Maimoonammal Arif v. Ponnan M.A and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **MACA.No.2139 OF 2010** **AGAINST THE AWARD IN OP(MV) No.605/2001 DATED 26-04-2010 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/S:** **1 MAIMOONAMMAL ARIF, W/O.LATE MUHAMMAD ARIF, ANFAL MANZIL, MANGARAM, KONNI. 2 ANFAL ARIF MINOR AGED 13 YEARS S/O.LATE MUHAMMAD ARIF, ANFAL MANZIL, MANGARAM,, KONNI, REPRESENTED BY HIS MOTHER 1ST APPELLANT, MAIMOONAMMAL ARIF. 3 S.A.JABBAR F/O.SAID MUHAMMAD ARIF ANFAL MANZIL, MANGARAM, KONNI. 4 FATHIMA BEEVI W/O.S.A.JABBAR ANFAL MANZIL, MANGARAM, KONNI. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/S:** **1 PONNAN.M.A, S/O. ABDUL RAHMAN RAVUTHAR, SEMI MANZIL, PULICHANI, KUMMANNOOR P.O., KONNI, PIN 689 691. 2 THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO.LTD., MARTHOMA BUILDINGS, THIRUVALLA, PIN 689 101. R1 BY ADV. SRI.SUNIL JACOB JOSE R2 BY ADV. SRI.P.JACOB MATHEW R2 BY ADV. SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 2139 of 2010 -2- ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No. 605 of 2001 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Muhammed Arif, husband of the 1[st] appellant, father of the 2[nd] appellant and son of appellants 3 and 4, in a motor accident which occurred on 08.02.2001, while he was travelling as pillion rider on a motorcycle bearing registration No. KL-3/B-3410. At the place of accident, the motorcycle was hit by a Jeep bearing registration No. KL-3/A7621, owned and driven by the 1[st] respondent, and insured with the 2[nd] respondent. In the accident, he sustained fatal injuries, who was taken to a local hospital, from where he was was referred to Pushpagiri Hospital, Tiruvalla, where he succumbed to the injuries on the date of accident itself. Alleging that the accident occurred due to rash and negligent driving of the jeep by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of MACA No. 2139 of 2010 -3- Rs.22,48,500/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver of the jeep remained absent and he was set ex parte. The 2[nd] respondent insurer filed written statement admitting policy coverage of the jeep involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A17 were marked on the side of the appellants/claimants. 1[st] appellant was examined as PW1. Respondents have not chosen to adduce any oral or documentary 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 jeep by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.12,86,500/- (less MACA No. 2139 of 2010 -4- the interim compensation of Rs.50,000/- paid under Section 140 of the Motor Vehicles Act) together with interest at the rate 7.5% per annum from the date of petition, i.e., from 19.06.2001, till realisation, with proportionate cost, and the insurer was directed to satisfy the award. Out of the total compensation, a sum of Rs.1,00,000/- each was granted to appellants 3 and 4, who are the parents of the deceased, and the remaining amount was ordered to be apportioned among appellants 1 and 2, equally. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/ 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** MACA No. 2139 of 2010 -5- **[(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. 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 MACA No. 2139 of 2010 -6- 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. 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-vital<br>details in<br>a nutshell| |---|---|---|---|---| |1|Loss of<br>dependency/loss of<br>earning|20,50,000/<br>-|12,00,000/-|80,000 x<br>15| MACA No. 2139 of 2010 -7- |2|Loss of estate /loss of<br>expectancy of life|nil|15,000/-|| |---|---|---|---|---| |3|Loss of consortium to<br>first petitioner|25,000/-|15,000/-|| |4|Medical expenses|5,000/-|Nil|| |5|Transportation<br>expenses|2,000/-|1,000/-|| |6|Damage to clothing|1,500/-|500/-|| |7|Pain and suffering<br>endured by the<br>deceased.|35,000/-|15,000/-|| |8|Funeral and other allied<br>expenses|30,000/-|10,000/-|| |9|Loss of love and<br>affection to minor<br>second petitioner|1,00,000/-|20,000/-|| |10|Loss of love and<br>affection to petitioners<br>3 & 4||10,000/-|| ||**Total**|**22,48,500**<br>**/-**|**12,86,500/-**|| 11. The accident occurred on 08.02.2001. At the time of accident, the deceased was aged 35 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.38,000/- as the Manager of a shop at Saudi Arabia. The document marked as Ext.A9 is the salary certificate issued by the General Manager, International Market, LIC No.13614, Shop No.449, Dahara, Al-Badiyah, Anas Bin Malik Street, Kingdom of Saudi Arabia and Ext.A10 series are the certified ledger extract of the bank account of the deceased. The document marked as Ext.A8 is the English translation of exit and re-entry visa. The 1[st] appellant was MACA No. 2139 of 2010 -8- examined as PW1. The Tribunal fixed the monthly income of the deceased notionally as Rs.10,000/-. 