about 38 years; five daughters 69 Poonam, Neelam, Sangeeta, Geeta and Sarita aged about 15, 13, 8, 6, 4 years respectively; Son Lokesh aged about 10 years and old aged parents aged about 60 and 55 years.
96. PW2 Smt. Premwati who deposed that her husband was 40 years at time of his death. They also examined PW4 Sh. Vijay Kumar Aggarwal- Assistant from Supreme Court of India proved the service record of the deceased. He stated that the date of birth of deceased as per the record is 25.1.1959. He stated that at time of death of deceased he was drawing the pay scale of Rs. 4500-125-7000 and proved the pay bill register Ex. PW4/A. He also proved the salary certificate of the deceased for the month of July '99 Ex. PW4/B. He stated that the deceased was not entitled to any further promotion as per the departmental rules. 70
97. As per Ex. PW4/B the gross salary of deceased is Rs. 9023/- out of which Rs. 3434/- are the deductions and the net salary is Rs. 5589/-. Some arrears are also shown to have been paid during this month. Out of the deductions Rs. 2200/- are on account of advance which are to be deducted for taking the net salary thereby his net salary comes to Rs. 7789/- (5589 + 2200). Further, the deceased would have been spending 1/3rd of his income for his own maintenance and pleasure thereby leaving Rs. 5193/-(7789 - 1/3rd) with his family.
98. Keeping in view the present rate of interest and the stability in the economy it would be appropriate to adopt the multiplier of 11. While adopting the multiplier to the multiplicand, the loss of dependency comes to Rs. 6,85,476/- 71 (5193 x 12 x 11). Having regard to the fact that the capital sum should also be consumed up over the period for which the dependency is expected to last, if this sum is invested in a safe investment it would fetch approximately the same amount of interest which the claimants have suffered on account of death.
99. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 6,85,476/-
(5193 x 12 x 11)
(ii) Funeral expenses Rs. 10,000/-
(v) Loss of love & affection Rs. 5,000/-
(vi) Loss of consortium Rs. 5,000/-
TOTAL Rs. 7,05,476/-
(rounded off) Rs. 7,05,000/-
72
RELIEF
100. Accordingly, I award a compensation of Rs. 7,05,000/- (Rupees Seven Lacs Five Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be adjusted.
APPORTIONMENT
101. Out of the total amount of compensation awarded the same is apportioned amongst 9 claimants. Petitioner no 1 Smt. Premwati shall get a sum of Rs. 4,00,000/- and out of which Rs. 3,00,000/- alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of ten years with quarterly interest payable to the petitioner, however with no facility of loan or advance on the said 73 amount.
102. Petitioner no 2 to 7 i.e. Ms. Poonam, Ms. Neelam, Ms. Sangeeta, Ms. Geeta, Ms. Sarita and Sh. Lokesh shall get a sum of Rs. 47,500/- each and the said amount alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of twenty years renewable after ten years, however, with no facility of loan or advance on said amount.
103. Petitioner no 8 & 9 i.e. Sh. Tota Ram and Smt. Shanti shall get a sum of Rs. 10,000/- each and out of which Rs. 5,000/- be kept in fixed deposit in a Nationalised Bank for a period of five years, with quarterly interest payable to the petitioner, however, with no facility of loan or advance on said amount.
74
Regarding death of Som Parkash (338/07)
104. As per the petition the deceased was aged about 32 years was working in Air Force getting salary of about Rs. 3800/- per month. The petition is filed by wife Smt. Amarwati aged about 30 years; two minor son Jitender and Neetan aged about 10, 8 years respectively; minor daughter Kamal aged about 6 years.
105. PW7 Smt. Amarwati filed evidence by way of affidavit. She stated that the deceased at time of his death was aged about 32 years and was getting salary of Rs. 4562/- per month. She filed the pay certificate issued by the department Ex. P6 and the photocopy of ration card Ex. P7.
