IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL (WEST) :DELHI Case No. : 576/09 1. Sh. [ENTITY] s/o Late Sh. Bhagwan Singh 2. Dr. Mrs. [ENTITY] D/o Sh. Santokh Singh Both R/o 97-40-62nd, Dr. Apart-7D,Rego Park, New York: 11374(U.S.A.) Petitioners Versus 1. Sh. [ENTITY] s/o Late Sh Paramjeet Singh I -15, 3rd Floor, Ganga Ram Vatika, Tilak Nagar, New Delhi ( driver-cum-owner) 2. Mrs. [ENTITY] w/o Sh. Neeraj Berry d/o Sh Santokh Singh R/o 1500 N Harbor Blvd. LA Habra Heights, C.A. 90631(U.S.A) (Performa respondent No.2) 3. Sh. [ENTITY] S/o Sh Sanokh Singh Hanspal 17, Dino Court, Brampton, Ontario-L6Y4X6(Canada)(Performa respondent No.3) Respondents Date of Institution: : 06/07/2009(AIR) Date of reserving order/judgment : 23/04/2013 Date of pronouncement: : 05/06/2013 AWARD 1. This judgment cum award shall decide the petition under [SECTION] and [SECTION] of [ACT] 1988 as amended up to date (hereinafter referred as Act) filed by petitioners for grant of compensation for the death of Mrs. [ENTITY] in the road vehicular accident. 2. The case of the petitioners is that on 13/06/2009 at 10.00 a.m while the deceased, a house wife of the petitioner No.1 and mother of petitioner No.2,performa [CASE NUMBER] Page No.1/12 respondents No. 2 & 3 had left her residence house to attend Gurduwara and while she reached at Bus Stand of Route No. 588, in the meantime the offending vehicle, a motor cycle No. DL 4 SBK-4884 which was being driven by its driver/ respondent No.1 in rash andnegligent manner hit the deceased from behind. The public witness Sh. [ENTITY] was present at the spot. Resultantly, the deceased fell down and died. In total the petitioners have claimed a total sum of Rs. 10,15,000/- on account of compensation. 3. The written statement was not filed by the respondent No.1 despite opportunities and the defence of respondent No.1 was struck off vide order dated 27/10/10. 4. During the course of inquiry, the performa respondents No. 2 &3 being the daughters of the deceased had also filed the reply. 5. On the pleadings of the parties following issues arose for consideration on 27/10/10. 1.Whether the injured suffered fatal injuries in an accident that took place on 13.06.2009 at about 10.00 AM involving motorcycle No. DL -4SBK-4884 driven and owned by respondent No.1? OPP 2.Whether the petitioner/ petitioners is entitled to any compensation? If so, to what amount and from whom? 3. Relief. 6. In order to establish its claim, Ms. [ENTITY] who is Power of Attorney of petitioner No.1 examined herself as PW-1; the petitioner No.2 Dr. [ENTITY] examined herself as PW-2; The PW-3 Sh. [ENTITY], the proprietor of the Amar Studio with whom the public witness was stated to be working and Sh. [ENTITY] as PW-4 who had brought record from hospital. 7. Performa respondent R2W1 Smt. [ENTITY] and performa respondent R3W1, being the performa respondent examined themselves through their power attorney Ms. [ENTITY] as PW-1. It is informed that both the petitioners as well as performa respondents No.2 & 3 were living at U.S.A. However, the petitioners examined daughter of the deceased/ petitioner No.2 before this court as PW-2. 8. I have thoroughly gone through the testimony of the witness and perused the record. I have also given thoughtful consideration to the arguments addressed by [CASE NUMBER] learned counsel for the petitioners and the learned counsel for the insurance company. My findings on various issues are as under :- ISSUE NO. 1 9. Since the present petition is under [SECTION] of [ACT], it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident. 10. PW-1 explained the mode and manner of the accident in her affidavit, Ex. PW1/A to the effect that on the date of accident while the deceased, a house wife of the petitioner No.1 had left her residence house to attend Gurduwara and while she reached at Bus Stand of Route No. 588, in the meantime the offending vehicle, a motor cycle No. DL 4 SBK-4884 which was being driven by its driver/ respondent No.1 in rash andnegligent manner hit the deceased from behind. Petitioner No.1 was not cross- examined by the respondent No.1 as his defence was already struck off. 11. The police have filed the Accident Information Report on record pertaining to case FIR etc. bearing No. 184/09 , P.S. Tilak Nagar u/s [SECTION] [ACT]. 