# Abdul Khaliq & Ors v. U.P.S.R.T.C. & Ors

- **Citation:** (2023) 7 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** FAFO No. 1446 of 2003
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-khaliq-ors-v-u-p-s-r-t-c-ors-50414
- **Pages:** 23

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- The claimants are three in
number-So
far
as
consortium
is
concerned, claimant mother has not been
held entitled to any dependency, she has
lost her daughter, and would be entitled
to filial consortium-So far as minor
claimant is concerned, she would be
entitled to parental consortium-Amongst
claimants, deceased uncle who has not
been considered any kind of a dependent
of deceased, is not entitled to anything
towards consortium as well-He does not
fall under any of known categories where
compensation for loss of consortium is to
be awarded- Thus, the total compensation
would be 596000 -The impugned award
passed by the Tribunal is modified and the
compensation awarded and payable by
the owner is enhanced to Rs. 2,98,000/-
after deducting 50% of the compensation
apportioned to the share of the UPSRTC
settled in the Lok Adalat.

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,891 of 77,892. This is a partial read: ask again with offset=39891 for what follows._

242 INDIAN LAW REPORTS ALLAHABAD SERIES
Consortium
=15000+15000+40000x
7
The
total
compensation
would therefore, work out
to a figure of Rs. 607500+
Rs. 310000
=
91750
0
Less
50%
of
the
compensation
apportioned
to the share of the UPSRTC
settled in Lok Adalat =
917500/2
=
45875
0

2. In the result, this appeal is allowed
in part. The impugned award passed by the
Tribunal is modified and the compensation
awarded and payable is enhanced to a sum
of Rs. 4,58,750/-. The aforesaid sum of
money shall be payable in the first instance
by the Insurers with liberty to recover from
the
owner
through
a
miscellaneous
application to be made before the Tribunal.
The said sum of money shall carry simple
interest at the rate of 7% per annum from
the date of institution of the claim petition,
until realization. Any sum of money
already deposited with the Tribunal by the
owner, pursuant to the impugned award,
shall be adjusted against the award. The
inter se apportionment of compensation
shall be done in the same ratio as directed
by the Tribunal. Costs easy.
----------
(2023) 7 ILRA 242
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

FAFO No. 1446 of 2003

Abdul Khaliq & Ors. ...Appellants
Versus
U.P.S.R.T.C. & Ors. ...Respondents
Counsel for the Appellants:
No, Sri Sharve Singh

Counsel for the Respondents:
Smt. Seema Mishra, Sri Ashok Kumar
Jaiswal, Sri Sunil Kumar Mishra, Sri
Siddharth Jaiswal

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation- The claimants are three in
number-So
far
as
consortium
is
concerned, claimant mother has not been
held entitled to any dependency, she has
lost her daughter, and would be entitled
to filial consortium-So far as minor
claimant is concerned, she would be
entitled to parental consortium-Amongst
claimants, deceased uncle who has not
been considered any kind of a dependent
of deceased, is not entitled to anything
towards consortium as well-He does not
fall under any of known categories where
compensation for loss of consortium is to
be awarded- Thus, the total compensation
would be 596000 -The impugned award
passed by the Tribunal is modified and the
compensation awarded and payable by
the owner is enhanced to Rs. 2,98,000/-
after deducting 50% of the compensation
apportioned to the share of the UPSRTC
settled in the Lok Adalat.

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490

2. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121

3. Magma General Ins. Co. Ltd. Vs Nanu Ram @
Chuhru Ram & ors. (2018) 18 SCC 130

4. National Ins. Co. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

5. New India Assur. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC OnLine SC 822
7 All. Abdul Khaliq & Ors. Vs. U.P.S.R.T.C. & Ors.
243
6. Sushil Kumar & ors. Vs M/s. Sampark Lojastic
Pvt. Ltd & ors. (2017) 35 LCD 1311

7. P.O. Meera & anr..Vs Ananda P. Naik & ors.
(2022) SCC OnLine Ker 546

8. Branch Manager, Future General India Ins.
Co. Ltd. Bengaluru Vs Varsha S.L. (2019) SCC
OnLine Kar 3498

9. Shashikala & ors. Vs Ganga-lakshmamma &
anr.. (2015) 9 SCC 150
(Delivered by Hon'ble J.J. Munir, J.)

1. This is a claimants' appeal arising
out of a judgment and award of Mr. S.C.
Bose, District Judge of Allahabad, sitting
as the Motor Accident Claims Tribunal,
dated 6th January, 2003 passed in Motor
Accident Claims Petition No.410 of 1999.
The claimants seek enhancement of the
compensation awarded.

