Royal Sundaram Alliance Insurance Co. ... vs Master Manmeet Singh & Ors. on 30 January, 2012

[Cites 11, Cited by 389]

Delhi High Court

Royal Sundaram Alliance Insurance Co. ... vs Master Manmeet Singh & Ors. on 30 January, 2012

1. The Appellant Royal Sundaram Alliance Insurance Company Limited seeks reduction of compensation of `8,50,000/- awarded in favour of the Respondents (Claimants) by the Motor Accident Claims Tribunal, (the Claims Tribunal) by judgment dated 05.04.2011 for the death of their mother Jasvinder Kaur who died in an accident which took place on 04.11.2009.

2. In fact, Respondents No. 1 to 3‟s father Harvinder Singh also lost his life in this very accident.

3. The contention raised on behalf of the Appellant is that the Tribunal arbitrarily took the value of the gratuitous services rendered by the deceased as `6,000/- per month which is against the law laid down by the Supreme Court.

4. To assess the value of services rendered by a homemaker so as to calculate the loss of dependency in case of her death in a road accident is an uphill task. Sometimes the Claims Tribunals have taken the salary of a skilled worker and sometimes have taken 50% wages of a skilled worker. Clause 6 (b) of the MAC APP 590/2011 Etc. Page 3 of 32 Second Schedule to Section 163-A of the Motor Vehicles Act, 1988 (M.V.Act) lays down that the income of a non-earning spouse shall be considered to be one-third of the income of the surviving spouse. There seems to be no logic behind this. If I may say so, it is totally arbitrary and, therefore, can only be restricted to the grant of compensation as per the structured formula in petitions filed under Section 163-A of the M.V. Act.

5. The Claims Tribunal (in MAC APP.590/2011) referred to the judgment of Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197; M.S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151; some English decisions and it heavily relied upon the judgment in Arun Kumar Agrawal & Anr. v. National Insurance Company Limited., (2010) 9 SCC 218 to hold that it is difficult to value the services rendered by a wife and a mother. It did not follow Clause 6 (b) of the second Schedule to the M.V. Act to take one-third of the surviving spouse‟s income as taken in Arun Kumar Agrawal (supra) as the Hon‟ble Supreme Court in the aforesaid decision had lamented that taking one-third of the surviving spouse‟s income was not based on any sound principle.

6. The Tribunal relied on Lata Wadhwa whereby value of the services rendered by a housewife aged upto 59 years was taken as `3,000/-. The Tribunal doubled it to ` 6,000/- on account of inflation as Lata Wadhwa (supra) was decided in the year 2001 selected a multiplier of „15‟ and after deduction of one-third MAC APP 590/2011 Etc. Page 4 of 32 towards the personal living expenses, computed the loss of dependency as `7,20,000/-. The Tribunal further awarded a sum of `1,00,000/- towards loss of love and affection, `25,000/- towards funeral charges and ` 5,000/- towards loss to estate to compute the overall compensation as `8,50,000/-. There is no Appeal by the Claimants.

7. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly. In Helen C. Rebello v. Maharashtra SRTC, 1999 (1) SCC 90, the Supreme Court held that "the Court and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any."

8. First of all, I would deal with Clause 6 (b) of the second Schedule to the M.V. Act (under Section 163A) which provides that the income of a non-earning spouse, who has died, may be taken as one-third of the income of the surviving spouse. It goes MAC APP 590/2011 Etc. Page 5 of 32 without saying that similar kind of services is rendered by a home maker whether in the middle or in the low income group. Is there any justification to relate the income of the housewife to that of her husband?

9. To give an example there is a senior Clerk „A‟, a Junior level Officer „B‟ and a middle level Officer „C‟ working with the Govt.; A,B and C draw a salary of ` 15,000/-, `30,000/- and ` 60,000/- respectively. The wives of all the three are looking after their respective homes and caring for the children. All of them are Graduates. If we apply the criterion as laid down in the second Schedule, the value of services rendered in case of „A‟, „B‟ and „C‟ would be `5,000/-, `10,000/- and `20,000/- per month respectively. The husband and the children would be entitled to compensation on the assumed loss of dependency as mentioned above. There would be wide disparity in the award of compensation.

