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Judgment
Honourable Acting Chief Justice Mr. Bhaskar Bhattacharya
This appeal u/s 110-D of the Motor Vehicles Act, 1939 is at the instance of the claimants and is directed against the award dated 27th March 1984 passed by the Motor Accident Claims Tribunal [Main], District-Banaskantha at Palanpur, in M.A.C.P. No. 253 of 1981 thereby awarding a sum of Rs.39,061/-with proportionate costs and interest at the rate of 6% p.a. from the date of filing of the application till realization making both the owner of the vehicle and the Insurance Company jointly and severally liable to pay the amount.
Being dissatisfied, the claimants have preferred this appeal for enhancement.
Since neither the owner of the vehicle nor the Insurance Company has preferred any appeal challenging the award nor have they filed any Cross Objections in this appeal, we are concerned only with the question of quantum of compensation in this appeal.
It has been well established from the evidence on record that the offending vehicle was involved in the accident resulting in the death of the predecessor-in-interest of the appellants and that the accident occurred due to gross negligent driving on the part of the driver of the offending vehicle and that the said vehicle was, at the time of the accident, covered under the insurance of the concerned Insurance Company.
There is no dispute that at the time of the accident, the deceased victim was aged 32 years, having two minor children and the husband, who were her heirs and legal representatives under the provisions of the Hindu Succession Act. Although it was contended on behalf of the claimants that the deceased used to earn by tailoring and by giving tuition, such fact has been disbelieved by the Tribunal below on the ground that no certificate was produced showing that the victim had any diploma in tailoring nor was there any evidence to show that she was earning something by teaching the students by way of tuition. The Tribunal below proceeded as if the victim was a housewife and was looking after the domestic work of her family.
On that basis, the Tribunal came to the conclusion that for the services rendered by the wife of a middle class family, with which we are concerned, the money-value of such services should be estimated at Rs.75/-a month and on that basis, the annual value of the services rendered by the victim towards her family should be assessed at Rs.900/-per annum. According to the Tribunal, as the victim was aged 32 years at the time of her death, the multiplier of 16 should be applied and therefore, the applicants should be compensated with Rs.14,400/-for the loss of services rendered by the deceased. The Tribunal further awarded a sum of Rs.1500/-for the medical expenses incurred for the treatment of the victim, Rs.500/-for transportation charges and further awarded a sum of Rs.1500/-towards funeral and other charges of the victim. For loss of expectation of life, an amount of Rs.5000/-was awarded. As the wife survived for 12 hours after the accident, the Tribunal also thought it fit to award a further sum of Rs.10,000/-for pain, shock and suffering, and for loss of consortium, the Tribunal awarded a sum of Rs.5000/-. The Tribunal further held that as the husband of the victim had to remain on leave for one month and a half due to the death of his wife to look after his children and as he was earning Rs.772/-a month at the relevant time, he should be entitled to Rs.1161/-towards such loss. The Tribunal ultimately arrived at the figure of Rs.39,061/-in aggregate on the aforesaid, which is enumerated below:-
Rs.14,000-00 for loss of service
Rs. 1,500-00 for medical charges
Rs. 500-00 form transportation charges
Rs. 1,500-00 for funeral expenses
Rs. 10, 000-00 for pain, shock and suffering
Rs. 5,000-00 for loss of expectation of life
Rs. 5,000-00 for loss of consortium
Rs. 1,161-00 for loss of earning for one and a half months due to -- Leave by the applicant No.3
Rs.39,061-00 Total
In the claim petition before the Tribunal, the appellants had claimed Rs.1,00,000/-but in this appeal, court fees have been paid only for additional sum of Rs.50,000/-. Thus, the appellants before us have restricted their claim to further Rs.50,000/-apart from the amount already awarded.
Therefore, the only question that falls for determination in this appeal is whether the Tribunal below was justified in assessing the amount of compensation at Rs.39,061/-by treating the value of the services rendered by the victim towards her family at Rs.75/-a month in the year 1981.
Mr. K.H. Baxi, the learned advocate appearing on behalf of the appellant, has by placing strong reliance upon the decision of the Supreme Court in the case of Lata Wadhwa and Others Vs. State of Bihar and Others, contended that the Tribunal below should have awarded compensation by treating the income of the victim to be at least as Rs.2000/-a month in conformity with the law laid down in the said decision and thus, it is a fit case for enhancement of the amount to further Rs.50,000/-.
Mr. Bhadrish S. Raju, the learned advocate appearing on behalf of the Insurance Company, has, however, opposed the aforesaid submissions and has contended that having regard to the fact that the husband of the victim used to get only Rs.772/-a month, there was no question of treating the income of the victim as Rs.2000/-a month as contended by learned advocate Mr. Baxi. Mr. Raju placed strong reliance upon the decision of the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and has prayed for dismissal of the appeal.
After hearing the learned counsel for the parties and after going through the materials on record, I agree with the Tribunal below that having regard to the evidence adduced by the parties, the case of the claimants that the victim used to earn by doing tailoring job or by private tuition has not been proved and thus, I propose to proceed with the matter by treating the victim as a housewife aged 32 years having a family of husband and two minor children depending on her in the household matters.
