Madras High Court
M/S.Oriental Insurance Co. Ltd vs Munusamy on 26 March, 2014
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 26.03.2014 CORAM: THE HONBLE MR. JUSTICE S. MANIKUMAR C.M.A.No.806 of 2014 M.P.No.1 of 2014 M/s.Oriental Insurance Co. Ltd., Dharmapuri-1. ... Appellant Vs. 1. Munusamy 2. S.Perumal ... Respondents The Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act against the judgment and decree, dated 25.02.2013, made in M.C.O.P.No.1326 of 2010, on the file of the Motor Accidents Claims Tribunal (Principal District Judge), Krishnagiri District. For Appellant : Mr.J.Chandran JUDGEMENT
Accident is not disputed. Quantum of compensation of Rs.4,68,000/-, with interest at the rate of 7.5% per annum, from the date of claim, till the date of realisation, awarded to the husband of the deceased, Muthammal, is the challenge, on the grounds inter alia that,
(i) The Claims Tribunal has failed to consider that all the legal representatives of the deceased, Muthammal, have not been impleaded as claimants, as per Section 166 of the Motor Vehicles Act and therefore, the Claims Tribunal ought to have dismissed the claim petition, for non-joinder of necessary and proper parties;
(ii) Though the appellant-Insurance Company has issued Ex.R1 Notice to the respondent/claimant to produce the family ration card for the purpose of ascertaining the correct age of the deceased, the respondent/claimant has failed to produce the same, which would lead to adverse inference against him.
(iii) Income of the deceased at Rs.4,500/- per month is on the higher side.
Except the above, no other submissions have been advanced.
2. Section 166 of the Motor Vehicles Act is extracted hereunder:
"166. Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under sub - section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides, or carries on business or within the local limits of whose jurisdiction the defendant resides and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."
3. In the case on hand, the respondent/claimant is the husband. In motor accident claims, loss of contribution to the family is determined, based on the age, avocation and income of the deceased. While computing the same, appropriate multiplier is taken. Deduction from the monthly income towards the personal and living expenses of the deceased is also one of the factors, which depends upon the number of persons, who have lost the contribution from the deceased.
4. In Sarla Verma v. Delhi Transport Corporation Ltd., reported in 2009 (2) TNMAC 1, the Supreme Court has reiterated the method of working out 'just compensation' to the accident victims, as follows:
8. The lack of uniformity and consistency in awarding compensation has been a matter of grave concern. Every district has one or more Motor Accident Claims Tribunal/s. If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system. We may refer to the following observations in Trilok Chandra :
"We thought it necessary to reiterate the method of working out `just' compensation because, of late, we have noticed from the awards made by Tribunals and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realized that the Tribunal/Court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused."
Compensation awarded does not become `just compensation' merely because the Tribunal considers it to be just. For example, if on the same or similar facts (say deceased aged 40 years having annual income of 45,000/- leaving him surviving wife and child), one Tribunal awards Rs.10,00,000/- another awards Rs.5,00,000/-, and yet another awards Rs.1,00,000/-, all believing that the amount is just, it cannot be said that what is awarded in the first case and last case, is just compensation. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated:
"So the proper method of computation is the multiplier method. Any departure, except in exceptional and extra-ordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation."
5. If there are more dependants, deduction from the income of the deceased, towards the personal and living expenses of the deceased, would be less and consequently, the quantum of compensation would be more, depending upon other factors, such as, age, income of the deceased. Depending upon the age of the deceased, multiplier is chosen.
6. In the case on hand, the Claims Tribunal has fixed the monthly income of the deceased at Rs.4,500/- and after deducting 1/3rd towards the personal and living expenses of the deceased, taken Rs.3,000/- as the monthly contribution of the deceased to the family and after applying '13' multiplier to the age of the deceased, the Claims Tribunal has computed the dependency compensation at Rs.4,68,000/-. Besides, a sum of Rs.10,000/- has been awarded towards Funeral Expenses.