2. Smt. Gulshan Bano, the deceased,
was travelling on board Jeep No. UP-70N7479 on 13.04.1999. At about 7:30 p.m.,
near a certain Village Gansiari within the
local limits of Police Station Mau Aima,
District Allahabad (now Prayagraj), a Bus
bearing registration No. UGH-471, owned
by the Uttar Pradesh State Road Transport
Corporation (for short, 'the UPSRTC'), that
was
proceeding
from
Allahabad
to
Ayodhya, hit the Jeep. In consequence of
the accident, Smt. Gulshan Bano sustained
injuries, leading to her death. The Jeep
aforesaid, whereon Gulshan Bano was
travelling, was owned by one Alok Pandey
and insured with the Oriental Insurance
Company, Allahabad. The claimants are
three in number, to wit, Abdul Khaliq aged
about 45 years, an uncle of the deceased,
Smt. Hamidunnisha aged about 40 years,
the deceased's mother and Shaista, the
deceased's minor daughter, aged about 8
months. They shall hereinafter be called
'the claimants', unless the context otherwise
requires. It appears that the deceased was a
divorcee and there is no claim laid on
behalf of her husband.

3. It is the claimants' case that the
deceased was a woman, who stayed home
and did productive work of stitching etc.,
that yielded her an income of Rs.5000/- per
month. All the claimants were dependent
upon the deceased's income. The claimants
have, therefore, demanded a compensation
in the sum of Rs.10,00,000/-.

4. A separate written statement each
was filed on behalf of the UPSRTC, the
owner of the ill-fated Jeep, Alok Pandey
and on behalf of the Oriental Insurance
Company, who are the Insurers of the illfated Jeep. The owner of the Jeep and the
Insurers shall hereinafter referred to as 'the
owner' and 'the Insurers'.

5. The UPSRTC broadly took a stand
that the accident happened on account of
the Jeep driver's negligence, whereas the
owner took the stand that the accident
occurred due to the rash and negligent
driving by the Bus driver. It was also urged
that on the date of accident, the ill-fated
Jeep was validly insured with the Insurers.
The Insurers did a wholesome and
inconsistent denial of everything that was
urged to hold them liable. They denied
insuring the ill-fated Jeep, the accident
between the UPSRTC Bus and the ill-fated
Jeep, and also the fact that the driver held a
valid driving licence. In substance, the
Insurers denied their liability to indemnify
the owner of the Jeep regarding any
liability, that might be apportioned to him.

6. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi):
244 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Whether on 13.04.1999, at
about 7:30 in the evening hours, the
alleged accident happened on account of
rash and negligent driving of Jeep No. UP70N-7479?

2. Whether the alleged accident,
involving Jeep No. UP-70N-7479 and Bus
No. UGH-471, happened due to the
contributory
negligence
of
both
the
vehicles? If yes, which vehicle is at fault
and to what extent?

3. Whether Jeep No. UP-70N7479 is owned by Alok Pandey and on the
date of accident, it was insured with the
Oriental Insurance Company?

4. Whether on the date of the
accident, the driver had a valid driving
licence?

5. Whether Jeep No. UP-70N7479 was being operated in accordance
with law, rules and its registration?

6. Whether the claimants are
entitled to compensation? If yes, how much
and from which of the parties?

7.
To
what
relief
are
the
claimants entitled?"

7. The Tribunal dealt with Issues Nos.
1 and 2 together and held that both the Bus
and the ill-fated Jeep had an equal share of
contributory negligence in the accident.
Issue No.3 was answered in favour of the
owner holding that the ill-fated Jeep was
owned by him and validly insured with the
Insurers. This issue was answered in this
manner by the Tribunal on the Insurers'
admission. Issue No.5 was decided in the
manner
that
the
ill-fated
Jeep
was
registered in the owner's name as a vehicle
for personal use. There is a further finding
that on the date of accident, the ill-fated
Jeep was being used to carry passengers. It
was, therefore, held on this issue in
conclusion that the ill-fated Jeep was not
being operated in accordance with its
registered use. In answering Issue No.4, the
Tribunal held that according to the
evidence on record, the driver of the illfated Jeep, Shiv Shankar had a valid
driving licence with him, which was valid
for driving a private vehicle alone. The
licence was not endorsed for driving a
commercial vehicle carrying passengers.
Issues Nos.6 and 7 were taken up together.
The claimants were held entitled to
compensation on account of Gulshan
Bano's death.

