Delhi High Court
Swarn Singh vs Union Of India & Ors. on 17 March, 2010
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 4242/2006
Reserved on: January 21, 2010
Decision on : March 17, 2010
SWARN SINGH ..... Petitioner
Through Ms. Aruna Mehta, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Ajay Arora with
Mr. Kapil Dutta, Advocate for MCD.
Mr. Amiet Andlay, Advocate for R-2.
Ms. Geetanjali Mohan, Advocate for Railways.
W.P.(C) 4243/2006
RAMESH KUMAR ..... Petitioner
Through Ms. Aruna Mehta, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through Mr. Ajay Arora with
Mr. Kapil Dutta, Advocate for MCD.
Ms. Geetanjali Mohan, Advocate for Railways.
Ms. Ruchi Sindhwani with Ms. Bandana
Shukla, Advocate for R-2
W.P.(C) 4253/2006
PUSHPA DEVI & ORS ..... Petitioners
Through Ms. Aruna Mehta, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Ajay Arora with
Mr. Kapil Dutta, Advocate for MCD.
Ms. Geetanjali Mohan, Advocate for Railways.
Ms. Payal Srivastava, Advocate for R-2
W.P.(C) 4300/2006
SUNITA DEVI & ORS. ..... Petitioners
Through Ms. Aruna Mehta, Advocate
versus
WP(C)Nos.4242, 4243, 4253, 4300, 4494 & 4506/2006 Page 1 of 26
UNION OF INDIA & ORS ..... Respondents
Through Mr. Ajay Arora with
Mr. Kapil Dutta, Advocate for MCD.
Ms. Geetanjali Mohan, Advocate for Railways.
Ms. Ruchi Sindhwani with Ms. Bandana
Shukla, Advocate for R-2
W.P.(C) 4494/2006
RAMESH ..... Petitioner
Through Ms. Aruna Mehta, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through Mr. Ajay Arora with
Mr. Kapil Dutta, Advocate for MCD.
Ms. Geetanjali Mohan, Advocate for Railways.
Ms. Payal Srivastava, Advocate for R-2.
And
W.P.(C) 4506/2006
SANTOSH KUMARI ..... Petitioner
Through Ms. Aruna Mehta, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through Mr. Ajay Arora with
Mr. Kapil Dutta, Advocate for MCD.
Ms. Geetanjali Mohan, Advocate for Railways.
Ms. Ruchi Sindhwani with Ms. Bandana
Shukla, Advocate for R-2
CORAM: JUSTICE S. MURALIDHAR
1. Whether reporters of local paper may be allowed
to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be referred in the digest? Yes
JUDGMENT
1. These are six petitions arising from a common set of facts and are
accordingly disposed of by this common judgment.
2. Six persons, namely, Swarn Singh, aged 23 years, s/o Munshi Ram;
Ramesh Kumar, aged 40 years, s/o Prakash Chand; Ramesh, aged 40
years, s/o Ram Singh; Raj Singh, aged 35 years, s/o Puran Singh; Raj
Singh, aged 38 years, s/o Gyan Chand and Sardar Singh, aged 38 years
s/o Tirath Singh, were working as Paledars (Loaders) with different
transport companies which were having their godowns behind the wall
near property No. 1716/19 Pili Kothi which was believed to belong to
the Railways. While these persons were taking a tea break at around
5.18 a.m. on 1st October 2004, the dilapidated wall of the property in
question collapsed on these six persons. Three of them, Raj Singh, s/o
Puran Singh, Raj Singh s/o Gyan Chand and Sardar Singh s/o Tirath
Singh succumbed to their injuries. The remaining three, Swarn Singh s/o
Munshi Ram, Ramesh Kumar s/o Prakash Chand and Ramesh s/o Ram
Singh suffered grievous injuries.
3. An FIR No. 335 of 2004 dated 1st October 2004 registered at Police
Station, Lahori Gate, arising out of the said incident states that
information was received through Police Control Room (PCR)
Constable Vinod on 1st October 2004 to the effect that at about 5.18 am
"one rear wall near the bank in front of property No.1716/19 Pili Kothi
had collapsed and many persons had buried under the malba". On
getting this information, SI Naresh Kaushik working at PS Lahori Gate
reached the site where other policemen also arrived. It was noticed that
the wall was about 15 ft. in height and about 50-60 ft. in length. The
incident took place on the collapsing of the wall which was very old. It
further stated that around 10 persons were buried under the collapsed
wall. The injured persons were rushed to the hospital.
4. The present petitions are by the injured persons and the legal
representatives of the deceased seeking compensation.