10. In the three examples quoted above, although the deceased‟s spouse might be rendering the same services for the husband and the children, i.e. to cook food, to buy clothes, wash and iron them, to work as a tutor for the children, to give necessary instructions to the children as to their upbringing, and so on. The compensation awarded in the case of „A‟ would be X amount; in case of „B‟ would be 2X amount and in case of „C‟ would be 4X amount.

MAC APP 590/2011 Etc. Page 6 of 32

11. Similarly, take an example of X,Y and Z who are in their respective enterprises and earning ` 5 lacs, ` 10 lacs and ` 15 lacs per annum respectively. Not only there would be wide disparity in the grant of compensation in respect of the death of their spouse, the compensation awarded for loss of services rendered by a housewife of a husband in a very high bracket based on this principle may be unjust enrichment. Again there may be cases where if the husband is having a very high income his wife really might not be contributing so much towards the home making. Thus, I am of the view that a readymade formula given in Clause 6 (b) of the second Schedule cannot be adopted to award just and fair compensation which is the very basis of an award passed under Section 168 of the M.V. Act.

12. In the case of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176, it was held as under:-

"5......The determination of the quantum must answer what contemporary society "would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing". The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales'. All this means that the sum awarded must be fair and reasonable by accepted legal standards."

13. In Arun Kumar Agrawal the Supreme Court referred to Kemp and Kemp on Quantum of Damages, (Special Edn., 1986), MAC APP 590/2011 Etc. Page 7 of 32 Berry v. Humm & Co., (1915) 1 KB 627 and Mehmet v. Perry, (1977) 2 All ER 529 (DC). Paras 22, 23, 25 and 26 of the report are extracted hereunder:-

"22. We may now deal with the question formulated in the opening paragraph of this judgment. In Kemp and Kemp on Quantum of Damages, (Special Edition - 1986), the authors have identified various heads under which the husband can claim compensation on the death of his wife. These include loss of the wife's contribution to the household from her earnings, the additional expenses incurred or likely to be incurred by having the household run by a house- keeper or servant, instead of the wife, the expenses incurred in buying clothes for the children instead of having them made by the wife, and similarly having his own clothes mended or stitched elsewhere than by his wife, and the loss of that element of security provided to the husband where his employment was insecure or his health was bad and where the wife could go out and work for a living.

23. In England the courts used to award damages solely on the basis of pecuniary loss to family due to the demise of the wife. A departure from this rule came to be made in Berry v. Humm and Co. (1915) 1 K.B. 627 where the plaintiff claimed damages for the death of his wife caused due to the negligence of the defendant's servants. After taking cognizance of some precedents, the learned Judge observed:

I can see no reason in principle why such pecuniary loss should be limited to the value of money lost, or the money value of things lost, as MAC APP 590/2011 Etc. Page 8 of 32 contributions of food or clothing, and why I should be bound to exclude the monetary loss incurred by replacing services rendered gratuitously by a relative, if there was a reasonable prospect of their being rendered freely in the future but for the death.

x x x x x x x x x x x x

25. In Mehmet v. Perry, the pecuniary value of a wife's services were assessed and granted under the following heads:

(a) Loss to the family of the wife's housekeeping services.

(b) Loss suffered by the children of the personal attention of their mother, apart from housekeeping services rendered by her.

(c) Loss of the wife's personal care and attention, which the husband had suffered, in addition to the loss of her housekeeping services.

26. 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 MAC APP 590/2011 Etc. Page 9 of 32 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 etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children."

14. The Supreme Court observed that in view of the multifarious services rendered by the housewife, it is difficult to value those services in terms of money. But then some estimate has to be made in terms of money to award compensation. In Para 27 of the report, the Supreme Court said as under:-

"27. 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."