12. To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in [PRECEDENT] wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under [SECTION] A [ACT] or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the [ACT] are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in [PRECEDENT] the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under [SECTION] and [SECTION] of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the [CASE NUMBER] Page No.3/12 word rashness and negligence as finds mention in the [ACT]. This is because the ochapter in the [ACT] dealing with compensation is a benevolent legislation and not a penal one. 13. Further recently the Hon'ble High of Delhi in [CASE NUMBER] in case titled as [PRECEDENT] decided on 23/07/2012 by Hon'ble Mr. Justice [ENTITY], held as under: "The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under [SECTION] of the [ACT] Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court [ENTITY] and Ors. V [ENTITY] [PRECEDENT] where it was held as under: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied." 14. Therefore, reading all the documents filed by the petitioners as a whole it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner. 15. The issue No:1 therefore, stands in favour of the petitioners and against the respondents. COMPENSATION : 16. The deceased was a home maker. As per the passport of the deceased, Ex. PW1/3, the date of birth of the deceased was 15/08/1934. The date of accident was 13/06/09. Accordingly, the deceased was 75 years as on the date of accident. 17. For assessing the income of the deceased who being the home maker, Ld counsel for petitioner vehemently argued that the income of the deceased being house wife cane be taken on the basis of the judgment of Hon'ble Supreme Court of India in case titled as '[ENTITY] & Ors V State of Bihar & Ors', reported in 2001(8) SCC 197. He has made this court go through the para No. '10' of the aforesaid judgment which runs as under:- [CASE NUMBER] "10. So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs.12,000/- per annum in cases of some and Rs. 10,000/- for others, appears to us to be grossly low. It is true that claimants, who ought to have given data for determination of compensation, did not assist in any manner by providing the data for estimating the value of services rendered by such housewives. But even in the absence of such data and talking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs. 3000/-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. The compensation awarded, therefore, should be recalculated, talking the value of services rendered per annum to be Rs. 36,000/- and thereafter, applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs. 50,000/- instead of Rs. 25,000/- given under the Report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs. 10,000/- per annum and the multiplier applied is eight. Though, the multiplier applied is correct, but the values of services rendered at Rs. 10,000/- per annum, cannot be held to be just and, we, therefore, enhance the same to Rs. 20,000/- per annum. In their case, therefore, the total amount of compensation should be redetermined, talking the value of services rendered at Rs. 20,000/- per annum and then after applying the multiplier, as already applied and thereafter, adding Rs. 50,000/- towards the conventional figure." 18. Accordingly, the Ld. Counsel for petitioners states that the income of the deceased could be taken to be as 20,000/- per annum in terms of the aforesaid judgment. 19. I have heard Ld. Counsel for parties at length and have carefully perused the record. 20. It is pertinent to mention here that earlier in a case titled '[PRECEDENT] bearing Consolidated Cases in [CASE NUMBER] was decided by this court vide award dated 05/04/2011 in which after applying the principles as laid down by the Hon'ble Supreme Court Court in [ENTITY]'s case(supra) case, this court treated the income of the house wife to be as Rs. 6000/- per month. However, the Hon'ble High Court of Delhi while modifying the award passed by this court in case titled as '[PRECEDENT] decided on 30/01/12 has held as under: - [CASE NUMBER] 5. The Claims Tribunal (in [CASE NUMBER]) referred to judgment of [ENTITY] & Or. v. State of Bihar & Ors., (2001) 8 SCC 197; [PRECEDENT]; some English decisions and it heavily relied upon the judgment in [PRECEDENT] to hold that it is difficult to value the services rendered by a wife and a mother. It did not follow [SECTION] to the [ACT] to taken one-third of the surviving spouse's income as taken in [ENTITY] (supra) as the Hon'ble Supreme Court in the aforesaid decision had lamented that taking one-third of the surviving spouse's income was not based on any sound principle. 6. The Tribunal relied on [ENTITY] whereby value of the serviced rendered by a housewife aged upto 59 years was taken as Rs 3,000/-. The Tribunal doubled it to Rs. 6,000/- on account of inflation as [ENTITY] (supra) was decided in the year 2001 selected a multiplier of '15' and after deduction of one-third towards the personal living expensed, computed the loss of dependency as Rs. 7,20,000/-. The Tribunal further awarded a sum of Rs. 1,00,000/- towards loss of love and affection, Rs. 25,000/- towards funeral charges and Rs. 5,000/- towards loss to estate to compute the over all compensation as Rs. 8,50,000/-. There is no Appeal by the Claimants.
