Amar Singh Thukral, S/O Shri Joumphi Ram, Vs. Sandeep Chhatwal, S/O Shri Peshori Lal, - Court Judgment

Madan B. Lokur, J.

1. The Appellants are aggrieved by an Award dated 12th September, 1988 passed by the learned Motor Accidents Claims Tribunal (MACT) in Suit No. 97/1982.

2. Smt. Shakuntala Devi died in an accident caused by the rash and negligent driving of a vehicle by Respondent No.1. The accident took place on 26th July, 1982 and she died the next day. At the time of her death, she was a housewife aged about 36 years. Her husband and children filed a claim petition seeking compensation under the provisions of the Motor Vehicles Act, 1939 (the Act).

3. The learned MACT held Respondent No.1 guilty of rash and negligent driving and thereby causing the death of Smt. Shakuntala Devi. As regards the compensation to be awarded, the learned MACT relied upon Bhagwan Dass Bhatia vs. Anand Pal 1986 ACJ 879 wherein a housewife aged about 53-54 years died in an accident in September 1976. A learned Single Judge of the Punjab & Haryana High Court estimated that her contribution to the household could not be less than Rs.2,500/- per annum. On this basis, the High Court awarded a sum of Rs.30,000/- as compensation taking into consideration the ever-increasing cost of incidental services. Following this reasoning, the learned MACT took the pecuniary value of the services rendered by the deceased housewife to her household at Rs. 2,500/- per annum. Adopting a multiplier of 16, the learned MACT awarded a sum of Rs. 40,000/- as compensation with interest at 12% per annum from the date of filing the claim petition till payment.

4. There is no grievance with regard to the choice of the multiplier, but according to the Appellants, the contribution taken is far too low. It is submitted that her contribution is much more than Rs. 2,500/- per annum determined by the learned MACT.

5. The question that, thereforee, arises in a case such as the present is what is the amount of compensation that is due and payable in respect of the death of a housewife who has no apparent source of income.

March of the law

6. Long ago, in Berry v. Humm & Co. [1915] 1 K.B. 627 the plaintiff claimed damages for the death of his wife by the negligence of the defendant's servants. According to the plaintiff, he had to employ a housekeeper to look after all the work in the house and also to look after his child. Damages, at that time, were based solely on compensation for pecuniary loss, either on the loss of such contribution in the past or on the loss of a reasonable expectation of pecuniary benefit in the future. But, while giving a constructive interpretation to the existing law, it was said,

'I can see no reason in principle why such pecuniary loss should be limited to the value of money lost, or the money value of things lost, as contributions of food or clothing, and why I should be bound to exclude the monetary loss incurred by replacing services rendered gratuitously by a relative, if there was a reasonable prospect of their being rendered freely in the future but for the death.'

7. Much later, in Regan v. Williamson [1976] 2 All ER 241 it was noted that the present law is that 'dependants are to be compensated only for the value of the services lost to them by the death of a wife and mother. A wife's companionship is to be ignored, likewise the grief and misery caused by her departure and, so too, a mother's love, guidance and influence in bringing up children.' Reference was made to cases in which there was strict disregard to those features of the life of a woman beyond her so-called services, to keep house, cook food, buy clothes, wash them etc. Though the learned Judge found himself bound by the law, yet he expressed the view that the word 'services' has been too narrowly construed. It was said,

'It should, at least, include an acknowledgement that a wife and mother does not work to set hours and, still less, to rule. She is in constant attendance, save for those hours when she is, if that is the fact, at work. During some of those hours she may well give the children instruction on essential matters to do with their upbringing and, possibly, with such things as their home-work. This sort of attention seems to be as much of a service, and probably more valuable to them, than the other kinds of service conventionally so regarded.'

8. In Mehmet v. Perry [1977] 2 All ER 529 the pecuniary value of a wife's services were assessed and granted under three heads:

(a)Loss to the family of the wife's housekeeping services.

