JITENDRA KHIMSHANKAR TRIVEDI & ORS.versusKASAM DAUD KUMBHAR & ORS.

                        [2015)2 S.C.R.120



A          JITENDRA KHIMSHANKAR TRIVEDI & ORS.
                                  v.
                KASAM DAUD KUMBHAR & ORS.
                 (Civil Appeal No. 1415 of 2015)
                       FEBRUARY 03, 2015
B
         [V. GOPALAGOWDAAND R. BANUMATHI, JJ.]
          Motor Vehicles Act, 1988: s. 166 - Compensation - Fatal
    accident due to rash and negligent driving - Deceased aged
    22 years, a housewife and doing embroidery and knitting work
C   - Tribunal assessed the income of the deceased at Rs. 1500
    p.m. -After deducting 113rd for personal expenses and after
    adopting multiplier of 18, tribunal calculated the loss of
    dependency at Rs. 2. 16 lacs - Driver/owner of offending
    vehicle filed appeal - High Court partly allowed the appeal
0   taking the income of the deceased at Rs. 1350 p. m. and
    deducting 1/3rd for personal expenses, held the claimants
    entitled to compensation of Rs. 2. 09 lacs - On claimant's
    appeal, held: Considering the nature of work and evidence
    of witnesses, the deceased would not have earned less than
E   Rs.3000 p.m. had she been alive - Even otherwise, as
    deceased was a home maker, it is reasonable to fix her
    income at Rs.3000. p.m. - Deducting 1/Jrd for personal
    expenses contribution of the deceased is calculated at
F   Rs.2,0001- p.m. - Taking multiplier to be adopted is 18- Total
    loss of dependency comes to Rs. 4, 32, 0001- (Rs. 2000 x 12 x
     18) - Rs. 1, 00, 0001- awarded towards loss of consortium and
    Rs.1, 00, 0001- towards loss of love and affection to the minor
    children - Towards loss of estate and funeral expenses, award
G   of compensation of Rs. 15, 0001- awarded by the High Court
    is maintained - Thus, the claimants are entitled to a total
    compensation of Rs.6,47,0001- - As against the award
    passed by the tribunal even though the claimants have not
    preferred any appeal and even though the claimants have
H                                120
       JITENDRA KHIMSHANKAR TRIVEDI & ORS.                   121
           v. KASAM DAUD KUMBHAR & ORS.

then prayed for compensation of Rs.2.96 lacs for doing A
complete justice to the parties, exercising jurisdiction u/Artic/e
142 of the Constitution of India, it is deemed appropriate to
award enhanced compensation of Rs. 6,47,0001 to the
claimants - Constitution of India, 1950 -Article 142.
                                                                B
    Partly allowing the appeal, the Court

     HELD: 1. 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.1,5001-            C
per month. Deducting 1/3'd for personal expenses and
adopting multiplier of 18, tribunal calculated the loss of
dependency at Rs.2, 16,0001- (Rs.1000 x 12 x 18). Though
in their cross-examination, parents-in-law deposed that
they did not keep voucher and account books,                    D
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. The respondents           E
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             F
Rs.1,350/- per month from Rs.1,5001-. Thus, 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 been alive she would have
earned not less than Rs.3,0001- per month. [Paras 9 and         G
1OJ [126-G-H; 127-A-E]
     2. Even assuming that the deceased was not self-
employed doing embroidery and tailoring work, the fact
remained that she was a housewife and a home maker.
It is hard to monetize the domestic work done by a H
122         SUPREME COURT REPORTS                [2015] 2 S.C.R.


