Joy Sebastian & Others v. Rejender Kumar Saini & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941** ## **MACA.No.2090 OF 2009** **AGAINST THE AWARD IN OPMV 2978/2001 DATED 30-07-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** |**1**|**JOY SEBASTIAN & OTHERS**| |---|---| ||**NEELAMKAVIL HOUSE, 35/1224, INDIRA ROAD,,**| ||**PALARIVATTOM P.O., EDAPPALLY NORTH VILLAGE,,**| ||**ERNAKULAM DISTRICT.**| |**2**|**ALIYAMMA SCARIA WO.JOY SEBASTIAN**| ||**NEELAMKAVIL HOUSE, 35/1224, INDIRA ROAD,,**| ||**PALARIVATTOM P.O., EDAPPALLY NORTH VILLAGE,,**| ||**ERNAKULAM DISTRICT.**| ||**BY ADVS.**| ||**SRI.P.V.BABY**| ||**SRI.A.N.SANTHOSH**| ## **RESPONDENT/S:** |**1**|**REJENDER KUMAR SAINI & OTHERS**| |---|---| ||**39, BHAGWAN NAGAR, NEAR JEVAN HOSPITAL,, NEW**| ||**DELHI.**| |**2**|**THE UNITED INIDA INSURANCE CO.LTD.**| ||**DIVISIONAL OFFICE, ERNAKULAM, COCHIN-16.**| |**3**|**NASSEER MUHAMMED NASSEER**| ||**S/O.KALLUKHAN, DOOR NO.A/144,, GOAGUVA**| ||**BADARPUR, NEW DELHI-44.**| **R1 BY ADV. SMT.P.A.REZIYA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.01.2020, ALONG WITH MACA.2091/2009, MACA.2092/2009, MACA.2137/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2090 of 2009 -2- ## **JUDGMENT** The appellants are the claimants in O.P.(MV) No.2978 of 2001 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Nice Mary Ann Joy, the daughter of the appellants, in a motor accident which occurred on 04.08.2001, while she was travelling in a maruti car bearing registration No.KL-7/8827. At the place of accident, the maruti car was hit by a mini lorry bearing registration No.HR-38/B-493, owned by the 1[st] respondent, insured with the 2[nd] respondent and driven by the 3[rd] respondent, causing fatal injuries to all the occupants in the car, resulting their instantaneous death. The maruti car was driven by one Saji Jose, husband of Nice Mary Ann Joy. Alleging that the accident occurred due to the rash and negligent driving of mini lorry by the 3[rd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,84,500/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner filed written statement denying negligence alleged against the 3[rd] MACA No.2090 of 2009 -3- respondent driver of the mini lorry. The 1[st] respondent contended that the accident occurred due to rash and negligent driving of maruti car by its driver. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the mini lorry involved in the accident; however, denying negligence alleged against the 3[rd] respondent driver. The insurer contended that the accident occurred due to the rash and negligent driving of maruti car by its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matters. On the side of the claimants, Exts.A1 to A20A were marked. The respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of mini lorry by the 3[rd] respondent driver and also due to the rash and negligent driving of maruti car by its driver. The Tribunal fixed MACA No.2090 of 2009 -4- negligence between the 3[rd] respondent driver of the mini lorry and the driver of the maruti car in the ratio 2:1. The Tribunal awarded a lumpsum amount of Rs,60,000/- towards probable loss of dependency, loss of love and affection, loss of estate, etc. In view of the finding on the question of composite negligence, the appellants/claimants are found entitled only for a sum of Rs.40,000/- (2/3 of Rs.60,000/-) together with interest at the rate of 7% per annum from the date of petition till date of award and thereafter, at the rate of 8% per annum till realisation, with proportionate cost, and the 2[nd] respondent insurer was directed to satisfy the award. The said amount was ordered to be apportioned among the appellants/ claimants in the ratio 70:30. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal and also challenging the finding of the Tribunal on the question of composite negligence, the appellants/claimants are before this Court in this appeal. 7. Heard the learned counsel for the appellants/claimants and also the learned Standing Counsel for the 2[nd] respondent insurer. Since insurance coverage of the MACA No.2090 of 2009 -5- mini lorry is admitted by the 2[nd] respondent insurer, service of notice on the 3[rd] respondent driver was dispensed with, by the order dated 25.10.2019 in C.M.Application No.2424 of 2009. 