12. Paragraph 6 of the written statement filed by the 2[nd] respondent insurer contains only a vague denial of the occupation and monthly income of the deceased. Paragraph 6 reads thus:- “6. Claims made in column numbers 3,4,5,6,8,9,10, 11,12,12 and 14 about the age, occupation, income, injuries, period of treatment, disability etc. are to be proved by the petitioner with documentary evidence. But he has not yet produced any documents so this respondent denied all the claims made in the above mentioned columns in the petition. The statement in column No.6 of the petition is absolutely false. Hence denied by the respondent. At the time of alleged accident the petitioner was job less man.” 13. In **Jiju Kuruvila v. Oriental Insurance Co. Ltd.** **[(2013) 9 SCC 166]** the appellants before the Apex Court were the legal representatives of the deceased, who was about 45 years of age as on the date of accident (16.04.1990) and was working as a Manager in Freeman Management Corporation, New York Branch in USA for more than 9 years and was receiving a monthly salary of 2500 US Dollars, MACA No. 2139 of 2010 -9- equivalent to Rs.43,100/-. He was provided with quarter by the employer and was residing alongwith his wife. The deceased used to give Rs.30,000/- per month to his wife for the household expenses and savings after meeting his personal expenses. He was healthy, energetic, otherwise, had longevity of life and could have continued in service up to the age of 65 years as per service conditions, i.e., for another 20 years. Tribunal fixed Rs.10,000/- as the monthly contribution by the deceased. The High Court held that the Tribunal wrongly fixed Rs.10,000/- as the monthly contribution by the deceased to the family and observed that even if 1/3[rd] was deducted towards personal expenses of the deceased, more than 1600 US Dollars could be taken as dependency benefit. However, while determining the compensation, the High Court took the figure of 1500 US Dollars as the dependency benefit. The exchange rate as was prevailing on the date of filing of the claim petition, i.e., April, 1990 was taken into consideration based on Ext.A7 and worked out the contribution to the family as Rs.25,950/- per month. One of the questions before the Apex Court was whether the foreign MACA No. 2139 of 2010 -10- currency amount has to be converted into the currency of the country on the basis of exchange rate as on the date of filing claim petition (April, 1990) or as on the date of determination (May, 1993). The claimants filed a petition in April, 1990 (affidavit sworn on 24[th] March, 1990) and claimed compensation in INR, i.e., Rs.57,25,000/-. Such compensation was not claimed in US Dollars. For the said reason and in view of the decisions in **Forasol v. Oil and Natural Gas Commission [(1984) Supp. SCC 263]** and **Renusagar Power Co. Ltd. v. General Electric Co. [(1994) 1994 Supp. 1 SCC 644]** the Apex Court held that the date of filing of the claim petition (April, 1990) is the proper date for fixing the rate of exchange at which foreign currency amount has to be converted into currency of the country (INR). The Tribunal and the High Court have rightly relied on Ext.A7, to fix the rate of exchange as Rs.17.30 (as was prevailing in April, 1990). 14. In **Jiju Kuruvila,** on the question of just and proper compensation, the Apex Court noticed that, both the Tribunal and the High Court have accepted that the deceased MACA No. 2139 of 2010 -11- was 45 years of age at the time of accident; he was working as Manager, Freeman Management Corporation, New York Branch, USA and was getting a monthly salary of 2500 US Dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment up to the age of 65 years. Ext.A6 is a certificate issued by the employer of deceased, i.e., Freeman Management Corporation, USA dated 23.04.1990, as per which his annual salary was 30,000 US Dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service up to the age of 65 years. Ext.A6 was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. On the basis of the aforesaid annual income and exchange rate of Rs.17.30 per US Dollar, as applicable in April, 1990 (as per Ext.A7), the Apex Court found that the annual income of the deceased if converted in Indian currency will be 30,000 x 17.30 = Rs.5,19,000/- at the time of death. MACA No. 2139 of 2010 -12- 15. In **Jiju Kuruvila** , the deceased was in the employment Freeman Management Corporation, New York Branch, USA for 9 years and his employment was of a permanent nature. He was provided with quarter by the employer and was residing alongwith his wife. He was working as Manager and was getting a monthly salary of 2500 US Dollars. The deceased would have continued in service up to the age of 65 years. In the said case, Ext.A6 certificate issued by the employer of deceased, which was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 was also produced before the Tribunal. The law laid down by the Apex Court in **Jiju** - **Kuruvila** cannot be applied in the case of non permanent employment with uncertainty regarding continuance. The monthly income of the injured/deceased, which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the Sponsor cannot be relied upon for the purpose of assessing compensation MACA No. 2139 of 2010 -13- payable under the head disability in injury cases/loss of dependency in death cases. 