15. The Supreme Court referred to the judgment passed by the Madras High Court in National Insurance Company Limited v.

MAC APP 590/2011 Etc. Page 10 of 32

Deepika & Ors., 2010 (4) ACJ 2221. Para 54 to 57 of the judgment in Arun Kumar Agrawal are extracted hereunder:-

"54. India is a signatory to the said Convention and ratified the CEDAW Convention on 9.7.1993. But even then no law has been made for proper evaluation of the household work by women as homemakers.

55. The Madras High Court in Deepika (supra) has observed very pertinently:

"9. The UNICEF in 2000, noted that „unpaid care work is the foundation of human experience‟. The care work is that which is done by a woman as a mother and definitely in India, the woman herself will be the last person to give this role an economic value, given the social concept of the role of a mother. But when we are evaluating the loss suffered by the child because her mother died in an accident, we think we must give a monetary value to the work of a caregiver, for afterall, the home is the basic unit on which our civilised society rests."

56. The Madras High Court in its very illuminating judgment in Deepika (supra) has further referred to various methods by which the assessment of work of a homemaker can be made and the relevant portion from para 10 of the said judgment is extracted below:

"10......that there have been efforts to understand the value of a homemaker's unpaid labour by different methods. One is, the MAC APP 590/2011 Etc. Page 11 of 32 opportunity cost which evaluates her wages by assessing what she would have earned had she not remained at home, viz., the opportunity lost. The second is, the partnership method which assumes that a marriage is an equal economic partnership and in this method, the homemaker's salary is valued at half her husband's salary. Yet another method is to evaluate homemaking by determining how much it would cost to replace the homemaker with paid workers. This is called the Replacement Method."

57. Various aspects of the nature of homemaker's job have been described in para 11 which are very relevant and are extracted below:-

"11. The role of a housewife includes managing budgets, co-ordinating activities, balancing accounts, helping children with education, managing help at home, nursing care etc. One formula that has been arrived at determines the value of the housewife as, Value of housewife = husband's income - wife's income + value of husband's household services, which means the wife's value will increase inversely proportionate to the extent of participation by the husband in the household duties. The Australian Family Property Law provides that while distributing properties in matrimonial matters, for instance, one has to factor in „the contribution made by a party to the marriage to the welfare of the family constituted MAC APP 590/2011 Etc. Page 12 of 32 by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent‟."

In para 13, the Division Bench of the High Court has observed and, in my view very rightly, that time has come to scientifically assess the value of the unpaid homemaker both in accident claims and in matters of division of matrimonial properties."

16. In Deepika the value of the services rendered by the housewife was again related to that of the husband. In that case the husband‟s income was found to be ` 5,500/- per month, its 50% i.e. ` 2750/- was taken towards domestic services in addition to ` 750/- as income from the work carried out by the wife.

17. Earlier in some cases the High Courts took 50% wages of the unskilled / skilled workers and in some cases the entire wages of a skilled worker was taken to make an attempt to arrive at a figure to compute the dependency. The Delhi High Court in Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2 Del 1, very reluctantly took the salary of a skilled worker as per the minimum wages applied in Delhi, while observing as under:-

"....Since there is no scientific method of assessing the contribution of a housewife to her household, in cases such as the present, resort should be had to the wages of a skilled worker as per the Minimum Rates of Wages in Delhi. Although, this may sound uncharitable, if not demeaning to a housewife, there is hardly any other option available in the absence of any statutory guidelines."

MAC APP 590/2011 Etc. Page 13 of 32

18. The Supreme Court in Arun Kumar Agrawal did not approve the adoption of the salary of a skilled worker to compute the loss of dependency. In this case, Hon‟ble Mr. Justice A.K. Ganguly while penning a separate concurrent judgment expressed hope that the legislature would come with some better method to arrive at the value of the services of the housewife. In para 65 of the report it was observed:-

"65. For the reasons aforesaid, while agreeing with the views of Brother Singhvi, J., I would humbly add, that time has come for the Parliament to have a rethinking for properly assessing the value of homemakers and householders‟ work and suitably amending the provisions of Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and a homemaker. Amendments in matrimonial laws may also be made in order to give effect to the mandate of Article 15(1) in the Constitution."

