Judgment:
$~49 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision:
04. h May, 2017 + W.P.(C) 7398/2016 and C.M. Appl. Nos.30341/2016 & 39032/2016 SACHINDRA MISHRA ........ Petitioner
Through: Ms. Diya Kapur, Ms. Akshita Sachdeva and Mr. Harikrishna Pramod, with petitioner in person Advocates versus SUNITA & ORS. ........ RESPONDENTS
Through: Mr. N.A.Sebastian and Mr. Abhishek Rana, Advocates for respondent No.1 Mr. Rajeeve Mehra, Senior Advocate with Mr. Manish Srivastava and Mr. Arav Kapoor, for Advocates B.S.E.S./respondent No.2. Mr. Jitesh Pandey, Advocate for Bharti Airtel/respondent No.3 Mr. Shiva Sharma, ASC for GNCTD with S.I. Pravin Kumar, P.S. Jagat Puri CORAM: HON'BLE MR. JUSTICE J.R. MIDHA JUDGMENT
(ORAL) 1. The petitioner has challenged the order dated 6th June, 2016 passed by the Commissioner, Employees’ Compensation whereby compensation of Rs.14,33,995/- along with interest @ 12% per annum w.e.f. 7th June, 2016 has been awarded to respondent No.1. W.P. (C) 7398/2016 Page 1 of 10 2. Respondent No.1 is the mother of late Vinit Kumar who was installing the wires/cables/lines at Jagat Puri, Delhi on 25th April, 2011 at about 5:00 PM when he suffered electric shock from a hyper- tension electric wire, fell down from the pole and suffered fatal injuries. He was taken to Garg Hospital and thereafter, to GTB Hospital where he expired on 26th May, 2011. The police registered FIR No.196/2011 under section 304A IPC at P.S. Jagat Puri, Delhi against the petitioner.
3. Respondent No.1 filed an application for compensation against the petitioner before the Commissioner, Employees’ Compensation claiming that her son, Vinit was working with the petitioner for the last 2-3 years at a monthly salary of Rs.9,000/- per month and he suffered an accidental death arising out of and in the course of his employment with the petitioner. The petitioner contested the claim on the ground that there was no employer-employee relationship between petitioner and the deceased and therefore, the petitioner was not liable to pay any compensation to respondent No.1.
4. Respondent No.1 appeared in the witness box as RW-1 and deposed that her son, Vinit aged 22 years was engaged by the petitioner for installing wires/cables/lines and his last drawn wages were Rs.9,000/- per month. She further deposed that the deceased was working under the supervision and instructions of the petitioner on 25th April, 2011 at about 5:00 PM at the site at Jagat Puri when he was electrocuted by a hyper-tension electric wire and fell down from the pole which resulted in fatal injuries and resulted in his death on 26th May, 2011.
5. Respondent No.1 examined the Sub-Inspector Dinesh Kumar as CW-2 who deposed that upon receipt of the information of the W.P. (C) 7398/2016 Page 2 of 10 accident dated 25th April, 2011 vide DD No.63B, P.S. Jagat Puri, he went to the spot of accident along with labourer, Pramod who was an eye witness to the accident. He further deposed that Pramod and Raju told him that deceased was working with the petitioner who had taken a contract for work.
6. The Commissioner, Employees’ Compensation held the deceased, Vinit to be the employee of the petitioner who suffered an accidental death arising out of and during the course of his employment with the petitioner. The Commissioner, Employees’ Compensation took Rs.4,000/- towards 50% of the wages of the deceased (Rs.8,000/- per month) and the factor of 221.37 according to the age of the deceased i.e. 22 years to compute the compensation as Rs.8,85,480/- along with interest @ 12% per annum.
7. Learned counsel for the petitioner urged at the time of the hearing that the deceased was not the employee of the petitioner and there was no employer-employee relationship between the petitioner and the deceased.
8. Vide order dated 9th December, 2016 the B.S.E.S. Yamuna Ltd. was impleaded as respondent no.2 as the deceased died due to the electrocution from the high tension wire of B.S.E.S. Yamuna Ltd.
