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2010 DIGILAW 377 (RAJ)

Managing Director, State Express Transport Corporation (Tamilnadu Dn. I) Ltd. v. Ravi

2010-02-16

D.HARIPARANTHAMAN

body2010
Hon'ble HARIPARANTHAMAN, J.—The appeal is against the order, dated 23.03.2001 passed by the Motor Accident Claims Tribunal (Third Additional Subordinate Judge), Trichy in MACT.O.P.No.332 of 1999, awarding compensation of Rs.3,18,000/- with 9% interest from the date of application and cost to the respondent. 2. The respondent filed M.A.C.T.O.P.No.332 of 1999, claiming compensation of Rs.4,00,000/- for the death of the petitioner's wife, namely, Tmt.Usha in a road accident caused by the bus of the appellant corporation on 27.07.1998 at 12.30 p.m. According to the respondent, the accident was due to the rash and negligent driving of the driver of the bus of the appellant corporation. According to the respondent, his wife was employed in a private Artificial Diamond Factory and was earning Rs.3,000/- per month. At the time of accident, she was aged about 25 years. The Tribunal found that the accident was due to the rash and negligent driving of the driver of the bus of the appellant corporation. The Tribunal also agreed that the deceased earned Rs.3,000/- in a private Artificial Diamond Factory. The Tribunal took Rs.1,500/- as the amount contributed by the deceased to the family and the annual contribution arrived was at Rs.18,000/-. By using 17' as multiplier for the age of 25 years, compensation was worked out by the Tribunal at Rs.3,06,000/-. The Tribunal also awarded Rs.5,000/- towards loss of consortium, Rs.5,000/- towards love and affection, and Rs.2,000/- towards funeral expenses, and totally, the Tribunal awarded Rs.3,18,000/- along with 9% interest from the date of application and also cost, by its order, dated 23.3.2001 in M.A.C.T.O.P.No.332 of 1999. 3. The appellant has preferred this appeal against the said award of compensation ordered by the Tribunal. 4. Though grounds were raised in the appeal that the death was not caused due to the rash and negligent driving of the driver of the bus of the appellant corporation, the learned counsel for the appellant submits that he confines his submissions only to the quantum of compensation. The learned counsel for the appellant submits that the Tribunal erred in taking a sum of Rs.3,000/- as the salary of the deceased, when there was no evidence produced by the respondent in this regard. As the very employment was not proved, it is submitted that the Tribunal should have taken only Rs.15,000/- as contribution, in the case of a non-earning member of the family. 5. As the very employment was not proved, it is submitted that the Tribunal should have taken only Rs.15,000/- as contribution, in the case of a non-earning member of the family. 5. A perusal of the award shows that the Tribunal accepted the oral evidence rendered by the respondent regarding employment of his wife. The Tribunal further stated that in a small private factory, appointment orders or salary voucher slips are not provided to workmen. In any event, taking Rs.3,000/- per month as salary in the year 1998 could not be considered as excessive. In similar circumstances, the Hon'ble Apex Court has ruled in Lata Wadhwas and others vs. State of Bihar and Others (2001 ACJ 1735) that notional income of Rs.3,000/- could be taken as monthly income. A Division Bench of this Court, in National Insurance Company vs. Minor Deepika and others, reported in 2009(3) TLNJ 95 (Civil) considered the issue as to the fixation of monthly income of a house wife and in that case the Division Bench confirmed the award of the Tribunal by taking Rs.3,500/- as monthly income of a house wife. 6. There was an elaborate discussion in the said judgment as to how the monthly income has to be fixed for a house wife and paragraphs 6 to 14 of the above said Judgment are extracted hereunder. "6. As regards the claim made for compensation for the death of the mother Uma Gajalakshmi, we are unable to apprehend the submission made on behalf of the Insurance Company that because the father died in the same accident, the child should be deprived of the compensation that she is justly and reasonably entitle to the death of her mother. The tort-feasor cannot take advantage of the fact that both the parents got wipe of in the same accident and each claim is separate claim. On that ground, the Insurance Company's liability cannot be reduced. Each claim has to be dealt with independently and on its own merits. 7. There was no evidence that the deceased-mother was also a partner in the firm. Therefore, the tribunal relying on Lata Wadhwa and Others vs. State of Bihar and Other (2001 ACJ 1735), where the Supreme Court held that notional income of Rs.3,000/- should be awarded for house wives, fixed Rs.3,500/- as monthly income. 