8. A finding was returned that her
husband had not presented any claim and
there was an affidavit to show that the
deceased's husband had divorced her. The
deceased's income, that was claimed from
her exertions that she did privately doing
stitching jobs etc., was not accepted by the
Tribunal. There is a remark that the fact
that the deceased's had an income of
Rs.5000/- per month, has not been
traversed on behalf of the owner, the
UPSRTC and the Insurers. It has also been
noticed that there is nothing on record to
show the deceased's age.

9. It has been remarked that the
deceased being a divorcee, it is believable
that she would be working to earn a
livelihood
for
herself.
Despite
these
remarks, the deceased's income as claimed,
or for that matter any substantial income
has been discounted. The Tribunal has held
for the deceased a minimum income of
Rs.15,000/- a year. On that basis, the
Tribunal has determined the compensation
payable to the claimants. One-third of the
deceased's income has been deducted
towards her personal and living expenses.
The deceased's age has been opined to be
22 years given the fact that it was claimed
to be 22 years and in the autopsy report, it
was determined as 21 years. The Tribunal
7 All. Abdul Khaliq & Ors. Vs. U.P.S.R.T.C. & Ors.
245
has applied a multiplier of '17' to arrive at a
substantive compensation of Rs.1,70,000/-.
Nothing else has been awarded, except
10% simple interest from the date of
institution of the claim petition until
realization.

10. Heard Mr. Sharve Singh, learned
Counsel for the claimants, Mr. Siddharth
Jaiswal, Advocate holding brief of Mr.
Ashok Kumar Jaiswal, learned Counsel for
the Insurers and Mr. Sunil Kumar Mishra,
learned Counsel appearing on behalf of the
UPSRTC. No one appeared on behalf of
the owner, though the name of Ms. Seema
Misra, Advocate is printed in the cause list.

11. It is argued by the learned
Counsel for the claimants that the principle
of contributory negligence in this case is
not applicable, because it is a case of
composite negligence. The claimants are
free to recover from either of the two
vehicles notwithstanding the finding of
contributory negligence apportioning a
50% liability. It is next submitted that
breach of condition of the insurance policy
that the Tribunal has found on account of
the driving licence of the driver of the illfated Jeep not being endorsed for driving a
commercial passenger vehicle, would not
entitle the Insurers to an all out
exoneration on the policy. Instead, it
would give the Insurers a right to recover
after paying of the claimants. The
claimants
have
also
criticized
the
Tribunal's finding about the deceased's
annual income to be sum of Rs.15,000/-,
rejecting evidence about her actual
income. It is also said that the Tribunal
has
not
taken
into
account
future
prospects of the deceased. The deduction
towards personal expenses has been
criticized as one much on the higher side.
It is also urged that the Tribunal has
failed to award anything towards loss of
love
and
affection,
besides
funeral
expenses.

12. The learned Counsel appearing
for the UPSRTC says that they are not
liable to pay anything to the claimants
towards the enhanced compensation,
inasmuch as the claimants have accepted
a sum of Rs.60,000/- on 04.03.2001
before the Lok Adalat in complete
settlement of their claim against the
UPSRTC.

13. The learned Counsel for the
Insurers, on the other hand, has argued
that the Jeep driver's licence being one
for a private vehicle alone, without any
endorsement for driving a commercial
vehicle, there is a fundamental breach of
the policy, entitling the Insurers to
complete exoneration, as ordered by the
Tribunal.

14. This Court has considered the
submissions advanced on behalf of both
sides. It is to be noticed that there is no
appeal, either by the owner or the Insurers.
It is true that so far as the claimants are
concerned, it is a case of composite
negligence, because the deceased was on
board one of the vehicles, that has been
found to have contributed to the negligence
leading to the accident. The claimants are
free to recover from any of the parties
found to be in contributory negligence. The
issue of apportionment of negligence and a
fortiori the liability to pay compensation is
a matter inter se the owner and the Insurers
on one hand and the UPSRTC on the other.
It is not an issue in this appeal at all.