(b)Loss suffered by the children of the personal attention of their mother, apart from housekeeping services rendered by her.

(c)Loss of the wife's personal care and attention, which the husband had suffered, in addition to the loss of her housekeeping services.

9. Over a period of time, thereforee, the march of the law in England has recognized the contribution of a housewife to the home and hearth as something over and above housekeeping services.

Views of some Courts in India

10. In Sunny Chugh vs. Darshan Lal 1987 ACJ 812 and Shakuntala Devi vs. Delhi Transport Corporation a learned Single Judge of the Punjab & Haryana High Court held that gratuitous services provided by a deceased housewife do indeed have a monetary value in respect of which compensation is payable to her beneficiaries, including her husband and children. It was noted that additional expenses would have to be incurred for having the household run by a servant or other domestic help instead of the wife. Apart from this, there would also be a loss of an element of security to the family. Moreover, there is no retirement age for a housewife, who is required to do housework for as long as she is physically able.

11. In Sunny Chugh the deceased housewife died in an accident in November 1974. She was about 29 years of age and her beneficiaries were awarded Rs.50,000/- as compensation. Similarly, in Shakuntala Devi the deceased housewife died in an accident in March 1983. She was about 30 years and her beneficiaries were awarded Rs.50,000/- as compensation, even though the accidental death took place about 9 years later.

12. The Andhra Pradesh High Court, speaking through M. Jagannadha Rao, J in A. Rajam vs. M. Manikya Reddy 1989 ACJ 542 held, inter alia, as follows:-

'The loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of 'services' to the family, if there was reasonable prospect of such services being rendered freely in the future but for the death. It must be remembered that any substitute to be so employed is not likely to be as economical as the housewife. Apart from the value of obtaining substituted services, the expense of giving accommodation or food to the substitute must also be computed. From this total must be deducted the expense the family would have otherwise been spending for the deceased housewife.

While estimating the 'services' of the housewife, a narrow meaning should not be given to the meaning of the word 'services' but should be construed broadly and one has to take into account the loss of constant 'love and affection' as also of 'personal care and attention' by the deceased to her children, as a mother and to her husband, as a wife. The award is not diminished merely because some close relation like a grandmother is prepared to render voluntary services.'

13. That something more than a mere pecuniary value can be attached to the services of a housewife, a view taken by the Punjab & Haryana High Court and Andhra Pradesh High Court, was readily accepted by the Jammu & Kashmir High Court in Oriental Insurance Co. Ltd. vs. Shamsher Singh . The last mentioned decision, however, noted the view of the August Supreme Court in Lata Wadhwa vs. State of Bihar, : (2001)IILLJ1559SC and proceeded on the basis that the annual value of services rendered by a housewife is Rs.36,000/-. Compensation was awarded to the claimants on this basis. I propose to discuss Lata Wadhwa a little later.

View of Delhi High Court

14. In Mali Devi vs. Sukhbir Singh 1997 II AD (Delhi) 175, the deceased housewife met with a fatal accident in December 1979. At that time, she was about 35 years of age. It was said that apart from looking after her family consisting of six children, she used to assist her husband in carrying out agricultural operations. Her earning capacity was taken as Rs.300/- per month out of which it was estimated that she would spend about Rs.150/- per month on her family. On this basis, the monetary value of her services to the household was quantified at Rs.1,800/- per annum and her beneficiaries were awarded compensation of Rs.37,000/- by the learned MACT. This Court upheld the award.

15. Jaimal Singh vs. Paramjit Singh & Ors. 1998 VI AD (Delhi) 469, was a case in which a housewife died in an accident in April, 1991. She was about 40 years of age at that time. She was said to be self-employed and undertaking stitching work apart from managing the household. The contention that she was earning by stitching clothes was rejected by the learned MACT. This Court accepted this finding but assessed her contribution to the family for purposes of cooking, cleaning, washing clothes etc. at Rs.700/- per month or Rs.8,400/- per annum. On this basis, her beneficiaries were awarded compensation of Rs.1,26,000/- after applying the appropriate multiplier.

