Rajamma and others v. Suvarnakumari and Sachu Prasad and The Divisional Manager, National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** ## **MACA.No.1959 OF 2014** **AGAINST THE AWARD DATED 05.02.2014 IN OP(MV)NO.1965/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANTS/PETITIONERS:** - **1 RAJAMMA, AGED 67, W/O.NADARAJAN PILLAI, PANADAKASALA, KILIKOLLUR P.O, KOLLAM.** - **2 RAJAN PILLAI, AGED 61, S/O.KUNJAN PILLAI, RATHEESH BHAVANAM, PERINAD, KOLLAM.** - **3 THANKAMAYAMMA, AGED 61, W/O.SOMARAJAN PILLAI, CHARUVILA VEEDU, KOTTARAKKARA, KOLLAM.** - **4 REMADEVI, AGED 59, W/O.SURENDRAN, 535C, (33/680C) MELEVEEDU, 50 PONAYIL, KOCHI 682 024.** - **5 RENJAN PILLAI, AGED 57, S/O.KUNJANA PILLAI, PALLIVILA VEEDU, ARUNUTTIMANGALAM, MANGADU, KOLLAM.** **BY ADV. SRI.SAJU J PANICKER** ## **RESPONDENTS/RESPONDENTS:** - **1 SUVARNAKUMARI, W/O.SIVAPRASAD, SACHU BHAVANAM, HOUSE NO.5/160, KARIPINKARA, PERUMPUZHA, KERALAPURAM, KOLLAM – 691 501.** - **2 SACHU PRASAD, S/O.SIVAPRASAD, SACHU BHAVANAM, HOUSE NO.5/160, KARIPINKARA, PERUMPUZHA, KERALAPURAM, KOLLAM – 691 501.** - **3 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., PARAMESWARAN PILLAI BHAVANAM, CONVENT ROAD, KOLLAM – 691 501.** **R3 BY ADV. SRI.M.A.GEORGE** ## **R3SMT DEEPA GEORGE-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1959 of 2014 2 ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No.1965 of 2011 on the file of the Motor Accidents Claims Tribunal, Kollam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Devakiamma, mother of the appellants, in a motor accident which occurred on 16.09.2009 while she was walking along the side of a public road. At the place of accident, she was knocked down by a motorcycle bearing registration No.KL-2/Z-8265, owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, she sustained fatal injuries, who succumbed to the injuries at the place of accident itself. Alleging that the accident occurred due to rash and negligent riding of the motorcycle by the 2[nd] respondent rider, claim petition was filed before the Tribunal, claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent rider remained absent and they were set ex parte. The 3[rd] respondent insurer filed written statement admitting the policy coverage of the motorcycle involved in the MACA No.1959 of 2014 3 accident; however, denying negligence alleged against the 2[nd] respondent rider. The insurer contended that the 2[nd] respondent was riding the motorcycle without a valid driving licence. All the claimants are married persons, who have separate residences and independent income. Therefore, the claimants cannot be treated as the dependants of the deceased and hence they are not entitled for any compensation. The insurer contended further that there is contributory negligence on the part of the deceased. The insurer disputed the age of the deceased stated in the claim petition and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A8 were marked on the side of the claimants. The 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 riding of the motorcycle by the 2[nd] respondent rider. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the MACA No.1959 of 2014 4 Tribunal awarded a total compensation of Rs.33,000/- together with interest at the rate 9% per annum from the date of petition, i.e., from 21.12.2011, till the date of deposit, with proportionate cost and directed the insurer to satisfy the award. The amount of compensation was ordered to be apportioned among the claimants, 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 3[rd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner and the 2[nd] respondent rider was dispensed with, by the order dated 05.02.2020 in I.A.No.1 of 2020. 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.1959 of 2014 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 same has MACA No.1959 of 2014 6 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<br>(in<br>rupees)|Basis-vital details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earnings<br>from 16-9-2009|25,000/-|Nil|Not sustainable| |2|Transportation<br>to<br>hospital|1,000/-||Reasonable estimate<br>made| |3|Extra nourishment|2,000/-||Not awarded| MACA No.1959 of 2014 7 |4|Damages to shirting,<br>umbrella, cloth, etc.|3,000/-||Reasonable estimate<br>made| |---|---|---|---|---| |5|Others:-<br>i)<br>Medicine,<br>bystanders<br>ii) Funeral expenses|14,000/-<br>30,000/-||Not awarded<br>Rajesh and Others<br>V.Rajbir Singh and<br>Others| |6|Compensation<br>for<br>pain and suffering|75,000/-|Nil|Not awarded| |7|Compensation<br>for<br>continuing<br>permanent disability<br>if any|||| |8|Compensation<br>for<br>the loss of earning<br>power|||| |9|Loss of consortium<br>and care to sons and<br>daughters|25,000/-|Nil|Not awarded| |10|Loss of love and<br>affection and care|25,000/-|5,000/-|Sarla Verma's case<br>supra| |11|Loss of estate|25,000/-|Nil|Not awarded| |12|Loss of dependancy|25,000/-|Nil|Not awarded| |TOTAL||2,50,000/-|33,000/-|With interest at 9%<br>per annum from the<br>date of petition (21-<br>12-2011)<br>till<br>realization together<br>with proportionate<br>costs| 11. The accident occurred on 16.09.2009. In the claim petition, it was claimed that, at the time of accident, the deceased was aged 80 years, who was earning a monthly income of Rs.3,000/- as coir worker and that, she was also a breadwinner of the family. In Ext.A7 postmortem certificate, the age of the deceased is shown as 90 years. The address of the deceased shown in the claim petition is Vayalil Veedu, Kilikolloor P.O., Kollam. Appellants 1, 3 and 4 are married daughters of the MACA No.1959 of 2014 8 deceased, who were aged 64 years, 58 years and 56 years respectively, at the time of accident. They were residing at their matrimonial home. Appellants 2 and 5 are married sons of the deceased, who were aged 58 years and 54 years respectively, who were residing at Perinad and Mangadu respectively. The Tribunal awarded no compensation under the head loss of dependency, since the the appellants cannot be treated as the dependants of the deceased, who was aged 90 years. 