MACA Nos. 521 of 2018 & 622 of 2018 - Cholamandalam MS General Insurance Company Limited v. Vijayyan, Retnamma, Vesaka, Vinni & others; Jeleston Prakash v. Vijayyan, Retnamma, Vesaka, Vinni & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** **MACA.No.521 OF 2018** **AGAINST THE AWARD IN OP(MV) No. 576/2012 DATED 31-10-2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT/S:** **CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED THIRUVANANTHAPURAM NOW REPRESENTED BY ITSDEPUTY MANAGER-CLAIMS, ACEL ESTATE, IYYATTILJUNCTION, CHITTOOR ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT/S:** **1 VIJAYAN, S/O JESSYA, VINNI COTTEGE, CHENKAL EAST,CHENKAL P.O., PIN:695132. 2 RETNAMMA, W/O VIJAYAN, VINNI COTTEGE, CHENKAL EAST, CHENKAL P.O., PIN:695132. 3 VESAKA, D/O RETNAMMA, VINNI COTTEGE, CHENKAL EAST, CHENKAL P.O., PIN:695132. 4 VINNI, D/O. RETNAMMA, VINNI COTTEGE, CHENKAL EAST, CHENKAL P.O., PIN:695132. R1 BY ADV. SRI.R..NIKHIL(CAVEATOR) R1 BY ADV. SRI.R..NIKHILCAVEATOR R1 BY ADV. SRI.R.NIKHIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2020, ALONG WITH MACA.622/2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. Nos. 521 & 622 of 2018 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** ## **MACA.No.622 OF 2018** **AGAINST THE AWARD IN OP(MV) No. 576/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT/S:** **1 VIJAYAN AGED 63 YEARS, S/O. JESSAYYA, RESIDING AT VINNI COTTAGE, CHENKAL EAST, CHENKAL P.O., THIRUVANANTHAPURAM DISTRICT.** **2 RETNAMMA AGED 58 YEARS, W/O. VIJAYAN, RESIDING AT VINNI COTTAGE, CHENKAL EAST, CHENKAL P.O., THIRUVANANTHAPURAM DISTRICT.** - **3 VESAKA** **AGED 27 YEARS, D/O. VIJAYAN, RESIDING AT VINNI COTTAGE, CHENKAL EAST, CHENKAL P.O., THIRUVANANTHAPURAM DISTRICT. 4 VINNI AGED 25 YEARS, D/O. VIJAYAN, RESIDING AT VINNI COTTAGE, CHENKAL EAST, CHENKAL P.O., THIRUVANANTHAPURAM DISTRICT.** **==> picture [228 x 38] intentionally omitted <==** **----- Start of picture text -----**<br> BY ADV. SRI.R.NIKHIL<br>RESPONDENT/S:<br>**----- End of picture text -----**<br> -3- MACA. Nos. 521 & 622 of 2018 **1 JELESTON PRAKASH AGE NOT KNOWN TO THE APPELLANTS, S/O. CHELLAYYAN, RESIDING AT 7/515, CC BHAVAN, KANCHIVILA, IRUMBIL, PERUMPAZHUTHOOR, NEYYATTINKARA P.O., THIRUVANANTHAPURAM DISTRICT - 695 121.** **2 UJIN RAJ AGE NOT KNOWN TO THE APPELLANTS, S/O. DAS, RESIDING AT SDOOR NO. 16-28D, VILAVANCODE, KADAYALUMOODU, KADAYAL, KANYAKUMARI DISTRICT, TAMIL NADU STATE - 629 101.** **3 THE MANAGER CHOLAMANDALAM MSG INSURANCE CO.LTD., 1ST FLOOR, SARAN CHAMBERS, DIAMOND HILL, VELLAYAMBALAM, THIRUVANANTHAPURAM DISTRICT - 695 010.** **R1, R3 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2020, ALONG WITH MACA.521/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -4- MACA. Nos. 521 & 622 of 2018 ## **JUDGMENT** Since these appeals arises out of an award passed by the Motor Accidents Claimants Tribunal, Neyyattinkara, dated 13.10.2017 in O.P.(MV).No.576 of 2012, the appeals are heard together and are disposed of by this common judgment. 2. The appellant in M.A.C.A. No.521 of 2018 is the 3[rd] respondent insurer in O.P.(MV).No.576 of 2012, which is a claim petition filed by appellants in M.A.C.A. No.622 of 2018, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Vinayan, son of claimants 1 and 2, and brother of claimants 3 and 4, in a motor accident which occurred on 12.04.2012, while he was riding a motorcycle bearing registration No.KL-19/5405. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KL-01/AP-5882, insured with the appellant in M.A.C.A. No.521 of 2018. In the accident, he sustained fatal injuries, who succumbed to the injuries on the spot, since he was ran over by the lorry. Alleging that the accident occurred due to rash and negligent driving of the lorry by its driver, claim petition was filed before the Tribunal, claiming a total -5- MACA. Nos. 521 & 622 of 2018 compensation of Rs.35,00,000/- under various heads. 3. Before the Tribunal, the owner and driver of the lorry filed written statement contending that the accident occurred due to negligence on the part of the deceased. The insurer filed written statement admitting the policy coverage of the lorry involved in the accident; however, denying negligence alleged against the driver of that vehicle. The insurer contended that the accident occurred due to the rash and negligent riding of the motorcycle by the deceased. 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, Exts.A1 to A5 were marked on the side of the claimants. Both sides have not chosen to adduce any oral 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 the lorry by its driver. Since insurance coverage of the said vehicle was not -6- MACA. Nos. 521 & 622 of 2018 in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.24,64,750/-, (which was rounded of to Rs.24,65,000/-) together with interest at the rate 9% per annum from the date of petition, i.e., from 30.06.2012, till realisation. The amount of compensation was ordered to be apportioned among the claimants, as stated in the last paragraph of the award. 6. M.A.C.A. No.521 of 2018 is filed by the insurer, challenging the quantum of compensation awarded by the Tribunal under various heads, by contending that the amount of compensation is on the higher side. On the other hand, the claimants are before this Court in M.A.C.A No.622 of 2018, by contending that the compensation awarded by the Tribunal under various heads are on the lower side, which requires enhancement at appropriate rate. 7. Heard the learned counsel for the appellant in M.A.C.A No.521 of 2018 and also the learned counsel for the respondents/ claimants, who are the appellants in M.A.CA. No. -7- MACA. Nos. 521 & 622 of 2018 622 of 2018 and respondents in M.A.C.A. No. 521 of 2018. 