5. While the above facts are not in dispute, there appears to be a dispute
between the Railways on the one hand and the Municipal Corporation of
Delhi (MCD) on the other. Railways are arraigned as Respondent No.1
and MCD as Respondent No.3. Each is trying to palm off the liability
for payment of compensation to the other. According to the Railways,
the property in question measuring about 811 sq. yds. is situated in front
of the Delhi Main Railway Hospital and by the side of the MCD TB
Clinic. It was leased out to the Railways on a perpetual lease since 1927.
The plot had been taken on lease from MCD in 1920 by one Shri Madan
Gopal Khatri. In 1927 Madan Gopal Khatri sold his right in the property
to Lal Banke Rai who in turn assigned his rights to the Secretary of State
for India (North Western Railway). The Railways have been using the
building as a clearing account office since 1952. The building had been
burnt down during the "Quit India Movement". Since then the plot had
been lying vacant.
6. It is then stated that on 15th June 1999, the Additional Commissioner
(R), MCD cancelled the said lease in respect of the plot and directed the
Railways to hand over the possession forthwith. It is alleged that on 23rd
July 1999 the possession of the property was forcibly taken by the MCD
which had put a lock on the entry gate and had also fixed a display board
showing its possession.
7. Protesting against the above action, the Railways filed a Civil Writ
Petition No.4055 of 1999 in this Court. This Court appointed Justice
Jaspal Singh, a retired Judge of this Court as Arbitrator and referred the
following question to him for adjudication:
"Whether the MCD is justified in revoking the perpetual lease
deed dated 6.8.1920 in respect of property bearing Plots No. 2
to 5 adjacent to Pilli Kothi, Queens Road, Delhi on account of
alleged violation of the terms and conditions of the lease deed
dated 6th August, 1920 and taking possession thereof, if so, to
what effect?"
8. Mr. Justice Jaspal Singh gave his Award on 20th May 2003 holding
that though the MCD was not justified in taking forcible and illegal
possession of the disputed plot, the MCD was justified in revoking the
lease on account of the violation of its terms by the Railways. It is stated
that the Railways thereafter filed OMP No.5 of 2003 in this Court
challenging the Award. According to the Railways, it was apparent from
the Award that on the date of the incident, i.e., 1st October 2004, more
than a year and half after the Award was made, the possession of the plot
was with the MCD. It is stated that the reply filed by the MCD in the
OMP also bears this out.
9. The MCD, on the other hand, refers to what the Railways have stated
in OMP No. 5 of 2003 in this Court. It is stated that the Railways
"cannot be allowed to blow hot and cold in the same breath and having
admitted the possession of the land in dispute, it cannot be allowed to
take a diametrically opposite stand."
10. A reference is also made to the order dated 6th October 1999 passed
in this Court in WP(C) No. 4055 of 1999 whereby the MCD was asked
to remove its display boards. The request of the Railways for posting the
Railway Protection Force in the property was accepted. Status quo in
respect of the premises was directed to be maintained.
11. According to the MCD, in relation to the FIR lodged arising out of
the incident, the MCD had been asked by the Magistrate to file a reply
regarding the possession and ownership of the site where the incident
took place. It is stated that the case is pending for framing of charges. In
short, the MCD denies any liability for payment of compensation to the
legal heirs of the deceased and to the injured.
12. From the replies filed by the Respondents in the petition, it appears
that none of them is disputing the fact that the incident took place in the
manner described in the FIR. They are not denying the identities of the
persons who were killed and of the persons who were injured as a result
of the collapse of the wall. That the wall was in a dilapidated condition,
is also not denied. Interestingly, it is also not denied that the Petitioners
are liable to be compensated. The only dispute is about who should
compensate them, the answer to which really hinges on who can be said
to be in possession of the property on the date of the incident.
13. In relation to the said question, the facts as well as the dispute
between the Railways and the MCD have been encapsulated in the order
dated 6th August 1999 of this Court in Writ Petition (Civil) No. 4055 of
1999. The said order reads as under:-
"Rule.
Heard.
Four plots bearing Nos. 2 to 5 situated at Queens Road adjacent
to Pilli Kothi were sold out by public auction by the Municipal
Committee of Delhi on 9th July, 1919 to Shri Madan Gopal. A
perpetual lease was executed on 6th August, 1920 between Sh.
