Nirmala Devi and Others v. Nass Enterprises and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 08TH DAY OF NOVEMBER 2019 / 17TH KARTHIKA, 1941** ## **MACA.No.1342 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.1385/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANTS/PETITIONERS :** - **1 NIRMALA DEVI, AGED 40, W/O.LATE GOVINDAN,RESIDING AT CHENICHERI, VALAPPIL,ARAYOLAM,NARIKKODE, PO KOTTILA.** - **2 NIKHIL, 21 YEARS, S/O.LATE GOVINDAN,REP.BY MOTHER NIRMALA DEVI,, RESIDING AT CHENICHERI VALAPPIL,ARAYOLAM,, NARIKKODE, PO KOTTILA.** - **3 NILNA,16 YEARS, (MINOR) D/O.LATE GOVINDAN,REP.BY MOTHER NIRMALA DEVI,, RESIDING AT CHENICHERI VALAPPIL,ARAYOLAM,, NARIKKODE, PO KOTTILA.** **BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH** ## **RESPONDENTS/RESPONDENTS :** **1 K.RAJEEV. NASS ENTERPRISES, M.A.BAZAR, CALICUT.** - **2 P.SURESH, AMBADI HOUSE KACHERIKUNNU PO,POKKUNNU,CALICUT-1.** **3 M/S.UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE NO.1, WHITE LINES,KALLAI ROAD,, KOZHIKODE.** **R3 BY ADV. SRI.P.K.MANOJKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1342 OF 2010** **2** ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No.1385 of 2002 on the file of the Motor Accidents Claims Tribunal, Thalassery, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Govindan, husband of the 1[st] appellant and father of appellants 2 and 3 (who were minors at the time of accident) in a motor accident which occurred on 01.06.2002, while he was riding a bicycle. At the place of accident, he was knocked down by a mini lorry bearing registration KL-11/L-3897, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries on the way to hospital. Alleging that the accident occurred due to rash and negligent driving of the mini lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.7,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner and 2[nd] respondent driver filed written statement denying **MACA.No.1342 OF 2010** **3** negligence alleged against the driver. The 3[rd] respondent insurer filed written statement admitting the policy coverage of the lorry involved in the accident; however, denying negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the negligence of the deceased. The age, occupation, monthly income, etc. stated in the claim petition were denied. 3. Before the Tribunal, Exts.A1 to A6 were marked and PWs.1 to 3 were examined on the side of the appellants/ claimants. Exts.B1 and B2 were marked on the side of the respondents. Ext.X1, which is a copy of the relevant pages of the register showing the details of Pigmi Collection by the deceased, was marked through PW3. 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 lorry by the 2[nd] 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.3,51,000/- **MACA.No.1342 OF 2010** **4** together with interest at the rate 7.5% per annum from the date of petition, i.e., from 24.09.2002, till the date of realisation, with proportionate cost and directed the 3[rd] respondent insurer to satisfy the award. The operative portion of the award reads thus; “In the result, an award is passed in favour of the petitioner for an amount of Rs.3,51,000/- (Rupees three lakhs fifty one thousand only) as compensation to be realized from respondent Nos.1 to 3 jointly and severally with interest at the rate of 7.5% per annum from the date of petition 24-9-02 to the date of realization with proportionate cost. The 3[rd] respondent being the insurer is held liable to pay the amount within one month from the date of award as follows:- 1) Deposit Rs.6372/- by an account payee cheque in the name of M.A.C.T, Thalassery being the court fee payable in this case. 2) Deposit Rs.1,00,000/- in the name of the 1[st] petitioner being Rs.50,000/- as her share and Rs.50,000/- in relation to the minor 3[rd] petitioner before this Tribunal so that the 1[st] petitioner can withdraw the same on deposit. 3) Deposit Rs.50,000/- before this Tribunal in the name of the 2[nd] petitioner who now declared to be major and he is at liberty to withdraw the same on **MACA.No.1342 OF 2010** **5** deposit. 4) Deposit the balance amount with interest and cost in the name of the petitioners 1 to 3 in equal proportion before this Tribunal and the same shall be kept as fixed deposit in a nationalized bank for a period of 2 years in the case of petitioners 1 and 2 and in the case of 3[rd] petitioner till the day she attains majority.” 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 3[rd] respondent insurer. Despite service of notice, none appears for the 2[nd] respondent. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent is dispensed with. 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 **MACA.No.1342 OF 2010** **6** 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.1342 OF 2010** **7** 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. The compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount awarded<br>(in rupees)| |---|---|---| |1|Loss of disabilityincome|3,08,000.00| |2|Funeral expenses|10,000.00| |3|Loss of consortium to the 1st|10,000.00| **MACA.No.1342 OF 2010** **8** ||petitioner|| |---|---|---| |4|Loss of love and affection to<br>the 2ndand 3rdpetitioner at<br>Rs.10,000/- each|20,000.00| |5|Loss of estate|3,000.00| ||**Total**|**Rs.3,51,000.00**| 11. The accident occurred on 01.06.2002. At the time of accident, the deceased was aged 52 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.5,000/- as Pigmi Collection Agent of Ezhome Service Co-operative Bank. The relevant extract of the register showing the details of Pigmi collection by the deceased, for the period from June 2000 to May 2002, was marked as Ext.X1 through PW3, the Secretary of that Bank. As per Ext.X1, the deceased was receiving around Rs.4,000/- per month as commission towards Pigmi collection. During cross examination, PW3 deposed that the monthly commission may vary from month to month and the travelling expense shall be born by Pigmi Collection Agents. PW3 has also stated that a Pigmi Collection Agent can continue his job till they attain 65 years of age. After considering the materials on record and also the oral **MACA.No.1342 OF 2010** **9** testimony of PW3, the Tribunal fixed the monthly income of the deceased notionally as Rs.3,500/-. The fixation of monthly income by the Tribunal warrants no interference in this appeal. 