IN THE HIGH COURT OF DELHI AT NEW DELHI
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CRL.M.C. 5889/2014
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KALI CHARAN ..... Petitioner
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Through: Mr. Sumesh Gandhi, Advocate.
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versus
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STATE ( GOVT OF NCT OF DELHI) ..... Respondent
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Through: Mr. Firoz Khan Ghazi, APP for State.
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SI Vijay Kumar, P.S. Roop Nagar.
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Mr. Salim Ahmad, Standing Counsel for
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Delhi Police
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CORAM:
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HON'BLE MR. JUSTICE J.R. MIDHA
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O R D E R
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23.12.2014
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Crl. M.A.20057-58/2014 (exemption)
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Allowed subject to just exceptions.
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CRL.M.C. 5889/2014
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1. Issue notice. Learned APP for State accepts notice.
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2. Respondent No2 is present in Court and he also accepts notice.
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3. The petitioner is seeking quashing of FIR No.350/2014, P.S. Roop Nagar
under Sections 287/337 IPC on the ground that he has settled the matter
with the wife and mother of late Pammu.
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4. Late Pammu was working as a labour for construction of property
No.30/19, Shakti Nagar, Delhi. On 28th August, 2014, the second floor
lanter was casted and the old wall of the adjoining house had to be
demolished. The builder, Nishant Budhiraja and contractor, Kali Charan,
directed the deceased Pammu and another labour named Sukhlal to demolish
the wall which they resisted on the ground that it could not be done
without the padding. However, the builder and contractor insisted them
to do so without padding and because of their pressure, the labourers
started demolition of the wall when suddenly one of the portions of the
wall fell down due to which Pammu fell down from second floor. Kali
Charan and Jitender Kumar took Pammu to the hospital. Pammu was
initially taken to Parmarth Hospital, who discharged him whereupon Pammu
was taken to Rescue Hospitals, Dwarka on 30th August, 2014 where he was
discharged on 05th September, 2014. Pammu was then taken to his village
where he died. The police initially registered the FIR under Sections
287/337 IPC against Nishant Budhiraja and Kali Charan, but after
investigation the charge sheet was filed only against Kali Charan under
Sections 237/338 IPC. The name of the Builder, Nishant Budhiraja was
dropped on the ground that he produced an agreement with the contractor,
Kali Charan, who was responsible for the work at site.
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5. Learned counsel for the petitioner submits that the petitioner has
entered into a compromise with the mother and wife of the deceased. The
terms of the compromise are recorded in the compromise deed dated 18th
September, 2014, copy whereof has been placed on record as Annexure-G.
As per the said settlement, the petitioner has agreed to pay Rs.2 lacs to
the mother and wife of the deceased out of which Rs.1,05,000/- has
already been paid and balance amount of Rs.95,000/- is to be paid by the
petitioner before this Court. It is submitted that petitioner has
brought Rs.95,000/- in cash to be paid to the wife and mother of the
deceased.
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6. At the outset, this Court is of the view that the petitioner is liable
to pay compensation to the legal representatives of the deceased under
Section 357 Cr.P.C. which provides for payment of such compensation which
is recoverable by the claimants in the Civil Court. The law with respect
to the compensation under Section 357 Cr.P.C. has been examined in detail
by this Court in Satya Prakash v. State, 203(2013)DLT652. The relevant
portion of the said judgment is reproduced hereinunder:
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?Victimology
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63. Victims are unfortunately the forgotten people in the criminal
justice delivery system. Victims are the worst sufferers. Victims? family
is ruined particularly in case of death and grievous bodily injuries.
This is apart from the factors like loss of reputation, humiliation, etc.
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64. The criminal justice system is meant for doing justice to all - the
accused, the society and the victim. The Courts do not merely discharge
the function to ensure that no innocent man is punished, but also that
the guilty man does not escape.
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65. Criminal justice would look hollow if justice is not done to the
victim of the crime.
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66. The?Court has to take into consideration the effect of the offence on
the victim's family even though human life cannot be restored but then
monetary compensation will at least provide some solace.
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67. Justice remains incomplete without adequate compensation to the
victim. Justice can be complete only when the victim is also compensated.
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Sections 357 and 357A Cr.P.C.
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68. Section 357 Cr.P.C. empowers the Court to award compensation to
victims who have suffered by the action of the accused.
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69. The object of the Section?357(3)?Cr.P.C. is to provide compensation
to the victims who have suffered loss or injury by reason of the act of
the accused. Mere punishment of the offender cannot give much solace to
the family of the victim ? civil action for damages is a long drawn and a
cumbersome judicial process. Monetary compensation for redressal by the
Court finding the infringement of the indefeasible right to life of the
citizen is, therefore, useful and at time perhaps the only effective
remedy to apply balm to the wounds of the family members of the deceased
victim, who may have been the bread earner of the family.
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70. The power under Section 357 Cr.P.C. is intended to reassure the
victim that he/she is not forgotten in the criminal justice system.
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71. The power under Section 357 Cr.P.C. is a measure of responding
appropriately to crime as well as reconciling the victim with the
offender.
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72. The power under Section 357 Cr.P.C. is not ancillary to other
sentences but in addition thereto.
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73. The power under Section 357 Cr.P.C. is to be exercised liberally to
meet the ends of justice in a better way.
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74. Section 357 Cr.P.C. is a constructive approach to crimes. It is
indeed a step forward in our criminal justice system.
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75. The word ?may? in Section 357(3) Cr.P.C. means ?shall? and therefore,
Section 357 Cr.P.C. is mandatory.
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76. Section 357 Cr.P.C. confers a duty on the Court to apply its mind on
the question of compensation in every criminal case.
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77. If the Court fails to make an order of compensation, it must furnish
reasons.
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78. Section 357 Cr.P.C. is an important provision but the Courts have
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seldom invoked it perhaps due to ignorance of the object of it and therefore, the Supreme Court in Ankush Shivaji Gaikwad (supra) has given
directions that the Courts shall consider the same in every criminal
case.?