9. Vide order dated 7th March, 2017, Bharti Airtel Ltd. were impleaded as respondent no.3 as the deceased was allegedly installing wires/cables/lines of Bharti Airtel Ltd.
10. Vide order dated 7th September, 2016, the Investigating Officer of FIR No.196/2012 dated 26th April, 2011, P.S. Jagat Puri under Sections 304A IPC was directed to appear in pursuance to which SI Dinesh Kumar appeared before the Court on 9th December, 2016 and produced the complete record of the criminal case. W.P. (C) 7398/2016 Page 3 of 10 11. Learned counsel for the petitioner submits that the petitioner is a petty contractor and does not have the means and capacity to satisfy the award. Vide order dated 20th April, 2017, the petitioner was directed to file the affidavit of his assets, income and expenditure which has been filed on 1st May, 2017. As per the said affidavit, the petitioner is a petty contractor with a family comprising of his wife and two children and his monthly expenditure is more than his income.
12. During the course of the hearing dated 1st May, 2017, the petitioner, without prejudice to his rights and contentions, agreed to pay Rs.2,50,000/- to the respondent in full and final settlement subject to the closure of the criminal case which is acceptable to Respondent No.1. It is submitted that the... Petitioner
shall deposit Rs.50,000/- within four weeks and Rs.2,00,000/- within 15 days of the quashing of the FIR.
13. M/s. Bharti Airtel Ltd have agreed to pay a sum of Rs.5 lakh to respondent No.1 without admitting any liability to pay the compensation.
14. M/s. B.S.E.S. Yamuna Ltd. have agreed to pay a sum of Rs.2,50,000/- to respondent No.1 on the humanitarian ground without admitting any liability.
15. The petitioner is directed to deposit a sum of Rs.50,000/- with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Sunita within a period of four weeks and Rs.2,00,000/- within 15 days of the quashing of the FIR. M/s. Bharti Airtel Ltd. shall deposit a sum of Rs.5 lakh with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Sunita within a period of 45 days in terms of the statement W.P. (C) 7398/2016 Page 4 of 10 recorded above. M/s. B.S.E.S. Yamuna Ltd. shall deposit Rs.2,50,000/- with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Sunita within a period of 45 days in terms of the statement recorded above.
16. Respondent No.1 is entitled to a sum of Rs.8,85,480/- and interest @ 12% per annum w.e.f. 25th April, 2011 till 4th May, 2017 i.e. Rs.6,40,733.33. Respondent No.1 is also entitled to the penalty, in respect of which the show cause notice has been issued by the Commissioner on 6th June, 2016. Since the claimant has not deposited the compensation when it fell due, a penalty of 30% i.e. Rs.2,65,644/- is imposed on the petitioner under Section 4A3b) of the Employee’s Compensation Act. As such, respondent No.1 is entitled to a total amount of Rs. 17,91,857/-. After adjusting the amount of Rs. 10 lakhs agreed to be paid by the petitioner and respondent’s No.2 and 3; respondent No.1 is entitled to balance amount of Rs. 7,91,857/-.
17. The petitioner has filed the affidavit dated 1st May, 2017 of his assets, income and expenditure and this Court is satisfied that the petitioner does not have the capacity to pay more than Rs.2,50,000/- to the respondent. Since respondent No.1 is the victim of an offence under Section 304A in respect of which the criminal case is pending trial before the concerned Metropolitan Magistrate in respect of FIR No.196/2012 dated 26th April, 2011, P.S. Jagat Puri under Section 304A IPC and the total compensation amount of Rs.10 lakh agreed to be paid by the petitioner, M/s. Bharti Airtel Ltd. and M/s. B.S.E.S. Yamuna Ltd. is not sufficient to meet the total liability of Rs.17,91,857/- as computed hereinabove, this Court is of the view that respondent No.1’s claim for balance compensation amount of Rs. Rs.7,91,857/- be considered under the Victims Compensation Scheme W.P. (C) 7398/2016 Page 5 of 10 under Section 357A Cr.P.C.
