Hon'ble Om Prakash-VII,J.
(Delivered by Hon'ble Om Prakash-VII, J.) These two Appeals have been filed by the appellants against the common judgment and order dated 30.04.2014 passed by Motor Accident Claims Tribunal / Additional District Judge, Court No.16, Bulandshahar in Motor Accident Claim Petition No.411 of 2011 (Shammi & Others Versus U.P.S.R.T.C. & Another).
Since both the Appeals have been heard together, therefore they are being decided by a common order.
The facts in brief are that on 6.5.2011, when deceased Smt. Shamim along with Shammi was going from his village to Kallugarhi, District Ghaziabad on Motorcycle No.UP-14AF-9378, as and when they reached near the petrol pump and Sarswati Medical College, Pilkhuwa, the roadways bus no.UP-25AT-4566, being driven by its driver rashly and negligently, hit the motorcycle from its behind. Deceased received injuries and died on the spot. The first information report was lodged in the matter at crime no.145 of 2011. It is also the case of claimant that the accident is the result of sole rash and negligent driving of the driver of the offending bus. Deceased was earning Rs.6000/- per month from weaving work. She was also skilled house wife. Dependants were depending on the income of the deceased at the time of accident.
Appellant - U.P.S.R.T.C. filed written statement denying the fact mentioned in the claim petition and involvement of the offending bus in the accident and also disputed the age, occupation and income of the deceased. The driver of the offending bus also filed written statement denying all the facts.
On the basis of pleading of the parties, Tribunal has framed issues on the point of accident, joinder and non-joinder of parties and on the point of relief / compensation.
Claimants have examined P.W.1 Shammi, P.W.2. Raju and P.W.3. Iqbal in oral evidence and have also filed documentary evidence before the Tribunal.
Appellant - U.P.S.R.T.C. examined D.W.1 and D.W.2, the driver and conductor of the offending bus and also filed certain documentary evidence. Tribunal, after hearing the parties, allowed the claim petition awarding a sum of Rs.6,03,000/- along with 7% per annum simple interest from the date of filing of the claim petition against the appellant - U.P.S.R.T.C.
Feeling aggrieved with the impugned judgment and award, present Appeals have been filed by the appellants.
It is the submission of Sri S.K. Mishra, learned counsel for the appellant - U.P.S.R.T.C. that initially a final report was filed in the matter, but on the basis of order passed on the protest petition, further investigation was made and a charge-sheet was filed. Accident has not occurred with the use of said offending bus. First information report was lodged against unknown vehicle. The said eyewitnesses examined on behalf of the claimants were not actually the eyewitnesses. They are the residents of the claimants' relatives' village. The offending bus was not apprehended on the spot. There are major contradictions in the statements of the eyewitnesses. Tribunal has wrongly estimated the age, income and occupation of the deceased and has also applied the wrong multiplier. It is a case of no evidence and claimants have not established the involvement of the vehicle in question. Tribunal has not made any deduction from the income of the deceased towards her personal expenses. Thus, prayer has been made that impugned judgment and award be set-aside.
Sri Nigamendra Shukla, learned counsel for the claimants-appellants have argued that a charge-sheet on the basis of statements of the eyewitnesses has been filed in the matter. The claimants' case is supported with the evidence of eyewitnesses. The said eyewitnesses were returning from their place of work. They are natural and probable witnesses. The driver and conductor of the offending bus has admitted that the offending vehicle was being plied on the date and time at the place of accident mentioned in the claim petition. The Tribunal has illegally not awarded compensation on account of future prospect. A very meager amount has also been awarded against love and affection, loss of consortium and funeral expenses. Income assessed by the Tribunal is also on lower side. No compensation on account of future prospect has been allowed by the Tribunal. Thus, submitting that the claimants have established by the evidence that accident was the result of rash and negligent driving on the part of the driver of the offending bus, prayer has been made that the Appeal preferred by the claimants be allowed and the compensation amount be enhanced accordingly.
We have considered the submissions of both the parties and perused the entire record carefully.
In the present case, initially the first information report was lodged against unknown vehicle and the final report was submitted by the investigating officer, but on the basis of further investigation and order passed in that respect, a charge-sheet against the driver of the offending bus was submitted.
Claimants have examined P.W.1 Shammi, who was driving the said motorcycle at the time of said accident, P.W.2 Raju and P.W.3 Iqbal as the eyewitnesses. P.W.1 Shammi has admitted in his statement that he could not see the number of the offending bus due to traumatic shock. As and when the number of the offending bus was known, he tried to inform the police concerned, but no action has been taken. P.W.2 Raju and P.W.3 Iqbal both have stated that they were returning from the place of work at the time of accident on their cycles and they saw the accident. They have also admitted that they stayed there for some time.