8. The issues that arise for consideration in this appeal are as to whether the appellants are entitled for enhancement of the compensation awarded by the Tribunal; and whether the finding of the Tribunal on the question of composite negligence can be sustained in law. 9. The document marked as Ext.A5 is a true copy of the charge sheet filed in Crime No.499/01 of Komarapalayam Police Station, registered in connection with the motor accident in question. The police, after investigation, charge sheeted the 3[rd] respondent driver of the mini lorry for an offence punishable under Section 279 and Section 304A of the Indian Penal Code, 1860. As per Ext.A5 charge sheet, the car was proceeding along the left side of the road. In the impugned award, the Tribunal noticed that, the exact place of accident is not gatherable from Ext.A4 scene mahazar or the rough sketch prepared by the police, and both sides have not chosen to adduce evidence to prove the exact place of MACA No.2090 of 2009 -6- accident. 10. In **New India Assurance Company Ltd. v. Pazhaniammal and others [2011 (3) KHC 595]** a Division Bench of this Court held that, as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunal should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. Wherever, on the facts of a given case, the Tribunal feels that the police charge sheet does not satisfy its judicial conscience, the Tribunal can record that the charge sheet cannot be accepted and can call upon the parties, at any MACA No.2090 of 2009 -7- stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet. Paragraphs 7 and 8 of the said decision read thus; “7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not MACA No.2090 of 2009 -8- accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures. 8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet.” 11. In view of the law laid down in **Pazhaniammal** , the MACA No.2090 of 2009 -9- production of Ext.A5 charge sheet filed in Crime No.499/01 of Komarapalayam Police Station, registered in connection with the motor accident in question, in which the 3[rd] respondent driver of the mini lorry was charge sheeted for an offence punishable under Section 279 and Section 304A of the Indian Penal Code, is prima facie sufficient evidence of negligence on his part, for the purpose of a claim under Section 166 of the Motor Vehicles Act. Moreover, as per Ext.A5 charge sheet, the car was proceeding along the left side of the road. The exact place of accident is not gatherable from Ext.A4 scene mahazar or the rough sketch prepared by the police, and both sides have not chosen to adduce evidence to prove the exact place of accident. Therefore, in the absence of any evidence to the contra, the Tribunal ought to have held that the accident occurred solely due to the rash and negligent driving of mini lorry by the 3[rd] respondent driver. In such circumstances, the finding to the contra in the impugned award is set aside, by holding that the accident occurred solely due to the rash and negligent driving of mini lorry by the 3[rd] respondent driver. 12. In **Sarla Verma v. Delhi Transport Corporation** MACA No.2090 of 2009 -10- **[(2009) 6 SCC 121]** the Apex Court laid down the principles governing determination of quantum of compensation in the case of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by following the well settled steps, namely, ascertaining the multiplicand (annual contribution to the family), the multiplier and calculation of loss of dependency by multiplying the multiplicand by such multiplier. 13. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the MACA No.2090 of 2009 -11- same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the Tribunal is quite wide, yet it is obligatory on the part of the Tribunal to be guided by the expression, i.e., just compensation. 14. In the instant case, the Tribunal awarded a lumpsum amount of Rs,60,000/- towards probable loss of dependency, loss of love and affection, loss of estate, etc. In view of the finding on the question of composite negligence, the appellants are found entitled only for a sum of Rs.40,000/- MACA No.2090 of 2009 -12- ## (2/3 of Rs.60,000/-). 15. The accident occurred on 04.08.2001. At the time of accident, the deceased Nice Mary Ann Joy (wife of late Saji Jose, who was driving the maruti car) was aged 25 years. She was holding Masters' Degree in Hydrochemistry (first class with distinction - November, 1998) from Cochin University of Science and Technology, as evidenced by Ext.A18 certificate. She was working as Assistant Manager in M/s.FITCO Oppel Products Private Limited, Plot No.14A Cochin Special Economic Zone, Kakkanad. As per Ext.A19 salary certificate issued by the General Manager of that company, the deceased had worked as Assistant Manager (Quality Assurance) for the period from 15.03.2000 to 03.08.2001 and she was drawing a gross salary of Rs.5,510/-, which consists of Basic Pay - Rs.1,750/-, Dearness Allowance - Rs.1,360/-, Special Allowance - Rs.1,660/- and Travelling Allowance - Rs.800/-. After deduction of Rs.355/- towards Provident Fund and Rs.78.45/- towards ESI Contribution, the net earning of the deceased was Rs.5,076.55. Ext.A19 salary certificate was not proved by examining the employer concerned. None of the MACA No.2090 of 2009 -13- appellants have chosen to mount the box. ## 16. