MACA No.1220 of 2017 & MACA No.2553 of 2017 (In the High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **MACA.No.1220 OF 2017** **AGAINST THE AWARD IN OP(MV)NO.4/2015 DATED 29-11-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VATAKARA** ## **APPELLANTS/PETITIONERS IN OP(MV):** - **1 MOLY.E.V, W/O. LATE SCARIYA, D/O. VARGHESE, AGED 39 YEARS, PLAKKAYIL HOUSE, KUNDUTHODE DESOM PO., KAVILUMPARA, VATAKARA TLAUK, KOZHIKODE DISTRICT, PIN-673001** - **2 DONA BINTO,S/O.LATE SCARIYA(MINOR) REP. BY HER GUARDIAN MOTHER 1ST APPELLANT** - **3 ROSAMMA, D/O. SCARIYA, AGED 62 YEARS, MOTHER OR DECEASED SCARIYA) PLAKKAYIL HOUSE, MAVILUMPARA PO., VATAKARA TALUK** **BY ADVS. SRI.R.PARTHASARATHY SMT.SEEMA** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** - **1 RAJEEVAN, S/O. KANARAN, KUNHIPARAMBATH HOUSE, KUNDUTHODE PO., KAVILUMPARA, VATAKARA TALUK, KOZHIKODE DISTRICT PIN-673001** - **2 ANEESH.K.P, S/O.NANU, AGED 30 YEARS, KUMUTHULLAPOYIL HOUSE, KAVILUMPARA AMSOM, KUNDUTHODE PO., VATAKARA TALUK KOZHIKODE DISTRICT, PIN-673001** - **3 NEW INDIA ASSURANCE COMPANY LIMITED THALASSERY BRANCH, 1ST FLOOR,MUNICIPAL SHOPPING COMPLEX, M.G.ROAD, THALASSERY PIN-670101** - **R3 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2020, ALONG WITH MACA.2553/2017(D), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.1220 of 2017 & 2553 of 2017 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **MACA.No.2553 OF 2017** **AGAINST THE AWARD IN OPMV 4/2015 DATED 29-11-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE COMPANY LIMITED THALASSERY NOW REPRESENTED BY ITS MANAGER,REGIONAL OFFICE,M.G.ROAD,KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/S:** |**1**|**MOLY E.V**| |---|---| ||**AGED 41,W/O.LATE SCARIYA,PLAKKAYIL**| ||**HOUSE,KUNDUTHODE,KAVILUMPARA.P.O,VATAKARA**| ||**TALUK,PIN-673001.**| |**2**|**DONA BINTO**| ||**AGED 17(MINOR),D/O.LATE SCARIYA,PLAKKAYIL**| ||**HOUSE,KUNDUTHODE,KAVILUMPARA.P.O,VATAKARA**| ||**TALUK,PIN-673001.**| |**3**|**ROSAMMA**| ||**AGED 64,PLAKKAYIL**| ||**HOUSE,KUNDUTHODE,KAVILUMPARA.P.O,VATAKARA**| ||**TALUK,PIN-673001.**| ||**R1 BY ADV. SRI.R.PARTHASARATHY**| ||**R1 BY ADV. SMT.SEEMA**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2020, ALONG WITH MACA.1220/2017(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.1220 of 2017 & 2553 of 2017 3 ## **JUDGMENT** The appellants in M.A.C.A.No.1220 of 2017 are the claimants in O.P.(MV)No.4 of 2015 on the file of the Motor Accidents Claims Tribunal, Vatakara, and the appellant in M.A.C.A.No.2553 of 2017 is the 3[rd] respondent insurer in that claim petition. The status of the parties is referred to in this judgment as it appear in M.A.C.A.No.1220 of 2017. 2. The appellants in M.A.C.A.No.1220 of 2017 filed O.P. (MV)No.4 of 2015, a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Sacaria, husband of the 1[st] appellant, father of the 2[nd] appellant and son of the 3[rd] appellant, in a motor accident which occurred on 11.06.2014, while he was travelling on the rear footboard of a jeep bearing registration No.KL-18/F-9908 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the jeep fell into a gutter. Sacaria fell down and sustained fatal injuries, who succumbed to the injuries at the Medical College Hospital. Alleging that the accident occurred due to rash and negligent driving of the jeep by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of MACA Nos.1220 of 2017 & 2553 of 2017 4 Rs.24,85,000/- under various heads. 3. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver of the jeep remained absent and they were set ex parte. The 3[rd] respondent insurer filed written statement admitting the policy coverage of the jeep involved in the accident; however, denying negligence alleged against the 2[nd] respondent driver. The insurer pointed out that the 2[nd] respondent was not holding valid driving licence and badge, at the time of accident. The insurer contended that the accident occurred due to contributory negligence on the part of the deceased, as he was travelling on the footboard of the jeep. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and contended that the compensation claimed is exorbitant. 4. Before the Tribunal, Exts.A1 to A7 were marked and PWs.1 and 2 were examined on the side of the claimants. The copy of policy certificate of the jeep involved in the accident was marked as Ext.B1 on the side of the insurer. 