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
B 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 as the home maker, it is
C reasonable to fix her income at Rs.3,000/- per month.
  [Para 11] [127-E-H]

           3. As against the award passed by the tribunal even
      though the claimants have not filed any appeal, but it is
o     obligatory on the part of courts/tribunals to award just
      and reasonable compensation. In order to award just and
      reasonable compensation, the income of the deceased
      is taken as Rs.3000/- per month. Deducting 1/3'd for
      personal expenses contribution of the deceased is
E     calculated at Rs.2,000/- per month. At the time of her death
      deceased 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
      x18). Rs.1,00,000/- is awarded towards loss of consortium
 F    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
G     Rs.6,47 ,000/-. As against the award passed by the tribunal
      even though the claimants have not preferred any appeal
      and even though the claimants haye then prayed for
      compensation of Rs.2,96,480/-, for doing complete justice
      to the parties, exercising jurisdiction under Article 142 of
 H    the Constitution of India, it is deemed appropriate to
      JITENDRA KHIMSHANKAR TRIVEDI & ORS.              123
          v. KASAM DAUD KUMBHAR & ORS.

award enhanced compensation of Rs. 6,47,000/- to the    A
claimants. [Paras 13 to 15] [129-C-E; 130-A-D]

    General Manager, Kera/a S. R. TC. v. Susamma Thomas
(1994) 2 SCC 176; Arun Kumar Agrawal & Anr. v. National
Insurance Company Ltd. (2010) 9 SCC 218: 2010 (9) SCR B
303; Nagappa v. Gurudaya/Singh (2003) 2 sec 274: 2002
(4) Suppl. SCR 499; Oriental Insurance Company Ltd. v.
Mohd. Nasir (2009) 6 SCC 280:2009 (8) SCR 829;
Ningamma v. United India Insurance Company Ltd. (2009)
13 SCC 710 : 2009 (8) SCR 683; Rajesh v. Rajbir Singh   c
(2013) 9 SCC 54: 2013 (5) SCR 961; Jiju Kuruvila v.
Kunjujamma Mohan (2013) 9 SCC 166: 2013 (7) SCR 276;
Oriental Insurance Company Limited v. Brij Mohan (2007) 7
SCC 56: 2007 (6) SCR 843; Deddappa v. Branch Manager,
National Insurance Company Limited (2008) 2 SCC         o
595:2007(13) SCR 287; Amresh Kumari v. Niranjan Lal
Jagdish Prasad Jain (2010) ACJ 551; Mohinder Kaurv. Hira
Nand Sindhi (Ghoriwala) (2007) ACJ 2123 - relied on.

                Case Law Reference
                                                         E
    (1994) 2 sec 116          Relied on.   Para 4
    2010 (9) SCR 303          Relied on.   Para 12
    2002 (4) Suppl. SCR 499   Relied on.   Para 13
    2009 (8) SCR 829          Relied on.   Para 13       F
    2009 (8) SCR 683          Relied on.   Para 13
    2013 (5) SCR 961          Relied on.   Para 14
    2013 (7) SCR 276          Relied on.   Para 14
                                                        G
    2007 (6) SCR 843          Relied on.   Para 16
    2007 (13) SCR 287         Relied on.   Para 16
    (2010)ACJ 551             Relied on.   Para 17
    (2007) ACJ 2123           Relied on.   Para 17       H
124         SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
      1415of2015
       From the Judgment and Order dated 16.01.2012 of the
  High Court of Gujarat atAhmedabad in FirstAppeal No. 4021
B of 1998
          Yadunandan Bansal, Abhijat P. Medh for the Appellants.
         P. K. Seth, Manjeet Chawla, Sunanda Roy for the
      Respondents.
c         The Judgment of the Court was delivered by
          R. BANUMATHI, J. 1. Delay condoned. Leave granted.
           2. Being dissatisfied with the quantum of compensation
0     awarded by the High Court of Gujarat in FirstAppeal 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.
 E     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
F 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
G 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
H and that she was doing embroidery and knitting work and was
    JITENDRAKHIMSHANKARTRIVEDI v. KASAM DAUD                     125
            KUMBHAR [R. BANUMATHI, J.]