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7. In Satya Prakash v. State (supra), this Court also considered the
principles for computation of compensation payable to the victim(s) under
Section 357 Cr.P.C. Relevant portion of the said judgement relating to
the computation of compensation is as under:-
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?Quantum of compensation
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79. The amount of compensation is to be determined by the Court depending
upon the facts and circumstances of each case, nature of crime, justness
of claim and the capacity of the accused to pay. While determining the
paying capacity of the accused, the Court would also take into
consideration the present occupation and income of the accused. The
accused can also be directed to pay monthly compensation out of his
income. When the compensation is paid through earnings, the accused will
also be automatically reformed.
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80. The Court has to compute the compensation which the victims are
entitled to claim against the accused under Civil Law. Since the victims
of the road accidents are entitled to compensation under the Motor
Vehicles Act, 1988, the Court has to take recourse to the principles for
computation of compensation under the Motor Vehicles Act, 1988.
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81. In cases resulting in death, the multiplier method has been accepted
as a sound method for determining the compensation to the family of the
deceased in law of torts. The multiplier method is statutorily recognized
for computation of compensation in Section 163A of the Motor Vehicles
Act, 1988 in death cases. The multiplier method is based on the
pecuniary loss caused to the dependants by the death of the victim of the
road accident.
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82. Before awarding any compensation under Section 357 Cr.P.C., the Court
shall consider whether any compensation has been received by the victim
or his family by an award of the Motor Accident Claims Tribunal. If the
victim / his family have received adequate compensation by an award of
the Motor Accident Claims Tribunal, the compensation under Section 357
Cr.P.C. shall be restricted to a reasonable conventional compensation in
the facts and circumstances of each case. However, if the victim(s) /
his family have not received any compensation by an award of the Motor
Accident Claims Tribunal, the Court in exercise of its jurisdiction under
Section 357 Cr.P.C. shall compute the compensation which the victim(s) /
his family would be entitled by applying the well settled principles
under the Motor Vehicles Act, 1988.?
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8. In paragraph 29 of Satya Prakash v. State (supra), this Court computed
the compensation payable in respect of a person aged 36 years earning
Rs.7,500/- per month, who is survived by his widow and two children.
Relevant portion of paragraph 29 is reproduced hereunder:-
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?29. ? For example, in a case where the deceased aged 36 years working as a telephone operator earning Rs.7,500/- per month dies in a road
accident leaving behind his widow and two children; first step would be
to add 50% of the income as future prospects and total income for
computation of compensation would be taken as Rs.11,250/-. Next step is
to deduct 1/3rd towards the personal expenses which the deceased would
have spent on himself and the loss of dependency of his family would be
Rs.7,500/- per month. The annual loss of dependency of Rs.90,000/- is
multiplied by the multiplier of 15 to compute the total loss of
dependency as Rs.13,50,000/-. Rs.50,000/- is added towards loss of love
and affection, loss of consortium, loss of estate and funeral expenses.
The total loss would be Rs.14,00,000/- (Rs.7,500/- plus 50% minus 1/3rd X
12 X 15 + Rs.50,000/-).?
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9. In the present case, the deceased Pammu was aged 28 years at the time
of accident and is survived by his widow and two minor children (one son
and one daughter) and mother. The deceased was earning Rs.7500/- per
month. Adding 50% towards future prospects and deducting 1/4th towards
the personal expenses of the deceased and applying the multiplier of 17
and adding compensation towards loss of love and affection, loss of
consortium and loss of estate, the legal representatives of deceased are
entitled to compensation of Rs.17,21,250/- as per computation given
hereunder:
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Income of the deceased
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Rs.7,500.00
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Add 50% towards future prospects
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(+) Rs.3,750.00
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Less 1/4th towards personal expenses of the deceased
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(-) Rs.2,812.50
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Loss of dependency of the deceased
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(Rs.7,500 + Rs.3,750 - Rs.2,812.50)
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Rs.8,437.50
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Annual loss of dependency (8437.50 x 12)
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Rs.1,01,250.00
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Appropriate multiplier according to the age of the deceased
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17
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Total Loss of dependency (1,01,250 x 17)
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Rs.17,21,250.00
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Compensation for loss of love and affection, loss of consortium, loss of
estate and funeral expenses
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Rs.50,000.00
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Total Compensation
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Rs.17,71,250.00
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10. Learned counsel for the petitioner submits that the aforesaid
compensation under Section 357 Cr.P.C. is subject to the paying capacity
of the petitioner. It is submitted that the petitioner does not have the
paying capacity to pay Rs. 17,71,250/-.
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11. At this stage, this Court is pained to note that the Investigating
Officer of the police did not even consider prosecuting the owner of the
building in respect of which the deceased was doing the construction
work. It is also surprising to note that the police dropped the case
against the builder. It was the primary duty of the owner of the
building and the builder to take all safeguards to ensure that no injury
is caused to any labour. This Court has come across a number of similar
cases in which the police has prosecuted only the petty contractor who
raised the plea of not having paying capacity to pay compensation.
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12. In Dev Raj @ Deepak v. State and Ors., Crl. M.C. 4301/2013 decided on
10th October, 2013, a mason working for construction of a building fell
down from the staircase between 2nd and 3rd floor and suffered fatal
injuries, whereupon FIR under Section 304A, IPC was registered against
the petty contractor. The deceased was entitled to compensation of
Rs.10,20,000/- under Section 357 Cr.P.C. against which the petty
contractor offered Rs.2,00,000/- compensation, which was grossly
inadequate. The Court issued notice to the owner of the building and the
main contractor, who appeared before the Court and agreed to pay further
amount of Rs.2,50,000/- to the family of the deceased. The petty
contractor also agreed to pay further amount of Rs.50,000/- making total
compensation of Rs.5,00,000/-. Since owner of the building was not
prosecuted, this Court invoked Section 357A Cr.P.C. and awarded
Rs.3,10,000/- to be paid by Delhi Legal Services Authority to the
victims. Relevant portion of the said order is reproduced hereunder:-
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?2. On 1st June, 2010, Sultan (deceased) was working as a mason under
the petitioner (contractor) for construction of house No.392, Kohat
Enclave. At about 9.00 am on the said date, Sultan fell down from the
staircase between the second and third floor and suffered fatal injuries.