Submission is raised by the learned counsel for the appellant - U.P.S.R.T.C. that if they have recognized the number of the offending bus, then why the first information report was lodged against unknown vehicle. It is also the submission of the learned counsel for the appellant - U.P.S.R.T.C. that P.W.2 and P.W.3 are not the eyewitnesses, but only to get the compensation, they have been planted later on, as the eyewitnesses. Tribunal, while deciding this issue, has observed that charge-sheet has been filed in the matter against the driver of the offending vehicle. Presence of these two said eyewitnesses i.e. P.W.2 and P.W.3 is not improbable and unnatural on the place of accident. Disclosure of the number of the bus after few days will also not make any difference. It has also been concluded that on the basis of minor contradiction occurred in the statements of the eyewitnesses, the claimants' case, when a charge-sheet has been submitted, cannot be disbelieved. If the observations recorded by the Tribunal are minutely scrutinized in consonance of the arguments advanced by learned counsel for the parties and also with the facts of the present case, we do not find any error or illegality in the impugned judgment and order. Plying of the bus at the time of accident on the place of accident is established. Only denial is that the offending bus was not involved in the accident and was not apprehended on the spot.
Statements of the witnesses in the proceeding of Motor Accident Claim Petitions are recorded as memorandum. The observation recorded by the Tribunal regarding involvement of the offending bus and happening of the accident with the use of the offending bus is a fact finding observation. Minor contradictions in the statements of the witnesses are not of such nature which may falsify the statement of eyewitnesses on the point of involvement of the offending bus. The accident in question has taken place due to sole rash and negligent driving of the driver of the offending bus. Presence of P.W.1 and P.W.2 on the spot at the time of accident is also not unnatural or improbable. They were returning from the place of work on their cycle, thus they have seen the accident. If the deceased was relative of a person belonging to their village, then also they cannot be termed as interested witnesses.
So far as deduction not made by the Tribunal from the annual income of the deceased towards persons expenses is concerned, the Tribunal's observation is wrong and the reason given by the Tribunal in the impugned judgment and order cannot be accepted. At least, 1/3rd income from the annual income on this account should have been deducted by the Tribunal for calculating the compensation.
The Tribunal has adopted a multiplier of 16. Age of the deceased has been taken as 35 years. The contention raised by the learned counsel for the appellant - U.P.S.R.T.C. is not acceptable because age has been determined on the basis of documentary evidence i.e. voter ID card. Multiplier has also been taken into consideration on the basis of the decision of the Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation, reported in 2009 (2) TAC 677. Thus, the view taken by the Tribunal in this respect is not interferable.
So far as the income of the deceased is concerned, learned counsel for the appellant - U.P.S.R.T.C. has argued that there was no evidence that the deceased was a working woman. She was a household lady, therefore, income described in the II Schedule of the Motor Vehicle Act should have been taken into consideration. We do not find any substance in this contention.
The Apex Court in the case of Lata Wadhwa Vs. State of Bihar, A.I.R. 2001 SC 3218 has considered this aspect broadly and has held as under :
"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.3000/- 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 values 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."
Again, Apex Court in the case of Arun Kumar Agrawal & Another Versus National Insurance Company Limited, A.I.R. 2010 SC 3426, discussing the law laid down in Lata Wadhwa's case (Supra) has held as follows (relevant paragraphs are quoted below) :
"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.
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."
60. Alternative to imputing money values is to measure the time taken to produce these services and compare these with the time that is taken to produce goods and services which are commercially viable. One has to admit that in the long run, the services rendered by women in the household sustain a supply of labour to the economy and keep human societies going by weaving the social fabric and keeping it in good repair. If we take these services for granted and do not attach any value to this, this may escalate the unforeseen costs in terms of deterioration of both human capabilities and social fabric.
61. Household work performed by women throughout India is more than US $ 612.8 billion per year (Evangelical Social Action Forum and Health Bridge, page 17). We often forget that the time spent by women in doing household work as homemakers is the time which they can devote to paid work or to their education. This lack of sensitiveness and recognition of their work mainly contributes to women's high rate of poverty and their consequential oppression in society, as well as various physical, social and psychological problems. The courts and tribunals should do well to factor these considerations in assessing compensation for housewives who are victims of road accident and quantifying the amount in the name of fixing `just compensation'.
In view of the law laid down in the above-cited cases, the multifarious services rendered by the house-wives active in life for managing the entire family 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. Although services rendered by the house-wives appear to be gratuitous, but in fact, they work round-the-clock giving all the affection and care for the well-being of their family members without any expectation. Thus, it is impossible to evaluate in terms of money, the loss of personal care and attention suffered by the husband and children on the demise of such house-wives.