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. MACA No.2090 of 2009 -14- 17. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 18. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2001, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the notional monthly income of a manual labourer, who met with a road accident in MACA No.2090 of 2009 -15- the year 2001, can be taken as Rs.3,000/-. In the instant case, the deceased was holding Masters' Degree in Hydrochemistry (first class with distinction) from Cochin University of Science and Technology, who was working as Assistant Manager (Quality Assurance) in a Private Limited Company at Cochin Special Economic Zone, for the period from 15.03.2000 to 03.08.2001, drawing a gross salary of Rs.5,510/-. Though Ext.A19 salary certificate was not proved by examining the employer concerned, considering the educational qualification of the deceased and her employment in a Private Limited Company at Cochin Special Economic Zone, her monthly income is fixed as Rs.5,510/-, as shown in Ext.A19, for the purpose of assessing compensation under various heads. 19. In **Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has MACA No.2090 of 2009 -16- been clearly stated in **Sarla Verma [(2009) 6 SCC 121]** and it has been approved in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** . The age and income, as stated earlier, have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In **Pranay Sethi** the Apex Court approved the principle of 'standardisation' so that a specific and certain multiplicand is determined for applying the multiplier on the MACA No.2090 of 2009 -17- basis of age. 20. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a Three-Judge Bench of the Apex Court held that, in case of self-employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another Three-Judge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after expressing the opinion that the dicta laid down in **Reshma Kumari** being earlier in point of time would be a binding precedent and not the decision in **Rajesh** , the Constitution Bench observed that, in **Munna Lal Jain** , the Three-Judge Bench should have been guided by the principle stated in **Reshma Kumari** which has concurred with the view expressed in **Sarla Devi** or in case of disagreement, it should have been well advised to refer the case to a Larger Bench. 21. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the MACA No.2090 of 2009 -18- deceased towards future prospects, where the deceased had a **permanent job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. The Apex Court held further 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 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. 22. In the instant case, at the time of accident, the deceased was aged 25 years. It was claimed that, at the time of accident, the deceased was earning monthly income of Rs.5,510/- as Assistant Manager (Quality Assurance). In this appeal, the monthly income of the deceased has already been MACA No.2090 of 2009 -19- taken as Rs.5,510/-, as shown in Ext.A19 salary certificate. No reliable materials were placed before the Tribunal to show that, at the time of accident, the deceased had a permanent job. Therefore, the deceased can only be treated as on fixed salary. In view of the law laid down by the Apex Court in **Pranay Sethi,** an addition of **40%** of the monthly income of the deceased, fixed in this appeal, can be made towards future prospects, since the deceased was **below the age of 40 years** . 23. Therefore, for the purpose of granting compensation under the head loss of dependency, **40%** of the monthly income of the deceased fixed in this appeal as Rs.5,510/-, i.e., a sum of Rs.2,204/- (5,510 x 40/100) has to be added towards future prospects. In the result, the monthly income of the deceased, for the purpose of fixing compensation under the head loss of dependency, is reckoned as Rs.7,714/- (5,510 + 2,204). 24. In **Sarla Verma [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas** MACA No.2090 of 2009 -20- **[(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC** **720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 25. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds a place in paragraph 19 of MACA No.2090 of 2009 -21- **Sarla Verma** , read with paragraph 42 of the said judgment. 26. In the instant case, as on the date of accident, the deceased was aged 25 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the proper multiplier to be applied is **18** . 27. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court, on the question of deduction towards the personal and living expenses of the deceased held that, the personal and living expenses of the deceased should be deducted from his monthly income, to arrive at the contribution to the dependents. Where the deceased was **married** , the deduction towards personal and living expenses of the deceased should be **one-third** where the number of dependent family members is **2 to 3** ; **onefourth** where the number of dependent family members is **4 to 6** ; and **one-fifth** where the number of dependent family members **exceeds 6** . In regard to **bachelors** , normally, **50%** is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on MACA No.2090 of 2009 -22- himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is **large and dependent on the income of the deceased** , as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to **one-third** and contribution to the family will be taken as **two-third** . MACA No.2090 of 2009 -23- 28. In **Reshma Kumari [(2013) 9 SCC 65]** a ThreeJudge Bench of the Apex Court reproduced paragraphs 30, 31 and 32 of **Sarla Verma** and approved the same, in paragraph 38 of the decision, by stating that, the standards fixed in **Sarla Verma** provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. Therefore, the standards fixed in **Sarla Verma** on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out. In paragraph 43.6 the Apex Court directed that, insofar as deduction for personal and living expenses is concerned, the MACA No.2090 of 2009 -24- Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in **Sarla Verma** , subject to the observations made in para 38 of **Reshma Kumari** . 29. In **Pranay Sethi [(2017) 16 SCC 680]** , the Constitution Bench of the Apex Court, after considering the analysis made in **Sarla Verma** , which was reconsidered in **Reshma Kumari** , approved the method provided therein by stating that, as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the Tribunals and Courts should be guided by the conclusion in paragraph 43.6 of **Reshma Kumari** . 30. In **Bijoy Kumar Dugar v. Bidya Dhar Dutta [(2006) 3 SCC 242]** , a decision relied on by the learned Standing Counsel for the 2[nd] respondent insurer, the Apex Court held that dependency compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating dependency compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the MACA No.2090 of 2009 -25- abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. 31. In the instant case, at the time of accident, the deceased was aged 25 years. The 1[st] appellant, the father of the deceased, cannot be treated as her dependant, in the absence of evidence. Her husband, who died in the very same accident, who was working as an Executive in L&T Finance Ltd. cannot also be treated as her dependant. The mother of the deceased, who was aged 56 years, alone can be treated as her dependant. Therefore, the deduction towards personal and living expenses of the deceased should be **50%** of her monthly income. 32. In this appeal, the monthly income of the deceased has already been fixed as Rs.5,510/-. Adding 40% of the notional monthly income of the deceased towards future prospects (5,510 + 2,204 = 7,714); deducting 1/2 of the monthly income towards the personal and living expenses of the deceased; and applying the multiplier of 18, the MACA No.2090 of 2009 -26- compensation under the head loss of dependency is fixed as **Rs.8,33,122/-** (7,714 x 12 x 18 x 1/2). 33. In **Rajesh [(2013) 9 SCC 54]** a Three-Judge Bench of the Apex Court granted Rs.25,000/- towards funeral expenses, Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of care and guidance for minor children. 34. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that the head relating to loss of care and guidance for minor children does not exist. Though **Rajesh** refers to **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , it does not seem to follow the same. The conventional and traditional heads cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The Court cannot remain oblivious to the same. There has MACA No.2090 of 2009 -27- been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the Tribunals and Courts are likely to be unguided. Therefore, the reasonable figures on conventional heads, namely, **loss of estate** , **loss of consortium** and **funeral expenses** should be **Rs.15,000/-** , **Rs.40,000/-** and **Rs.15,000/-** respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. The Apex Court observed that, it would be condign that the amounts that have quantified as above should be enhanced on percentage basis **in every three years** and the enhancement should be at the rate of **10% in a span of three years** , which will bring in consistency in respect of those heads. 