Krishnadas v. Henry Joseph and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 MACA.No. 99 of 2009() --------------------OPMV.1448/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... ## APPELLANT/PETITIONER : - -------------- KRISHNADAS, D/O. LATE ELLIKATHARA NARAYANAN, MATTATHURKUNNU, KODAKARA, NOW RESIDING AT APPU CHAR, IRINJALAKUDA, THRISSUR DIST. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): - --------------- 1. HENRY JOSEPH, S/O. PUTHENVEETTIL INASU, PUDUKKAD, VIYYOOR, THRISSUR DIST, 2. BABU, S/O. KOTTARAKUNNI, MARKOSE, KARANCHIRA, KIZHAKKUMCHERI PALGHAT DIST. 3. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, PERINCHERY BUILDING, BRANCH THRISSUR. 4. M.D. NARAYANAN, S/O. MALIAKKAL DAMODARAN NAIR, KAVIL, KODAKARA P.O., THRISSUR. DIST. 5. SIVADAS, PATTATHIL UNNIKRISHNAN NAIR, VASUPURAM, MATTATHURKUNNU, KODAKARA. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.99 of 2009-B ******************************* Dated this the 3[rd] day of August, 2011 ## **JUDGMENT** ## BASANT, J. What is the monetary equivalent of the services of a home maker? How is the same to be ascertained in a claim for compensation under Section 166 of the Motor Vehicles Act? Can the presumption under clause 6(b) of the Second Schedule be held to be universally applicable to all claims under Section 166? Even when the very claim would not be maintainable under Section 163A, can such a presumption be drawn under clause 6 (b) in a claim under Section 166 of the M.V Act? How long will the polity have to wait for the legislature of the constitutional republic to accept the regime of `community property' – of spouses being equally entitled to property acquired during coverture, as part of the Indian law? These interesting questions are aroused in our mind by the very 2 M.A.C.A.No.99 of 2009 useful discussions raised at the Bar by the learned counsel Shri P.K.Ravi Shanker. 2. Claimant is the appellant. He lost both his parents in a motor accident which took place on 24.08.2002. Against a claim of Rs.2,40,000/-, in respect of the death of his mother, the Tribunal awarded an amount of Rs.1,71,000/- as per the details given below: i) Compensation for pain and sufferings : Rs. 5,000.00 ii) Compensation for love and affection : Rs. 10,000.00 iii) Compensation for loss of dependency : Rs.1,56,000.00 (1500 X 12 X 1/3 X 13) ----------------------Total : Rs.1,71,000.00 ========= 3. The appellant/claimant is said to be aggrieved by the impugned award. The challenge is raised only on the ground of quantum. 4. We requested the counsel to explain his contentions and be specific. The learned counsel for the appellant contends that the impugned award does not ensure that just compensation is awarded to the claimant. The claimant was a young man aged M.A.C.A.No.99 of 2009 3 19 years on the date of death of his parents. His mother, in respect of whom compensation is claimed in the instant case, was aged 46 years. It was claimed that she was employed. She was earning an income by giving private tuitions to students, it was contended. It was asserted that her monthly income was Rs.3,000/-. 5. The Tribunal in the impugned award came to the conclusion that there is nothing to show that the deceased mother of the claimant was earning any income. The Tribunal however drew inspiration from the presumption under clause 6 (a) of the Second Schedule and came to the conclusion that as on the date of death of the deceased even if she is assumed to be a non earning person, an income of Rs.1,500/- per mensem can safely be assumed. It is accordingly that the Tribunal calculated the quantum of compensation for loss of dependency. The Tribunal assumed that Rs.1,500/- was the monthly income; 1/3 would go to meet the personal expenses of the deceased; and 13 was assumed to be the multiplier. 6. The challenge against the quantum of compensation awarded under the head of loss of dependency is directed firstly against the monthly income assumed by the Tribunal. The M.A.C.A.No.99 of 2009 4 learned counsel for the appellant raises 2 contentions. It is first of all contended that actually invoking the presumption under clause 6(b) of the Second Schedule, monthly income of the deceased must have been reckoned at, at least 1/3 of the income of her husband. The husband was earning an income exceeding Rs.21,000/- per mensem. At least Rs.7,000/- must have been reckoned as the monthly income in this case, contends the counsel. 7. Secondly the counsel contends that, at any rate, following the dictum in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218], monthly income should have been taken at least at Rs.3,000/- per mensem. 8. The learned counsel raises a contention that no amount has been awarded under the head of funeral and miscellaneous expenses. Appropriate amount is liable to be awarded under that head also, contends the counsel. 