7. Though no document has been filed to prove the monthly income of the deceased, yet the loss of gratuitous services of the deceased wife, to her husband/claimant, cannot be arithmatically measured. Insofar as the determination of the monthly income of the deceased is concerned, even taking it for granted that she was a house wife, at the time of accident, this Court deems it fit to consider a decision of the Apex Court in Arun Kumar Agrawal & Anr. Vs. National Insurance Co. Ltd. & Ors., reported in 2010(9) SCC 218, wherein, after considering the services, which the husband and the family stand to lose, due to the death of a house wife, as per Kemp on Negligence, at paragraph Nos.23 to 27, held as follows:
"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 gratuitous services 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 teaches 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 2 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 dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.
25. In Lata Wadhwa v. State of Bihar (supra), this Court considered the various issues raised in the writ petitions filed by the petitioners including the one relating to payment of compensation to the victims of fire accident which occurred on 3.3.1989 resulting in the death of 60 persons and injuries to 113. By an interim order dated 15.12.1993, this Court requested former 2 Chief Justice of India, Shri Justice Y.V. Chandrachud to look into various issues including the amount of compensation payable to the victims. Although, the petitioners filed objection to the report submitted by Shri Justice Y.V. Chandrachud, the Court overruled the same and accepted the report. On the issue of payment of compensation to housewife, the Court observed: 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.3000 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 recalculated, 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 are concerned, in the age group of 62 to 72, 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 values of services rendered at Rs.10,000 per annum, cannot be held to be just and, we, therefore, enhance the 2 same to Rs.20,000 per annum. In their case, therefore, the total amount of compensation should be redetermined, 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. (emphasis supplied)
26. The judgment of Lata Wadhwa's case was referred to with approval in M.S. Grewal and another v. Deep Chand Sood and others (2001) 8 SCC 151 for confirming the award of compensation of Rs.5 lacs in a case involving death of school children by drowning due to negligence of teachers of the school. In Municipal Corporation of Greater Bombay v. Laxman Iyer and another (2003) 8 SCC 731, a two-Judge Bench while deciding the issue of award of compensation under Sections 110-A and 110- B of the Motor Vehicles Act, 1939, referred to the judgments in Lata Wadhwa's case and M.S. Grewal's case.
27. In A.Rajam v. M.Manikya Reddy, 1989 ACJ 542 (Andhra Pradesh HC), M. Jagannadha Rao, J. (as he then was) advocated giving of a wider meaning to the word `services' in cases relating to award of compensation to the dependants of a deceased wife/mother. Some of the observations made in that judgment are extracted below: The loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of 'services' to the family, if there was reasonable prospect of such services being rendered freely in 2 the future, but for the death. It must be remembered that any substitute to be so employed is not likely to be as economical as the housewife. Apart from the value of obtaining substituted services, the expense of giving accommodation or food to the substitute must also be computed. From this total must be deducted the expense the family would have otherwise been spending for the deceased housewife. While estimating the `services' of the housewife, a narrow meaning should not be given to the meaning of the word `services' but it should be construed broadly and one has to take into account the loss of `personal care and attention' by the deceased to her children, as a mother and to her husband, as a wife. The award is not diminished merely because some close relation like a grandmother is prepared to render voluntary services."
At paragraph No.32, the Apex Court further held that, 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 possibly 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 2 housewife. 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 a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A 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 determination 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 Transport Corporation v. Susamma Thomas (Mrs.) and others, U.P. S.R.T.C. v. Trilok Chandra, Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another and also take guidance from the judgment in Lata Wadhwa's case.
8. In Arun Kumar Agrawal's case, though the legal representatives claimed that the deceased earned Rs.50,000/- per month by painting and handicrafts, the tribunal therein, fixed the monthly income at Rs.5,000/- for computing the loss of contribution to the family and awarded Rs.6,00,000/- as compensation. But then, on appeal, the High Court reduced the same. When the correctness of the decision of the High Court was tested, by considering various principles, The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), gratuitous services rendered by the wife/mother, and also by observing that gender equality has to be maintained, in assessing compensation for house wives, victims of road accident, the Apex Court, restored the original compensation awarded by the claims tribunal.
