Gujarat High Court

Ranjanben Anilkumar Kaneria vs Anilkumar Vitthalbhai Kaneria on 13 April, 2023

Bench: Gita Gopi

     C/FA/789/2023                                  JUDGMENT DATED: 13/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 789 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       RANJANBEN ANILKUMAR KANERIA
                                   Versus
                       ANILKUMAR VITTHALBHAI KANERIA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 2
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 13/04/2023

                                ORAL JUDGMENT

1. The appellant - injured lady has challenged

the judgment and award dated 30.7.2019

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

passed by the MACT (Aux), Gondal in MACP

no.52 of 2013.

2. The appellant has raised a ground that the

income has not been considered in accordance

to the observations of the Hon'ble Apex

Court to appreciate the duties of a

housewife and further a ground has been

raised that amount under the head of pain,

shock and suffering is not in accordance to

the injuries and the disability sustained by

the claimant.

3. Learned advocate Mr. Nishit Bhalodi stated

that the services rendered by the housewife

has to be given a broad meaning and should

be adequately compensated and her work

should not be equated with that of a

labourer, but should be placed on a higher

pedestal since the service of a housewife

develops a family which starts from the

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

minor and other members who would be

dependent on her household services.

4. While Mr. Mehta stated that the learned

Tribunal has assessed the income aspect in

accordance to the evidence, which had been

led before the Court and therefore, stated

that the amount as assessed for the monthly

income is just and proper and further

submitted that the appellant had failed to

show any cogent evidence to claim any higher

amount under the head of pain, shock and

suffering.

5. In case of Arun Kumar Agrawal & Anr. Vs.

National Insurance Company Limited & Ors.,

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

Apex Court has elucidated the services

rendered by a housewife/mother whose

services are required to be given a broad

meaning and must be construed by taking into

account the personal care and attention

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

given to the children as a mother and to her

husband as a wife.

6. In Kirti & Anr. Vs. Oriental Insurance

Company Ltd., reported in (2021) 2 SCC 166,

the Hon'ble Supreme Court, while observing

the contribution of the house maker who add

to the economic value to the household has

observed that the law and the courts of land

believe in the value of labour, services and

sacrifices of a home maker. It has been

observed in Paragraph 30 as under:-

"30. The issue of fixing notional income for a homemaker, therefore, serves extremely important functions. It is a recognition of the multitude of women who are engaged in this activity, whether by choice or as a result of social/cultural norms. It signals to society at large that the law and the Courts of the land believe in the value of the labour, services and sacrifices of homemakers. It is an acceptance of the idea that these activities contribute in a very real way to the economic condition of the

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

family, and the economy of the nation, regardless of the fact that it may have been traditionally excluded from economic analyses. It is a reflection of changing attitudes and mindsets and of our international law obligations. And, most importantly, it is a step towards the constitutional vision of social equality and ensuring dignity of life to all individuals."

7. Further, it has been held that there can be

no fix approach to the issue as to how

notional income of a home maker is to be

calculated and the said issue has to be

understood by an attempt of the Court to fix

an appropriate economic value for all the

work that a home maker does and the Court

must keep in mind the idea of awarding just

compensation in such cases looking to the

facts and circumstances. The Hon'ble Apex

Court in the said judgment of Kirti (supra)

has also dealt with the issue of granting

future prospects even in cases pertaining to

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

notional income and has extended the said

principles to non-earning victims

particularly with respect to home makers and

further had summarized the said aspect to be

taken into consideration for fixing the

notional income of a home maker. Paragraph

41 of the said judgment reads as under:-

"41. Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers and the grant of future prospects with respect to them, for the purposes of grant of compensation which can be summarized as follows:

41.1 Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law.

41.2 Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all.

41.3 Various methods can be employed by the Court to fix the notional income of a homemaker, depending on the facts and circumstances of the case.

