Madras High Court
National Insurance Co. Ltd vs Minor Deepika on 27 April, 2009
Author: Prabha Sridevan
Bench: Prabha Sridevan, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2009
CORAM:
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN
AND
THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM
Civil Miscellaneous Appeal Nos.3049, 3050
and 3775 of 2004 and 605 of 2007
National Insurance Co. Ltd. .. Appellant in CMA.Nos.3049 &
66, Greams Road, Chennai-6. 3050/04 & 2nd Respondent in
CMA Nos.3775/04 & 605/07.
vs.
1. Minor Deepika
.. rep. by her guardian and
next friend Ranganathan
2. Ranganathan .. Respondents 1 to 3 in CMA Nos.
3. Rajeswari 3049 & 3050/04 & appellants
in CMA Nos.3775/04 & 605/07.
4. S.John Antony (given up) .. 4th res. in CMA.Nos.3049 &
3050/04 & 1st res. in CMA Nos.
3775/04 & 605/07.
Appeals under Section 173 of of the Motor Vehicles Act, against the award and decree dated 11.09.2003 passed in M.C.O.P.Nos.1438 and 1439 of 2000 on the file of the Motor Accidents Claims Tribunal (Chief Judge, Court of Small Causes), Chennai.
CMA.No.3049/2004:
For Appellant : Mr.N.Vijayaraghavan
For Respondents1to3 : Mr.K.Sivakumar for
Mr.J.Mahalingam
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J U D G M E N T
(Judgment of the Court was delivered by PRABHA SRIDEVAN,J.) Minor Deepika lost both her parents in the accident that took place on 26.03.1999. She made claims for compensation for the death of her father as well as her mother by filing M.C.O.P.Nos.1438 and 1439 of 2000. The Tribunal had awarded Rs.11,10,576/- as compensation in M.C.O.P.No.1438/2000 and Rs.6,52,000/- in M.C.O.P.No.1439/2000.
2. The learned counsel for the appellant-Insurance Company submitted that the compensation was claimed on the ground that the father and mother of the claimant was running a partnership company under the name and style of "R.R. Agencies", but no proof of partnership was filed and the Tribunal had arbitrarily adopted Rs.5,500/- as the monthly income for the deceased-father. Learned counsel also submitted that when the claimant was receiving compensation on account of the death of her father, the loss of dependency arising out of her mother may have to be reduced.
3. Learned counsel for the cross objectors/claimants submitted that the deceased-father was a B.Com Graduate and he was running a partnership company. Employees were examined to show the existence of the business and in fact two employees P.Ws.3 and 4 gave evidence that they earned Rs.2,000/- and Rs.1,500/- per month respectively. Therefore, it was proved that the father of the claimant Deepika was running business in which he was employing several people and paying them salary. Therefore, even fixation of Rs.8,000/- as the monthly income is very low according to the learned counsel for the cross objectors.
4. We are able to appreciate the logic of the submission made by the learned counsel for the claimants bearing in mind the evidence of P.Ws.3 and 4 and at the same time, we are able unable to ignore the fact that there was no proof of partnership, no vouchers, no income-tax particulars or bank account. It is in these circumstances and considering oral and documentary evidence Ex.P5, the Tribunal had fixed Rs.5,500/- as the monthly income though P.W.1 had stated that the deceased was earning Rs.8,000/- per month, deducted Rs.1,500/- towards personal expenses and multiplied by 12 to arrive at annual income and again by 17, which is the proper multiplier.
5. In the absence of any evidence, it is not possible for us to enhance the compensation. At the same time, we are able to understand the reseasoning of the Tribunal from Ex.P5 and the evidence of P.Ws.3 and 4 to arrive at the monthly income of the deceased. In these circumstances, we do not want to interfere with the compensation made by the Tribunal in M.C.O.P.No.1438 of 2000. Thus, the following award of the Tribunal is confirmed.
Loss of pecuniary benefits : Rs. 8,16,000/-
Loss of estate : Rs. 20,000/- Loss of expectation of life : Rs. 15,000/- Loss of love & affection : Rs. 15,000/- Medical expenses : Rs. 2,09,576/- Pain & suffering : Rs. 25,000/- Funeral expenses : Rs. 10,000/- ------------------- Rs.11,10,576/- ===========
6. As regards the claim made for compensation for the death of the mother Uma Gajalakshmi, we are unable to apprehend the submission made on behalf of the Insurance Company that because the father died in the same accident, the child should be deprived of the compensation that she is justly and reasonably entitled to the death of her mother. The tort-feasor cannot take advantage of the fact that both the parents got wipe of in the same accident and each claim is a separate claim. On that ground, the Insurance Company's liability cannot be reduced. Each claim has to be dealt with independently and on its own merits.
