RAJENDRA SINGH AND OTHERS versus NATIONAL INSURANCE COMPANY LIMITED AND OTHERS

RAJENDRA SINGH AND OTHERS

NATIONAL INSURANCE COMPANY

LIMITED AND OTHERS

(Civil Appeal No. 2624 of 2020)

JUNE 18, 2020

[NAVIN SINHA AND B. R. GAVAI, JJ.]

Motor Vehicles Accident – Enhancement of compensation –Victims, housewife and her minor daughter, were travelling in ahorse cart, which was hit by bus resulting in their death – TheTribunal awarded total sum of Rs. 3,54,500/- for the housewifeand Rs. 1,60,000/- for the minor child – Appeal for enhancement ofcompensation dismissed by the High Court – On appeal, held:Deduction of 50% made by the Tribunal towards contributorynegligence while calculating the award is totally unjustified andunsustainable since no fault can be attributed to the deceased asthey were passengers, not the driver or the owner of the house cart– Furthermore, if the housewife had survived, her contributions tothe welfare and care of the family would have only been enhancedby time – Therefore, Appellants entitled to future prospects at therate of 40% in addition to the loss of consortium and future expensesalready granted – Thus, total compensation for housewife enhancedto Rs. 11,96,000/- – Insofar as minor child is concerned, in theentirety of the facts and circumstances of the case compensationenhanced to Rs. 2,95,000/-

Disposing of the appeals, the Court

HELD: 1. No evidence has been led by the appellant withregard to any income of the first deceased from dairy business.The deceased were travelling in horse cart along with others toa religious congregation. It is not the case of the respondentsthat the first deceased was driving the horse cart or was the ownerof the same, much less that it was being driven under hersupervision. The deceased were travelling as passengers alongwith others. The fact that the horse cart may have been in middleof the road at the time of the accident, no fault can be attributed

CDE

Ato the deceased holding them liable to contributory negligenceand denial of full compensation. This Court fails to understandhow the deceased who were passengers in the horse cart can beheld liable in any manner. The deduction of 50% towardscontributory negligence in both the appeals is therefore held tobe totally unjustified and unsustainable. The finding with regardBto contributory negligence against both the deceased aretherefore set aside. [Para 8][583-A-C]

2. The notional income of the first deceased-housewife istherefore held to be Rs.5000/- per month at the time of death.The compensation on that basis with deduction of 1/4[th] i.e.CRs.15,000/- towards personal expenses with multiplier of 17 isassessed at Rs.7,65,000/-. If the deceased had survived, in viewof observations in Lata Wadhwa, her skills as matured andskilled housewife in contributing to the welfare and care of thefamily and in the upbringing of the children would have only beenDenhanced by time and for which reason we hold that the appellantsshall be entitled to future prospects at the rate of 40% in additionto the loss of consortium and future expenses already granted.This Court therefore assesses the total compensation payable tothe appellants in the first appeal at Rs.11,96,000/-. [Para 11][584-F-H]E

3. The deduction on account of contributory negligence hasalready been held to be unsustainable. The determination of ajust and proper compensation to the appellants with regard tothe deceased child, in the entirety of the facts and circumstancesof the case does not persuade this Court to enhance the sameFany further from Rs.2,95,000/- by granting any furthercompensation under the separate head of “future prospects”.[Para 15][586-F-G]

Arun Kumar Agrawal v. National Insurance Co. Ltd.(2010) 9 SCC 218 : [2010] 9 SCR 303; New IndiaGAssurance Co. Ltd. v. Satender (2006) 13 SCC 60 :[2006] 8 Suppl. SCR 745 – relied on.

Kajal v. Jagdish Chand & Ors. AIR 2020 SC 776 :(2020) 4 SCC 413 – distinguished.

Lata Wadhwa v. State of Bihar (2001) 8 SCC 197 :[2001] 1 Suppl. SCR 578; R.K. Malik v. Kiran Pal (2009)14 SCC 1 : [2009] 10 SCR 87 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2624of 2020.

From the Judgment and Order dated 19.09.2017 of the High Courtof Uttarakhand at Nainital in A.F.O. No. 82 of 2015.

With

C.A. No. 2625 of 2020

Yunus Malik, Anish Maheshwari, Aman Malik, Samir Malik, SanjayKumar Dubey, Ms. Shuchi Singh, Krishna Kant Dubey, and GautamDas, Advs. for the appearing parties.

The Judgment of the Court was delivered by

NAVIN SINHA, J.

1. Leave granted.

2. The High Court by the impugned order dismissed two appealsarising from separate orders of the Motor Accident Claims Tribunal(hereinafter referred to as ‘the Tribunal’) deciding two accidentcompensation claims. The appellants had claimed further enhancementof compensation.