He was taken to Bhim Rao Ambedkar Hospital where he was declared brought
dead. FIR No.203/2010 was registered under Sections 288/304A IPC on the
ground that the negligence of the petitioner not providing the grill on
the stairs despite reminders resulted in the death. The deceased Sultan
is survived by his widow Kulsan, mother and six minor children between
age of 4 to 15 years. Ms. Kulsan (widow) is present in Court and she
submits that the deceased was earning Rs.200 to Rs.250 per day and upon
adequate compensation being paid, she has no objection to the quashing of
the FIR.
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3. Learned counsel for the petitioner submits that vide compromise
deed dated 4th June, 2010, copy whereof has been placed on record as
Annexure ?B?, the petitioner has made payment of Rs.2 lacs to respondent
no.2 in terms of the agreement between them.
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4. Learned APP for the State submits that the age of the petitioner at
the time of the accident was 30 years and the amount of compensation of
Rs.2 lacs is not adequate. It is submitted that taking the income of the
deceased as Rs.200 per day, the monthly income of the deceased Rs.6,000/-
per month. Deducting Rs.1,000/- towards personal expenses and applying
the multiplier of 17, the family of the deceased is entitled to
Rs.10,20,000/-.
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5. Learned counsel for the petitioner submits that the petitioner is a
petty contractor and he has paid Rs.2 lacs according to his paying
capacity. It is submitted that the petitioner can pay a further sum of
Rs.50,000/- in the matter. The petitioner submits that he will deposit
Rs.50,000/- within a period of four weeks. Vide order dated 9th October,
2013, notice was issued to Mr. Shyam Sunder Bhutani (owner of the
building) and Mr. Shankar Lal Arora (the main contractor) who are today
present in Court along with Mr. Sanjeev Sindhwani, learned senior
counsel. On the suggestion of the Court, Mr. Shyam Sunder Sharma have
agreed to pay a sum of Rs.2,50,000/- to the family of the deceased victim
on behalf of the petitioner.
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6. Taking into account the payment of Rs.2 lacs already made by the
petitioner to respondent no.2, Rs.50,000/- agreed to be paid by the
petitioner within a period of four weeks and Rs.2,50,000/- to be
contributed by the owner of the building, the family of the deceased
would get Rs.5 lacs.
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7. Learned APP for the State submits that since the said amount of
Rs.5 lacs is not adequate for the rehabilitation of the family of the
deceased and the petitioner does not have the paying capacity to pay more
amount, the case of respondent nos. 2 and 3 be recommended to Delhi Legal
Services Authority for payment of further compensation from the Victims
Compensation Scheme under Section 357A Cr.PC. Learned APP refers to
the similar case of Abrar Ahmad v. State, Crl. M.C.4055/2013, decided on
27th September, 2013 in which compensation of Rs.5 lacs was awarded in
the similar case and the case was recommended to Delhi Legal Services
Authority and vide order dated 3rd October, 2013, further compensation of
Rs.3,10,000/- has been awarded to the family of the victim. The
petitioner has no objection to this.
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8. This Court is satisfied that since the compensation of Rs.5 lacs is
not adequate for rehabilitation of the family of the deceased and since
the accused does not have the paying capacity of more than Rs.5 lacs,
this case is recommended to Delhi Legal Services Authority for payment of
further compensation from the Victims Compensation Scheme under Section
357A Cr.PC.?
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(Emphasis supplied)
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13. In Praveen Kumar v. State and Anr., Crl. M.C. No.4098/2013 decided on
8th October, 2013, the victim suffered grievous injuries upon suffering a
fall from the 4th floor of the building. The Court computed the
compensation of Rs.10 lacs to be fair and reasonable under Section 357
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Cr.P.C. out of which the accused had the capacity to pay Rs.6,52,000/- and the remaining amount of Rs.3,48,000/- was agreed to be refunded by
Sant Parmanand Hospital where the victim was admitted for surgery/
treatment and the accused had paid Rs.3,48,000/- to the hospital. The
relevant portion of the said order is reproduced hereunder:
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?1. Respondent No.3, Ms. Lovely, is present in Court along with her
paternal uncle Dharmender (respondent No.2). Respondent No.3 aged 19
years was working as a labourer under the petitioner on fourth floor of
Government Quarters Timar Pur. On 19th March, 2013 at about 4.00 P.M.
when she fell down from the roof and suffered fracture D12 to L1 with
paraplegia and fracture bilateral calcaneum. She was immediately
admitted by the respondent no. 2 at Delhi Institute of Trauma and
Orthopaedics, Sant Parmanand Hospital, 18 Sham Nath Marg, Civil Lines,
Delhi-54 where she underwent a surgery for spine fixation from D11 to L2.
She also suffered a fracture in position lateral ? right calcaneum which
was opened, a locking plate was fixed and cast applied on the left ankle.
She was discharged on 30th March, 2013. Respondent No. 3 was again
admitted from 18th April, 2013 to 20th April, 2013 and from 29th April,
2013 to 3rd May, 2013.
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2. The present condition of the respondent no. 3 is that she is unable
to walk or stand up without support of an attendant. The respondent No.
3 is unmarried and is staying with her parents. Her father is a mason
earning approximately Rs.250/- per day. Respondent No. 3 is staying in a
jhuggi in Gulabi Bagh.
