Surjeet Singh & Others vs Raj Kumar Gupta & Another
2015 Latest Caselaw 1109 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
 A.F.R.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2445 of 2003
 

 
Appellant :- Surjeet Singh & Others
 
Respondent :- Raj Kumar Gupta & Another
 
Counsel for Appellant :- M.D. Singh 'Shekhar',Atul Srivastava
 
Counsel for Respondent :- Saral Srivastava
 

 
Hon'ble Krishna Murari,J.

Hon'ble Ashwani Kumar Mishra,J.

1.Husband and sons of the deceased, who died in accident in question, have preferred this appeal under Section 173-A of the Motor Vehicles Act, 1988 for enhancement of compensation. The award of the Tribunal determining compensation amount of Rs.4,05,500/- in M.A.C. No.935 of 2002 has been accepted by the insurance company and no appeal has been preferred by it.

2.Facts in brief giving rise to filing of the present appeal are that on 30th July, 2002 while deceased was crossing the by-pass road, she was hit by a speeding truck, bearing Registration No. MP33/H-0626, due to its rash and negligent driving at Agra, which led to her accidental death on the spot. A claim under Section 166 of the Motor Vehicles Act was raised by appellants herein against the owner of the truck and the insurance company with the averment that deceased was about 44 years of age and was running a boutique and was taking care of the claimants. It was alleged that during the last financial year, her income was assessed at Rs.80,750/- per annum and a claim for compensation of Rs.10 lacs was raised.

3.Claimants in support of their plea adduced oral evidence of claimant-husband Surjeet Singh PW-1 and PW-2- Arvinder Singh, an eye witness to the incident. Documentary evidence in the form of FIR, postmortem report, technical report, chargesheet, income tax assessment for the year 2001-2002, tax receipts, assessment order in respect of the year 2000-2001, actual tax receipts, PAN card, death certificate and cover note etc. were adduced. The owner of the vehicle denied the accident and claimed that vehicle was otherwise insured for the period 18.4.2002 to 17.4.2003 and as such, for any claim raised under Section 166 of the Act, he was indemnified by insurance policy, which was also brought on record.

4.Tribunal framed four issues in the matter i.e. (i) whether accident occurred due to rash and negligent driving of the truck resulting in death of the deceased; (ii) whether the driver had valid licence; (iii) whether at the time of accident, vehicle was insured and (iv) as to what amount claimants are entitled to receive as compensation ?

5.On the basis of evidence led before the Tribunal, it was held that accident had occurred due to rash and negligent driving of the offending vehicle, which was driven by the driver having a valid licence and the vehicle itself was insured. On these three issues, award of the Tribunal has attained finality and, therefore, no further consideration on these questions is required by this Court. The only question, which calls for adjudication in the present appeal, is as to whether the award of compensation of Rs.4,05,500/- is adequate ? and if not, then to what extent it needs to be enhanced ?

6.Based upon documents relating to determination of deceased's income by the Income Tax Authorities, Tribunal found that in respect of financial year 2000-2001, her income was assessed at Rs.80,750/-. After taking into consideration the oral testimony of husband, PW-1, that he used to assist the deceased in running of boutique, Tribunal appropriated 1/4th of income towards husband's contribution and after adjusting actual tax amount payable of Rs.5,000/-, the yearly income of deceased was worked out at Rs.55,000/- per annum. 1/3rd was allowed towards personal expenditure and multiplicand was thus determined as Rs.46,000/-. It was also held that appellant nos.2 and 3 being major married sons were not dependent upon deceased. The Tribunal further held that although deceased was in the age bracket of 45-50 years but the age of sole dependent i.e. husband in the present case since was 54 years and was higher than that of deceased, as such, multiplier of 11 was applied. Consequently, the amount of compensation for the loss of income was assessed at Rs.3,96,000/- per annum. A further sum of Rs.5,000/- was allowed towards loss of consortium, Rs. 2,500/- towards loss of estate and Rs.2,000/- towards funeral expenses. The total payable amount was, accordingly, determined at Rs.4,05,500/-.

7.Appellants being aggrieved have sought enhancement of compensation on the following amongst other grounds:-

(i.) Deceased's income as disclosed to income tax authorities was approximate Rs.80,000/- per annum, which was her income, and the deduction of 1/4th towards contribution of husband was wholly uncalled for and illegal.

(ii.) Multiplier of 11 chosen by the Tribunal was deficient, and ought to be 13, as the age of deceased was in the bracket of 45-50 years.

(iii.) It is also contended that higher amount towards loss of consortium, loss of estate and funeral expenses are liable to be awarded in view of the law settled.