9. The claim was initially staked for an amount of Rs.2,40,000/-. Before this Court I.A.No.3053 of 2009 has been filed praying that the amount claimed may be amended and altered to Rs.3,37,000/-. There can be no dispute that the Tribunal has jurisdiction to permit amendment of the application 5 M.A.C.A.No.99 of 2009 to enhance the claim amount. We need not in this case go into the question whether even without an amendment such amount that is found to be just and reasonable can be directed to be paid by the Tribunal. The mandate under Section 168 of the M.V Act is that just compensation has to be awarded. In a case where the quantum of compensation has to be ascertained, depending upon the materials placed before Court, justice has to be done. Concept of justice would necessarily include justice to the respondents who have to defend the claim also. Even without amendment if the claims were to be considered, it may result in injustice - in that, the respondent may not be able to defend the claim appropriately and effectively. We are, in these circumstances, allowing the petition for amendment and permitting the appellant to claim upto the amount specified in the amendment application. But we will certainly have to frown upon the attempt to claim amounts even above the total amounts claimed in the amendment application. We will therefore consider the claim as one for an amount of Rs.3,37,000/- as prayed for in the amended application. I.A.No.3053 of 2009 is accordingly allowed. The Registry shall carry out the amendment. 6 M.A.C.A.No.99 of 2009 10. Assessment of compensation for persons who do not earn income in terms of money is certainly one of the vexing problems in the law of computation of compensation. What can be reckoned as the monthly contribution of a woman engaging herself only in the activity of management of domestic chores? There is burning criticism that the system has been unfair to such women. Indisputably their services have not been translated into economic worth. The learned counsel for the appellant submits that there are 3 methods in which income of a non earning spouse can be ascertained. 11. For easy reference we extract below clause 6 of the second schedule. - “6. Notional income for compensation to those who had no income prior to accident: Fatal and disability in non-fatal accidents: - (a) Non-earning persons - Rs.15,000 p.a (b) Spouse - Rs. 1/3[rd] of income of the earning/surviving spouse In case of other injuries only “general damage” as applicable.” 12. First of all, the presumption under clause 6(a) to the second schedule to the M.V.Act can be pressed into service. Every non-earning person can be assumed to earn an income of M.A.C.A.No.99 of 2009 7 Rs.1,250/- per mensum (Rs.15,000/- annually). That is the mandate of the Legislature which finds expression in clause 6(a). In any view of the matter, atleast that amount must be reckoned as the monthly income of even a non-earning home maker, contends the counsel. It is easy to accept that contention in view of the presumption under clause 6(a) of the second schedule. It would appear that the second schedule is specifically intended to apply only in claims u/s 163A, but the said presumption of prudence incorporated in the second schedule for the purpose of Section 163A can certainly and definitely be drawn when a claim under Section 166 is considered. It is perhaps accepted without any dispute now that in the case of non-earning persons also, monthly income can be assumed to be Rs.1,250/- per month even in a claim under Section 166. This proposition is accepted without demur. Perhaps, in view of the elapse of a long period of time - without updation of the second schedule from 1994, the presumption under clause 6(a) is almost reduced to laughing stock now. Rs.1,250/- (if not more) can safely be reckoned as the monthly income of any earning person who has the potential to render any kind of service/work and who has not started earning. 13. The learned counsel for the appellant then argues 8 M.A.C.A.No.99 of 2009 that so far as a home maker is concerned, it is clause 6(b) of second schedule which must apply to her. 1/3 of the income of the other spouse has to be ascertained. A non-earning spouse can safely be assumed to earn that income atleast, contends counsel. Counsel brings to our notice the precedents in which this presumption that only 1/3 of the income of the spouse can be assumed as the income of the the non-earning spouse has been adversely commended. Our attention has been drawn to the decision in **National Insurance Company Ltd. v. Mahadevan & Others [2009 ACJ 1373] National Insurance Company v. Minor Deepika [2009(6) MLJ 1005]** and **Arun Kumar Agarwal and another v. National Insurance Company & Others [2010(7) SCC 304]** . So far as the presumption under clause 