12. In **Manjuri Bera v. Oriental Insurance Company Ltd and Another [(2007) 10 SCC 643]** the Apex Court held that, where a legal representative who is not dependant on the deceased files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Motor Vehicles Act. Therefore, even if there is no loss of dependency the claimant, if he or she is a legal representative, will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. 13. In **Kadeeja and others v. Managing Director, KSRTC and another [2013 (4) KHC 487]** a Division Bench of this Court held that, under Section 166 of the Motor Vehicles MACA No.1959 of 2014 9 Act, in the case of death, the persons entitled to claim compensation are the legal representatives of the deceased. But in the case of a claim under Section 163A, the persons entitled to claim compensation are the legal heirs. Further, in the case of Section 166, even if, a person is not a legal heir, if he is able to prove that, he/she is a dependant of the deceased, then irrespective of the fact, whether he/she is a legal heir or not, is entitled to claim compensation, in proportion to the extent of dependency claimed by him/her. In such cases, the dependency will have some relevance for the purpose of assessing compensation. 14. In **Thressiamma v. State Express Transport Corporation (TN) Ltd. [2016 (1) KLT 190]** a Division Bench of this Court was dealing with a case in which the deceased was 82 years. The claim put forth by the claimants before the Tribunal was that, the deceased was an earning member, generating income by way of selling lottery tickets and that, the claimants were 'dependents' of the deceased, being the son/daughters. The Division Bench held that the course pursued by the Tribunal for granting compensation towards loss of MACA No.1959 of 2014 10 dependency does not appear to be correct, for the fact that all the claimants were aged 57 years, 55 years, 52 years and 48 years respectively; who were the children of the deceased and were leading independent life of their own, living with their spouse and children. When the concerned claimants contend that they were still depending upon the father aged more than 82 years, it may have to be presumed that the so-called children, instead of living as dutiful/responsible son/daughters, discharging their obligation to their age old father, allowing him to take rest and lead a peaceful living on the eve of his life, were virtually driving him to do some or other avocation of his own, earning income and providing the same to be shared among themselves, which cannot but be deprecated. It may be a case where the deceased would not have intended or desired to pull on at the mercy of others, though they are his children, thus compelling him to eke out his livelihood by some or other means. But then, because of the death of such person, it cannot be said that it has resulted in any loss of dependency to be claimed by the others, as they are the grown up children and living separately of their own. Viewed in the above perspective, MACA No.1959 of 2014 11 the very claim put up by the concerned claimants stating that they were depending upon the income of the deceased father aged 82 years, could not have been a ground to award compensation towards loss of dependency to the concerned claimants. The Division Bench made it clear that, they of course are entitled to get compensation towards loss of love and affection, loss to the estate or such other heads, apart from the actual expenses. 15. In the instant case, the appellants are the grown up children of the deceased, who were aged 66 to 54 years, at the time of accident. There was nothing on record before the Tribunal to prove that the deceased was earning anything, at the age of 90 years, as a coir worker. The State of Kerala enacted the Kerala Coir Workers Welfare Fund Act, 1987 to provide for constitution of a fund to grant relief to coir workers, to promote their welfare and to pay pension to coir workers and self employed persons in coir industry in the State of Kerala and for certain other matters incidental thereto. If, as a matter of fact, the deceased was a coir worker or as a self employed in coir industry or she was earning pension as coir worker, the MACA No.1959 of 2014 12 appellants could have produced reliable materials before the Tribunal to substantiate the said fact. In the absence of any such materials, the deceased who was aged 90 years cannot be treated as a person earning income as coir worker. In the claim petition or in the memorandum of appeal, the appellants have not stated any particular circumstances