15. What is different in this case is
that the rights of the claimants have
nevertheless been split into two parts, to
246 INDIAN LAW REPORTS ALLAHABAD SERIES
wit, one part against the owner and the
Insurers and the other against the UPSRTC.
There is on record a compromise inter se
the claimants and the UPSRTC dated
04.03.2001 filed before the Lok Adalat,
which has been accepted on the same day
by the Lok Adalat. The terms of the
settlement before the Lok Adalat show that
the claimants have compromised their
claim against the UPSRTC for a sum of
Rs.60,000/-
in
all.
The
aforesaid
compromise between the claimants and the
UPSRTC is on record as paper No.14-Ga,
on the reverse of which is the order passed
by the Lok Adalat. The result is that the
present appeal by the claimants for
enhancement is confined to their claim
against the owner and the Insurers.

16. This Court is of opinion that the
Tribunal having returned a finding of
contributory negligence to the extent of
50% each between the ill-fated Jeep and the
UPSRTC Bus, it is difficult to disturb that
finding in the absence of any positive
evidence brought to the notice of this Court
by the claimants to show that it was a
different percentage of negligence on the
part of the ill-fated Jeep's driver or it was
cent per cent his fault. Even otherwise, it
would now not be open to disturb that
finding, because on the foot of it the
claimants have settled the matter with the
UPSRTC before the Lok Adalat. The
claim, therefore, that now proceeds is
confined to the owner and the Insurers.

17.

Whatever
enhancement
of
compensation is granted by this Court, if at
all, the same would be limited to 50% of
the determination, the other 50% having
been settled in terms of the compromise
with the UPSRTC.

18. The next question, which arises, is
whether the Insurers have been rightly
discharged of their liability by the Tribunal,
or it is a case where the Insurers ought to
be saddled with the liability of making
good the compensation awarded with a
right to recover from the owner. It is true
that the driving licence held by the driver
of the ill-fated Jeep was a licence to drive a
motorcycle and a light motor vehicle,
which authorizes a person to drive a private
vehicle. It was not endorsed by the
Licensing
Authority,
authorizing
the
licensee to drive a commercial light vehicle
carrying passengers.

19. The Tribunal has recorded a
finding that the facts and evidence on
record show that the ill-fated Jeep was
carrying gratuitous passengers, though
there is nothing expressly said in the
affidavit of Hamidunnisha, that has been
filed in lieu of her examination-in-chief,
that the deceased boarded the vehicle after
paying some kind of a fare. This Court is
inclined to agree with the Tribunal on this
issue. The reason is that apparently the
owner has not raised a specific plea in the
written statement that he was carrying
passengers, non-gratuitously or introducing
circumstances to show some kind of a
personal relationship between the deceased
or her family and the owner. The Jeep was
full of passengers unrelated to the owner
from which a presumption about gratuitous
carriage of passengers must be raised.
There is nothing on record to rebut the
presumption that the passengers on board
the ill-fated Jeep, none of whom appear to
be
related
to
the
owner,
or
his
acquaintances or friends, were gratuitous.
The Jeep was clearly being plied as a
passenger vehicle for hire.
7 All. Abdul Khaliq & Ors. Vs. U.P.S.R.T.C. & Ors.
247

20. The Court's inference in this
regard must also rest on judicial notice of
the reputed fact that vehicles of this type
are invariably used as passenger vehicles
for hire, though registered as private ones.
The Court, therefore, finds that while the
driver of the Jeep may not be holding a
valid licence, authorizing him to drive
passenger vehicles used for commercial
purposes,
the
ill-fated
Jeep
was
nevertheless insured by the Insurers. At the
same time, the driving licence not being
one which was endorsed to drive a
commercial or passenger vehicle, there is a
breach of the insurance policy entitling the
Insurers to exoneration from their liability
to substantively indemnify in terms of the
policy. But, they ought to be directed to
pay the claimants and recover from the
owner.