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 the jeep by the MACA Nos.1220 of 2017 & 2553 of 2017 5 2[nd] respondent driver, since the insurer adduced no evidence to prove contributory negligence on the part of the deceased. Since insurance coverage of the jeep was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.10,52,000/- together with interest at the rate 9% per annum from the date of petition till the date of deposit, with proportionate cost and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/ claimants have filed M.A.C.A.No.1220 of 2017. The 3[rd] respondent insurer filed M.A.C.A.No.2553 of 2017, contending that the accident occurred due to contributory negligence on the part of the deceased, who was travelling on the footboard of the jeep and that, the compensation awarded by the Tribunal under various heads is on the higher side. 7. Heard the learned counsel for the appellants in M.A.C.A.No.1220 of 2017 and also the learned Senior Counsel for the appellant insurer in M.A.C.A.No.2553 of 2017. Since insurance coverage of the jeep involved in the accident is MACA Nos.1220 of 2017 & 2553 of 2017 6 admitted by the insurer, service of notice on the 1[st] respondent owner in M.A.C.A.No.1220 of 2017 is dispensed with. 8. The issues that arise for consideration in these appeals are as to whether the finding of the Tribunal that the accident occurred solely due to the rash and negligent driving of the jeep by the 2[nd] respondent driver can be sustained in law; and whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation. 9. The document marked as Ext.A1 is a copy of the FIR in Crime No.284/2014 of Thottilpalam Police Station, registered in connection with the motor accident, which occurred on 11.06.2014. As borne out from Ext.A1 FIR, crime was registered based on the first information statement given by one Chandran, who has stated that, at the place of accident, due to rash and negligent driving of the 2[nd] respondent, the jeep fell into a gutter and the deceased, who was travelling on the footboad, fell down and sustained fatal injuries. The police, after investigation, filed Ext.A4 final report in which the 2[nd] respondent driver of the jeep is charge sheeted for an offence punishable under Sections 279 and 304A of the Indian Penal Code, 1860. It is stated in Ext.P4 charge sheet that, at the time of accident, the deceased was MACA Nos.1220 of 2017 & 2553 of 2017 7 travelling on the footboad of the jeep. Before the Tribunal, no steps were taken by the 3[rd] respondent insurer to prove the statement made by Chandran, by examining him as a witness. 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 MACA Nos.1220 of 2017 & 2553 of 2017 8 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. 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 accept such charge sheet, the MACA Nos.1220 of 2017 & 2553 of 2017 9 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 production of Ext.A4 charge sheet in Crime No.284/2014 of MACA Nos.1220 of 2017 & 2553 of 2017 10 Thottilpalam Police Station, registered in connection with the motor accident in question, in which the 2[nd] respondent driver of the jeep was charge sheeted for an offence punishable under Sections 279 and 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. Though, it is stated in Ext.A4 charge sheet that, at the time of accident, the deceased was travelling on the footboad of the jeep, no steps were taken by the the 3[rd] respondent insurer to prove the statement given by Chandran, by examining him as a witness before the Tribunal. 12. In **Mohammed Siddique v. National Insurance Co.** **Ltd. [(2020) 3 SCC 57]** the Apex Court was dealing with a case in which the deceased was travelling on a motorcycle as pillion rider, along with the rider and another pillion rider, in violation of Section 128 of the Motor Vehicles Act. The motorcycle hit the offending car from behind and therefore it was clear that the accident occurred due to rash and negligent driving of the car by its driver. On the question of contributory negligence, since the deceased was travelling on the motorcycle in violation of Section 128 of the Motor Vehicles Act, the Apex Court held that, the fact MACA Nos.1220 of 2017 & 2553 of 2017 11 that a person was a pillion rider on a motorcycle along with the rider and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. 