106. As per ration card Ex. P7 the deceased was aged about 27 years and as per the pay certificate the total salary 75 is shown as Rs. 5033/-. They have also examined PW5 Sh. J PS Negi- Superintendent from Air Force Station. He stated that the date of birth of deceased as per their record is 5.12.1966 and the deceased was appointed on 2.5.88. He was due to retire on 31.12.2026 on reaching the age of superannuation. He stated that at time of death the deceased was in the pay scale of Rs. 2550-55-2660/- and the gross salary of deceased was Rs. 5045/-. He further stated that there is no chance of deceased getting promotion but he was entitled to the benefit of ACP scheme on completion of 12 years of service when he would be in the pay scale of Rs. 2650-65-3300-75-4000/- and on completion of 24 years of service he would have been in the pay scale of Rs. 2750-70- 3800-75-4400/-.
76
107. The deceased had joined the service at the age of 22 years and there was a scheme where there was increase in salary to the tune of about Rs. 1000/- after completion of 12 years and to the tune of about Rs. 2000/- after 24 years of service. As per the age of the deceased he would have got increase in income therefore, future prospect can be taken into account. The deceased was drawing gross of about Rs. 5045/- in present pay scale and in the last pay scale he would have been drawing about Rs. 5500/-.
108. In order to take the future prospect I take the mean of two gross salary i.e. present and last pay scale. In the last pay scale his income would have doubled which would be Rs. 5500/- and it will come to about Rs. 5273/-(5045 + 5500/ 2). Further, he would have been spending 1/3rd of the 77 income for his own use and maintenance thereby leaving Rs. 3515/- (5273 - 1/3rd) and as per the age of the deceased the appropriate multiplier would be 10 therefore, there is loss of dependency to the tune of Rs. 4,21,800/- (3515 x 12 x 10).
109. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of dependency Rs. 4,21,800/-
(3515 x 12 x 10)
(ii) Funeral expenses Rs. 10,000/-
(iii) Loss of love & affection Rs. 5,000/-
(iv) Loss of consortium Rs. 5,000/-
TOTAL Rs. 4,41,800/-
(rounded off) Rs. 4,42,000/-
RELIEF
110. Accordingly, I award a compensation of Rs. 78 4,42,000/- (Rupees Four Lacs Forty Two Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation. The interim amount be adjusted.
APPORTIONMENT
111. Out of the total amount of compensation awarded the same is apportioned amongst 4 claimants. Petitioner no 1 Smt. Amarwati shall get a sum of Rs. 2,50,000/- out of which Rs. 1,50,000/- be kept in fixed deposit in a Nationalised Bank for a period of ten years with quarterly interest payable to the petitioner, however with no facility of loan or advance on the said amount.
112. Petitioner no 2 to 4 i.e. Jitender, Neetan and Kamal shall get a sum of Rs. 64,000/- each and the same 79 alongwith proportionate interest be kept in fixed deposit in a Nationalised Bank for a period of twenty years renewable after ten years, however, with no facility of loan or advance on the said amount.
Compensation in injury cases Regarding injuries to Sompal (366/07)
113. It is stated in the petition that the petitioner was aged about 25 years, was doing service earning about Rs. 2500/- per month. He sustained injuries on the left foot, right foot and ankle, chest and multiple abrasion on various parts of the body. He was treated at LNJP hospital.
114. He examined himself as pW1 and filed his evidence by way of affidavit Ex. PW1/X1. He deposed that he sustained injuries on the left foot, right foot ankle, injuries 80 on chest and head and injuries all over the body. He stated that he also suffered fracture as per the MLC and discharge slip. He was initially admitted at Medical & Health Centre, Rajasthan where MLC was prepared thereafter he took treatment from Safdarjung Hospital and also took private treatment. He remained in bad for about 6 months after discharge from hospital and could not attend to his duties for six month. He incurred expenses of about Rs. 50,000/- for his medical treatment including special diet and conveyance. He stated that he had employed an attendant at the rate of Rs. 500/- per month.
115. In his cross examination he stated that he sustained fracture on the lower jaw, right ear lid, abrasion and tenderness on both legs. He took treatment from Safdarjung 81 hospital. He stated that he was not hospitalised as indoor patient there and his treatment continued for 4-5 months. He admitted that during his treatment he was fit enough to walk around.
116. Admittedly, there is no permanent disability. The petitioner has filed the OPD card of Safdarjung Hospital Ex. PW1/1 dated 2.8.99. As per the OPD card X-ray was advised for various parts of body but there is no X-ray report nor there is endorsement on the same that he suffered fracture. He also field the cash memo of medical bills amounting to Rs. 964.23 Ex. PW1/3 to13, however, the amount charged in Ex. PW1/13 does not appears to be correct and the remaining amount spent on treatment appears to be justified and are granted which is to the tune of Rs. 82 484/-. Accordingly, I am of the opinion that with such type of injuries the injured would have remained out of work for about two months and on that account there is loss of income for two months which come to Rs. 5000/- 2500 x 2).
117. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income Rs. 5,000/-
(2500 x 2)
(ii) Medical expenses Rs. 484/-
(iii) Special diet & conveyance Rs. 2,000/-
(iv) Pain & sufferings Rs. 3,000/-
TOTAL Rs. 10,484/-
(rounded off) Rs. 10,000/-
RELIEF
118. Accordingly, I award a compensation of Rs. 10,000/- 83 (Rupees Ten Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
119. Since the amount of compensation awarded is small and that much must have been spent on the treatment, therefore, no order for investment of is passed.
Regarding injuries to Mahinder (349/07)
120. It is stated in the petition that the petitioner was aged about 28 years, was doing private service earning about Rs. 2500/- per month. He sustained head injuries and multiple abrasion on various parts of the body.
121. He examined himself as pW12 and filed his evidence by way of affidavit Ex. PW12/X. He deposed that he sustained grievous injuries on his head and other part of 84 the body and was admitted at Majeedia Hospital, Hamdard Nagar on 22.8.99 and was discharged on 31.8.99. Thereafter, he remained bed ridden for a period of about six months and after discharge from hospital he spent about Rs. 30,000/- on his treatment. He stated that he had lost the original bills. He claimed Rs. 10,000/- on special diet, Rs. 10,000/- on conveyance and claimed Rs. 20,000/- on pain and sufferings.
122. He filed the medical bills to the tune of Rs. 2849/-. IN view of the nature of the injuries suffered by injured, the same appears to be justified and hence granted. Admittedly, there is no permanent disability and on account of such injuries he would have remained out of work for a period of about two months accordingly there is loss of income for 85 two months which come to Rs. 5000/- (2500 x 2).
123. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income Rs. 5,000/-
(2500 x 2)
(ii) Medical expenses Rs. 2,849/-
(iii) Special diet & conveyance Rs. 2,000/-
(iv) Pain & sufferings Rs. 3,000/-
TOTAL Rs. 12,849/-
(rounded off) Rs. 13,000/-
RELIEF
124. Accordingly, I award a compensation of Rs. 13,000/- (Rupees Thirteen Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
86
125. Since the amount of compensation awarded is small and that much must have been spent on the treatment, therefore, no order for investment of is passed.
Regarding injuries to Master Ankit (346/07)
126. It is stated in the petition that the petitioner was aged about 5 years at time of accident. The petition is filed through his father Sh. Vijender.
127. PW14 Vijender deposed that his son Ankit was aged about 5 years and was student of Nursery. He was taken to Tarawanti Diagnostic Center, Dakshin Puri and was treated for fracture clavicle right side and head injuries. His treatment continued for six months and he was bed ridden. He stated that he had spent about Rs. 25,000/- on treatment apart from Rs. 5000/- on conveyance and Rs. 5000/- on 87 special diet. He further claimed Rs. 15,000/- on account of pain and sufferings, mental pain and agony. His son still feels the pain.
128. Admittedly, there is no permanent disability. The medical bills amounting to Rs. 884/- has been filed. They appears to be justified and hence granted. As per the X-ray report Ex. PW14/4 the child had suffered fracture on the clavicle right side and it would have taken about 2-3 months to recover. The child admittedly had no income, however, keeping in view the fact that the parents would have sacrificed their regular job for giving medical treatment therefore, on that account I grant a lumpsum of Rs. 5000/-.
129. Accordingly, I calculate the compensation payable to the petitioners as under:
88
(i) Loss of income to parents Rs. 5,000/-
(ii) Medical expenses Rs. 848/-
(iii) Special diet & conveyance Rs. 5,000/-
(iv) Pain & sufferings Rs. 5,000/-
TOTAL Rs.15,848/-
(rounded off) Rs.16,000/-
RELIEF
130. Accordingly, I award a compensation of Rs. 16,000/-
(Rupees Sixteen Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
131. Since the amount of compensation awarded is small and that much must have been spent on the treatment, therefore, no order for investment of is passed.
