Himachal Pradesh High Court
Rakesh Kumar And Anr. vs Prem Lal And Ors. on 19 December, 1995
Equivalent citations: II(1996)ACC146, 1996ACJ980
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. The two appellants are the son and the husband respectively of the deceased Maya Devi. They have come up in appeal before this court against the award dated 28.6.1986 of the learned Motor Accidents Claims Tribunal (II), Kangra at Dharamshala, whereby compensation of Rs. 24,000/- was awarded to them in respect of the death of deceased Maya Devi. The appellants have questioned the quantum of compensation as assessed by the learned Tribunal by averring that the compensation awarded is neither just nor adequate.
2. The matrix of the case is this. The deceased Maya Devi, a young lady of 25 years of age, on 5.9.1985 was proceeding on foot to Civil Hospital, Dharamshala, from her village Sakoh. At the relevant time, she was accompanied by one Raj Kumari, a peon in the H.P. State Electricity Board. Both the deceased and Raj Kumari were walking on the left side of the road. When they had covered a distance of one furlong from their houses, bus bearing No. HPK 1465 belonging to respondent No. 1, while coming from Dharamshala side ran over the deceased Maya Devi and also caused injuries to Raj Kumari. Both these ladies were shifted to Civil Hospital, Dharamshala, where the deceased Maya Devi succumbed to the injuries sustained by her. Raj Kumari, however, had sustained only minor injuries.
3. The two appellants, by way of a petition made under Section 110-A of the Motor Vehicles Act, 1939, approached the learned Tribunal seeking compensation to the tune of Rs. 1,50,000/- by averring that the accident was as a result of the rash and negligent driving on the part of respondent No. 2, the driver of the bus No. HPK 1465. While claiming the compensation, it was averred that the deceased Maya Devi besides being a housewife was earning about Rs. 240/- per month by working as a maidservant in the houses of various persons of her village. She was also helping her husband in milking the cows and buffaloes and in carrying out agricultural operation, in addition to her gratuitous services being rendered by her to the two appellants.
4. The claim petition was resisted and contested by the respondents. While the accident and the death of the deceased Maya Devi therein was admitted, it was averred that the accident was not as a result of the rash and negligent driving on the part of respondent No. 2, the driver of the bus. The accident took place as a result of sudden mechanical failure. It was explained that the right front wheel of the bus had come out, as a result of which the bus went towards the right side of the road, resulting into the accident.
5. On the pleadings of the parties, the learned Tribunal framed the following issues:
(1) Whether the deceased Maya Devi died on account of rash and negligent driving of respondent No. 2, if so, its effect? OPP (2) If issue No. 1 supra is proved, to what amount of compensation the petitioners are entitled and from whom? OPP (3) Relief.
6. The learned Tribunal, while deciding issue No. 1 in favour of the appellants, held that the deceased Maya Devi had died on account of rash and negligent driving on the part of respondent No. 2, the driver of the bus. Under issue No. 2, the learned Tribunal came to the conclusion that the deceased being a young lady must have been earning Rs. 250/- per month by working as a maidservant. The learned Tribunal allowed a deduction of Rs. 200/-per month towards the personal expenses of the deceased and assessed the loss of dependency/estate in respect of the two appellants at Rs. 50/- per month and by applying a multiplier of 15, had assessed total loss of dependency/estate to the tune of Rs. 9,000/-. A further sum of Rs. 5,000 was awarded to the two appellants on account of the loss of foetus since the deceased was proved to be having a pregnancy of 28 weeks at the relevant time. A sum of Rs. 5,000/- was further awarded in favour of the appellant Rakesh Kumar for loss of love and affection. The two appellants were also awarded another sum of Rs. 5,000/- under the head shock and agony. The learned Tribunal, thus, awarded total compensation of Rs. 24,000 in favour of the two appellants. This quantum of compensation has been agitated before us in the present appeal, by the two appellants.