(iv.) Appellants also contend that additional amount under the head of future prospects was liable to be added.

8.In reply, learned counsel for the insurance company submits that in fact the deceased's income was assessed for the assessment year 2001-2002, which corresponds to financial year 2000-2001, and no proof of income was shown for the period thereafter and as such the income already assessed is on the higher side and needs no further enhancement. Submission is that deceased had left behind her husband as her only dependent, as such 50% of the income was liable to be appropriated towards her personal use and the Tribunal has erred in allowing only 1/3rd towards her personal use.

9.Having heard learned counsel for the parties and upon consideration of oral and documentary evidence brought on record, this Court finds that in fact the Income Tax Authorities had assessed income of deceased for the assessment year 2000-2001 at Rs.62,550/-, upon which tax payable was Rs.1,510/-. For the subsequent assessment year 2001-2002, income of deceased was assessed at Rs.80,750/- and upon it a sum of Rs.5,150/- was payable as tax. Deceased died on 30th July, 2002. The details of income of deceased and the amount of tax paid for the financial year 2001-2002 i.e. assessment year 2002-2003 are not available on record. This aspect has been highlighted by learned counsel appearing for the insurance company to contend that deceased had not furnished any proof of income for the relevant financial year 2001-2002. This argument of learned counsel for the insurance company that details of income for the relevant year was not brought on record, is not liable to be accepted as judicial notice can be taken note of the fact that income tax return in respect of self-employed person is normally submitted by assessee in August after the end of financial year but deceased had died on 30th July, 2002, as such, income tax return for the financial year 2001-2002 may not have been furnished and it cannot be said that no income accrued to the deceased in the financial year 2001-2002.

10.From the income tax details available, it is apparent that while income of deceased was Rs.62,500/- in financial year 1999-2000, her income in the next year increased to Rs.80,750/-. The rising trend of income of the deceased is clearly reflected. In such circumstances, it would be safe and prudent to assume on the basis of materials available on record that income of deceased at the time of her death was not below Rs.80,000/- per annum.

11.We have not been able to understand nor any convincing reasoning is forthcoming from the award of the Tribunal as to how the income of deceased could be reduced to 3/4th, with 1/4th being appropriated towards contribution of the husband. Even if the appellant no.1 had stated that he used to assist the deceased, there is still nothing on record to indicate or even to infer that contribution of husband in the boutique business of deceased was to the extent of 1/4th. This deduction by the Tribunal is based wholly on surmises without there being any actual basis for such appropriation and, therefore, we find substance in the argument advanced by learned counsel for the appellants that income of the deceased was liable to be treated as Rs.80,750/-, upon which deceased had paid income tax. This Court also cannot lose sight of the fact that appellant no.1 has lost his wife and her contribution to the different work of household also had to be accounted for. This issue has been dealt with extensively by Hon'ble Supreme Court in Arun Kumar Agrawal and another v. National Insurance Company and others reported in (2010) 3 TAC 769. While dealing with contribution of deceased lady to the household, following observations were made in para 19, 23, 24, 27, 31, 32, 33 and 35, which are reproduced:-

"19. We may now deal with the question formulated in the opening paragraph of this judgment. In Kemp and Kemp on Quantum of Damages, (Special Edition - 1986), the authors have identified various heads under which the husband can claim compensation on the death of his wife. These include loss of the wife's contribution to the household from her earnings, the additional expenses incurred or likely to be incurred by having the household run by a house-keeper or servant, instead of the wife, the expenses incurred in buying clothes for the children instead of having them made by the wife, and similarly having his own clothes mended or stitched elsewhere than by his wife, and the loss of that element of security provided to the husband where his employment was insecure or his health was bad and where the wife could go out and work for a living.

23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.

24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term ''services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.

27. In A. Rajam v. M. Manikya Reddy 1989 ACJ 542 (Andhra Pradesh HC), M. Jagannadha Rao, J. (as he then was) advocated giving of a wider meaning to the word ''services' in cases relating to award of compensation to the dependents of a deceased wife/mother. Some of the observations made in that judgment are extracted below:

"The loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of 'services' to the family, if there was reasonable prospect of such services being rendered freely in the future, but for the death. It must be remembered that any substitute to be so employed is not likely to be as economical as the housewife. Apart from the value of obtaining substituted services, the expense of giving accommodation or food to the substitute must also be computed. From this total must be deducted the expense the family would have otherwise been spending for the deceased housewife. While estimating the ''services' of the housewife, a narrow meaning should not be given to the meaning of the word ''services' but it should be construed broadly and one has to take into account the loss of ''personal care and attention' by the deceased to her children, as a mother and to her husband, as a wife. The award is not diminished merely because some close relation like a grandmother is prepared to render voluntary services."