in order to treat them as the dependant family members of the deceased. Admittedly, they were grown up children of the deceased, who were leading independent life of their own, living with their spouse and children. They have also not made any serious challenge against the finding of the Tribunal that, at the time of accident, the deceased was aged 90 years. Therefore, the impugned award of the Tribunal to the extent of declining compensation under the head loss of dependency warrants no interference in this appeal. However, in view of the law laid down by the Apex Court in **Manjuri Bera [(2007) 10 SCC 643]** , the quantum of compensation granted in an application under Section 166 of the Act shall not be less than the liability flowing out of sub-section (2) of Section 140 of the Act, i.e., in death case, the quantum of compensation shall not be less than Rs.50,000/-. MACA No.1959 of 2014 13 16. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.25,000/-. Towards loss of love and affection, appellants are awarded a sum of Rs.5,000/-. The Tribunal awarded no compensation under the head loss of estate. 17. 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. 18. 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 MACA No.1959 of 2014 14 that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The Court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the Tribunals and Courts are likely to be unguided. Therefore, the reasonable figures on conventional heads, namely, **loss of estate** , **loss of consortium** and **funeral expenses** should be **Rs.15,000/-** , **Rs.40,000/-** and **Rs.15,000/-** respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. The Apex Court observed that, it would be condign that the amounts that have quantified as above should be enhanced on 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. 19. In **Santosh Devi v. Mahaveer Singh [(2018) 9 SCC 146]** a Three-Judge Bench of the Apex Court granted MACA No.1959 of 2014 15 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** . 20. 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 MACA No.1959 of 2014 16 herein) in respect of this unfortunate demise forms the subject matter of the present appeal. xxx xxx xxx 14. Now coming to the last aspect, i.e., the conventional heads, in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , it has been standardised at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, which as per the said judgment is capable of being enhanced @ 10 percent in the span of every three years. However, we are still within the window of three years.” “underline supplied” 21. 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.1959 of 2014 17 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. 22. In **Magma General Insurance** the Apex Court held that consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a child. MACA No.1959 of 2014 18 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** . 23. In **Magma General Insurance** , the deceased was aged 24 years, who was engaged in the business of manufacturing 'namkeen products', who died in a motor accident which occurred on 01.12.2013. The **father** , **brother** and **sister** of the deceased filed claim petition under Section 166 of the Motor Vehicles Act. The Claims Tribunal did not award any compensation to the **brother** of the deceased, as he could MACA No.1959 of 2014 19 not be considered to be a dependent. Compensation was awarded to the **father** and **unmarried sister** of the deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that the Claims Tribunal used the wrong principle for application of multiplier. The multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/- (Rs.50,000/- x 2) towards loss of love and affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependants, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependant. The grant of Rs.1,00,000/- on account of loss of love and affection, and Rs.25,000/- towards funeral expenses is erroneous. It was contended that only Rs.30,000/- could have been awarded as per the judgment in **Pranay Sethi** . [i.e., loss of estate - MACA No.1959 of 2014 20 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 **predeceased** him. The father of the deceased was about 65 years old and his sister was unmarried. The deceased was **contributing** a part of his meagre income to the family for their sustenance and survival. Therefore, the Apex Court held that the father and unmarried sister of the deceased would be entitled to compensation under his dependants. [Para.18 @ page 136 of SCC] Dealing with the contention of the insurer that the High Court had wrongly awarded Rs.1,00,000/- towards loss of love and affection, and Rs.25,000/- towards funeral expenses, the Apex Court, after quoting Para.52 of the decision in **Pranay Sethi** , decreased the compensation under the head funeral expenses from Rs.25,000/- to Rs.15,000/-. However, the MACA No.1959 of 2014 21 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. 24. 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. 25. 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 MACA No.1959 of 2014 22 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** . 