21. In Shamanna and another v.
Divisional Manager, Oriental Insurance
Company Limited and others, (2018) 9
SCC 650, the relevant facts were that the
deceased was travelling by a Jeep,
negligently driven by its driver. The door
of the vehicle suddenly opened and the
deceased was thrown out of the vehicle
leading to his death. The deceased was a
young man and his parents claimed
compensation.
The
Tribunal
awarded
compensation with a direction to pay and
recover since the Jeep driver had no valid
driving
licence,
when
the
accident
happened. On an appeal by the Insurance
Company and by the claimants as well, the
High Court enhanced the compensation,
but set aside the direction to pay and
recover. It was in those circumstances that
on the claimants' appeal by special leave,
the Supreme Court after referring to the
decision in National Insurance Co. Ltd. v.
Swaran Singh, (2004) 3 SCC 297 held in
Shamanna (supra):

"11. In the present case, to deny
the benefit of "pay and recover", what
seems to have substantially weighed with
the High Court is the reference to larger
Bench made by the two-Judge Bench in
National Insurance Co. Ltd. v. Parvathneni
[National
Insurance
Co.
Ltd.
v.
Parvathneni, (2009) 8 SCC 785 : (2009) 3
SCC (Civ) 568 : (2009) 3 SCC (Cri) 943]
which doubted the correctness of the
decisions which in exercise of jurisdiction
under Article 142 of the Constitution of
India directing insurance company to pay
the compensation amount even though
insurance company has no liability to pay.
In Parvathneni case [National Insurance
Co. Ltd. v. Parvathneni, (2009) 8 SCC 785
: (2009) 3 SCC (Civ) 568 : (2009) 3 SCC
(Cri) 943] , the Supreme Court pointed out
that Article 142 of the Constitution of India
does not cover such type of cases and that :
(SCC p. 786, para 5)

"5. If the insurance company has
no liability to pay at all, then, it cannot be
compelled by order of the court in exercise
of its jurisdiction under Article 142 of the
Constitution
of
India
to
pay
the
compensation amount and later on recover
it from the owner of the vehicle."

12. The above reference in
Parvathneni case [National Insurance Co.
Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC
(Cri) 943] has been disposed of on 17-92013 [National Insurance Co. Ltd. v.
Parvathneni, (2018) 9 SCC 657] by the
three-Judge Bench keeping the questions of
law open to be decided in an appropriate
case.

13. Since the reference to the
larger
Bench
in
Parvathneni
case
[National
Insurance
Co.
Ltd.
v.
Parvathneni, (2009) 8 SCC 785 : (2009) 3
SCC (Civ) 568 : (2009) 3 SCC (Cri) 943]
has been disposed of by keeping the
248 INDIAN LAW REPORTS ALLAHABAD SERIES
questions of law open to be decided in an
appropriate case, presently the decision in
Swaran Singh case [National Insurance
Co. Ltd. v. Swaran Singh, (2004) 3 SCC
297 : 2004 SCC (Cri) 733] followed in
Laxmi Narain Dhut [National Insurance
Co. Ltd. v. Laxmi Narain Dhut, (2007) 3
SCC 700 : (2007) 2 SCC (Cri) 142] and
other cases hold the field. The award
passed by the Tribunal directing the
insurance
company
to
pay
the
compensation amount awarded to the
claimants and thereafter, recover the same
from the owner of the vehicle in question, is
in accordance with the judgment passed by
this Court in Swaran Singh [National
Insurance Co. Ltd. v. Swaran Singh, (2004)
3 SCC 297 : 2004 SCC (Cri) 733] and
Laxmi Narain Dhut [National Insurance
Co. Ltd. v. Laxmi Narain Dhut, (2007) 3
SCC 700 : (2007) 2 SCC (Cri) 142] cases.
While so, in our view, the High Court ought
not to have interfered with the award
passed by the Tribunal directing the first
respondent to pay and recover from the
owner of the vehicle. The impugned
judgment [Shamanna v. Laxman, 2016 SCC
OnLine Kar 6928] of the High Court
exonerating the insurance company from
its liability and directing the claimants to
recover the compensation from the owner
of the vehicle is set aside and the award
passed by the Tribunal is restored.