7. We have heard Mr. Shrawan Dogra, learned Counsel for the appellants, Mr. Ashok Sharma, learned Counsel for respondent No. 1 and Mr. R.L. Sood, learned Counsel for respondent No. 3. We have gone through the record of the case and the written submissions made on behalf of respondent No. 3, the insurance company.
8. Insofar as the question of negligence on the part of respondent No. 2 is concerned, the findings of the learned Tribunal have become final and unassailable in view of the fact that such findings have not been challenged by the respondents either by way of an appeal or by way of cross-objections. The only question, thus, which remains for consideration in the present appeal is whether the compensation awarded by the learned Tribunal is just and adequate on the facts and in the circumstances of the case.
9. The deceased Maya Devi was a young lady of about 25 years of age. According to the appellants, the deceased was an agriculturist and was also working as a part-time maidservant in houses of various persons of her village and was earning about Rs. 800/- per month besides rendering services as a mother and wife respectively to the two appellants. Assuming for the sake of argument that deceased was not earning anything and was merely a housewife. The question which requires determination is whether the two appellants are entitled to compensation in respect of the deceased who was not having any income of her own.
10. The pecuniary loss that a husband and children usually suffer in case of death of a housewife comprises loss of services that the deceased provided to them gratuitously. The measure of this loss being the cost of replacing the services. In Mayne and McGregor on Damages, 12th Edn., in para 826, the law on the point is stated as under:
The loss to the children generally does not, where the husband is alive and claiming, fall to be considered separately by the court. As to gratuitous services, the amount will generally go to swell the husband's loss, since he remains under an obligation to maintain the children...Nevertheless, it may be argued that the benefit of a mother's personal attention to a child's upbringing, morals, education and psychology, which the services of a housekeeper, nurse or governess could never provide, has in the long run a financial value for the child, difficult as it is to assess.
11. In Berry v. Humm & Co. (1915) 1 KB 627, in the case of death of a wife, who was performing the ordinary household duties as a housewife, it was held that the damages recoverable in such an action are not limited to the value of the money lost or the money value of things lost but include the monetary loss incurred by replacing services rendered gratuitously by the deceased.
12. Again in Preston v. Hunting Air Transport Ltd. (1956) 1 QB 454, a case arising under the Carriage by Air Act, it was held:
Whether that damage should be calculated purely on what may be estimated as the financial loss which these infants have sustained, or whether it should be calculated on the broader basis of the loss which they inevitably must have sustained beyond the actual financial loss by the fact that they lost their mother as young children aged some three or four years who were, at the time of her death, already deprived of a father. As I interpret the words of Article 17, it does seem to me that this is an item of damage for which the plaintiffs are entitled to be compensated.
I must take into account, in calculating any sum which should be awarded to them, something more than the purely financial loss and award a sum extremely difficult to arrive at for the loss which they have sustained by reason of the fact they have lost the care of their mother at an age when probably they needed it most.
From all the evidence before me I think I am bound to come to the conclusion that the mother would have made every effort to have brought up the children and to have educated them as well as she could, and to have devoted every available penny which she had to spare for that purpose.
13. Further in Regan v. Williamson 1977 ACJ 331 (QBD, England), where in an action brought under the Fatal Accidents Acts in respect of the death of a married woman who left behind young children, it was held that the courts, in assessing the pecuniary value of her services which the husband and children had lost in consequence of her death, should not construe the word 'services' too narrowly by limiting it to the services of a housekeeper. Account should be taken of the fact that a wife does not work to set hours, but is in constant attendance of her family, and that she is able to give instruction to the children on matters essential to their upbringing.