6(b) is concerned, we are certainly of the opinion that the said presumption must be approached with care. That is a presumption specifically brought in to guide claims under Section 163A of the M.V.Act. After the decision in **Deepal Girishbhai Soni & Others v. United Insurance Co.Ltd. Baroda [AIR 2004 SC 2107]** it is clear that Section 163A and the schedule can have application only in respect of victims whose annual income does not exceed Rs.40,000/-. The M.A.C.A.No.99 of 2009 9 presumption under clause 6(b) must have been enacted by the legislature conscious of the highest amount to which the presumption can apply. The learned counsel points out that in such an event, the spouse of a person earning a maximum income of Rs.1,20,000/- alone can invoke such presumption. All others would go out of the sweep of Section 163A as such deceased spouse whose presumed annual income exceeds Rs.40,000/- cannot claim compensation under Section 163A. While the presumption under clause 6(a) can safely be imported into proceedings under Section 166 also, care must be employed while transplanting the presumption under clause 6(b) to proceedings under Section 166 of the Act, contends the learned counsel. 14. The law deserves to be modified adequately on this aspect by a gender sensitive system. Our experience in the matrimonial jurisdiction embolden us to digress and make observations in this regard. Spouses during coverture earn amounts and invest amounts in immovable and movable properties. During happy days in rosy matrimony they do not really worry about the name of the spouse in whose favour the investment is made, as they assume that they are unitedly one M.A.C.A.No.99 of 2009 10 and need not worry about the name of the spouse in whose name the investment is made. When disharmony and strain enters matrimony later, the one in whose name the investment is made steals a march over the other and claims the entire investment in his/her name to be exclusively his/hers leaving the other in the lurch obliging the other to pursue the uphill task of invoking principles of trust law to contend that the investment was made in trust in the name of one for the benefit of both. More often than not injustice results to the detriment of the weaker sex. Even when she is an earning member, the acquisitions are often in the name of her 'stronger' partner/husband, leaving the woman with no effective rights when acrimony develops later in life. It is time that law starts worrying itself about her plight. Steps in this direction to ameliorate the helplessness of the woman/spouse in distress deserve to be taken by the constitutional republic, if it accepts wiping the tears from every eye as the signature tune of its socialistic commitment. The bedrock of humane humanism on which the socialistic republic is built must prompt the State to take urgent action on this front. A gender justice sensitive legislature has to step in at the earliest to introduce into Indian M.A.C.A.No.99 of 2009 11 law the principles of community property whereunder all properties acquired during coverture must be presumed to belong to the spouses in matrimony equally. If marriage is to be reckoned as a partnership of equal partners in the venture of life in all its dimensions then the income/profit derived by such partners in life by pursuit of whatever activity must also be reckoned as due equally to both partners. Ideally marriage must be accepted to be a partnership of equal partners/spouses in the journey of life. Even when the home maker/spouse is not 'working and earning' in the conventional sense it will have to be accepted, that it is the complementary role played by her which provides the atmosphere and opportunity for the other to 'work and earn'. The complementary role of the home maker spouse cannot be held to be inferior but will have to be accepted to be vital and equal. The legislature of the modern Indian republic will have to address itself to this aspect definitely - sooner the better for the polity. 15. Are we asking for the moon? Can we expect the legislature, which has not found courage and fortitude in itself, even after the first decade of this millennium to accept monogamy as the universal rule for the Indian polity to embark 12 M.A.C.A.No.99 of 2009 on such a course? Can such concepts of ideal marriage sell in our society with deep rooted traditional, feudal, patriarchal and chauvinistic attitude to the weaker sex? We should not be pessimistic and must be die hard optimists at this juncture of national development. We hope that the legislature shall not be unequal to the challenge before it. 16. Till that happens, judicial activism may step in. In an appropriate case the presumption under clause 6(b) can safely be imported and applied. We take note of the path breaking judgment of the High Court of Madras in **Minor Deepika** (Supra) which is favourably commended by the Supreme Court ## in **Arun Kumar Agarwal** (Supra). 