KIRTI & ANR. ETC.versusORIENTAL INSURANCE COMPANY LTD.

                          [2021] 1 S.C.R. 989                            989


                       KIRTI & ANR. ETC.                                 A
                                  v.
           ORIENTAL INSURANCE COMPANY LTD.
                  (Civil Appeal Nos.19-20 of 2021)
                         JANUARY 05, 2021                                B
               [N.V. RAMANA, S. ABDUL NAZEER
                      AND SURYA KANT, JJ.]
      Motor Vehicles Act, 1988: Claims and legal liabilities
crystallise at the time of accident itself – Any changes post thereto,
ought not to ordinarily affect pending proceedings – Just like how       C
claimants cannot rely upon subsequent increases in minimum wages,
the insurer too cannot seek benefit of the subsequent death of a
dependent during the pendency of legal proceedings – Similarly,
any concession in law made in this regard by either counsel would
not bind the parties.                                                    D
      Concession in law: Permissibility, extent of – Held: Advocates
cannot throw away legal rights or enter into arrangements contrary
to law – Motor Vehicles Act, 1988.
       Motor Vehicles Act, 1988: Assessment of income in the absence
of evidence – Held: In the instant case, although it is correct that     E
the claimants were unable to produce any document evidencing
victim-husband’s income, nor they established his employment as a
teacher; but that would not justify adoption of the lowest-tier of
minimum wage while computing his income – From the statement of
witnesses, documentary evidence-on-record and circumstances of           F
the accident, it is apparent that victim was comparatively more
educationally qualified and skilled – Further, he maintained a
reasonable standard of living for his family as evidenced by his use
of a motorcycle for commuting – Preserving theexisting standard of
living of a deceased’s family is a fundamental endeavour of motor
accident compensation law – Thus, the minimum wage of Rs 6197            G
as applicable to skilled workers applied in his case.
     Motor Vehicles Act, 1988: Future prospects – In case the
deceased was self-employed or on a fixed salary, an addition of
40% of the established income should be the warrant where the
                                                                         H
                                 989
990            SUPREME COURT REPORTS                      [2021] 1 S.C.R.


A     deceased was below the age of 40 years – An addition of 25%
      where the deceased was between the age of 40 to 50 years and
      10% where the deceased was between the age of 50 to 60 years
      should be regarded as the necessary method of computation – The
      established income means the income minus the tax component –
      The argument that no future prospects ought to be allowed for those
B
      with notional income, is both incorrect in law and without merit
      considering the constant inflation-induced increase in wages.
            Motor Vehicles Act, 1988: Calculation of notional income for
      homemakers and the grant of future prospects with respect to them,
      for the purposes of grant of compensation – Determining factors,
C     discussed. (Per N.V. Ramana, J – Supplementing)
            Partly allowing the appeals, the Court
            HELD:
            Per SURYA KANT, J.:
D
             1. It cannot be disputed that at the time of death, there in
      fact were four dependents of the deceased and not three. The
      subsequent death of the deceased’s dependent mother ought not
      to be a reason for reduction of motor accident compensation.
      Claims and legal liabilities crystallise at the time of the accident
E     itself, and changes post thereto ought not to ordinarily affect
      pending proceedings. Just like how appellant-claimants cannot
      rely upon subsequent increases in minimum wages, the
      respondent-insurer too cannot seek benefit of the subsequent
      death of a dependent during the pendency of legal proceedings.
F     Similarly, any concession in law made in this regard by either
      counsel would not bind the parties, as it is legally settled that
      advocates cannot throw-away legal rights or enter into
      arrangements contrary to law. [Para 10][998-G; 999-A-B]
            2.1 Any compensation awarded by a Court ought to be just,
      reasonable and consequently must undoubtedly be guided by
G
      principles of fairness, equity, and good conscience. Not only did
      the family of the deceased consist of septuagenarian parents, but
      there were also two toddler-girls, aged merely 3 and 4 years;
      each of whom requires exceptional care and expenditure till they
      reach the stage of self-dependency. Tragically, in addition to the
H
        KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                          991
                     COMPANY LTD.

married couple, the negligence of the driver also extinguished           A
the life of the family’s third child who was a foetus in victim-lady’s
womb at the time of the accident. Thus, the appropriate deduction
for personal expenses for both victims (couple) ought to be 1/4th
only, and not 1/3rd as applied by the Tribunal and the High Court,
more so when there were four family members dependent on the
                                                                         B
deceased. [Para 11][999-C-E]
      Director of Elementary Education v. Pramod Kumar
      Sahoo (2019) 10 SCC 674 Helen C Rebello v.
      Maharashtra State Road Transport Corp, (1999) 1 SCC
      90 – relied on
                                                                         C
       2.2 Second, although it is correct that the claimants have
been unable to produce any document evidencing victim-
husband’s income, nor have they established his employment as
a teacher; but that doesn’t justify adoption of the lowest-tier of
minimum wage while computing his income. From the statement
of witnesses, documentary evidence-on-record and circumstances           D
of the accident, it is apparent that victim was comparatively more
educationally qualified and skilled. Further, he maintained a
reasonable standard of living for his family as evidenced by his
use of a motorcycle for commuting. Preserving theexisting
standard of living of a deceased’s family is a fundamental endeavour     E
of motor accident compensation law. Thus, at the very least, the
minimum wage of Rs 6197 as applicable to skilled workers during
April 2014 in the State of Haryana ought to be applied in his case.
[Para 12][999-E-G; 1000-A]
      RK Malik v. Kiran Pal (2019) 14 SCC 1 - relied on                  F
      2.3 Third and most importantly, it is unfair on part of the
respondent-insurer to contest grant of future prospects
considering their submission before the High Court that such
compensation ought not to be paid pending outcome of the Pranay
Sethi reference. Nevertheless, the law on this point is no longer        G
res integra, and stands crystalised, as it was held therein that in
case the deceased was self-employed or on a fixed salary, an
addition of 40% of the established income should be the warrant
where the deceased was below the age of 40 years. An addition
of 25% where the deceased was between the age of 40 to 50
                                                                         H
992            SUPREME COURT REPORTS                      [2021] 1 S.C.R.


