Mahin and Nabeeesa v. Abdul Latheef and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** ## **MACA.No.2373 OF 2013** **AGAINST THE AWARD IN OP(MAC) No. 232/2011 DATED 07-072012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/S:** **1 MAHIN, S/O. ABDUL ASEES. 2 NABEESA, W/O. MAHIN BOTH THE PETITIONERS ARE RESIDING AT KODIPARAMBIL HOUSE, KOZHICHENA, VALAKKULAM P.O., PIN-676508, TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.JAMSHEED HAFIZ** ## **RESPONDENT/S:** |**1**|**ABDUL LATHEEF, S/O. MUHAMMEDKUTTY HAJI,**| |---|---| ||**MOONNAMKANDATHIL HOUSE, MOONIYUR P.O.,**| ||**PIN-676311, KALIYATTUMUKKU, MALAPPURAM**| ||**DISTRICT.**| |**2**|**UNITED INDIA INSURANCE CO. LTD.**| ||**BRANCH OFFICE, KILIYAMANNIL PLAZA, UP HILL,**| ||**MALAPPURAM DISTRICT, PIN-676505.**| ||**R1 BY ADV. SRI.P.SANKARANKUTTY NAIR**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA No. 2373 of 2013 ## **JUDGMENT** The appellants are the claimants in O.P.(MAC)No.232 of 2011 on the file of the Motor Accidents Claims Tribunal, Tirur, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Nabeel, aged 7 years, son of appellants, in a motor accident which occurred on 26.01.2008, while he was standing on the side of a public road. At the place of accident, he was knocked down by a car bearing registration No. KL10/G-8484, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries on the date of accident itself. Alleging that the accident occurred due to rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex parte. The 2[nd] respondent insurer filed written statement admitting the policy coverage of the -3- MACA No. 2373 of 2013 car involved in the accident; however, denying negligence alleged against the driver of that vehicle. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellants/claimants. Both sides have not chosen to adduce any oral evidence. 4. 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 car by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,36,500/- together with interest at the rate 7.5% per annum from the date of petition, i.e., from 02.04.2011, till the date of deposit, with proportionate cost and directed the 2[nd] respondent insurer to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/ -4- MACA No. 2373 of 2013 claimants are before this Court in this appeal. 6. Heard the learned counsel for the appellants/ claimants and also the learned Standing Counsel for the 2[nd] respondent insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under various heads. 8. 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 -5- MACA No. 2373 of 2013 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. 9. 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 -6- MACA No. 2373 of 2013 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. ## 10. 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 (in<br>rupees)|Basis-<br>vital<br>details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earning (total)|Nil|Nil|| |2|Loss of earning (partial)|Nil|Nil|| |3|Medical and miscellaneous<br>expenses|5000|1000|| |4|Funeral expenses|5000|5000|| |5|Bystander expenses|Nil|Nil|| |6|Transportation expenses|5000|3000|| |7|Extra nourishment|Nil|Nil|| |8|Damage to clothing etc,.|Nil|Nil|| |9|Pain and sufferings|10000|5000|| |10|Loss of dependency &<br>estate|Nil|Nil|| |11|Loss of consortium|Nil|Nil|| |12|Loss of love and affection|40000|10000|| |13|Loss of estate|10000|Nil|| -7- MACA No. 2373 of 2013 |14|Compensation of economic<br>benefits|225000|112500|(1,250/2-<br>625x12x<br>15)| |---|---|---|---|---| |15|Compensation for loss of<br>amenities|Nil|Nil|| |16|Any other heads:<br>loss of earning power|Nil|Nil|| ||**Total**|**3,00,000**|**1,36,500/-**|| 11. The accident occurred on 26.01.2008. At the time of accident, the deceased was a minor aged 7 years, who succumbed to the injuries on the date of accident itself, while undergoing treatment. 12. During the course of arguments, the learned counsel for the appellants would place reliance on the judgment of this Court in **National Insurance Company Ltd. v. Assainar [2019 (4) KLT 39]** . 13. In **Assainar's case (supra)** , the questions formulated for decision were as follows; (i) Can multiplier method be accepted as the appropriate mode of assessment of compensation for loss of dependency in all cases involving death of children and if not, what shall be the mode for assessment of compensation under that head? (ii) What shall be the multiplier to be applied for computing compensation for loss of dependency in -8- MACA No. 2373 of 2013 cases involving death of children and what shall be the additions and deductions to be made for determining the multiplicand for the said purpose? In the said decision, this Court held that, in cases involving death of children in the age group of 6 to 15 years after 2018 amendment to Section 163A of the Motor Vehicles Act, 1988 compensation can be fixed appropriately on the basis of the compensation prescribed under Section 163A, namely, Rs.5,00,000/-, after offsetting the effect of inflation on the real value of money. The multiplier to be applied for arriving at the compensation for dependency payable in cases involving the death of children can be '15', and the mode of assessment is as provided for in the