35. In **Santosh Devi v. Mahaveer Singh [(2018) 9 SCC 146]** a Three-Judge Bench of the Apex Court granted compensation on conventional heads, in terms of the figures standardised by the Constitution Bench in the year 2017, in MACA No.2090 of 2009 -28- **Pranay Sethi** , to the wife and children of one Puran Chand, who died in a motor accident, which occurred on **30.12.1992** . 36. In **Sureshchandra Bagmal Doshi v. New India Assurance Company Limited [(2018) 15 SCC 649]** the Apex Court granted the figures on conventional heads standardised by the Constitution Bench in the year 2017, in **Pranay Sethi** , i.e., Rs.15,000/- as loss of estate; Rs.40,000/towards loss of consortium; and Rs.15,000/- as funeral expenses to the parents [appellants before the Apex Court], who lost their only daughter in a motor accident which occurred on **16.08.1998** . In the said decision, Rs.40,000/granted in **Pranay Sethi** towards loss of consortium was granted to the appellants, who are the **parents** of the deceased, towards **loss of love and affection** . Paragraphs 1 and 14 of the said decision read thus; “ **1.** Fate can be cruel. This is a tragic case where the only daughter of a lawyer husband and a doctor wife, who got married early and unfortunately became a widow also at a young age, died in a vehicular accident, which took place on **16.8.1998** . The claim of the parents (appellants herein) in respect of this unfortunate demise forms the subject matter of the MACA No.2090 of 2009 -29- present appeal. xxx xxx xxx **14.** Now coming to the last aspect, i.e., the conventional heads, in **National Insurance Company** **Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , it has been standardised at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, which as per the said judgment is capable of being enhanced @ 10 percent in the span of every three years. However, we are still within the window of three years.” “underline supplied” 37. In **Magma General Insurance Co. Ltd. v. Nanu** **Ram @ Chuhru Ram [(2018) 18 SCC 130]** , after referring to the decision in **Pranay Sethi** , the Apex Court held that in legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. **Spousal consortium** is generally defined as rights pertaining to the relationship of a husband-wife which allows MACA No.2090 of 2009 -30- compensation to the **surviving spouse** for loss of 'company, society, co-operation, affection, and aid of the other in every conjugal relation'. **Parental consortium** is granted to the **child** upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training'. **Filial consortium** is the right of the **parents** to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their **love** , **affection** , companionship and their role in the family unit. 38. In **Magma General Insurance** the Apex Court held that consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a MACA No.2090 of 2009 -31- child. The amount awarded to the parents is a compensation for loss of the **love** , **affection** , care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In a case where parents have lost their **minor child** , or **unmarried son or daughter** , the parents are entitled to be awarded loss of consortium under the head of **filial consortium** . Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Motor Vehicles Act. The Apex Court held further that, the amount of compensation to be awarded as consortium will be governed by the **principles** of awarding compensation under 'loss of consortium' as laid down in **Pranay Sethi** . 39. In **Magma General Insurance** , the deceased was aged 24 years, who was engaged in the business of manufacturing 'namkeen products', who died in a motor accident which occurred on 01.12.2013. The **father** , **brother** and **sister** of the deceased filed claim petition under Section 166 of the Motor Vehicles Act. The Claims Tribunal did not MACA No.2090 of 2009 -32- award any compensation to the **brother** of the deceased, as he could not be considered to be a dependent. Compensation was awarded to the **father** and **unmarried sister** of the deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that the Claims Tribunal used the wrong principle for application of multiplier. The multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/- (Rs.50,000/- x 2) towards loss of love and affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependants, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependant. The grant of Rs.1,00,000/- on account of loss of love and affection, and Rs.25,000/- towards funeral expenses is erroneous. It MACA No.2090 of 2009 -33- was contended that only Rs.30,000/- could have been awarded as per the judgment in **Pranay Sethi** . [i.e., loss of estate - Rs.15,000/- and funeral expenses – Rs.15,000/-] The Apex Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an