14. So far as the recovery of the
amount from the owner of the vehicle, the
insurance company shall recover as held in
the decision in Oriental Insurance Co. Ltd.
v. Nanjappan [Oriental Insurance Co. Ltd.
v. Nanjappan, (2004) 13 SCC 224 : 2005
SCC (Cri) 148] wherein this Court held
that : (SCC p. 226, para 8)

"8. ... For the purpose of
recovering the same from the insured, the
insurer shall not be required to file a suit.
It may initiate a proceeding before the
executing court concerned as if the dispute
between the insurer and the owner was the
subject-matter of determination before the
Tribunal and the issue is decided against
the owner and in favour of the insurer."

22. Therefore, this Court is of opinion
that whatever liability is found for the
owner, the Insurers would be liable to make
good the compensation awarded and
recover the same from the owner through
an application made to the Tribunal.

23. This spares for the Court the
question whether compensation has been
validly determined by the Tribunal. The
claimants have sought enhancement and
say that the compensation as assessed is far
on the lower side. They say, it is against the
settled principles.

24. The first determinant in order to
work out the compensation is the monthly
income of the deceased; or for that matter,
her annual income. The Tribunal has
considered the deceased to be a productive
person earning something for herself, but
has
not
believed
the
testimony
of
Hamidunnisha on affidavit, where she has
claimed in Paragraph No.6 of the affidavit
that the deceased would work as a tailor
and earn Rs.5000/- a month. It is important
to notice that Hamidunnisha has put in her
affidavit dated 19.07.2002 in lieu of her
oral testimony, but she has not been crossexamined either by the owner or the
Insurers; not even by the UPSRTC. Her
testimony, therefore, remains unrebutted on
record. Normally, unrebutted testimony is
to be accepted, but it is not to be accepted
blindly. It is to be put in the scale of fair
judgment,
based
on
other
facts,
circumstances and contemporary human
experience to believe the whole of it or so
much of it as can be accepted.
7 All. Abdul Khaliq & Ors. Vs. U.P.S.R.T.C. & Ors.
249

25. The Tribunal has opined that the
deceased was a divorced woman and,
therefore, the likelihood of her engaging in
some kind of productive work is there. It is
on the said basis that the Tribunal has done
a guesswork and determined the deceased's
income at a figure of Rs.15,000/- per
annum.

26. Regarding the income of a
woman,
mostly
a
housewife
or
a
homemaker, principles have been laid
down in Arun Kumar Agrawal and
another v. National Insurance Company
Limited and others, (2010) 9 SCC 218.
After review of earlier authority on the
issue in Arun Kumar Agrawal (supra), it
has been held:

"26. In India the courts have
recognised that the contribution made by
the wife to the house is invaluable and
cannot be computed in terms of money. The
gratuitous services rendered by the wife
with true love and affection to the children
and her husband and managing the
household affairs cannot be equated with
the
services
rendered
by
others.
A
wife/mother does not work by the clock.
She is in the constant attendance of the
family throughout the day and night unless
she is employed and is required to attend
the employer's work for particular hours.
She takes care of all the requirements of
the
husband
and
children
including
cooking of food, washing of clothes, etc.
She teaches small children and provides
invaluable guidance to them for their future
life. A housekeeper or maidservant can do
the household work, such as cooking food,
washing clothes and utensils, keeping the
house clean, etc., but she can never be a
substitute for a wife/mother who renders
selfless service to her husband and
children.

27. It is not possible to quantify
any amount in lieu of the services rendered
by the wife/mother to the family i.e. the
husband and children. However, for the
purpose of award of compensation to the
dependants, some pecuniary estimate has
to be made of the services of the
housewife/mother. In that context, the term
"services" is required to be given a broad
meaning and must be construed by taking
into account the loss of personal care and
attention given by the deceased to her
children as a mother and to her husband as
a wife. They are entitled to adequate
compensation in lieu of the loss of
gratuitous
services
rendered
by
the
deceased. The amount payable to the
dependants cannot be diminished on the
ground that some close relation like a
grandmother may volunteer to render some
of the services to the family which the
deceased was giving earlier.

