Sau Arati Bhimrao Shinde vs Ramesh Sitaram Devkar And Another
2017 Latest Caselaw 4777 Bom

                                                      1                                      FA 588.05(J)
                                                                                                            
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.


                               FIRST APPEAL NO.588 OF 2005


                Sau. Arati Bhimrao Shinde,                  ...APPELLANT
                Aged about 38 years, Occ. Household work.
                R/o. Veni, Tq. Mahagaon,
                District Yavatmal. 

                                               --Versus ---

1.              Ramesh Sitaram Devkar                                     .  RESPONDENT S
                                                                                          
                Aged about 33 years, Occ. Business
                R/o Patur, Tq. Patur, District Akola.

2.              The Oriental Insurance Co. Ltd.
                Through Branch Manager,
                Yavatmal, Tq. and District Yavatmal.
------------------------------------------------------------------------------------------------------
Shri U.L.Chhangani, Advocate h/f Shri S.U.Nemade, Advocate for Appellant
None for respondents though duly served on merits.
-----------------------------------------------------------------------------------------------------

                                                                CORAM : S.B.SHUKRE,J.

DATED : 20.07.2017

ORAL JUDGMENT

1. This appeal questions the legality and correctness of findings recorded

by the tribunal in its judgment and order dated 29 th March, 2005 rendered by

Motor Accident Claims Tribunal, Yavatmal, in Motor Accident Claim No.57/1997

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in respect of the quantum of compensation determined as payable by it to the

appellant.

2. The appellant filed a petition under Section 166 of the Motor Vehicles

Act, claiming compensation for the injuries suffered by her in the accident which

occurred on or about 6.45 a.m. on 19.05.1996 on Patur-Mahur Road, near

Warehouse, Pusad. At that time, the appellant was proceeding by Tempo-Trax

bearing registration No. MH-30/BB - 1018 owned by respondent no.1 and insured

with respondent no.2. The tempo-trax driver had lost control over the vehicle and

dashed it against the tree standing on the road side. The disability sustained by

the appellant because of the injuries she suffered in this accident, was to the

extent of 30% and was of permanent nature. She was required to incur

substantial amount on account of treatment administered to her at various

hospitals at Pusad, Yavatmal and Nagpur. On merits of the petition, the learned

Member of the Tribunal found that the appellant was entitled to receive total

compensation of Rs.1,10,410/- including no fault liability compensation from the

respondent nos. 1 and 2 jointly and severally. The judgment and order in this

petition was rendered on 29th March, 2005 and now against the quantum of

compensation, so awarded, the appellant is before this Court in the present

appeal.

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3. I have heard learned counsel for the appellant. None appears for the

respondents though duly served on merits. Now, the only point which arises for

my determination is,

Whether the Tribunal has awarded just and proper compensation ?

4. I must say here that the findings recorded by the tribunal on the

issues of occurrence of the accident, rashness and negligence of the driver of the

tempo trax involved in the accident being the cause of the accident and the

liability of respondent no.1 as the owner of the vehicle involved in the accident,

and the liability of respondent no.2 as insurer of the vehicle involved in the

accident, have attained finality. It has also not been brought to my notice that

any appeal against these findings has been filed or these findings have been upset

by any appellate Court.

5. The tribunal has recorded a finding that the disability suffered by the

appellant as a result of injuries that she suffered in the accident was of permanent

nature and it was to the extent of 30%. I have no reason to differ with this

finding. But, the tribunal has not given any reflection in the impugned award as

to how did it calculate the amount of Rs.50,000/- to be an appropriate

compensation for permanent disability so suffered by the appellant. This amount

has been determined by the tribunal by taking into various factors such as loss of

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amenities of life, loss of expectation of life, inconvenience, hardships, discomfort,

mental stress and so on and so forth. But the break-up for all these factors has

not been given nor any formula by which such a determination is made is stated

in the impugned award. I think, determination of this amount as just and proper

compensation for the permanent disability suffered by the appellant is not

consistent with the settled principles of law. Therefore, finding of the tribunal in

this regard deserves to be quashed and set aside.