A     years and 10% where the deceased was between the age of 50 to
      60 years should be regarded as the necessary method of
      computation. The established income means the income minus
      the tax component. [Para 13][1000-B-D]
            National Insurance Co Ltd v. Pranay Sethi (2017) 16
B           SCC 680 – followed
            3. Given how both deceased were below 40 years and how
      they have not been established to be permanent employees, future
      prospects to the tune of 40% must be paid. The argument that
      no such future prospects ought to be allowed for those with
C     notional income, is both incorrect in law and without merit
      considering the constant inflation-induced increase in wages. It
      was held in Hem Raj v. Oriental Insurance Co. Ltd. that there
      cannot be distinction where there is positive evidence of income
      and where minimum income is determined on guesswork in the
      facts and circumstances of a case. Both the situations stand at
D     the same footing. Accordingly, in the present case, addition of
      40% to the income assessed by the Tribunal is required to be
      made..” [Para 14][1000-E-G]
            Sunita Tokas v. New India Insurance Co Ltd 2019 SCC
            OnLine SC 1045; Hem Raj v. Oriental Insurance Co.
E           Ltd. (2018) 15 SCC 654 – relied on
            Per N.V. RAMANA, J. (Supplementing):
             1. There are two distinct categories of situations wherein
      the Court usually determines notional income of a victim. The
F     first category of cases relates to those wherein the victim was
      employed, but the claimants are not able to prove her actual
      income, before the Court. In such a situation, the Court “guesses”
      the income of the victim on the basis of the evidence on record,
      like the quality of life being led by the victim and her family, the
      general earning of an individual employed in that field, the
G     qualifications of the victim, and other considerations. The second
      category of cases relates to those situations wherein the Court
      is called upon to determine the income of a non-earning victim,
      such as a child, a student or a homemaker. Needless to say,
      compensation in such cases is extremely difficult to quantify.
      [Paras 2, 3][1002-B-D]
H
        KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                        993
                     COMPANY LTD.

       2. The Court often follows different principles for             A
determining the compensation towards a non-earning victim in
order to arrive at an amount which would be just in the facts and
circumstances of the case. Some of these involve the
determination of notional income. One category of non-earning
victims that Courts are often called upon to calculate the
                                                                       B
compensation for are homemakers. A housemaker often prepares
food for the entire family, manages the procurement of groceries
and other household shopping needs, cleans and manages the
house and its surroundings, undertakes decoration, repairs and
maintenance work, looks after the needs of the children and any
aged member of the household, manages budgets and so much              C
more. In rural households, they often also assist in the sowing,
harvesting and transplanting activities in the field, apart from
tending cattle. However, despite all the above, the conception
that housemakers do not “work” or that they do not add economic
value to the household is a problematic idea that has
                                                                       D
persisted for many years and must be overcome. [Paras 4, 5,
10][1002-D-E, F; 1005-D-F]
       3. On considering the growing awareness around this issue,
the United Nations Committee on the Elimination of
Discrimination against Women adopted General Recommendation
No. 17 on the “Measurement and quantification of the                   E
unremunerated domestic activities of women and their recognition
in the gross national product” in 1991. The General
Recommendation affirmed that “the measurement and
quantification of the unremunerated domestic activities of women,
which contribute to development in each country, will help to reveal   F
the de facto economic role of women”. It is worth noting that the
above General Recommendation is passed in furtherance of Article
11 of the Convention on the Elimination of All Forms of
Discrimination against Women which relates to ending
discrimination against women in the field of employment,
a Convention that India has ratified. [Paras 13, 14][1006-F-G;         G
1007-A]
       4. The issue of fixing notional income for a homemaker,
therefore, serves extremely important functions. It is a
recognition of the multitude of women who are engaged in this
activity, whether by choice or as a result of social/cultural norms.   H
994            SUPREME COURT REPORTS                         [2021] 1 S.C.R.


A     It signals to society at large that the law and the Courts of the
      land believe in the value of the labour, services and sacrifices of
      homemakers. It is an acceptance of the idea that these activities
      contribute in a very real way to the economic condition of the
      family, and the economy of the nation, regardless of the fact that
      it may have been traditionally excluded from economic analyses.
B
      It is a reflection of changing attitudes and mindsets and of our
      international law obligations. And, most importantly, it is a step
      towards the constitutional vision of social equality and ensuring
      dignity of life to all individuals. Returning to the question of how
      such notional income of a homemaker is to be calculated, there
C     can be no fixed approach. It is to be understood that in such
      cases the attempt by the Court is to fix an approximate economic
      value for all the work that a homemaker does, impossible though
      that task may be. Courts must keep in mind the idea of awarding
      just compensation in such cases, looking to the facts and
      circumstances. [Para 15, 16][1007-B-E]
D
             R.K. Malik v. Kiran Pal (2009) 14 SCC 1; M.R.
             Krishna Murthi v. New India Assurance Co. Ltd. 2019
             SCC OnLine SC 315; Lata Wadhwa v. State of Bihar
             (2001) 8 SCC 197 : [2001] 1 Suppl. SCR 578;
             Arun Kumar Agrawal v. National Insurance Co. Ltd.
E            (2010) 9 SCC 218 : [2010] 9 SCR 303; Rajendra Singh
             v. National Insurance Co. Ltd. 2020 SCC OnLine SC
             521; National Insurance Co. Ltd. v. Minor Deepika rep.
             by guardian and next friend, Ranganathan 2009 SCC
             OnLine Mad 828; Kajal v. Jagdish Chand (2020) 4
F            SCC 413; General Manager, Kerala State Road
             Transport Corporation, Trivandrum v. Susamma Thomas
             (Mrs), (1994) 2 SCC 176; Sarla Dixit (Smt)
             v. Balwant Yadav (1996) 3 SCC 179 : [1996] 3 SCR
             30; Sarla Verma (Smt) v. Delhi Transport Corporation
             (2009) 6 SCC 121: [2009] 5 SCR 1098 – relied on.
G            5. The rationale behind the awarding of future prospects is
      therefore no longer merely about the type of profession, whether
      permanent or otherwise, although the percentage awarded is still
      dependent on the same. The awarding of future prospects is now
      a part of the duty of the Court to grant just compensation, taking
H     into account the realities of life, particularly of inflation, the quest
        KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                       995
                     COMPANY LTD.

