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2011 DIGILAW 2567 (RAJ)

Chaturbhuj v. New India Insurance Co. Ltd.

2011-11-24

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the claimants aggrieved by the award of the Motor Accident Claims Tribunal dated 18.7.2003. 2. None has appeared for the appellants on 22.11.2011 and it was passed over for today, however, it was made clear that if no one appears for the appellants on the next date, the appeal shall be heard and decided even in the absence of learned counsel for the appellants. Today also, no one has appeared for the appellants, therefore, the appeal is being decided in absence of counsel for the appellants considering the grounds of the appeal. 3. In the grounds of the appeal, it has been contended that the Tribunal having held the tractor driver as negligent and responsible for the death of Smt. Buchi Bai was not justified in awarding only a sum of Rs.50,000 as lump sum compensation, apart from paying a sum of Rs.3,000 each to the appellant nos.1 and 2 for loss of consortium and love and affection and Rs.2,000 for funeral expenses. It is also been contended that the evidence proves that deceased was earning a sum of Rs.8,000 per month by sale of vegetables in the market and also by selling milk. This income she was contributing to the family. There was no rebuttal of this evidence from the side of the non-claimants and in absence of any rebuttal, the evidence was ought to have been accepted by the Tribunal. At the time of death, the deceased was 45 years of age. She used to look after the agriculture land worth 16-17 bighas and where she used to grow vegetables then those vegetables would be sold in the market. The interest has also been awarded at the lesser rate of 9% per annum, whereas at the relevant time, the interest rate was 12% per annum. 4. Shri Amarnath Pareek, learned counsel for the respondent-insurance company opposed the appeal and submitted that the learned Tribunal is perfectly justified in awarding a sum of Rs.58,000 because it has not been proved by cogent evidence that she was earning an amount of Rs.8,000/- by selling of vegetables and milk. It was argued that if there was 16-17 bighas of agriculture land, the income derived therefrom continued to be earned by the family members and therefore no amount can be awarded in this head. Thus the award is perfectly justified. 5. It was argued that if there was 16-17 bighas of agriculture land, the income derived therefrom continued to be earned by the family members and therefore no amount can be awarded in this head. Thus the award is perfectly justified. 5. I have considered the contents of the appeal, arguments of the learned counsel for the respondent and perused the material available on record. 6. In Lata Wadhwa vs. State of Bihar-2001 ACJ 1735, the Supreme Court has stated that merely because the deceased died in the accident was a household wife, the Court cannot proceed on the assumption that she has no contribution to the family and her contribution to the family cannot be doubted. The Supreme Court in that case has directed that the income of the household wife would be accepted at Rs.3,000 per month. The observations of the Supreme Court is quoted thus: "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 data for determination of compensation, did not assist in any manner by providing the data for estimating the value of services rendered by such housewives. But even in the absence of such data and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs.3,000 per month and Rs.36,000 per annum. This would apply to all those housewives between the age group of 34 and 59 and as such who were active in life. The amount of 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 as given under the report. The amount of 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 as given under the report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of the services rendered has been taken at Rs.10,000 per annum and the multiplier applied is eight. Though the multiplier applied is correct, but the value 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, total amount of compensation should be re-determined, by 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." 7. In a recent case of Arun Kumar Agrawal & Anr. vs. National Insurance Co. Ltd. & Ors.- 2010 ACJ 2161 , the Supreme Court has reiterated that very principle by observing that even a non-earning household wife should be accepted to be earning and at least her income should be accepted at Rs.5,000/- per month for the purpose of computation of amount of compensation. In the present case, the learned Tribunal has not given any reasoning as to why it has awarded only a lump sum compensation of Rs.2,00,000 and not awarded any sum whatsoever on the various other heads, such as loss of love and affection, loss of consortium to the husband, funeral expenses etc. The observations of the Supreme Court in para 32 and 33 of the judgment is quoted thus: "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 possible be produced for estimating the value of such services. 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 possible 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 wife. 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 spouse, 1/3rd income of the earning/ surviving spouse for the purpose of computing the compen-sation. Though Sec. 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 determi-nation 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 Tras. Corpn. vs. Susamma Thomas, 1994 ACJ 1 (SC); U.P. State Road Trans. Corpn. vs. Trilok Chandra, 1996 ACJ 831 (SC) and Sarla Verma vs. Delhi Trans. Corpn., 2009 ACJ 1298 (SC) = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC) and also take guidance from the judgment in Lata Wadhwa's case, 2001 ACJ 1735 (SC). 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 house wife/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. 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 to the Act and observed that the income of the deceased could be assessed at Rs.5000 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.6,00,000. 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 were dependent upon the deceased and services rendered by her could be estimated as Rs.1,250/- per month" 8. This appeal is therefore deserves to be succeed and is accordingly allowed. The deceased Smt. Buchi Bai was aged 45-50 years and at that age the multiplier of 13 is applicable in view of judgment of Supreme Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr.-(2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC) and if her income is accepted at the rate of Rs.2,000 per month and 1/3rd is deducted for self expenses, the monthly income comes to Rs.1400 (approx). The loss of income is thus assessed at Rs.2,18,400 (1400x12x13). The husband is held liable to Rs.10,000 for loss of consortium. The daughter is granted a sum of Rs.5,000 for loss of love and affection and an additional sum of Rs.5,000 is awarded for funeral expenses etc. Thus the appellants are entitled to receive Rs.2,38,400 (218400 + 10000 + 5000 + 5000) as total amount of compensation. The appellants are also entitled to interest @ 7.5% per annum from the date of filing of the claim petition on the enhanced amount. 9. The appeal is thus partly allowed. 10. Compliance of the judgment be made within a period of three months from the date copy of this judgment is produced before the respondents.