28. In Lata Wadhwa v. State of
Bihar [(2001) 8 SCC 197] this Court
considered the various issues raised in the
writ petitions filed by the petitioners
including the one relating to payment of
compensation to the victims of the fire
accident which occurred on 3-3-1989
resulting in the death of 60 persons and
injuries to 113. By an interim order dated
15-12-1993, this Court requested the
former Chief Justice of India, Shri Justice
Y.V. Chandrachud to look into various
issues
including
the
amount
of
compensation payable to the victims.
Although the petitioners filed objection to
the report submitted by Shri Justice Y.V.
Chandrachud, the Court overruled the
same and accepted the report. On the issue
of payment of compensation to the
housewife, the Court observed: (SCC pp.
209-10, para 10)

"10. So far as the deceased
housewives are concerned, in the absence
250 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the 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 taking 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,
taking 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, taking 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."

 (emphasis supplied)

29.
The
judgment
of
Lata
Wadhwa case [(2001) 8 SCC 197] was
referred to with approval in M.S. Grewal v.
Deep Chand Sood [(2001) 8 SCC 151 :
2001 SCC (Cri) 1426] for confirming the
award of compensation of Rs. 5 lakhs in a
case involving the death of school children
by drowning due to negligence of teachers
of the school. In Municipal Corpn. of
Greater Bombay v. Laxman Iyer [(2003) 8
SCC 731 : 2004 SCC (Cri) 252] a twoJudge Bench while deciding the issue of
award of compensation under Sections
110-A and 110-B of the Motor Vehicles
Act, 1939, referred to the judgments in Lata
Wadhwa case [(2001) 8 SCC 197] and
M.S. Grewal case [(2001) 8 SCC 151 :
2001 SCC (Cri) 1426] .

30. In A. Rajam v. M. Manikya
Reddy [1989 ACJ 542 (AP)] , M.
Jagannadha Rao, J. (as he then was)
advocated giving of a wider meaning to the
word "services" in cases relating to award
of compensation to the dependants of a
deceased
wife/mother.
Some
of
the
observations made in that judgment are
extracted below:

"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
7 All. Abdul Khaliq & Ors. Vs. U.P.S.R.T.C. & Ors.
251
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 it should be construed
broadly and one has to take into account
the loss 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."

33. In Chandra Singh v. Gurmeet
Singh [(2003) 7 AD 222 (Del)] , Krishna
Gupta v. Madan Lal [(2002) 96 DLT 829] ,
Captan Singh v. Oriental Insurance Co.
Ltd. [(2004) 112 DLT 417] and Amar
Singh Thukral
v.
Sandeep
Chhatwal
[(2004) 112 DLT 478] , the Single and
Division Benches of the Delhi High Court
declined to apply the judgment of this
Court in Lata Wadhwa case [(2001) 8 SCC
197] for the purpose of award of
compensation under the Act. In Krishna
Gupta v. Madan Lal [(2002) 96 DLT 829]
the Division Bench of the High Court
observed as under: (DLT p. 834, para 24)

"24. ... The decision of the Apex
Court in Lata Wadhwa [(2001) 8 SCC 197]
in our considered opinion, cannot be said
to have any application in the instant case.
The 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 therefor has
been provided, as also the mode and
manner in which the compensation to be
awarded therefor. 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 [(2001) 8 SCC 197] was decided
in a matter where a fire occurred during a
celebration. The liability of 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."

34. In Amar Singh Thukral v.
Sandeep Chhatwal [(2004) 112 DLT 478] ,
the learned Single Judge of the Delhi High
Court adopted the yardstick of minimum
rates of wages for the purpose of award of
compensation in the case of death of a
housewife and then proceeded to observe:
(DLT p. 487, para 35)

"35. ... 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."

35. In our view, it is highly
unfair,
unjust
and
inappropriate
to
compute the compensation payable to the
dependants of a deceased wife/mother, who
does not have a regular income, by
comparing her services with that of a
housekeeper or a servant or an employee,
who works for a fixed period. The
gratuitous
services
rendered
by
the
wife/mother to the husband and children
cannot be equated with the services of an
employee and no evidence or data can
possibly be produced for estimating the
value of such services. It is virtually
impossible to measure in terms of money
252 INDIAN LAW REPORTS ALLAHABAD SERIES
the loss of personal care and attention
suffered by the husband and children on the
demise of the housewife. In its wisdom, the
legislature had, as early as in 1994, fixed
the notional income of a non-earning
person at Rs. 15,000 per annum and in
case of a spouse, 1/3rd income of the
earning/surviving spouse for the purpose of
computing the compensation.