16. In **Valsamma and another v. Binu Jose and others [2014 (1) KHC 207]** the case of the appellants before the Division Bench of this Court was that the deceased, who was aged 29 years, was working as spray painter in Oman and getting Rs.20,000/- per month. In order to prove the same, they have produced Ext.A5 agreement entered into between the deceased with one Bahwan Automotive Centre, Sultanate of Oman dated 15.05.2001; Ext.A7 labour card; and Ext.A8 passport. But, those documents were not proved in accordance with law. The executant of Ext.A6 agreement was not examined to prove the contents of the same. The passport entry would show that the deceased was having visa up to 25.03.2005 and the accident occurred on 18.09.2004. The Division Bench held that those documents are not sufficient to prove that the deceased was having so much income there. The Division Bench noticed that, employment in Gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a MACA No. 2139 of 2010 -14- permanent employment as in a Government service there. If the deceased was a permanent employee there, then that can be taken as a permanent income and that may be useful to assess the compensation payable to his dependents on that basis. In the case of a non-permanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head 'loss of dependency'. So, in such circumstances, the Court will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the Sponsor cannot be relied upon. So, the Tribunal was perfectly justified in not relying on the document produced and the income alleged to have been derived by the deceased at Oman for the purpose of considering the compensation payable on his death. The Division Bench held that, some guess work will have to be MACA No. 2139 of 2010 -15- made for assessing the income of the deceased who was not having permanent job or self employment, but having some fixed income. The deceased was working as a spray painter and so a person of that caliber in Kerala during 2004 will be getting at least Rs.3,000/- and including his future prospects, the Division Bench took his income as Rs.5,000/- per month, for the purpose of assessing compensation under the head of loss of dependency. 17. In **Abraham Jacob @ Avarachan v. N. Mubarak and others [2014 (3) KLT 883]** , according to the appellant before the Division Bench of this Court, at the time of accident, he was working as a Sales Manager in Buzwair Engineering & Contracting, Doha, Qatar, and earning a monthly income of Qatari Riyal 10,000/- (equivalent INR 1,15,000/-). Ext.A4 was the salary certificate issued by his employer, certifying that he is working with them as an employee and his basic salary is Qatari Riyal 10,000/- per month. Ext.A4 was authenticated by the Consular Officer of the Embassy of India at Doha (Qatar), in accordance with the provisions under the Diplomatic and Consular Officers (Oaths MACA No. 2139 of 2010 -16- and Fees) Act, 1948. Though the salary certificate was marked as Ext.A4, the Tribunal refused to rely on the same stating that it has not been proved as required by law. 18. In **Abraham Jacob** the Division Bench held that sub-section (1) of Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 confers power on the Indian diplomatic and consular officers in foreign countries to administer any oath and take any affidavit and also do any notarial act which any notary public may do within a State and every oath, affidavit and notarial act administered, sworn or done by or before such diplomatic and consular officers shall be as effectual as if duly administered or done by any lawful authority in a State. Sub-section (2) of Section 3 of the Act lays down that any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of the diplomatic and consular officers authorised by the Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, or MACA No. 2139 of 2010 -17- of the official character of that person. The Division Bench held that Section 3 of the Act does not dispense with the proof of a document according to law if it is to be used as evidence in a court of law. All that Section 3 does is to enable a court to dispense with the proof of the genuineness of the seal and signatures of a diplomatic or consular officer on a particular document. If the document is otherwise relevant and proved in accordance with law, a copy of the said document duly authenticated in the manner prescribed by the Act can be admitted in evidence. 