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3. Mr. Yatendra Kumar Chaudhary, Administrative Officer of Sant
Parmanand Hospital is present in Court along with his counsel Mr. Karan
Jain in terms of the order dated 27th September, 2013 and he has produced
the entire original medical record of respondent No.3. It is submitted
that the Sant Parmanand Hospital has charged Rs.3,48,000/- from the
petitioner for the treatment of respondent No. 3. It is further
submitted that it was not pointed out to the Hospital at the time of
treatment that respondent No. 3 is a poor labourer. It is further
submitted that considering the medical condition of respondent No. 3 and
further that she belongs to the lowest strata of the society and her
parents have no means for her treatment, on the suggestion of this Court,
the Hospital as a goodwill gesture and on humanitarian ground have taken
a decision to contribute the amount of Rs.3,48,000/- to respondent No.3
for her sustenance.
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4. Learned counsel for the petitioner submits that the petitioners are
ready and willing to make payment of Rs.6,52,000/- to respondent No.3 as
compensation so that the total corpus of respondent No.3 becomes
Rs.10,00,000/- and the interest on the said amount should be sufficient
for her sustenance.
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5. The petitioner is directed to deposit Rs.6,52,000/- with UCO Bank
by means of a cheque drawn in the name of UCO Bank A/c Ms.Lovely within a
period of four weeks. The cheque be personally delivered to the AGM of
UCO Bank, Delhi High Court Branch. Sant Parmanand Hospital shall also
deliver a cheque for Rs.3,48,000/- to the AGM of UCO Bank, Delhi High
Court Branch by means of a cheque drawn in the name of UCO Bank A/c Ms.
Lovely within a period of four weeks. Upon aforesaid cheques being
deposited, UCO Bank shall keep the said amount in fixed deposit for a
period of 10 years renewable for further terms of 10 years.?
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14. The Supreme Court in Delhi Jal Board v. National Campaign for Dignity
and Rights of Sewerage and Allied Workers, (2011) 8 SCC 568 and this
Court in National Campaign for Dignity and Rights of Sewerage and Allied
Workers v. MCD, 155 (2008) DLT 136 held the Government being principal
employer is liable to pay the compensation to the families of the sewage
workers who died due to the negligence of the contractor. The plea of
the Government that they are not liable for the negligence of the
contractor was rejected by the Courts.
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15. In National Campaign for Dignity and Rights of Sewerage and Allied
Workers v. MCD, 155 (2008) DLT 136, the National Campaign for Dignity
and Rights of Sewerage and Allied Workers, which is engaged in the
welfare of sewage workers, filed a Writ Petition to highlight the plight
of sewage workers as the legal representatives of the persons who work in
the sewers laid or maintained by the State and/or its
agencies/instrumentalities on their own or through the contractors and
who get killed due to negligence of the employer, do not have the means
and resources for seeking intervention of the judicial apparatus of the
State. The Division Bench of this Court requested Dr. S. Muralidhar, J.
to find out a workable solution to the problem relating to the deaths of
the sewer workers, their health and safety, the steps to prevent
recurrence of deaths/injuries of the sewer workers, to improve their
working conditions, the compensation to be paid for the deaths of the
workers and the steps to be taken to phase out manual work and replace it
with mechanized sewer cleaning. Dr. S. Muralidhar, J. deliberated upon
the matter and gave valuable suggestions which were considered by the
Division Bench. The Division Bench after hearing all the parties held
that the Government shall remain responsible to pay the compensation for
death of a worker due to the negligence of the contractor. However, the
Government can recover the said compensation from the contractor. The
Division Bench directed the civic agencies to pay the compensation to the
families of the victims. The relevant portion of the judgment is
reproduced hereunder:-
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?3.?Thereafter, fairly elaborate detailed hearings were held by Dr. S.
Muralidhar, J. on 18th August, 2007, 22nd September, 2007 and 1st
December, 2007. Although a number of issues have been highlighted by the
petitioner, the issues that have been considered on priority basis
include: (a) deaths of the sewer workers, (b) their health and safety,
(c) the steps to prevent recurrence of deaths and injuries of the sewer
workers and to improve their working conditions (d) the compensation if
any paid for the deaths of the workers in the course of their employment,
and (e) the steps to be taken to phase out manual work and replace it
with mechanized sewer cleaning. By order dated 5th April, 2008, which is
in the form of a report, magnitude of the problem has been noted with
reference to the affidavit dated 4th April, 2008 of Delhi Jal Board (DJB)
wherein it is mentioned that ?the infrastructure in the National Capital
comprises a network of 6150 kms long sewers. Out of this 150 kms is the
length of trunk sewers, 1500 Kms is the length of peripheral sewers and
4500 kms is the length of internal sewers. The sewer network is connected
to 17 Sewage Treatment Plants, having a composite capacity of 512.4 MGD.
Besides, there are 33 major Sewage Pumping Stations located at various
locations to pump the sewage wherever required.? It was noted that at
present 3923 permanent workers are employed against 4171 sanctioned
posts. In addition there are 1403 muster roll workers. Apart from these
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workers, contract labour is also engaged from time-to-time. It was further noted that although guidelines on safety have been issued by DJB
in November, 2002, they are being observed more in its breach and the DJB
is not serious about the implementation of its own safety guidelines, it
was further noted that so far as DJB is concerned there have been a total
of 36 deaths of sewer workers since 2002 out of which 30 were contract
workers and 6 were in regular employment. It was also noted that in spite
of repeated directions, DJB has failed to conduct inquiries into the
deaths and injuries of sewer workers. It was noted that there are many
aspects of the matter that will require further monitoring to ensure that
real changes are brought about in the working conditions of sewer
workers. In particular the liability of the DJB and the contractors under
the CLRA and their liability to pay compensation under the WC Act (as
amended in 2002) will have to be examined. Even while a workable scheme
of remedial measures is formulated, the reasons for the deaths of the
sewer workers and for the failure of the DBJ and its contractors to
comply with the 2002 guidelines must be unearthed for which the DJB has
to honour its commitments to the Court with all seriousness.