Regarding injuries to Master Abhishek (345/07) 89
132. It is stated in the petition that the petitioner was aged about 2 years at time of accident. The petition is filed through his father Sh. Vijender.
133. PW13 Vijender deposed that his son Abhishek sustained grievous injuries and fracture of upper end shaft of right femur. He was initially admitted to Government Hospital, Badra and then shifted to Tarawati Hospital, Dakshin Puri and thereafter shifted to Mool Chand Kharaiti Ram Hospital on 22.8.99 where he was operated upon on 23.8.99 and discharged on 24.8.99. He had paid Rs. 6500/- at Mool Chand Hospital. He stated that the he had incurred expenses to the tune of Rs. 50,000/- and his treatment continued for one year. He also had spent Rs. 5000/- on special diet. He further claimed Rs. 20,000/- on account of 90 pain and suffering and mental agony. His son still feels pain. PW18 proved the medical record Ex. PW18/A.
134. Admittedly, there is no permanent disability. The medical bills amounting to Rs. 8708/- has been filed. They appears to be justified and hence granted. The child with these kind of injuries would have remained bed ridden for a period of about 4-6 months which required special care and on that account the family must have sacrificed their regular job, therefore, on that account I grant a lumpsum of Rs. 10,000/-.
135. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income to the parentsRs. 10,000/-
(ii) Medical expenses Rs. 15,208/-
(6500 + 8708)
91
(iii) Special diet & conveyance Rs. 5,000/-
(iv) Pain & sufferings Rs. 10,000/-
TOTAL Rs. 40,208/-
(rounded off) Rs. 40,000/-
RELIEF
136. Accordingly, I award a compensation of Rs. 40,000/-
(Rupees Forty Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
137. Since the amount of compensation awarded is small and that much must have been spent on the treatment, therefore, no order for investment of is passed.
Regarding injuries to Vijender (344/07)
138. It is stated in the petition that the petitioner was aged 92 about 35 years, was self employed as driver earning about Rs. 3500/- per month. It is stated that he sustained fracture on nasal none, mandible maxilla and compound depressed fracture. He was treated at Mool Chand Kharaiti Ram Hospital and Ayurvedic Research Institute. He had filed the medical bills and the discharge slip of the hospital.
139. Initially the injured was admitted at Central Medical Center, Hissar for treatment thereafter he was shifted to Mool Chand. As per Ex. PW15/2 the discharge slip from the Mool Chand Kharaiti Ram Hospital & Ayurvedic Research Institute he was admitted on 21.8.99 the diagnosis is shown as head injury with craino fracial trauma, compound depressed fracture of frontal bone and orbit plus frontal sinus; fracture of nasal bone and fracture of mandible 93 maxilla. The date of discharge is 1.9.99 therefore, there is hospitalisation for about 10 days and with these kind of injuries it would have taken abut 2-3 months to recover. The final medical bill at Mool Chand hospital dated 1.9.99 is for Rs. 60,903/-. Then there are bills for regular visits.
140. He examined himself as PW15 for the injuries sustained by him and filed the documents Ex. PW15/1 to 49. He stated that after accident he was shifted to Central Medical Centre, Hissar and was admitted on 20.8.99 to 21.8.99 and he paid a sum of Rs. 5630/- for his medical treatment. He was discharged from there on 21.8.99 and shifted to Mool Chand where he was operated upon on 21.8.99 where he remained till 1.9.99. He incurred expense of Rs. 55,000/- at Mool Chand Hospital and after discharge 94 from hospital he was bed ridden for one year and used to go for follow up. He has spent about Rs. 2 lacs for his treatment.
141. Admittedly, there is no permanent disability, however, with these kind of injuries he would have remained out of work for a period of about six months therefore, there is loss of income to the tune of Rs. 21,000/- (3500 x 6).
142. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income Rs. 21,000/-
(3500 x 6)
(ii) Actual & estimated Rs. 70,000/-
Medical expenses
(iii) Special diet & conveyance Rs. 10,000/-
(iv) Pain & sufferings Rs. 10,000/-
95
TOTAL Rs. 1,11,000/-
RELIEF
143. Accordingly, I award a compensation of Rs. 1,11,000/- (Rupees One Lac Eleven Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
144. Most of the amount has been spent therefore no order investment is passed.
Regarding injuries to Baby Komal (341/07)
145. It is stated in the petition that the petitioner was aged about 6 years at time of accident. The petition is filed through her mother Smt Amrawati. The child suffered multiple grievous injuries and head injuries.