19. In Lata Wadhwa (supra) a number of persons including women and children died; the Supreme Court assessed the compensation while taking the value of the services rendered by a housewife between the age group of 22-59 as ` 3,000/- per month and in the case of women aged 62 years and above at `21,00/- per annum.

20. The minimum wages of a Graduate at the time of the fire accident in Lata Wadhwa (supra) as notified in the State of Delhi were just `898/-. The compensation was awarded in the year 2001 when the minimum wages of a Graduate were MAC APP 590/2011 Etc. Page 14 of 32 `3339/-, of a matriculate were `3027/- and that of a skilled worker were ` 3003/-. It is important to note that no interest on the compensation was awarded from the date of the accident till the date of the payment in Lata Wadhwa (supra). Many Tribunals and High Courts have adopted the compensation granted in case of Lata Wadhwa (supra) to be just and fair in motor accident cases, where the deceased was a house wife. But, the compensation in Lata Wadhwa was awarded because there was loss of life of so many women and children when a fire broke out while they were participating in a function organized by Tata Iron & Steel Company. It was not a statutory compensation under the Motor Vehicles Act. Moreover, difficulty also arises as on account of inflation, the wages and salaries have increased manifold. In this case, the Tribunal held that the compensation in Lata Wadhwa was awarded in the year 2001 and doubled it to ` 6,000/- to compute the loss of dependency. The Tribunal further deducted one-third of the assumed income towards the personal living expenses and computed the loss of dependency on the income of `4,000/- per month which according to the Appellant is exorbitant and excessive. No deduction was made by the Supreme Court in the assumed value of services rendered at `3,000/- per month while computing the loss of dependency.

21. The services rendered by a housewife cannot be counted;

cooking, washing, ironing clothes and stitching clothes (in some MAC APP 590/2011 Etc. Page 15 of 32 cases) for the husband and children, teaching and guiding children, working as a nurse whenever the husband or the child/children are sick, are some of the major activities of a housewife. She has no fixed hours of work; she is always in attendance to take care of each and every need of the whole family at the cost of her personal comfort and health. The services rendered by a housewife may differ from case to case considering her qualification, financial strata and the social status of the family to which she belongs.

22. The Claimants, therefore, must lead evidence to prove the services rendered by a non working female. In the absence of any evidence to the contrary, the value of the services, if I may say so, has to have some relation to the educational qualification of the deceased.

23. Thus, the value of services rendered by a home maker should be taken as the minimum salary of a non-matriculate, matriculate or a Graduate, (in the absence of any evidence to the contrary). In case of a young mother and a wife there should be an addition of 25% of the minimum salary/wages as per the educational qualification i.e. Graduate, matriculate or non- matriculate. There should be addition of 15% in the case of a middle aged mother and a wife and „NIL‟ in case of a wife and a mother beyond the age of 50 years as the children become independent by that time. The value of gratuitous services rendered should be gradually reduced after the age of 55 years, MAC APP 590/2011 Etc. Page 16 of 32 even though mothers take care of their children (irrespective of their ages) and even when they (the children) are married.

24. The next question that falls for consideration is whether there should be any deduction towards the personal living expenses of the deceased (Home maker). While awarding damages there is balancing of the loss to the Claimants of the pecuniary benefits with the gain of the pecuniary advantages which comes to them by reason of death. In Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors., AIR 1962 SC 1, it was observed as under:-

".... The general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately."

25. In A. Rajam v. M. Manikya Reddy & Anr., MANU/AP/0303/1988, the Hon‟ble Mr. Justice M.J. Rao ( as he then was) referred to a number of English decisions.

26. In Morris v. Rigby (1966) 110 Sol Jo 834, the husband who was a medical officer, earning £ 2,820 a year, claimed damages for the death of his wife. He had five children aged two to fifteen years. He got his wife's sister to come and take care of them and MAC APP 590/2011 Etc. Page 17 of 32 do the domestic duties, paying her a gross wage of £ 20 a week. The judge awarded £ 8,000 and the award was confirmed.