of individuals to better their circumstances and those of their       A
loved ones, rising wage rates and the impact of experience on
the quality of work. [Para 23][1010-H; 1011-A-B]
      National Insurance Company Limited v. Pranay
      Sethi (2017) 16 SCC 680 : [2017] 13 SCR 100
      – followed.                                                     B
      6. Taking the above rationale into account, the situation is
quite clear with respect to notional income determined by a Court
in the first category of cases outlined earlier, those where the
victim is proved to be employed but claimants are unable to prove
the income before the Court. Once the victim has been proved
to be employed at some venture, the necessary corollary is that       C
they would be earning an income. It is clear that no rational
distinction can be drawn with respect to the granting of future
prospects merely on the basis that their income was not proved,
particularly when the Court has determined their notional income.
When it comes to the second category of cases, relating to notional   D
income for non-earning victims, the above principle applies with
equal vigor, particularly with respect to homemakers. Once
notional income is determined, the effects of inflation would
equally apply. Further, no one would ever say that the
improvements in skills that come with experience do not take
place in the domain of work within the household. [Paras 24,          E
25][1011-B-E]
      Hem Raj v. Oriental Insurance Company Limited (2018)
      15 SCC 654; Sunita Tokas v. New India Insurance Co.
      Ltd. (2019) 20 SCC 688 – relied on.
                       Case Law Reference                             F
Per SURYA KANT, J.
(2019) 10 SCC 674               relied on             Para 10
(1999) 1 SCC 90                 relied on             Para 11
(2009) 14 SCC 1                 relied on             Para 12         G
(2017) 16 SCC 680               relied on             Para 13
(2018) 15 SCC 65                relied on             Para 14
Per N.V. RAMANA, J.
(2001) 8 SCC 197              relied on               Para 5
                                                                      H
996            SUPREME COURT REPORTS                        [2021] 1 S.C.R.


A     (2010) 9 SCC 218                relied on                Para 6
      [2019] 6 SCR 402                relied on                Para 16
      (2017) 16 SCC 680               followed                 Para 20
      (2020) 4 SCC 413                relied on                Para 20
B     (1994) 2 SCC 176                relied on                Para 20
      (1996) 3 SCC 179                relied on                Para 20
      (2009) 6 SCC 121                relied on                Para 21
      (2018) 15 SCC 654               relied on                Para 25
C
      (2019) 20 SCC 688               relied on                Para 25
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 19-20
      of 2021.
            From the Judgment and Order dated 17.07.2017 by the High Court
D     of Delhi at New Delhi in MAC. APP. Nos. 336 of 2017 and 375 of
      2017.
            Mritunjay Kumar Sinha, S.N. Parasar, Ranjan Kumar Pandey,
      K.K. Bhat for the appearing parties.
            The Judgment of the Court was delivered by
E
            SURYA KANT, J.
            Leave Granted.
            2. These civil appeals, which have been heard through video
      conferencing, have been filed by three surviving dependents (who are
F     two minor daughters and father) of the two deceased, impugning the
      judgment dated 17.07.2017 of the High Court of Delhi through which
      the motor accident compensation of Rs 40.71 lakhs awarded by the
      Motor Accident Claims Tribunal, Rohini (hereinafter, “Tribunal”) on
      24.12.2016 under Section 168 of the Motor Vehicle Act, 1988 (“MV
      Act”), was reduced to Rs 22 lakhs.
G
            FACTUAL MATRIX
             3. The deceased couple, Vinod and Poonam, while commuting on
      a motorcycle in Delhi at around 7AM on 12.04.2014 were hit at an
      intersection by a Santro Car bearing registration ‘DL 7CA 1053’. The
H     impact immediately incapacitated both the deceased and they soon passed
         KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                              997
              COMPANY LTD. [SURYA KANT, J.]