18. Respondent No.1’s case is recommended to Delhi State Legal Services Authority for payment of the balance consideration amount of Rs.7,91,857/- from the Victims Compensation Scheme under Section 357A Cr.P.C.
19. Delhi State Legal Services Authority shall consider the case of respondent No.1 for compensation. The compensation amount determined under the Victims Compensation Scheme under Section 357A Cr.P.C be deposited with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Sunita which shall be disbursed to respondent No.1 along with the compensation directed to be deposited by the petitioner, M/s. Bharti Airtel Ltd. and M/s. B.S.E.S. Yamuna Ltd.
20. The appeal and pending application are disposed of in the above terms.
21. List for disbursement of the compensation amount on 13th July, 2017.
22. Respondent No.1 shall remain present in Court on the next date of hearing along with the passbook of her savings bank account near the place of her residence as well as PAN card and Aadhar card.
23. This judgement has been passed in the peculiar facts and circumstances of this case and shall not be treated as precedent in so far as B.S.E.S. and M/s. Bharti Airtel Ltd. have agreed to partly bear the burden of compensation. Post Script 24. Under the Delhi Victims Compensation Scheme, 2015 of Delhi State Legal Services Authority, the compensation amount is disbursed to the victims in the following manner: W.P. (C) 7398/2016 Page 6 of 10 ―12. METHOD OF DISBURSEMENT OF COMPENSATION — (1) The amount of compensation so awarded shall be disbursed by the DSLSA by depositing the same in a Nationalized Bank or if the branch of a Nationalized Bank is not in existence, it shall be deposited in the branch of a scheduled commercial bank, in the joint or single name of the victim/dependent(s). Out of the amount so deposited, 75% (seventy five percent) of the same shall be put in a fixed deposit for a minimum period of three years and the remaining 25% (twenty five percent) shall be available for utilization and initial expenses by the victim/dependent(s), as the case may be. (2) In the case of a minor, 80% of the amount of compensation so awarded, shall be deposited in the fixed deposit account and shall be drawn only on attainment of the age of majority, but not before three years of the deposit: Provided that in exceptional cases, amounts may be withdrawn for educational or medical or other pressing and urgent needs of the beneficiary at the discretion of the DSLSA/ DLSA. (3) The interest on the sum, if lying in FDR form, shall be credited directly by the victim/dependent(s), on monthly basis which can be withdrawn by the beneficiary.‖ savings account of the bank in the 25. This Court is of the view that the 75% amount be kept in fixed deposits in a phased manner so that the victims get a regular monthly income. Vide order dated 21st April, 2017 in FAO222015, titled Geeta Devi v. Union of India, this Court has passed directions for disbursement of the compensation amount in cases of victims of railway accidents. The relevant portion of the directions are reproduced hereunder: ―3. …. this court is of the view it would be more beneficial to the claimants to keep the award amount in monthly FDR’s with cumulative interest instead of annual FDR’s with monthly interest. For example, in a case where award amount is Rs.5,50,000/- and the monthly expenditure of the claimant is Rs.5,000/- per month, the Railway Claims Tribunal may release Rs.50,000/- and the balance Rs.5,00,000/- be kept in 100 FDR for Rs.5,000/- each for the period 1 to 100 months with cumulative interest. On the other W.P. (C) 7398/2016 Page 7 of 10 hand, if the monthly expenditure of the claimant is Rs.10,000/- then Rs.5,00,000/- can be kept in 50 FDRs of Rs.10,000/- each or the period 1 to 50 months with cumulative interest. The table containing the computation of maturity amount by UCO Bank, Delhi High Court Branch on 100 FDRs for Rs.5,000/- each for one month to 100 months is attached to this order as Annexure – A and the table containing the computation of maturity amount by UCO Bank, Delhi High Court Branch on 50 FDRs for Rs.10,000/- each for one month to 50 months is attached to this order as Annexure – B.
4. The benefit of such disbursement would be that the maturity amount of FDRs keeps on increasing every month whereas in case of annual FDR’s with monthly interest, the monthly interest amount keeps on decreasing every month. The gradual increase of the maturity amount every month shall take care of the inflation as well as the growing needs of the claimants.