27. The Learned Judge further referred to Regan v. Williamson 1977 ACJ 331 (QBD England) where the housekeeper employed was a relative. There, the wife was 37 years when she died and she left behind her husband and four sons aged 13, 10, 7 and 2 years respectively. A relative came daily (except weekends) to provide meals and to look after the boys. She was paid £ 16 per week and it cost the Plaintiff further £ 6.50 per week for her food, journeys to and from her home and for national insurance stamp. The Plaintiff estimated that his wife's loss had cost him £ 10 per week to cloth and feed his children and himself. Watkins, J. held that though, according to precedents, £22.50 (£ 16+6.50) per week minus £ 10 per week, would be sufficient as justice required that the term 'services' should be widely construed. Watkins, J. observed:-

"I am, with due respect to the other Judges to whom I have been referred, of the view that the word 'services' has been too narrowly construed. It should, at least, include an acknowledgement that a wife and mother does not work to set hours and, still less, to rule. She is in constant attendance, save for those hours when she is, if that is a fact, at work. During some of those hours she may well give the children instructions on essential matters to do with their upbringing and, possibly, with such things as their home work. This sort of attention seems to be as much a service, and MAC APP 590/2011 Etc. Page 18 of 32 probably more valuable to them, than the other kinds of service conventionally so regarded."

.. and hastened to add:- "am aware that there are good mothers and bad mothers. It so happens that I am concerned in the present case with a woman who was a good wife and mother". On the basis, the figure for dependency was raised from £ 12.50 (£ 22.50 -10.0) per week to £ 20 per week and a further sum of £ 1.50 was added for the deceased's financial contribution to the home, had she eventually gone out to work again. A multiplier of 11 was applied as the Plaintiff was 43 years. The award under the Fatal Accidents Act, was £ 1238.

28. Learned Judge further referred to Mehmet v. Perry 1978 ACJ 112 (QBD, England), wherein the husband had to look after five children aged 14, 11, 7, 6 and 3 years respectively. The two youngest children suffered from a serious hereditary blood disease requiring medication and frequent visits to the hospital. Consequently, the husband had to give up his employment after his wife's death and devoted his full time to care for the family. Between September, 1973 when his wife was killed and the trial that was conducted in October, 1976, his net average loss of earnings were £ 1,500 a year. His future net loss would be at the rate of £ 2,000 a year. It was held by Brain Neill, QC (sitting as a deputy Judge) that, in view of the medical evidence concerning the health of the children his giving up of his job was proper and that damages should be assessed not at the cost MAC APP 590/2011 Etc. Page 19 of 32 of employing a housekeeper but by reference to the Plaintiff's loss of wages, since the loss of wages represented the cost of providing the services of a full time housekeeper in substitution for his wife. In addition, the children were entitled, on the basis of Regan v. Williamson 1977 ACJ 331 (QBD, England), to get £ 1,500 as part of their damages, a sum of £ 1,000 for the loss of 'personal attention' to them by a 'mother' which is distinct from her services as a housekeeper but, that sum must be kept within modest limits as the Plaintiff was at home all the time. The Plaintiff as a husband was also held to be entitled to some damages for his loss 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 housekeeping services. The last two children require to support for 12 years, as per medical advice. A multiplier of 8 was adopted for the family as a unit and 12 for the Plaintiff and a sum of £ 19,000 was arrived at.

29. While awarding compensation for loss of gratuitous services rendered by a homemaker the Claims Tribunals or the Court simply value the services. It goes without saying that the husband looks after the wife and some amount is definitely spent on her maintenance. But, whether that amount is liable to be deducted from the value of the gratuitous services rendered by her?

30. As held in Gobald Motor Service Ltd. and Helen C. Rebello that while estimating damages, the pecuniary loss has to be arrived MAC APP 590/2011 Etc. Page 20 of 32 at by balancing on the one hand the loss to the Claimants of the future pecuniary benefits that would have accrued to him with the gain of the pecuniary advantages which comes to him from whatever sources by reason of the death.