146. PW22 Smt. Amarwati was examined on account of 96 injuries sustained by her child. She stated that the child was treated at Orthonova Hospital and she had spent about Rs. 30,000/- for treatment of child, Rs.5000/- on special diet and Rs. 5000/- for conveyance. In her cross examination she stated that the child was not hospitalised.
147. As per the OPD card Ex. PW22/1 of Safdarjung Hospital X-ray was advised and as per the report there was hairline fracture on the middle shaft of tibia. Although no medical bills have been filed, however an estimated amount of Rs. 3000/- for medical treatment is granted. Further, with these kind of injuries the child would have remained bed ridden for a period of about 3 months and on that account the household chores would have been sacrificed by her family members therefore, on that account I grant a 97 lumpsum of Rs. 7000/-.
148. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income to parents Rs. 7,000/-
(ii) Medical expenses Rs. 3,000/-
(iii) Special diet & conveyance Rs. 4,500/-
(iv) Pain & sufferings Rs. 5,000/-
TOTAL Rs. 19,500/-
(rounded off) Rs. 20,000/-
RELIEF
149. Accordingly, I award a compensation of Rs. 20,000/-
(Rupees Twenty Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
150. Since the amount of compensation awarded is small 98 and that much must have been spent on the treatment, therefore, no order for investment of is passed.
Regarding injuries to Amarwati (339/07)
151. It is stated in the petition that the petitioner was aged about 30 years at time of accident, was a housewife and was doing the work of tailoring and earning about Rs. 2500/- per month. It is stated that she sustained multiple grievous injuries, head injuries and injuries on right shoulder and arm.
152. She examined herself as PW7 with respect to the injures sustained by her. She stated that after the accident she was admitted at Medical & Health Center, Rajasthan where the MLC was prepared thereafter she took treatment from AIIMS and also took private treatment. After discharge from hospital she remained bed ridden for about 99 six months and could not do the household chores. She had incurred expenses to the tune of Rs. 30-40,000/- for her treatment including special diet and conveyance.
153. Admittedly there is no permanent disability. She filed the documents Ex. PW7/5 to 20 and stated that he could not produce the original discharge summary Ex. PW7/4 which is of AIIMS dated 21.8.99. As per the Orthonova she was admitted on 26.8.99 and discharged on 27.8.99. The bill of Orthonova is amounting to Rs. 4793/-. She also filed the medicines bills of Rs. 83.72; 12.30. There are also some cash receipts of the payment made at Orthonova hospital for dressing, surgery etc. amounting to Rs. 6470/-, the same is also granted. With these kind of injuries she would have remained out of work for a period of 100 about one month therefore, there is loss of income of Rs. 2500/-
154. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income Rs. 2,500/-
(ii) Medical expenses Rs. 11,263/-
(iii) Special diet & conveyance Rs. 2,000/-
(iv) Pain & sufferings Rs. 3,000/-
TOTAL Rs. 18,763/-
(rounded off) Rs. 19,000/-
RELIEF
155. Accordingly, I award a compensation of Rs. 19,000/- (Rupees Nineteen Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
101
156. Since the amount of compensation awarded is small and that much must have been spent on the treatment, therefore, no order for investment of is passed.
Regarding injuries to Ram Avtar (351/07)
157. As per the petition the injured was working with Delhi Legal Aid Bar Association, Patiala House and he suffered fracture of right hand, multiple abrasion on various parts of body including chest injuries.
158. The injured examined himself as PW3 and stated that he sustained fracture on his right hand and the right hand finger got crushed due to which he suffered permanent physical disability in his right hand. After his discharge from the initial hospitalisation, he remained admitted at Orthonova hospital and he also took private treatment. He 102 stated that after discharge from hospital he remained bed ridden for six months. He stated that he was Government employee working with Delhi Legal Services Authority getting salary of Rs. 8000/- per month and he could not attend to his duties for six month. He also employed an attendant at the rate of Rs. 500/- per month. He had incurred expenses to the tune of Rs. 50,000/- of his treatment including special diet and conveyance.
