#compensation Archives

10 Jul

₹14 lakh compensation to the minor victim girl orders Madras High Court; criticises Legal Service Authority for seeking dismissal of case.

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Title: T. Kaliammal

Versus

The State of Tamil nadu and Ors.

Date of Decision: 26.06.2023.

Coram: THE HONOURABLE MS. JUSTICE P.T. ASHA.

Citation: W.P.(MD) No.3252 of 2020 and W.M.P.(MD) No.2758 of 2020.

Even though a special court had ended all proceedings in the case when the accused passed away while the trial was still ongoing, the Madras High Court recently awarded compensation of 14 lakh to a minor, mentally challenged rape survivor. Justice PT Asha noted that the local special court had done the physically and mentally handicapped survivor and her family more disservice by dismissing the case.

Introduction:

The petitioner, who is the mother of a mentally challenged daughter, who has been ravaged and impregnated by a “wolf in sheep’s clothing”, old enough to be her father, has knocked at the doors of this Court seeking compensation for this wrong inflicted on her daughter. The family comes from indigent circumstances. The mother is an agricultural coolie and the father works as a Watchman in a private company. They are blessed with two children, a son aged about 18 years, who is undergoing his B.Com course at Mano Arts College in Thoothukudi District and a daughter, who is the victim. The victim is mentally as well as physically challenged. Since the husband is employed at Chennai, the mother and children are living alone. Being an agricultural coolie, the petitioner is forced to leave the daughter alone W.P.(MD) No.3252 of 2020 and go for her work. The accused, who is about 55 years of age and a neighbour, had taken advantage of the victim’s physical and mental disability and has committed aggravated penetrative sexual assault on her not once, but on several occasions. The condition of the victim is such that she was not even in a position to narrate the ordeal to her mother. It was only when she had become pregnant, that the mother came to know about the same and immediately, a complaint was lodged at All Women Police Station, Kadambur, Tuticorin, and an FIR too was registered under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). The petitioner has moved this Court for a mandamus to terminate the pregnancy, provide police protection to the petitioner and her family members and to provide reasonable fair and compensation to the victim.

Legal Analysis:

The judge stated that despite the prohibition under Section 362 of the Code of Criminal Procedure (CrPC), the High Court has the authority to right this injustice. “This closure is yet another move that has done the victim significant injustice and, in some ways, demonstrates the indifference shown to the victim’s plight. The bar under Section 362 of the Code of Criminal Procedure would go into effect once the case was closed, making it impossible for the victim to seek additional compensation from the Court. Therefore, the petitioner contacted this Court appropriately. The Court stated that it had the authority to right this mistake. The Thootkudi District Legal Services Authority (DLSA) was also criticised by the court for how it handled its efforts to have the lawsuit dismissed.

The mother of a the victim girl who was discovered to have been regularly raped and impregnated by their 55-year-old neighbour had petitioned the court for just compensation. The case was already concluded by the special court since the defendant passed away while the trial was ongoing. The victim’s pregnancy was ended per the High Court’s directives, and she was given an interim settlement of Rs. 1 lakh. The District Legal Services Authority indicated in a counter-affidavit that the High Court’s request for compensation might be dismissed because the special court had concluded the case. The authority was criticised by the High Court for its callous and insensitive behaviour. “The fifth respondent has washed its hands of the issue and prays that the writ petition be dismissed instead of helping the Court attempt to rehabilitate and recompense the victim, who is a mentally and physically handicapped girl. It’s best to say as little as possible about the counter, said Justice Asha. The Court further determined that the victim was qualified to receive the maximum amount of compensation that may be paid under the various compensation plans. The Protection of Children from Sexual Offences Act (POCSO Act) established the Tamil Nadu Child Victim Compensation Fund, and the court ordered the Thootkudi District Legal Services Authority (DLSA) to pay the victim’s compensation amount from that fund.

