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Wednesday, February 4, 2015

Household work performed by women throughout India is more than US $612.8 billion per year (Evangelical Social Action Forum and Health Bridge, p. 17). In order to award just and reasonable compensation income of the deceased is taken as Rs.3000/- per month. Deducting 1/3rd for personal expenses contribution of the deceased and the family is calculated at Rs.2,000/- per month. At the time of her death deceased Jayvantiben was aged about 22 years, proper multiplier to be adopted is 18. Adopting multiplier of 18, total loss of dependency is calculated at Rs.4,32,000/- (Rs.2000 x 12 x 18). With respect to the award of compensation under conventional heads, tribunal has awarded Rs.5,000/- towards loss of estate and Rs.3,000/- towards funeral expenses totaling Rs.8,000/-. The High Court has awarded conventional damages of Rs.15,000/- i.e. Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. The courts below have not awarded any compensation towards loss of consortium and towards love and affection. In Rajesh & Ors. vs. Rajbir Singh & Ors.[6], and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors.[7], this Court has awarded substantial amount of Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of love and affection. Following the same, in the case in hand, Rs.1,00,000/- is awarded towards loss of consortium and Rs.1,00,000/- towards loss of love and affection to the minor children. Towards loss of estate and funeral expenses, award of compensation of Rs.15,000/- awarded by the High Court is maintained. Thus, the claimants are entitled to a total compensation of Rs.6,47,000/-.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1415 OF 2015
                  (Arising out of SLP (Civil) No.4969/2014)