Madan Gopal and the Municipal Committee. The rights in the
aforesaid property/plots along with the building thereon was
sold by Sh. Madan Gopal to one Lala Bankey Rai on 18th July,
1927. On that very day Lala Bankey Rai assigned all his rights,
title and interest in the said plots and the building crested
thereon to the Secretary of the State for India. Thereafter the
building was used to accommodate the Railway Clearing
Accounts Office. The building was gutted in 1942. Difference
having arisen between the Municipal Committee and the
Government General of Council as owner of the North Western
Railway, the same were referred to arbitration. The award was
made on 11th November, 1944 holding that MCD was not
entitled to repossession of the building on account of its use as
office between 1927 and 1942. Notice was issued by the
Municipal Corporation of Delhi on 8th April, 1999 for
cancellation of the lease deed. Reply to the said notice was filed
by the petitioner on the 28th May, 1999. An order was passed by
the respondent/MCD dated 11/15th June, 1999 informing the
petitioner that the lease was cancelled and vacant possession be
handed over forthwith to the respondents. It is in these
circumstances that the present petition came to be filed.
The deed of perpetual lease dated 6th August, 1920 provides for
reference of disputes and differences between the lessor and the
lessee to arbitration.
Counsel for the parties are agreed that the disputes and
differences as set out in the scope of reference hereafter be
referred to arbitration in terms of clause 11 of the lease deed
executed on 6th August, 1920 between Municipal Corporation
of Delhi and the predecessor-in-title of the petitioner. It is also
agreed between the parties that this court shall nominate the
Arbitrator and the parties shall abide by the order of this court.
The scope of reference, as agreed to by the counsel for the
parties, is as under:
"Whether the MCD is justified in revoking the perpetual
lease deed dated 6.8.1920 in respect of property bearing
plots No. 2 to 5 adjacent to Pilli Kothi, Queens Road,
Delhi on account of alleged violation of the terms and
conditions of the lease deed dated 6th August, 1920 and
taking possession thereof, if so, to what effect?"
In the circumstances I appoint Mr. Justice Jaspal Singh, a
retired Judge of this Court as Arbitrator to decide the aforesaid
disputes between the parties. The Arbitrator shall be at liberty
to fix his fee in the matter.
Possession of the property in dispute was taken by the MCD on
23rd July, 1999 by the MCD during the pendency of the present
proceedings. There is a boundary wall, constructed around the
property and the MCD has put its lock on the entry gate and has
also put up display boards showing its possession. The watch
and ward staff of the MCD is stated to be present in the said
property. However, keeping in view the nature of the dispute
between the parties and the circumstances in which the
possession was taken, the request of the counsel for the
petitioner for posting of the Railway Protection Force in the
said property is accepted. The petitioner shall be at liberty to
post the Railway Protection Force in the said premises till the
disposal of the arbitration proceedings and the respondents shall
not object to their presence. This is without prejudice to the
rights of the parties and the outcome of the arbitration
proceedings.
In view of the aforesaid arrangement it would be proper if the
MCD shall remove their display board till the matter is decided
by the arbitrator.
Subject to the aforesaid status quo in respect of the premises be
maintained as on today. Neither party shall create any third
party rights in the property.
With these observations the writ petition is disposed of."
14. Consequent to the above reference, Justice Jaspal Singh gave his
Award on 20th May 2003. He notes in his Award that the following
events took place after the notice dated 15th June 1999 issued by the
Additional Commissioner (R), MCD:
"It appears that pursuant to the above said "Order" the officials
of the Municipal Corporation of Delhi went to the spot to take
possession but as the Railway officials refused to hand over
possession, another opportunity "for seven days" was granted
for delivery of possession "peacefully". Since this too had no
effect, the Municipal Corporation of Delhi took possession of
the land in question on July 23, 1999. It appears from the order
of the High Court of August 6, 1999 that there is a boundary
wall constructed around the property and consequent upon
taking possession, the Municipal Corporation had not only put
lock on the entry gate but had also posted its watch and ward
staff in it. The High Court, it further appears, has allowed the
Railway Department to post its Railway Protection Force "in
the said premises". Admittedly, now there is no lock on the gate
of the boundary wall, the sign board put up by the Municipal
Corporation showing its possession is also not there and we
find within the property not only the watch and ward of the
Municipal Corporation of Delhi but also the Railway Protection
Force."
15. The Award then proceeds to hold that the Railways have been in
breach of the terms of the lease. It further records that the officers of the
MCD took law into their own hands in dispossessing the Railways "by
the display of force" and therefore exhibited "a callous disregard of the
normal requirements of the rule of law". The question posed for the
adjudication of the Arbitrator was answered as under:
"The question posed in the order of the High Court dated
August 16, 1999 is thus answered as under:
(i) The Municipal Corporation of Delhi is justified in
revoking the lease on account of the violation of its
terms as noted above, and
(ii) In the circumstances of the case for the reasons
delineated above, the Municipal Corporation was not
justified in taking possession in the manner as noted
above."