159. In his cross examination he stated that he was working as safai karamchari. He had suffered fracture on the index finger and middle finger of his right hand. It was observed that the two fingers of right hand were disfigured. He stated that he cannot move his index finger and middle finger and cannot clench his fist. He remained admitted in 103 the hospital for one day and he remained on leave for six month.
160. No witness has been examined regarding the income of injured. The injured has filed medical bills amounting to Rs. 9398/-. The witness has filed the photocopies of the medical bills and it appears that this witness being a Government employee as per his own statement had availed the medical reimbursement scheme available to the Government servants. In the absence of the original bill the said amount cannot be granted. He also applied for disability certificate and as per Ex. PW3/3 he was directed to get the same from hospital at Rajasthan. Admittedly no disability certificate has been placed on record meaning thereby that the disability if at all suffered by him might be 104 curable therefore, he was not given the disability certificate. It has been observed in the cross examination that two finger of right hand were disfigured and the witness was not able to move the same. But as regards the injuries sustained causing disability, it must have affected his work. Now the question arise that in relation to the disability whether there is any loss of income? Firstly, no disability certificate has been granted and secondly it is not proved that this disability is in relation to his work. He has not stated that in relation to his work due to the disability suffered he had suffered any loss of income. As per Ex. PW3/2 the hospital had granted medical certificate from 12.10.99 to 10.12.99 and had declared him fit to join the duties from 14.12.99
161. Although, no income proof has been filed, however, 105 I take the income of the injured as Rs. 5000/- per month therefore, with these kind of injuries he would have suffered loss of income of Rs. 10,000/- (5000 x 2).
162. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income Rs. 10,000/-
(ii) Special diet & conveyance Rs. 2,000/-
(iii) Pain & sufferings Rs. 3,000/-
TOTAL Rs. 15,000/-
RELIEF
163. Accordingly, I award a compensation of Rs. 15,000/- (Rupees Fifteen Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
106
164. Since the amount of compensation awarded is small and that much must have been spent on the treatment, therefore, no order for investment of is passed.
Regarding injuries to Bishamber (347/07)
165. It is stated in that petition that the petitioner was aged about 35 years at time of accident. He was working as peon getting salary of Rs. 3000/- per month. It is stated that he sustained injuries on chest and head.
166. He examined himself as PW16 and filed his evidence by way of affidavit. He stated that he sustained injuries on chest and head and was admitted at Majeedia Hospital, Hamdard Nagar on 22.8.99 and was discharged from there on 26.8.99. Thereafter, he was bed ridden for six months and he paid Rs. 1165/- at Majeedia Hospital. He claimed to 107 have spent Rs. 20,000/- for his medical treatment and still feels pain in his body. He could not attend his office for six months and suffered loss of salary of Rs. 18,000/-. He also claimed to have spent about Rs. 5400/- on account of special diet and Rs. 9600/- on conveyance and also claimed Rs. 15,000/- on account of pain and sufferings.
167. Admittedly, there is no permanent disability. The petitioner has filed the medical bills for Rs. 1165/- the same appears to be justified and hence granted. As per the X-ray report there is no bone injury seen in the skull, however, fracture of left first rib prosterior is noticed. With these kind of injuries one is not able to do the normal work for a period of about 2-3 months and on that account there is loss of income of Rs. 9000/- (3000 x 3).
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168. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income Rs. 9,000/-
(3000 x 3)
(ii) Medical expenses Rs. 1,165/-
(iii) Special diet & conveyance Rs. 3,000/-
(iv) Pain & sufferings Rs. 7,000/-
TOTAL Rs. 15,165/-
(rounded off) Rs. 15,000/-
RELIEF
169. Accordingly, I award a compensation of Rs. 15,000/- (Rupees Fifteen Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
170. Since the amount of compensation awarded is small 109 and that much must have been spent on the treatment, therefore, no order for investment of is passed.
Regarding injuries to Savitri (348/07)
171. It is stated in the petition that the petitioner was aged about 30 years at time of accident. She was a housewife doing stitching and tailoring work earning about Rs. 2500/-. It is stated that she sustained head injuries and multiple abrasion on various parts of body.