Thus, we are of the considered view that for the Claim Petition filed under section 166 of the Motor Vehicle Act on account of death of housewife, Tribunal is not bound to follow the provisions of II Schedule of the Motor Vehicle Act regarding notional income, but criteria specified in clause (6) (b) of the II Schedule may be taken into account. The Apex Court in the case of Arun Kumar Agrawal (Supra) has held that while deciding the Claim Petition filed under section 166 Motor Vehicle Act regarding death of a housewife in road accident, whose income is not proved by any documentary evidence, the income assessed should be reasonable income according to the services rendered by her towards her family members. In the present matter, Tribunal has assessed the income of the deceased at Rs.3000/- per month although it is the case of the claimant that housewife was earning Rs. 6000/- per month from weaving work etc.. No documentary evidence except oral evidence has been filed, therefore, Tribunal has only assessed Rs.3000/- per month income, which cannot be said to be excessive or unreasonable or unjust. Estimation of income in such type of matter is purely guesswork based on the facts and circumstances of each case.
As far as compensation in lieu of future prospect is concerned, for the first time, Apex Court in Sarla Verma case (Supra) has propounded the theory of compensation on account of future prospect also, but it was restricted only for salaried class persons. Later on, in the case of Rajesh & Others Vs. Rajbir Singh & Others 2013 (3) T.A.C. 697 (S.C.), this theory was extended to the self-employed persons also. The U.P. Motor Vehicle (Eleventh Amendment) Rules, 2011 (here-in-after referred to as the 'Rules') was made applicable from 26.9.2011 in which also, without making any distinction in salaried class or self-employed persons, the provision for future prospect has been provided. If the law laid down by the Apex Court in the case of Lata Wadhwa and Arun Kumar Agrawal is taken into consideration when there is no any clear law made by the legislature on this point providing future prospect to the dependants of the deceased-housewife in Motor Accident Claim Petition filed under section 166 of Motor Vehicle Act and there is no any prohibition under the Rules, we are of the considered view that the ratio propounded by the Apex Court in the cases of Sarla Verma and Rajesh & Others (Supra) can be safely applied to work out the compensation in lieu of future prospect in case of death of housewife in appropriate cases also. Similarly, if the accident has taken place on or after 26.9.2011, the provisions made for future prospect in the Rules can also be applied in regard to compensation to the above category of cases with slight deviation in appropriate cases.
As far as present case is concerned, Tribunal has not made any deduction towards personal living expenses of the deceased, which ought to have been made, as has been discussed above. But if 1/3rd income is deducted from the annual income of the deceased in lieu of personal expenses, then only Rs.2000/- per month income is remained as monthly loss of dependency. If for the age group of the deceased future prospect is also taken as has been held above, then also monthly loss of dependency will come to Rs.3000/-. Thus compensation worked out by the Tribunal would be the same. Tribunal has also awarded Rs.5000/- on account of loss of consortium, Rs.5000/- in lieu of funeral expenses and Rs.3000/- each of the children on account of deprivation from mother's love and affection. Although, Tribunal has awarded Rs.3000/- each of the children on account of deprivation from mother's love and affection, but considering this fact that on deduction of 1/3rd income from the annual income of the deceased and applying the percentage for future prospect, there will be no any substantial difference in the total compensation worked out by the Tribunal.
As far as distribution of awarded amount between the dependants is concerned, on the death of mother, main sufferer are children and they are the persons who actually are being deprived of love, affection and service of their mother. Having regard to age of husband, which is 38 years, the possibility of remarriage cannot be over ruled. Thus, we are of the view that the amount of compensation awarded by the Tribunal in respect of claimant-respondent no.1 (husband) be also equally distributed amongst claimants-respondents no.2 to 5 (minor children) to secure their future. The amount shall be kept in fixed deposit and shall be utilized in the marriage of the children. However, the interest accrues on the amount may be spent in the education and maintenance of the children. Hence, the impugned award passed by the Tribunal is liable to be modified.
Thus, in view of the above, the impugned award passed by the Tribunal is modified to this extent that the amount of compensation awarded by the Tribunal in respect of claimant-respondent no.1 be also equally distributed amongst claimants-respondents no.2 to 5 and the same shall be kept in a fixed deposit scheme to be renewed from time to time in a Nationalized Bank yielding maximum interest till their attaining the age of majority. However, the interest accrues on the amount may be spent in the education and maintenance of the children.
With the aforesaid observation, both the Appeals filed by the claimants as well as by the U.P.S.R.T.C. are dismissed.
Office is directed to remit back the statutory amount, if any, to the concerned Tribunal within four weeks.
Order date : 26.9.2014 / ss