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2017 DIGILAW 273 (TRI)

Subal Chandra Das S/o Late Karuna Kumar Das v. Swapan Ghosh S/o Shri Santipada Ghosh

2017-06-30

T.VAIPHEI

body2017
JUDGMENT AND ORDER : 1. Dissatisfied with the award of Rs. 4,73,800/- passed by the learned Member, Motor Accident Claims Tribunal, South Tripura in T.S. (MAC) No. 28 of 2012, the claimants are preferring this appeal for its enhancement. 2. Before proceeding further, we may straightaway refer to the material facts of the case leading to the filing of the appeal. The appellant No. 1 is the husband of the deceased, whereas the appellant No. 2 and 3 are the sons of the deceased. On 26.1.2011, the deceased (late Sova Rani Das) was boarding in a jeep bearing registration No. TR-03-4208 and when the vehicle reached Garjee, Paratia, it met with an accident, which caused serious injuries to the deceased. She was taken to G.B. Hospital from TSD Hospital, but she succumbed to her injuries on 30.1.2011. It is the case of the appellants that the accident occurred due to the rash and negligent driving of the offending vehicle, for which the police registered a case. As the legal representatives of the deceased, the appellants filed the claim petition for payment of compensation to the order of Rs. 75,70,000/- for the death of the deceased. 3. The claim petition was opposed by the driver and owner of the vehicle as well as the Insurance Companies by filing their respective written statements denying any liability to satisfy the award. On the pleadings of the parties, the Tribunal framed the following issues: (1) Whether Sova Rani Das died on 29.1.2011 due to injuries sustained by her in a road traffic accident occurred (sic) on 26.1.2011 at about 10.30 am near Paratia Natintilla on NH-44 under RK Pur PS involving the vehicle bearing registration number TR-03-4208 (Savari Jeep)? (2) Whether the claimant-petitioners, being the legal representatives of the deceased, are entitled to compensation and, if so, to what extent? (3) Who is liable to pay such compensation? 4. At the conclusion of the trial, the Tribunal passed the impugned judgment. There is no dispute about the death of the deceased in the vehicular accident, which took place on 26.1.2011. The Tribunal found that the deceased was 51 years at the time of the accident; that she was earning Rs. 5,000/- per month as housewife and helper of the Sova Medical Hall and that she was not the one running the Medical Hall as it was run by her husband (appellant No. 1). The Tribunal found that the deceased was 51 years at the time of the accident; that she was earning Rs. 5,000/- per month as housewife and helper of the Sova Medical Hall and that she was not the one running the Medical Hall as it was run by her husband (appellant No. 1). After deducting 1/3rd from her income as personal and living expenses, the Tribunal held that she contributed a sum of Rs. 3,400/- per month to her family, which would come to Rs. 3,400 x 12 = Rs. 40,800/- per annum, which, when multiplied by a multiplier of 11, worked out to be Rs. 4,48,800/-. Therefore, the total loss of dependency was calculated at Rs. 4,48,800/-. The Tribunal further awarded Rs. 10,000/- as transportation and medicine costs, while another sum of Rs. 2,500/- each was awarded for the loss of estate and funeral expenses respectively, which were in addition to Rs. 10,000/- awarded for loss of consortium. Thus, the total amount of compensation awarded came to Rs. 4,73,800/- which is to be divided in equal share to the three appellant except for Rs. 10,000/- which was awarded to the appellant No. 1 alone for the loss of consortium. The appellants were also held entitled to interest @ 6% per annum if the awarded amount was paid within 2 months, failing which the same would be enhanced to 9% per annum. However, since no Insurance Policy Certificate for the offending vehicle was produced by the owner (Sanjib Ghosh), the offending vehicle was deemed to have been uninsured at the time of the accident. The Tribunal, therefore, saddled the respondent No. 2 (the owner of the offending vehicle) with the liability to satisfy the award. 5. Assailing the impugned judgment, Mr. A. Nandi, the learned counsel for the appellants, contends that the Tribunal has failed to appreciate that the deceased was not only a housewife but was also a businesswoman running the medicine shop and has in the process erroneously come to the conclusion that her income was Rs. 5,000/- per month; the deceased had earned much more than Rs. 5,000/- per month. 5,000/- per month; the deceased had earned much more than Rs. 5,000/- per month. He next submits that the Tribunal acted contrary to the law laid down by the Apex Court in Smt. Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 for failing to award the future loss of income of the deceased; this has resulted in denying higher compensation legitimately due to the appellants. He, therefore, strenuously urges that the impugned judgment requires modification for enhancement of the compensation by taking into account the relevant factors omitted therein. Mr. P. Gautam, the learned counsel for the insurer, however, supports the impugned judgment and submits that no acceptable evidence was produced by the appellant to show that the deceased was earning more than Rs. 5,000/- per month, and the Tribunal has rightly held that she was not running the medicine shop, but was only a housewife and helper of the medicine shop and could be considered to be earning Rs. 5,000/- per month. He, therefore, submits that the impugned judgment was correctly decided and does not need the interference of this Court. On the other hand, Mr. S. Lodh, the learned counsel for the respondent No. 2 (owner of the offending vehicle), drawing my attention to the Insurance Policy Certificate issued by the respondent No. 3 (United India Insurance Co. Ltd.), which was allowed to be filed by the respondent No. 2 as additional evidence in IA No. 165 of 2017, submits that since the offending vehicle was insured with the respondent No. 3 at the time of the accident, the liability to satisfy the award should now be shifted to the latter, and not with the respondent No. 2 and necessary modification to this effect may be made in the impugned judgment. 