17. There can, of course, be forceful argument that the said presumption that the spouse can be assumed to earn one third (if not more) of the income of the husband deserves universal acceptance by law India, whatever be the fact situation. 18. We come back to the facts of the case. Even in a claim under Section 166, the principle underlying clause 6(b) of the second schedule can be safely imported. But that can apply only if such a presumption could have been drawn in a case M.A.C.A.No.99 of 2009 13 under Section 163A of the M.V.Act. When a claim under Section 163A would itself be not maintainable applying the dictum in **Deepal Soni** (Supra) for the reason that the annual income of the deceased would exceed Rs.40,000/- and the claim would fall outside the sweep of Section 163A, the acceptance of the presumption in such a claim under Section 166 would be of doubtful validity. Moreover in this claim we must note that both parents of the claimant/appellant had succumbed to injuries suffered in the same accident and we have awarded compensation to the claimant for the death of his father, reckoning his entire income as his own. (See judgment dated 2/8/2011 in M.A.C.A.No.2944 of 2008). There is no just reason hence for drawing a presumption in this case that any part of such earning of the father of the claimant must be deemed to be that of the mother of the claimant. We do find force in that contention. It would be idle to assume that the presumption under Section 6(b) can be applied universally to all claims without cautiously taking note of the upper limit prescribed under Section 163A as interpreted in **Deepal Sony** (Supra). In the instant case, the annual income of the spouse of the deceased will certainly exceed Rs.1,20,000/- and therefore the M.A.C.A.No.99 of 2009 14 presumption, invocable under clause 6(b) in a case under Section 163A, cannot blindly be invoked in a claim under Section 166 of the M.V.Act. What we intend to note is only that the presumption under clause 6(b) cannot take us to such acceptance of a universal principle applicable in all cases that the spouse can be assumed to earn 1/3 of the income of the other. The law as it stands cannot lead us to such a general presumption and make the same applicable universally. 19. The learned counsel for the Insurance Company attempts to avoid the presumption under Section 6(b) on two grounds. First of all, he contends that the claimant has no case that the deceased in this case is a non-earning person. If that be the case, neither the presumption under clause 6(a) nor under clause 6(b) can be drawn by the court to arrive at the probable income of the deceased who, as per the claimant, was not a nonearning person but was an earning person - employed as a tuition teacher. For such a person, clause 6(a) or 6(b) are not applicable, contends the counsel. We find force in that contention. 20. The learned counsel for the Insurance Company then contends that presumption under Section 6(b) can apply only M.A.C.A.No.99 of 2009 15 when there is a surviving spouse. In the instant case, both spouses had suffered injuries and had succumbed to those injuries. There is hence no surviving spouse, argues the counsel. That contention, does not, of course, impress us. This fiction under clause 6(b) is introduced to ascertain the income of the non-earning person based on the income of the other earning spouse. The fact that such spouse had expired along with other spouse cannot, in any way, affect the application or invocability of the presumption under clause 6(b). Surviving spouse in the context can only mean the “other spouse”. Second schedule appears to have taken into consideration not a case where both spouses die in the accident; but where one spouse survives. The fact that both spouses had suffered injuries and had succumbed to those injuries, in the same accident, cannot in any way detract against the applicability of clause 6(b). While attempting to ascertain the income of a non earning person/spouse, the fact that both spouses have expired, cannot be held to be relevant at all. The expression “surviving spouse” in clause 6(b) can only be read to mean “the other spouse”. This is evident from the language of clause 6(b) extracted above which refers to the other “ ” spouse as earning/surviving spouse . 