A three-judge-bench of the Supreme Court had occasion to consider the question of assessing the money-value of the services rendered by a housewife towards her family in the case of Lata Wadhwa (supra) where an accident occurred in the year 1989 and in that context made the following observations:
So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation, on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs.12,000/-per annum in cases of some and Rs.10,000/-for others, appears to us to be grossly low. It is true that the claimants, who ought to have given datas for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. But even in the absence of such datas and taking into consideration, the multifarious services rendered by the housewives for managing the entire family,even on a modest estimation, should be Rs. 3,000/-per month and Rs. 36,000/-per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore, should be re-calculated, taking the value of services rendered per annum to be Rs. 36,000/-and thereafter applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs.50,000/-instead of Rs.25,000/-given under the report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs.10,000/-per annum and multiplier applied is eight. Though, the multiplier applied is correct, but the value of services rendered at Rs.10,000/-per annum, cannot be held to be just and, we, therefore, enhance the same to Rs. 20,000/-per annum. In their case, therefore, the total amount of compensation should be re-determined, taking the value of services rendered at Rs. 20,000/-per annum and then after applying the multiplier, as already applied and thereafter adding Rs. 50,000/- towards the conventional figure.
(Emphasis supplied)
If we apply the aforesaid principles to the facts of the present case with slight modification in view of the fact that the accident in the case of Lata Wadhwa occurred in the year 1989 whereas the one we are concerned occurred in the year 1981, the amount of compensation should be much more than Rs. one lakh; however, having regard to the fact that in this appeal, the claimants have restricted their claim to further Rs. 50,000/-, I am of the view that the award should be enhanced by that amount in addition to the amount awarded by the Tribunal.
I do not find any substance in the contention of Mr. Raju, the learned Advocate appearing on behalf of the Insurance Company, who by taking inspiration from the subsequent legislation, viz. the Schedule of the Motor Vehicles Act, 1988, contended that as the husband of the victim used to earn Rs. 700/-a month, the income of the wife should not exceed one-third of that income. The aforesaid contention should be turned down for the simple reason that it is not a proceeding u/s 163A of the latter Act and that here the claimants had proved rash and negligent driving of the driver of the offending vehicle as the cause of death which is not required to be proved in a proceeding u/s 163A of the 1988 Act.
Moreover, a two-judge-bench of the Supreme Court, in a recent decision, in the case of Arun Kumar Agrawal and Another Vs. National Insurance Company and Others, had the occasion to consider the aforesaid provision of Schedule of the 1988 Act and in that context, one of the judges of the bench made the following observations:
In the Motor Vehicles Act, 1988 (hereinafter, ''the said Act''), Section 163A provides for special provision for payment of compensation on structured formula basis. The said Section has been quoted in the earlier part of the judgment by brother Singhvi, J. Therefore, I refrain from quoting the same. The Second Schedule which is referred to in the said Section has several clauses. Clause 6 of the said Schedule provides for notional income of those who had no income prior to accident. Clause 6 has been divided into two classes of persons, (a) non-earning persons, and (b) spouse. Insofar as the spouse is concerned, the income of the injured in fatal and non-fatal accident has been categorized as 1/3rd of the income of the earning and surviving spouse. It is, therefore, assumed if the spouse who does not earn, which is normally the woman in the house and the homemaker, such a person cannot have an income more than 1/3rd of the income of the person who is earning. This categorization has been made without properly appreciating the value of the services rendered by the homemaker. To value the income of the home-maker as one-third of the income of the earning spouse is not based on any apparently rational basis.
(Emphasis supplied)
Therefore, I am not at all impressed by the aforesaid contention of Mr. Raju.
Mr. Raju also strongly relied upon the two-judge-bench decision of the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and contended that by relying upon the said decision we should not enhance the said amount.
In the case of Sm. Sarla Verma (supra), the Supreme Court had no occasion to consider the question as to what should be the assumed income of a housewife who has admittedly no independent income of her own and had also not taken into consideration the effect of Lata Wadhwa (supra) and thus, the said decision cannot have any application in resolving the dispute we are faced with in this appeal. We are not concerned with a case of future prospect of the victim which was the principal point decided in that case. As regards, the necessary deduction to be made while applying the multipliers, I find that the principles laid down there in is in conflict with various earlier decisions of the two-judge-bench of the Supreme Court and the said bench without referring the matter to larger bench arrived at a different conclusion from the ones consistently taken by earlier decisions and in paragraph 11 of the judgment recorded that their Lordships were in favour of adopting "a rule of thumb" in that case. Thus, the said decision cannot be referred to as a valid precedent. Even if I follow the principles laid down in Sm. Sarla Verma (supra), on the basis of monthly income of even Rs. 2000/-a month, the amount should be much more that Rs. 89,000/-, the amount I propose to award in modification of the one awarded by the Tribunal. The said decision thus does not help the Insurance Company in anyway.
On consideration of the entire materials on record I thus find that it is fit case where an additional sum of Rs. 50,000/-should be awarded in favour of the claimants over and above the amount awarded by the Tribunal below. The Insurance Company is directed to pay the additional amount in terms of this order with interest at the rate of 12% per annum from the date of filing the application till December 31, 1999 and at the rate of 7% per annum from January 2000 till the actual date of payment. The payment, at any rate, be made within two months from today.
In the facts and circumstances, there will be, however, no order as to costs.