6. In the case of Arunkumar Agrawal Vs. National Insurance

Company, reported in (2010) 9 Supreme Court SCC 218, the Hon'ble Supreme

Court has spelt out some guidelines in this regard. The Hon'ble Supreme Court

has taken into account the immeasurable services that a housewife renders to her

family. One can see that by keeping one's eyes open while at home. One would

then realise that a wife or mother is not a mere house holder, she is a home

maker also, and in every sense of the term. A homemaker may not have any

ostensible income to show but it cannot be forgotten that by managing all the

affairs of the house, she renders an invaluable service and it is not possible to

make assessment of the value of such service in temporal units. Therefore, the

Hon'ble Apex Court resorted to concept of notional income and held that 1/3rd

income of the earning or surviving spouse could be taken as a reference point for

the purpose of computing the compensation. It also held that in case of a non-

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earning person, the income can be notionally taken to be of Rs.15,000/- per

annum as specified in the Second Schedule to the Motor Vehicles Act. Relevant

observations of the Hon'ble Apex Court as appearing in para 35 and 36 are

reproduced thus :

"35. 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 a regular income, by comparing her service with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by the wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or date 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 house. 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.

"36. Though Section 163-A 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 reasonable to rely upon the criteria

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specified in Clause 6 of the Second Schedule and then apply an appropriate multiplier keeping in view the judgments of this Court in Kerala SRTC V. Susmma Thomas, U.P.SRTC v. Trilok Chandra, Sarla Verma V DTC and also take guidance from the judgment in Lata Wadhwa case. The approach adopted by different Benches of the 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 the work of a skilled worker."

7. In the present case also, no evidence has been brought on record by

the appellant about income earned by her husband. In the claim petition filed by

the husband as well, arising out of the same accident, some evidence has been

recorded in that case which has been relied upon by the tribunal in that case in

recording it's finding on the income of the husband. But, the appellant in the

present case has chosen to not rely upon that finding or otherwise she would have

certainly tendered certified copy of the judgment in the instant case before the

tribunal, and she has not. This would mean that nothing is available on record of

this case to say that husband of the appellant was an earning person. It would

then follow that the husband of the appellant was a non earning person and so, as

per 2nd schedule of the Motor Vehicles Act, his notional income would be of

Rs.15,000/- per annum. As indicated in Arunkumar Agrawal (supra), 1/3rd

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income of the husband, notional or actual, is required to be taken into

consideration for computing the compensation in a case of permanent disability

suffered by the wife who is a home maker. This compensation undoubtedly is for

such heads as, reduction in ability to render service at home, loss of amenities of

life, loss of expectation of life, mental stress, hardship and inconvenience. The

1/3rd of Rs.15,000/- comes to Rs.4,950/- which is rounded off to Rs.5,000/-.

Considering the nature of disability, which is permanent, this amount would have

to be taken as the actual loss of income suffered by the appellant every year.

8. For such annual loss of income of Rs.5,000/-, for the age group of 26-

30, there is no dispute about the appellant being of 30 years old at the time of

accident, appropriate multiplier as per Sarla Verma (Smt) and others Vs. Delhi

Transport Corporation and another reported in (2009) 6 Supreme Court

Cases 121, is of 17. When this multiplier is applied to the annual loss of income,

the total loss of income would come to Rs.85,000/-. The amount of Rs.5,000/- on

account of mental and physical pain and suffering as already given by the tribunal

and amount of Rs.55,409/- found to be payable by the tribunal to the appellant

on account of medical expenditure incurred by her, would have to be added to the

total amount of loss of income. This would make total compensation payable to

the appellant to be of Rs.1,45,509/- which shall be together with same rate of

interest which is of 9% per annum as awarded by the Tribunal from the date of

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the application till realization of the amount. The point is answered accordingly.

The impugned award is modified in the above terms. The amount payable under

this order shall be paid to the appellant by the respondent nos. 1 and 2 jointly and

severally within three months from the date of the order.

9. The appeal is allowed in the above terms. The parties to bear their

own costs.

JUDGE

Andurkar