16. In Chandra Singh & Ors. vs. Gurmej Singh & Ors. : 2003VIIAD(Delhi)222 , the deceased housewife was 31 years of age. The date of her death is not mentioned in the judgment. The contention raised on behalf of the claimants was that in view of Lata Wadhwa, the contribution of the deceased housewife for the purposes of managing the entire family should be taken at Rs.36,000/- per annum. This contention was rejected in paragraph 5 of the Report and it was held that the judgment in Lata Wadhwa was given in the peculiar facts of that case taking into consideration not only the status of the families but also the concession given by learned counsel appearing on behalf of the employer. It was held that the estimated income of a housewife taken in Lata Wadhwa couldn't be taken to be the income of a housewife in every case. The Court then adverted to the Second Schedule of the Act wherein it is provided that in the case of a person who has no income, notional income can be taken at Rs.15,000/- per annum. It was held that in the case of a housewife as well, this amount could be taken as her contribution to the household. It was noted that the Second Schedule was inserted in the Act in 1994 and at that time the minimum wages of a skilled worker were Rs.1,784/- per month while in the year 2003 when judgment was delivered, the minimum wages were Rs.2,783/- per month, an increase of about 60%. I am not sure about the correctness of these figures, since they are not borne out from the Minimum Rates of Wages in Delhi; but that hardly matters.

17. It was noted that as per the Second Schedule of the Act, the applicable multiplier in the case of the deceased was 17. It was then held that over a period of 17 years, the minimum wages would have more or less doubled. Consequently, it was concluded that over this period of time, the average notional annual income of the deceased would come to Rs.22,500/- per annum. From the figure, 1/3rd was required to be deducted towards her personal expenses leading to a calculation of Rs.15,000/- per annum. Effectively, thereforee, the formula laid down in Sarla Dixit vs. Balwant Yadav, : (1993)IILLJ664SC was applied. On this calculation, the Court awarded an amount of Rs.2,55,000/-.

18. In CaptainSingh vs. Oriental Insurance Co. Ltd. & Ors. 2004 I AD (Delhi) 543, the deceased housewife was 27 years of age. The date of her death is not available from the judgment. The claimants relied upon Lata Wadhwa to contend that her contribution to the family should be estimated at Rs.36,000/- per annum. Rejecting this contention in paragraph 3 of the Report, it was held that judgment in Lata Wadhwa was delivered in the facts of that case. The deceased in Lata Wadhwa belonged to higher stratum of society and it was in those circumstances that the august Supreme Court had taken an amount of Rs.3,000/- per month as the value of the multifarious services rendered by a housewife in the absence of any other evidence. It was held that the observations of the august Supreme Court couldn't be applied to the facts of the present case.

19. Since the deceased was gainfully employed for six months in a year, the Court estimated her contribution to the household, as a housewife, at Rs.10,000/- per annum for rendering multifarious services to the family. To this amount, the Court added her income of Rs.12,000/- per annum form gainful employment for six months in a year, and after applying the Dixit formula, it was held that the beneficiaries of the deceased suffered a loss of dependency of Rs.33,000/- per annum.

20. In Krishna Gupta & Ors. vs. Madan Lal & Ors. : 96(2002)DLT829 , one of the arguments raised on behalf of the claimants related to the applicability of Lata Wadhwa. A Division Bench of this Court held in paragraph 24 of the Report that Lata Wadhwa cannot have any application in cases pertaining to motor accidents because the Act is a complete code by itself. It was also held that the question of compensation in Lata Wadhwa arose in an absolutely different fact situation where there was no provision for a statutory compensation, which is not the case under the Act. The Division Bench held as follows:-