19. In [ENTITY] (supra) a number of person including women and children died; the Supreme Court assessed the compensation while taking the value of the services rendered by a housewife between the age group of 22-59 as Rs 3,000/- per month and in the case of women aged 62 years and above at Rs 21,00/- per annum.
20. The minimum wages of a Graduate at the time of the fire accident in [ENTITY] (supra) as notified in the State of Delhi were just Rs 898/. The compensation was awarded in the year 2001 when the minimum wages of a Graduate were Rs 3339/-, of a matriculate were Rs. 3027/- and that of a skilled worker were Rs 3003/-. It is important to note that no interest on the compensation was awarded from the date of the accident till the date of payment in [ENTITY] (supra). Many Tribunals and High Courts have adopted the compensation granted in case of [ENTITY] (supra) to be just and fair in motor accident cases, where the deceased was a house wife. But, the compensation in [ENTITY] was awarded because there was loss of life of so many women and children when a fire broke out while they were participating in a function organized by Tata Iron & Steel Company. It was not statutory compensation under the [ACT]. Moreover, difficulty also arises as on account of inflation, the wages and salaries have increased manifold. In this case, the Tribunal held that the compensation in [ENTITY] was awarded in the year 2001 and doubled it to Rs. 6,000/- to compute the loss of dependency. The Tribunal further deducted one-third of the assumed income towards the personal living expensed and computed the loss of dependency on the income of Rs. 4,000/- per month which according to the Appellant is exorbitant and excessive. No deduction was made by the Supreme Court in the assumed value of services rendered at Rs. 3,000/- per month while computing the loss of dependency.
21. The services rendered by a housewife cannot be counted; cooking, washing, ironing clothes and stitching clothes (in some cases) for the husband and children, teaching and guiding children, working as a nurse whenever the husband or the child/children are sick, are some of the major activities of a housewife. She has no fixed hours of work; she is always in attendance to take care of each and every need of the whole family at the cost of her personal comfort and health. The services rendered by a housewife may differ from case to case considering her qualification, financial strata and the social status of the family to which she belongs.
22. The Claimants, therefore, must lead evidence to prove the services rendered by a non working female. In the absence of any evidence to the contrary, the value of services, if I may say so, has to have some relation to the educational qualification of the deceased
23. Thus, the value of services rendered by a home maker should be taken as the minimum salary of a non-matriculate, matriculate or a Graduate (in the absence of any evidence to the contrary). In case of a young mother and a wife there should be an addition of 25% of the minimum salary/wages as per the educational qualification i.e Graduate, matriculate or non-matriculate. There should be addition of 15% in the case of a middle aged mother and a wife and 'NIL' in case of a wife and a mother beyond the age of 50 years as the children become independent by that time. The value of gratuitous services rendered should be gradually reduced after the age of 55 years, even though mothers take care of their children (irrespective of their ages) and even when they (the children ) are married.
34. To sum, the loss of dependency on account of gratuitous serviced rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a Graduate.
(ii) Minimum salary of Matriculate where she is a Matriculate
(iii) Minimum salary of a non-Matriculate in other cases
(iv) There will be an addition of 25% in the assumed income in (i), (ii) and
(iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years
(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home make is above 65 years.
(vi) If a housewife died issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband's re-
marriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and living expenses
(viii) As an attempt has been made to compensate the loss of dependency, only a notional sun which may be upto Rs. 25,000/- ( on present scale of the money value) towards loss of love and affection and Rs. 10,000/- towards loss of consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate."
21. After going through the aforesaid judgment of Hon'ble high Court of Delhi in [PRECEDENT] (supra) , it is categorically clear that the High Court of Delhi have also discussed the principles as laid down in the [ENTITY]'s case i.e the case which is relied upon by the Ld. Counsel for petitioner. The Hon'ble High Court of Delhi have categorically mentioned that the value of services rendered by house wife is treated to be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
22. It is also settled law of precedents that once the case has been decided by a High Court in which the judgment of Hon'ble Supreme Court of India which is relied upon by the parties has been discussed, the law laid down by the Hon'ble High Court in which interpretation of judgment of Hon'ble Supreme Court of India has been mentioned shall be binding for the subordinate courts.