away from cranio-cerebral damage and haemorrhagic shock caused by             A
the accident’s blunt-force trauma.
       4. An FIR was registered under Sections 279 and 304 of the Indian
Penal Code, 1860 (hereinafter, “IPC”) against the driver, and the
statement of an independent eyewitness (Constable Vishnu Dutt) was
recorded, which evidenced rash driving and negligence on part of the          B
car-driver. Subsequently, a claim petition was filed under Section 166 of
the MV Act by the two toddler-daughters and septuagenarian-parents
of the deceased. This was contested by the driver and owner claiming
that the deceased were themselves driving negligently and the accident
was as a result of their very own actions. Two witnesses were examined
by the appellant-claimants and none by the respondents. The insurance         C
company (Respondent No. 1) offered as settlement a compensation of
Rs 6.47 lakhs for the death of Poonam and Rs 10.71 lakhs for Vinod.
       5. The Tribunal took note of the chargesheet filed against the
driver in the criminal case and also his failure to step-into the witness
box. Relying on the strong testimony of the independent witness, it was       D
concluded that the car-driver was indeed driving rashly and thus liability
ought to be fastened on the respondent-insurer. Regarding the quantum
of compensation, the Tribunal began by determining the ages of Poonam
and Vinod as being 26 and 29 years respectively. Consequently, an age-
multiplier of 17 was adopted. Although the deceased’s father took a plea      E
that Vinod was earning Rs 14,000 every month as a teacher at the Pratap
Public School in Delhi, but he was unable to substantiate his claim with
any documentary evidence. Thus, minimum wage in Delhi was adopted
for computation of loss of dependency. An additional 25% income was
accounted for future prospects of Poonam, and 1/3rd of Vinod’s salary
was deducted towards personal expenses. Rs 2.50 lakhs was given for           F
each deceased as compensation for loss of love and affection, estate,
and funeral charges. Thus, the Tribunal awarded a total sum of Rs 40.71
lakhs for both deceased to the claimants.
       6. This computation was challenged by the respondent-insurer
before the High Court, on grounds that the Tribunal had erroneously           G
relied upon the minimum wage as notified by Government of Delhi as
there was no proof that the deceased were employed in Delhi. Instead,
given their established residence in Haryana, the minimum wage notified
for that State ought to be the basis for calculation of loss of dependency.
Simultaneously, addition of future prospects as well as non-deduction of      H
998                SUPREME COURT REPORTS                       [2021] 1 S.C.R.


A     personal expenses for Poonam was prayed to be reversed. Further,
      compensation was sought to be halved on grounds of contributory
      negligence. A categorical submission was made highlighting the then
      divergent law on the issue of payment of ‘future prospects’ to non-
      permanent employees, pending resolution of which, it was prayed that
      no such addition be granted to the claimants.
B
             7. The High Court concurred with these contentions and
      consequently reduced the notional income for both deceased by adopting
      the lowest minimum wage applicable for unskilled workers in Haryana,
      instead of Delhi. Similarly, 1/3rd of Poonam’s income was deducted
      towards personal expenses and future prospects were denied to both
C     deceased. However, given the totality of circumstances and Poonam’s
      contribution to her household, 25% additional gratuitous income was added
      to her salary. The High Court thus brought down the total compensation
      payable to the claimants to Rs 22 lakhs.
                CONTENTIONS OF PARTIES
D
             8. This reduction has been assailed before us by learned counsel
      for the claimants. Re-computation is sought of compensation for loss of
      dependency consequent to the decision of the Constitutional Bench of
      this Court in National Insurance Co Ltd v. Pranay Sethi 1, which
      authoritatively settles the law on future prospects for non-permanent
E     employees as well. Furthermore, the anomaly between the gratuitous
      increase of income between Vinod and Poonam, and the usage of unskilled
      minimum wage for Vinod have been brought to our notice.
             9. Learned Counsel for the respondent-insurer, on the other hand,
      has sought to forestall any increase in compensation, including under the
F     ground of future prospects. It is claimed that the High Court’s decision
      was a consent order, and that the counsel for the appellants had conceded
      to a lower computation under the head of loss of dependency, which
      thus cannot be challenged before this Court.
                ANALYSIS
G
                I.Deduction for Personal Expenses
             10. We have thoughtfully considered the rival submissions. It cannot
      be disputed that at the time of death, there in fact were four dependents
      of the deceased and not three. The subsequent death of the deceased’s
      1
H         (2017) 16 SCC 680.
          KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                                     999
               COMPANY LTD. [SURYA KANT, J.]

dependent mother ought not to be a reason for reduction of motor accident             A
compensation. Claims and legal liabilities crystallise at the time of the
accident itself, and changes post thereto ought not to ordinarily affect
pending proceedings. Just like how appellant-claimants cannot rely upon
subsequent increases in minimum wages, the respondent-insurer too
cannot seek benefit of the subsequent death of a dependent during the
                                                                                      B
pendency of legal proceedings. Similarly, any concession in law made in
this regard by either counsel would not bind the parties, as it is legally
settled that advocates cannot throw-away legal rights or enter into
arrangements contrary to law.2
       11. Any compensation awarded by a Court ought to be just,
reasonable and consequently must undoubtedly be guided by principles                  C
of fairness, equity, and good conscience.3 Not only did the family of the
deceased consist of septuagenarian parents, but there were also two
toddler-girls, aged merely 3 and 4 years; each of whom requires
exceptional care and expenditure till they reach the stage of self-
dependency. Tragically, in addition to the married couple, the negligence             D
of the driver also extinguished the life of the family’s third child who was
a foetus in Poonam’s womb at the time of the accident. Thus, the
appropriate deduction for personal expenses for both Vinod and Poonam
ought to be 1/4th only, and not 1/3rd as applied by the Tribunal and the
High Court, more so when there were four family members dependent
on the deceased.                                                                      E
       II. Assessment of monthly income
       12. Second, although it is correct that the claimants have been
unable to produce any document evidencing Vinod’s income, nor have
they established his employment as a teacher; but that doesn’t justify
adoption of the lowest-tier of minimum wage while computing his income.               F
From the statement of witnesses, documentary evidence-on-record and
circumstances of the accident, it is apparent that Vinod was comparatively
more educationally qualified and skilled. Further, he maintained a
reasonable standard of living for his family as evidenced by his use of a
motorcycle for commuting. Preserving theexisting standard of living of
                                                                                      G
a deceased’s family is a fundamental endeavour of motor accident
compensation law.4 Thus, at the very least, the minimum wage of Rs
2
  Director of Elementary Education v. Pramod Kumar Sahoo, (2019) 10 SCC 674, ¶ 11.
3
  See, Helen C Rebello v. Maharashtra State Road Transport Corp, (1999) 1 SCC 90, ¶
28.
4
  See, RK Malik v. Kiran Pal, (2019) 14 SCC 1, ¶ 9.                                   H
1000             SUPREME COURT REPORTS                               [2021] 1 S.C.R.