earning Rs.900/- per month from the said work and was A
maintaining her family. Respondents No. 1 and 2 did not enter
into defence. Respondent No.3-lnsurance Company has filed
counter statement denying averments made in the claim
petition and contended that the compensation claimed is on
the higher side.                                              B
     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 c
testimony of witnesses, tribunal came to the conclusion that
deceased was earning Rs.900/- per month. Relying upon the
decision in General Manager, Kera/a S.R. TC. vs. Susamma
Thomas & Ors. 1, the tribunal assessed the income of the
deceased at Rs.1,500/- per month. After deducting 1/3'd for D
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. E
     5. Being aggrieved by the award of the tribunal,
respondents filed appeal being First Appeal No.402111998
under Section 171 of the Motor Vehicles Act 1988 before the
High Court of Gujarat atAhmedabad. Vide impugned judgment F
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 1/3'd 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 G
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
1
    (1994)2 sec 175                                                 H
126         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A 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
B compensation as well as the rate of interest.
           7. Learned counsel forthe respondents contended that in
      the absence of furnishing documentary proof like receipts of
      work, accounts books, any authenticated evidence of income
c     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 offuture prospects of the deceased.
D       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
E 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
F 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
G embroidery work is doing well and had the deceased been
  alive she would have earned Rs.1,500/- per month. Deducting
  1/3'd for personal expenses and adopting multiplier of 18,
  tribunal has calculated the loss of dependency at Rs.2, 16,000/
  -(Rs.1000x12x18 ). Though in their cross-examination, Smt.
H Godavariben KhimshankarTrivedi and Khimshankar Raguram
 JITENDRAKHIMSHANKARTRIVEDI v. KASAM DAUD                      127
         KUMBHAR [R. BANUMATHI, J.]

Trivedi deposed that they did not keep voucher and account A
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
m.onth is well merited. It is to be pointed out that the respondents
have not adduced any evidence to prove that the deceased B
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/-.
                                                                   c
     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        o
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.                                    E

     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 F
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 G
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.        H
128             SUPREME COURT REPORTS                       [2015] 2 S.C.R.



A         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
B
              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
c             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
D             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
E             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. Th is lack
              of sensitiveness and recognition of their work mainly
              contributes to women's high rate of poverty and their
F             consequential oppression in society, as well as various
              physical, social and psychological problems. The cou.ts
              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
G             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

H     2
          (2010) g sec 21 a
    JITENDRAKHIMSHANKARTRIVEDI v. KASAM DAUD                    129
            KUMBHAR [R. BANUMATHI, J.]

any appeal, the question arises whether the income of the A
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 B
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         c
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.
                                                               0
Deducting 1/3'd 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 E
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. F
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 Kuruvi/a & Ors. vs. Kunjujamma Mohan &Ors. 7 , this Court G
3
  (2003) 2 sec 274
4
  (2009) 6 sec 2so
5
  (2009) 13 sec 710
6
  (2013) 9 sec 54
7
  (2013) 9sec166                                                   H
130          SUPREME COURT REPORTS                    [2015] 2 S.C.R.



A     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.
B     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
C 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
D 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
E 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
F          compensation awarded in his favour appears to be
           on a lower side. In the aforementioned situation,
           although we reject the other contentions of Ms lndu
           Malhotra, we are inclined to exercise our extraordinary
           jurisdiction under Article 142 of the Constitution of
G          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

H     8 (2007) 7   sec 56
     JITENDRAKHIMSHANKARTRIVEDI v. KASAM DAUD                      131
             KUMBHAR [R. BANUMATHI, J.]

      any separate proceedings for recovery of the amount           A
      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       B
      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:-
                                                                    c
      "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
      Constit.ution of India, direct Respondent 1 to pay the        D
      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".
                                                                    E
     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         F
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 G
from Rs. 2,24,000/- to Rs.2,09,400/- is enhanced to

9
  (2oosi 2 sec 595
10
    (2010)ACJ 551
11
   (2007)ACJ 2123                                                   H
132          SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A Rs.6,47,000/-. The quantum of compensation clatmed is
  KS.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
B 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
C 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.
 o    In the facts and circumstances of the case, we make no order
      to as to costs.

      Devika Gujral                              Appeal partly allowed