14. In Mehmet v. Perry (1977) 2 All ER 529: 1978 ACJ 112 (QBD, England), following the death of his wife, the plaintiff had given up his job in order to devote himself full time to the care of his children and especially the two youngest children who were suffering from a rare blood disorder. In the action brought for damages, the plaintiff claimed that the damages recoverable in respect of the pecuniary value of the wife's services fell to be assessed under three heads: (i) the loss to the family of the wife's house keeping services which in the circumstances should be calculated by reference to the wages which the plaintiff would have earned if he had not given up his employment to care for the family, (ii) the loss of the wife's personal services, apart from housekeeping services; suffered by the children, and (iii) the loss of the wife's services which the plaintiff, as a husband, had suffered, in addition to the loss of her housekeeping services which he had incurred as a member of the family. It was held:
(a) The damages for the loss of the wife's housekeeping services should be assessed by reference to the plaintiff's loss of wages and not by reference to the reasonable cost of employing a housekeeper, since his loss of wages represented the cost of providing the services of a full-time housekeeper in substitution for the wife;
(b) The children were entitled to recover as part of their damages for loss of the wife's services, a sum for the loss of her personal attention to them as a mother, as distinct from her services to them as a housekeeper, but that sum should be kept within modest limits as the plaintiff was at home all the time;
(c) The plaintiff should also receive some damages for his loss as a husband of the personal care and attention of the wife but that sum should be quite small to avoid any overlap with the damages awarded for loss of the wife's housekeeping services.
15. Having discussed the English law on the point, we now proceed to examine the Indian law on the subject. A Division Bench of the High Court of Gujarat in Khodabhai Bhagwanbhai v. Hirji Tapu 1980 ACJ 237 (Gujarat), following the ratio laid down in Berry v. Humm & Co. (1915) 1 KB 627, held:
...it is not as if that the accidental death of a non-earning wife means nothing to her dependants and other family members and the economic loss to them would be practically nil as assumed by the Tribunal in the present case. If the deceased wife was earning then her earning would certainly be considered for computing the net economic loss to her family members. But even if she was not earning, the gratuitous services rendered by her would now be required to be substituted by other modes which will have their own economic importance and value and that the pecuniary benefit from these services in the domestic front as well as in the agricultural operations of the husband when the wife may have acted as a helpful hand will have to be assessed on the totality of all the circumstances and a proper figure of multiplicand has to be arrived at, and having considered the relative age of the wife, husband and the dependants a proper multiplier has to be adopted.
16. Similarly, Andhra Pradesh High Court in P. Anthaiah & Sons v. Kantha Dibbayya 1971 ACJ 63 (AP), followed the English law while awarding compensation in respect of a deceased housewife. Again in A. Rajam v. M. Manikya Reddy 1989 ACJ 542 (AP), after examining in detail the English and American law on the subject High Court of Andhra Pradesh has summarised the following principles:
(1) 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 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 expenses 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.
(2) While estimating the 'services' of the housewife, a narrow meaning should not be given to the meaning of the word 'services' but should be construed broadly and one has to take into account the loss of constant 'love and affection' as also of 'the 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.
(3) In case the husband is compelled to give up his job to attend constantly to children who are extremely sickly, the loss of the husband's job can also be treated as loss to the family. If the deceased was contributing from her earnings to the family, that should also be treated as loss.
(4) If the wife was totally living away and there were no chances of reconciliation, the loss of services cannot be treated as a loss. But if there were reasonable chances of reconciliation, 50 per cent of the loss of services could be awarded.
(5) In the case of an injured housewife, the award from the date of trial on the above basis of 'loss of services' has to be made irrespective of whether she is, in fact, going to employ a substitute or not. Even for the period before trial, if she had not engaged a substitute, the award need not be diminished because the extra burden she had borne could be considered as part of the award for the 'pain and suffering' and the said burden could be treated as equivalent to that of engaging a substitute.
17. We are in full agreement with the proposition that the children and husband of the deceased are entitled to compensation on the ground of the loss of the services of the deceased which were no doubt gratuitous, for the reason that the members of the family can replace such gratuitous services only by incurring expenditure and that while estimating the 'services' of the deceased housewife, a narrow meaning should not be given to the meaning of the word 'services' but should be construed broadly.
18. Coming to the facts of the present case, deceased Maya Devi was a young lady of about 25 years of age. Appellant No. 2, Baldev Singh, the husband of the deceased, while appearing as P.W. 2 before the learned Tribunal has given his age as 30 years. Appellant No. 1, Rakesh Kumar, the son of the deceased, was only of about 3 years of age at the time of the accident and death of the deceased. Apart from being a housewife, deceased was working as a maidservant in the houses of various persons in the village.