 A     6197 as applicable to skilled workers during April 2014 in the State of
       Haryana ought to be applied in his case.
              III. Addition of Future Prospects
              13. Third and most importantly, it is unfair on part of the respondent-
       insurer to contest grant of future prospects considering their submission
 B     before the High Court that such compensation ought not to be paid pending
       outcome of the Pranay Sethi (supra) reference. Nevertheless, the law
       on this point is no longer res integra, and stands crystalised, as is clear
       from the following extract of the afore-cited Constitutional Bench
       judgment5:
 C            “59.4. In case the deceased was self-employed or on a fixed
              salary, an addition of 40% of the established income should
              be the warrant where the deceased was below the age of 40
              years. An addition of 25% where the deceased was between
              the age of 40 to 50 years and 10% where the deceased was
              between the age of 50 to 60 years should be regarded as the
 D            necessary method of computation. The established income
              means the income minus the tax component.”
                                                             [Emphasis supplied]
              14. Given how both deceased were below 40 years and how they
       have not been established to be permanent employees, future prospects
 E     to the tune of 40% must be paid. The argument that no such future
       prospects ought to be allowed for those with notional income, is both
       incorrect in law6 and without merit considering the constant inflation-
       induced increase in wages. It would be sufficient to quote the observations
       of this Court in Hem Raj v. Oriental Insurance Co. Ltd.7, as it puts at
       rest any argument concerning non-payment of future prospects to the
 F
       deceased in the present case:
              “7. We are of the view that there cannot be distinction where
              there is positive evidence of income and where minimum
              income is determined on guesswork in the facts and
              circumstances of a case. Both the situations stand at the same
 G            footing. Accordingly, in the present case, addition of 40% to
              the income assessed by the Tribunal is required to be made..”
                                                             [Emphasis supplied]
       5
         National Insurance Co Ltd v. Pranay Sethi, (2017) 16 SCC 680, ¶ 59.4.
       6
         Sunita Tokas v. New India Insurance Co Ltd, 2019 SCC OnLine SC 1045.
       7
 H       (2018) 15 SCC 654.
         KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                                1001
              COMPANY LTD. [SURYA KANT, J.]

      IV. Other heads and division of compensation                              A
        15. Finally, given the lack of arguments on the other heads of
funeral charges, loss of estate, love, and affection; there arises no cause
of alteration. We similarly see no infirmity with the High Court’s adoption
of 17 as the age-multiplier, award of 9% interest, calculation of Poonam’s
notional income or the division of total compensation in the ratio of 1:2:2     B
between the grandfather and the two girls. For ready reference, a
comparative table of revised compensation after suitable increases would
thus be as follows:


                                                                                C




                                                                                D




                                                                                E




      CONCLUSION
                                                                                F
        16. For the reasons afore-stated, the appeals are allowed in-part.
The total motor accident compensation of Rs 22 lakhs awarded by the
High Court to the claimant-appellants is increased by Rs 11.20 lakhs to
reach a new total of Rs 33.20 lakhs. The enhanced amount of
compensation shall be paid within two months along with interest @ 9%
p.a. from the date of filing of the Detailed Accident Report i.e. 23.05.2014,   G
and shall be apportioned per the terms laid down by the Tribunal.
      N. V. RAMANA, J.
      1. I have had the advantage of perusing the judgment prepared by
my learned brother, Surya Kant, J., and am in complete agreement with
                                                                                H
1002             SUPREME COURT REPORTS                           [2021] 1 S.C.R.


 A     him. However, I thought to supplement the reasoning in his judgment,
       with respect to the question of notional income of a housewife and
       whether future prospects should apply to the same or not.
              2. There are two distinct categories of situations wherein the Court
       usually determines notional income of a victim. The first category of
 B     cases relates to those wherein the victim was employed, but the claimants
       are not able to prove her actual income, before the Court. In such a
       situation, the Court “guesses” the income of the victim on the basis of
       the evidence on record, like the quality of life being led by the victim and
       her family, the general earning of an individual employed in that field, the
       qualifications of the victim, and other considerations.
 C
             3. The second category of cases relates to those situations wherein
       the Court is called upon to determine the income of a non-earning victim,
       such as a child, a student or a homemaker. Needless to say, compensation
       in such cases is extremely difficult to quantify.

 D            4. The Court often follows different principles for determining the
       compensation towards a non-earning victim in order to arrive at an amount
       which would be just in the facts and circumstances of the case. Some of
       these involve the determination of notional income. Whenever notional
       income is determined in such cases, different considerations and factors
       are taken into account. For instance, for students, the Court often
 E     considers the course that they are studying, their academic proficiency,
       the family background, etc., to determine and fix what they could earn in
       the future. [See M. R. Krishna Murthi v. New India Assurance Co.
       Ltd., 2019 SCC OnLine SC 315]
              5. One category of non-earning victims that Courts are often called
 F     upon to calculate the compensation for are homemakers. The granting
       of compensation for homemakers on a pecuniary basis, as in the present
       case, has been considered by this Court earlier on numerous occasions.
       A three-Judge Bench of this Court in Lata Wadhwa v. State of Bihar,
       (2001) 8 SCC 197, while dealing with compensation for the victims of
 G     a fire during a function, granted compensation to housewives on the
       basis of the services rendered by them in the house, and their age. This
       Court, in that case, held as follows:
             “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
 H
       KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                              1003
           COMPANY LTD. [N. V. RAMANA, J.]

     the compensation on the basis of services rendered by them             A
     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
                                                                            B
     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                   C
     modest estimation, should be Rs 3000 per month and Rs
     36,000 per annum…”
                                                  (emphasis supplied)
      6. In Arun Kumar Agrawal v. National Insurance Co. Ltd.,
(2010) 9 SCC 218, this Court, while dealing with the grant of               D
compensation for the death of a housewife due to a motor vehicle
accident, held as follows:
     “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               E
     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         F
     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       G
     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            H
1004              SUPREME COURT REPORTS                                 [2021] 1 S.C.R.