23. Moreover in another case decided by Hon'ble High Court of Delhi for the assessment for compensation or a housewife titled [PRECEDENT] decided on 13/09/12, the Hon'ble High Court after discussing and applying the law as laid down by it in its earlier decision in [PRECEDENT] 's case relating to compensation for house wife and further held as under:-
"An appeal being [CASE NUMBER] filed against above referred judgment as [PRECEDENT] was dismissed by Supreme Court by an order dated 24/07/12"
24. Therefore, it is clear form the aforesaid judgment of Hon'ble High Court of Delhi in [PRECEDENT] case(supra) that Hon'ble Supreme Court by dismissing the appeal against the principles as laid down in '[PRECEDENT]' has put its stamp of approval for the law laid down in [PRECEDENT] (supra) case.
25. I have also gone through evidence. The relevant portion of the deposition made by PW-2 being the daughter of the deceased is as under:-
"12. That I have lost my dear beloved mother and stood deprived of Mother's love and blessing for my future life due to this tragic death become of this accident caused by Respondent No.1, [ENTITY], by his rash and negligence driving. The Love, Care and blessing of mother, and her company is lost for ever. The respondent No.1 must be punished by this Hon'ble Court in the strict terms.
13. That my father being petitioner No.1, and my younger sister, Mrs. [ENTITY], and brother [ENTITY], stood deprived of the lovable company and love, care, attention & Blessing of [ENTITY], for the rest of their life by rash and negligence Act of Respondent No.1, which is serious set back to all the legal heirs. The grand children have also been deprived of the Love, Care & affection of their Grandmother, due to her death.
14. The damages for Pain & Sufferings loss of company, Loss of love & affection, and mental shock for whole of life to me, and to other legal heirs, as mentioned here before, under [SECTION] of [ACT] for interim compensation, and under [SECTION] of [ACT], amounting to Rs. 10,15,000/-(Rupees Ten Lacs Fifteen Thousand Only) alongwith interest, @ 12% per annum from date of filing the claim petition till realization of the awarded amount be kindly awarded to Petitioner No.1 & 2 & Proforma Respondent No.2 & 3, being legal heirs of deceased Smjt. [ENTITY], in the interest of justice."
26. There is no mention in the testimony that household services being rendered by the deceased. More so the petitioners No.1 & 2 and also the performa respondents 2 & 3 were stated to be residing at U.S.A. Accordingly, since there is no evidence that deceased was rendering household services, in terms of the judgment of Hon'ble High Court of Delhi in [PRECEDENT]), therefore, I hereby treat the household services rendered by the deceased as Nil.
27. In a recent case decided by Hon'ble Supreme Court of India in "[ENTITY] & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench held as under:-
20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in [ENTITY] (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/- to Rs. 10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In [ENTITY]'s case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/- to Rs.10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
28. In terms of the aforesaid judgment in [ENTITY]'s case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/- towards funeral charges, Rs. 25,000/- towards love & affection and Rs. 1,00,000/- towards loss of consortium. Therefore, in total, I hereby award a sum of Rs. 1,50,000/- in favour of the petitioners and against the respondents.
RELIEF:
29. I award Rs. 1,50,000/-( Rupees One Lakh Fifty Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e. 06/07/09 (AIR) till the notice under [SECTION] is given by the insurance company, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioners no.1& 2 and the performa respondents No. 2 & 3 shall have the equal share in the award amount.
APPORTIONMENT OF LIABILITY:
30. The respondent No. 1 is liable to pay the award amount and he is directed deposit the award amount before this Tribunal within a period of 30 days in the name of the petitioner/ petitioners in terms of the award. In case of any delay, they shall be liable to pay interest at a rate of 12% per annum for the period of delay.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 05/09/2013.
Announced in the open court On 5th of June,2013 ([ENTITY]) JUDGE: MACT (WEST):DELHI 27/05/2013 Present: None. Orders not ready. Put up for orders on 30/05/2013. ([ENTITY]) PO: MACT(WEST) : DELHI 30/05/2013 Present: None. Orders not ready. Put up for orders on 05/06/2013 ([ENTITY]) PO: MACT(WEST) : DELHI 05/06/2013. Present: None.
Judgment announced vide separate sheets of even date. File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 05/09/2013, to be fixed by insurance company.
([ENTITY]) PO: MACT(WEST) : DELHI