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4.?Thereafter the matter was placed before the Division Bench and by
order dated 11th April, 2008, the Court called upon the DJB and NDMC to
file status report setting out the requisite information and,?inter alia,
stating: (a) the number of deaths that have taken place from the year
2002 onwards; (b) have any inquiries/investigations at any level been
conducted by the authorities into the cases of such deaths; (c) if
inquiries were conducted, was any action taken either against the
contractor who employed the deceased workers or against any other
functionary of the local body under whom the contractor was engaged; (d)
if there any proposal for improvement of the working conditions of the
sewer workers, if so what are those proposals and what steps have been
taken by the local bodies to implement the recommendations, if any, made
in that regard; (e) in case there are no proposals, are the local bodies
willing to frame guidelines and take measures to prevent such deaths in
future and to provide better working conditions to the workers engaged
for cleaning work; (f) if there any provision for payment of compensation
to the families of the deceased workers and for those who suffer a
disability while working. If so what is the scheme and have any payments
under the same been made.
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5.?Pursuant to the above order, NDMC has filed affidavit dated 8th May,
2008 wherein it has been asserted that no NDMC employee/contractor's
labour has died during cleaning of sewer lines/manholes since the year
2002 due to negligence/non-adoption of safety measures. However, it is
conceded that 3 persons working under the NDMC contractor died on 7th
December, 2003 due to inhalation of toxic gases from the sewer lines. It
is stated that the above three persons entered in the manholes without
obtaining any permission/approval from Engineer-in-Charge of the site and
without any safety precautions/measures which are required before
entering into a sewer line. It is further stated that since it was a case
of accident and not negligence, no inquiry was conducted. According to
NDMC, there is scope for improvement of the working conditions of the
sewer workers and following steps have been taken by NDMC in this
direction:
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?(1) As far as possible cleaning of sewer lines/manholes is done
mechanically. Entry of human beings is being restricted to the rarest of
rare cases only where mechanical cleaning is not possible.
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(2) In cases where manual cleaning is done, it is ensured that all safety equipments are used and all precautions are taken. Sewermen are not
allowed to remain in deep manholes for more than 5-10 minutes at a
stretch. The concerned Junior Engineer/Assistant Engineer remains present
at site during the entire cleaning operation.
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(3) All safety appliances like air breathing apparatus, full face cover
safety mask, safety belts, torch, safety goggles, safety helmets, safety
belts, gum boots, diving suits, air blowers and exhausts, etc. are being
extensively used.
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(4) Free medical facilities are provided to all employees for health
checkup, treatment and hospitalization, etc. in state of the art
hospitals of capital. A list of all such hospitals is given below:
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(1) Max Balaji Hospital, Indraprastha
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(2) ?. ?. ?. ?. ?. ?. ?.
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(3) ?. ?. ?. ?. ?. ?. ?.
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(4) ?. ?. ?. ?. ?. ?. ?.
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(26) Charak Palika Hospital, Moti Bagh
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(5) All the sewermen are insured for Rs. 1.00 lac each with the National
Insurance Company Ltd. for which the premium is paid by NDMC. This is
besides the General Insurance Scheme which is applicable to the
Government employees as per Central Govt. Rules.
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(6) Accommodation is given to the sewermen as per the
availability/seniority. At every service centre labour rest room has been
provided. For the education of their family members several NDMC schools
are functioning in NDMC area.
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(7) Drinking water, bathing and washing facility is provided at the
stores/service centres. Recreational club has been provided by NDMC for
its employees.
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(8) Training for use of appliances and other safety equipments is given
to the workers by the department itself. Programme for training from
other agencies is being chalked out.?
.
6.?The DJB has filed status report dated 7th July, 2008 in which it is
admitted that number of deaths since 2002 is 36 and six of those workers
were employed by DBJ and 30 were contract workers. The reasons for the
deaths in most of the cases have not been given. In the cases in which
reasons have been furnished, the cause of death has been attributed to
lack of safety equipments or negligence. In none of these cases any
disciplinary action has been taken and apart from simple warning, which
has been issued in majority of cases, no action has been taken against
the concerned official or contractor, responsible for the workers'
safety. It is further stated in the status report that the DJB has now
made functional Safety and Disaster Management Cell that will take care
of issues concerning the sewer workers. Instructions have been issued to
all concerned to incorporate a clause in the contract agreement to
.
reserve the right of DJB to debar/blacklist a defaulting firm. The report further states that the following proposals for improvement of the
working conditions have been made:
.
?(i) Safety awareness programs.
.
(ii) Circulations of does and don'ts for sewer workers.
.
(iii) Directions to procure and maintain safety equipment.
.
(iv) Training in confined space entry and rescue imparted to ten trainers
.
(v) Entered into an MOU w/National disaster management for providing
consultancy services for safety and disaster management.?
.
7.?According to DJB it has taken the following steps in an attempt to
shift from manual to mechanized cleaning:
.
?(i) DJB has stopped using manual labor to clean sewer line deeper than 5
ft. It has procured additional jetting machines.
.
(ii) Major trunk/peripheral sewer is desilted by super sucker machines.
However, in an emergency, deep sewer entry is allowed with proper safety
equipment and the presence of a junior engineer.?
.
8.?According to DJB it has also procured the necessary equipments. It is
then stated that DJB has 11 dispensaries, 25 private hospitals and 37
diagnostic centres empanelled with the DBJ to provide care to the
workers. It has a decentralised arrangement for reimbursement when beyond
normal entitlement so relief in emergency cases is immediate. The first
aid boxes are made available for workers and contractors are obliged to
provide medical facilities as per provision of the contractual agreement
and periodic health check ups are being done. It is stated that model
rules and safety codes, which are in force, will be strictly implemented
for the workers cleaning the sewers. DJB has introduced a basic safety
awareness for the year 2007-2008 in collaboration with National Institute
of Disaster Management for providing consultancy services for safety and
disaster management and the establishment of emergency preparedness and
response teams. The guidelines issued by the NHRC are being followed by
the DJB. On the issue of compensation, the DJB has stated that if a
worker dies, compassionate appointment is given wherever possible.