8. The issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under various compensation represents just and reasonable compensation. 9. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |SI.<br>No.|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in<br>rupees)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of dependency|2500000|2188750|128750 x 17| |2|Loss of consortium|400000|--------|| |3|Loss of estate|------|30000|| |4|Loss of love and<br>affection|400000|200000|| |5|Loss of pain and<br>suffering|50000|15000|| |6|Medical expenses|2000|----------|| |7|Transport to hospital|10000|5000|| |8|Funeral expenses|20000|25000|| |9|Damage to clothing|2000|1000|| ||Total||2464750<br>Rounded<br>to<br>2465000/-|2465000 with<br>9%<br>interest<br>per<br>annum<br>from<br>30.06.2012 till<br>realisation.| 10. The accident occurred on 12.04.2012. At the time of accident, the deceased was aged 26 years. In the claim petition petition, it was claimed that, at the time of accident, -8- MACA. Nos. 521 & 622 of 2018 the deceased was earning a monthly income of Rs.14,285/- as a Radiographer in Health Services Department, Government of Kerala, who was posted at SAT hospital, Thiruvananthapuram. The document marked as Ext.A5 is the salary certificate issued from Health Services Department. The Tribunal accepted the monthly income of the deceased, as shown in Ext.A5 for the purpose of awarding compensation under the head loss of dependency. Relying on the judgment of the Apex Court in **Rajesh v. Rajbir Sing (2013 (9) SCC 54)** , the Tribunal added 50% towards future prospects. 11. 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 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, -9- MACA. Nos. 521 & 622 of 2018 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 basis of age. 12. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , -10- MACA. Nos. 521 & 622 of 2018 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. 13. 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 -11- MACA. Nos. 521 & 622 of 2018 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. 14. In the instant case, at the time of accident, the deceased was aged 26 years. It was claimed that, at the time of accident, the deceased was earning monthly income as Radiographer in Health Services Department. Government of Kerala. In the impugned award, relying on the decision of the -12- MACA. Nos. 521 & 622 of 2018 Apex Court in **Rajesh** , the Tribunal added **50%** of the notional monthly income of the deceased towards future prospects. The addition of 50% on the monthly income of the deceased, as per Ext.A5, towards future prospects, is perfectly legal, in view of the law laid down in **Pranay Sethi** . 15. The learned Senior Counsel for the appellant in M.A.C.A. No.521 of 2018 would submit that no deduction was made by the Tribunal towards income tax payable by the deceased. The monthly income of the deceased, as borne out from Ext.A5, is only Rs.14,285/-. In view of standard deduction available for a Government employee, it cannot be said that the Tribunal went wrong in not deducting any amount towards the income tax. 16. The learned Senior Counsel for the appellant in M.A.C.A. No.521 of 2018 would confine the challenge made in this appeal against an amount of Rs.30,000/- awarded by the Tribunal under the head loss of estate; Rs.2,00,000/- awarded under the head loss of love and affection; Rs.15,000/awarded towards pain and suffering; Rs.25,000/- awarded -13- MACA. Nos. 521 & 622 of 2018 towards funeral expenses. 17. On the other hand, the learned counsel for the appellants in M.A.C.A. No.622 of 2018, who are the claimants before the Tribunal, would contend that the Tribunal went wrong in not awarding any compensation under the head loss of consortium. The learned counsel would contend that in view of the decision of the Apex Court in **Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130]** , the appellants 1 and 2 are entitled for compensation under the head loss of consortium at the rate of Rs.40,000/- each, in addition to the compensation already awarded under the head loss of love and affection. 18. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.25,000/-; Rs.2,00,000/towards loss of love and affection and Rs.30,000/- towards loss of estate. The Tribunal awarded no compensation under the head loss of consortium. 19. In **Rajesh [(2013) 9 SCC 54]** a Three-Judge Bench of the Apex Court granted Rs.25,000/- towards funeral -14- MACA. Nos. 521 & 622 of 2018 expenses, Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of care and guidance for minor children. 20. 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 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 -15- MACA. Nos. 521 & 622 of 2018 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. 21. 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** . -16- MACA. Nos. 521 & 622 of 2018 22. 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 present appeal. xxx xxx xxx -17- MACA. Nos. 521 & 622 of 2018 **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” 23. 