19. In **Abraham Jacob** , the appellant, who was only a Postgraduate in Botany, has no case that he had acquired any prior experience or special qualification to hold the post of Sales Manager in engineering and contract field. In such circumstances, the Division Bench held that, though Ext.A4 is a document authenticated in accordance with Section 3 of the Act, the monthly income of Qatari Riyal 10,000/- shown in that certificate cannot be taken as the basis for calculating compensation payable under various heads. The document marked as Ext.A10 was a copy of the passport of the MACA No. 2139 of 2010 -18- appellant, as per which, he went to Doha in the year 1998 and returned on 18.04.1999. Ext.A11 certificate issued by the Asst. General Manager, the Lord Krishna Bank Ltd., Kottayam Branch showed that he was having a NRE (Non-Resident External) term deposit to the tune of Rs.49,04,857/-, as on 31.03.1999. Ext.A12 was another certificate issued by the Manager, Punjab National Bank, Kottayam Branch, certifying that the appellant and his wife Mollykutty were having accounts with them and the balance as on 31.03.1999 was Rs.36,95,199/-. The Division Bench found that Exts.A11 and A12 certificates indicate that the appellant was drawing a reasonably good salary from his overseas employment. As per Annexure C certificate issued by the Chief Executive Officer of Buzwair Engineering & Contracting, Doha, produced before this Court, along with I.A.No.285/2014, a document authenticated in accordance with Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, the service of the appellant was terminated as he could not rejoin service after the accident occurred on 10.05.1999. Considering the aforesaid facts and circumstances of the case and the MACA No. 2139 of 2010 -19- evidence on record, the Division Bench found that the monthly earning capacity of the appellant, as on the date of accident, can be reasonably fixed at Rs.40,000/-, as against Rs.10,000/- fixed by the Tribunal, for calculating compensation under various heads. 20. In **Sherfuddin v. Saveesh K. and another [2014 (1) KHC 242]** the case of the appellant before the Division Bench was that, at the time of accident he was a driver-cum-salesman working in Qatar and getting Rs.28,000/- per month. He had produced Ext.A15 driving licence and Exts.A10 and A10(a) passport to prove that he was employed in Qatar. But, he had not produced any document to prove that he was getting Rs.28,000/- per month at that time. He had no consistent case regarding his income. Though, in the claim petition, he had mentioned his income as Rs.28,000/- per mensum, when he was examined as PW1, his case was that his income was Rs.60,000/- per month. He had produced his passbook to show that he had sent Rs.58,103/during a span of 7 months. The Division Bench held that, the fact that the appellant had sent Rs.58,103/- during a span of MACA No. 2139 of 2010 -20- 7 months alone is not sufficient to come to the conclusion that he was getting a stable income in a foreign country. It was not a permanent income and it has got its own uncertainties. In such circumstances, the income alleged to have been earned by a person in a foreign country cannot be taken as such for the purpose of assessing his monthly income. The Court has to consider the standards in India as to what would have been the probable income that such a person will earn if he was employed here. The Division Bench, under the circumstances, found that the monthly income of Rs.5,000/- fixed by the Tribunal is just and proper, which requires no enhancement. 21. In **Satheesan E.K. v. Musthafa K.P. and another [2018 (5) KHC 884]** one of the contentions raised before this Court by the learned Standing Counsel for the insurer was that the income as revealed by the documents produced in evidence cannot be taken in toto, since employment in a foreign country is beset with uncertainties. It was also argued that if such an income is taken for computation of future earnings, it would lead to undue benefit being conferred on the claimant. After considering the rival MACA No. 2139 of 2010 -21- contentions, this Court held that, **Valsamma [2014 (1) KHC 207]** is a case in which the claimant, who was the legal heir of the deceased, asserted an income of Rs.20,000/- and relied on an agreement with the foreign employer, the labour card and the Passport. There was no clear indication of the amounts received by the deceased as income. In that context, finding that the documents are not sufficient to prove the income of the deceased, the Court assessed the income of the person in the context of Indian standards, and for a Spray Painter the income was fixed at Rs.5,000/- per month. **Sherfuddin [2014 (1) KHC 242]** was a claim filed by the injured itself, asserting an income of Rs.28,000/- in his foreign employment at Qatar. Again, the Court found that there was no document showing the exact amount received by the claimant in his foreign employment. It was also found that the pleadings indicated an assertion of an amount of Rs.28,000/per mensem, while in deposition he stated it to be Rs.60,000/-. Finding discrepancy in the versions of the claimant itself as also the finding the exact amounts not being proved, the income of a driver-cum-salesman was fixed at MACA No. 2139 of 2010 -22- Rs.5,000/-. In **Abraham Jacob @ Avarachan [2014 (3) KLT 883]** the appellant produced a salary certificate authenticated by the Consular Officer of the Embassy of India at Doha (Qatar) in accordance with the provisions under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. The Court found that such authentication would not give a go by to the requirement