A. Rajam v. M. Manikya Reddy & Another

1. This appeal rises the question of computation of damages upon the death of a “house-wife and mother of children”, as also computation in the case of an “injured-house-wife.”.

2. A large number of people died while travelling in a passinger bus to Srisailatn on 12-4-1981. We are conuered here with cliam arisig in O.P No. 57/81. The claimant's wife aged 34 years and three male coldren aged 12, 8. and 6 years respectively, died. The deeased (sie clanote was aged 40 years at the time of accident. Unfortunately, the claim was made only for Rs. 40,000/- though there have been four deaths involved in this O.P The lower tribunal awarded Rs. 11,000/- towards pecuniary loss, Rs. 3,500/- towards loss of consortium and Rs. 3,500/- towards pain, suffering and-loss of expectation of life, in all, Rs. 18,000/- for all the, four deaths. The husband has preferred this appeal. The computation of damages consequent on the death of a housewife is based on cerlain special principles. If she is a mother of children, additional factors fall to be considered. I shall first refer to cases of fatal accidents and then-to cases of injured women.

3. A wife and mother is generally not a bread-winner and her loss is a loss of the gratuitous services rendered by her. In Berry v. Humman (1915) K.B 627 it was held that such a loss was recoverable under the Fatal Accidents Act and the contention that absence of money contribution by the deceased required no compensation to be paid, was rejected. Scrutton, J. 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 exciude 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.”

4. On the facts of that case, the award of 35 to by the jury was confirmed, dividing the same as 20 for loss of service or payment to a substituted housekeeper and 15 L for extra expense of management by a house-keeper instead of by the wife. The above case was followed in Feav v. Barnwell (1938) (1) All B.R 31 where the husband aged 73 years was completely blind and the wife (aged 71 years) had earlier done everything in the house for him, read to him and taken him out for walks. Singleton, observed:

“in order to get someone suitable, he will have to pay 25ps. a week, and also to provide the keep of that person who comes in to look after him as house-keeper, and to some extent, as nurse, because he can do little for himself. It must be remembered that someone coming to a house in that way, in the ordinary sense, is not as economical as the wife, another bed-room is necessary. There is additional expense of one kind or another.”

5. Taking the estimated cost of the upkeep of help which the plaintiff would require as a week, the court held that there was a loss of £ 2-5 s.a week and computing for 5 years, awarded £ 625 as damages under the Fatal Accidents Act. The amount of loss consequent upon the death of the wife will often be calculated by the expense incurred in procuring for the husband, the services of a house-keeper or servant since his wile's death and in providing board and lodging for such house-keeper or servant as in Jeffrey v. Smith (1970) R.T.R 279 (CA) , (1970) 114 Sol. Jo. 268 . In that case, the plaintiff was 51 years and there were three children aged 9, 6 and 3, the wife having died. His mother-in-law had looked after the children since the wife's death but her bad health prevented her from continuing to do so. The plaintiff called evidence from an employment-agency to the effect that a house-keeper to look after the children would cost atleast £ 10 per week. The Judge took a multiplier of 10 years and awarded £ 5,200’ On appeal, the award was confirmed. The house-keeper employed may well be a relative as in Morris v. Rigby (1966) 110 S.J 834 (CA) , 110 Sol. Jo. 834 . In that case, the husband, a medical officer; earning £ 2820 a year claimed damages for the death of his wife. He had file children aged two to fifteen years. He got his wife's sister to come and lake care of them and do the domestic duties, paying her a gross wage of £ 20 a week. The judge awarded £ 8000 and the award was confirmed, in Regan v. Williumson 1970 (2) All. E.R 241 (241) also, the house-keeper employed was a relative. There, the wife was 37 years at her death and she left behind her, her husband and four sons aged 13, 10, 7 and 2 years. A relative came in daily (except weekends) to provide meals and to look after the hoys. She was paid £ 16 per week and it cost the plaintiff further £6.50 per week for her food, journeys to and from home and national insurance stamp. The plaintiff estimated that his wife's loss had cost him£ 10 per week to clothe and feed. Watkins J. held that though, according to precedents £ 22.50 (£. 16+6.50) per week minus £ 10 per week, would be sufficient, justice required that the term services should be widely construed. Watkrns, observed:

“I am with due respect to the other Judges to whom I have been referred, of the view that the word services’ has been too narrowly construed. 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 a fact, a work. During some of those hours she may well give the children instructions on essential matters to do with their upbringing and, possibly, with such things as their house-work. This sort of attention seems to be as much aj service, and probably more valuable to them, than the other kinds of service conventionally so regarded.”

(emphasis supplied).

and hastened to add:

“I am aware that there are good mothers and bad mothers. It so happens that I am concerned in the present case with a woman who was a good wife and mother.”