31. In Amar Singh Thukral v. Sandeep Chhatwal (supra), the learned Single Judge of Delhi High Court adopted the yardstick of minimum rates of wages for the purpose of award of compensation in the case of death of a housewife and then proceeded to observe ''since there is no scientific method of assessing the contribution of a housewife to her household, in cases such as the present, resort should be had to the wages of a skilled worker as per the minimum rates of wages in Delhi. Although, this may sound uncharitable, if not demeaning to a housewife, there is hardly any option available in the absence of statutory guidelines'.

32. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) and also take guidance from the judgment in Lata Wadhwa's case. The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker.

33. Reverting to the facts of this case, we find that while in his deposition, appellant No.1 had categorically stated that the deceased was earning Rs.50,000/- per annum by paintings and handicrafts, the respondents did not lead any evidence to controvert the same. Notwithstanding this, the Tribunal and the High Court altogether ignored the income of the deceased. The Tribunal did advert to the Second Schedule of the Act and observed that the income of the deceased could be assessed at Rs.5,000/- per month (Rs.60,000/- per annum) because the income of her spouse was Rs.15,416/- per month and then held that after making deduction, the total loss of dependency could be Rs.6 lacs. However without any tangible reason, the Tribunal decided to reduce the amount of compensation by observing that the deceased was actually non-earning member and the amount of compensation would be too much. The High Court went a step further and dismissed the appeal by erroneously presuming that neither of the claimants was dependent upon the deceased and the services rendered by her could be estimated as Rs.1250/- per month.

35. In the result, the appeal is allowed. The impugned judgment as also the award of the Tribunal are set aside and it is held that the appellants are entitled to compensation of Rs.6 lacs. Respondent No.1 is directed to pay the said amount of compensation along with interest at the rate of 6% per annum from the date of filing application under Section 166 of the Act till the date of payment. The needful shall be done within the period of 3 months from the date of receipt/production of copy of this order. The appellant shall get cost of Rs.50,000/-."

12.While delivering a separate judgment, Hon'ble Asok Kumar Ganguly, J., while agreeing with the aforesaid, gave separate reasons in para 23 and 28, which are also reproduced:-

"23. Admittedly, it has to be recognized that the services produced in the home by the women for other members of the household are an important and valuable form of production. It is possible to put monetary value to these services as for instance, the monetary value of cooking for family members could be assessed in terms of what it would cost to hire a cook or to purchase ready cooked food or by assessing how much money could be earned if the food cooked for the family were to be sold in the locality.

28. For the reasons aforesaid, while agreeing with the views of brother Singhvi, J., I would humbly add, that time has come for the Parliament to have a rethinking for properly assessing the value of homemakers and householders work and suitably amending the provisions of Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and a homemaker. Amendments in matrimonial laws may also be made in order to give effect to the mandate of Article 15(1) in the Constitution. "

13.In the present case, it has been asserted on behalf of the claimants that the deceased was engaged in the work of running a boutique and was earning Rs.80,000/- per annum. The services rendered by her to the family as wife and mother are also undisputed. Even though the gratuitous services rendered to the husband and sons at home cannot be compensated in terms of money but judicial notice can always be taken of the skills possessed and employed by her in extending services to the family as wife and mother and loss suffered due to her death needs also to be kept in mind. In light of the aforesaid discussions and the evidence brought on record, we hold that income of deceased at the time of her death was not less than Rs.80,000/- per annum.

14.Coming next to the aspect of deduction towards personal living expenses, this Court finds that Tribunal had appropriated 1/3rd towards personal expenses of the deceased. This finding of the Tribunal has not been assailed in appeal by the insurance company. However, it is submitted before this Court that 50%, instead of 1/3rd, was liable to be appropriated towards deduction for personal living expenses. Reliance has been placed upon Paragraph 30 of the judgment of the Apex Court in Sarla Verma Vs. DTC [2009 (6) SCC 121], which is reproduced:-

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six."

15. Tribunal in the present case has observed that appellant nos.2 and 3, who are sons of the deceased, are not dependent upon the deceased. It was, however, contended on behalf of the appellants that one of the sons was unemployed and was dependent upon the deceased. Although, this Court finds that Tribunal has rightly ignored both the sons as dependents on the ground that in due course they would be able to earn their own livelihood yet in view of the fact that only 1/3rd was allowed towards personal expenses of the deceased, which observation and finding of the Tribunal has not been challenged by insurance company and keeping in view the fact that family of deceased also consisted of her sons, the appropriation allowed by Tribunal of 1/3rd, instead of 1/2, cannot be said to be unjustified. Even under Section 163-A of the Act, statutory recognition has been granted to 1/3rd deduction for personal use under the IInd schedule to the Act. In Kerla SRTC Vs. Susamma Thomas [1994 (2) SCC 176], which has been relied upon in Sarla Verma (supra), it has been observed that in the absence of evidence, deduction of 1/3rd of gross income towards personal living expenses of the deceased is not unusual. Thus, the award of the Tribunal appropriating 1/3rd towards personal expenses is not liable to be interfered.