JITENDRA KHIMSHANKAR TRIVEDI & ORS.        ..Appellants

                                   Versus

KASAM DAUD KUMBHAR & ORS.                   ..Respondents


                               J U D G M E N T

R. BANUMATHI, J.

            Delay condoned.   Leave granted.
2.          Being dissatisfied with the quantum of compensation  awarded  by
the High Court of Gujarat in First Appeal No. 4021 of 1998 dated  16.1.2012,
the claimants have filed this appeal   seeking enhancement  of  compensation
on account of death of    Smt.  Jayvantiben  Jitendra  Trivedi  in  a  motor
accident on 21.9.1990.
3.          Undisputed facts emerging from this case can be  briefly  stated
as under:-   On  21.9.1990  respondent  No.1  while  driving  tempo  bearing
registration No. GQY-4701 in a rash and negligent manner  lost  the  control
over  it  and  hit  Smt.  Jayvantiben  Jitendra   Trivedi   (deceased)   who
subsequently succumbed to injuries.    Appellant  No.1  is  the  husband  of
deceased and appellant Nos. 2 to  5  are  husband's  sisters,  daughter  and
father-in-law respectively of the  deceased  Jayvantiben.   Claimants  filed
claim petition before the Motor  Accidents  Claims  Tribunal,  Bhuj-Kachchh,
Gujarat, interalia,  claiming compensation  under  different  heads  to  the
tune of  Rs.2,96,480/- along with interest at the rate of 18  per  cent  per
annum.  The appellants averred in the claim petition that the  deceased  was
a housewife at the time of accident and was aged  22 years and that she  was
doing embroidery and knitting work and was earning Rs.900/- per  month  from
the said work and was maintaining her family.  Respondents No. 1 and  2  did
not  enter  into  defence.   Respondent  No.3-Insurance  Company  has  filed
counter  statement  denying  averments  made  in  the  claim  petition   and
contended that the compensation claimed is on the higher side.
4.           After  considering  the  oral  and  documentary  evidence,  the
tribunal came to the conclusion that the death of Smt. Jayvantiben  Jitendra
Trivedi was caused due to the  rash  and  negligent  driving  of  respondent
No.1.  Based on the oral  testimony  of  witnesses,  tribunal  came  to  the
conclusion that deceased was earning Rs.900/- per month.  Relying  upon  the
decision in General Manager, Kerala S.R.T.C. vs. Susamma Thomas  &  Ors.[1],
the tribunal assessed the income of the deceased at  Rs.1,500/-  per  month.
After deducting 1/3rd for personal expenses and  after  adopting  multiplier
of 18, tribunal has calculated the  loss  of  dependency  at  Rs.2,16,000/-.
Adding conventional damages Rs.8,000/-,  vide  award  dated  30.4.1998,  the
tribunal awarded total compensation of Rs.2,24,000/- with  interest  at  the
rate of 15 per cent per annum.
5.          Being aggrieved by the award of the tribunal, respondents  filed
appeal being First Appeal  No.4021/1998  under  Section  171  of  the  Motor
Vehicles Act 1988 before the High  Court  of  Gujarat  at  Ahmedabad.   Vide
impugned judgment dated 16.1.2012, the High Court partly allowed the  appeal
taking the income of the deceased at  Rs.1,350/-  per  month  and  deducting
1/3rd for personal expenses, the High Court  held  that  the  claimants  are
entitled to compensation of   Rs.2,09,400/-   along  with  interest  at  the
rate of 12 per cent per annum from the date of filing of the claim  petition
till the date of realization.
6.          Learned counsel for the claimants submitted that the  owner  has
neither filed written statement nor contested the claim petition before  the
tribunal and while so the insurance company cannot challenge  the  award  on
merits.  It was further submitted that the High Court did not keep  in  view
that the deceased was self-employed person apart from  being  a  home  maker
and while so, the High Court erred in reducing the compensation as  well  as
the rate of interest.
7.          Learned counsel  for  the  respondents  contended  that  in  the
absence of furnishing documentary proof  like  receipts  of  work,  accounts
books, any authenticated evidence of income no reliance  can  be  placed  on
oral testimony to prove that  the  deceased  was  earning  income  as  self-
employed at the  time  of  accident.   Further,  it  is  asserted  that  the
deceased being self-employed therefore no enhancement  in  income  could  be
lawfully granted in the light of future prospects of the deceased.
8.           Admittedly,  claimants  adduced  only  oral  testimony  of  the
witnesses to substantiate their claim that deceased  was  self-employed  and
was earning Rs.900/- per  month.   Smt.  Godavariben   Khimshankar  Trivedi-
mother-in-law and  Shri  Khimshankar  Raguram  Trivedi,  father-in-law  have
deposed to the effect that deceased at  the  time   of  accident  was  doing
tailoring, embroidery and knitting and  was  earning   Rs.900/-  per  month.
They further deposed that their daughters were also  doing the same work  as
the deceased Jayvantiben Jitendra Trivedi was then  doing  and  that   their
daughters were earning Rs.3,000/-  per  month  and  had  the  deceased  been
alive, she would have also earned Rs.3,000/- per month.
9.           The  tribunal  observed  that  in  the  district   of   Kachchh
embroidery work,  stitching  work and local traditional embroidery  work  is
doing well and had the deceased been alive she would have  earned Rs.1,500/-
 per month. Deducting 1/3rd for personal expenses  and  adopting  multiplier
of 18, tribunal has calculated  the  loss  of  dependency  at  Rs.2,16,000/-
(Rs.1000   x  12  x  18  ).   Though  in  their   cross-examination,    Smt.
Godavariben Khimshankar Trivedi  and  Khimshankar  Raguram  Trivedi  deposed
that they did not keep voucher and account books, reasoning of the  tribunal
that the embroidery and tailoring work is doing  well  in  the  district  of
Kachchh and that the deceased would have earned  not  less  than  Rs.1,500/-
per month is well merited.  It is to be pointed  out  that  the  respondents
have not adduced any evidence to prove that the deceased was not  doing  any
embroidery or tailoring work or the like.   While  so, in the light  of  the
factual findings recorded by the tribunal,  High Court was not justified  in
reducing the income of the deceased to Rs.1,350/- per month  from Rs.1,500/-
.
10.         As noticed  earlier,  tribunal  has  taken  the  income  of  the
deceased at Rs.1,500/-  whereas  the High Court  has   assessed  the  income
of the deceased at Rs.1,350/- per  month.   As  observed  by  the  tribunal,
embroidery work, stitching work and local traditional  embroidery  work  was
doing  well  in  the  district  of  Kachchh  and  there  was  good  earning.
Considering the nature of the work and the evidence of claimants' witnesses-
father-in-law  and  mother-in-law  of  the  deceased,   had   the   deceased
Jayvantiben been alive she would have earned not less  than  Rs.3,000/-  per
month.
11.          Even  assuming  Jayvantiben  Jitendra  Trivedi  was  not  self-
employed doing embroidery and tailoring work, the fact remains that she  was
a housewife and a home maker.  It is hard to   monetize  the  domestic  work
done by a house-mother.  The services of the  mother/wife  is  available  24
hours  and  her  duties  are  never  fixed.   Courts  have  recognized   the
contribution made by the wife to the house is invaluable and that it  cannot
be computed in terms of money.  A house-wife/home-maker does  not  work   by
the clock  and she is in constant  attendance of  the family throughout  and
such services rendered by the home maker has to be necessarily kept in  view
while calculating the loss  of  dependency.   Thus  even  otherwise,  taking
deceased Jayvantiben Jitendra Trivedi as the home maker,  it  is  reasonable
to  fix her income at Rs.3,000/- per month.
12.         Recognizing the services of the home  maker  and  that  domestic
services have to be recognized in terms of money,  in Arun Kumar  Agrawal  &
Anr. vs. National Insurance Company Ltd. & Ors.[2],  this Court has held  as
under:-
"The alternative to imputing money values is to measure the  time  taken  to
produce these services and compare these with the  time  that  is  taken  to
produce goods and services which are commercially viable. One has  to  admit
that in the long run, the  services  rendered  by  women  in  the  household
sustain a supply of labour to the economy and keep human societies going  by
weaving the social fabric and keeping it in good repair. If  we  take  these
services for granted and do not attach any value to this, this may  escalate
the unforeseen costs in terms of deterioration of  both  human  capabilities
and social fabric.