13. In **Mohammed Siddique** , the Apex Court noticed that, it was not the case of the insurer that the accident itself occurred as a result of three persons riding on a motorcycle. It MACA Nos.1220 of 2017 & 2553 of 2017 12 was not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motorcycle. The fact that the motorcycle was hit by the car from behind, was admitted. The insurer did not assail the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motorcycle from behind. Therefore, the finding of the High Court that two persons on the pillion of the motorcycle, could have added to the imbalance, is nothing but presumptuous and was not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that two persons on the pillion added to the imbalance. Therefore, the Apex Court held that, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, he could not have been held guilty of contributory negligence. 14. In **Bhaskaran v. Ravindran [1990 (1) KLT 607]** a Division Bench of this Court was dealing with a case in which the appellant sustained injuries, while travelling on the footboard of a bus. It was contended before this Court, by the leaned counsel for respondents 1 and 2 that, the travel on footboard by the MACA Nos.1220 of 2017 & 2553 of 2017 13 injured had contributed to the accident as well as the nature and extent of the injuries. Repelling the said contention, the Division Bench held that, it is the duty of the conductor to see that the bus is set in motion only after all alighting passengers have alighted and passengers intending to travel in the bus boarded the bus. Conductor has a statutory duty to see that there are no footboard passengers. If a passenger is on the footboard and there is no space at all for him to sit or stand inside the bus, he must be asked to get down and the bus can be set in motion only after he alights. When there is sitting or standing space inside the bus, it is the duty of the conductor to see that a passenger who is on the footboard gets inside the bus and seats himself or stands in the space reserved for standing passengers before giving signal for the bus to start. This corresponds with the driver's duty to ensure that bus is moved only after ensuring safe travel conditions. In the discharge of his duty he is largely guided by the instructions of the conductor. If a bus with no vacant seats and no standing space is started when a passenger is on the footboard and he is not asked to alight from the bus or not cautioned against travel on footboard and accident takes place and the footboard passenger sustains injury, wholly or partly on MACA Nos.1220 of 2017 & 2553 of 2017 14 account of his position in the footboard, he cannot be held to be guilty of contributory negligence. It may be that, if he refuses to alight inspite of the direction by the conductor or if he is cautioned about the risk he is undertaking by travel on foot board, it is not possible to absolve the driver of the responsibility in the accident. Therefore, the Division Bench held that the appellant/injured was not guilty of contributory negligence. 15. In **Meera Devi v. H.P. Road Transport Corporation [(2014) 4 SCC 511]** a Three-Judge Bench of the Apex Court reiterated that to prove contributory negligence, there must be cogent evidence. 16. In the instant case, the 3[rd] respondent insurer has not even proved the fact that, at the time of accident, the deceased was travelling on the footboad of the jeep, in violation of Section 123 of the Motor Vehicles Act, by examining the person who gave FIS, based on which Crime No.284/2014 of Thottilpalam Police Station was registered against the 2[nd] respondent driver. Therefore, in the absence of any evidence to the contra, relying on Ext.A4 final report, the Tribunal rightly held that the accident occurred solely due to the rash and negligent driving of the jeep by the 2[nd] respondent driver. MACA Nos.1220 of 2017 & 2553 of 2017 15 17. Now the issue that remains to be considered is as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation. 18. In **Sarla Verma v. Delhi Transport Corporation [(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. MACA Nos.1220 of 2017 & 2553 of 2017 16 19. 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 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. 20. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; MACA Nos.1220 of 2017 & 2553 of 2017 17 ||The compensation<br>claimed under<br>different heads|Amount<br>claimed<br>(in rupees)|Amount<br>allowed (in<br>rupees)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Transport to hospital|10,000/-|5,000/-|| |2|Funeral expenses|25,000/-|25,000/-|| |3|Pain & suffering of the<br>deceased|50,000/-|15,000/-|Jyani v. Raphael<br>P.T. & Ors.