31. In, Regan v. Williamson, the learned Judge found that the expenditure on the deceased housewife was £10 per week. While the value of gratuitous services rendered by her was £ 22.50 per week. The figure on dependency of £ 12.50 (£ 22.50 - £ 10.0) was taken as £21.50 per week. Thus, the amount spent on personal living expenditure was not really deducted in Regan v. Williamson.

32. Even on the basis of Gobald Motor Service Ltd. and Helen C. Rebello, the pecuniary advantages which the Claimant gets on account of accidental death is only liable to be deducted. The amount of money paid on account of death by the Life Insurance Corporation was held to be not deductable in Helen C. Rebello.

33. Thus, if a deceased housewife who lost her life in a motor accident would have died a natural death, the pecuniary advantage on account of savings made of the expenditure required for her maintenance would have otherwise also accrued to the benefit of the Claimants. Since this pecuniary advantage does not become receivable only on account of accidental death, in my view, the portion of the husband‟s MAC APP 590/2011 Etc. Page 21 of 32 income (spent on the deceased‟s maintenance) cannot be deducted.

34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:-

(i) Minimum salary of a Graduate where she is a Graduate.

(ii) Minimum salary of a Matriculate where she is a Matriculate.

(iii) Minimum salary of a non-Matriculate in other cases.

(iv) There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years;

there will not be any addition in the assumed salary where the age is more than 50 years.

(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.

MAC APP 590/2011 Etc. Page 22 of 32

(vi) If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband‟s re-marriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.

(vii) There shall not be any deduction towards the personal and living expenses.

(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto ` 25,000/- (on present scale of the money value) towards loss of love and affection and ` 10,000/- towards loss of consortium, if the husband is alive, may be awarded.

(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate.

35. Turning to the facts of this case; the accident took place on 04.11.2009. As per the certificate proved during the inquiry before the Tribunal, the deceased Jasvinder Kaur was a non- matriculate. The minimum wages of a non-matriculate on the date of the accident were `4146/-. She was about 34 years of age. She was rendering gratuitous services towards her husband and three children. The husband also lost his life in this very accident.

MAC APP 590/2011 Etc. Page 23 of 32

36. On the basis of the principles laid down earlier, after an addition of 25% in the wages/salary of a non-Matriculate and on applying the multiplier of „16‟, the loss of dependency works out as ` 9,95,040/-. After adding notional sums of `25,000/- towards loss of love and affection; and `5,000/- towards funeral expenses, the overall compensation comes to ` 10,25,040/-.

37. Although the compensation of `8,50,000/- awarded by the Tribunal is less than the compensation which works out based on the principles carved out above, in the absence of any Cross Objections or Cross Appeal by the Respondents Claimants, the award of ` 8,50,000/- needs no interference.

38. MAC APP. 590/2011 is accordingly dismissed. No costs.

39. Pending applications also stand disposed of.

MAC.APP. 563/2010

40. In this Appeal the Appellant Oriental Insurance Company Limited challenges the award of compensation of ` 11,65,000/- for the death of deceased Urmila @ Dulari. She was aged about 31 years. The Respondents Claimants claimed that apart from household work and taking care of her five children, she was also doing tailoring work.

41. In the absence of any reliable evidence with regard to the tailoring work which was being carried on by the deceased, the value of the gratuitous services rendered by the deceased was taken as `6,000/- per month and on applying the multiplier of MAC APP 590/2011 Etc. Page 24 of 32 „15‟, the loss of dependency was worked out as `10,80,000/-. After adding notional sums under pecuniary and non-pecuniary heads, an overall compensation of ` 11,65,000/- was awarded.

42. No evidence was produced as to the qualification of the deceased. Therefore, the minimum wages of a non-Matriculate will be taken which were ` 4146/- per month on the date of the accident.

43. On the principles culled out in the earlier portion of this judgment, the loss of dependency works out as `9,95,040/- (` 4146/- + 25% x 12 x 16). After adding notional sums of ` 25,000/- towards loss of love and affection, `10,000/- towards loss of consortium, and ` 5,000/- towards funeral expenses, the overall compensation comes to ` 10,35,040/-.