Judgement:

This Hon’ble Court by exercising jurisdiction under Article 226 of the Constitution of India directs that a compensation of a sum of Rs.14,00,000/- (Rupees Fourteen Lakhs only) be paid to the victim. This sum shall be deposited in an interest-bearing account with the mother as the guardian. The mother shall be permitted to withdraw interest every month. The said sum shall be utilised only for the up keep and the rehabilitation of the victim. The District Child Protection Officer shall visit the home of the Victim once in three months and submit a report to the District Legal Services Authority, Thoothukudi. The District Legal Services Authority shall ensure compliance of the above. In case, the report would state that the amounts are not being used for the welfare of the victim, then an application shall be made to this Court for modifying the orders by the District Child Protection Officer. In case, the mother requires substantial amount for the benefit of the victim, she can make an application to this Court for appropriate order. The amount of Rs. 14,00,000/- shall be paid from and out of the Tamil Nadu Child Victim Compensation Fund by the fifth respondent within a period of four weeks from the date of receipt of a copy of this order and report compliance to this Court.

Conclusion:

This is a tragic case in which the accused aggravated penetrative sexual assault against the victim, a minor with mental disabilities, not just once, but multiple times. Unfortunately, he had already passed away before he could get any legal penalty. The Special Court closed the matter as charge abated without complying with Section 33(8) of the POCSO Act and Rules 7(1) and 7(2), The judge also directed the DLSA to ensure that the money was used only for the victim’s rehabilitation.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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2 Jul

The Delhi High Court set aside the order of the Railway Claims Tribunal and granted compensation to the appellants.

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Title: Sita Devi & Ors. vs UOI

Decided: 22.03.2023

Pronounced: 02.06.2023

FAO 46/2022

CORAM: HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

Introduction

The Delhi High court set aside the order of Railway claims tribunal and remanded back to the Tribunal for awarding the amount of compensation in terms of the Act and for which purpose the matter shall be listed at the first instance before the Tribunal on 10.07.2023. it is to be decided and compensation is to be paid within two weeks thereafter.

Facts of the case

It was Vinod Kumar i.e., deceased undertook a train journey on 12.06.2017 from Shahdara to Faridabad by a local train and when the train reached at KM 1514/13-11 JNC Yard between Faridabad and Tughlaqabad Station, the deceased fell down from the train on account of sudden jerk and push of the passengers and died at the spot. The journey ticket along with other articles of the deceased including his bag were also lost.

A perusal of the record would show that the first information on the incident was received in the form of memo of Station Master of Faridabad Railway Station at about 9:00 am on 12.06.2017. It mentions about the dead body lying at KM 1514/13-11.

Based on the reports and testimony submitted, On 10.02.2021, the principal bench of Railway Claims Tribunal passed an order dismissing the claims of the appellants.

Court Analysis and Decision

The delhi high court was expedient to refer to the judgement of Supreme court at Union of India v. Rina Devi (2019) 3 SCC 572 para 29, Where it was held that, “mere presence of dead body on the railway tracks will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger Initial burden will FAO 46/2022 Page 3 of 4 be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly.”

The court decided to avoid the DRM report for taking into consideration as it is being filed after 14 months of the incident especially in the view of final report submitted by the SHO, court referred to the judgement of its coordinate bench in Bhola v. Union of India 2018 SCC OnLine Del 13486. Accordingly, the deceased is held to be a bona fide passenger and the incident to be an ‘untoward incident’ under Section 123(c) of the Railway Claims Tribunal Act 1987. Consequently, the appeal is allowed and the impugned order is set aside. The matter is remanded back to the Tribunal for awarding the amount of compensation in terms of the Act and for which purpose the matter shall be listed at the first instance before the Tribunal on 10.07.2023. Let the compensation amount be paid to the appellants/claimants within two weeks thereafter.

Written by – Shreyanshu Gupta

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1 Jul

The Punjab and Haryana High Court awards compensation based on an overall view of the rules and regulations governing a vehicle driven on the road.

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The Punjab and Haryana High Court awards compensation based on an overall view of the rules and regulations governing a vehicle driven on the road.

TITLE – Tata AIG General Insurance Company Limited v.

Sarabjit Kaur and Others

Decided On- March 7, 2022

(2022) 4 RCR (Civil) 543

CORAM: RAJBHR SHERAWAT

INTRODUCTION – The Punjab and Haryana High Court, granted by Justice Rajbhir Sherawat, has provided distinctive compensation to the claimants and insurance company by the following rules and regulations.

