Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 176 (HP)

ORIENTAL INSURANCE CO. LTD. v. GURNAM SINGH

2013-03-12

DHARAM CHAND CHAUDHARY

body2013
JUDGMENT : Dharam Chand Chaudhary, J. Challenge herein is to the award, Annexure P-3, passed by learned Motor Accidents Claims Tribunal, Solan, Camp at Nalagarh in M.A.C. Petition No. 25-NL/11 of 2005, on 20.9.2008, whereby the respondent Nos. 1 to 3, hereinafter referred to as 'the claimants', have been awarded a sum of Rs. 4,88,000 (rupees four lakh eighty-eight thousand) as compensation together with interest at the rate of 9 per cent per annum from the date of institution of the petition till its deposit towards the loss they sustained on account of the death of their mother Kanta Devi in the accident of their Maruti car No. CH 18-T 3871 with truck No. CH 01-R 2849 on 22.8.2004 on Pinjore-Nalagarh Highway. The complaint herein is that learned Motor Accidents Claims Tribunal has failed to make deduction of 1/3rd of the income of deceased Kanta Devi, which she would have spent on her own maintenance had she not died in this accident. Also that the claimants have been awarded a sum of Rs. 5,96,000 as compensation in a separate petition they preferred on account of the death of their father in the same accident as according to petitioner insurance company, if the award is not modified it will amount to double enrichment of the claimants. 2. In order to buttress the contentions in the writ petition on behalf of the petitioner insurance company, reliance has been placed on the judgment of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , Arun Kumar Agrawal and Another Vs. National Insurance Company and Others, (2010) 9 SCC 218 , and also on clause 6 of the Second Schedule below section 163A of the Motor Vehicles Act. 3. On the other hand, learned counsel representing the respondents-claimants, while placing reliance on the judgment of the Apex Court in Lata Wadhwa and Others Vs. State of Bihar and Others, (2001) 8 SCC 197 , has vehemently argued that learned Tribunal below has not committed any illegality or irregularity in assessing the loss of services being rendered by the deceased towards her children, the claimants, gratuitously to the tune of Rs. 3,000 per month and that neither the law laid down in Sarla Verma's case nor in Arun Kumar Agrawal's case has any application to the case in hand. 3,000 per month and that neither the law laid down in Sarla Verma's case nor in Arun Kumar Agrawal's case has any application to the case in hand. Learned counsel further submits that the criteria laid down under clause 6 of the Second Schedule is applicable only in a claim petition u/s 163A of the Act and not like the present one u/s 166 thereof. 4. Having gone through the record and carefully analysing the rival contentions, this court is in agreement with the submissions made on behalf of the respondents-claimants for the reasons that in the case of a housewife, she having no income, there is no question of assessment of her income and rather it is the services being rendered by her to the children or her husband gratuitously, which are valued in terms of money and the assessment of compensation made accordingly. 5. The law laid down by the Apex Court in Lata Wadhwa and Others Vs. State of Bihar and Others, (2001) 8 SCC 197 , reads as follows: (10) 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 case of some and Rs. 10,000 for the 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, the value of services 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 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. 3,000 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 in the age group of 62 to 72 are concerned, the value of 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, 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. 6. It is seen that the services rendered by a housewife for managing the entire family even at a modest estimation in terms of money have been valued at Rs. 3,000 per month and after applying the appropriate multiplier, compensation has been awarded without reduction of any amount including on account of personal and living expenses. I am afraid that 1/3rd of the income so assessed had (sic not) to be deducted therefrom towards personal and living expenses in this case for the reason that the deceased as a matter of fact had no income and like the respondents-claimants, for the purpose of her own maintenance, she was also dependent upon her husband, a victim of the same accident. The question of reduction of 1/3rd towards personal and living expenses arises only in those cases where the victim had his/her own income and out of which, besides the dependants upon him, must be spending a part thereof for personal and living expenses. The question of reduction of 1/3rd towards personal and living expenses arises only in those cases where the victim had his/her own income and out of which, besides the dependants upon him, must be spending a part thereof for personal and living expenses. However, as noticed supra, the present is a case where the deceased had no income of her own and rather it is the value of the services she had been rendering gratuitously to the claimants which has been assessed by learned Tribunal in the light of the law laid down by the Apex Court in Lata Wadhwa's case cited supra. 7. True it is that under clause 6 of the Second Schedule below section 163A of the Act, the provision has been made to assess the income of a non-earning person who died in an accident at the rate of Rs. 15,000 per annum and in case of a spouse 1/3rd income of the surviving spouse for the purpose of computation of compensation, however, in my considered opinion firstly this Schedule is not applicable in a claim petition filed u/s 166 of the Act and confined only to a petition filed u/s 163A of the Act and even if it has to be applied, its application would only be to determine just and reasonable compensation and not to put the claimants in a disadvantageous position, as the Apex Court did in Arun Kumar Agrawal and Another Vs. National Insurance Company and Others, (2010) 9 SCC 218 . In that case the petition for compensation was filed u/s 166 of the Act and the Apex Court while assessing the value of the services being rendered by the deceased housewife to be 1/3rd of the monthly income of her spouse awarded Rs. 6,00,000 as compensation and quashed the award passed by the Tribunal and also the judgment of the High Court in which the value of services being rendered by the deceased housewife was assessed only at Rs. 1,250 per month. 