of proof insofar as the contents of the documents. Therein also, when the claim of income from the foreign employer was of Rs.1,15,000/- per month, the monthly income accepted, following **Valsamma** , was Rs.40,000/-. It is fairly discernible that in all these decisions the different Division Benches adopted 1/4th of the amounts asserted by the claimants as the monthly income of the injured/deceased from the foreign employment. The uncertainties insofar as the foreign employment, as has been found in the various decisions, loom large and stand against the claimant in the present case also. But, that would not deter this Court from making a reasonable computation of the monthly income, again going by the binding precedents, at least 1/4th of the income in the foreign employment which, in MACA No. 2139 of 2010 -23- the present case, stands proved unequivocally by reason of no objection having been raised on the proof of its contents at the time when it was marked in trial. 22. Taking note of the law laid down in the decisions referred to supra and taking into consideration Ext.A9 salary certificate and Ext.A10 bank account statements and also the oral testimony of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.12,000/for the purpose of assessing compensation under various heads. 23. 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, have to be established by adducing evidence. The Tribunal and MACA No. 2139 of 2010 -24- 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. 24. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a Three-Judge Bench of the Apex Court held that, in case of self-employed persons also, if the deceased victim is below 40 MACA No. 2139 of 2010 -25- 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. 25. 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 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 MACA No. 2139 of 2010 -26- 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. 26. In the instant case, at the time of accident, the deceased was aged 35 years. It was claimed that, at the time of accident, the deceased was earning monthly income as Manager. The Tribunal fixed the monthly income notionally as Rs.10,000/-. In the impugned award, the Tribunal did not add anything to the notional monthly income of the deceased, towards future prospects. 27. As already noticed, no reliable materials were MACA No. 2139 of 2010 -27- placed before the Tribunal to show that, at the time of accident, the deceased had a permanent job. Therefore, the deceased can only be treated as on a fixed salary. In view of the law laid down by the Apex Court in **Pranay Sethi,** an addition of **40%** 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 **aged below 40 years** . 28. Therefore, for the purpose of re-fixing the compensation under the head loss of dependency, **40%** of the monthly income of the deceased notionally re-fixed in this appeal as Rs.12,000/-, i.e., a sum of Rs.4,800/- (12,000 x 40/100) 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 Rs.16,800/- (12,000 + 4,800). 29. In **Sarla Verma [(2009) 6 SCC 121]** , the Apex MACA No. 2139 of 2010 -28- 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. 30. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that, as far as the MACA No. 2139 of 2010 -29- 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. 31. In the instant case, as on the date of accident, the deceased was aged 35 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 15 applied by the Tribunal is not correct and the proper multiplier to be applied is **16** . 32. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court, on the question of deduction towards the personal and living expenses of the deceased held that, the personal and living expenses of the deceased should be deducted from his monthly income, to arrive at the contribution to the dependents. Where the deceased was **married** , the deduction towards personal and living expenses of the deceased should be **one-third** where the number of dependent family members is **2 to 3** ; **onefourth** where the number of dependent family members is **4** MACA No. 2139 of 2010 -30- **to 6** ; and **one-fifth** where the number of dependent family members **exceeds 6** . In regard to **bachelors** , normally, **50%** is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on 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 MACA No. 2139 of 2010 -31- 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** . 33. In **Reshma Kumari [(2013) 9 SCC 65]** a ThreeJudge Bench of the Apex Court reproduced paragraphs 30, 31 and 32 of **Sarla Verma** and approved the same, in paragraph 38 of the decision, by stating that, the standards fixed in **Sarla Verma** provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. Therefore, the standards fixed in **Sarla Verma** on the aspect of deduction for personal living expenses in paras 30, 31 and 32 MACA No. 2139 of 2010 -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 Kumari** . 34. 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** . 