44. The overall compensation is reduced from `11,65,000/- to ` ` 10,35,040/-, which shall be paid to the Respondents No.1 to 6 in terms of the Tribunal‟s award alongwith the interest @ 7.5% per annum to be paid from the date of the filing of the petition till the date of payment.

45. MAC.APP. 563/2010 is allowed in above terms. No costs.

46. Pending applications also stand disposed of.

MAC APP 590/2011 Etc. Page 25 of 32 MAC.APP. 753/2011

47. This Appeal relates to the death of Ramwati, who was aged about 40 years at the time of the accident. It was claimed that the deceased apart from doing household work was doing sewing work at her home and earned ` 4,000/- per month.

48. In the absence of any reliable evidence, the Tribunal took guidance from the judgment of the Supreme Court in Lata Wadhwa (supra) and computed the loss of dependency as `3,60,000/-. The overall compensation of `4,10,000/- was awarded.

49. The Appellants did not produce any documentary evidence either with regard to the deceased doing any work of sewing or tailoring or with respect to her qualification. The compensation has to be computed on the basis of salary of a non-Matriculate according to the principles culled out in the earlier part of the judgment. The minimum wages of a non-matriculate on the date of the accident were `4127/-.

50. The loss of dependency is re-assessed as ` 9,28,575/- (4127/- + 25% x 12 x 15). After adding notional sums of `25,000/- towards loss of love and affection, instead of `30,000/- (as granted by the Tribunal), and `10,000/- towards funeral expenses, the overall compensation comes to ` 9,63,575/-.

MAC APP 590/2011 Etc. Page 26 of 32

51. The overall compensation is thus enhanced from `4,10,000/- to `9,63,575/-. Respondent No.3 United India Insurance Company Limited is directed to deposit the enhanced amount within 30 days.

52. The compensation awarded shall carry interest @ 7.5% per annum from the date of the filing of the petition till the date of payment and shall be paid to the Appellants No.1 to 3 in the same proportion as given by the Tribunal.

53. MAC.APP. 753/2011 is allowed in above terms. No costs.

54. Pending applications also stand disposed of.

MAC.APP. 772/2011

55. In this Appeal, deceased Sabita Devi died leaving behind, her husband, one major son, three minor sons and one minor daughter.

56. On the basis of Lata Wadhwa (supra), the Tribunal took the value of gratuitous services as ` 3000/- per month and awarded a sum of `5,76,000/- towards the loss of dependency. After adding notional sums under various conventional heads, an overall compensation of `6,41,000/- was granted. (There is a clerical mistake in mentioning the total sum of ` 6,86,000/- by the Tribunal).

MAC APP 590/2011 Etc. Page 27 of 32

57. There is no documentary evidence with regard to the deceased‟s educational qualification. Her age as per the Identity Card issued by the Election Commission of India was 33½ years on the date of the accident.

58. The Insurance Company represented the deceased‟s age to be 37 years. Since deceased left behind a major son, I am not inclined to take her age as 33½ years. I would assume her age to be between 35 to 40 years (at least 35 years) for the purpose of selection of the multiplier.

59. On the basis of the principles laid down earlier, after an addition of 25% in the wages/salary of a non-Matriculate, which were `5850/- on the date of the accident and on applying the multiplier of „15‟, the loss of dependency works out as ` 13,16,250/-. After adding notional sums of `25,000/- towards loss of love and affection, `10,000/- towards loss of consortium and `5,000/- towards funeral expenses, the overall compensation comes to ` 13,56,250/-.

60. The overall compensation is enhanced from ` 6,41,000/- to ` 13,56,250/-. Respondent No.3 United India Insurance Company Limited is directed to deposit the enhanced amount within 30 days along with the interest.

61. The compensation awarded shall carry interest @ 7.5% per annum from the date of the order of the Tribunal till the date of payment.

MAC APP 590/2011 Etc. Page 28 of 32

62. The compensation awarded shall be paid to the Appellants No.1 to 6 in terms of the Tribunal‟s award.

63. MAC APP. 772/2011 is allowed in above terms. No costs.

MAC.APP. 857/2011

64. This Appeal is for enhancement of compensation of ` 4,68,300/-

awarded by the Claims Tribunal for the death of Dayawati who was aged about 40 years (as per the Ration Card Ex.PW-1/2) on the date of the death on 19.05.2010. She left behind, her husband and five children. Out of the five children, three were minor. There is no Cross Appeal by the Insurance Company.