16. It is apparent to this Court on a reading of the order dated 6 th August
1999 passed by this Court in Writ Petition (Civil) No. 4055 of 1999 and
the Award of the learned Arbitrator that as of the date of the Award, i.e.,
20th May 2003 the board of the MCD on the property had been removed.
The Railway Protection Force was guarding the premises. Interestingly,
the Award records that there is no lock on the gate of the boundary wall
but "within the property not only the watch and ward of the
Municipal Corporation of Delhi but also the Railway Protection
Force" was found.
17. In the OMP No. 5 of 2003 filed in this Court, the Railways have
stated in para 13 as under:-
"That it is submitted that the Respondents and its officials
without any lawful authority and in utter violation of its
obligations forcibly entered the premises and took the
possession. They also installed their locks at the outer gate of
the premises and also displayed their board. This action of the
Respondents was totally unwarranted, illegal and contrary to
the terms of lease deed and against the ratio of several
judgments of the Apex Court on this point. The said locks had
to be directed by the Hon'ble High Court of Delhi to be
removed including the display boards put up by the
Respondents and as on date, the Petitioner is guarding the
property."
18. In reply to the paras 12 and 13, the MCD has stated as under:
"12. Para No.12 of the petition is wrong and denied. It is
submitted that the possession of the land was taken as per law.
13. Para No. 13 of the petition is wrong and denied. It is
emphatically denied that the answering respondent without any
lawful authority and in utter violation of its obligations forcibly
entered into the premises. It is submitted that it is the petitioner
who was using the plot in utter violation of the terms and
conditions. It is further submitted that a violator cannot be
allowed take shelter of law."
19. The above stands of the two Respondents, i.e., the Railways on the
one hand and the MCD on the other, do not bring out a clear picture as
to which of them was in possession of the property in question on the
date of the incident. However, if one went by the Award of the
arbitrator, then both the Railway Protection Force as well as the officials
of the MCD were found guarding the property. There was no lock on the
premises. Pursuant to the orders of this Court passed on 6th August 1999,
the parties were directed to maintain status quo.
20. It appears to this Court that till the time the incident happened, each
party was only too eager to claim to be in possession of the property in
question. However, after the incident, when the question of payment of
compensation for the deaths and injuries has arisen, each party wants to
argue to the contrary, in order to escape liability. This change of stand is,
in the considered view of this Court, most unfortunate.
21. In order to ensure that the poor persons who have lost earning
members of their family, this Court proceeds on the observation made in
the Award that as on the date of the Award i.e., 20 th May 2003, the
watch and ward of both the MCD and the Railway Protection Force
were found at the property, unless there is a finding in the proceedings
challenging the award, that the above position did not continue on the
date of the incident, i.e., 1st October 2004, and that only one of the
parties was in possession on that date, the presumption would be that as
on 1st October 2004 both were in possession of the property in question.
Consequently, this Court directs that both the Railways and the MCD
should share the liability in equal halves. It will, however, be open to
either party to be reimbursed by the other depending on whether the
question as to who was in possession on that date comes to be decided in
OMP No. 5 of 2003.
22. The Supreme Court and this Court have awarded compensation for
deaths or injuries on account of the failure of the State agencies to
exercise reasonable care in maintaining essential services in several
cases. For example, see Rudul Sah v. State of Bihar (1983) 4 SCC 141,
Nilabati Behera v. State of Orissa (1993) 2 SCC 746, Shakuntala v.
Govt. of NCT of Delhi 2009 (162) DLT 264, Smt. Kamla Devi v. Govt.
of NCT of Delhi 114 (2004) DLT 57, Rishalo Devi v. Secretary (NCT
of Delhi) & Ors. 167 (2010) DLT 211, Smt. Shyama Devi v. NCT &
Ors 78 (1999) DLT 827, Darshan v. Union of India 79 (1999) DLT
432, Ashwani Gupta v. Govt. of India 117 (2005) DLT 112, Ashok
Sharma v. Union of India ILR (2008) 1 Delhi 96, Master Dheeru v.
Govt. of NCT of Delhi 160 (2009) DLT 759 and Ram Kishore v. MCD
2007 VII AD (Delhi) 441.
23. The question that arises in the present case relates to the quantum of
compensation to which each of the Petitioners is entitled. There are
sufficient precedents to substantiate the claim of the Petitioners. The
calculations as regards the compensation payable to these Petitioners set
out as under are as per the income of the petitioners on the date they
suffered injuries.