Second Schedule to the Motor Vehicles Act, viz, that one third of the notional income shall be deducted while determining the multiplicand, subject, of course, to the condition that the compensation shall not go below the compensation prescribed under the Act. This Court held that, no amount can be added to the notional income towards future prospects while determining the multiplicand for computing compensation for loss of dependency in cases -9- MACA No. 2373 of 2013 involving death of children. On the issue as regards the manner in which notional income has to be arrived at in cases involving death of children, in a proceedings under Section 166 of the Motor Vehicles Act, this Court held that the notional income of children died after the financial year 1995-96 can be determined applying the table showing the cost inflation index notified by the Government of India from time to time, the corresponding money value for Rs.24,000/-, applying the cost inflation index upto the year 2018-19 and the nearest thousand of the money value arrived at. Paragraphs 17 to 19 of the said decision reads thus; “17. What remains to be considered is the issue as regards the manner in which notional income has to be arrived at in cases involving death of children in a proceedings under Section 166 the Act. The plethora of precedents in matters relating to computation of compensation in cases involving children do not provide consistency or uniform guidelines for the tribunals and courts to approach the matter with certainty or with absolute confidence. As noted, in the context of cases involving death of children below the age of 10, except in cases where the children are actually earning during -10- MACA No. 2373 of 2013 their minority itself, determination of notional income has been a mere process of guess work. Having regard to the large number of motor accident claims coming up for adjudication before the tribunals and the summary nature of the proceedings contemplated under the Act for adjudication of such claims, according to me, there is need for a simplified procedure for the said purpose so as to maintain uniformity in the awards. Except in exceptional cases where the circumstances warranted a different yardstick to be followed for arriving at the notional income, according to me, the statutory prescription contained in the Second Schedule can be the basis for fixing the notional income. 18. Once it is accepted that the multiplier to be applied while computing compensation for dependency is ‘15’ and the mode of assessment is as provided for in the Second Schedule to the Act, viz, that one third shall only be deducted from the notional income to determine the multiplicand, as it is found that the compensation payable under the un-amended Section 163A is Rs.2,40,000/-, it can be seen, though it is provided in the Second Schedule that the notional income of a nonearning person shall be reckoned at Rs.15,000/-, the notional income in respect of children below the age of 15 is actually contemplated to be reckoned at Rs.24,000/-. In other words, having regard to the fact that Section 163A is a provision introduced only with -11- MACA No. 2373 of 2013 effect from 14.11.1994, and having regard to the compensation granted by various courts in cases involving death of children during the said period, I am of the view that Rs.24,000/- can be fixed, except in exceptional cases where a different yardstick has to be followed, as the notional income of the children died in accidents till the end of the financial year 1995-96. But the said amount cannot be reckoned as the notional income in cases arising in the subsequent years, as it is common knowledge that rupee value has come down drastically thereafter and the effect of inflation in the subsequent years has therefore, to be offsetted. In _Chetan Malhotra & Ors.v. Lala Ram & Ors._ (2016 (2) KLT OnLine 2511 (Del.)= CDJ 2016 DHC 865), the Delhi High Court has made an endeavour to bring in uniformity in the compensation granted in cases involving death of children. In the said case, it was found that having regard to the fluctuating trends in consumer price index, the cost inflation index determined and notified by the Ministry of Finance in Government of India under Section 48 of the Income Tax Act, 1961, for each financial year would be a better method to offset the effect of inflation on the real value of money. The view expressed in the said case appears to be sound and can be accepted. A table showing the cost inflation index notified by the Government of India from time to time, the corresponding money value for -12- MACA No. 2373 of 2013 Rs.24,000/- applying the cost inflation index up to the year 2018-19 and the nearest thousand of the money value arrived at, is furnished hereunder for ready reference : |reference :|reference :|reference :|reference :|reference :|reference :| |---|---|---|---|---|---| |SCHEDULE 2|||||| |Sl.<br>No.