7. There was no evidence that the deceased-mother was also a partner in the firm. Therefore, the tribunal relying on Lata Wadhwa and Others vs. State of Bihar and Other (2001 ACJ 1735), where the Supreme Court held that notional income of Rs.3,000/- should be awarded for house wives, fixed Rs.3,500/- as monthly income. The monetary quantification of the work done by the women at home is something that has not been really assessed. 8. General Recommendation No.17 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) deals with measurement and quantification of the unremunerated domestic activities of women and their recognition in the Gross National Product. It affirmed that the measurement and quantification of the unremunerated domestic activities of women which contribute to development in each country will help to reveal the de-facto economic role of women and it recommended that States-parties should inter alia encourage and support research to evaluate the unremunerated domestic activities of women and to quantify and to include this in the Gross National Product. It is recognised that most of the unpaid work around the world is performed by women. 9. The UNICEF in 2000, noted that "unpaid care work is the foundation of human experience". The care work is that which is done by a woman as a mother and definitely in India, the woman herself will be the last person to give this role an economic value, given the social concept of the role of a mother. But when we are evaluating the loss suffered by the child because her mother died in an accident, we think we must give a monetary value to the work of a caregiver, for afterall, the home is the basic unit on which our civilised society rests. Really, this is a digression from perhaps the main issue that we have to decide, but we felt that this is a particularly tragic and unique case where the child has lost both her parents and may perhaps be the appropriate one where we should express some view on how to quantify the labour of an unpaid homemaker - in this case, the mother. 10. 10. The Second Schedule to the Motor Vehicles Act gives a value to the compensation payable in respect of those who had no income prior to the accident and for a spouse, it says that one-third of the income of the earning surviving spouse should be the value. Exploration on the internet shows that there have been efforts to understand the value of a homemaker's unpaid labour by different methods. One is, the opportunity cost which evaluates here wages by assessing what she would have earned had she not remained at home, viz., the opportunity lost. The second is, the partnership method which assumes that a marriage is an equal economic partnership and in this method, the homemaker's salary is valued at half her husband's salary. Yet another method is to evaluate homemaking by determining how much it would cost to replace the homemaker with paid workers. This is called the Replacement Method. 11. The role of a housewife includes managing budgets, co-ordinating activities, balancing accounts, helping children with education, managing help at home, nursing care etc. One formula that has been arrived at determines the value of the housewife as, Value of housewife = husband's income - wife's income + value of husband's household services, which means the wife's value will increase inversely proportionate to the extent of participation by the husband in the household duties. The Australian Family Property Law provides that while distributing properties in matrimonial matters, for instance, one has to factor in "the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent." 12. If we look at some of the rulings of the CEDAW with regard to complaints made to it, we find the high prevalence of the stereotypical attitudes with regard to the role of women that constitutes a serious impediment to the full implementation of the said Convention. One cannot ignore or forget that the homemaker, by applying herself to the tasks at home, liberates her spouse to devote his energy and time and attention to tasks that augment his income and generate property for the family. One cannot ignore or forget that the homemaker, by applying herself to the tasks at home, liberates her spouse to devote his energy and time and attention to tasks that augment his income and generate property for the family. In fact, the National Organisation for Women, USA has adopted the proposal for recommendation of economic rights for homemakers, which includes giving of a value to the goods and services produced and provided by the homemaker in the Gross National Product. 