12. 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 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 **MACA.No.1342 OF 2010** **10** 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. 13. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a Three- Judge Bench of the Apex Court held that, in case of self-employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another Three- Judge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after **MACA.No.1342 OF 2010** **11** 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. 14. 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 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** **MACA.No.1342 OF 2010** **12** **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. 15. In the instant case, at the time of accident, the deceased was aged 52 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.5,000/- as Pigmi Collection Agent. In the impugned award, the Tribunal did not add anything to the notional monthly income of the deceased, towards future prospects. 16. As already noticed, no reliable materials were placed before the Tribunal to show that, at the time of accident, the deceased had a permanent job. Therefore, the deceased can only be treated as on a fixed salary. In view of the law laid down by the Apex Court in **Pranay Sethi,** an **MACA.No.1342 OF 2010** **13** addition of **10%** 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 **between 50 to 60 years** . 17. Therefore, for the purpose of re-fixing the compensation under the head loss of dependency, **10%** of the notional monthly income of the deceased, i.e., a sum of Rs.350/- (3,500 x 10/100) 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.3,850/- (3,500 + 350). 18. In **Sarla Verma [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **MACA.No.1342 OF 2010** **14** **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. 19. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. **MACA.No.1342 OF 2010** **15** 20. In the instant case, as on the date of accident, the deceased was aged 52 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 **11** applied by the Tribunal is correct and proper. 21. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court, on the question of deduction towards the personal and living expenses of the deceased held that, the personal and living expenses of the deceased should be deducted from his monthly income, to arrive at the contribution to the dependents. Where the deceased was **married** , the deduction towards personal and living expenses of the deceased should be **one-third** where the number of dependent family members is **2 to 3** ; **one-fourth** where the number of dependent family members is **4 to 6** ; and **one-fifth** where the number of dependent family members **exceeds 6** . In regard to **bachelors** , normally, **50%** is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on **MACA.No.1342 OF 2010** **16** himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is **large and dependent on the income of the deceased** , as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to **one-third** and contribution to the family will be taken as **two-third** . **MACA.No.1342 OF 2010** **17** 22. In **Reshma Kumari [(2013) 9 SCC 65]** a Three-Judge Bench of the Apex Court reproduced paragraphs 30, 31 and 32 of **Sarla Verma** and approved the same, in paragraph 38 of the decision, by stating that, the standards fixed in **Sarla Verma** provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. Therefore, the standards fixed in **Sarla Verma** on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out. In paragraph 43.6 the Apex Court directed that, insofar as deduction for **MACA.No.1342 OF 2010** **18** 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** . 23. 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** . 24. In the instant case, at the time of accident, the deceased was aged 52 years with a family consisting of 3 dependants. In the light of the decisions of the Apex Court in **Sarla Verma, Reshma Kumari** and **Pranay Sethi** referred to supra, the deduction of 1/3[rd] of the notional monthly income of the deceased towards his personal and living expenses is perfectly legal. **MACA.No.1342 OF 2010** **19** 25. Towards dependency compensation (wrongly shown as loss of disability compensation in the award), the Tribunal awarded a sum of Rs.3,08,000/- (3,500 x 12 x 11 x 2/3). Adding 10% of the notional monthly income of the deceased towards future prospects (3,500 + 350 = 3,850); deducting 1/3[rd] towards the personal and living expenses of the deceased; and applying the multiplier of 11, the compensation under the head loss of dependency is re-fixed as Rs.3,38,800/- (3,850 x 12 x 11 x 2/3), resulting an additional compensation of **Rs.30,800/-** (3,38,800 – 3,08,000). 26. 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.10,000/-. Towards loss of love and affection appellants 2 and 3 are awarded a sum of Rs.20,000/(Rs.10,000/- each). The Tribunal awarded a sum of Rs.3,000/- under the head loss of estate. 27. In **Rajesh [(2013) 9 SCC 54]** a Three-Judge Bench of the Apex Court granted Rs.25,000/- towards **MACA.No.1342 OF 2010** **20** funeral expenses, Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of care and guidance for minor children. 28. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that the head relating to loss of care and guidance for minor children does not exist. Though **Rajesh** refers to **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC** **421]** , it does not seem to follow the same. The conventional and traditional heads cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The Court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of **MACA.No.1342 OF 2010** **21** 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. 29. 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** . **MACA.No.1342 OF 2010** **22** 30. In **Sureshchandra Bagmal Doshi v. New India Assurance Company Limited [(2018) 15 SCC 649]** the Apex Court granted the figures on conventional heads standardised by the Constitution Bench in the year 2017, in **Pranay Sethi** , i.e., Rs.15,000/- as loss of estate; Rs.40,000/- towards loss of consortium; and Rs.15,000/- as funeral expenses to the parents [appellants before the Apex Court], who lost their only daughter in a motor accident which occurred on **16.08.1998** . In the said decision, Rs.40,000/- granted in **Pranay Sethi** towards loss of consortium was granted to the appellants, who are the **parents** of the deceased, towards **loss of love and affection** . Paragraphs 1 and 14 of the said decision read thus; “ **1.** Fate can be cruel. This is a tragic case where the only daughter of a lawyer husband and a doctor wife, who got married early and unfortunately became a widow also at a young age, died in a vehicular accident, which took place on **16.8.1998** . The claim of the parents (appellants herein) in respect of this unfortunate demise forms the subject matter of the present appeal. xxx xxx xxx **MACA.No.1342 OF 2010** **23** **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” 31. In **Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130]** , after referring to the decision in **Pranay Sethi** , the Apex Court held that in legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. **Spousal consortium** is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the **MACA.No.1342 OF 2010** **24** **surviving spouse** for loss of 'company, society, cooperation, 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. 32. 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 **MACA.No.1342 OF 2010** **25** death of a child. The amount awarded to the parents is a compensation for loss of the **love** , **affection** , care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In a case where parents have lost their **minor child** , or **unmarried son or daughter** , the parents are entitled to be awarded loss of consortium under the head of **filial consortium** . Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Motor Vehicles Act. The Apex Court held further that, the amount of compensation to be awarded as consortium will be governed by the **principles** of awarding compensation under 'loss of consortium' as laid down in **Pranay Sethi** . 33. 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 **MACA.No.1342 OF 2010** **26** Tribunal did not award any compensation to the **brother** of the deceased, as he could not be considered to be a dependent. Compensation was awarded to the **father** and **unmarried sister** of the deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that the Claims Tribunal used the wrong principle for application of multiplier. The multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/- (Rs.50,000/- x 2) towards loss of love and affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependants, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependant. The grant of Rs.1,00,000/- on account of loss of love and affection, and **MACA.No.1342 OF 2010** **27** Rs.25,000/- towards funeral expenses is erroneous. It was contended that only Rs.30,000/- could have been awarded as per the judgment in **Pranay Sethi** . [i.e., loss of estate - Rs.15,000/- and funeral expenses – Rs.15,000/-] The Apex Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an unmarried sister, the High Court correctly considered them to be dependants of the deceased, and made a deduction of 1/3[rd] towards personal expenses of the deceased. [Para.16 @ page 135 of SCC] The Apex Court found that the deceased was a bachelor, whose mother had **pre-deceased** him. The father of the deceased was about 65 years old and his sister was unmarried. The deceased was **contributing** a part of his meagre income to the family for their sustenance and survival. Therefore, the Apex Court held that the father and unmarried sister of the deceased would be entitled to compensation under his dependants. [Para.18 @ page 136 of SCC] Dealing with the contention of the insurer that the High Court had wrongly awarded Rs.1,00,000/- towards loss **MACA.No.1342 OF 2010** **28** of love and affection, and Rs.25,000/- towards funeral expenses, the Apex Court, after quoting Para.52 of the decision in **Pranay Sethi** , decreased the compensation under the head funeral expenses from Rs.25,000/- to Rs.15,000/-. However, the amount awarded under the head loss of love and affection was maintained. After explaining the concept of **spousal consortium** , **parental consortium** and **filial consortium** , the Apex Court deem it appropriate to award the father and unmarried sister of the deceased, an amount of Rs.40,000/- each for loss of filial consortium. 34. 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 **MACA.No.1342 OF 2010** **29** three years. 