Workers facing injury are provided with compensation as per the insurance
policies taken. In cases where there is death of a worker hired by
contractor, Workmen's Compensation Act provides for payment of
compensation. Although DJB has agreed to provide names of the contract
workers working for the contractors, relevant details regarding
contractors and the workers working under them have not been furnished.
.
9.?In the written submissions filed on behalf of the petitioner on 22nd
July, 2008, it has been brought on record that a daily wage worker by the
name of Amit, working for contractor employed by NDMC, died due to
inhalation of toxic gases on 20th July, 2008. It is stated that Amit was
accompanied by another daily wage worker, Rajpal, who fainted due to the
inhalation of gases and was removed from the sewer. Rajpal has, however,
survived. Further according to the petitioner, on 5th May, 2008, two
contract workers working under contractors employed by the DJB died due
to inhalation of gases in the sewer. Their names are Chintu and Pintu
(Papu/Hassan Ahmed). They were working in a sewer line situated at Dabri.
.
10.?Having considered the various reports made by the concerned agencies
and also the submissions made at the Bar, we pass the following interim
directions pending final disposal of this writ petition:
.
(a) The medical examination and medical treatment will be given free of
charge to sewer workers and the treatment will continue for all such
workers found to be suffering from an occupational disease, ailment or
accident until the workman is cured or until death.
.
(b) The services of the sewer workers are not to be terminated, either by
the respondents or the contractors engaged by them, during the period of
illness and they shall be treated as if on duty and will be paid their
wages.
.
(d) The respondents shall pay on the death of any worker, including any
contract worker, an immediate?ex gratia?solatium of Rs. One lac with
liberty to recover the same from contractors, if permissible in law.
.
(e) The respondents shall pay/insure payment of all statutory dues such
as Provident Fund, Gratuity and Bonus to all the sewer workers, including
contract workers, as applicable in law.
.
(f) The respondents shall provide as soon as possible modern protective
equipments to all the sewer workers in consultation with the petitioner
organisation.
.
(g) The respondents shall provide soap and oil to all the workmen
according to the present quota, but on monthly basis and not at the end
of the year.
.
(h) The respondents shall provide restrooms and canteens, in accordance
with the DJB model rules, including therein first-aid facilities, safe
drinking water, washing facilities, latrines and urinals, shelters,
creches and canteens as set out in the model rules. There are to be
provided at what is known as ?stores? which are the places where the
workers assemble to give their attendance and from where they depart to
their respective work sites.
.
(i) The respondents shall provide all workman, including contract
workmen, with an accident-card-cum-wage-slip as set out in Clause 8 of
the C.P.W.D./PWD (DA)/Delhi Jal Board Contractors Labour Regulations (for
short ?Labour Regulations?).
.
(j) The respondents shall provide all workers, including contract
workers, employment cards as set out in Clause 9 of the Labour
Regulations and, on termination of services provide the contract workers
and others with a service certificate as set out in Clause 10 of the
Labour Regulations.
.
(k) The respondents shall authenticate by signing the payment of wages
register for contract workers in terms of Clause 5 of the Labour
Regulations.
.
(l) The respondents shall submit to this Court and to the petitioner
within four weeks from today the full list of contract workers and
.
contractors engaged for work relating to the sewers together with the wages paid to such workmen and the number of years of employment of the
workers.
.
(m) The DJB is directed to ensure that the?ex gratia?payment in case of
deaths of sewer workers has been paid to the families of deceased workmen
and in case such compensation is not paid, release the same within a
period of eight weeks.
.
(n) NDMC is directed to pay?ex gratia?payment of Rs. One lac each in
respect of the accident of 7th December, 2003 where three persons working
under the NDMC contractors died, with liberty to recover the same from
the contractor, if permissible in law.
.
(o) The DJB and NDMC are directed to hold an inquiry into deaths of sewer
workers referred to in paragraphs 15 and 16 of the written submissions of
the petitioner dated 22nd July, 2008 and submit a report to this Court
within a period of eight weeks. If it is found that the contract workers
in question were working under the contractors employed by NDMC/DJB,?ex
gratia compensation of Rs. One lac shall be released forthwith to the
families of the victims subject to right of recovery from contractors in
accordance with law.
.
(p) The respondents shall place on record a map showing the areas within
the NCT, (1) where no sewage facilities are available, (2) where modern
machinery cannot enter due to narrow lanes or otherwise, (3) the areas
serviced by modern machinery, and (4) critical area where frequent
deaths, accidents and blockages occur. It shall be done within three
months from today.
.
(q) Lastly, the respondents are directed to place on record the proposals
and plans to phase out manual work and replace it with mechanized sewer
cleaning, as envisaged by DJB as well as NDMC, which shall be done within
three months.?
.
.
.
16. Vide order dated 21st April, 2009, the Division Bench of this Court
directed the civic bodies to pay compensation of `1,71,000/- to the
families of each of the victim through Delhi Legal Services Authority.
Delhi Jal Board challenged this order before the Supreme Court. Vide
judgment reported as Delhi Jal Board v. National Campaign for Dignity and
Rights of Sewerage and Allied Worker (supra), the Supreme Court dismissed
the appeal and enhanced the compensation from `1,71,000/- to `5,00,000/-
to be paid by the civil agencies. The Supreme Court held that the State
and its agencies/instrumentalities cannot absolve themselves of the
responsibility to put in place effective mechanism for ensuring safety of
the workers employed for maintain and cleaning the sewage system. The
Supreme Court further held that human being employed for doing work in
the sewers cannot be treated as mechanical robots, who may not be
affected by poisonous gases in the manholes. The State and its agencies
or contractors are under constitutional obligation for the safety of such
persons who undertake such hazardous jobs and cannot use the judicial
process for frustrating the efforts of the dependants of the workers, who
died due to the negligence of the contractor to whom the work of
maintaining the sewage system was outsourced. The relevant findings of
the Supreme Court are as under:-
.