unmarried sister, the High Court correctly considered them to be dependants of the deceased, and made a deduction of 1/3[rd] towards personal expenses of the deceased. [Para.16 @ page 135 of SCC] The Apex Court found that the deceased was a bachelor, whose mother had **pre-deceased** him. The father of the deceased was about 65 years old and his sister was unmarried. The deceased was **contributing** a part of his meagre income to the family for their sustenance and survival. Therefore, the Apex Court held that the father and unmarried sister of the deceased would be entitled to compensation under his dependants. [Para.18 @ page 136 of SCC] Dealing with the contention of the insurer that the High Court had wrongly awarded Rs.1,00,000/- towards loss of love and affection, and Rs.25,000/- towards funeral expenses, the Apex Court, after MACA No.2090 of 2009 -34- quoting Para.52 of the decision in **Pranay Sethi** , decreased the compensation under the head funeral expenses from Rs.25,000/- to Rs.15,000/-. However, the amount awarded under the head loss of love and affection was maintained. After explaining the concept of **spousal consortium** , **parental consortium** and **filial consortium** , the Apex Court deem it appropriate to award the father and unmarried sister of the deceased, an amount of Rs.40,000/- each for loss of filial consortium. 40. In view of the law laid down by the Constitution Bench of the Apex Court in **Pranay Sethi** , which was followed in **Santhosh Devi** and **Suresh Chandra Bagmaldoshi** referred to supra, the compensation payable under the conventional heads of loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, 40,000/- and Rs.15,000/- respectively. The aforesaid figures quantified by the Apex Court should be enhanced on percentage basis, at the rate of 10%, in a span of every three years. 41. In view of the law laid down by the Apex Court in **Magma General Insurance Company Ltd** ., after referring MACA No.2090 of 2009 -35- to the decision in **Pranay Sethi** , the surviving spouse is entitled for spousal consortium; children of the deceased are entitled for parental consortium; and parents of a deceased child, who died in a motor accident, are entitled for filial consortium. The amount of compensation that has to be awarded will be governed by the principles of awarding compensation under the head loss of consortium, as laid down ## in **Pranay Sethi** . 42. In **Indian Bank v. ABS Marine Products (P) Ltd.** **[(2006) 5 SCC 72]** one of the contentions raised was that, any direction issued by the Apex Court in exercise of power under Article 142 of the Constitution of India to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by that Court under Article 141. It was also pointed out that, other Courts do not have the power similar to that conferred on the Apex Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. The Apex Court left open that question, observing as follows; "Though there appears to be some merit in the first MACA No.2090 of 2009 -36- respondent's submission, we do not propose to examine that aspect." Though the said question was left open, the Apex Court observed as follows in Para.26 of the judgment; "26. ….... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/ relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. …..." 43. In **State of Punjab v. Rafiq Masih [(2014) 8** **SCC 883]** a Three-Judge Bench of the Apex Court affirmed the view taken in **ABS Marine Products' case (supra)** MACA No.2090 of 2009 -37- holding that, the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras.11 to 13 of the judgment read thus; "11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. 12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, MACA No.2090 of 2009 -38- though they are not limited by the substantive provisions in the Statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. 'Declaration of Law' as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of **Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72]** , **Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 381]** and in **State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667]** , has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the MACA No.2090 of 2009 -39- peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case. 13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment." 44. In **Magma General Insurance Company Ltd.** , the Apex Court maintained the compensation awarded by the High Court at the rate of Rs.50,000/- to the father and unmarried sister of the deceased towards loss of love and affection. However, the compensation under the head funeral expenses was decreased from Rs.25,000/- to Rs.15,000/-, after quoting para 52 of the decision in **Pranay Sethi** . After explaining the concept of spousal consortium, parental consortium and filial consortium, the Apex Court awarded the father and unmarried sister of the deceased an amount of MACA No.2090 of 2009 -40- Rs.40,000/- each for loss of filial consortium. 