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2016 DIGILAW 3608 (ALL)

AVANI KANT v. U. P. S. R. T. C. , ETAWAH

2016-11-02

ALOK KUMAR MUKHERJEE, SUDHIR AGARWAL

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JUDGMENT By the Court.—Being dissatisfied with the quantum of compensation awarded by Motor Accident Claim Tribunal/VIth Additional District Judge, Etawah in Motor Accident Claim Petition No. 548 of 1996 (Avani Kant and others v. U.P. State Road Transport Corporation), claimant-appellants have filed this First Appeal From Order against the judgement and award dated 15.5.1999 of the said Tribunal seeking enhancement of compensation on account of death of Smt. Vimla Devi in a motor accident on 1.7.1996, whereby the Tribunal has awarded a sum of Rs. 57,000/- alongwith 12% per annum simple interest payable by the respondent, U.P. State Road Transport Corporation. 2. Brief facts of the case, as per the claimant-appellants, was that on 1.7.1996 at about 11.30 a.m., on National Highway No. 2 within the village Kursaina, 3 kms. west to the Police Station Jaswant Nagar, when the deceased alongwith her family was travelling in a Bus of U.P. State Transport Corporation No. U.P. 80E/9482, which was being driven rashly and negligently by the driver and it hit Truck No. M.P. 07A/1987 which was standing on the right side of the road and in consequence thereof overturned, due to which five passengers of the said Bus succumbed to injuries at the spot including the deceased Smt. Vimla Devi and claimants/rest of the family members of the deceased including other passengers got serious injuries. The deceased at the time of the accident was a young lady aged about 32 years. She was a housewife and the claimants were totally dependant upon the invaluable services and domestic work rendered by her which cannot be computed in terms of money, so the claimant/appellants have made a notional loss of dependency to the tune of Rs. 3,000/- per month as the homemaker and due to her loss the claimant/appellant No. 1 had to engage one maid at Rs. 100/- per day to perform the domestic work and also to look after her minor children. The claimant-appellants claimed Rs. 11,70,000/- as compensation. 3. The Tribunal has jointly adjudicated and decided this claim petition alongwith other claim petitions of the appellants No. 1 to 3 as MACT Nos. 100/- per day to perform the domestic work and also to look after her minor children. The claimant-appellants claimed Rs. 11,70,000/- as compensation. 3. The Tribunal has jointly adjudicated and decided this claim petition alongwith other claim petitions of the appellants No. 1 to 3 as MACT Nos. 549 of 1996, 550 of 1996 and 551 of 1996 and framed as many as three issues and after considering all materials, oral and documentary evidence, Tribunal came to the conclusion that death of Smt. Vimla Devi was caused only due to rash and negligent driving of the driver of Bus in question of respondent-U.P. State Road Transport Corporation. Based on the oral testimony of the witnesses, Tribunal came to the conclusion that the deceased was a non-earning member of the family being a housewife and utilizing the services of a maid at Rs. 100/- per day, had not been averred in the claim petition and it was for the first time stated in the evidence. Tribunal assessed a lump-sum minimum statutory compensation of Rs. 50,000/-, i.e., no fault liability, in the case of deceased, adding conventional damages of Rs. 7,000/- towards funeral expenses and loss of consortium, vide the impugned judgement and awarded total compensation of Rs. 57,000/- with interest @ 12% per annum only. 4. Heard Sri R.K. Porwal, Advocate, for the appellants and Sri M.M. Sahai, Advocate, appearing for the respondent-U.P. State Road Transport Corporation. 5. Relying upon the decisions of Apex Court in Lata Wadhwa and others v. State of Bihar and others, 2002 (1) TAC 138 (SC) and Jitendra Khimshankar Trivedi and others v. Kasam Daud Kumbhar and others, 2015 (1) TAC 673 (SC), learned counsel for the claimants-appellants contended that even assuming that the deceased was a housewife and was not an earning member of the family, the services of the deceased were available to his family but the concerned Tribunal has not recognized the invaluable services of the deceased that cannot be computed in terms of money. While calculating loss of dependency, Tribunal should have taken into consideration contributions of said housewife towards her family and therefore, it was reasonable and incumbent on the part of Tribunal to fix her notional income at Rs. 3,000/- per month while calculating loss of dependency of deceased and computing compensation in this case. While calculating loss of dependency, Tribunal should have taken into consideration contributions of said housewife towards her family and therefore, it was reasonable and incumbent on the part of Tribunal to fix her notional income at Rs. 3,000/- per month while calculating loss of dependency of deceased and computing compensation in this case. Further, amounts awarded under other heads are also on the lower side and are therefore, requested to be modified by this Court in this appeal. 6. Per contra, learned counsel for the respondent contended that in the absence of pleading as well as lack of cogent oral and documentary evidence with regard to the engagement of maid servant, no reliance can be placed on the solitary oral testimony of interested witness/claimant No. 1/husband of the deceased, therefore, no enhancement in compensation can be lawfully granted. Amounts awarded by Tribunal on each head are in accordance with the concerned provisions/schedule of the Motor Vehicles Act and the then prevailing principles of law. 7. We have considered rival contentions of the parties, considered the facts and circumstances of the case and perused the material as well as impugned judgement and award dated 15.5.1999 present on record. 