Calculation of compensation payable in case of death
24. This Court, in Kamla Devi v. Govt. of NCT of Delhi [followed in
Ram Kishore v. MCD and Ashok Sharma v. Union of India 2009 ACJ
1063] has propounded that standard compensation for non-pecuniary
losses and compensation for pecuniary loss of dependency be calculated
separately and added up to arrive at the total amount of compensation
payable. The age, income and the number of dependents of the deceased
are considered as relevant indicators. The same method is being adopted
in these cases and is explained hereunder.
25. As it is one common accident which caused the deaths, the standard
compensation for non-pecuniary losses would also be the same. The
Standard Compensation in 1989 is taken to be Rs. 50,000/- as
propounded in Lata Wadhwa v. State of Bihar (2001) 8 SCC 197. The
said sum is required to be adjusted for October 2004, when the incident
took place, based on the Consumer Price Index for Industrial Workers
(CPI-IW), published by the Labour Bureau, Government of India. With
the base year 1982(=100), the average CPI (IW) for the year 1989 was
171 and the average CPI (IW) for the year 2004 was 514. Hence, the
inflation-corrected value works out to Rs. 1,50,000/- [50,000 x 514/171].
The Standard Compensation, for each of the deceased thus, is Rs.
1,50,000/-.
Calculation of compensation for pecuniary loss of dependency in
individual cases
W.P.(C) 4253/2006 (Pushpa Devi & Ors. v. Union of India & Ors.)
26.1 In W.P. (C) 4253/2006, a compensation of Rs. 15 lakh has been
claimed by the Petitioners, viz., Pushpa Devi, the widow of the
deceased, Pritam Singh and Munna, minor sons; Neha Devi, minor
daughter; Puran Singh, the father; and Shani Devi, the mother. The
deceased, Raj Singh, was 35 years old at the time of the accident and
earned Rs. 4,500/- per month.
26.2 To calculate the compensation for pecuniary loss of dependency,
the multiplier method (multiplier value given in the Second Schedule of
the Motor Vehicles Act, 1988 Yearly income of the deceased less the
amount spent on himself or herself) is used. This is consistent with the
procedure adopted in G.M., Kerala SRTC v. Susamma Thomas AIR
1994 SC 1631, Mrs. Sudha Rasheed v. Union of India 1995 (1)
SCALE 77, U.P. State Road Transport Corporation v. Trilok
Chandra (1996) 4 SCC 362, Smt. Kamla Devi v. Govt. of NCT of
Delhi, Ram Kishore v. MCD and Ashok Sharma v. Union of India.
26.3 The method of calculating the amount spent on oneself as
explained in Smt. Kamla Devi v. Govt. of NCT of Delhi 114 (2004)
DLT 57 reads as under:
"This (the multiplicand) is calculated by dividing the
family into units - 2 for each adult member and 1 for
each minor. The yearly income is then to be divided
by the total number of units to get the value of each
unit. The annual dependency loss is then calculated
by multiplying the value of each unit by the number
of units excluding the two units for the deceased
adult member."
26.4 In the present case, the deceased, Raj Singh, had old parents, a
widow and three minor children. The value of each unit thus works out
to 4909 (54,000/11). Therefore, the multiplicand would be 44,182
(Gross annual income - the value of two units = 54,000-9818).
Multiplying this by 16 as per the Second Schedule to the MVA 1988, a
figure of Rs. 7,06,912/- is obtained, which when rounded off to Rs.
7,07,000/-, constitutes the pecuniary compensation payable by the
Respondents.
26.5 Consequently, adding the standard compensation for non-pecuniary
losses and the compensation for pecuniary loss of dependency, the total
compensation payable by the respondents, Railways and the MCD, in
equal halves to the petitioners, Pushpa Devi, Pritam Singh, Munna, Neha
Devi, Puran Singh, and Shani Devi, is computed at Rs. 8,57,000/-, the
break up of which is as under:
Standard compensation for non-pecuniary losses Rs. 1,50,000/-
Compensation for pecuniary loss of dependency Rs. 7,07,000/-
_____________
Total compensation Payable Rs. 8,57,000/-
W.P. (C) 4300/2006 (Sunita Devi & Ors. v. Union of India & Ors.)