|Financial<br>Year|Cost<br>Inflation<br>Index|Cost<br>Inflation<br>New Index|Value|Value to<br>Nearest<br>Thousand| |1<br>2<br>3<br>4<br>5<br>6<br>7<br>8<br>9<br>10<br>11<br>12<br>13<br>14<br>15<br>16<br>17<br>18<br>19<br>20<br>21<br>22<br>23<br>24|1995-96<br>1996-97<br>1997-98<br>1998-99<br>1999-00<br>2000-01<br>2001-02<br>2002-03<br>2003-04<br>2004-05<br>2005-06<br>2006-07<br>2007-08<br>2008-09<br>2009-10<br>2010-11<br>2011-12<br>2012-13<br>2013-14<br>2014-15<br>2015-16<br>2016-17<br>2017-18<br>2018-19|281<br>305<br>331<br>351<br>389<br>406<br>426|100<br>105<br>109<br>113<br>117<br>122<br>129<br>137<br>148<br>167<br>184<br>200<br>220<br>240<br>254<br>264<br>272<br>280|24,000<br>26,050<br>28,270<br>29,979<br>33,224<br>34,676<br>36,384<br>38,204<br>36,659<br>41,114<br>42,570<br>44,389<br>46,936<br>49,847<br>53,849<br>60,762<br>66,947<br>72,769<br>80,046<br>87,322<br>92,416<br>96,055<br>98,965<br>101,876|24,000<br>26,000<br>28,000<br>30,000<br>33,000<br>35,000<br>36,000<br>38,000<br>40,000<br>41,000<br>43,000<br>44,000<br>47,000<br>50,000<br>54,000<br>61,000<br>67,000<br>73,000<br>80,000<br>87,000<br>92,000<br>96,000<br>99,000<br>102,000| In other words, the notional income of children died after the financial year 1995-96 can be determined applying the above table and I have no doubt, the same would certainly provide uniformity in the awards. 19. The outcome of the aforesaid discussion as regards -13- MACA No. 2373 of 2013 compensation payable for loss of dependency in cases involving death of children can be summarised as follows: (1) Compensation in respect of school going children died in motor accidents above the age of 6 and upto the age of 15 shall be computed applying the multiplier method, and the multiplier to be applied shall be ‘15’, subject to the condition that the compensation shall not go below the prescribed amount in terms of the Second Schedule. (2) Except in exceptional cases, where different yardsticks have to be followed for arriving at the notional income having regard to the cogent and irrefutable evidence let in by the parties, the notional income of the deceased children in the age group of 6 to 15 shall be determined as in the Second Schedule, viz, Rs.24,000/-, after making appropriate correction for offsetting the inflation, as indicated in the table furnished in paragraph 18 above. (3) No amount need be added to the notional income towards future prospects and one third of the notional income has to be deducted towards personal expenses while computing compensation. (4) Except in exceptional cases, where the Tribunal finds on cogent and irrefutable evidence let in by the parties that the quantum of -14- MACA No. 2373 of 2013 compensation arrived at in cases involving death of children below the age of 6 in the manner indicated in this judgment will not satisfy the requirement of just compensation, consolidated amounts can be granted by way of compensation. The consolidated amounts for the said purpose shall be as provided for in Section 163A of the Act as applicable to death cases namely, Rs.2,40,000/-, subject to a progressive addition to be made from year to year, at the rate of Rs.12,000/- for every year after 1995, for cases involving death upto the year 2018. Thereafter, the compensation shall be computed as provided for in the amended Section 163A, viz, Rs.5,00,000/-, after offsetting the effect of inflation on the real value of money, as indicated in Clause (2) above.” 14. The accident occurred on 26.01.2008; i.e., during the financial year 2007-2008. Therefore, dependency compensation has to be calculated taking the notional annual income of Rs.47,000/-; applying the multiplier of 15; and deducting 1/3[rd] towards the personal and living expenses of the deceased. In the result, the compensation under the head loss of dependency is re-fixed as Rs.4,70,000/- (47,000 x 15 -15- MACA No. 2373 of 2013 x 2/3), resulting an additional compensation of **Rs.3,57,500/-** (4,70,000 – 1,12,500). 15. In the impugned award, the Tribunal awarded a sum of Rs.10,000/- towards loss of love and affection and a further sum of Rs.5,000/- towards funeral expenses. The Tribunal awarded no compensation under the head loss of estate. 16. 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. 17. 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 MACA No. 2373 of 2013 -16- 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 should be enhanced on -17- MACA No. 2373 of 2013 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. 18. 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** . 19. 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 -18- MACA No. 2373 of 2013 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 **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 per cent in the span of every three years. However, we are still within the window of three years.” “underline ## supplied” 20. In **Magma General Insurance Co. Ltd. v. Nanu** -19- MACA No. 2373 of 2013 **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, 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 -20- MACA No. 2373 of 2013 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. 21. In **Magma General Insurance** the Apex Court held that consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a 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 -21- MACA No. 2373 of 2013 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** . 22. 