65. There is no documentary evidence with regard to the deceased‟s educational qualification. Her age as per the Ration Card, as stated earlier, was 40 years on the date of the accident.

66. On the basis of the principles laid down earlier, after an addition of 25% in the wages/salary of a non-Matriculate, which were `5850/- on the date of the accident and on applying the multiplier of „15‟, the loss of dependency works out as ` 13,16,250/-. (5850/- + 25% X 12 X 15). After adding notional sums of `25,000/- towards loss of love and affection, `10,000/- towards loss of consortium and `5,000/- towards funeral expenses, the overall compensation comes to ` 13,56,250/-.

67. The overall compensation is enhanced from `4,68,300/- to ` 13,56,250/-. Respondent No.3 ICICI Lombard Insurance MAC APP 590/2011 Etc. Page 29 of 32 Company Limited is directed to deposit the enhanced amount within 30 days along with the interest.

68. The compensation awarded shall carry interest @ 7.5% per annum from the date of the order of the Tribunal till the date of payment.

69. The compensation awarded shall be paid to the Appellants No.1 to 6 in the proportion as awarded by the Tribunal.

70. MAC APP. 857/2011 is allowed in above terms. No costs.

MAC.APP. 289/2010

71. The Appellant New India Assurance Company Limited seeks reduction of the compensation of ` 11,97,000/- awarded for the death of Madhu who was aged about 31 years on the date of the accident, which took place on 17.11.2007.

72. During inquiry before the Claims Tribunal it was claimed that the deceased was working as a Computer Editor in Ash Films, Plot No.54, First Floor, Sector-2, Rohini and was drawing a salary of ` 4,600/- per month.

73. In the absence of any cogent evidence, the same was disbelieved by the Claims Tribunal. On the basis of the judgment in Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197, where the income of the housewife for gratuitous services was estimated to be ` 3,000/- per month. The MAC APP 590/2011 Etc. Page 30 of 32 Claims Tribunal increased it by 100% on the ground of inflation as Lata Wadhwa (supra) was decided in the year 2001; selected a multiplier of „16‟, computed the loss of dependency as `11,52,000/-. The Tribunal further awarded a sum of `20,000/-

towards loss of love and affection, `10,000/- towards loss of consortium, `10,000/- towards loss of estate and `5,000/- towards funeral charges to compute the overall compensation as `11,97,000/-. There is no Appeal by the Claimants.

74. The deceased shall be considered as a Matriculate as she got a compartment in Senior Secondary School Examination. Her age was established to be 31 years as per the Marksheet Ex.PW-1/1.

75. On the basis of the principles laid down earlier, after addition of 25% in the wages of a Matriculate and on applying the multiplier of „16‟, the loss of dependency works out as ` 9,40,320/- (3918/- + 25% x 12 x 16).

76. After adding a notional sum of ` 10,000/- towards loss of consortium, `5,000/- towards funeral expenses and `25,000/- towards loss of love and affection, the overall compensation is reassessed as ` 9,80,320/-.

77. The overall compensation is reduced from ` 11,97,000/- to ` 9,80,320/-. The excess amount deposited by the Appellant Insurance Company shall be refunded along with interest earned, if any, during the pendency of the Appeal. Statutory amount of ` 25,000/- shall also be refunded to the Appellant.

MAC APP 590/2011 Etc. Page 31 of 32

78. 50% of the award amount was ordered to be released in favour of the Respondents Claimants by order dated 26.11.2000. Rest of the amount payable shall be released/held in fixed deposit in terms of the Tribunal‟s award.

79. MAC.APP. 289/2010 is allowed in above terms. No costs.

80. Pending applications also stand disposed of.

(G.P. MITTAL) JUDGE JANUARY 30, 2012 vk MAC APP 590/2011 Etc. Page 32 of 32

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