16 M.A.C.A.No.99 of 2009 21. The learned counsel for the appellant then submits that even if clause 6(b) is assumed to be inapplicable, the court must take note of the decision in **Lata Wadhwa** (Supra) which unambiguously declares that on a modest assessment the contribution of a home maker for the running of the home can be valued at Rs.3,000/- per month. That salutary principle now holds the field. We find it easy to accept this contention of the learned counsel for the appellant. Even assuming that the claim of the claimant that the deceased was earning an income of Rs.3,000/- per mensum as remuneration for tuition taken by her is not true or acceptable, that can only be in addition to her contribution as a home maker. In any view of the matter, drawing inspiration from **Lata Wadhwa** (Supra), we are of the opinion that it can safely be assumed that the monthly income of the deceased could not have been below Rs.3,000/-. Such presumption of the monetary equivalent of her service as a home maker does appear to be absolutely justified by the dictum in **Lata Wadhwa** (Supra). In paragraph 10 of that decision the Supreme court has made the following observations which appear to us to be crucial. 17 M.A.C.A.No.99 of 2009 “It is true that the claimants, who ought to have given dates for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. But even in the absence of such data and taking into consideration the multifarious services rendered by the housewives for manging the entire family, even on a modest estimation, should be Rs.3,000/- per month and Rs.36,000/- per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life.” 22. A controversy is raised as to whether 1/3 of the said amount can be deducted towards the personal expenses of the deceased woman. The principle underlying the methodology to deduct personal expenses of the deceased stems out of the reality that while a person renders services which can be monetarily converted, expenses of such person will have to be deducted from the monetary output. If that be so, we find no reason why personal expenses incurred by a deceased home maker should not be deducted from the assumed notional income earned by her as stipulated in **Lata** (Supra). 18 M.A.C.A.No.99 of 2009 23. Our attention has been drawn to some precedents where such deductions have been made and some in which such deductions have not been made. The question has not been considered in detail in any decision brought to our notice. We are of the opinion that from first principles, it is evident that the deduction has to be made. We are satisfied that 1/3 of the amount, which is the standardized deduction for personal expenses of all earning persons can apply to the case of a home maker, who is assumed to earn an income of Rs.3,000/- per month as permitted by **Lata Wadhwa** (Supra). 24. It follows from the above discussions that the quantum of compensation payable under the head of loss of dependency will have to be enhanced. The appellant would be entitled for an amount of Rs.3,12,000/- (Rs.3,000 x 2/3 x 12 x 13) as compensation for loss of dependency. 25. In addition to the above amount, the appellant would be entitled for an amount of Rs.10,000/- awarded under the head of compensation for loss of love and affection. We are satisfied that an amount of Rs.7,500/- can be awarded under the head of compensation for pain and suffering. We are satisfied that an appropriate amount should have been awarded under the head 19 M.A.C.A.No.99 of 2009 of funeral and miscellaneous expenses. There has been omission to award such amount. We are satisfied that a further amount of Rs.7,500/- can safely be fixed as compensation for funeral and other expenses. 26. The above discussions lead us to the conclusion that the appellant is entitled to a total amount of Rs.3,34,500/- as per the details given below: i) Loss of dependency Rs.3,12,000/(Rs.3,000 x 2/3 x 12 x 13) ii) Compensation for Rs.10,000/love and affection iii) Compensation for Rs.7,500/pain and suffering iv) Compensation for Rs7,500/funeral expenses --------------------- ## **Total** **Rs.3,37,000/=========** 27. The appellant would consequently be entitled to a further amount of Rs.1,66,000/- (Rs.3,37,000/- minus Rs.1,71,000/-). 28. In the result, a) This appeal is allowed in part. 20 M.A.C.A.No.99 of 2009 b) The appellant is found entitled to a further amount of **Rs.1,66,000/- (Rupees one lakh sixty six thousand only)** as compensation in addition to the amount already awarded by the tribunal. c) We direct that the entire amount shall carry interest at the rate and for the period as directed by the Tribunal. d) All other directions of the Tribunal are upheld. It is made clear that the compensation amount shall be released to the appellant as directed by the Tribunal only after the entire amount payable as court fee as per the amended claim is deposited before the Tribunal. 29. A copy of the judgment shall be forwarded to the Law Commission of India for action if any found to be feasible and necessary on the observations made in paragraphs 14 to 16. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A.No.99 of 2009 21 22 M.A.C.A.No.99 of 2009 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010