Hon'ble Ashwani Kumar Mishra,J.
(Per Hon. Ashwani Kumar Mishra, J.)
1. The present appeal has been preferred by the husband and his two minor daughters, challenging the award of Motor Accident Claims Tribunal dated 30.5.2011 passed in M.A.C.P. No.234 OF 2010, awarding Rs.3,29,500/- as compensation, on account of death of late Sangeeta Pandey on 23.6.2010 and have sought enhancement of compensation. The award of the tribunal has been accepted by the insurance company and no appeal has been preferred by it.
2. On 23.6.2010 at about 8.00 AM in the morning the deceased while was going to Shiv Dayalganj for medical treatment, she met with an accident on account of rash and negligent driving of truck bearing registration no. UP42-T/8128 on Ayodhya Katra Road at its trisection at Katra Bhogchand in front of Sachin PCO, Police Station Nawabganj, District Gonda. Deceased was hit by the speeding track and she sustained serious injuries and while she was being taken to District Hospital, Faizabad, she died in the way. Claim under section 166 of the Motor Vehicles Act was raised by the husband and two minor daughters against the insurance company and the owner of the vehicle with the allegation that the deceased was aged about 25 years of age and she was engaged in sewing and stitching work and was having monthly income of about Rs.8,000/-. Under different heads amount of compensation of Rs.19,33,000/- was claimed.
3. The owner of the vehicle contested the claim by pleading ignorance of the accident, however, it was stated that the vehicle was ensured with Oriental Insurance Company Ltd. and that the vehicle was being driven by Anil Kumar , who had a valid driving licence. Insurance Company also filed its written statement and various objections were raised to the effect that the sum claimed was excessive, first information report, postmortem report, charge sheet etc. since have not been filed, therefore, the claim was liable to be rejected.
4. The tribunal on the basis of respective pleadings of the parties framed five issues.
5. Issue no.1 and 4 were regarding the question as to whether the accident was caused by the truck in the manner claimed which led to death of deceased Sangeeta Pandey and whether there was contributory negligent on part of the deceased. These two issues were decided together by the tribunal and a finding was returned that the death of the deceased Sangeeta Pandey was caused due to rash and negligent driving of the truck bearing registration no.UP42-T/8128 in the manner, as claimed. Further finding was returned that there was no contributory negligence of the deceased which led to accident. Findings of the tribunal on issue no.1 and 4 have not been challenged either by the insurance company or by the owner of the vehicle and as such those findings have attained finality.
6. Issue no.2 regarding valid registration and insurance was answered by the tribunal in favour of the claimants by holding that there was valid registration and insurance of the vehicle. Similarly, issue no.3 regarding existence of valid driving licence was also decided in favour of the claimants.
7. The tribunal found that since the vehicle was insured and there was no violation of terms of the insurance policy, as such insurance company was liable to pay compensation. The tribunal relied upon the decision reported in (2010) 3 TAC 769, (2002) 1 TAC 138 and (2010) 82 ALR 206 and found that the claimants have not been able to establish the income of Rs.8,000/- per month as has been claimed. However, it was observed that since the deceased was engaged in sewing and stitching work etc., therefore, her income has been assessed at Rs.2,500/- per month. After appropriating 1/3rd towards her personal and living expenses, the loss of dependency has been determined as Rs.20,000/- per annum. Relying upon the entry in the family register, age of the deceased was held to be 35 years and multiplier of 16 was applied. Loss of dependency was fixed at Rs.3,20,000/-. Further sum of Rs.5,000/- towards loss of consortium, Rs.2,000 towards loss of estate and Rs.2,000/- towards funeral expenses was also assessed, quantifying the total compensation at Rs.3,29,500/-.
8. In the instant case, the deceased was the wife of claimant-appellant no.1 and mother of two minor girls aged about 11 and 1 years respectively. The entire family depended upon the deceased. The question up for consideration is, as to how the loss suffered due to death of deceased who was epicenter of the entire family has been determined?
9. The tribunal has returned a finding that the claimants-appellants could not establish the income claimed of the deceased as Rs.8,000/- per month. The tribunal has held that the deceased must have earned some amount from her activities of sewing and stitching etc. and accordingly tribunal has assessed her income at Rs.2,500/- per month.
10. We are of the view that the tribunal adopted a misdirected approach for the purposes of determining income of the deceased. It has failed to correctly evaluate the services of the deceased and award just compensation.