6. On the basis, the figure for dependency was raised from £ 12.50 (25.50-£ 10.0) per week to £ 20 per week and a further sum of £ 1.50 was added for the deceased's financial contribution to the home, had she eventally gone out to work again. A multiplier of it was applied as the the plaintiff was 43 years. The award under the Fatal Accidents Act, was £ 12,298. In Mehmet v. Perry 1977 (2) All. ER 529 the husband had to look after five children aged 14, 11. 7, 6 and 3 years. The two youngest children suffered from a serious hereditary blood disease requiring medication and frequent visits to hospital. Consequently, the husband had to give up his employment after his wife's death and devoted full-time to the care of the family. Between September, 1973 when his wife was killed and the trial in Oct., 1976, his net average loss of earnings were £ 1500 a year. His future net loss would be at the rate of £ 2000 a year. It was held by Brain Neill Q.C (sitting as a deputy Judge) that, in view of the medical evidence, the giving up of the job was proper and that damages should be assessed not at the cost of employing a house-keeper but by reference to the plaintiff's loss of wages since the loss of wages represented the cost of providing the services of a full-time house-keeper in substitution for the wife. In addition, the children were entitled, on the basis of Regan v. Williamson (5 supra) to recover £ 1500 as part of their damages, a sum of £ 1000 for the loss of ‘personal attention’ to them as a mother’ as distinct from her services as a house-keeper but that, that sum must be kept within modest limits as the plaintiff was at home all the time. The plaintiff was also held entitled to some damages for bis loss as a husband, of the personal care and attention of the wife” but that sum should be quite small to avoid any overlap with the damages awarded for house-keeping services. The last of the children required as per medical advice, support for 12 years. A multiplier of 8 was adopted for the family as a unit and 12 for the plaintiff and a sum of £ 19,000 was arrived at.

7. A claim for the loss of a mother's services, by children is not to be diminshed because the grand-mother has voluntarily taken over their care. Hay v. Hughes 1975 (1) All. ER 257 . If, of course, the wife was monetarily contributing to the family, the loss of such pecuniary contributions is also recoverable. They may be her earnings as in Grzelak v. Harefield And Northwood Hospital Management Committee (1968) 112 SC 195 or from her anticipated earnings, as in Regan v. Williamson (5 supra) or as in Feay v. Barnwell (2 supra), from her old age pension, or they may be indirect, by her contributing equally to the joint living expenses of herself and her husband as in Burgess v. Florence Night-angle Hospital 1955 (I) QB 349 . In that case Devlin J. heid that when a husband and wife, either with separate incomes or with a joint income to which they are both beneficially entitled, are living together and sharing their expenses, and in consequence of that fact their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other.”

8. In case the wife was living away from her husband due to family disputes, the validity of the claim depends on the chances of reconciliation. If there was no chance of reconciliation and no intention of returning, the other spouse had no claim as held by the House of Lords in Davies v. Taylor 1974 AC 207 In Gray v. Barrel 1971 (2) All ER 949 where the chances of reconciliation were not nil, tile court gave half the amount it would have given in case of a stable family. All the above cases are fatal accident cases.

9. I shall now refer, in this context, to the case of an injured housewife reported in Dally v. General Steam Navigation Co. 1980 (3) All. ER 696. (CA.) The injured housewife was 34 years of age, married, living with her two children. She did not, after the injury employ anybody to help her. It was a case where the incapacity would continue for her life. The trial was reached seven years after the accident. The question arose whether, while estimating damages, the cost of using a servant has to be awarded not only for the future from date of trial but also for past seven years before trial, when a servant was not, in fact, employed. It was held by Ormorod, Bridge and Templeman JJ, in the Court of Appeal, that so far as the future, from date of trial is concerned, the cost of employing a servant could be awaided as damages—whether the plaintiff — house-wife was going to employ a servant in future or not or was going to spend the award amount for other luxuries. But, so fa: as the past before trial was concerned, she could not recover therefor, she not having employed a servant. Past damages before trial being ‘special damages’— had to be proved as a fact. At the same lime, the Court was to make an award for the period upto date of trial, for the extent of difficulties” which the plaintiff had to contend with, in performing her house-hold duties “Without the wherewithal to employ a servant” and the award considerably increased by the amount otherwise payable towards past pain and suffering upto the trial. The trial Judge awarded £ 11,427 towards expense of employing a servant (before trial and after trial) — and £ 8000 for pain and suffering (past and future) in all £ 19,427. In the appellate Court, a sum of £ 8736-was awarded for future damages instead, of £ 11,427 and the award for pain and buffering was increased from £ 8,000 by sum of £ 2,691, — in effect, maintaining the same figure of £ 19,427 larded by the trial Judge.

