Delhi High Court
Santosh Devi And Ors vs The State And Ors on 23 January, 2018
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 23rd January, 2018
+ W.P.(C) 8650/2016
SANTOSH DEVI AND ORS ..... Petitioners
Through: Mr. Sunil Ojha and Mr. Neeraj
Thakkar, Advocates
versus
THE STATE AND ORS ..... Respondents
Through: Mr. Parth Vashishtha proxy for Mr.
S.K. Tripathi, ASC for GNCTD
Mr. K.R. Verma and Mr. Amit
Chandel, Advocates for respondent
No.2
Ms. Suman Bagga, Advocate for
respondent No.3
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The petitioners have challenged the order dated 16 th May, 2016
whereby the Claims Tribunal has dismissed their application for
compensation.
2. The petitioners filed an application for compensation before the
Commissioner, Employees' Compensation claiming compensation in respect
of the death of late Rajinder Kumar on 07th November, 2014. The case of
the petitioners before the Commissioner, Employees' Compensation was
that Rajinder Kumar was working as a driver with respondent No.2 since
2011 on Tata truck 407 bearing No.DL-1LS-1311 at a monthly salary of
Rs.12,000/- per month; the aforesaid vehicle was validly insured with
respondent No.3; on 24th September, 2014, Rajinder Kumar met with an
accident during the course of his employment near Panipat after unloading
the goods from the aforesaid vehicle which resulted in grievous head
injuries; Rajinder Kumar was taken to a hospital at Panipat, then to PGI,
Rohtak and thereafter, shifted to Safdarjung Hospital, Delhi and he expired
due to the injuries on 07th November, 2014.
3. Respondent No.2 filed the written statement in which he admitted that
the deceased was working as a driver with him at the salary mentioned
above and he suffered an accident during the course of his employment on
24th September, 2014 which resulted in his death. Respondent No.2 gave
particulars of the insurance policy by which the vehicle was validly insured
with respondent No.3. Respondent No.2 submitted that respondent No.3
was liable to pay the compensation amount under the policy.
4. Respondent No.2 contested the application for compensation on the
ground that the post-mortem report has not been placed on record.
Respondent No.3 denied the relationship of employer and employee as well
as the accident in question.
5. Appellant No.2 appeared in the witness box as PW-1 and reiterated
the averments in the application for compensation. PW-1 proved the ration
card and Aadhaar Card as Ex.CW-3/1 to show their relationship with the
deceased. PW-1 proved the driving licence of the deceased as Ex.PW-1/C.
PW-1 deposed that his father suffered grievous injuries on his head, both
legs as well as all over the body and he was initially taken to a hospital in
Panipat and then to PGI, Rohtak and thereafter shifted to Safdarjung
Hospital, Delhi but he could not recover from the injuries suffered. PW-1
deposed that the deceased suffered left frontal compound comminuted
depressed fracture dural tear left frontal haemorriagic contusion,
comminuted fracture of left parietal bone, left frontal sinus and nasal
displaced along with fracture on left frontal region as per discharge summary
issued by Safdarjung Hospital. PW-1 further deposed that no FIR was
registered as the accident occurred during the brake failure of the vehicle of
the deceased and the police registered a DD entry. The certified copy of the
DD entry was marked as Ex.PW-1/D. The deceased was admitted in
Safdarjung Hospital on 25th September, 2014 where he was operated for
exploration of CLW frontal free bone flap cranoiotomy around depressed
segment, contusectomy and dural repair and cranioplasty, exbenration of
frontal sinus and was discharged on 28th September, 2014. The discharge
summary issued by Safdarjung Hospital was proved as Ex.PW-1/E. PW-1
further deposed that the deceased remained under regular treatment after the
discharge. The OPD case sheets were proved as Ex.PW-1/F, G & H. On
07th November, 2014, the condition of the deceased became very serious and
he was taken to Cygnus J.K. Hindu Hospital at Sonepat, where the doctors
opined that his condition was very serious and he was referred to
neurosurgeon. The copy of the OPD slip of Cygnus J.K. Hindu Hospital
was proved as Ex.PW-1/I. The deceased was taken to Safdarjung Hospital
in an ambulance but he expired on the way. The death certificate was
proved as Ex.PW-1/J. The deceased was holding LIC policy and the
petitioners filed a claim with the LIC Sonepat branch whereupon LIC called
for the medical record of the deceased from Safdarjung Hospital as well as
report of the operating doctor about the cause of death. The covering letter
of LIC is Ex.PW-1/K and the certificate of the operating Dr. Abhinav
Bansal, Senior Resident Doctor, Department of Neurosurgery, Safdarjung
Hospital is Ex.PW-1/L. LIC passed the claim of accidental death of the
deceased after examining the medical reports and certificates and the
relevant documents are Ex.PW-1/M.