27.1 In W.P. (C) 4300/2006, a compensation of Rs. 15 lakh has been
claimed by the Petitioners i.e. Sunita Devi, the widow of the deceased;
Ajay Kumar and Arun Singh, sons; Jyoti Devi, daughter; Gyan Chand,
the father and Dayie, the mother. The deceased, Raj Singh, was 38 years
old at the time of the accident and earned Rs. 4,500/- per month.
27.2 To calculate the compensation for pecuniary loss of dependency,
we shall use the multiplier method as explained above. In the present
case, the deceased, Raj Singh, had old parents, a widow and three minor
children. The value of each unit thus works out to 4909 (54,000/11).
Therefore, the multiplicand would be 44,182 (Gross annual income - the
value of two units = 54,000-9818). Multiplying this by 16, as per the
Second Schedule to the MVA 1988, a figure of Rs. 7,06,912/- is
obtained, which when rounded off to Rs. 7,07,000/-, constitutes the
pecuniary compensation payable by the Respondents.
27.3 Consequently, adding the standard compensation for non-pecuniary
losses and the compensation for pecuniary loss of dependency, the total
compensation payable by the respondents, the Railways and the MCD,
in equal halves, to the petitioners, Sunita Devi, Ajay Kumar, Arun
Singh, Jyoti Devi, Gyan Chand and Dayie, is computed at Rs.
8,57,000/-, the break up of which is as under:
Standard compensation for non-pecuniary losses Rs. 1,50,000/-
Compensation for pecuniary loss of dependency Rs. 7,07,000/-
_____________
Total compensation Payable Rs. 8,57,000/-
W.P. (C) 4506/2006 (Santosh Kumari & Ors. v. Union of India & Ors.)
29.1 In W.P. (C) 4506/2006, a compensation of Rs. 15 lakh has been
claimed by the Petitioners, viz., Santosh Kumari, the widow of the
deceased; Nitin Kumar and Rishi Pal, sons; Tirath Ram, the father and
Suman Kumari, the mother. The deceased, Sardar Singh was 38 years
old at the time of the accident and earned Rs. 4,500/- per month.
29.2 In the present case, the deceased had old parents, a widow and two
minor children. The value of each unit thus works out to 5,400
(54,000/10). Therefore, the multiplicand would be 43,200 (Gross annual
income - the value of two units = 54,000-10,800). Multiplying it by 16
as per the Second Schedule to the MVA 1988 gives a figure of Rs.
6,91,200/-, which constitutes the pecuniary compensation payable by the
Respondents calculated using the multiplier method.
29.3 Consequently, adding the standard compensation for non-pecuniary
losses and the compensation for pecuniary loss of dependency, the total
compensation payable by the respondents, the Railways and the MCD,
in equal halves, to the petitioners, Santosh Kumari, Nitin Kumar, Rishi
Pal, Tirath Ram and Suman Kumari, is computed at Rs. 8,41,200/-.
Standard compensation for non-pecuniary losses Rs. 1,50,000/-
Compensation for pecuniary loss of dependency Rs. 6,91,200/-
_____________
Total compensation Payable Rs. 8,41,200/-
Calculation of compensation in the injury cases
30. Though the facts and circumstances of each case and the nature of
injury is bound to be different, the basic norms for injury cases have
been discussed by the Supreme Court in several cases including, R.D.
Hattangadi v. Pest Control (India) Pvt. Ltd. (1995) 1 SCC 551, Lata
Wadhwa & Ors. v. State of Bihar (2001) 8 SCC 197 and Divisional
Controller, KSRTC v. Mahadeva Shetty & Anr. (2003) 7 SCC 197.
This Court in Sher Singh v. Naresh Kumar & Ors. 2009 ACJ 358 has
recently discussed various cases where compensation was awarded in
case of injury.
W.P. (C) 4242/2006 (Swarn Singh v. Union of India & Ors.)
31.1 In W.P. (C) 4242/2006, the Petitioner suffered a fracture in the left
femur and head injuries. The left femur never joined properly and the
Petitioner continues to have a 20% permanent partial disablement
according to the affidavit of the doctor, which is not disputed. The
Petitioner was 23 years old at the time of the accident and lived with his
parents earning an income of Rs. 4,500/- per month. In spite of
undergoing regular treatment for about a year, he would not be able to
undertake the work of a paledar again. He thus claims a total
compensation of Rs. 6,67,600. Rs. 15,000/- for medical expenses, Rs.
8,000/- for conveyance, Rs. 30,000/- for special diet, loss of income of
one year Rs. 54,000/-, Rs. 1,53,000/- for loss of future income, Rs.