10. In the United States of America too, similar principles have been laid down, in Sea-Land Services Inc. v. Gaudet 414 US 573 : 39 L. Ed 9 it has been held as follows: Recovery in a wrongful death action for the monetary value of ‘services which the deceased provided and would have continued to provide but for his (her) wrongful death includes recovery for such services as the nature, twining, education and guidance that a child would, have received, had not the parent been wrongfully killed, ‘Services’ the decedent performed, at home osier his (her) spouse are also compensable. In Michigan C.R Co. v. Vrcc Lund 227 US 59 : 57 L. Ed 417 also it has been held that the word ‘services’ cannot be construed narrowly but include when the beneficiary is a child, the loss of that care, counsel, training and education, which it might, under the evidence, have reasonably received from the parent and which can only be supplied by the services of another.

11. Sercral High Courts in India have, no doubt, considered the basis principles of estimating the loss of services of the house-wife. But the acept cf giving a wider meaning to the word ‘services’ has not been consi dered in the manner, in which the same has come to be considered in England F.or that waller, the ‘love and affection’ or care bestowed by an Indian house-wife to the children and husband, is definitely not inferior to that of her. English counter-part. There is no reason as to why the wider meaning given to the word ‘services’ in England should not be adapted in India”.

12. Abdul Khatler Ebrahim v. Kasinath Moreswar Cltandani 1968 ACJ 78 (Bom) the learned Judges referred to Berry v. Humm (1 supra) while awarding compen sation to the husband for loss of consortium. In Khodabhai Bhagwant Bhai v. Hirji Tapu 1980 ACJ 237 (Guj) , B.K Mehta & S.B Majmudar, JJ. considered the case of a death of a house-wife aged 50 years who was helping the husband in agricutural operations. The claimants were the husband and eight children. The monthly loss to the dependency was assessed at Rs. 75/- and a multiplier of is was adapted, arriving at Rs. 7,200,- and a sum of Rs. 5,000/- was awar ded towards loss of expectation of life, pain and suffering, the accident having cccurrcd on 8-7-1970, resulting in Rs. 12,200/-. Reference was made to Berry v. Humm (I supra). It was observed by the Division Bench:

“even if she was not earning, the gratuitous service rendered by, her would now be required to be substituted by other modes which will have their own economic importance and value and that the pecuniary benefit from these services in the domestic front as in the agricultural operation on the husband will have to be assessed………”

13. The Madhya Pradesh High Court in Manoharlal Sobha v. M.P Electricity Board 1975 ACJ 494 (MP) Considered the case of the death of a house-wife aged 32 years and in the claim by the husband and two minor sons, estimated the value of the service at Rs. 500/- P.A and applying a multiplier of 16, awarded Rs. 8000/- The Andhra Pradesh High Court in C. Venkatesham v. G.M APSRTCM 1977 ACJ 536 (AP) considered the case of death of a house-wife aged 21 years. The claimants: were the husband and two minor children. After deducting the savings for the husband consequent” upon the death of his wife, from the value of the loss of services, the net loss was assessed at Rs. 1200/- P.A and applying a multiplier of 15 a sum of Rs. 18,000/- was awarded. Seeth and Jeevan: Reddy, JJ, observed:

“Therefore, we have evaluate her services rendered to her family and to her household. The first head under which compensation should be awarded to the claimant is the loss of domestic services. This would include the services which she rendered by the claimant is the loss of domestic services. This would include the services which she rendered by cooking the food for the family by maintaining the house hold and by bringing up the children……Out of the amount we have to deduct what the chaimant used to spend on the deceased and what he has been saving now on account of her death.”

14. and while assessing for pain and suffering, and loss of consortium the court awarded a further sum of Rs. 6,000/-, stating that said sum includes the loss of love and affection to the young children who, during their infancy, had been deprived of the motherly affection’.

15. Thus, except in the last mentioned case, where the loss of love and affection was considered along with loss of consortium, the Indian Courts have not chosen to consider the loss of love and affection to the children and to the husband as part of the pecuniary loss awardable together with loss for services. As pointed out, however, in the several rulings quoted earlier, the value of the loss of love and affection to the children and to the husband has also to be estimated as part of the loss of services of the deceased house-wife.

16. From the aforesaid rulings, the following principles can be summarised: (1) The loss to the husband and children consequent upon the death of the house-wife 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 oe remembered that any substitute to be so employed is not likely to be as economical as the house-wife. Apart from the value of obtaining substituted services, the expense of giving commodalion 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 house-wife (2) While estimating the ‘services’ of the hoeus wife, 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 the constant Iove 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 grand-mother is prepared to render voluntary services (3) In case the husband is compelled to give up his job to attend constantly on children who are extremely sickly, the loss of the husband's job can also be treated as loss to the family. If the deceased was contributing from her earnings to the family, that should also be treated as loss. (4) If the wife was totally living away and there were no chances of reconciliation, the loss of services cannot be treated as a loss. But if there were reasonable chances of reconciliation, 50% of the loss of services could be awarded. (5) In the case of an injured house-wife, the award from the date of trial on the above basis of “loss of services” has to be made irrespective of whether she is in fact, going to employ a substitute or not. Even for the period before trial, if she had not engaged a substitute, the award need not be diminished because the extra burden she had borne could be considered as part of the award for the “pain and suffering” and the said burden could be treated as equivalent to that of engaging a substitute.