35. In view of the law laid down by the Apex Court in **Magma General Insurance Company Ltd** ., after referring to the decision in **Pranay Sethi** , the surviving spouse is entitled for spousal consortium; children of the deceased are entitled for parental consortium; and parents of a deceased child, who died in a motor accident, are entitled for filial consortium. The amount of compensation that has to be awarded will be governed by the principles of awarding compensation under the head loss of consortium, as laid down in **Pranay Sethi** . 36. 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 **MACA.No.1342 OF 2010** **30** the exercise of such power will lead to incongruous and disastrous results. The Apex Court left open that question, observing as follows; "Though there appears to be some merit in the first respondent's submission, we do not propose to examine that aspect." Though the said question was left open, the Apex Court observed as follows in Para.26 of the judgment; "26. ….... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/ relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the **MACA.No.1342 OF 2010** **31** relief given on the special facts, exercising power under Article 142. …..." 37. In **State of Punjab v. Rafiq Masih [(2014) 8 SCC 883]** a Three-Judge Bench of the Apex Court affirmed the view taken in **ABS Marine Products' case (supra)** holding that, the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras.11 to 13 of the judgment read thus; "11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by **MACA.No.1342 OF 2010** **32** precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. 12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the Statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. 'Declaration of Law' as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of **Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72]** , **Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 381]** and in **State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667]** , has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to **MACA.No.1342 OF 2010** **33** do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case. 13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment." 38. In **Magma General Insurance Company Ltd.** , **MACA.No.1342 OF 2010** **34** the Apex Court maintained the compensation awarded by the High Court at the rate of Rs.50,000/- to the father and unmarried sister of the deceased towards loss of love and affection. However, the compensation under the head funeral expenses was decreased from Rs.25,000/- to Rs.15,000/-, after quoting para 52 of the decision in **Pranay Sethi** . After explaining the concept of spousal consortium, parental consortium and filial consortium, the Apex Court awarded the father and unmarried sister of the deceased an amount of Rs.40,000/- each for loss of filial consortium. 39. 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 **MACA.No.1342 OF 2010** **35** 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. 40. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; and filial consortium to the parents of the deceased child laid down by the Apex Court in **Magma General Insurance Company Ltd.** does not speak anything as to the right of **siblings** to get compensated under the head loss of consortium. In **Magma** , after noticing the fact that the mother of the deceased had predeceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was **contributing** a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/- as compensation to unmarried sister of the deceased under the head filial consortium, after maintaining the compensation (Rs.50,000/- x 2) awarded by the High Court towards loss **MACA.No.1342 OF 2010** **36** 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. 41. In view of the law laid down by the Apex Court in **Pranay Sethi** and **Magma General Insurance Company** **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 additional compensation of **Rs.5,000/-** (15,000 – 10,000); Rs.10,000/- 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 additional compensation of **Rs.30,000/-** (40,000 – 10,000); Rs.20,000/- awarded towards love and affection to appellants 2 and 3 is re-fixed as Rs.80,000/- (40,000 x 2) and the same is granted under the head parental consortium to the said appellants, resulting an additional **MACA.No.1342 OF 2010** **37** compensation of **Rs.60,000/-** (60,000 – 20,000). 42. The Tribunal awarded Rs.3,000/as compensation towards loss of estate. In view of the law laid down by the Apex Court in **Pranay Sethi [(2017) 16 SCC 680]** 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, resulting an additional compensation of **Rs.12,000/-** (15,000 – 3,000). 43. The Tribunal awarded no compensation towards pain and suffering of the deceased. 44. 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 **MACA.No.1342 OF 2010** ## **38** 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. 45. In the instant case, the deceased succumbed to the injuries on the way to hospital. Considering the nature of injuries, this Court deem it appropriate to grant a sum of **Rs.5,000/-** towards pain and suffering of the deceased. 46. In the result, the appellants/claimants are entitled for payment of an additional compensation of **Rs.1,42,800/-** (Rupees One lakh forty two thousand and eight hundred only) [30,800 + 5,000 + 30,000 + 60,000 + 12,000 + 5,000] 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 and that granted to appellants 2 and 3 under the head parental consortium shall be **MACA.No.1342 OF 2010** **39** apportioned among the appellants in the ratio 50:25:25. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellants/claimants towards Balance Court Fee and Legal Benefit Fund. Disbursement of additional compensation to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/13/11