3. The deceased in the first appeal was housewife aged about30 years. The second deceased was her daughter aged about 12 years.The claimants are the husband/father of the deceased and three minorsiblings. The two deceased on 25.12.2012 were travelling in horse cartalong with some others to religious congregation. The horse cart washit by bus resulting in their death. The Tribunal assessed the notional

Aincome of the first deceased at Rs.36,000/- per annum and after 1/4[th]deduction towards personal expenses, with multiplier of 17 awarded acompensation of Rs.4,59,000/-. The Tribunal then deducted 50% onground of contributory negligence as the horse cart was stated to havebeen in the middle of the road when the accident took place. sum ofRs.1,00,000/- was then added as loss of consortium and Rs.25,000/-Btowards funeral expenses leading to an award total of Rs.3,54,500/-with interest at the rate of 7.5%.

4. In so far as the minor child is concerned, the notional incomewas assessed at Rs.36,000/- per annum, applying 50% deductiontowards personal expenses with multiplier of 15, the compensationCwas awarded at Rs.2,70,000/- out of which 50% was again deductedtowards contributory negligence. sum of Rs.25,000/- was addedtowards funeral expenses, leading to an award total of Rs.1,60,000/-with interest at the rate of 7.5%.

5. The appeal for enhancement of compensation was dismissedDby the High Court and thus the present appeals.

6. Learned counsel for the appellant submits that the notionalincome of the first deceased has been wrongly fixed ignoring her incomeof Rs.5000/- per month from dairy farm business. Nothing has beenawarded towards future prospects. With regard to the second deceasedEit was submitted that she was studying in school and her notional incomeshould have been assessed at Rs.54,000/- per year. Nothing has beenawarded towards loss of estate, loss of consortium and funeral expenses.The common submission in both the appeals was that deduction on groundof contributory negligence was unsustainable and unjustified. RelianceFwas placed on Kajal vs. Jagdish Chand & Ors., AIR 2020 SC 776, tocontend that the income of the deceased child should have been assessedat Rs.4846/- per month.

7. Learned counsel for the respondents submitted that the presentappeals do not merit interference. There is no evidence with regard toGthe claimed business income of the first deceased. The finding ofcontributory negligence merits no interference. In absence of any proofof income, the question of future prospects simply does not arise. Similarly,the second deceased was minor school going child who also had noincome and therefore the question for grant of future prospects withregard to her also does not arise.H8. We have considered the submission on behalf of the parties.No evidence has been led by the appellant with regard to any income ofthe first deceased from dairy business. The deceased were travelling ina horse cart along with others to religious congregation. It is not thecase of the respondents that the first deceased was driving the horsecart or was the owner of the same, much less that it was being drivenunder her supervision. The deceased were travelling as passengers alongwith others. The fact that the horse cart may have been in middle of theroad at the time of the accident, no fault can be attributed to the deceasedholding them liable to contributory negligence and denial of fullcompensation. We fail to understand how the deceased who werepassengers in the horse cart can be held liable in any manner. Thededuction of 50% towards contributory negligence in both the appeals istherefore held to be totally unjustified and unsustainable. The findingwith regard to contributory negligence against both the deceased aretherefore set aside.

9. The first deceased was housewife aged about 30 years. InLata Wadhwa vs. State of Bihar, (2001) 8 SCC 197, this court hadobserved that considering the multifarious services rendered byhousewives, even on modest estimation, the income of housewifebetween the age group of 34 to 59 years who were active in life shouldbe assessed at Rs 36,000 per annum. distinction was also drawn withregard to elderly ladies in the age group of 62 to 72 who would be moreadept in discharge of housewife duties by age and experience, and thevalue of services rendered by them has been taken at Rs 20,000 perannum.

10. In Arun Kumar Agrawal vs. National Insurance Co. Ltd.,(2010) 9 SCC 218, the Tribunal assessed the notional income of thehousewife at Rs.5,000/- per month, but without any rational or reasoningconcluded that she was non-earning member and reduced the same toRs.2,500/-, which was affirmed by the High Court. Disapproving thesame and restoring the assessed income, this Court observed atParagraphs 26 and 27 as follows:

“26. In India the courts have recognised that the contribution madeby the wife to the house is invaluable and cannot be computed interms of money. The gratuitous services rendered by the wifewith true love and affection to the children and her husband andmanaging the household affairs cannot be equated with the

Aservices rendered by others. wife/mother does not work by theclock. She is in the constant attendance of the family throughoutthe day and night unless she is employed and is required to attendthe employer’s work for particular hours. She takes care of allthe requirements of the husband and children including cooking offood, washing of clothes, etc. She teaches small children andBprovides invaluable guidance to them for their future life. Ahousekeeper or maidservant can do the household work, such ascooking food, washing clothes and utensils, keeping the houseclean, etc., but she can never be substitute for wife/motherwho renders selfless service to her husband and children.C

27. It is not possible to quantify any amount in lieu of the servicesrendered by the wife/mother to the family i.e. the husband andchildren. However, for the purpose of award of compensation tothe dependants, some pecuniary estimate has to be made of theservices of the housewife/mother. In that context, the termD“services” is required to be given broad meaning and must beconstrued by taking into account the loss of personal care andattention given by the deceased to her children as mother and toher husband as wife. They are entitled to adequate compensationin lieu of the loss of gratuitous services rendered by the deceased.The amount payable to the dependants cannot be diminished onEthe ground that some close relation like grandmother mayvolunteer to render some of the services to the family which thedeceased was giving earlier.”11. The notional income of the first deceased is therefore held tobe Rs.5000/- per month at the time of death. The compensation on thatFbasis with deduction of 1/4[th] i.e. Rs.15,000/- towards personal expenseswith multiplier of 17 is assessed at Rs.7,65,000/-. If the deceased hadsurvived, in view of observations in Lata Wadhwa (supra), her skills asa matured and skilled housewife in contributing to the welfare and careof the family and in the upbringing of the children would have only beenGenhanced by time and for which reason we hold that the appellants shallbe entitled to future prospects at the rate of 40% in addition to the loss ofconsortium and future expenses already granted. We therefore assessthe total compensation payable to the appellants in the first appeal atRs.11,96,000/-.

