National Insurance Co. Ltd v. Minor Deepika

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.04.2009CORAM:THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE T.S.SIVAGNANAMCivil Miscellaneous Appeal Nos.3049, 3050 and 3775 of 2004 and 605 of 2007National Insurance Co. Ltd... Appellant in CMA.Nos.3049 &66, Greams Road, Chennai-6. 3050/04 & 2nd Respondent in CMA Nos.3775/04 & 605/07.(2nd Respondentin MCOP.Nos.1438 & 1439/2000)vs.1. Minor Deepika .. rep. by her guardian and next friend Ranganathan2. 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.(Petitioners 1 to 3 & 1st Respondent in MCOP.NOs.1438 & 1439/2000)Appeals under Section 173 of of the Motor Vehicles Act, againstthe award and decree dated 11.09.2003 passed in M.C.O.P.Nos.1438 and1439 of 2000 on the file of the Motor Accidents Claims Tribunal(Chief Judge, Court of Small Causes), Chennai.For Appellant : Mr.N.Vijayaraghavanin CMA.Nos.3049 & 3050/042nd Respondent in CMA.Nos.3775/04, 605/07For Respondents 1 to 3 : Mr.K.Sivakumar forin CMA.Nos.3049 & 3050/04 Mr.J.MahalingamAppellants 1 to 3 in CMA.No.3775/04 & 605/07 https://hcservices.ecourts.gov.in/hcservices/ For 4th Respondent |in CMA.Nos.3049 & 3050/04||Given up1st Respondent in|CMA.Nos.3775/04 & 605/07|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 tookplace on 26.03.1999. She made claims for compensation for the deathof her father as well as her mother by filing M.C.O.P.Nos.1438 and1439 of 2000. The Tribunal had awarded Rs.11,10,576/- ascompensation in M.C.O.P.No.1438/2000 and Rs.6,52,000/- inM.C.O.P.No.1439/2000. 2. The learned counsel for the appellant-Insurance Companysubmitted that the compensation was claimed on the ground that thefather and mother of the claimant was running a partnership companyunder the name and style of "R.R. Agencies", but no proof ofpartnership was filed and the Tribunal had arbitrarily adoptedRs.5,500/- as the monthly income for the deceased-father. Learnedcounsel also submitted that when the claimant was receivingcompensation on account of the death of her father, the loss ofdependency arising out of her mother may have to be reduced. 3. Learned counsel for the cross objectors/claimants submittedthat the deceased-father was a B.Com Graduate and he was running apartnership company. Employees were examined to show the existenceof the business and in fact two employees P.Ws.3 and 4 gave evidencethat they earned Rs.2,000/- and Rs.1,500/- per month respectively.Therefore, it was proved that the father of the claimant Deepika wasrunning business in which he was employing several people and payingthem salary. Therefore, even fixation of Rs.8,000/- as the monthlyincome is very low according to the learned counsel for the crossobjectors.4. We are able to appreciate the logic of the submission made bythe learned counsel for the claimants bearing in mind the evidence ofP.Ws.3 and 4 and at the same time, we are able unable to ignore thefact that there was no proof of partnership, no vouchers, no income-tax particulars or bank account. It is in these circumstances andconsidering oral and documentary evidence Ex.P5, the Tribunal hadfixed Rs.5,500/- as the monthly income though P.W.1 had stated thatthe deceased was earning Rs.8,000/- per month, deducted Rs.1,500/-towards personal expenses and multiplied by 12 to arrive at annualincome and again by 17, which is the proper multiplier. https://hcservices.ecourts.gov.in/hcservices/

5. In the absence of any evidence, it is not possible for us toenhance the compensation. At the same time, we are able tounderstand the reseasoning of the Tribunal from Ex.P5 and theevidence of P.Ws.3 and 4 to arrive at the monthly income of thedeceased. In these circumstances, we do not want to interfere withthe 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 ofthe mother Uma Gajalakshmi, we are unable to apprehend the submissionmade on behalf of the Insurance Company that because the father diedin the same accident, the child should be deprived of thecompensation that she is justly and reasonably entitled to the deathof her mother. The tort-feasor cannot take advantage of the factthat both the parents got wipe of in the same accident and each claimis a separate claim. On that ground, the Insurance Company'sliability cannot be reduced. Each claim has to be dealt withindependently and on its own merits. 7. There was no evidence that the deceased-mother was also apartner in the firm. Therefore, the Tribunal relying on Lata Wadhwaand Others v. State of Bihar and Others (2001 ACJ 1735), where theSupreme Court held that notional income of Rs.3,000/- should beawarded for house wives, fixed Rs.3,500/- as monthly income. Themonetary quantification of the work done by the women at home issomething that has not been really assessed. 8. General Recommendation No.17 of the Convention on theElimination of All Forms of Discrimination Against Women (CEDAW)deals with measurement and quantification of the unremunerateddomestic activities of women and their recognition in the GrossNational Product. It affirmed that the measurement andquantification of the unremunerated domestic activities of womenwhich contribute to development in each country will help to revealthe de facto economic role of women and it recommended that States-Parties should inter alia encourage and support research to evaluatethe unremunerated domestic activities of women and to quantify and to https://hcservices.ecourts.gov.in/hcservices/ include this in the Gross National Product. It is recognised thatmost of the unpaid work around the world is performed by women. 