7. There was no evidence that the deceased-mother was also a partner in the firm. Therefore, the Tribunal relying on Lata Wadhwa and Others v. State of Bihar and Others (2001 ACJ 1735), where the Supreme Court held that notional income of Rs.3,000/- should be awarded for house wives, fixed Rs.3,500/- as monthly income. The monetary quantification of the work done by the women at home is something that has not been really assessed.
8. General Recommendation No.17 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) deals with measurement and quantification of the unremunerated domestic activities of women and their recognition in the Gross National Product. It affirmed that the measurement and quantification of the unremunerated domestic activities of women which contribute to development in each country will help to reveal the de facto economic role of women and it recommended that States-Parties should inter alia encourage and support research to evaluate the unremunerated domestic activities of women and to quantify and to include this in the Gross National Product. It is recognised that most of the unpaid work around the world is performed by women.
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. Really, this is a digression from perhaps the main issue that we have to decide, but we felt that this is a particularly tragic and unique case where the child has lost both her parents and may perhaps be the appropriate one where we should express some view on how to quantify the labour of an unpaid homemaker in this case, the mother.
10. The Second Schedule to the Motor Vehicles Act gives a value to the compensation payable in respect of those who had no income prior to the accident and for a spouse, it says that one-third of the income of the earning surviving spouse should be the value. Exploration on the internet shows that there have been efforts to understand the value of a homemaker's unpaid labour by different methods. One is, the 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.
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 by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent".
12. If we look at some of the rulings of the CEDAW with regard to complaints made to it, we find the high prevelance of the stereotypical attitudes with regard to the role of women that constitutes a serious impediment to the full implementation of the said Convention. One cannot ignore or forget that the homemaker, by applying herself to the tasks at home, liberates her spouse to devote his energy and time and attention to tasks that augment his income and generate property for the family. In fact, the National Organisation for Women, USA has adopted the proposal for recommendation of economic rights for homemakers, which includes giving of a value to the goods and services produced and provided by the homemaker in the Gross National Product.
13. We have dealt with this in detail only because we are of the opinion that while the income of the spouse may be generally adopted as per the Second Schedule, the time has come to scientifically assess the value of the unpaid homemaker both in accident claims and in division of matrimonial property.
14. Therefore, even assuming that there was no documentary evidence in the present case to show that the deceased Uma Gajalakshmi was working as a partner, we will accept the evidence of her father-in-law (P.W.1) that she was assisting her husband at work and taking into account the notional income of a house wife, we confirm the monthly income of Rs.3,500/- fixed by the Tribunal. This can be justified by adopting the partnership method and assessing her salary at half her husband's salary, which would be Rs.2,750/- and notionally adding Rs.750/- to the value of her support to her husband at work. While quantifying the pecuniary loss, we normally deduct some amount towards personal expenses. But in this peculiar case, where the child had lost both her parents and has to be taken care of by the ageing grandparents, we will not deduct any amount towards personal expenses and we will take the entire sum of Rs.3,500/- as the loss suffered by the minor Deepika because she has lost her mother. We will multiply this by 12 to get the annual income and again by 17, which is the proper multiplier. Then we will get Rs.7,14,000/-. The amounts awarded viz., Rs.20,000/-, Rs.10,000/- and Rs.10,000/- under the heads of loss of love and affection, loss of expectation of life and funeral expenses, remain unchanged. Therefore, the total compensation comes to Rs.7,54,000/- which is rounded off to Rs.7,60,000/-.
15. As regards apportionment, the Tribunal had given some amount to the grand parents of the minor Deepika. Since the minor is the only legal heir, who is entitled to get entire compensation awarded in both the cases, her grand parents viz., respondents 2 and 3 in CMA No.3049/2004 are not entitled to any share in the enhanced amount.
16. The appellant-Insurance Company had deposited Rs.25,000/- only in each of the cases. They shall calculate the compensation with interest as above and deposit the balance amount within eight weeks from the date of receipt of a copy of this order. On such deposit, the entire amount shall be invested in a nationalised bank in a fixed deposit, to be renewed during the period of minority and the second respondent viz., Ranganathan is entitled to withdraw the interest accrued thereon once in six months.
17. C.M.A. Nos.3049, 3050 and 3775 of 2004 are dismissed and C.M.A. No.605 of 2007 is partly allowed. No costs.
ATR/ab To The Registrar Court of Small Causes Chennai