?1?This appeal filed by Delhi Jal Board for setting aside an interlocutory order passed by the Division Bench of the Delhi High Court
whereby it has been directed to deposit Rs 79,000 with the Delhi High
Court Legal Services Committee in addition to Rs 1.71 lakhs already paid
to the families of the deceased worker, namely, Rajan is one of the
several thousand cases filed by the State and/or its
agencies/instrumentalities to challenge the orders passed by the High
Courts for ensuring that the goal of justice set out in the Preamble to
the Constitution of India is fulfilled, at least in some measure, for the
disadvantaged sections of the society who have been deprived of the
fundamental rights to equality, life and liberty for last more than 6
decades. The appeal is also illustrative of how the State apparatus is
insensitive to the safety and well-being of those who are, on account of
sheer poverty, compelled to work under most unfavourable conditions and
regularly face the threat of being deprived of their life.
.
2.?The laws enacted by Parliament and State Legislatures provide for
payment of compensation to the legal representatives of those killed in
air, rail or motor accident. The legal representatives of a workman, who
dies while on duty in a factory/industry/establishment get a certain
amount of compensation. Even those who are killed in police action get
compensation in the form of ex gratia announced by the political
apparatus of the State. However, neither the law-makers nor those who
have been entrusted with the duty of implementing the laws enacted for
the welfare of the unorganised workers have put in place an appropriate
mechanism for protection of persons employed by or through the
contractors to whom services meant to benefit the public at large are
outsourced by the State and/or its agencies/instrumentalities like the
appellant for doing works, which are inherently hazardous and dangerous
to life nor made provision for payment of reasonable compensation in the
event of death.
.
3.?Since the legal representatives of the persons who work in the sewers
laid or maintained by the State and/or its agencies/instrumentalities on
their own or through the contractors and who get killed due to negligence
of the employer do not have the means and resources for seeking
intervention of the judicial apparatus of the State, the National
Campaign for Dignity and Rights of Sewerage and Allied Workers, which is
engaged in the welfare of sewage workers filed Writ Petition No. 5232 of
2007 in the Delhi High Court to highlight the plight of sewage workers
many of whom died on account of contemptuous apathy shown by the public
authorities and contractors engaged by them and even private
individuals/enterprises in the matter of providing safety equipments to
those who are required to work under extremely odd conditions.
.
.
.
25.?In the last 63 years, Parliament and the State Legislatures have
enacted several laws for achieving the goals set out in the Preamble but
their implementation has been extremely inadequate and tardy and the
benefit of welfare measures enshrined in those legislations has not
reached millions of poor, downtrodden and disadvantaged sections of the
society and the efforts to bridge the gap between the haves and have-nots
have not yielded the desired result. The most unfortunate part of the
scenario is that whenever one of the three constituents of the State i.e.
judiciary, has issued directions for ensuring that the right to equality,
life and liberty no longer remains illusory for those who suffer from the
.
handicaps of poverty, illiteracy and ignorance and directions are given for implementation of the laws enacted by the legislature for the benefit
of the have-nots, a theoretical debate is started by raising the bogey of
judicial activism or judicial overreach and the orders issued for the
benefit of the weaker sections of the society are invariably subjected to
challenge in the higher courts. In a large number of cases, the sole
object of this litigative exercise is to tire out those who genuinely
espouse the cause of the weak and poor.
.
.
.
38.?In view of the principles laid down in the aforesaid judgments, we do
not have the slightest hesitation to reject the argument that by issuing
the directions, the High Court has assumed the legislative power of the
State. What the High Court has done is nothing except to ensure that
those employed/engaged for doing work which is inherently hazardous and
dangerous to life are provided with life-saving equipments and the
employer takes care of their safety and health.
.
39.?The State and its agencies/instrumentalities cannot absolve
themselves of the responsibility to put in place effective mechanism for
ensuring safety of the workers employed for maintaining and cleaning the
sewage system. The human beings who are employed for doing the work in
the sewers cannot be treated as mechanical robots, who may not be
affected by poisonous gases in the manholes. The State and its
agencies/instrumentalities or the contractors engaged by them are under a
constitutional obligation to ensure the safety of the persons who are
asked to undertake hazardous jobs. The argument of choice and contractual
freedom is not available to the appellant and the like for contesting the
issues raised by Respondent 1.
.
Re: Question 3
.
40.?We shall now consider whether the High Court was justified in issuing
interim directions for payment of compensation to the families of the
victims. At the outset, we deprecate the attitude of a public authority
like the appellant, which has used the judicial process for frustrating
the effort made by Respondent 1 for getting compensation to the workers,
who died due to negligence of the contractor to whom the work of
maintaining sewage system was outsourced. We also express our dismay that
the High Court has thought it proper to direct payment of a paltry amount
of Rs 1.5 to 2.25 lakhs to the families of the victims.
.
.
.
50.?In view of the law laid down in the aforementioned judgments, the
appellant's challenge to the interim directions given by the High Court
for payment of compensation to the families of the workers deserves to be
rejected. However, that is not the end of the matter. We feel that the
High Court should have taken cue from the judgment in?Railway
Board?v.?Chandrima Das?[(2000) 2 SCC 465] and awarded compensation which
could be treated as reasonable. Though, it is not possible to draw any
parallel between the trauma suffered by a victim of rape and the family
of a person who dies due to the negligence of others, but the High Court
could have taken note of the fact that this Court had approved the award
of compensation of Rs 10 lakhs in 1998 to the victim of rape as also
increase in the cost of living and done well to award compensation of at
.
least Rs 5 lakhs to the families of those who died due to negligence of the public authority like the appellant which did not take effective
measures for ensuring safety of the sewage workers.
.