6. On perusing the materials on record and after hearing the learned counsel for the parties, the first point for consideration in this appeal is whether the Tribunal is not correct in assessing the income of the deceased at Rs. 5,000/- per month. The question as to what should be the value of services rendered by a housewife for the purpose of determining the amount of compensation payable to her legal representatives came up for consideration before the Apex Court in Jitendra Khimshankar Trivedi vs. Kasam Daud Kumbhar and Others, (2015) 4 SCC 237 and it was held therein that: “9. The question as to what should be the value of services rendered by a housewife for the purpose of determining the amount of compensation payable to her legal representatives came up for consideration before the Apex Court in Jitendra Khimshankar Trivedi vs. Kasam Daud Kumbhar and Others, (2015) 4 SCC 237 and it was held therein that: “9. As noticed earlier, the Tribunal has taken the income of the deceased at Rs. 1500 whereas the High Court has assessed the income of the deceased at Rs. 1350 per month. As observed by the Tribunal, embroidery work, stitching work and local traditional embroidery work was doing well in the district of Kachchh and there was good earning. Considering the nature of the work and the evidence of the claimants witnesses, father-in-law and mother-in-law of the deceased, had the deceased Jayvantiben been alive she would have earned not less than Rs. 3000 per month. 10. Even assuming Jayvantiben Jitendra Trivedi was not self-employed doing embroidery and tailoring work, the fact remains that she was a housewife and a homemaker. It is hard to monetise 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 recognised the contribution made by the wife to the house is invaluable and that it cannot be computed in terms of money. A housewife/homemaker does not work by the clock and she is in constant attendance of the family throughout and such services rendered by the homemaker has to be necessarily kept in view while calculating the loss of dependency. Thus even otherwise, taking deceased Jayvantiben Jitendra Trivedi as the homemaker, it is reasonable to fix her income at Rs. 3000 per month. 11. Recognising the services of the homemaker and that domestic services have to be recognised in terms of money, in Arun Kumar Agrawal vs. National Insurance Co. Ltd. (2010) 9 SCC 218 , this Court has held as under: “62. The 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. Ltd. (2010) 9 SCC 218 , this Court has held as under: “62. The 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. 63. Household work performed by women throughout India is more than US $612.8 billion per year (Evangelical Social Action Forum and Health Bridge, p. 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 the Tribunals should do well to factor these considerations in assessing compensation for housewives who are victims of road accidents and quantifying the amount in the name of fixing just compensation.” 7. PW-1, who is the husband of the deceased, in his affidavit-in-chief deposed that his wife was a whole seller and retailer of medicine, and was the owner of medicine shop, and that the name of the shop is Sova Medical Hall, Udaipur T.S.D. Hospital, South Tripura carrying her name. He further testified that the monthly income of the deceased was Rs. 45,000/- whereas the proceeds from the sale of medicines used to be about Rs. 40,00,000/- per month and that she gave power of attorney for running the shop to her husband. The insurer disputed both the profession and income of the deceased claimed by the appellants in their cross-examination. In the face of this denial, the burden of proof that the deceased was the owner and was running Sova Medical Hall earning the income so claimed is upon the appellants. The insurer disputed both the profession and income of the deceased claimed by the appellants in their cross-examination. In the face of this denial, the burden of proof that the deceased was the owner and was running Sova Medical Hall earning the income so claimed is upon the appellants. Instead of discharging this burden, the Trade License dated 15.11.2005 issued by the Udaipur Nagar Panchayat files in the face of the appellant; the proprietor of the Sova Medical Hall mentioned therein was none other than the appellant No. 1 himself. This is further corroborated by Cash Receipt dated 11.11.2005 issued by the same authority indicating therein that the proprietor of the shop was none other than the appellant himself. In any case, once these claims are disputed or denied by the insurer, the self-serving statements of the appellants cannot be relied upon to prove the income of the deceased as claimed by the appellants. In my judgment, the findings of the Tribunal with respect to the occupation and income of the deceased do not suffer from any infirmity calling for the interference of this Court. 8. Having said that, there is one aspect of the matter, which cannot be lost sight of by this Court, namely, the inadequacy of the award of compensation under the conventional heads. Keeping in mind Trivedi case (supra) and many other decisions of the Apex Court, a sum of Rs. 1,00,000/- can be awarded to the appellant-husband for the loss of consortium. The appellant No. 2 and 3, who are the sons of the deceased are also entitled to Rs. 50,000/- each for loss of love and affection. The funeral expenses of Rs. 2,500/- awarded by the Tribunal is on the lower side, and the same should be enhanced to Rs. 25,000/-. Therefore, the compensation for the appellants is enhanced to Rs. 6,86,300/- from Rs. 4,73,800/- which will carry interest @ 6% per annum with effect from the date of the claim petition. As the offending vehicle was duly insured with the respondent-insurer at the time of the accident, the direction of the Tribunal to the respondent No. 2 to deposit the awarded amount has to be interfered with. 9. Resultantly, this appeal is partly allowed. The respondent No. 3 is, therefore, directed to deposit Rs. As the offending vehicle was duly insured with the respondent-insurer at the time of the accident, the direction of the Tribunal to the respondent No. 2 to deposit the awarded amount has to be interfered with. 9. Resultantly, this appeal is partly allowed. The respondent No. 3 is, therefore, directed to deposit Rs. 6,86,300/- together with the interest accrued thereon with this Registry within two months from the date of receipt of this judgment for payment to the appellants in accordance with the directions of the Tribunal. The impugned judgment is, accordingly, modified in the manner and to the extent indicated above. Transmit the LC record.