13. We have dealt with this in detail only because we are of the opinion that while the income of the spouse may be generally adopted as per the Second Schedule, the time has come to scientifically assess the value of the unpaid homemaker both in accident claims and in division of matrimonial property. 14. Therefore, even assuming that there was no documentary evidence in the present case to show that the deceased Uma Gajalakshmi was working as a partner, we well accept the evidence of her father-in-law (P.W.1) that she was assisting her husband at work and taking into account the notional income of a house wife, we confirm the monthly income of Rs.3,500/- fixed by the Tribunal." I have also gone through the evidence of the husband of the deceased and he categorically stated that the deceased was employed in a private factory earning Rs.3,000/- per month. There was no contra evidence produced by the appellant. Hence, I find no infirmity in the Tribunal fixing the sum of Rs.3,000/- as monthly income of the deceased wife of the respondent, particularly, in the light of the decision of the Hon'ble Apex Court and the Division Bench of this Court referred to above. In fact, the Tribunal instead of deducting 1/3 towards personal expenses, deducted 50% towards personal expenses and arrived at Rs.1,500/- only as monthly contribution of the deceased to the family. There is nothing wrong in the Tribunal taking Rs.1,500/- as monthly contribution and Rs.3,000/- as monthly income of the deceased. Hence, I find no infirmity in the order of the Tribunal in awarding Rs.3,16,000/- as compensation to the respondent for the death of his wife even if she was house wife. 7. The next contention of the learned counsel for the appellant is that the Tribunal committed an error in awarding Rs.5,000/- for loss of consortium and Rs.5,000/- for loss of love and affection. 7. The next contention of the learned counsel for the appellant is that the Tribunal committed an error in awarding Rs.5,000/- for loss of consortium and Rs.5,000/- for loss of love and affection. It is submitted that if certain amount is awarded towards loss of consortium, then no amount should be awarded towards loss of love and affection. The learned counsel for the appellant relied on a decision of this Court in the Branch Manager, The New India Assurance Company Ltd., vs. A. Mary Imelda Jayaseeli and others reported in 2008(1) TN MAC 453, relevant portion of para 14 of the said judgment is extracted here under:- "14. The learned counsel for the appellant correctly highlighted that after awarding a sum of Rs.15,000/- towards Loss of Consortium for the first Petitioner, the Tribunal was not justified in awarding a sum of Rs.15,000/-towards Loss of Love and Affection for the same first Petitioner and hence it has to be deleted. Towards Loss of Love and Affection for the minor children, a sum of Rs.20,000/- was awarded by the Tribunal which could be confirmed. A sum of Rs.10,000/- awarded by the Tribunal under the sub-head 'Loss of Love and Affection' towards the parents, could also be confirmed. However the Tribunal without any evidence, awarded a sum of Rs.25,000/- under the caption, 'Loss of Estate'. It is not that for the sake of awarding compensation under that caption, simply some amount has to be awarded and that has to be deleted in the absence of evidence in that regard. Under the sub-head 'Funeral Expenses' a sum of Rs.3,000/- was awarded which warrants no interference. Accordingly, the following formula emerges:" (i) For Loss of Income (Rs.80,763 x 16) : Rs. 12,92,208 (ii) For Loss of Consortium : Rs. 15,000 (iii) For Loss of Love and Affection for P2 and P3 : Rs. 20,000 (iv) For Loss of Love and Affection for P4 and P5 : Rs. 10,000 (vi) For Funeral Expenses : Rs. 3,000 Total : Rs. 13,40,208" 8. I am not inclined to interfere on the ground that the Tribunal awarded both consortium, and love and affection. Taking into account, the age of the deceased and also the age of the respondent, awarding Rs.10,000/- for both love and affection and consortium is on lower side. Even in the judgment relied upon by the counsel for the appellant, Rs.15,000/- was awarded towards consortium. Taking into account, the age of the deceased and also the age of the respondent, awarding Rs.10,000/- for both love and affection and consortium is on lower side. Even in the judgment relied upon by the counsel for the appellant, Rs.15,000/- was awarded towards consortium. In that case the deceased was husband and died at the age of 40 years. Rs.15,000/- awarded as consortium to the wife was confirmed, in the said Jugdment. Hence, I do not find any infirmity in the award of the Tribunal. In these circumstances, I find no merit in the appeal. 9. Hence, the appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.