9. In the claim petition, if there are more than one claimants, after the determination of the quantum of compensation, under various heads, pecuniary and non-pecunary, the Claims Tribunal would apportion the said amount, to the claimants. In a given case, where the accident resulted in the death of a breadwinner, survived by his wife and child/children, the Claims Tribunal may apportion the compensation, between wife and child/children. If parents alone are the claimants, then the Claims Tribunal may apportion the compensation between them. In the case of surviving wife, children and parents, apportionment, may vary. There are instances, where brothers also joint the claim petition.
10. Quantum of compensation determined by the Claims Tribunal may vary, depending upon the number of claimants, the multiplier or the income, as the case may be, but merely because, other legal representatives are not impleaded, either as claimants or respondents, in the claim petition, as per Section 166 of the Motor Vehicles Act, 1988, that would not be a cause for dismissal of the claim petition, on the grounds of maintainability or non-joinder of necessary parties. They are not necessary and proper parties for the purpose of adjudicating the inter-se rights between the claimants, and the owner of the offending vehicle and the insurer. The lis between the claimants and the owner of the vehicle and its insurer, is based on the issues, (1) as to who was negligent, in causing the accident, which resulted in injuries or death, (2) who is liable to pay compensation and what should be the quantum of compensation amount. If there are more than one claimants, the Claim Tribunal has to apportion the compensation. Insofar as the first three issues are concerned, the parties required for effective adjudication are the claimants, on the one hand, the owner of the vehicle and its insurer on the other.
11. In the case on hand, other legal heirs, even if not impleaded as joint claimants or as respondents, that would not change the cause of action, for the purpose determining the quantum of compensation, except with little variance, depending upon the number of dependants, entitled to the estate of the deceased. The legal representatives are necessary parties, only to the extent of determination and apportionment of the award amount, between them. In such view of the matter, this Court is not inclined to subscribe to the contentions of the learned counsel for the appellant-Insurance Company that the claim petition ought to have been dismissed for non-joinder of other legal heirs.
12. As regards the dispute over the age of the deceased and the applicability of '13' multiplier, for the purpose of computing the compensation, on the ground that despite Ex.R1 Notice, the respondent/claimant has failed to produce the Ration Card, to ascertain the correct age of the deceased, this Court is of the view that mere sending a letter, does not amount to proof of acknowledgement. No postal acknowledgment has been marked to prove that despite, receipt of the notice, the respondent failed to furnish the information sought for. If there was any doubt, over the age of the deceased, the appellant-Insurance Company could have summoned the concerned Officer from the Civil Supplies Corporation, to prove that the respondent/claimant was issued with a Ration Card, and consequently, the age of the deceased could have been ascertained.
13. This Court is of the view that the overall quantum of compensation cannot be said to be bonanza and hence, not inclined to interfere with the same. In the result, the Civil Miscellaneous Appeal are dismissed. The appellant-Insurance Company is directed to deposit the entire award amount in each case, if not already deposited, with proportionate accrued interest and costs less the amount already deposited to the credit of M.C.O.P.No.1326 of 2010, on the file of the Motor Accidents Claims Tribunal (Principal District Judge), Krishnagiri District, within a period of four weeks from the date of receipt of copy of this order. On such deposit being made, the respondent/claimant is permitted to withdraw the same, by making necessary applications before the Tribunal. No costs. Consequently, connected Miscellaneous Petition is also closed.
26.03.2014 Index: Yes To The Motor Accidents Claims Tribunal (Principal District Judge), Krishnagiri District.
S. MANIKUMAR, J.
Skm C.M.A.No.806 of 2014 26.03.2014