172. She examined herself as PW11 and deposed that she sustained head injuries and also sustained injuries on her right eye, right arm and right leg. She was received as emergency case at AIIMS and was thereafter admitted at Majeedia hospital on 22.8.99 and was discharged from there on 26.8.99. She spent Rs. 10,000/- on medical expenses and 110 after discharge from hospital she remained in bed for about six months and continued private treatment. Due to the injuries she could not do any work and suffered loss of income for six months to the tune of Rs. 15,000/-. She spent Rs. 10,000/- on special diet, Rs. 10,000/- on conveyance and claimed Rs. 50,000/- on pain and sufferings.
173. Admittedly, there is no permanent disability. She had filed the medical bills which are amounting to Rs. 2569/-. They appears to be justified and hence granted. In view of these injuries one would have remained out of work for one month therefore, there is loss of income of Rs. 2500/-.
174. Accordingly, I calculate the compensation payable to the petitioners as under:
111
(i) Loss of income Rs. 2,500/-
(2500 x 1)
(ii) Medical expenses Rs. 2,569/-
(iii) Special diet & conveyance Rs. 2,000/-
(iv) Pain & sufferings Rs. 3,000/-
TOTAL Rs. 10,069/-
(rounded off) Rs. 10,000/-
RELIEF
175. Accordingly, I award a compensation of Rs. 10,000/- (Rupees Ten Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
176. Since the amount of compensation awarded is small and that much must have been spent on the treatment, therefore, no order for investment of is passed. 112
Regarding injuries to Cheena (353/07)
177. It is stated in the petition that the petitioner was aged about 35 years at time of accident. She was as housewife doing stitching work earning about Rs. 2500/-. It is stated that she sustained fracture on shaft humerous, chest injuries and multiple abrasion on various parts of body.
178. She examined herself as PW20 and filed her evidence by way of affidavit. She deposed on the lines of petition and stated that she sustained fracture on the left shaft humerous and also sustained injuries on body. She was admitted at Safdarjung hospital on 21.8.99 where the MLC was prepared. After discharge from the hospital she remained at home for a week and thereafter developed complication and was again admitted in hospital at Batra 113 Hospital on 1.9.99. She was discharged from there on 6.9.99 where she was operated upon and had paid Rs. 41,329/- at Batra Hospital. She claimed that she spent about Rs. 1 lac on her treatment. After discharge from hospital she remained bed ridden for six month. She claimed Rs. 10,000/- on special diet, Rs. 10,000/- on conveyance and Rs. 50,000/- on account of pain and sufferings.
179. Admittedly, there is no permanent disability. She has filed the medical bills amounting to Rs. 41,329/- the same appears to be justified and hence granted.
180. PW17 Sh. Mohan Lal Sareen- record technician from Batra Hospital proved the medical record of injured Ex. PW17/A. PW19 Sh. Narender Paul Singh- UDC from Safdarjung Hospital proved the X-ray report of injured and 114 as per the X-ray report Ex. PW19/B there is fracture of nasal bone and left humerus and as per the admission and discharge record at Batra Hospital the diagnosis is given as fracture of shaft left humerus. With these kind of injuries the injured would have remained out of work for a period of about 4-6 months therefore, there is loss of income to the tune of Rs. 15,000/- (2500 x 6).
181. Accordingly, I calculate the compensation payable to the petitioners as under:
(i) Loss of income Rs. 15,000/-
(2500 x 6)
(ii) Medical expenses Rs. 41,329/-
(iii) Special diet & conveyance Rs. 5,000/-
(iv) Pain & sufferings Rs. 10,000/-
TOTAL Rs. 71,329/-
115
(rounded off) Rs. 71,000/-
RELIEF
182. Accordingly, I award a compensation of Rs. 71,000/- (Rupees Seventy One Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
183. Since the amount of compensation awarded is small and that much must have been spent on the treatment, therefore, no order for investment of is passed.
184. As regards the liability, respondent no 1 being the driver and respondent no 2 being the owner are joint tort feasor and are jointly and severally liable to pay the compensation to the petitioner. Respondent no 3 being the insurer is liable to indemnify insured.
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185. Accordingly, respondent no 3 is directed to pay the compensation by way of cheque in the name of petitioners. No order as to cost. A copy of this order be supplied free of cost. File be consigned to the record room.
ANNOUNCED IN OPEN COURT GURDEEP SINGH
th
the 30 of November, 2007 ADDITIONAL DISTRICT JUDGE DELHI.