51.?We may have remitted the case to the High Court for passing
appropriate order for payment of enhanced compensation but keeping in
view the fact that further delay would add to the miseries of the family
of the victim, we deem it proper to exercise power under Article 142 of
the Constitution and direct the appellant to pay a sum of Rs 3.29 lakhs
to the family of the victim through the Delhi High Court State Legal
Services Committee. This would be in addition to Rs 1.71 lakhs already
paid by the contractor.
.
52.?In the result, the appeal is dismissed subject to the aforesaid
direction regarding the amount of compensation to be paid by the
appellant. It is needless to say that the appellant shall be entitled to
recover the additional amount from the contractor. Respondent 1 shall
also be entitled to file appropriate application before the High Court
for payment of enhanced compensation to the families of other victims and
we have no doubt that the High Court will entertain such request.
.
53.?With a view to obviate further delay in implementation of the
directions contained in the first order passed by the High Court on 20-8-
2008, we direct the appellant to ensure compliance with clauses (a), (b),
(d), (e), (f), (g), (i), (k), (m) and (n) within a period of two months
from today and submit a report to the High Court. The appellant shall
also ensure that these directions are complied with by the contractors
engaged by it for execution of work relating to laying and maintenance of
sewer system within the area of its jurisdiction. A report to this effect
be also submitted to the High Court within two months. Additionally, we
direct that in future the appellant shall ensure that the directions
already given by the High Court and which may be given hereafter are made
part of all agreements which may be executed with contractors/private
enterprises for doing work relating to sewage system.
.
54.?The directions contained in the preceding paragraph do not imply that
the appellant and other agencies/instrumentalities of the State like New
Delhi Municipal Council, Municipal Corporation of Delhi, Delhi State
Industrial Development Corporation are not required to comply with the
directions given by the High Court. Rather, they too shall have to submit
similar reports.?
.
.
.
17. Before proceeding further, this Court would like to know from the
Police Department as to why the action in such cases is not taken against
the principal employer/owner and builder of the building, who were
responsible for taking all precautions to avoid the accidents and have
failed/neglected in discharging the same. Notice is, therefore, issued
to the Commissioner of Police. Mr.Salim Ahmed, learned counsel for Delhi
Police accepts notice. Let the response by Delhi Police be placed on
record on the next date of hearing. The response of the Police shall
also indicate the number of pending cases of death of construction
workers/labourers registered under Section 304A I.P.C. and whether the
principal employer/owner and builder of the building have been prosecuted
therein or not. The proposed action in such cases be also placed on
record on the next date of hearing.
.
18. At this stage, learned APP for State points out that this case has resulted in the death of Pammu, but Section 304A IPC has not even been
added against the petitioner. It is further pointed out that Section 287
IPC has been wrongly invoked. Let this issue be also examined by the
police before the next date of hearing.
.
19. Learned APP for State further points out that the deceased Pammu was
a poor person below poverty line, who was initially admitted in Parmarth
Hospital, which discharged him. The deceased was thereafter taken to
Rescue Hospital which also discharged him on 05th September, 2014. A
valuable life could have been saved if the hospitals would have continued
the treatment. Let notice be issued to Parmarth Hospital as well as
Rescue Hospital to produce the relevant medical records relating to the
treatment given by them to the deceased Pammu. The record with respect
to the amount charged on the treatment of the deceased Pammu by the two
hospitals be also produced before this Court on the next date of hearing.
.
20. At this stage, learned counsel for the petitioner submits that he has
brought cash amount of Rs.95,000/- to be handed over to the wife and
mother of the deceased. The wife and mother of the deceased are not
present today. However, they are represented by the father of the
deceased, Mona Kushwaha, present in Court today. Let the petitioner hand
over Rs.5000/- to Mr. Mona Kushwaha towards the expenses which shall be
incurred in producing the wife and mother of the deceased on the next
date of hearing. The wife and mother of the deceased Pammu shall remain
present before this Court on the next date of hearing. The balance amount
of Rs.90,000/- be deposited by the petitioner with the Registrar General
of this Court. On such deposit being made, the Registrar General shall
keep the said amount in fixed deposit which shall be renewed till further
orders.
.
21. On the oral prayer made by the learned APP for the State, Mr. Nishant
Budhiraja who is the builder and Mr. Mahendra Singh Chaudhary son of late
Shri Deep Chand resident of B-11/8057, Vasant Kunj, New Delhi-110070, who
is the owner of the building in which the construction was going on, are
impleaded as respondents No.3 and 4. The Court notice be issued to the
newly added respondents No.3 and 4, which shall be served by the
Investigating Officer. The Investigating Officer shall produce the
respondents No.3 and 4 before this Court on the next date of hearing.
.
22. The Court notice is also issued to Parmarth Jospital and Rescue
Hospitals, Vishwas Park, Sector 3, Dwarka to be served by the
Investigating Officer. The competent officers of Parmarth Hospital as
well as Rescue Hospital shall also remain present in Court along with the
relevant medical records relating to the deceased.
.
23. List for further hearing as a part heard matter on 8th January, 2015.
The competent officer of Delhi Police not below the rank of DCP shall
also remain present in Court on the next date along with the response of
Delhi Police in terms of this Order.
.
24. The record of the learned Metropolitan Magistrate relating to FIR
No.350/2014 P.S. Roop Nagar under Sections 287/337 IPC be requisitioned
through a special messenger.
.
25. Mr. Dhruv Mehta, learned Senior Counsel present in Court agrees to
assist this Court as amicus curiae. Let complete paper book be furnished
to learned amicus curiae during the course of the day.
.
26. Copy of this Order be given dasti to learned APP for State, counsel
for the petitioner as well as learned amicus curiae under signatures of
Court Master.
.
.
.
.
.
J.R. MIDHA, J.
.
DECEMBER 23, 2014
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Srb/Dev/rsk
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CRL.M.C. 5889/2014 Page 31 of 31
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