Household work performed by women throughout India is more  than  US  $612.8
billion per year (Evangelical Social Action  Forum  and  Health  Bridge,  p.
17). We often forget that the time spent by women in  doing  household  work
as homemakers is the time which they can devote to paid  work  or  to  their
education. This lack of sensitiveness and recognition of their  work  mainly
contributes  to  women's  high  rate  of  poverty  and  their  consequential
oppression  in  society,  as  well   as   various   physical,   social   and
psychological problems. The courts and tribunals should do  well  to  factor
these considerations  in  assessing  compensation  for  housewives  who  are
victims of road accidents and quantifying the amount in the name  of  fixing
"just compensation".


13.         The tribunal has awarded  Rs.2,24,000/-  as  against  the  same,
claimants have not filed any appeal.  As against the  award  passed  by  the
tribunal when the claimants have not filed any appeal, the  question  arises
whether the income of the  deceased  could  be  increased  and  compensation
could be enhanced.  In terms of Section 168 of the Motor Vehicles  Act,  the
courts/tribunals are to pass awards determining the amount  of  compensation
as to be fair and reasonable and  accepted  by  the  legal  standards.   The
power of the courts in awarding reasonable compensation  was  emphasized  by
this Court in Nagappa vs. Gurudayal Singh  &  Ors.[3],  Oriental   Insurance
Company Ltd. vs. Mohd. Nasir & Anr.[4],  and  Ningamma  &  Anr.  vs.  United
India Insurance Company Ltd.[5].   As  against  the   award  passed  by  the
tribunal even though the claimants  have not filed  any  appeal,  as  it  is
obligatory on the part of courts/tribunals  to  award  just  and  reasonable
compensation, it is appropriate to increase the compensation.
14.         In order to award just and  reasonable  compensation  income  of
the deceased is taken as Rs.3000/- per month.  Deducting 1/3rd for  personal
expenses contribution of the  deceased  and  the  family  is  calculated  at
Rs.2,000/- per month.  At the time of her  death  deceased  Jayvantiben  was
aged about 22 years,  proper multiplier  to  be  adopted  is  18.   Adopting
multiplier of 18, total loss of dependency is  calculated  at  Rs.4,32,000/-
(Rs.2000 x 12 x 18).  With  respect  to  the  award  of  compensation  under
conventional  heads, tribunal has awarded Rs.5,000/- towards loss of  estate
and Rs.3,000/- towards  funeral  expenses  totaling  Rs.8,000/-.   The  High
Court has awarded  conventional  damages  of  Rs.15,000/-  i.e.  Rs.10,000/-
towards loss of estate and Rs.5,000/- towards funeral expenses.  The  courts
below have not awarded any  compensation  towards  loss  of  consortium  and
towards love and affection.  In Rajesh & Ors. vs. Rajbir  Singh  &  Ors.[6],
and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan  &  Ors.[7],  this  Court  has
awarded substantial amount of Rs.1,00,000/- towards loss of  consortium  and
Rs.1,00,000/- towards loss of love and affection.  Following  the  same,  in
the case in hand, Rs.1,00,000/- is awarded towards  loss of  consortium  and
Rs.1,00,000/- towards  loss of love and affection  to  the  minor  children.
Towards loss of estate  and  funeral  expenses,  award  of  compensation  of
Rs.15,000/- awarded by the High Court  is maintained.  Thus,  the  claimants
are entitled to a total compensation of Rs.6,47,000/-.
15.         As against the award passed by  the  tribunal  even  though  the
claimants have not preferred any appeal and even though the  claimants  have
then prayed for compensation of Rs.2,96,480/-, for  doing  complete  justice
to  the  parties,   exercising  jurisdiction  under  Article  142   of   the
Constitution  of  India,  we  deem  it   appropriate   to   award   enhanced
compensation of Rs. 6,47,000/ to the claimants.
16.         In situation of this nature, for doing complete justice  to  the
parties,  this Court has always exercised  the  jurisdiction  under  Article
142 of the Constitution of India.  In  Oriental  Insurance  Company  Limited
vs. Brij Mohan and Ors.,[8]  this Court held as under:-
"13.However, Respondent 1 is a  poor  labourer.  He  had  suffered  grievous
injuries.  He  had  become  disabled  to  a  great  extent.  The  amount  of
compensation awarded in his favour appears to be on a  lower  side.  In  the
aforementioned situation, although we reject the  other  contentions  of  Ms
Indu Malhotra, we are inclined to exercise  our  extraordinary  jurisdiction
under Article 142 of the Constitution of India so  as  to  direct  that  the
award may be satisfied by the appellant but it would be entitled to  realise
the same from the owner of the tractor and the  trolley  wherefor  it  would
not be necessary for it to initiate any separate  proceedings  for  recovery
of the amount as provided for under the Motor Vehicles Act.