'The decision of the Apex Court in Lata Wadhwa (Supra), in our considered opinion, cannot be said to have any application in the instant case. Motor Vehicles Act, 1939 was the complete Code by itself. It not only provides for the right of a victim and/or his legal heirs to obtain compensation in case of bodily injury or death arising out of use of motor vehicle, but the forum thereforee has been provided, as also the mode and manner in which the compensation to be awarded thereforee. In such a situation, it would be inappropriate to rely upon a decision of the Apex Court, which had been rendered in an absolutely different fact situation and in relation whereto there did not exist any statutory compensation. Lata Wadhwa (supra) was decided in a matter where a fire occurred during a celebration. The liability of the Tata Iron & Steel Co. Ltd. was not disputed. Compensation was awarded having regard to the peculiar feature obtaining in that case which has got nothing to do with the statutory compensation payable under the provisions of the Motor Vehicles Act.'

21. Given the view expressed by this Court on more than one occasion, how relevant would Lata Wadhwa be in the scheme of things?

Applicability of Lata Wadhwa

22. In Lata Wadhwa a devastating fire had broken out in Jamshedpur in March 1989. At least 60 persons, including women and children died and about 113 were injured.

23. In December 1993, the august Supreme Court referred the question of grant of compensation to Justice Y.V. Chandrachud, former Chief Justice of India. In his report submitted some time in November 2000, Justice Chandrachud classified the deceased housewives in two categories: one whose husband was an employee of the company and whose income was known, and the other whose husband was an outsider and his income was not known. The deceased housewives were then grouped into four on the basis of their age and thereafter Justice Chandrachud adopted an appropriate multiplier for granting compensation.

24. The august Supreme Court noted in paragraph 10 of the Report that there was an absence of data. Nevertheless, the august Supreme Court concluded that since the deceased ladies were housewives who were not earning any income, the figure arrived at by Justice Chandrachud quantifying the value of their services at Rs.10,000/- per annum for some and Rs.12,000/- per annum for others was grossly low. In spite of the absence of any data but considering the multifarious services rendered by the housewives for managing the entire family, the august Supreme Court was of the view that their services should be quantified at Rs.3,000/- per month or Rs.36,000/- per annum. This was made applicable to all housewives between the age group of 34-59 years. For the deceased housewives in the age group of 62-72 years, the value of their services was estimated at Rs.20,000/- per annum. The multiplier adopted by Justice Chandrachud was not disturbed.

25. Two significant facts emerge from the decision in Lata Wadhwa:-

Interest was not awarded on the amount of compensation, as is usually done in claims arising out of motor accident cases.

The august Supreme Court stratified the pecuniary value of services rendered by housewives. In other words, increase in value of services with the passage of time, was ignored, a factor that is always taken into account while awarding compensation in motor accident claim cases.

26. Lata Wadhwa was referred to in M.S. Grewal vs. Deep Chand Sood, : AIR2001SC3660 but only to approve the use of the multiplier method and also because Lata Wadhwa was definitely a guiding factor in the matter of awarding compensation when children die due to an unfortunate accident.

27. Recently, in Municipal Corporation of Greater Bombay vs. Laxman Iyer : AIR2003SC4182 , the august Supreme Court referred to Lata Wadhwa and M.S. Grewal. The context was award of compensation for the death of children and for reiterating the need for using the multiplier method for calculating compensation.

28. It is significant to note that in Lata Wadhwa and in M.S. Grewal, the applicable principles for awarding compensation in motor accident cases were adopted. But this does not mean that the reverse is also true, namely, that the principles laid down in Lata Wadhwa and M.S. Grewal have to be applied for awarding compensation in motor accident claim cases. If that were so, then the award of interest and consideration of future prospects and future income, which are always taken into account in motor accident claim cases will have to be given a go by. Surely, this was not the intention of the august Supreme Court nor was it, I think, the purport of the argument of learned counsel for the Appellants. The basic principles for award of compensation in motor accident claim cases have been left untouched nor have they been modified either in Lata Wadhwa or in M.S. Grewal or even in Laxman Iyer. The basic principles continue to remain the same and it is those principles that should govern the award of compensation in the present case also. Otherwise, the entire jurisprudence of awarding compensation in motor accident claim cases will have to be re-written. For these reasons, and because of the consistent view taken by this Court (including a Division Bench), I think Lata Wadhwa is distinguishable, if not inapplicable.