<br>Reported in ILR<br>2016<br>(2)<br>Kerl.54 DB| |4|Loss of care &<br>guidance for P2 minor||50,000/-|Rajesh v. Rajbir<br>Singh reported<br>in 2013 ACJ<br>1403 (SC)| |5|Loss of love and<br>affection|3,00,000/-|75,000/-|25,000 each to<br>P1 to P3| |6|Compensation for loss<br>of dependency with<br>40% towards future<br>prospects|20,00,000/<br>-|8,82,000/-|(5,000+2,000)x<br>12x14x3/4| |7|Loss of consortium|1,00,000/-||| |**Total**|||**10,52,000/-**|| 21. The accident occurred on 11.06.2014. At the time of accident, the deceased was aged 41 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.25,000/- as Rubber Tapper. In order to prove the monthly income, Ext.A7 salary certificate was produced, which was attempted to be proved through PW1, who was stated to be the owner of a rubber estate. No materials were placed before the Tribunal to prove that PW1 owns a rubber estate, so as to employ the deceased. In the absence of any reliable materials, the Tribunal fixed the monthly income of the deceased notionally as Rs.5,000/-. MACA Nos.1220 of 2017 & 2553 of 2017 18 ## 22. 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. ## 23. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the MACA Nos.1220 of 2017 & 2553 of 2017 19 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 Rs.6,500/- per month. 24. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2014, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the deceased notionally as Rs.9,500/-, for the purpose of assessing compensation under various heads. 25. In **Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the MACA Nos.1220 of 2017 & 2553 of 2017 20 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 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 MACA Nos.1220 of 2017 & 2553 of 2017 21 'standardisation' so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age. 26. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a Three-Judge Bench of the Apex Court held that, in case of selfemployed 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 ThreeJudge 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 ThreeJudge 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. 27. 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 deceased towards future prospects, where the deceased had a **permanent** MACA Nos.1220 of 2017 & 2553 of 2017 22 **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. 28. In the instant case, at the time of accident, the deceased was aged 41 years. It was claimed that, at the time of accident, the deceased was earning monthly income as rubber tapper. The Tribunal fixed the monthly income of the deceased notionally as Rs.5,000/-. In the impugned award, the Tribunal added **40%** of the notional monthly income of the deceased towards future prospects. 29. As already noticed, no reliable materials were placed MACA Nos.1220 of 2017 & 2553 of 2017 23 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 self-employed. In view of the law laid down by the Apex Court in **Pranay Sethi,** an addition of **25%** of the notional monthly income of the deceased, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the deceased was **between the age of 40 to 50 years** . The addition of 40% of the notional monthly income of the deceased towards future prospects, made in the impugned award of the Tribunal cannot be sustained, in view of the law laid down in **Pranay Sethi** . 30. Therefore, for the purpose of re-fixing the compensation under the head loss of dependency, **25%** of the monthly income of the deceased notionally re-fixed in this appeal as Rs.9,500/-, i.e., a sum of Rs.2,375/- (9,500 x 25/100) has to be added towards future prospects. In the result, the monthly income of the deceased, for the purpose of re-fixing the compensation under the head loss of dependency, is reckoned as MACA Nos.1220 of 2017 & 2553 of 2017 24 Rs.11,875/- (9,500 + 2,375). 31. 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 [(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. ## 32. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that, as far as the MACA Nos.1220 of 2017 & 2553 of 2017 25 multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds a place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 33. In the instant case, as on the date of accident, the deceased was aged 41 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 multiplier of **14** applied by the Tribunal is correct and proper. 34. 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** ; **one-fourth** 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 MACA Nos.1220 of 2017 & 2553 of 2017 26 and living expenses, because it is assumed that a bachelor would tend to spend more on 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** . 