6,00,000 as compensation and quashed the award passed by the Tribunal and also the judgment of the High Court in which the value of services being rendered by the deceased housewife was assessed only at Rs. 1,250 per month. Also that irrespective of the provisions so made are not attracted in a petition u/s 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependants of a non-earning housewife/mother, the provisions made under clause 6 to the Second Schedule can be applied in a petition of this nature but for the benefit of the claimants and not to their detriment. In this case the spouse has also died in the same accident. Since in Lata Wadhwa and Others Vs. State of Bihar and Others, (2001) 8 SCC 197 , the services being rendered by a housewife has been assessed at Rs. 36,000 per annum and the law so laid down in this judgment is not overruled, therefore, to assess the value of such services at Rs. 12,000 per annum as per clause 6 of the Second Schedule would be detrimental to the interests of the claimants. 8. Above all, the law laid down by the Apex Court in Lata Wadhwa and Others Vs. State of Bihar and Others, (2001) 8 SCC 197 , is still in operation being not overruled and rather relied on in Arun Kumar Agrawal and Another Vs. National Insurance Company and Others, (2010) 9 SCC 218 . As regards the law laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , with all humility and respect at my command, the same is not applicable to this case for the reason that here the compensation has been awarded on account of loss of services to the claimants who are none else but the children of the deceased whereas in Sarla Verma's case the victim of the accident was a male earning member having definite income from his employment and not only the claimants were dependent upon him but he was also spending a part of his earnings towards his personal and living expenses. As pointed out at the very outset, the deceased, in the case in hand, had no income of her own and like her son and daughters she was also dependent upon her husband, late Gurdeep Chand. As pointed out at the very outset, the deceased, in the case in hand, had no income of her own and like her son and daughters she was also dependent upon her husband, late Gurdeep Chand. Thus, she had no income of her own and it is only for the services she had been rendering gratuitously towards the claimants that the compensation has been assessed and as such no deduction is required to be made therefrom. 9. Irrespective of the above, his Lordship of the Apex Court, Justice A.K. Ganguly, while concurring with the judgment of the Bench delivered by his Lordship Justice G.S. Singhvi, has made the following observations qua provision contained in clause 6 of the Second Schedule in respect of valuing the services of a housewife, which reads as follows: (38) ...Insofar as the spouse is concerned, the income of the injured in fatal and non-fatal accident has been categorised as 1/3rd of the income of the earning and surviving spouse. It is, therefore, assumed if the spouse who does not earn, which is normally the woman in the house and the homemaker, such a person cannot have an income more than 1/3rd of the income of the person who is earning. This categorisation has been made without properly appreciating the value of the services rendered by the homemaker. To value the income of the homemaker as one-third of the income of the earning spouse is not based on any apparently rational basis. (39) This bias is shockingly prevalent in the work of Census. In the Census of 2001 it appears that those who are doing household duties like cooking, cleaning of utensils, looking after children, fetching water, collecting firewood have been categorised as non-workers and equated with beggars, prostitutes and prisoners who, according to Census, are not engaged in economically productive work. As a result of such categorisation about 36 crore (367 million) women in India have been classified in the Census of India, 2001 as non-workers and placed in the category of beggars, prostitutes and prisoners. This entire exercise of Census operation is done under an Act of Parliament. As a result of such categorisation about 36 crore (367 million) women in India have been classified in the Census of India, 2001 as non-workers and placed in the category of beggars, prostitutes and prisoners. This entire exercise of Census operation is done under an Act of Parliament. xxx xxx xxx (43) It is thus clear that in Independent India also the process of categorizing is dominated by concepts which were prevalent in colonial India and no attempt has been made to restructure those categories with a gender sensitivity which is the hallmark in our Constitution. xxx xxx xxx (45) Women are generally engaged in home making, bringing up children and also in production of goods and services which are not sold in the market but are consumed at the household level. Thus, the work of women mostly goes unrecognised and they are never valued. (46) Therefore, in the categorisation by the Census what is ignored is the well known fact that women make significant contribution at various levels including agricultural production by sowing, harvesting, transplanting and also tending cattle and by cooking and delivering the food to those persons who are on the field during the agriculture season. xxx xxx xxx (63) For the reasons aforesaid, while agreeing with the views of my brother Singhvi, J., I would humbly add, that time has come for 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 home-maker. Amendments in matrimonial laws may also be made in order to give effect to the mandate of Article 15(1) in the Constitution. 10. The observations hereinabove itself speak in plenty qua the vital role of a housewife in managing the household duties like cooking, cleaning of utensils, looking after the children, fetching water, collecting firewood, etc. This court takes support from such observations also while arriving at a conclusion that the learned Tribunal below has not committed any illegality and infirmity in determining the compensation awarded to the respondents-claimants nor the impugned award can be said to be perverse. For all the reasons hereinabove, this petition fails and the same is accordingly dismissed. No order as to costs.