26. In **Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72]** one of the contentions raised was that, any direction issued by the Apex Court in exercise of power under Article 142 of the Constitution of India to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by that Court under Article 141. It was also pointed out that, other Courts do not have the power similar to that conferred on the Apex Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. The Apex Court left open that question, observing as follows; "Though there appears to be some merit in the first respondent's submission, we do not propose to examine that aspect." Though the said question was left open, the Apex Court observed as follows in Para.26 of the ## judgment; "26. ….... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some MACA No.1959 of 2014 23 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. …..." 27. 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 MACA No.1959 of 2014 24 Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras.11 to 13 of the judgment read thus; "11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. 12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, 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 MACA No.1959 of 2014 25 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 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. MACA No.1959 of 2014 26 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." 28. In **Magma General Insurance Company Ltd.** , the Apex Court maintained the compensation awarded by the High Court at the rate of Rs.50,000/- to the father and unmarried sister of the deceased towards loss of love and affection. However, the compensation under the head funeral expenses was decreased from Rs.25,000/- to Rs.15,000/-, after quoting para 52 of the decision in **Pranay Sethi** . After explaining the concept of spousal consortium, parental consortium and filial consortium, the Apex Court awarded the father and unmarried sister of the deceased an amount of Rs.40,000/- each for loss of filial consortium. 29. 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 MACA No.1959 of 2014 27 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. 30. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; and filial consortium to the parents of the deceased child laid down by the Apex Court in **Magma General Insurance Company Ltd.** does not speak anything as to the right of **siblings** to get compensated under the head loss of consortium. In **Magma** , after noticing the fact that the mother of the deceased had pre-deceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was **contributing** a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of MACA No.1959 of 2014 28 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. 31. In view of the law laid down by the Apex Court in **Pranay Sethi** and **Magma General Insurance Company Ltd.** referred to supra, Rs.25,000/- awarded by the Tribunal in the impugned award towards funeral expenses is scaled down to Rs.15,000/-, resulting an **excess payment** of **Rs.10,000/-** (25,000 – 15,000). 32. The Tribunal awarded Rs.5,000/- towards loss of love and affection. Appellants 1, 3 and 4 are married daughters of the deceased, who were aged 64 years, 68 years and 56 years respectively, at the time of accident. Appellants 2 and 5 are married sons of the deceased, who were aged 58 years and 54 MACA No.1959 of 2014 29 years respectively. Though the appellants are grown up children of the deceased, who were leading independent life of their own, living with their spouse and children, considering the fact that the appellants are not granted any compensation under the head loss of dependency, they are granted Rs.2,00,000/(40,000 x 5) under the head parental consortium, resulting an additional compensation of **Rs.1,95,000/-** (2,00,000 – 5,000). 33. The Tribunal awarded no compensation towards loss of estate. In view of the law laid down by the Apex Court in **Pranay Sethi [(2017) 16 SCC 680]** an amount Rs.15,000/can be granted under the head loss of estate. Accordingly, the appellants are granted a sum of **Rs.15,000/-** towards loss of estate. 34. The Tribunal awarded no compensation towards pain and suffering of the deceased. 35. 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 MACA No.1959 of 2014 30 upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. 36. In the instant case, the deceased succumbed to the injuries at the place of accident itself. Considering the said fact, this Court deem it appropriate to grant a sum of **Rs.5,000/-** towards pain and suffering of the deceased. 37. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2009, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 38. In the result, the appellants/claimants are entitled for MACA No.1959 of 2014 **==> picture [13 x 8] intentionally omitted <==** payment of an additional compensation of **Rs.2,05,000/-** (Rupees Two lakh five thousand only) [(1,95,000 + 15,000 + 5,000) - 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 shall be apportioned among the appellants, equally. 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. 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 No.D1-62475/2016 dated 07.11.2019. The appellants shall provide their Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the MACA No.1959 of 2014 **==> picture [13 x 8] intentionally omitted <==** 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** AV