35. In **Reshma Kumari [(2013) 9 SCC 65]** a Three- MACA Nos.1220 of 2017 & 2553 of 2017 27 Judge 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 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** MACA Nos.1220 of 2017 & 2553 of 2017 28 ## **Kumari** . 36. 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** . 37. In the instant case, at the time of accident, the deceased was aged 41 years with a family consisting of 3 dependants. In the light of the decisions of the Apex Court in **Sarla Verma** , **Reshma Kumari** and **Pranay Sethi** referred to supra, deduction of **1/3[rd]** of the notional monthly income of the deceased towards his personal and living expenses has to be made. Therefore, the Tribunal went wrong in deducting only 1/4[th] of the notional monthly income towards the personal and living expenses of the deceased. 38. Towards loss of dependency, the Tribunal awarded a sum of Rs.8,82,000/- [(5,000 + 2,000) x 12 x 14 x 3/4]. In this appeal, the monthly income of the deceased has already been re- MACA Nos.1220 of 2017 & 2553 of 2017 29 fixed as Rs.9,500/-. Adding 25% of the notional monthly income of the deceased towards future prospects (9,500 + 2,375 = 11,875); deducting 1/3[rd] towards the personal and living expenses of the deceased; and applying the multiplier of 14, the compensation under the head loss of dependency is re-fixed as Rs.13,30,000/- (11,875 x 12 x 14 x 2/3), resulting an additional compensation of **Rs.4,48,000/-** (13,30,000 – 8,82,000). 39. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.25,000/-. Towards loss of love and affection, the Tribunal awarded a sum of Rs.75,000/(Rs.25,000/- each) to appellants 1 to 3. The 2[nd] appellant, the minor daughter of the deceased, is awarded Rs.50,000/- towards loss of care and guidance. The Tribunal awarded no compensation under the head loss of estate. 40. 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. 41. 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. MACA Nos.1220 of 2017 & 2553 of 2017 30 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 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 MACA Nos.1220 of 2017 & 2553 of 2017 31 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. 42. 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 **Pranay Sethi** , to the wife and children of one Puran Chand, who died in a motor accident, which occurred on **30.12.1992** . 43. 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** . MACA Nos.1220 of 2017 & 2553 of 2017 32 ## 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 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” 44. 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 MACA Nos.1220 of 2017 & 2553 of 2017 33 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 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. 45. 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 MACA Nos.1220 of 2017 & 2553 of 2017 **==> picture [13 x 8] intentionally omitted <==** jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a 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** . 46. 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 award any MACA Nos.1220 of 2017 & 2553 of 2017 35 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 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/- MACA Nos.1220 of 2017 & 2553 of 2017 36 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 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 MACA Nos.1220 of 2017 & 2553 of 2017 37 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. 47. 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. 48. In view of the law laid down by the Apex Court in **Magma General Insurance Company Ltd** ., after referring 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 MACA Nos.1220 of 2017 & 2553 of 2017 38 consortium, as laid down in **Pranay Sethi** . 49. 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 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, MACA Nos.1220 of 2017 & 2553 of 2017 39 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. …..." 50. 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)** 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 MACA Nos.1220 of 2017 & 2553 of 2017 40 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, 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 MACA Nos.1220 of 2017 & 2553 of 2017 41 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 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." MACA Nos.1220 of 2017 & 2553 of 2017 42 51. 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 Rs.40,000/- each for loss of filial consortium. 