11. In order to determine the claim of compensation at the instance of husband due to death of her wife, different heads have been recognized by law which includes loss of wife, contribution to household from her earnings and other expenses likely to be incurred for having the household run by housekeeper or servant apart from gratuitous services rendered to the house. This issue has been dealt with extensively by Hon'ble Supreme Court in its judgment delivered in Arun Kumar Agrawal and another v. National Insurance Company and others reported in (2010) 3 TAC 769. While dealing with this issue, 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. One of the Hon'ble Judges, while agreeing with the aforesaid gave separate reasons, in para 23 and 28, which are 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. The contribution of deceased, who was mother and wife of the claimants-appellants can hardly be overemphasized. The vacuum created in the household due to death of the deceased can hardly be compensated in terms of the money. While assessing her contribution to the family, it would be callous on part of a court of law to treat her contribution as equivalent to the notional income of Rs.15,000/- per annum, as suggested by the insurance company. The argument regarding notional income of Rs.15,000/- to be relied as per IInd Schedule in the absence of proof of income is noticed only to be rejected. The IInd Schedule, which is referable to section 163A of the Act, provide for compensation on structured formula basis. Section 163-A has been introduced by the legislature vide Act No.54 of 1994 with effect to 14.11.1994. The object of the amending Act was to provide for speedy compensation even where allegation of wrongful neglect or default of the owner, was not pleaded or established. The provisions of section 163-A introducing the IInd Schedule are not to be scrupulously followed in a claim under section 166 of Act. In Puttama & others v. K.L. Narayana Reddy and another in Civil Appeal No.10918 of 2013 decided on 9.12.2013, Hon'ble Supreme Court held as under in para 28 and 29 of the said judgment:-
"28. In Sarla Verma(Smt.) and others vs. Delhi Transport Corporation and another, 2009(6) SCC121this Court compared Section 163A with Section 166 of the Act, 1988 and reiterated that the principles relating to determination of liability and quantum of compensation were different for the claims under Section 163A and claims made under Section 166.
29. Thus it will be evident from the provisions of the Act that the structured formula as prescribed under Second Schedule and the multiplier mentioned therein is not binding for claims under Section 166 of the Act, 1988."
14. Hon'ble Supreme court in Puttama (supra) also took note of the fact that determination of notional income of Rs.15,000/- p.a. was introduced by the Parliament in the year 1994 and on account of fall in the value of rupee the notional income was required to be revised upwardly. It was also noticed that amendment to the Act has already been proposed and after it was passed by Rajya Sabha on 8.5.2012, the bill is pending in Lok Sabha. Following observations were made in para 53 and 56 of the said judgment:-
"53. In view of finding recorded above, we hold that Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable, due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.
56. The Central Government was bestowed with duties to amend the Second Schedule in view of Section 163-A(3), but it failed to do so for 19 years in spite of repeated observations of this Court. For the reasons recorded above, we deem it proper to issue specific direction to the Central Government through the Secretary, Ministry of Road Transport & Highways to make the proper amendments to the Second Schedule table keeping in view the present cost of living, subject to amendment of Second Schedule as proposed or may be made by the Parliament. Accordingly, we direct the Central Government to do so immediately. Till such amendment is made by the Central Government in exercise of power vested under sub-section (3) of Section 163A of Act, 1988 or amendment is made by the Parliament, we hold and direct that for children upto the age of 5 years shall be entitled for fixed compensation of Rs.1,00,000/-(rupees one lakh) and persons more than 5 years of age shall be entitled for fixed compensation of Rs.1,50,000/- (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Schedule whichever is higher. Such amount is to be paid if any application is filed under Section 163A of the Act, 1988."
15. In the present case, it has been asserted on behalf of the claimants that the deceased was engaged in sewing and stitching activities and she was earning Rs.8,000/- per month. It is true that no proof of income was placed on record, but the evidence supporting her skills has not been controverted by the insurance company. The services rendered by her to the family as wife and mother are also undisputed. The services provided by the deceased to her minor daughters and husband need not be further elaborated in view of the observations made in Arun Kumar Agarwal (supra). Even though the gratuitous services rendered to the husband and children at home cannot be compensated in terms of the money but judicial notice can always be taken of the skills possessed and employed by her in extending the services to the family and loss suffered due to her death. The claimants are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. Although proof of income is not substantiated on record, yet deceased's income in light of the aforesaid discussions and the evidence brought on record cannot be counted as less than the income of a person who was engaged in performing skilled activities. The least, which a court of law can thus do is to assess her income as not being less than the income of a skilled person.
16. Hon'ble Supreme Court while dealing with the determination of income of a skilled worker, in the context of current scenario has determined minimum income of a skilled worker as Rs.5000 to 6000/- per month.
17. In Minu Rout v. Satya Pradyumna Mohapatra (2013) 10 SCC 695, Hon'ble Supreme court was dealing with a claim under section 166 of the Act of a driver, where Rs.5,000/- per month was claimed. Hon'ble Supreme Court took judicial note of the fact that the post of a driver is skilled one and his salary ought to have been assessed at Rs.6,000/- per month and, therefore, we assess the income of the deceased at Rs.6,000/- per month for the purposes of determining the loss of dependency. In Kishan Gopal and another v. Lala and others: 2013 ACJ 2594, the income of a 10 years old boy assisting his father in agricultural work was assessed at Rs.5,000/- per month. Even in Arun Kumar Agarwal (supra) the income of the deceased lady was assessed at Rs.5,000/- per month.