36. Though Section 163-A does
not, in terms apply to the cases in which
claim for compensation is filed under
Section 166 of the Act, in the absence of
any other definite criteria for determination
of compensation payable to the dependants
of a non-earning housewife/mother, it
would be reasonable to rely upon the
criteria specified in Clause 6 of the Second
Schedule and then apply an appropriate
multiplier keeping in view the judgments of
this Court in Kerala SRTC v. Susamma
Thomas [(1994) 2 SCC 176 : 1994 SCC
(Cri) 335] , U.P. SRTC v. Trilok Chandra
[(1996) 4 SCC 362] , Sarla Verma v. DTC
[(2009) 6 SCC 121 : (2009) 2 SCC (Cri)
1002] and also take guidance from the
judgment in Lata Wadhwa case [(2001) 8
SCC 197] . The approach adopted by
different Benches of the Delhi High Court
to compute the compensation by relying
upon the minimum wages payable to a
skilled worker does not commend our
approval because it is most unrealistic to
compare the gratuitous services of the
housewife/mother with the work of a skilled
worker."

27. The law regarding the income of a
non-working housewife, who perished in a
motor accident at the age of 22 years and
was claimed by her family to be earning
Rs.900/- per month from doing embroidery
and knitting work was the subject matter of
consideration by the Supreme Court in
Jitendra
Khimshankar
Trivedi
and
others v. Kasam Daud Kumbhar and
others, (2015) 4 SCC 237. In Jitendra
Khimshankar Trivedi (supra), it was
held:

"7. Admittedly, the claimants
adduced only oral testimony of the
witnesses to substantiate their claim that
the deceased was self-employed and was
earning
Rs
900
per
month.
Smt
Godavariben
Khimshankar
Trivedi,
mother-in-law
and
Shri
Khimshankar
Raguram
Trivedi,
father-in-law
have
deposed to the effect that the 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 Trivedi was then doing and that
their daughters were earning Rs 3000 per
month and had the deceased been alive, she
would have also earned Rs 3000 per
month.

8. 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 1500 per month. Deducting 1/3rd for
personal expenses and adopting multiplier
of 18, the Tribunal has calculated the loss
of dependency at Rs 2,16,000 (Rs 1000 ×
12 × 18). Though in their crossexamination,
Smt
Godavariben
Khimshankar Trivedi and Khimshankar
Raguram Trivedi deposed that they did not
keep voucher and account 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 1500 per
month is well merited. It is to be pointed
out that the respondents have not adduced
any evidence to prove that the deceased
7 All. Abdul Khaliq & Ors. Vs. U.P.S.R.T.C. & Ors.
253
was not doing any embroidery or tailoring
work or the like. While so, in the light of
the factual findings recorded by the
Tribunal, the High Court was not justified
in reducing the income of the deceased to
Rs 1350 per month from Rs 1500.

10. Even assuming Jayvantiben
Jitendra Trivedi was not self-employed
doing embroidery and tailoring work, the
fact remains that she was a housewife and
a homemaker. It is hard to monetise the
domestic work done by a house-mother.
The services of the mother/wife is available
24 hours and her duties are never fixed.
Courts have recognised the contribution
made by the wife to the house is invaluable
and that it cannot be computed in terms of
money. A housewife/homemaker does not
work by the clock and she is in constant
attendance of the family throughout and
such services rendered by the homemaker
has to be necessarily kept in view while
calculating the loss of dependency. Thus
even
otherwise,
taking
deceased
Jayvantiben
Jitendra
Trivedi
as
the
homemaker, it is reasonable to fix her
income at Rs 3000 per month.

11. Recognising the services of
the homemaker and that domestic services
have to be recognised in terms of money, in
Arun
Kumar
Agrawal
v.
National
Insurance Co. Ltd. [(2010) 9 SCC 218 :
(2010) 3 SCC (Civ) 664 : (2010) 3 SCC
(Cri) 1313] , this Court has held as under :
(SCC p. 246, paras 62-63)

"62. The alternative to imputing
money values is to 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 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 of both human
capabilities and social fabric.

63. 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 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.
This lack of sensitiveness and recognition
of their work mainly contributes to
women's high rate of poverty and their
consequential oppression in society, as well
as
various
physical,
social
and
psychological problems.