9. The UNICEF in 2000, noted that "unpaid care work is thefoundation of human experience". The care work is that which is doneby a woman as a mother and definitely in India, the woman herselfwill be the last person to give this role an economic value, giventhe social concept of the role of a mother. But when we areevaluating the loss suffered by the child because her mother died inan accident, we think we must give a monetary value to the work of acaregiver, for afterall, the home is the basic unit on which ourcivilised society rests. Really, this is a digression from perhapsthe main issue that we have to decide, but we felt that this is aparticularly tragic and unique case where the child has lost both herparents and may perhaps be the appropriate one where we shouldexpress some view on how to quantify the labour of an unpaidhomemaker – in this case, the mother.10. The Second Schedule to the Motor Vehicles Act gives a valueto the compensation payable in respect of those who had no incomeprior to the accident and for a spouse, it says that one-third of theincome of the earning surviving spouse should be the value.Exploration on the internet shows that there have been efforts tounderstand the value of a homemaker's unpaid labour by differentmethods. One is, the opportunity cost which evaluates her wages byassessing what she would have earned had she not remained at home,viz., the opportunity lost. The second is, the partnership methodwhich assumes that a marriage is an equal economic partnership and inthis method, the homemaker's salary is valued at half her husband'ssalary. Yet another method is to evaluate homemaking by determininghow 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 witheducation, managing help at home, nursing care etc. One formula thathas been arrived at determines the value of the housewife as, Valueof housewife = husband's income – wife's income + value of husband'shousehold services, which means the wife's value will increaseinversely proportionate to the extent of participation by the husbandin the household duties. The Australian Family Property Law providesthat while distributing properties in matrimonial matters, forinstance, one has to factor in "the contribution made by a party tothe marriage to the welfare of the family constituted by the partiesto the marriage and any children of the marriage, including anycontribution made in the capacity of a homemaker or parent". 12. If we look at some of the rulings of the CEDAW with regardto complaints made to it, we find the high prevelance of the https://hcservices.ecourts.gov.in/hcservices/ stereotypical attitudes with regard to the role of women thatconstitutes a serious impediment to the full implementation of thesaid Convention. One cannot ignore or forget that the homemaker, byapplying herself to the tasks at home, liberates her spouse to devotehis energy and time and attention to tasks that augment his incomeand generate property for the family. In fact, the NationalOrganisation for Women, USA has adopted the proposal forrecommendation of economic rights for homemakers, which includesgiving of a value to the goods and services produced and provided bythe homemaker in the Gross National Product. 13. We have dealt with this in detail only because we are of theopinion that while the income of the spouse may be generally adoptedas per the Second Schedule, the time has come to scientificallyassess the value of the unpaid homemaker both in accident claims andin division of matrimonial property.14. Therefore, even assuming that there was no documentaryevidence in the present case to show that the deceased UmaGajalakshmi was working as a partner, we will accept the evidence ofher father-in-law (P.W.1) that she was assisting her husband at workand taking into account the notional income of a house wife, weconfirm the monthly income of Rs.3,500/- fixed by the Tribunal. Thiscan be justified by adopting the partnership method and assessing hersalary at half her husband's salary, which would be Rs.2,750/- andnotionally adding Rs.750/- to the value of her support to her husbandat work. While quantifying the pecuniary loss, we normally deductsome amount towards personal expenses. But in this peculiar case,where the child had lost both her parents and has to be taken care ofby the ageing grandparents, we will not deduct any amount towardspersonal expenses and we will take the entire sum of Rs.3,500/- asthe loss suffered by the minor Deepika because she has lost hermother. We will multiply this by 12 to get the annual income andagain by 17, which is the proper multiplier. Then we will getRs.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, lossof expectation of life and funeral expenses, remain unchanged.Therefore, the total compensation comes to Rs.7,54,000/- which isrounded off to Rs.7,60,000/-.15. As regards apportionment, the Tribunal had given some amountto the grand parents of the minor Deepika. Since the minor is theonly legal heir, who is entitled to get entire compensation awardedin both the cases, her grand parents viz., respondents 2 and 3 in CMANo.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 compensationwith interest as above and deposit the balance amount within eight https://hcservices.ecourts.gov.in/hcservices/ weeks from the date of receipt of a copy of this order. On suchdeposit, the entire amount shall be invested in a nationalised bankin a fixed deposit, to be renewed during the period of minority andthe second respondent viz., Ranganathan is entitled to withdraw theinterest accrued thereon once in six months.17. C.M.A. Nos.3049, 3050 and 3775 of 2004 are dismissed andC.M.A. No.605 of 2007 is partly allowed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarATR/abTo1. The RegistrarCourt of Small CausesChennai.2. The Section Officer,V.R.Section, High Court, Madras.4 cc To Mr.N.Vijayaraghavan, Advocate, SR.18935, 18937, 18938, 18943.4 cc To Mr.J.Mahalingam, Advocate, SR.18802, 18801, 18803, 18804.C.M.A.Nos.3049, 3050 & 3775/2004 & 605/2007 GV(CO)RVL 02.07.2009