18. In the present case, the deceased Sangeeta Pandey was aged about 35 years and was performing the functions of skilled worker/self-employed, in addition to her contribution to the family as wife or mother, who died in the accident occurred in the year 2010. Her income in such circumstances could not be assessed at less than Rs.5,000/- per month.
19. In the instant case, the tribunal has applied the multiplier of 16 as the age of the deceased was between 35 to 40 years. We also hold it, accordingly.
20. The tribunal has deducted 1/3rd towards personal and living expenses. In the present case, deceased was married. The issue of deduction for personal and living expenses has been considered in respect of a married person in para 30 of Sarla Verma (supra), which is referred hereinafter:-
"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-forth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
As such, the principle laid down in para 30 aforesaid would be more appropriate to be applied in the present case. 1/3rd of the aforesaid amount, therefore, would be appropriated towards personal and living expenses of the deceased.
21. The tribunal has further awarded a sum of Rs.2,000/- towards funeral expenses and Rs.5,000/- towards loss of consortium. This issue has been dealt with by Hon'ble Supreme Court in (2013) 9 SCC 54 Rajesh and others vs. Rajbir Singh and others in para 16 to 18 of the judgment, which is 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 ade 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-econmic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. 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.25000 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 case, it was held that compensation for loss of consortium should be in the range of Rs.5000 to Rs.10000. 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, Austraila, 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 the 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 expenses". The "price index", it is a fact has gone up in that regard also. The head "funeral expenses" does not mean the 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/-"
22. In view of the above, we hold that the claimants are entitled to loss of consortium amount of Rs.1,00,000/- and a further sum of Rs.1,00,000/- for loss of care and guidance for minor children which would be added, in addition to Rs.25,000/- for funeral expenses.
23. The tribunal has awarded payment of Rs.2,500/- towards loss of estate in the present case. The deceased was aged about 35 years, therefore, it would be appropriate to award a sum of Rs.10,000/- for loss of estate.
24. In such circumstances, the claimants would be entitled to compensation following heads:-
Sl. No. Heads Calculations
(i) Income Rs. 5,000/-
(ii) 1/3rd of (i) to be deducted as personal expenses of the deceased.
Rs.3333/-
(Rs.5000-1667)
(ii) Compensation (for loss of dependency) after multiplier of 16 is applied.
Rs.6,39,936/-
(Rs.3333x12x16)
(iv) Funeral expenses Rs.25,000/-
(Rs.25,000+6,39,936 =Rs.6,64,936)
(v) Consortium Rs.1,00,000/-
(Rs.1,00,000+6,64,936 =Rs.7,64,936/-)
(vi) Loss of care and guidance for minor children Rs.1,00,000/-
(Rs.1,00,000+7,64,936 =Rs.8,64,936/-)
(vii) Loss of estate Rs.10,000/-
(Rs.10000+8,64,936 =Rs.8,74,936/-
Total compensation awarded Rs.8,74,936/-
25. The tribunal has allowed interest at the rate of 6% p.a. from the date of filing of the claim petition. This court in F.A.F.O. No. 236 of 2010 considering Puttama & others v. K.L. Narayana Reddy and another in Civil Appeal No.10918 of 2013 decided on 9.12.2013, awarded interest at the rate of 9% p.a. Accordingly, the claimants are entitled to payment of interest in this case also at the rate of 9% p.a. from the date of filing of claim petition till the date of payment.
26. In view of our aforesaid findings, we modify the award dated 30.5.2011 passed by Motor Accident Claims Tribunal, Faizabad in M.A.C.P. No. 234 of 2010 and allow the claim for payment of compensation amounting to Rs.8,74,936/-, as calculated above, along with interest at the rate of 9% p.a. from the date of filing of the claim petition till the date of payment. Out of the aforesaid amount of compensation, a sum of Rs.3,00,000/- along with interest would be deposited in interest bearing account in a nationalized bank in favour of claimant-appellant no.2 - Shakshi for the period till she attain majority. Similarly, a sum of Rs.3,00,000/- along with interest would be deposited in favour of claimant-appellant no.3 - Anshika for the period till she attain majority, which would be used for their education, nourishment, marriage etc. Rest of the amount of Rs.2,74,936/- along with interest would be paid to the claimant-appellant no.1 - Ramesh Kumar Pandey by getting a demand draft prepared in his name by the tribunal.
The respondent-insurance company is directed to deposit the entire amount of compensation, in case already not deposited, before the tribunal within a period of two months in terms of the present modified award. The tribunal shall release the amount in terms of the present modified award within a period of next two months.
27. Accordingly, the present appeal is allowed in terms of the aforesaid directions. Parties shall bear their own costs.
Order Date :- 29.5.2014 Ashok Kr.