 A            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
 B
              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
 C            services to the family which the deceased was giving earlier.”
                                                                  (emphasis supplied)
             The above pronouncement has been followed by this Court in its
       recent judgment in Rajendra Singh v. National Insurance Co. Ltd.,
       2020 SCC OnLine SC 521, wherein the notional income of a deceased
 D     housewife was calculated for the purposes of granting compensation in
       a motor accident case.
              7. Before discussing this topic further, it is necessary to comment
       on its gendered nature. In India, according to the 2011 Census, nearly
       159.85 million women stated that “household work” was their main
 E     occupation, as compared to only 5.79 million men.
              8. In fact, the recently released Report of the National Statistical
       Office of the Ministry of Statistics & Programme Implementation,
       Government of India called “Time Use in India- 2019”, which is the
       first Time Use Survey in the country and collates information from
 F     1,38,799 households for the period January, 2019 to December, 2019,
       reflects the same gender disparity.1 The key findings of the survey suggest
       that, on an average, women spend nearly 299 minutes a day on unpaid
       domestic services for household members versus 97 minutes spent by
       men on average.2 Similarly, in a day, women on average spend 134 minutes
 G     on unpaid caregiving services for household members as compared to
       the 76 minutes spent by men on average.3 The total time spent on these
       activities per day makes the picture in India even more clear- women on
       average spent 16.9 and 2.6 percent of their day on unpaid domestic
       1
         National Statistical Office, Time Use in India- 2019 (September, 2020).
       2
         Id, at 56.
       3
 H       Id, at 54.
         KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                               1005
             COMPANY LTD. [N. V. RAMANA, J.]

services and unpaid caregiving services for household members                  A
respectively, while men spent 1.7 and 0.8 percent.4
       9. It is curious to note that this is not just a phenomenon unique to
India, but is prevalent all over the world. A 2009 Report by a Commission
set up by the French Government, analyzing data from six countries, viz.
Germany, Italy, United Kingdom, France, Finland and the United States          B
of America, highlighted similar findings:
      “117. Gender differences in time use are significant. In each of
      the countries under consideration, men spend more time in paid
      work than women and the converse is true for unpaid work.
      Men also spend more time on leisure than women. The                      C
      implication is that women provide household services but
      other members of the household benefit…”5
                                                    (emphasis supplied)
      10. The sheer amount of time and effort that is dedicated to
household work by individuals, who are more likely to be women than            D
men, is not surprising when one considers the plethora of activities a
housemaker undertakes. A housemaker often prepares food for the entire
family, manages the procurement of groceries and other household
shopping needs, cleans and manages the house and its surroundings,
undertakes decoration, repairs and maintenance work, looks after the           E
needs of the children and any aged member of the household, manages
budgets and so much more. In rural households, they often also assist in
the sowing, harvesting and transplanting activities in the field, apart from
tending cattle [See Arun Kumar Agrawal (supra); National Insurance
Co. Ltd. v. Minor Deepika rep. by her guardian and next friend,
Ranganathan, 2009 SCC OnLine Mad 828]. However, despite all                    F
the above, the conception that housemakers do not “work” or that they
do not add economic value to the household is a problematic idea that
has persisted for many years and must be overcome.
      11. The concurring opinion in the Arun Kumar Agrawal judgment
(supra), has highlighted this bias:                                            G
      “44. This bias is shockingly prevalent in the work of census. In
      the Census of 2001 it appears that those who are doing household
4
 Id, at x.
5
 Stiglitz et al. , Report of the Commission on the Measurement of Economic
Performance and Social Progress, 117 (2009).                                   H
1006            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


 A             duties like cooking, cleaning of utensils, looking after children,
               fetching water, collecting firewood have been categorised as non-
               workers and equated with beggars, prostitutes and prisoners who,
               according to the census, are not engaged in economically
               productive work. As a result of such categorisation about 36 crores
               (367 million) women in India have been classified in the Census
 B
               of India, 2001 as non-workers and placed in the category of
               beggars, prostitutes and prisoners. This entire exercise of census
               operations is done under an Act of Parliament.”
               12. In fact, this unfortunate silence when it comes to the value of
       housework has been a problem which was identified as far back as in
 C     1920, when the economist Pigou noted the oddity and contradictions
       when it came to the calculation of the contribution of women in the
       national income, by stating that:
               “…the services rendered by women enter into the dividend when
               they are rendered in exchange for wages, whether in the factory
 D             or in the home, but do not enter into it when they are rendered by
               mothers and wives gratuitously to their own families. Thus, if a
               man marries his housekeeper or his cook, the national dividend is
               diminished”.6
               This issue was further focused on by those in the field of feminism
 E     economics in the 1970s and 1980s, who criticized the traditional labour
       statistics which did not consider unpaid domestic work and therefore
       undervalued women’s role in the economy.7
               13. On considering the growing awareness around this issue, the
       United Nations Committee on the Elimination of Discrimination against
       Women adopted General Recommendation No. 17 on the “Measurement
 F     and quantification of the unremunerated domestic activities of women
       and their recognition in the gross national product” in 1991. The
       General Recommendation affirmed that “the measurement and
       quantification of the unremunerated domestic activities of women,
       which contribute to development in each country, will help to reveal
 G     the de facto economic role of women”.
               14. It is worth noting that the above General Recommendation is
       passed in furtherance of Article 11 of the Convention on the Elimination
       6
        Cecil Pigou, The Economics of Welfare, 44 (1920).
       7
        United Nations Economic Commission for Europe, Guide on Valuing Unpaid
 H     Household Service Work, 2 (2017).
         KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                                   1007
             COMPANY LTD. [N. V. RAMANA, J.]