17. Coming to the facts of the present case, the deceased was aged 34 years and she died in the accident on 2-4-1981 along with her three male children aged 12, 8 and 6 years. The husband-claimant who is the appellant before me was aged 40 years at the time. The total claim, unfortunately, is only in a sum of Rs. 40,000/- for all the four deaths, the Tribunal awarding a shockingly low sum of Rs. 18,000/- for four deaths. The deceased house-wife was not employed. Her ‘special services’ to the family have then to be estimated as including the ‘love and affection’ as also the ‘personal care and attention, she would have given, as a mother to her children and as a wife to her husband. But as in this case, the children are all dead, that ‘special loss to the children need not be taken ihto account, especially when the compensation claim includes the claim due to loss of children in the same accident. The expense that would have been incurred on the wife, if living, has to be deducted. Before me, it was admitted that even putting these at the lowest, the claim made in the case will be exceeded. Taking the ‘special loss’ to the family even at Rs. 150/- P.M, the annual loss will be atleast Rs. 1800/-.

18. The husband being the claimant and naturally older to the wife, a multiplier suitable to the age of the husband has to be selected because these services would have lasted only for the life-time of the husband. The appropriale multiplier from Bhagwandas v. Mohd. Arif AIR 1988 AP 99 , 1987 (2) ALT 137 to a person aged 40 years is 12.79 As the table in that case was for those retiring at 60 years and that is not the case here, a slightly higher multiplier is applied, namely, 13.80 The present value of the future loss to the husband towards services by his wife are thus about Rs. 15,000/-. The loss to the estate consequent on the death of the wife is then to be arrived at. In view of my judgment in Y. Varalakshmi v. M. Nageiliwara Rao 1088 (I) ALT 337 Rs. 7,500/- is payable towards pain and suffering and loss of areeneties and Rs. 7,500/- towards loss of expectation of life, i.e, Rs. 15,000/-. The court below awarded Rs. 3,500/- as loss of consortium. The total loss consequent to the death of the wife comes to Rs. 33,500/-.

19. The claim includes the loss due to the death of three male children also. In APSRTC v. Ramaniah 1987 (II) ALT 526 , I have considered the estimation of loss to the parents on the death of children in various age-groups. In the present case, there is no need to go into them-for even the loss to the estate censequent to the death of each of the children comes to Rs. 15,000/- (Rs. 7,500 + 7.500), in all Rs. 45,000/-. The total loss consequent to the death of the wife and children Rs. 33,500/- + 45,000/- itself exceeds the total claim of Rs. 40,000/-. Hence, the claim has to succeed in full with interest at 6% P.A on the sum of Rs. 18,000/- already awarded and at Rs. 12% P.A on the enhancement of Rs. 22,000/- Interest is awarded from the date of petition.

20. At the relevant time in 1981, the extent of liability of the Insurance Company was only Rs. 5,000/- per passenger subject to an overall maximum of Rs. 75,000/-. For the reasons given by me in CM.A No. 1210/85, the contention of Sri Narayana Rao, the learned counsel for the owner of the owner vehicle as also Sri Mallkarjuna Sastry, the learned counsel for the claimant to the effect that the insurance company is to be made liable for the entire sum of Rs. 40,000/- with interest is liable to be rejected, i am also not prepared to accept the a nanticn that the amendment of 1982 is retrospective. As in the present case, the accident occurred on 12-4-1981, the law enforced prior to 1982 amendment alone applies.

21. In the result, the appeal, is allowed and the compensation is fixed at Rs. 40,000/- the maximum claimed. The insurance company will be liable only for a sum of Rs. 20.000/- with interest at 12 per cent per annum from the date of the petition, subject, however, to the overall liability of Rs. 75,000/-. In regard to the claim for compensation which arose in the accident dated 12-4-1981 in telation to this particular vehicle, it may be noted that while several O. Ps. were filed before the lower Tribunal, only few cases have been carried in appeal to this Court. The liability of the insurance company upto Rs. 75,000/- is to be considered in respect of the context of the claims in respect of the same vehicle. The apportionment already made by the lower court will stand. The C.M.A is accordingly allowed in the manner mentioned above. There shall be no order as to costs.