JUDGMENT R.C. Jain, J.
1. The petitioners have filed this petition under Article 226 of the Constitution for a suitable writ, order or direction primarily claiming reasonable amount of compensation in regard to the custodial death of Sushil Kumar. The petitioner had earlier approached the Supreme Court with a similar prayer, but the Supreme Court dismissed the petition with liberty to the petitioner to move this court.
2. In the reply affidavit filed on behalf of the respondent, the factum of above-named person having died on account of injuries caused to him at the hands of the police officials namely S.I. Rajbir Singh, H.C. Kesar Singh, Constables Jai Prakash, Robin and Rohtas is not disputed and it is stated that those police officials are facing trial in the court of Additional Sessions Judge for the offences committed by them. Having regard to the Supreme Court decisions starting from the case of Neelbati Behra, there is no denial of the legal position that the state under public law is vicariously liable to compensate the legal heirs of the deceased who has met the custodial death at the hands of official of the State. The petitioners are within their rights to seek compensation in the present case. Therefore, the only question left is in regard to the quantum of such compensation, which can be awarded to the petitioners and to which of the petitioners, having regard to all relevant factors i.e. the age of the deceased, the occupation he practiced at the time of his death and the income which he was generating from the said occupation. It is stated in the petition that the petitioner was running a STD booth and along with the said booth he was also dealing in certain other activities like sale of mobile cash cards and of petty goods etc. and was generating an income of around Rs. 10,000/- p.m., which aspect remains unrebutted on record.
3. Having regard to the above nature of the business in which the deceased was engaged, this court can safely presume that the income of the deceased would be not less than Rs. 8000/- to Rs. 10,000/- p.m. Deceased was aged about 32 years at the time of his death and has left behind a wife and two children namely Priyanka aged about 10 years and Shivangi aged about 7 years, who have been left in a distress on account of untimely death of Sushil Kumar.
4. Having regard to the totality of the facts and circumstances, this court considers that it would be appropriate and would adequately meet the ends of justice, if a compensation of Rs. 3,50,000/- is awarded to the petitioners 1 to 3 only because petitioners 4 and 5 are the brothers of the deceased and having regard to the scheme of the Hindu Succession Act, cannot be stated to be the legal heirs of the deceased entitled to any compensation. Even otherwise, the counsel for the petitioner submits that petitioners 4 and 5 give up their claim of compensation and that entire compensation which may be awarded may be given to petitioners 1 to 3. Out of amount of Rs. 3,50,000/-(rupees three lacs fifty thousand), Rs. 50,000/-(rupees fifty thousand) shall be payable to petitioner No.1 wife of the deceased and the remainder amount of Rs. 3 lacs (rupees three lacs) be invested in three FDRs of Rs. 1 lacs each of a nationalized Bank in the names of petitioner Nos. 1, 2 and 3 respectively. The FDR in the name of petitioner No.1 shall not be redeemable before the expiry of 5 years while the FDRs in the name of petitioners 2 and 3 (minors) shall not be redeemable before they attain the age of majority. The State shall be at liberty to recover the amount of compensation from the police officials as may be advised.
5. Compliance of this order shall be made within 6 weeks from today and a report be filed in the Registry in that behalf.
6. Petition stands disposed of accordingly.
7. dusty.