1,00,000/- for mental pain and agony, Rs. 50,000/- lakh for loss of
amenities of life, Rs. 1,00,000/- for permanent disability, Rs. 50,000/-
for loss of expectation of life, Rs. 57,600 for gratuitous services
rendered by family members and Rs. 50,000/- for loss of marriage
prospects.
31.2 Following the broad scheme of Sher Singh, Rs. 35,000/- (15,000 +
12,000 + 8,000) for medical expenses, special diet and conveyance and
Rs. 54,000/- (4,500 12) for loss of income for one year are payable.
Multiplying the annual income of the Petitioner with the multiplier given
in the Second Schedule of the Motor Vehicles Act, 1988 and the
percentage of permanent partial disablement, a sum of Rs. 1,83,600/- is
arrived at, which is payable towards loss of earning capacity (5,400 17
20%). Rs. 25,000/- is payable towards pain and suffering and Rs.
50,000/- towards non-pecuniary damages for loss of amenities and
future prospects. This Court thus finds a sum of Rs. 3,47,600/- to
constitute fair and reasonable compensation payable to the petitioner,
Swarn Singh, by the respondents, the Railways and the MCD, in equal
halves. The break up of the said amount is as under:
Medical expenses, special diet and conveyance Rs. 35,000/-
Loss of income for one year Rs. 54,000/-
Loss of earning capacity Rs. 1,83,600/-
Pain and suffering Rs. 25,000/-
Loss of amenities and future prospects Rs. 50,000/-
____________
Total compensation payable Rs. 3,47,600/-
------------------
W.P. (C) 4243/2006 (Ramesh Kumar v. Union of India & Ors.)
32.1 In W.P. (C) 4243/2006, the Petitioner suffered a fracture in his
femur, the pelvic bone and also a urinary bladder rupture. He had to
undergo a urethroplasty surgery on 21st November, 2005 which failed
and a repeat surgery is advised. The Petitioner has to undergo
catheterization every month which costs Rs. 3,000/-. According to the
affidavit of the doctor, which is not disputed, the Petitioner has suffered
a 15% permanent partial disablement, one of his legs has become shorter
and he can never undertake the work of a paledar. He was 40 years old
at the time of the incident and lived with his wife, three children and old
parents earning a sum of Rs. 4,500/- per month. The Petitioner
consequently, claims a compensation of Rs. 14.24 lakh. Rs. 8,10,000/-
for loss of income, claiming a 100% loss, Rs. 1,00,000/- for medical
expenses, Rs. 30,000/- for expenses incurred over conveyance, Rs.
25,000/- for special diet, Rs. 1,00,000/- for mental pain and agony, Rs.
1,00,000/- for loss of amenities of life, Rs. 1,00,000/- for permanent
disability, Rs. 1,00,000/- for loss of expectation of life, and Rs. 57,600/-
for gratuitous services rendered by the family members.
32.2 Following the above scheme, Rs. 1,20,000/- (1,00,000 + 12,000 +
8,000) for medical expenses, special diet and conveyance and Rs.
54,000/- (4,500 12) for loss of income for one year are payable.
Multiplying the annual income of the Petitioner with the multiplier given
in the Second Schedule of the Motor Vehicles Act, 1988 and the
percentage of permanent partial disablement, a sum of Rs. 1,21,500/- is
arrived at, which is payable towards loss of earning capacity (54,000
15 15%). Rs. 50,000/- is payable towards pain and suffering which the
Petitioner underwent not only at the time of the accident but continues to
suffer. Rs. 25,000/- is payable towards non-pecuniary damages for loss
of amenities. This Court, thus, finds a sum of Rs. 3,70,500/- to constitute
fair and reasonable compensation payable to the Petitioner, Ramesh
Kumar, by the respondents, the Railways and the MCD, in equal halves.
The break up of the said amount is as under:
Medical expenses, special diet and conveyance Rs. 1,20,000/-
Loss of income for one year Rs. 54,000/-
Loss of earning capacity Rs. 1,21,500/-
Pain and suffering Rs. 50,000/-
Loss of amenities Rs. 25,000/-
____________
Total compensation payable Rs. 3,70,500/-
____________
W.P. (C) 4494/2006 (Ramesh v. Union of India & Ors.)
33.1 In W.P. (C) 4494/2006, the Petitioner suffered a fracture in the left
knee with ligament injury and swelling and abrasions in the left elbow.
Even after the fracture healed, the Petitioner could not walk properly and
experienced locking of the left knee. Doctor's certificates, which are not
disputed, state that wasting of left quadriceps muscles and pain and
locking of the left knee was observed even ten months after the injury.