35. In the instant case, at the time of accident, the deceased was aged 35 years with a family consisting of 3 dependants. The father of the deceased cannot be treated as his dependant, in the absence of evidence. In the light of the MACA No. 2139 of 2010 -33- 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 is perfectly legal. 36. Towards loss of dependency, the Tribunal awarded a sum of Rs.12,00,000/- (10,000 x 12 x 15 x 2/3). In this appeal, the monthly income of the deceased has already been re-fixed as Rs.12,000/-. Adding 40% of the notional monthly income of the deceased towards future prospects (12,000 + 4,800 = 16,800); deducting 1/3[rd] towards the personal and living expenses of the deceased; and applying the multiplier of 16, the compensation under the head loss of dependency is re-fixed as Rs.21,50,400/- (16,800 x 12 x 16 x 2/3), resulting an additional compensation of **Rs.9,50,400/-** (21,50,400 – 12,00,000). 37. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.10,000/-. Towards loss of consortium the 1[st] appellant is awarded a sum of Rs.15,000/-. Towards loss of love and affection the 2[nd] appellant is awarded a sum of Rs.20,000/- and appellants 3 and 4 are awarded a MACA No. 2139 of 2010 -34- further sum of Rs.10,000/-. The Tribunal awarded a sum of Rs.15,000/- under the head loss of estate. 38. 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. 39. 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 MACA No. 2139 of 2010 -35- 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 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. 40. In **Santosh Devi v. Mahaveer Singh [(2018) 9 SCC 146]** a Three-Judge Bench of the Apex Court granted compensation on conventional heads, in terms of the figures standardised by the Constitution Bench in the year 2017, in MACA No. 2139 of 2010 -36- **Pranay Sethi** , to the wife and children of one Puran Chand, who died in a motor accident, which occurred on **30.12.1992** . 41. In **Sureshchandra Bagmal Doshi v. New India Assurance Company Limited [(2018) 15 SCC 649]** the Apex Court granted the figures on conventional heads standardised by the Constitution Bench in the year 2017, in **Pranay Sethi** , i.e., Rs.15,000/- as loss of estate; Rs.40,000/towards loss of consortium; and Rs.15,000/- as funeral expenses to the parents [appellants before the Apex Court], who lost their only daughter in a motor accident which occurred on **16.08.1998** . In the said decision, Rs.40,000/granted in **Pranay Sethi** towards loss of consortium was granted to the appellants, who are the **parents** of the deceased, towards **loss of love and affection** . Paragraphs 1 and 14 of the said decision read thus; “ **1.** Fate can be cruel. This is a tragic case where the only daughter of a lawyer husband and a doctor wife, who got married early and unfortunately became a widow also at a young age, died in a vehicular accident, which took place on **16.8.1998** . The claim of the parents (appellants herein) in respect of this unfortunate demise forms the subject matter of the MACA No. 2139 of 2010 -37- 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” 42. In **Magma General Insurance Co. Ltd. v. Nanu** **Ram @ Chuhru Ram [(2018) 18 SCC 130]** , after referring to the decision in **Pranay Sethi** , the Apex Court held that in legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. **Spousal consortium** is generally defined as rights pertaining to the relationship of a husband-wife which allows MACA No. 2139 of 2010 -38- 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. 43. 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 MACA No. 2139 of 2010 -39- 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** . 44. In **Magma General Insurance** , the deceased was aged 24 years, who was engaged in the business of manufacturing 'namkeen products', who died in a motor accident which occurred on 01.12.2013. The **father** , **brother** and **sister** of the deceased filed claim petition under Section 166 of the Motor Vehicles Act. The Claims Tribunal did not MACA No. 2139 of 2010 -40- award any compensation to the **brother** of the deceased, as he could not be considered to be a dependent. Compensation was awarded to the **father** and **unmarried sister** of the deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that the Claims Tribunal used the wrong principle for application of multiplier. The multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/- (Rs.50,000/- x 2) towards loss of love and affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependants, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependant. The grant of Rs.1,00,000/- on account of loss of love and affection, and Rs.25,000/- towards funeral expenses is MACA No. 2139 of 2010 -41- 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 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 MACA No. 2139 of 2010 -42- 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. 45. 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. 