12. The second deceased was school going child aged about 12years. She had whole future to look forward in life with all normalhuman aspirations. She died prematurely due to the accident at verytender age for no fault of hers even before she could start to understandthe beauty and joys of life with all its ups and downs. The loss of ahuman life untimely at childhood can never be measured in terms of lossof earning or monetary loss alone. The emotional attachments involvedto the loss of the child can have devastating effect on the family whichneeds to be visualised and understood. Grant of non-pecuniary damagesfor the wrong done by awarding compensation for loss of expectation inlife is therefore called for. Undoubtedly the injury inflicted by deprivationof the life of the child is very difficult to quantify. The future also aboundswith uncertainties. Therefore, the courts have used the expression “justcompensation” to get over the difficulties in quantifying the figure toensure consistency and uniformity in awarding compensation. Thisdetermination shall not depend upon financial position of the victim orthe claimant but rather on the capacity and ability of the deceased toprovide happiness in life to the claimants had she remained alive. Thecompensation is for loss of prospective happiness which the claimantwould have enjoyed had the child not died at the tender age. Since thechild was studying in school and opportunities in life would undoubtedlyabound for her as the years would have rolled by, compensation mustalso be granted with regard to future prospects. It can safely be presumedthat education would have only led to her better growth and maturitywith better prospects and bright future for which compensation needsto be granted under non-pecuniary damages. (See R.K. Malik vs. KiranPal, (2009) 14 SCC 1).

13. The income of the minor girl child is incapable of precisefixation. We find no reason to interfere with the assessed notional incomeof the second deceased. In R.K. Malik vs. Kiran Pal, (2009) 14 SCC1, considering grant of future prospects for the deceased child agedabout 10 years it was observed as follows:

“32. forceful submission has been made by the learned counselappearing for the appellant claimants that both the Tribunal aswell as the High Court failed to consider the claims of theappellants with regard to the future prospects of the children. Ithas been submitted that the evidence with regard to the same hasbeen ignored by the courts below.

A33. On perusal of the evidence on record, we find merit in suchsubmission that the courts below have overlooked that aspect ofthe matter while granting compensation. It is well-settled legalprinciple that in addition to awarding compensation for pecuniarylosses, compensation must also be granted with regard to the futureprospects of the children. It is incumbent upon the courts toBconsider the said aspect while awarding compensation…”

14. In New India Assurance Co. Ltd. vs. Satender, (2006) 13SCC 60, the deceased victim of the accident was nine year old schoolgoing child. Considering the claim for loss of future prospects in absenceof regular income, it was observed that the compensation so determinedChad to be just and proper by judicious approach and not fixed arbitrarilyor whimsically. The uncertainties of young life were noticed in thefollowing terms:-

“12. In cases of young children of tender age, in view ofuncertainties abound, neither their income at the time of death norDthe prospects of the future increase in their income nor chancesof advancement of their career are capable of properdetermination on estimated basis. The reason is that at such anearly age, the uncertainties in regard to their academic pursuits,achievements in career and thereafter advancement in life are soEmany that nothing can be assumed with reasonable certainty.Therefore, neither the income of the deceased child is capable ofassessment on estimated basis nor the financial loss suffered bythe parents is capable of mathematical computation.”

15. The deduction on account of contributory negligence hasFalready been held by us to be unsustainable. The determination of justand proper compensation to the appellants with regard to the deceasedchild, in the entirety of the facts and circumstances of the case does notpersuade us to enhance the same any further from Rs.2,95,000/- bygranting any further compensation under the separate head of “futureprospects”. It may only be noticed that R.K. Malik (supra) does notGconsider Satender (supra) on the grant of future prospects as far aschildren are concerned.

16. Kajal (supra) is distinguishable on its own facts. The victimof the accident was nine month old child, whose disability certificatereflected that she would grow up to be an adult lying on the bed with allHthe physical and biological attributes of woman on attaining adulthood,

but her mind would remain of nine month old child because of theaccident. The case is completely distinguishable on its own facts and didnot arise out of death claim, leading to award of compensation towardsexpenses for frequent treatment, hospitalization, transportation, loss offuture earnings, attendant charges, pain, suffering, loss of amenities, lossof marriage prospects and future medical treatment etc.

17. The Civil Appeal arising out of SLP (C) No. 13964 of 2018 isallowed and the Civil Appeal arising out of SLP (C) No. 16261 of 2018is allowed to the extent indicated only.

Ankit Gyan

Appeals disposed of.