FACTS OF THE CASE

In an Innova car with the license plate DL-10-CE-2458, Jitender Singh, Amarjeet Singh, Narender Pal Singh, Raminder Singh, Kuldeep Singh, and Harbhajan Singh were traveling from Delhi to Amritsar. While Amarjeet Singh was driving the car, Kuldeep Singh and Harbhajan Singh were seated in the back seat. The truck/tanker bearing registration number MP-09-HG-9347, which was traveling in front of the Innova car as they approached the area between Pipli and Shahbad on the national highway, abruptly applied brakes. The accident happened as a result. The Innova vehicle’s occupants suffered critical injuries as a result of the collision. Amarjeet Singh passed away at the LNJP Hospital in Kurukshetra, but Jitender Singh, Raminder Singh, and Narinder Pal Singh died as a result of their wounds on the scene. Harbhajan Singh lived but was hurt. At Police Station Sadar, Thanesar, a criminal case with FIR No. 46 dated 6.2.2014 was also filed due to the accident. A complaint had been made in the aforementioned case against respondent No. 1, the alleged negligent tanker driver. The legal representatives of the deceased filed four claim petitions in the aforementioned set of circumstances, and the injured party himself filed a fifth for injuries he sustained in the accident.

COURT ANALYSIS AND DECISION

The court has heard the arguments of both parties and in view of all the respective regulations. the assertions made by the claimants, which have been duly supported by their evidence, have gone totally un-rebutted on the part of the respondents. Even the respondent Insurance company has not led any evidence of any kind to rebut the assertions of the claimants that the accident had taken place due to the negligence of the driver of the offending tanker. Once; being a respondent, they had taken a plea of negligence of the driver of the Innova car, then it was incumbent upon them to substantiate such assertion by leading positive evidence. However, the respondents-Insurance company have failed in proving those assertions made in their written statements the Counsel for the respondent has relied upon Regulation No. 23 of the Regulations of 1989, this was not a substantive ground for the claimant to not receive compensation as well as the appellant was not absolved to pay compensation to the insurance company. Therefore, the Hon’ble court has held The respondent Insurance company is held liable for 70% of the liability, leaving the appellant Insurance company with 30% of the liability to reimburse the claimants.

Written by- Steffi Desousa

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1 Jun

COMPENSATION ENHANSED AT ANDHRA PRADESH HIGH COURT IN ACCIDENT CASE

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Andhra Pradesh High Court – Amravati

GARLAPATI KUTUMBA RAO, GUNTUR. & ANO. vs J&R SUDHEEN @ SUDHEER, KARNATAKA STATE. & 3 ANO.

BENCH – THE HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY AND THE HON’BLE SRI JUSTICE V. GOPALA KRISHNA RAO

M.A.C.M.A. No. 994 of 2009

DATE OF JUDGEMENT – 10 MAY 2023

FACTS

The petitioners are the parents of the deceased. On 01/02.10.2004, the deceased was travelling in the Maxi Tempo bearing from Bangalore to go to Hasan. On the way, at about 2.00 a.m. when the vehicle reached near Hombalakoppa Gate, NH-48 BM road, the driver of the lorry bearing drove the same in a rash and negligent manner in high speed and dashed the tempo and thendashed another Maruti car. In that accident, the deceased G.Narasimharao and one Srinivas sustained grievous injuries and died on the spot.

The respondents 1(J&R SUDHEEN @ SUDHEER, KARNATAKA STATE), 2(The Divisional Manager) and 4(The Divisional Manager, United India Insurance Co. Ltd.) filed written statements and denied the allegations made by the claim petitioners in the petition and pleaded that the claim petitioners are not entitled to any compensation.

As per salary certificate of the deceased, the deceased was drawing salary of Rs.33,750/- per month as on 01.10.2004 at the designation of R&D Engineer. After excluding Public Provident Fund, the income of the deceased was Rs.31,950/-. The conveyance allowance of Rs.800/-, telephone allowance of 1500/- and special allowance of Rs.8,650/- cannot be included in the income of the deceased and the same cannot be considered as a pay of the deceased. Therefore, from out of Rs.31,950/- an amount of Rs.10,950/- has to be deducted, therefore, monthly income of the deceased is arrived at Rs.21,000/- and his annual income was Rs.2,52,000/-. As per the case of the petitioners, the deceased was aged about 25 years by the date of the accident. As per the decision of the Hon’ble Supreme Court of India in National Insurance Company Limited Vs. Pranay- Sethi1, 40% of the income has to be added since the deceased was not a government employee i.e., Rs.2,52,000/- + Rs.1,00,800/- = Rs.3,52,800/-.