16.Examining the question of selection of multiplier, this Court finds that Tribunal has applied a multiplier of 11 in the facts of the present case. Appellants contend that age of deceased, as found in the postmortem report, was in the range of 45-50 years and as such appropriate multiplier of 13 was liable to be adopted, instead of 11. Learned counsel for the appellants has relied upon judgment of the Apex Court in P.S. Somanathan and others Vs. District Insurance Officer and another [2011 (3) SCC 566] to contend that it is the age of deceased, which is relevant factor for determining multiplier and the age of the dependent is not the correct criteria to be followed in such matters. Tribunal, however, has relied upon the judgment of the Apex Court in Kerla SRTC Vs. Susamma Thomas (supra), in which it has been held that multiplier ought to be determined taking the age of the deceased or dependent, whichever is higher. This proposition has been followed in the case of U.P. SRTC Vs. Trilok Chandra [1996 (4) SCC 362], which again has been relied upon in Sarla Verma (supra). In the facts of the present case, we find that age of dependent Surjeet Singh is 54 years and, therefore, multiplier of 11 applied by the Tribunal is correct and the appellants' contention in this regard is liable to be rejected.

17.The Tribunal under the head of loss of consortium, loss of estate and funeral expenses has followed the IInd schedule led in Section 163-A of the Act. The issue in this regard has been dealt with by the Apex Court in Rajesh and others Vs. Rajbir Singh and others [2013 (9) SCC 54]. Paras 16 to 18 of the judgment are reproduced:-

"16. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.

17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi7. We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2500 to Rs. 10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma case2, it was held that compensation for loss of consortium should be in the range of Rs. 5000 to Rs. 10,000. In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that courts award at least rupees one lakh for loss of consortium.

18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head "funeral expresses". The "price index", it is a fact has gone up in that regard also. The head "funeral expenses" does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of "funeral expenses", in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000."

In view of the above, the claimants are entitled to loss of consortium amounting to Rs. 1,00,000/-, a sum of Rs.10,000/- for loss of estate and a sum of Rs.25,000/- for funeral expenses.

18.In such circumstances, the claimants would be entitled to compensation under the following heads:-

Sl. No.

Heads

Calculations

(i)

Annual Income (after payment towards tax Rs.05,150/-)

Rs.80,750 -05,150 = Rs.75,600/-

(ii)

1/3rd of (i) to be deducted as personal expenses of the deceased.

Rs.75,600 -25,000= Rs.50,600/-

(iii)

Compensation (for loss of dependency) after multiplier of 11 is applied.

Rs.50,600 x 11 =

Rs.05,56,600/-

(iv)

Consortium

Rs. 01,00,000/-

(v)

Funeral expenses

Rs. 25,000/-

(vi)

Loss of estate

Rs. 10,000/-

Total compensation awarded

Rs. 06,91,600/-

19.Since we have enhanced the amount of compensation, therefore, in view of the law laid down by the Apex Court in Sanjay Verma v. Haryana Roadways: 2014 (3) SCC 210, we award interest of 6% per annum upon the enhanced compensation to the claimants. Observation of the Apex Court in Sanjay Verma (supra) is reproduced:-

"In view of the enhancement made by us, we do not consider it necessary to modify the rate of interest awarded by the High Court i.e. 6% from the date of application to the date of payment which will also be payable on the enhanced amount of compensation."

20.In view of the aforesaid findings, we allow the appeal in part and modify the award dated 31.5.2003 passed by Motor Accident Claims Tribunal, Agra in M.A.C. No.935 of 2002 and allow the claim for payment of compensation amounting to Rs. 06,91,600/-, as calculated above, along with interest at the rate of 6% per annum from the date of filing of the claim petition till its actual payment. The respondent- insurance company is directed to deposit the aforesaid amount before the Tribunal, after adjusting the amount already deposited, within a period of two months and the Tribunal shall release the enhanced amount in favour of the appellants-claimants, as per the award. However, no order is passed as to costs.

Order Date :- 10th July, 2015

Anil

(Krishna Murari, J.)

(Ashwani Kumar Mishra, J.)