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2018 DIGILAW 1129 (ALL)

UNITED INDIA INSURANCE CO. LTD. v. JASVEER SINGH

2018-05-07

PANKAJ MITHAL, RAJIV JOSHI

body2018
JUDGMENT By the Court.—Heard Sri V.C. Dixit, learned counsel appearing for the appellant Insurance Company and Sri S.D. Ojha, learned counsel appearing for the claimant respondent Nos. 1 to 5. Respondent Nos. 6 and 7 are formal parties as the contest is between the appellant Insurance Company and the claimant respondent Nos. 1 to 5. 2. The appeal has been preferred by the appellant Insurance Company against the award dated 31.1.2018 passed by the Additional District Judge exercising powers of the Motor Accident Claims Tribunal, Saharanpur. 3. The tribunal by the aforesaid award has given compensation of Rs. 14,52,000/- to the claimants contesting respondents with 7% interest from the date of filing of the claim petition till its actual payment. 4. The claimant contesting respondents had preferred claim petition under Section 166 of the Motor Vehicles Act, 1988 due to death of Smt. Kavita, a house wife, the widow of claimant respondent No. 1 and mother of claimant respondent Nos. 2 to 5. At the time of accident she was aged about 39 years and her husband i.e. claimant respondent No. 1 was earning Rs. 51,845/- per month. 5. The tribunal by taking the notional income of the deceased to be 1/3rd of that of her husband and applying the multiplier of 15 awarded the compensation. 6. Sri V.C. Dixit, learned counsel appearing for the appellant Insurance Company has raised only two points : 7. First, that the claim petition was under Section 166 of the Act and therefore the criteria provided in the second schedule of Section 163-Aof the Act is not applicable for assessing the notional income of the deceased house wife. Secondly, the tribunal has wrongly applied the multiplier of 15 whereas according to age of the deceased it ought to have been 14 only. 8. Sri S.D. Ojha has agreed for final disposal of the appeal at this very stage, as according to him the first point stands fully covered by various decisions of the Supreme Court and as far as the second point is concerned, he accepts that the multiplier of 14 ought to have been applied instead of 15. 9. No doubt the claim petition was preferred under Section 166 of the Act and Schedule II to Section 163-A of the Act is not applicable to it. 9. No doubt the claim petition was preferred under Section 166 of the Act and Schedule II to Section 163-A of the Act is not applicable to it. The said schedule is applicable only to the claim petitions preferred under Section 163-A of the Act and where the income/earnings of the deceased/factum are not over Rs. 40,000/- per annum. 10. In this regard reference may be had to a decision of the three Judges of the Supreme Court in Deepal Girish Bhai Soni and others v. United India Insurance Company Limited, Baroda, AIR 2004 SC 2107 . 11. In the aforesaid case the Apex Court opined that the remedy for payment of compensation under Section 163-A and 166 of the Act are independent of each other and the claimant cannot pursue both the remedies simultaneously. He has to opt/elect either to proceed under Section 163-A or under Section 166 of the Act but not under both the provisions. The proceedings under Section 163-A of the Act applies only in cases where annual income is upto to Rs. 40,000/- and that of other claimants could be determined in terms of Chapter XII i.e. under Section 166 of the Act. 12. On the basis of the aforesaid authority it is being contended that since the claim petition is under Section 166 of the Act, the second schedule of the Act specially clause 6 (b) of the said schedule would not apply. The tribunal has therefore erred in applying the said schedule so as to take the notional income of the deceased house wife to be 1/3rd of the income of her spouse. 13. It is worth noting that for the purposes of computing the income of a deceased house wife for awarding compensation to the surviving members of the family in cases where the annual income is over Rs. 40,000/- no definite criteria has been provided under the Act. 14. In Arun Kumar Agrawal and another v. National Insurance Company and others, 2010 (3) TAC 769 (SC), has observed as under : 23. “In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratutitous service rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. “In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratutitous service rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer’s work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teachers small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.” 24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term ‘services’ is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependents cannot be diminished on the ground that some close relation like a grandmother may valunteer to render some of the services to the family which the deceased was given earlier”. 15. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependents cannot be diminished on the ground that some close relation like a grandmother may valunteer to render some of the services to the family which the deceased was given earlier”. 15. The Apex Court ultimately after taking note of Lata Wadhawa and others v. State of Bihar and others, (2001) 8 SCC 197 , held that though Section 163-A does not in terms apply to cases where claims are raised under Section 166 of the Act but in the absence of any other definite criteria for determining the compensation payable to the dependents of a non earning house wife/mother, it would be reasonable to rely upon the criteria specified in clause-6 of the Second Schedule of Section 163-A of the Act and then to apply the appropriate multiplier. 16. In other words, the Apex Court laid down that even in claim petitions under Section 166 of the Act compensation to the dependents of a house wife/mother could be determined by applying clause-6 of the Second Schedule of Section 163-A of the Act i.e. by taking the notional income of a house wife/mother who is not earning as 1/3rd of the income of the spouse/husband. 17. The contention that in Lata Wadhawa (Supra) the Apex Court had only approved of Rs. 3,000/- per month i.e. 36,000/- as the notional income of a house wife/mother on the modest estimation and as such it cannot be higher than that is of no substance. The decision of Lata Wadhawa was considered by the Supreme Court in Arun Kumar Agrawal (Supra) but was not approved. It is to be noted that in the case of Lata Wadhawa was a matter where a fire had occurred during some celebrations whereupon compensation was awarded. The award of compensation therein was not governed by any particular statutory provision in contrast to the matter of grant of compensation under the Motor Vehicles Act, 1988. Therefore, the aforesaid decision is of no value in the present context. 18. In view of the aforesaid facts and circumstances, we do not find any error or illegality on part of the tribunal in assessing the income of the deceased as 1/3rd of that of her husband i.e. 1/3rd of Rs. Therefore, the aforesaid decision is of no value in the present context. 18. In view of the aforesaid facts and circumstances, we do not find any error or illegality on part of the tribunal in assessing the income of the deceased as 1/3rd of that of her husband i.e. 1/3rd of Rs. 36,415/- which is 12,000/- p.m. and in awarding compensation accordingly. 19. The tribunal has applied the multiplier of 15 for awarding compensation. The age of the deceased was 39 years and according to Smt. Sarla Verma and others v. Delhi Transport Corporation and another, (SC) AIR 2009 SC 3104 the multiplier of 14 would have sufficed the purpose. 20. Sri Ojha agrees to the application of the aforesaid multiplier. 21. Accordingly, the application of multiplier is reduced from 15 to 14 and the compensation is directed to be worked out accordingly. 22. In other words, the dependency of the claimant respondents which has been recognized as Rs. 8,000/- per month i.e. 96,000/- per annum after applying the multiplier of 14 would be Rs. 13,44,000/- in place of Rs. 14,40,000/-. Dependency (as assessed by the tribunal) Rs. 96,000/- p.a. Multiplier of 14 (Rs. 96000 x 14) Rs. 13,44,000/- Funeral Expenses (as awarded by the tribunal) Rs. 5,000/- Loss of estate Rs. 2,000/- Consortium Rs. 5,000/- Total Rs. 12,000/- Rs. 12,000/ Grand total... Rs. 13,56,000/- 23. Accordingly, the compensation awarded vide award dated 31.1.2018 is reduced from Rs. 14,52,000/- to Rs. 13,56,000/- as above which shall be payable with interest @ 7% as awarded by Tribunal. 24. The appeal is allowed in part.