14. It is well settled that in a situation of  this  nature  this  Court  in
exercise of its jurisdiction under Article 142 of the Constitution of  India
read with Article 136 thereof can issue suit directions for  doing  complete
justice to the parties".

In  Deddappa  &  Ors.  vs.  Branch  Manager,  National  Insurance    Company
Limited,[9]  it was observed as under:-
"26.  However, as the appellant hails from the lowest strata of society,  we
are of the opinion that in a case of this nature, we should, in exercise  of
our extraordinary jurisdiction under Article  142  of  the  Constitution  of
India, direct Respondent 1 to pay the amount  of  claim  to  the  appellants
herein and recover the same from the owner of the  vehicle  viz.  Respondent
2, particularly in view of the fact that no appeal was preferred by him.  We
direct accordingly".

17.         The next question falling for our consideration is the  rate  of
interest to be awarded.  The tribunal has awarded interest at  the  rate  of
15 per cent which was reduced to 12 per cent by the High  Court.   The  rate
of interest awarded by both the courts is on higher side.  In Amresh  Kumari
vs. Niranjan Lal Jagdish Prasad Jain & Ors.[10] and  Mohinder  Kaur  &  Ors.
vs. Hira Nand Sindhi (Ghoriwala) and Anr.[11], this Court  has  awarded  the
compensation amount payable to the claimants with interest at the rate of  9
per cent.

18.         The compensation reduced by the High  Court  from  Rs.2,24,000/-
to Rs.2,09,400/- is enhanced to Rs.6,47,000/-. The quantum  of  compensation
claimed is Rs.2,96,480/- i.e. payable  with interest at the rate  of  9  per
cent from the date of the filing of the claim  petition  till  the  date  of
payment.  So far as the enhanced compensation of  Rs.3,50,520/-  is  payable
with interest at the rate of 9 per cent from  the  date  of  filing  of  the
special  leave  petition  till  the  date  of  realization.   The   enhanced
compensation of Rs.3,50,520/- alongwith accrued interest  shall  be  equally
divided between the appellants No.1 and 4 Jitendra Khimshankar Trivedi,  Ku.
Preeti Jitendra Trivedi (husband and daughter respectively of the  deceased-
Jayvantiben Jitendra Khimshankar) in equal share.


19.         In the result, impugned judgment of the High Court  is  modified
and the appeal  is partly allowed  in the above terms.   In  the  facts  and
circumstances of the case, we make no order to as to costs.

                                                ..........................J.
                                                                        (V.
                                Gopala Gowda)


                                                ..........................J.
                                                                        (R.
                                 Banumathi)

New Delhi;
February 3, 2015


ITEM NO.1B-For Judgment      COURT NO.12           SECTION IX

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal No(s)......../2015 arising from SLP(C)No. 4969/2014

JITENDRA KHIMSHANKAR TRIVEDI & ORS.               Appellant(s)

                                VERSUS

KASAM DAUD KUMBHAR & ORS.                        Respondent(s)

Date : 03/02/2015 This petition was called on for pronouncement of JUDGMENT
today.

For Appellant(s)
                     Mr. Abhijat P. Medh,Adv.

For Respondent(s)
                     Ms. Manjeet Chawla,Adv.


            Hon'ble Mrs. Justice R. Banumathi  pronounced  the  judgment  of
the Bench comprising Hon'ble Mr. Justice V. Gopala Gowda  and  Hon'ble  Mrs.
Justice R. Banumathi.
            Leave granted.
             The  appeal  is  partly  allowed  in  terms   of   the   signed
Reportable judgment.


    (VINOD KR.JHA)                              (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)
-----------------------
[1]   [2] (1994)  2 SCC 176
[3]   [4] (2010) 9 SCC 218
[5]   [6] (2003) 2 SCC 274
[7]   [8] (2009) 6 SCC 280
[9]   [10] (2009) 13 SCC 710
[11]  [12] (2013) 9 SCC 54
[13]  [14] (2013) 9 SCC 166
[15]  [16] (2007) 7 SCC 56
[17]  [18] (2008) 2 SCC 595
[19]  [20] (2010) ACJ 551
[21]  [22] (2007) ACJ  2123

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