6. The petitioners examined Dr. Jitender Nasar, Emergency Medical
Officer of Cygnus J.K. Hindu Hospital, Sonepat who proved the OPD
receipt Ex.CW-2/1 and deposed that the deceased was referred to a
neurosurgeon as there was no neurosurgeon in the hospital. The petitioners
also examined the administrative officer of LIC who deposed that the
deceased was holding LIC policy in respect of which a claim was made by
the petitioners. LIC obtained the medical certificate from the hospital. The
LIC proved the medical certificate of the hospital as Ex.CW-1/1 and CW-1/2
and the covering letter Ex.CW-1/3.
7. During the course of hearing on 16th March, 2017, learned counsel for
the petitioners submitted that respondent No.3 has settled the own damage
claim of respondent No.2, whereupon this Court directed that record of the
own damage claim of respondent No.3 be produced before this Court.
8. The relevant record has been produced by learned counsel for
respondent No.3 before this Court today. As per the record, respondent
No.2 lodged a claim of own damage with respondent No.3 which was
verified by respondent No.3 and the payment of Rs.1,75,000/- was made to
respondent No.2. In the claim lodged by respondent No.2, the respondent
No.2 intimated the respondent No.3 that Rajinder Kumar was driving the
vehicle at the time of the accident which was verified by the surveyor. The
record produced by respondent No.3 contains the motor survey report dated
04th November, 2014 which records that the surveyor verified the driving
licence of the driver, Rajinder Kumar at the time of the accident. Copy of
the driving licence is also available in the file. The record also contains the
discharge summary of the Safdarjung Hospital of the deceased.
9. This Court is satisfied that the deceased, Rajinder Kumar was
employed as a driver with respondent No.2 and he suffered an accident dated
24th September, 2014 during the course of his employment with respondent
No.2 which resulted in grievous head injuries and the deceased died due to
the said injuries. The petitioners are the legal representatives of the
deceased, Rajinder Kumar and are entitled to compensation under the
Employees Compensation Act. The deceased was aged 49 years at the time
of the accident and was drawing a salary of Rs.12,000/- per month. The
vehicle in question was validly insured with respondent No.3 at the time of
the accident. Taking the maximum wage limit of Rs.8,000/- under the
Employees Compensation Act and applying the factor 156.47, the appellants
are entitled to compensation of Rs.6,25,880/- from respondent No.3.
10. The appeal is allowed and compensation of Rs.6,25,880/- is awarded
to the appellants along with interest @ 12% per annum from 25th October,
2014 upto the date of deposit. The respondent No.3 is directed to deposit the
compensation amount with the Registrar General of this Court within four
weeks.
11. Since the compensation amount was not deposited by respondent No.2
within 30 days of the accident, show cause notice is hereby issued to
respondent No.2 under Section 4A(3) of the Employees Compensation Act
to show cause as to why the penalty be not levied on respondent No.2.
Learned counsel for respondent No.2 accepts notice and seeks time to file
the reply to the show cause notice. Let the same be filed within two weeks.
12. The petitioners are directed to remain present on the next date of
hearing along with passbooks of their savings bank accounts near the place
of their residence as well as PAN Cards and Aadhaar Cards. The concerned
bank is directed not to issue any cheque book and/or debit card to the
petitioners and if the same has already been issued, the concerned bank is
directed to cancel the same and make an endorsement on the passbooks that
no cheque book or debit card shall be issued to the petitioners without the
permission of this Court. The petitioners shall produce the copy of this order
before the concerned bank whereupon the bank shall make an endorsement
on the passbooks. Petitioners shall produce the original passbooks with the
necessary endorsement on the next date of hearing.
13. List for disbursement of the compensation amount and further hearing
with respect to the imposition of penalty on 26 th February, 2018 at 02:30
p.m.
14. Copy of this judgment be given dasti to counsels for the parties under
signatures of the Court Master.
JANUARY 23, 2018 J.R. MIDHA, J.
rsk