52. 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 MACA Nos.1220 of 2017 & 2553 of 2017 43 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. 53. 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 consortium. In **Magma** , after noticing the fact that the mother of the deceased had predeceased 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 MACA Nos.1220 of 2017 & 2553 of 2017 44 141 of the Constitution of India. 54. In view of the law laid down by the Apex Court in **Pranay Sethi** and **Magma General Insurance Company Ltd.** referred to supra, Rs.25,000/- awarded by the Tribunal in the impugned award towards funeral expenses is scaled down to Rs.15,000/-, resulting an **excess payment** of **Rs.10,000/-** (25,000 – 15,000). The 1[st] appellant wife, who is not entitled for payment of compensation under the head loss of love and affection, is granted a sum of Rs.40,000/- under the head spousal consortium, resulting an additional compensation of **Rs.15,000/-** (40,000 – 25,000). The 2[nd] appellant, the minor daughter of the deceased, and the 3[rd] appellant, the mother of the deceased, are granted Rs.40,000/- each (40,000 x 2 = 80,000) under the head parental consortium and filial consortium, respectively. Deducting Rs.25,000/- each granted under the head loss of love and affection, they will be entitled for an additional compensation of **Rs.30,000/-** (15,000 x 2) [80,000 – (25,000 + 25,000)] under the above heads. As held in **Pranay Sethi** , the head relating to loss of care and guidance for minor children does not exist. Therefore, Rs.50,000/- awarded by the Tribunal, to the 2[nd] respondent, the minor daughter of the MACA Nos.1220 of 2017 & 2553 of 2017 45 deceased, towards loss of care and guidance, cannot be sustained in law, resulting an **excess payment** of **Rs.50,000/-** . 55. The Tribunal awarded no compensation towards loss of estate. In view of the law laid down by the Apex Court in **Pranay Sethi [(2017) 16 SCC 680]** an amount of Rs.15,000/- can be granted under the head loss of estate. Accordingly, the appellants are granted a sum of **Rs.15,000/-** towards loss of estate. 56. The Tribunal awarded Rs.15,000/- as compensation towards pain and suffering of the deceased. 57. 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 MACA Nos.1220 of 2017 & 2553 of 2017 46 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. 58. In the instant case, the deceased succumbed to the injuries on the date of accident itself. Considering the said fact, the compensation awarded by the Tribunal towards pain and suffering of the deceased is scaled down to Rs.5,000/-, resulting an **excess payment** of **Rs.10,000/-** (15,000 – 5,000). 59. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-; and towards damage to clothing and articles, no amount has been awarded by the Tribunal. The accident is of the year 2014. The deceased succumbed to the injuries on the date of accident itself. The compensation awarded by the Tribunal under the head transportation to hospital represents just and reasonable compensation, which requires no enhancement in this appeal. The appellant is granted a sum of **Rs.1,250/-** under the head damage to clothing and articles. 60. In the result, the appellants/claimants in M.A.C.A.No.1220 of 2017 are entitled for an additional compensation of **Rs.4,39,250/-** (Rupees four lakhs thirty nine MACA Nos.1220 of 2017 & 2553 of 2017 47 thousand two hundred and fifty only) [(4,48,000 + 15,000 + 30,000 + 15,000 + 1,250) – (10,000 + 50,000 + 10,000)] 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 1[st] appellant as spousal consortium, that granted to 2[nd] appellant under the head parental consortium and that granted to 3[rd] appellant under the head filial consortium shall be apportioned among the appellants in the ratio 60:30:10. 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. Since the claim petition is one filed prior to 16.01.2015, the appellants in both the appeals have no liability to pay additional Court Fee in terms of the amendment made to sub-rule (3) of Rule 397 of the Kerala Motor Vehicles Rules, 1989, which came into force with effect from 16.01.2015. 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 MACA Nos.1220 of 2017 & 2553 of 2017 **==> picture [13 x 8] intentionally omitted <==** directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 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 receipt of a certified copy of this judgment. Both appeals are disposed of as above. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** AV