Since the deceased was a bachelor, 50% of income from out of the annual income has to be deducted towards personal expenses of the deceased. As such after deducting 50% of the income towards personal expenses of the deceased, the annual contribution to the family is arrived at Rs.1,76,400 (Rs.3,52,800/- – Rs.1,76,400/-). The material on record shows that the deceased was aged about 25 years at the time of accident. So the relevant multiplier applicable to the age group of the deceased is ’18’, as per the judgment of the Hon’ble Supreme Court in Sarla Varma Vs. DelhiTransport Corporation and the loss of dependency comes to Rs.31,75,200/- (Rs.1,76,400/- x 18) and an amount of Rs.10,000/- is awarded towards funeral expenses of the deceased and amount of Rs.60,000/- is awarded towards loss of estate. In total an amount of Rs 32,45,200/- is awarded towards total compensation to the claimants.

JUDGEMENT

The court held that this appeal is partly allowed by enhancing the compensation granted by the Tribunal. The claimants are entitled to an amount of, Rs.32,45,200/- towards total compensation with interest thereon @7.5% p.a. The respondents 1 and 2 are directed to deposit the remaining compensation amount within two months from the date of this judgment. On such deposit, the claimant No.1, father of the deceased is entitled to withdraw an amount of Rs.10,00,000/- and claimant No.2, mother of the deceased is entitled to withdraw an amount of Rs.22,45,200/- along with total costs and interest thereon.

JUDGEMENT REVIEWED BY HARSHIT JAIN

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12 Sep

optional for the aggrieved workmen either to accept reinstatement in service as helper with all arrears of compensation

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It is optional for the aggrieved workmen either to accept reinstatement in service as helper with all arrears of compensation, he may do so for the period commencing from the date from which his services as a Helper were terminated- Rajasthan High Court

The Rajasthan High Court passed a judgment on 4th of April, 1995 in the case of Ghasi Khan vs Rajasthan State Road Transport ( (1997) IIILLJ 74 Raj, 1996 (1) WLC 379,1995 (1) WLN 588) presided by the Hon. Justice A Madan.

Facts of the case
The petitioner was employed by the respondent Corporation as a driver pursuant to an order dated January 9, 1976 (Annex-1), and in the year 1983, while carrying out official duties for the respondent Corporation, an accident occurred that caused the petitioner to sustain a head injury, leading to hospitalization. As a result, on January 26, 1984, the petitioner had sent a request to the Divisional Mechanical Engineer in Kota, asking to be relieved of his driving responsibilities in accordance with Annex 2. He also asked to be given lighter responsibilities because of his deteriorating health and the accident that prevented him from performing his driving responsibilities effectively.The Divisional Manager of Kota served the petitioner with a show-cause notice on May 10, 1988, asking him to respond as to why his employment should not be terminated in
accordance with Section 2(oo)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). The petitioner responded by submitting Annexure-7 as his supporting documentation. On July 25, 1989, the respondent-Corporation subsequently served a second show-cause notice on the petitioner. Despite the fact that the petitioner had supplied the Medical Board’s report, which also stated that the petitioner was unfit to perform his job as a driver, the respondent-Corporation paid no attention to it.

Judgment
As a result, the writ petition is granted, the contested order from January 20, 1990 (Annex-11) is revoked and set aside, and the respondents are further instructed to pay the petitioner compensation if they choose not to absorb the petitioner onto the post of helper while maintaining his seniority, pay, and allowances with effect from the date the petitioner’s
service was terminated, which is March 20, 1990. March 20, 1990, and the Corporation should compute the compensation amount in line with the Supreme Court’s instructions.Therefore the appeal was allowed.

Judgment reviewed by Dhruv Kalia

Ghasi_Khan_vs_Rajasthan_State_Road_Transport_on_4_April_1995