41.4 The Court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.

41.5 The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation."

8. The Tribunal had assessed Rs.3,000/- as

monthly income of the appellant. As per the

deposition, she was doing work of preparing

photocopies and making lamination and was

earning Rs.10,000/- per month. She at the

time of accident was traveling with husband

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

who was driving the car. At the time of the

accident, she was 52 years old. The facts of

the case suggest that on 24.5.2013, she was

traveling in a Wagon R Car bearing

registration no. GJ-03 DN-9438 driven by her

husband - appellant no.1. They were coming

from Village Shishak to Gondal and when the

car reached at Ghoghavadar Road, near Gokul

Cement Products, Gondal, it is stated that

the car was in full speed and because of

rash and negligent driving, the front tyre

of the car got blasted and the opponent no.1

lost control over his car, which turned

turtle and in the accident, the appellant

sustained serious fractures and other bodily

injures. She was taken to Orthopedic

Hospital of Dr. Vadodaria, Gondal and

thereafter, was referred to H.J. Doshi

Hospital, Rajkot for medical treatment.

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

9. The claimant states that she has sustained

36% permanent partial disability and to

support her case, she has produced

disability certificate issued by Dr.

Langaliya at Exh.21 and another disability

certificate was also issued by Dr. Jayesh

Odedara of Gokul Hospital, Rajkot. According

to him, the claimant had suffered permanent

partial disability of 20%. Dr. Jayesh

Odedara has issued certificate stating

permanent partial neurological disability.

Thus, it was urged to consider 56% permanent

partial disability and both the parties

hereby had agreed to consider as 23% and 15%

permanent partial disability of the body as

a whole. Hence, on the consent of both the

parties, 38% disability of the body as a

whole was assessed by the Tribunal. Before

this Court too, both the advocates agreed on

the assessment of functional disability of

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

38%.

10. The income assessed by the learned Tribunal

of Rs.3,000/- per month for housewife should

be not on random basis, but by appreciating

the gratuitous service of looking after the

house, children and husband and over and

above, it is also necessary to recognize the

work, which she does outside her house to

sustain the family development. Thus, taking

into consideration the nature of housework

and recognizing the work carried out outside

the house the labour and sacrifices of a

home maker and in confirmity with the age of

the claimant, this Court considers that the

reasonable amount to recognize the labour

and sacrifice of the house maker,

considering the year of the accident, income

of Rs.5,000/- per month would be just and

reasonable. Further, as the age of the

claimant at the time of the accident was 52,

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

10% rise in income is also required to be

assessed. Hence, the disability loss would

be Rs.5,000/- + 10% rise in income =

Rs.5,500/- X 38% X 12 X 11 and thus, the

future loss would come to Rs.2,75,880/-.

11. The claimant has neurological loss as well

as there is a physical disability, which has

been considered as 36% and 20% respectively

by the Doctors. The claimant, after the

accident, was taken to the orthopedic

hospital of Dr. Vadodaria at Gondal and

thereafter, was also referred to H.J. Doshi

Hospital, Rajkot. The claimant has suffered

pain because of the accident and considering

the neurological disability coupled with the

physical disability, she must have suffered

because of the accident. Hence, the amount

of Rs.35,000/- was granted towards pain,

shock and suffering. The claimant's medical

bills and treatment charges is considered as

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

Rs.83,000/-. Under the head of special diet,

attendant and transportation, the Tribunal

has granted Rs.5,000/-, which requires no

modification.

12. Since the income has been considered at

Rs.5,000/- per month and taking into

consideration the disability and the injury

sustained, she would not have been in a

position to work and the learned Tribunal

has considered actual loss for 3 months.

Thus, accordingly, the actual loss of income

would come to Rs.15,000/-. Thus, the

computation of the compensation would be as

under:-

Rs.2,75,880/- Future loss of income Rs.35,000/- Pain, shock and suffering Rs.5,000/- Special diet, attendant and transportation Rs.15,000/- Actual loss of income Rs.83,000/- Medical bills = Rs.4,13,880/- Total compensation

C/FA/789/2023 JUDGMENT DATED: 13/04/2023

13. As the Tribunal has granted compensation of

Rs.2,67,500/- with interest at the rate of

9% per annum, the appellant would be

entitled to the enhanced amount of

compensation of Rs.1,46,380/- with interest

at the rate of 7.5% per annum from the date

of filing of the claim petition till its

realization. The insurance Company is

directed to deposit the said amount within

eight weeks from the date of receipt of writ

of this Court.

14. On depositing of the amount, 80% shall be