Award of compensation

29. The judgments from Punjab & Haryana High Court and from Andhra Pradesh High Court show that an award of Rs.50,000/- in the year 1982-83 was quite adequate. The amount awarded by this Court, during more or less the same period, is quite comparable. As against this, the learned MACT awarded Rs.40,000/- in the present case. To this extent, no fault can be found with the compensation awarded by the learned MACT. However, as mentioned above, the learned MACT based its conclusion on Bhagwan Dass Bhatia in which the accidental death took place in September 1976 and the value of the services was held to be not less than Rs.2,500/- per annum. Taking inflationary trends into account, the pecuniary value of the services of the deceased in the present case who died in 1982 (almost six years later) would be more than the Rs.2,500/- per annum estimate of Punjab & Haryana High Court. The question is: how much more?

30. A few parameters are available for calculating the amount of compensation due to the beneficiaries of the deceased housewife. They are:

a)The decision in Bhagwan Dass Bhatia wherein it has been held that the contribution of a housewife would be, in 1976, not less than Rs.2,500/- per annum. This works out to roughly Rs.200/- per month.

b)The decision in Mali Devi wherein the contribution of the deceased housewife was taken, in 1979, at Rs.300/- per month.

c)The decision in Jaimal Singh wherein the contribution of the deceased housewife in 1991 was taken as Rs.700/- per month.

d)The decision in Chandra Singh wherein minimum wages due to a skilled worker at the appropriate time was taken as a relevant factor for consideration.

31. The Minimum Rates of Wages in Delhi for 1982 show that the minimum wages for a skilled worker (which is the least that can be said for a housewife) with effect from 1st March, 1982 were Rs.400/- per month. This is in consonance with the increase apparent between the period covered by Bhagwan Das Bhatia and Mali Devi.

32. As mentioned above, there is no dispute about the multiplier, that is, 16. In February 1998, which is about 16 years later, the minimum rate for wages for a skilled worker was Rs. 2361/- per month (which I round off to Rs.2400/-). Proceeding on this basis, the loss caused to the family, applying the Dixit formula would be Rs.1400/- per month or Rs.17,100/- per annum (400+2400 = 2800/2 = 1400). Applying the multiplier of 16, the compensation due the Appellants would work out to Rs.2,24,000/-. Out of this amount, 1/3rd is required to be deducted towards personal expenses. Consequently, the contribution of the deceased housewife to her household would work out to Rs.1,50,000/-.

33. In addition to the above, the Appellants will also be entitled to funeral expenses. As per the Second Schedule to the Act, a sum of Rs.2,000/- is required to be granted towards funeral expenses. But this was in 1994. Since the death of the housewife took place in July, 1982, I think it will be appropriate to award the Appellants a lesser amount towards funeral expenses. In the absence of any discernible parameters, I would award a sum of Rs.1,000/- towards funeral expenses. Similarly, Appellant No.1 will be entitled to a sum of Rs.3,000/- towards loss of consortium.

34. To the extent that the aforesaid amounts are over and above what has been awarded to the Appellants by the learned MACT, they will carry interest at 9% per annum from the date of filing the claim petition.

35. To conclude on this aspect, thereforee, I would hold that:

The 'services' rendered by a housewife to her household should be given a broad interpretation and an expansive meaning.

The decision of the august Supreme Court in Lata Wadhwa does not apply to claims for statutory compensation.