45. As already noticed, the compensation that has to be awarded to the surviving spouse towards spousal consortium; to the children of the deceased towards parental consortium; or to the parents of the deceased child towards filial consortium, is for loss of **love and affection** and such other matters. In such circumstances, once the surviving spouse is awarded compensation towards spousal consortium; or the children of the deceased are awarded compensation towards parental consortium; or the parents of the deceased child are awarded compensation towards filial consortium, they are not entitled for award of further compensation under the head loss love and affection, as it would result in duplication or overlapping of compensation under the relevant heads. 46. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; and filial consortium to the parents of the deceased child laid down by the Apex Court in **Magma General Insurance Company Ltd.** does not speak anything as to the right of **siblings** to get compensated under the head loss of MACA No.2090 of 2009 -41- consortium. In **Magma** , after noticing the fact that the mother of the deceased had pre-deceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was **contributing** a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/- as compensation to unmarried sister of the deceased under the head filial consortium, after maintaining the compensation (Rs.50,000/- x 2) awarded by the High Court towards loss of love and affection, which can only be treated as a direction issued by the Apex Court in exercise of its powers under Article 142 of the Constitution of India to do proper justice and the exercise of such power cannot be considered as law laid down by the Apex Court under Article 141 of the Constitution of India. 47. In view of the law laid down by the Apex Court in **Pranay Sethi** and **Magma General Insurance Company Ltd.** referred to supra, the appellants are granted a sum of **Rs.15,000** /- under the head funeral expenses. The appellants, who are the parents of the deceased, are granted a sum of **Rs.80,000/-** (40,000 x 2) towards loss of filial MACA No.2090 of 2009 -42- consortium. They are also granted a sum of **Rs.15,000/-** towards loss of estate. 48. In **Jyni and others v. Raphel P.T. and others [2016 (2) KHC 870]** a Division Bench of this Court held that, death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. 49. In the instant case, the deceased succumbed to the injuries at the place of accident itself. Considering the said MACA No.2090 of 2009 -43- fact, this Court deem it appropriate to grant a sum of **Rs.5,000/-** towards pain and suffering of the deceased. 50. Towards transportation expenses the Tribunal awarded no compensation. The accident is of the year 2001, which occurred at Pachampalayam in Coimbatore - Salem National Highway. The deceased was a resident of Palarivattom in Ernakulam District. Considering the said fact, the appellants are granted as sum of **Rs.10,000/-** under the head transportation expenses. 51. As already noticed, in the instant case, the Tribunal awarded a lumpsum amount of Rs.60,000/- towards probable loss of dependency, loss of love and affection, loss of estate, etc. In view of the finding on the question of composite negligence, the appellants are found entitled only for a sum of Rs.40,000/- (2/3 of Rs.60,000/-). The finding of the Tribunal, in the impugned award, on the question of composite negligence, has already been set aside in this appeal, by holding that the accident occurred solely due to the rash and negligent driving of mini lorry by the 3[rd] respondent driver. Therefore, the appellants/claimants are entitled for the entire MACA No.2090 of 2009 -44- amount of compensation. 52. In the result, the appellants/claimants are entitled for payment of an additional compensation of **Rs.9,18,122/-** (Rupees nine lakhs eighteen thousand one hundred and twenty two only) [(8,33,122 + 15,000 + 80,000 + 15,000 + 5,000 + 10,000) – 40,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation granted in this appeal, excluding that granted to the appellants under the head filial consortium shall be apportioned among the appellants in the ratio 30:70. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellants/claimants towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in MACA No.2090 of 2009 -45- Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellants shall provide their Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN** **JUDGE** bpr