5. In death cases, the family members of the deceased would have received a portion of the income of the deceased every month and not a lump sum amount at any point of time. The purpose of awarding compensation is to put the family members of the deceased in the same financial position. As such, it would be appropriate to ensure that the family members get reasonable amount of compensation every month like they would have received, if the deceased had been alive. xxx xxx xxx 7. Conclusion 7.1. The amount awarded to the claimants be directed to be deposited in the bank account of the Railway Claims Tribunal by means of a cheque drawn in the name of Railway Claims Tribunal A/c (name of the claimant) within 30 days and the bank be directed to keep the amount in interest earning fixed deposit till the disbursement. 7.2. The claimant(s) be directed to appear before the Railway Claims Tribunal along with the passbook(s) of their savings bank account near the place of their residence as well as Aadhaar card (s) and PAN card(s) (PAN card is now mandatory for issuance of a fixed deposit as per RBI rules) 7.3. The Tribunal shall examine the claimant(s) to ascertain their financial condition/needs to determine their share, mode of disbursement and amount to be kept in fixed deposit(s). W.P. (C) 7398/2016 Page 8 of 10 7.4. The Tribunal shall, depending upon the financial status and financial need of the claimant(s), release some amount and keep the balance amount in monthly FDR’s with cumulative interest. For example, in a case of award of Rs.5,50,000/- and the monthly expenditure of the claimant is Rs.5,000/- per month, the Tribunal may release Rs.50,000/- and the balance Rs.5,00,000/- be kept in 100 FDR for Rs.5,000/- each for the period 1 to 100 months with cumulative interest. On the other hand, if the monthly expenditure of the claimant is Rs.10,000/-, then Rs.5,00,000/- can be kept in 50 FDRs of Rs.10,000/- each for the period 1 to 50 months with cumulative interest. 7.5. Original fixed deposit receipts be retained by the bank in safe custody. However, the statement containing FDR(s) number, FDR(s) amount, date of maturity and the maturity amount be furnished to the claimant(s). 7.6. saving account of the claimant(s) near their residence. 7.7. No cheque book/debit card be issued to the claimant(s) in the savings bank account without permission of the Tribunal. In case, the cheque book/debit card have already been issued, the concerned bank be directed to cancel the same. 7.8. shall be permitted without the permission of Tribunal. 7.9. The Bank shall not permit any joint name(s), other than the spouse of the victim, in the savings bank and fixed deposit accounts of the claimant(s) without the permission of Tribunal. 7.10. The liberty be given to the claimants to approach the Tribunal for pre-mature release of some of the FDR(s) in the event of any financial exigency.‖ No loan, advance or pre-mature discharge of the FDR (s) The maturity amount of the FDRs be credited in the 26. Similar orders have been passed by this Court in respect of the victims of the Motor Accidents Claims and Employee’s compensation. Reference be made to order dated 13th February, 2017 in FAO8422003 titled Rajesh Tyagi v. Jaibir Singh and order dated 2nd February, 2017 in FAO3852013 titled The New India Assurance Co. Ltd v. Puran Lal.
27. This Court appreciates the assistance rendered by Ms. Diya Kapur, learned counsel for the petitioner; Mr. N.A.Sebastian, learned W.P. (C) 7398/2016 Page 9 of 10 counsel for respondent no.1; Mr. Shiva Sharma, learned counsel for Govt. of NCT of Delhi; Mr. Jitesh Pandey, learned counsel for M/s. Bharti Airtel Ltd. and Amit Bhatia, Senior Manager (Legal) of M/s. Bharti Airtel Ltd.; Mr. Rajeeve Mehra, learned senior counsel for B.S.E.S. Yamuna Ltd. and Mr. Manish Srivastava, learned counsel for B.S.E.S. Yamuna Ltd. in assisting this Court in doing complete justice to respondent No.1 who lost her son in the accident in the year 2011.
28. Copy of this judgment be given dasti to counsel for the parties under the signature of the Court.
29. Copy of this judgment be sent to Delhi State Legal Service Authority. MAY04 2017 dk J.R. MIDHA, J.
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