46. In view of the law laid down by the Apex Court in **Magma General Insurance Company Ltd** ., after referring MACA No. 2139 of 2010 -43- 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** . 47. In **Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72]** one of the contentions raised was that, any direction issued by the Apex Court in exercise of power under Article 142 of the Constitution of India to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by that Court under Article 141. It was also pointed out that, other Courts do not have the power similar to that conferred on the Apex Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. The Apex Court left open that question, observing as follows; "Though there appears to be some merit in the first MACA No. 2139 of 2010 -44- respondent's submission, we do not propose to examine that aspect." Though the said question was left open, the Apex Court observed as follows in Para.26 of the judgment; "26. ….... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/ relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. …..." 48. In **State of Punjab v. Rafiq Masih [(2014) 8 SCC 883]** a Three-Judge Bench of the Apex Court affirmed the view taken in **ABS Marine Products' case (supra)** MACA No. 2139 of 2010 -45- holding that, the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras.11 to 13 of the judgment read thus; "11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. 12. Article 142 of the Constitution is supplementary in MACA No. 2139 of 2010 -46- 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 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 MACA No. 2139 of 2010 -47- 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." 49. 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 MACA No. 2139 of 2010 -48- 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. 50. 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. 51. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; MACA No. 2139 of 2010 -49- 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. 52. In view of the law laid down by the Apex Court in **Pranay Sethi** and **Magma General Insurance Company** MACA No. 2139 of 2010 -50- **Ltd.** referred to supra, Rs.10,000/- awarded by the Tribunal in the impugned award towards funeral expenses is enhanced to Rs.15,000/-, resulting an an additional compensation of **Rs.5,000/-** (15,000 – 10,000); Rs.15,000/- awarded towards loss of consortium to the 1[st] appellant is enhanced to Rs.40,000/- and the same is granted under the head spousal consortium, resulting an an additional compensation of **Rs.25,000/-** (40,000 – 15,000); Rs.20,000/- awarded towards loss of love and affection to the 2[nd] appellant, who is the son of the deceased, is re-fixed as Rs.40,000/- and the same is granted under the head parental consortium, resulting an an additional compensation of **Rs.20,000/-** (40,000 – 20,000); and Rs.10,000/- awarded towards loss of love and affection to appellants 3 and 4, who are the parents of the deceased, is re-fixed as Rs.40,000/- each (40,000 x 2 = 80,000) and the same is granted under the head filial consortium, resulting an additional compensation of **Rs.70,000/-** (80,000 – 10,000). 53. The Tribunal awarded Rs.15,000/- as compensation towards loss of estate. In view of the law laid down by the MACA No. 2139 of 2010 -51- Apex Court in **Pranay Sethi [(2017) 16 SCC 680]** Rs.15,000/- granted by the Tribunal under the head loss of estate represents just and reasonable, which requires no enhancement in this appeal. 54. The Tribunal awarded Rs.15,000/- as compensation towards pain and suffering of the deceased. 55. 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 MACA No. 2139 of 2010 -52- Rs.15,000/- could be awarded under the head pain and suffering in such cases. 56. 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). 57. Towards transportation to hospital the Tribunal awarded a sum of Rs.1,000/-. Towards damage to clothing and articles the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2001. The compensation awarded by the Tribunal under the head transportation to hospital is refixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,000/-** (2,000 – 1,000) and that granted under the head damage to clothing and articles is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 58. In the result, the appellants/claimants are entitled for payment of an additional compensation of MACA No. 2139 of 2010 -53- **Rs.10,60,400/-** (Rupees ten lakhs sixty thousand and four hundred only) [(9,50,400 + 5,000 + 25,000 + 20,000 + 70,000) - 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 under the head spousal consortium, that granted to the 2[nd] appellant under the head parental consortium and that granted to appellants 3 and 4 under the head filial consortium shall be apportioned among the appellants in the ratio 50:30:10:10. 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. The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum MACA No. 2139 of 2010 -54- No.D1-62475/2016 dated 07.11.2019. The appellants shall furnish 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K.NARENDRAN JUDGE** das