19. The learned Counsel for the respondents have contended that if the deceased was working as maidservant in different houses, she was left with no sufficient time to care for the family and for carrying on her household work. We do not find force in the contention of the learned Counsel for the respondents. It cannot be presumed that working ladies would neglect their families and would not render gratuitous services to the members of their families in bringing up children and looking after their husbands in their day-to-day needs. In (Sic.) U.P. State Road Trans. Corporation v. Deepti 1985 ACJ 691 (Allahabad), in the case of death of a woman of 32 years of age, employed as a sweeper, compensation towards loss of service was allowed to her husband and four children.
20. Considering the fact that the deceased was working as a maidservant at different houses, the age of the two appellants and that of the deceased, the status of the family of the deceased, it would be reasonable to assess the services of the deceased in terms of money at Rs. 660/- per month.
21. As stated above, the deceased was also working as a part-time maidservant in different houses. Evidence has come on the record to show that the deceased was working in four houses. Onkar Singh, P.W. 6, has deposed that the deceased was working in his house and she was being paid Rs. 60/- per month. It is, therefore, reasonable to expect that the deceased must have been receiving the same wages from each of the other three persons in whose houses she was working on part-time basis as a maidservant. The total monthly income of the deceased as a maidservant was thus Rs. 240/-.
22. The total pecuniary loss to the appellants in the form of loss of services including love and affection and loss of income of the deceased comes to Rs. 660 + Rs. 240/- = Rs. 900/-. After deducting 1/3rd therefrom for personal expenses of the deceased, the loss of dependency of the two appellants comes to Rs. 600/- per month or say Rs. 7,200/- per annum.
23. The deceased, as stated above, was about 25 years of age. Taking into consideration all the relevant factors and the imponderables of life, a multiplier of 20 appears to be just and reasonable. By applying the said multiplier the compensation is assessed at Rs 7,200/- x 20 = Rs. 1,44,000/-. To this sum is added the conventional amount of Rs. 3,000/-.
24. The Tribunal has awarded compensation of Rs. 5,000/- for the loss of foetus since the deceased was found to be having a pregnancy of 28 weeks at the time of death. To our mind, no separate compensation is payable for loss of foetus. Such a loss of foetus is a part of the bodily injuries sustained by the deceased. Even otherwise, learned Counsel for the appellants has not been able to bring to our notice any authority in support of his contention that separate compensation is payable in respect of the foetus.
25. Learned Counsel for respondents have lastly contended that compensation on account of loss of services of the deceased as a housewife cannot be ordered in the present case by setting up a new case for the appellants. It is argued that the appellants have specifically claimed the damages for the death of the deceased on specific averments that the deceased was a working lady. Be as it may be, the fact cannot be lost sight of that the appellants are to be awarded just and fair compensation and while assessing the compensation payable, all the circumstances have to be considered. Therefore, no new case is being made out by the appellants. The Tribunal, in fact, erred in not considering the loss of services of the deceased while determining the compensation.
26. For the foregoing reasons, the appeal is allowed and the award of the learned Tribunal is modified. The appellants shall be entitled to total compensation of Rs. 1,47,000/- in equal shares, from the three respondents jointly and severally. The appellants shall also be entitled to interest at the rate of 12 per cent per annum on the amount awarded from the date of petition, that is, 30.9.1985 till the date of payment/deposit of the amount.
27. Be it stated that the appellant No. 1, Rakesh Kumar, is a minor. The amount of compensation falling to his share shall not be released. The same shall be invested in a fixed deposit with a nationalised/co-operative bank in the name of the minor through his father and guardian Baldev Singh for a period coterminous with the date of attaining of majority by the minor. The amount of interest accruing due on such fixed deposit shall be paid to the father and guardian every half-yearly, who shall utilise such amount for the benefit of the minor.
Parties to bear their own costs.