JITENDRA KHIMSHANKAR TRIVEDI & ORS. Vs. KASAM DAUD KUMBHAR & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1415 of 2015, Judgment Date: Feb 03, 2015
-
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. -
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. -
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".
-
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.
-
In the result, impugned judgment of the High Court is modified and the appeal is partly allowed in the above terms.
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