Since there is no scientific method of assessing the contribution of a housewife to her household, in cases such as the present, resort should be had to the wages of a skilled worker as per the Minimum Rates of Wages in Delhi. Although this may sound uncharitable, if not demeaning to a housewife, there is hardly any other option available in the absence of any statutory guidelines.

Whether an amount in excess of what is claimed can be awarded?

36. Learned counsel for the Appellants submitted that if his submissions were accepted, the amount due and payable would be much more than the amount claimed before the learned MACT. He submits that there is no bar in awarding an amount higher than what is claimed.

37. A Division Bench of this Court did not accept such a contention in Rattan Lal Mehta vs. Rajinder Kapoor & Anr. : 1996IAD(Delhi)552 . In that case, the Court relied upon Bai Nanda vs. Shivabhai Shankerbhai Patel 1966 ACJ 290 and Babu Mansa vs. Ahmedabad Municipal Corporation : AIR1978Guj134 and held in paragraph 24 of the Report that 'though claimants might have estimated in the pleadings different sums under different subheads, it is still open to the court to award higher under one subhead or lower under another, than claimed so long as the award does not exceed the total amount claimed.'

38. Without referring to the aforesaid decision, a learned Single Judge of this Court in Jyoti Gupta vs. Ashok Kumar & Ors. : 91(2001)DLT427 expressed the view that the Award may exceed what is claimed in the claim petition and one cannot be too technical in this aspect.

39. In Ramu Tolaram & Ors. vs. Amichand Hansraj Gupta & Ors. 1988 ACJ 24, the Bombay High Court took the view that since court fees payable on the claim petition are not ad valorem but fixed, there is no reason why an amount higher than what is claimed cannot be awarded. Moreover, in that case, the claim itself was nebulous inasmuch as though Rs.15,000/- was claimed, it was further stated in the prayer clause that such other amount as the Court might find just, proper and reasonable, should be paid.

40. Be that as it may, the controversy is now settled by a decision of the august Supreme Court in Nagappa vs. Gurudayal Singh & Ors., : AIR2003SC674 .

41. In Nagappa, learned counsel for the Appellant had made an application before the august Supreme Court seeking permission to amend the claim petition and enhance the claim from Rs.1,00,000/- to Rs.5,00,000/-. The august Supreme Court referred to the provisions of Section 158(4) of the Act wherein it is mentioned 'the claims tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act.' In other words, even if no claim has been made or no specified amount is claimed, a report made under Section 158(6) of the Act can be treated as a petition for compensation.

42. The august Supreme Court also drew attention to the provisions of Section 168 of the Act, which empowers the learned MACT to make an Award determining the amount of compensation that appears to it to be just. As pointed out by the august Supreme Court, there is no restriction in the Act that compensation can be awarded only up to the amount claimed by the claimants. In the absence of any such embargo, the learned MACT is entitled to award an amount which appears to it to be just and which may, in a given case, exceed the amount claimed.

43. After discussing the case law on the subject, the august Supreme Court held in paragraph 21 of the Report as follows:-

'For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the tribunal/court is to award 'just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to section 166, even report submitted to the claims tribunal under sub-section (6) of section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, court may permit amendment to the claim petition.'

44. In so far as the present case is concerned, it would have been appropriate if learned counsel had moved an application for amendment of the claim petition; but since the accident took place more than 20 years ago, and this appeal has been pending in this Court for almost 15 years, I think it would only be appropriate to accede to the oral prayer of learned counsel that the claim petition may be treated as amended and a just and fair amount be awarded even if it exceeds the amount claimed.

45. To conclude on this issue, thereforee:

There is no bar in awarding an amount higher than what is claimed.

The appropriate procedure to follow while awarding an amount higher than what is claimed would be to insist on a formal amendment of the claim petition.

However, in a given case, if there is evidence on record to justify it, a higher amount may be awarded even without a formal amendment to the claim petition.

46. The appeal is allowed in the above terms. There will, however, be no order as to costs.