8. While dealing with the similar question, Supreme Court in the case of Lata Wadhwa and others (supra) has held as under: “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.... ....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. 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.” 9. Further in the case of Jitendra Khimshankar Trivedi and others (supra), Apex Court reiterated the same view and observed as follows : “11. Even assuming Jayvantiben Jitendra Trivedi was not self-employed doing embroidery and tailoring work, the fact remains that she was a housewife and a home maker. It is hard to monetize the domestic work done by a house-mother. Further in the case of Jitendra Khimshankar Trivedi and others (supra), Apex Court reiterated the same view and observed as follows : “11. Even assuming Jayvantiben Jitendra Trivedi was not self-employed doing embroidery and tailoring work, the fact remains that she was a housewife and a home maker. It is hard to monetize the domestic work done by a house-mother. The services of the mother/wife is available 24 hours and her duties are never fixed. Courts have recognized the contribution made by the wife to the house is invaluable and that it cannot be computed in terms of money. A house-wife/home-maker does not work by the clock and she is in constant attendance of the family throughout and such services rendered by the home maker has to be necessarily kept in view while calculating the loss of dependency. Thus even otherwise, taking deceased Jayvantiben Jitendra Trivedi as the home maker, it is reasonable to fix her income at Rs. 3,000/- per month.” 10. Keeping in view the said decisions of Apex Court and from perusal of the record, it transpires to us that Tribunal has rightly fastened liability to pay amount of compensation upon respondent but compensation awarded by Tribunal is not just and proper. 11. It is to be noted that accident took place in the year 1996. By recognizing services of home-maker and her domestic services in terms of money, as laid down in the above decisions of Apex Court, it is obligatory on the part of this appellate Court to award just and reasonable compensation. Therefore, it is appropriate to modify and increase compensation in this case. 12. In order to award just and proper compensation notional income of the deceased is taken as Rs. 3,000/- per month. Dividing 1/3 for her personal expenses, contribution of deceased towards her family is calculated at Rs. 2,000/- per month. At the time of her death Smt. Vimla Devi was aged about 32 years, proper multiplier to be adopted is 17. Adopting the said multiplier of 17, total loss of dependency is calculated at Rs. 4,08,000/- (Rs.2,000/- x 12 x 17). With respect to the award of compensation under conventional heads, Tribunal has awarded Rs. 7,000/- towards funeral expenses (Rs.2,000/-) and loss of consortium (Rs.5,000) only, which appears to be minimal as per the schedule of Motor Vehicles Act (Not revised till date). 4,08,000/- (Rs.2,000/- x 12 x 17). With respect to the award of compensation under conventional heads, Tribunal has awarded Rs. 7,000/- towards funeral expenses (Rs.2,000/-) and loss of consortium (Rs.5,000) only, which appears to be minimal as per the schedule of Motor Vehicles Act (Not revised till date). Also, Tribunal has not awarded any compensation towards the loss of love and affection. Therefore, following the decisions, time and again, given by Supreme Court, recently in Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54 and Jiju Kuruvila and others v. Kunjujamma Mohan and others, (2013) 9 SCC 166 , in the case in hand, Rs. 50,000/- is awarded towards loss of consortium and Rs. 50,000/- towards loss of love and affection to the minor children and Rs. 5,000/- towards funeral expenses. Thus, claimant-appellants are entitled to get a modified total compensation of Rs. 5,13,000/- (Rs.4,08,000/- + Rs. 50,000/- + Rs. 50,000/- + Rs. 5,000/-). 13. The next question is with regard to the rate of interest. Tribunal has awarded interest at the rate of 12% per annum, which is on higher side, therefore, in view of the principles, time and again laid down by Supreme Court in this regard, we are of the view that enhanced compensation of Rs. 4,56,000/- [(Rs.5,13,000/- - Rs. 57,000/- (already awarded by the Tribunal)] is payable to the claimant-appellants at the present interest rate of 7% per annum from the date of filing of claim petition. The enhanced compensation of Rs. 4,56,000/- alongwith accrued interest shall be equally divided between claimant-appellants in equal share. 14. Accordingly, this First Appeal From Order is allowed. As a result, impugned judgement and award dated 15.5.1999 passed by the Motor Accident Claim Tribunal/VIth Additional District Judge, Etawah in M.A.C. P. No. 548 of 1996 (Avani Kant and others v. U.P. State Road Transport Corporation) is modified in the above terms. In the facts and circumstances of the case, we make no order as to costs. 15. The respondent, U.P. State Road Transport Corporation is directed to deposit modified enhanced compensation amount with interest thereon in the concerned Tribunal within a period of three months from the date of receipt of the copy of this order. In the facts and circumstances of the case, we make no order as to costs. 15. The respondent, U.P. State Road Transport Corporation is directed to deposit modified enhanced compensation amount with interest thereon in the concerned Tribunal within a period of three months from the date of receipt of the copy of this order. On such deposit of the amount the concerned Tribunal shall make proportionate disbursement between the claimant-appellants in accordance with the directions of this Court and submit compliance report to this Court within fifteen days thereafter.