This continues in spite of the Petitioner undergoing four months of
physiotherapy. The Petitioner is not allowed to squat and is unable to
work as a paledar any longer. He was 40 years old at the time of the
incident and was earning a sum of Rs. 4,500/- per month. Consequently,
he claims a total compensation of Rs. 3,02,600. Rs. 10,000/- for medical
expenses, Rs. 10,000/- for conveyance, Rs. 30,000/- for special diet, Rs.
45,000/- for loss of income of one year, Rs. 50,000/- for mental pain and
agony, Rs. 50,000/- for loss of amenities of life, Rs. 5,00,000/- for loss
of expectation of life and Rs. 57,600/- for gratuitous services rendered
by the family members. The Petitioner remained under regular treatment
for ten months.
33.2 Following the above scheme, Rs. 26,000/- (10,000 + 10,000 +
6,000) for medical expenses, special diet and conveyance and Rs.
45,000/- (4,500 10) for loss of income for ten months are payable. No
specific percentage of permanent partial disability has been pleaded or
stated in the certificates. This Court is therefore, unable to award
compensation for loss of earning capacity. Rs. 25,000/- are payable
towards pain and suffering and Rs. 25,000/- towards non pecuniary
damages for loss of amenities. This Court, thus, finds a sum of Rs.
1,21,000/- to constitute fair and reasonable compensation payable to the
Petitioner, Ramesh, by the respondents, the Railways and the MCD, in
equal halves. The break up of the said amount is as under:
Medical expenses, special diet and conveyance Rs. 26,000/-
Loss of income for one year Rs. 45,000/-
Pain and suffering Rs. 25,000/-
Loss of amenities Rs. 25,000/-
____________
Total compensation payable Rs. 1,21,000/-
______________
Directions
34. It is accordingly directed as under:
(i) Within a period of four weeks from today, respondents 1 and 3 will
deposit in this Court the following amounts:
a) In W.P. (C) 4242/2006 an amount of Rs. 3,47,600/-, together
with simple interest at 6% per annum from 1 st October, 2004 (i.e.
the date of the accident) till the date of payment and costs of Rs.
5,000/-.
b) In W.P. (C) 4243/2006 an amount of Rs. 3,70,500/-, together
with simple interest at 6% per annum from 1 st October, 2004 (i.e.
the date of the accident) till the date of payment and costs of Rs.
5,000/-.
c) In W.P. (C) 4253/2006 an amount of Rs. 8,57,000/-, together
with simple interest at 6% per annum from 1 st October, 2004 (i.e.
the date of the accident) till the date of payment and costs of Rs.
5,000/-.
d) In W.P. (C) 4300/2006 an amount of Rs. 8,57,000/-, together
with simple interest at 6% per annum from 1 st October, 2004 (i.e.
the date of the accident) till the date of payment and costs of Rs.
5,000/-.
e) In W.P. (C) 4494/2006 an amount of Rs. 1,21,000/-, together
with simple interest at 6% per annum from 1st October, 2004 (i.e.
the date of the accident) till the date of payment and costs of Rs.
5,000/-.
f) In W.P. (C) 4506/2006 an amount of Rs. 8,41,200/-, together
with simple interest at 6% per annum from 1 st October, 2004 (i.e.
the date of the accident) till the date of payment and costs of Rs.
5,000/-.
(ii) Within four weeks of the deposit of the above amounts, the legal
representatives of the three deceased and the three injured petitioners
will appear in person before the Registrar General on a notice to be
issued to them for a specific date, who will be identified by their
respective counsel and through proper documentation.
(iii) The amounts payable to the legal representatives of the deceased
will be divided into equal shares amongst the respective legal heirs of
the deceased. While the adults will be handed over their respective
cheques, as regards the minors, individual account(s) will be opened in
each of their names with the father or the mother as the case may be,
being the natural guardians. The bank in which the account is opened
will keep the said amount in a fixed deposit till such time the minor
attains the age of 18 years. Till then the interest on the fixed deposit will
be transferred to the minor's savings account which can be withdrawn
and used by the natural guardian for the benefit of such minor. After the
child becomes a major, the account will be operated independently by
such child.
(iv) The amounts payable to the injured petitioners will be disbursed to
them by cheques.
(v) Depending on the outcome of the proceedings in OMP No. 5 of
2003, it will be open to either Respondents 1 & 3 to claim
reimbursement from the other of the amounts paid by each of them in
terms of the present order.
35. All the writ petitions are accordingly disposed of in the above terms.
36. Copy of the judgment be given dasti to the counsel for the parties.
S. MURALIDHAR, J.
MARCH 17, 2010
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