of All Forms of Discrimination against Women which relates to ending               A
discrimination against women in the field of employment, a Convention
that India has ratified.
       15. The issue of fixing notional income for a homemaker, therefore,
serves extremely important functions. It is a recognition of the multitude
of women who are engaged in this activity, whether by choice or as a               B
result of social/cultural norms. It signals to society at large that the law
and the Courts of the land believe in the value of the labour, services and
sacrifices of homemakers. It is an acceptance of the idea that these
activities contribute in a very real way to the economic condition of the
family, and the economy of the nation, regardless of the fact that it may
have been traditionally excluded from economic analyses. It is a reflection        C
of changing attitudes and mindsets and of our international law obligations.
And, most importantly, it is a step towards the constitutional vision of
social equality and ensuring dignity of life to all individuals.
      16. Returning to the question of how such notional income of a
homemaker is to be calculated, there can be no fixed approach. It is to            D
be understood that in such cases the attempt by the Court is to fix an
approximate economic value for all the work that a homemaker does,
impossible though that task may be. Courts must keep in mind the idea
of awarding just compensation in such cases, looking to the facts and
circumstances [See R.K. Malik v. Kiran Pal, (2009) 14 SCC 1].                      E
       17. One method of computing the notional income of a homemaker
is by using the formula provided in the Second Schedule to the Motor
Vehicles Act, 1988, which has now been omitted by the Motor Vehicle
(Amendment) Act, 2019. The Second Schedule provided that the income
of a spouse could be calculated as one-third of the income of the earning          F
surviving spouse. This was the method ultimately adopted by the Court
in the Arun Kumar Agrawal (supra) case. However, rationale behind
fixing the ratio as one-third is not very clear. [See Arun Kumar Agrawal
(supra)]
      18. Apart from the above, scholarship around this issue could
                                                                                   G
provide some guidance as to other methods to determine the notional
income for a homemaker.8 Some of these methods were highlighted by

8
 See Ann Chadeau, What is Households’ Non-Market Production Worth, OECD
ECONOMIC S TUDIES NO. 18 (1992); Also see United Nations Economic Commission for
Europe, supra note 7.                                                              H
1008             SUPREME COURT REPORTS                           [2021] 1 S.C.R.


 A     a Division Bench of the Madras High Court in the case of Minor
       Deepika(supra)whichheld as follows:
             “10. The Second Schedule to the Motor Vehicles Act gives a
             value to the compensation payable in respect of those who had no
             income prior to the accident and for a spouse, it says that one-
 B           third of the income of the earning surviving spouse should be the
             value. Exploration on the internet shows that there have been
             efforts to understand the value of a homemaker’s unpaid labour
             by different methods. One is, the opportunity cost which
             evaluates her wages by assessing what she would have
             earned had she not remained at home, viz., the opportunity
 C           lost. The second is, the partnership method which assumes
             that a marriage is an equal economic partnership and in
             this method, the homemaker’s salary is valued at half her
             husband’s salary. Yet another method is to evaluate
             homemaking by determining how much it would cost to
 D           replace the homemaker with paid workers. This is called
             the Replacement Method.”
                                                           (emphasis supplied)
              19. However, it must be remembered that all the above methods
       are merely suggestions. There can be no exact calculation or formula
 E     that can magically ascertain the true value provided by an individual
       gratuitously for those that they are near and dear to. The attempt of the
       Court in such matters should therefore be towards determining, in the
       best manner possible, the truest approximation of the value added by a
       homemaker for the purpose of granting monetary compensation.
 F            20. Whichever method a Court ultimately chooses to value the
       activities of a homemaker, would ultimately depend on the facts and
       circumstances of the case. The Court needs to keep in mind its duty to
       award just compensation, neither assessing the same conservatively, nor
       so liberally as to make it a bounty to claimants [National Insurance
 G     Company Limited v. Pranay Sethi, (2017) 16 SCC 680; Kajal v.
       Jagdish Chand, (2020) 4 SCC 413].
              21. Once notional income has been determined, the question
       remains as to whether escalation for future prospects should be granted
       with regard to it. Initially, the awarding of future prospects by this Court
       was related to the stability of the job held by the victim [See General
 H
         KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                            1009
             COMPANY LTD. [N. V. RAMANA, J.]

Manager, Kerala State Road Transport Corporation, Trivandrum                A
v. Susamma Thomas (Mrs), (1994) 2 SCC 176; Sarla Dixit (Smt) v.
Balwant Yadav, (1996) 3 SCC 179]. This focus on the stability of the
job of the victim, while awarding future prospects, was continued in the
judgment of this Court in Sarla Verma (Smt) v. Delhi Transport
Corporation, (2009) 6 SCC 121 wherein the Court held as follows:
                                                                            B
      “24. In Susamma Thomas [(1994) 2 SCC 176] this Court
      increased the income by nearly 100%, in Sarla Dixit [(1996) 3
      SCC 179] the income was increased only by 50% and in Abati
      Bezbaruah [(2003) 3 SCC 148] the income was increased by a
      mere 7%. In view of the imponderables and uncertainties, we are
      in favour of adopting as a rule of thumb, an addition of 50% of       C
      actual salary to the actual salary income of the deceased
      towards future prospects, where the deceased had a
      permanent job and was below 40 years. (Where the annual
      income is in the taxable range, the words “actual salary” should
      be read as “actual salary less tax”). The addition should be only     D
      30% if the age of the deceased was 40 to 50 years. There should
      be no addition, where the age of the deceased is more than 50
      years. Though the evidence may indicate a different percentage
      of increase, it is necessary to standardise the addition to avoid
      different yardsticks being applied or different methods of
      calculation being adopted. Where the deceased was self-               E
      employed or was on a fixed salary (without provision for
      annual increments, etc.), the courts will usually take only
      the actual income at the time of death. A departure
      therefrom should be made only in rare and exceptional
      cases involving special circumstances.”                               F
                                                  (emphasis supplied)
       22. However, there was a shift in jurisprudence regarding future
prospects with the five-Judge Bench decision of this Court in Pranay
Sethi (supra). This Court extended the benefit regarding future prospects
to even self-employed persons, or those on a fixed salary. The Court        G
held as follows:
      “57. Having bestowed our anxious consideration, we are disposed
      to think when we accept the principle of standardisation, there is
      really no rationale not to apply the said principle to the
                                                                            H
1010           SUPREME COURT REPORTS                          [2021] 1 S.C.R.