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 compensation to the **surviving spouse** for loss of 'company, -18- MACA. Nos. 521 & 622 of 2018 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. 24. 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 -19- MACA. Nos. 521 & 622 of 2018 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** . 25. 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 -20- MACA. Nos. 521 & 622 of 2018 166 of the Motor Vehicles Act. The Claims Tribunal did not 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 -21- MACA. Nos. 521 & 622 of 2018 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/- 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 -22- MACA. Nos. 521 & 622 of 2018 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 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. 26. 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 -23- MACA. Nos. 521 & 622 of 2018 the Apex Court should be enhanced on percentage basis, at the rate of 10%, in a span of every three years. 27. 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 consortium, as laid down in **Pranay Sethi** . 28. 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 -24- MACA. Nos. 521 & 622 of 2018 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, 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 -25- MACA. Nos. 521 & 622 of 2018 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. …..." 29. 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 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 -26- MACA. Nos. 521 & 622 of 2018 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 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 -27- MACA. Nos. 521 & 622 of 2018 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." 30. In **Magma General Insurance Company Ltd.** , -28- MACA. Nos. 521 & 622 of 2018 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. 31. 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 -29- MACA. Nos. 521 & 622 of 2018 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. 32. 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 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 -30- MACA. Nos. 521 & 622 of 2018 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. 33. 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); Rs.2,00,000/- awarded towards love and affection is scaled down as Rs.40,000/- each to appellants 1 and 2 in MACA No.622 of 2018, who are the parents of the deceased (40,000 x 2 = 80,000) and the same is granted under the head filial consortium, resulting **excess payment** of **Rs.1,20,000/-** (2,00,000 – 80,000). Once appellants 1 and 2 are granted compensation towards filial consortium, they are not entitled for award of further -31- MACA. Nos. 521 & 622 of 2018 compensation under the head loss of love and affection. 34. As already noticed, 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. Therefore, appellants 3 and 4 in M.A.C.A. No.622of 2018, who are the siblings of the deceased are not entitled for payment of any compensation under the head loss of consortium or loss of love and affection. 35. The Tribunal awarded Rs.30,000/- as compensation towards loss of estate. In view of the law laid down by the Apex Court in **Pranay Sethi [(2017) 16 SCC 680]** only an amount Rs.15,000/- can be granted under the head loss of estate. In the result, the compensation awarded under the head loss of estate is scaled down to Rs.15,000/-, resulting an **excess payment** of **Rs.15,000/-** (30,000 – 15,000). 36. The Tribunal awarded Rs.15,000/- as compensation -32- MACA. Nos. 521 & 622 of 2018 towards pain and suffering of the deceased. 37. 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. 38. In the instant case, the deceased succumbed to the injuries on the date of accident itself. In view of the law laid -33- MACA. Nos. 521 & 622 of 2018 down in **Jyni,** Rs.15,000/- awarded by the Tribunal in the impugned award towards pain and suffering is scaled down to Rs.5,000/-, resulting an **excess payment** of **Rs.10,000/-** (15,000 – 5,000). 39. In the result, M.A.C.A. No.622 of 2018 filed by the claimants is dismissed and M.A.C.A. No.521 of 2018 filed by the insurer is disposed of by scaling down total compensation payable in O.P(MV) No.576 2012 to **Rs.23,10,000/-** (Rupees twenty three lakhs ten thousand only) [24,65,000 - (10,000 + 1,20,000 + 15,000 + 10,000)]. Pursuant to the interim order in M.A.C.A. No.521 of 2018, the appellant insurer has already deposited a sum of Rs.20,00,000/-, out of which Rs.10,00,000/- has already been withdrawn by the claimants. The appellant insurer shall satisfy the balance amount within two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the claimants towards Balance Court Fee and Legal Benefit Fund. The disbursement of the balance amount originally awarded by the Tribunal and the additional compensation granted in this -34- MACA. Nos. 521 & 622 of 2018 appeal 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 Official Memorandum No.D1-62475/2016 dated 07.11.2019. The additional compensation payable to minor claimants, if any, shall be deposited in fixed deposit in a Nationalised Bank till they attain majority. The appellants to 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. No order as to costs. All pending interlocutory applications in these appeals are closed. Sd/- **ANIL K.NARENDRAN JUDGE** das