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 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 -22- MACA No. 2373 of 2013 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/- 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 -23- MACA No. 2373 of 2013 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 concept of **spousal** -24- MACA No. 2373 of 2013 ## **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. 23. 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. 24. 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 -25- MACA No. 2373 of 2013 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** . 25. 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- MACA No. 2373 of 2013 "26. ….... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/ relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. …..." 26. 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 -27- MACA No. 2373 of 2013 Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras.11 to 13 of the judgment read thus; "11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. 12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, -28- MACA No. 2373 of 2013 though they are not limited by the substantive provisions in the Statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. 'Declaration of Law' as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of **Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72]** , **Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 381]** and in **State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667]** , has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the -29- MACA No. 2373 of 2013 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." 27. 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 -30- MACA No. 2373 of 2013 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. 28. As already noticed, the compensation that has to be awarded to the surviving spouse towards spousal consortium; to the children of the deceased towards parental consortium; or to the parents of the deceased child towards filial consortium, is for loss of **love and affection** and such other matters. In such circumstances, once the surviving spouse is awarded compensation towards spousal consortium; or the children of the deceased are awarded compensation towards parental consortium; or the parents of the deceased child are awarded compensation towards filial consortium, they are not entitled for award of further compensation under the head loss love and affection, as it would result in duplication or overlapping of compensation under the relevant heads. 29. The concept of spousal consortium to the surviving -31- MACA No. 2373 of 2013 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 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. MACA No. 2373 of 2013 -32- 30 _._ In view of the law laid down by the Apex Court in **Pranay Sethi** and **Magma General Insurance Company** **Ltd.** referred to supra, Rs.5,000/- awarded by the Tribunal in the impugned award towards funeral expenses is re-fixed as Rs.15,000/-, resulting an an additional compensation of **Rs.10,000/-** (15,000 – 5,000); Rs.10,000/- awarded by the Tribunal under the head loss of love and affection is re-fixed as Rs.80,000/- (40,000 x 2) and the same is granted to appellants 1 and 2 under the head filial consortium, resulting an additional compensation of **Rs.70,000/-** (80,000 – 10,000). 31. 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 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. 32. The Tribunal awarded Rs.5,000/- towards pain and suffering of the deceased. -33- MACA No. 2373 of 2013 33. 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. 34. In the instant case, the deceased succumbed to the injuries on the date of accident. Therefore, the compensation awarded under the head pain and suffering of the deceased -34- MACA No. 2373 of 2013 represents just and reasonable, which requires no enhancement in this appeal. _35_ . Towards transportation to hospital the Tribunal awarded a sum of Rs.3,000/-; and no compensation has been awarded under the head damage to clothing and articles. Considering the fact that the accident is of the year 2008, this Court deem it appropriate to grant an amount of **Rs.1,000/-** under the head damage to clothing and articles. The compensation awarded by the Tribunal under the head transportation to hospital represents just and reasonable compensation, which requires no enhancement in this appeal. 36. In the result, the appellants/claimants are entitled for payment of an additional compensation of **Rs.4,53,500/-** (Rupees four lakhs fifty three thousand five hundred only) [3,57,500 + 10,000 + 70,000 + 15,000 + 1,000] 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 appellants 1 and 2 under the head filial consortium shall be MACA No. 2373 of 2013 -35- apportioned among the appellants in the ratio 50:50. The 2[nd] 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. Payment of additional compensation granted in this appeal shall be made to the appellants/claimants as per 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 appellants/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 -36- MACA No. 2373 of 2013 judgment. This appeal is disposed of as above. No order as to costs. All pending interlocutory applications in this appeal are closed. Sd/- **ANIL K.NARENDRAN JUDGE** ## **das**