 A          self-employed or a person who is on a fixed salary. To follow
            the doctrine of actual income at the time of death and not
            to add any amount with regard to future prospects to the
            income for the purpose of determination of multiplicand
            would be unjust. The determination of income while
            computing compensation has to include future prospects
 B
            so that the method will come within the ambit and sweep of
            just compensation as postulated under Section 168 of the
            Act. In case of a deceased who had held a permanent job with
            inbuilt grant of annual increment, there is an acceptable certainty.
            But to state that the legal representatives of a deceased who was
 C          on a fixed salary would not be entitled to the benefit of future
            prospects for the purpose of computation of compensation would
            be inapposite. It is because the criterion of distinction between
            the two in that event would be certainty on the one hand and
            staticness on the other. One may perceive that the comparative
            measure is certainty on the one hand and uncertainty on the other
 D
            but such a perception is fallacious. It is because the price rise
            does affect a self-employed person; and that apart there is
            always an incessant effort to enhance one’s income for
            sustenance. The purchasing capacity of a salaried person
            on permanent job when increases because of grant of
 E          increments and pay revision or for some other change in
            service conditions, there is always a competing attitude in
            the private sector to enhance the salary to get better
            efficiency from the employees. Similarly, a person who is
            self-employed is bound to garner his resources and raise
            his charges/fees so that he can live with same
 F
            facilities.…Taking into consideration the cumulative factors,
            namely, passage of time, the changing society, escalation
            of price, the change in price index, the human attitude to
            follow a particular pattern of life, etc., an addition of 40% of
            the established income of the deceased towards future prospects
 G          and where the deceased was below 40 years an addition of 25%
            where the deceased was between the age of 40 to 50 years would
            be reasonable.”
                                                         (emphasis supplied)
             23. The rationale behind the awarding of future prospects is
 H     therefore no longer merely about the type of profession, whether
           KIRTI & ANR. ETC. v. ORIENTAL INSURANCE                              1011
               COMPANY LTD. [N. V. RAMANA, J.]

permanent or otherwise, although the percentage awarded is still                A
dependent on the same. The awarding of future prospects is now a part
of the duty of the Court to grant just compensation, taking into account
the realities of life, particularly of inflation, the quest of individuals to
better their circumstances and those of their loved ones, rising wage
rates and the impact of experience on the quality of work.
                                                                                B
       24. Taking the above rationale into account, the situation is quite
clear with respect to notional income determined by a Court in the first
category of cases outlined earlier, those where the victim is proved to be
employed but claimants are unable to prove the income before the Court.
Once the victim has been proved to be employed at some venture, the
necessary corollary is that they would be earning an income. It is clear        C
that no rational distinction can be drawn with respect to the granting of
future prospects merely on the basis that their income was not proved,
particularly when the Court has determined their notional income.
       25. When it comes to the second category of cases, relating to
notional income for non-earning victims, it is my opinion that the above        D
principle applies with equal vigor, particularly with respect to homemakers.
Once notional income is determined, the effects of inflation would equally
apply. Further, no one would ever say that the improvements in skills
that come with experience do not take place in the domain of work
within the household. It is worth noting that, although not extensively         E
discussed, this Court has been granting future prospects even in cases
pertaining to notional income, as has been highlighted by my learned
brother, Surya Kant, J., in his opinion [Hem Raj v. Oriental Insurance
Company Limited, (2018) 15 SCC 654; Sunita Tokas v. New India
Insurance Co. Ltd., (2019) 20 SCC 688].
                                                                                F
      26. Therefore, on the basis of the above, certain general
observations can be made regarding the issue of calculation of notional
income for homemakers and the grant of future prospects with respect
to them, for the purposes of grant of compensation which can be
summarized as follows:
                                                                                G
      a.     Grant of compensation, on a pecuniary basis, with respect
             to a homemaker, is a settled proposition of law.
      b.     Taking into account the gendered nature of housework, with
             an overwhelming percentage of women being engaged in
             the same as compared to men, the fixing of notional income
                                                                                H
1012               SUPREME COURT REPORTS                           [2021] 1 S.C.R.


 A                     of a homemaker attains special significance. It becomes a
                       recognition of the work, labour and sacrifices of
                       homemakers and a reflection of changing attitudes. It is
                       also in furtherance of our nation’s international law
                       obligations and our constitutional vision of social equality
                       and ensuring dignity to all.
 B
              c.       Various methods can be employed by the Court to fix the
                       notional income of a homemaker, depending on the facts
                       and circumstances of the case.
              d.       The Court should ensure while choosing the method, and
 C                     fixing the notional income, that the same is just in the facts
                       and circumstances of the particular case, neither assessing
                       the compensation too conservatively, nor too liberally.
              e.       The granting of future prospects, on the notional income
                       calculated in such cases, is a component of just
 D                     compensation.
             27. With the above observations, I concur with the opinion of my
       learned brother.

       Devika Gujral                                             Appeals partly allowed.
 E




 F




 G




 H