SANTHA and others v. A. JOSE KENNEDY and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** ## **MACA.No.1901 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.687/2004 DATED 15-02-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA** ## **APPELLANTS/APPLICANTS :** - **1 SANTHA, W/O.BALAKRISHNA PANICKER, THALAYARUKONATHU,THEKKEKARA PUTHEN VEEDU, NARUVAMOODU PO,THIRUVANANTHAPURAM DISTRICT.** - **2 B.S.BIJU, S/O.BALAKRISHNA PANICKER OF DO-DO.** - **3 B.S.SUJA, D/O.SANTHA OF DO-DO.** **BY ADV. SRI.L.MOHANAN** ## **RESPONDENTS/RESPONDENTS :** - **1 A.JOSE KENNEDY, 1/135, U.M.V.COTTAGE, EDAIKETTU VEEDU,VAVARAI,VAVARAI PO,KANYAKUMARI DISTRICT 629 161.** - **2 SREEKANTAN NAIR SREE NIKETHAN NEAR TEMPLE CHETTIKULANGARA, VANCHIYOOR PO,, THIRUVANANTHAPURAM -35.** - **3 NATIONAL INSURANCE CO.LTD.DIVISIONAL OFFICE-2,GANDHARI AMMANCOIL ROAD,STATUE, THIRUVANANTHAPURAM - 23.** - **4 NEW INDIA ASSURANCE CO.LTD DIVISIONAL OFFICE-2,GNADHARI AMMAN COIL ROAD,, STATUE,THIRUVANANTHAPURAM,ISSUED BY NEW INDIA, ASSURANCE CO.LTD., BRANCH OFFICE,, SWADESHABHIMANI COMPLEX,NEAR KSRTC BUS STAND,, NEYYATTINKARA - 121.** - **R1 BY ADV. SRI.BLAZE K.JOSE R3 BY ADV. SRI.E.M.JOSEPH R4 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1901 of 2010 2 ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No.687 of 2004 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Balakrishnan Panicker, husband of the 1[st] appellant and father of appellants 2 and 3, in a motor accident which occurred on 18.03.2004, while he was standing on the veranda of a shop room. He was knocked down by a mini lorry bearing registration No.TN-74/Z-1830, owned by the 1[st] respondent and insured with the 3[rd] respondent. The mini lorry knocked down the deceased after dashing against an autorickshaw bearing registration No.KET-2664, owned by the 2[nd] respondent and insured with the 4[th] 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 the rash and negligent driving of mini lorry by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.4,00,000/- under various heads. MACA No.1901 of 2010 3 2. Before the Tribunal, the 2[nd] respondent owner of the autorickshaw remained absent and he was set ex parte. The 1[st] respondent owner of the mini lorry filed written statement admitting the accident; however denying negligence alleged against its driver. The 1[st] respondent contended that the accident occurred due to the negligence on the part of the driver of the autorickshaw. 3. The 3[rd] respondent insurer filed written statement, admitting insurance coverage of the mini lorry involved in the accident. The insurer contended that the accident occurred due to the rash and negligent driving of both the vehicles by the respective drivers and therefore, both the insures are equally liable to pay compensation to the claimants. The insurer contended further that, at the time of accident, driver of the mini lorry had no badge and the vehicle had no valid permit. Further, the compensation claimed is highly excessive. 4. The 4[th] respondent insurer filed written statement admitting the insurance coverage of the autorickshaw involved in the accident; however denying negligence MACA No.1901 of 2010 4 alleged against its driver. 5. Before the Tribunal, Exts.A1 to A11 were marked on the side of the claimants. Exts.B1 to B4 were marked on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 6. 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 mini lorry by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. However, on a finding that there was violation of the conditions of policy, since the mini lorry was having permit only to ply on the roads in State of Tamil Nadu and not in State of Kerala, where the accident occurred, and since the driver of the mini lorry was not authorised to drive a transport vehicle, the 3[rd] respondent insurer was granted right to proceed against the 1[st] respondent owner, for recovering the amount of compensation paid to the claimants. Under various heads, the Tribunal awarded a total compensation of Rs.1,43,000/- MACA No.1901 of 2010 5 together with interest at the rate 7.5% per annum from the date of petition, i.e., from 22.04.2004, till the date of realisation, less Rs.50,000/- covered by the interim award, if paid or deposited. The amount of compensation was ordered to be apportioned among the claimants in the ratio 60:20:20. The 3[rd] respondent insurer was directed to satisfy the award and then proceed against the 1[st] respondent owner to recover the said amount. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/claimants are before this Court in this appeal. 8. Heard the learned counsel for the appellants/ claimants; the learned counsel for the 1[st] respondent owner of the mini lorry; the learned Standing Counsel for the 3[rd] respondent insurer of the mini lorry; and also the learned Standing Counsel for the 4[th] respondent insurer of the autorickshaw. Service of notice on the 2[nd] respondent owner of the autorickshaw was dispensed with, by the order of this Court dated 20.01.2020. 9. The issue that arises for consideration in this appeal MACA No.1901 of 2010 6 is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under various heads. 10. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court laid down the principles governing determination of quantum of compensation in the case of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a 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 MACA No.1901 of 2010 7 multiplying the multiplicand by such multiplier. 11. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of 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 MACA No.1901 of 2010 8 ## expression, i.e., just compensation. 12. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |unal under various heads reads|thus;| |---|---| |Head of claim|Amount awarded<br>(in rupees)| |Damage to clothing|500/-| |Transportation|2,500/-| |Funeral expenses|5,000/-| |Loss of consortium|10,000/-| |Loss of estate|10,000/-| |Loss of love and affection|15,000/-| |Loss of dependancy|1,00,000/-| |**Total**|**1,43,000/-**| 13. The accident occurred on 18.03.2004. At the time of accident, the deceased was aged 65 years, as evident from Ext.A8 electoral identity card. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.4,000/- by running a provision store. No materials were placed before the Tribunal to prove the monthly income of the deceased. None of the appellants have chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income of the deceased, notionally, as Rs.2,500/-. 14. In **Ramachandrappa v. Manager, Royal** MACA No.1901 of 2010 9 ## **Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 15. In **Syed Sadiq v. Divisional Manager, United** MACA No.1901 of 2010 10 **India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 16. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of the deceased, claimed as Rs.4,000/- in the claim petition, cannot be said to be on the higher side, which is taken as MACA No.1901 of 2010 11 the notional monthly income of the deceased, for the purpose of assessing compensation under various heads. 17. 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 **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 MACA No.1901 of 2010 12 multiplier of **5** for 66 to 70 years. 18. 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 a place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 19. In the instant case, as on the date of accident, the deceased was aged 65 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 5 applied by the Tribunal is not correct and the proper multiplier to be applied is **7** . 20. 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 MACA No.1901 of 2010 13 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 **onefifth** 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, MACA No.1901 of 2010 14 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** . 21. 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 MACA No.1901 of 2010 15 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 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** . 22. 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** . MACA No.1901 of 2010 16 23. In **Sujatha P. and others v. Oriental Insurance Company Ltd. [2017 (5) KHC 568]** , a Division Bench of this Court held that in the matter of deduction of personal and living expenses of the deceased, while calculating dependency compensation, what is relevant is not the actual number of the claimants or surviving family members, but what matters is the number of surviving **dependant family members** . In the said case, the deceased was aged 65 years. The 1[st] appellant widow was aged 52 years. Appellants 2 and 3, who are the children of the deceased were aged 34 years and 32 years respectively at the time of death of their father. Before the Tribunal or before this Court, they did not adduce any evidence to prove that they were actually dependant on their father owing to any particular circumstances. Therefore, the Division Bench held that the Tribunal ought to have deducted 50% of the monthly income towards personal and living expenses of the deceased. Paragraphs 6 to 8 of the said decision read thus; “6. Going by the decision in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , it depends upon the marital status or the number of MACA No.1901 of 2010 17 surviving dependent family members of the deceased. In case the deceased was a bachelor 50% of the income shall be deducted on that count while calculating dependency compensation. If the deceased was married it depends on the number of surviving dependent family members. The decision would thus make it clear that what is relevant in that regard, is not the actual number of claimants or surviving family members, but what matters is the number of surviving dependent family members. The 1[st] appellant, the widow was aged 52 years at the time of death of Sri.Ramakrishnan and the fact that she is being paid family pension is not in dispute. Appellants 2 and 3 are the children of the deceased and they were aged 34 years and 32 respectively at the time of death of their father. In such circumstances, whether they were actually dependent on their father owing to any particular circumstance, was certainly a matter for appellants 2 and 3 to establish. They did not adduce any evidence whatsoever to persuade the Tribunal or us, to treat them as dependents of their father even at that age. Hence, we do not find any reason to hold that the Tribunal had gone wrong in arriving at a conclusion regarding the dependency of the appellants herein, for the purpose of effecting deduction from the income of the deceased towards his personal and living expenses which he would have incurred had he been alive. In short, it is to be held that the Tribunal has rightly held that the 1[st] appellant MACA No.1901 of 2010 18 alone could be treated as the dependent of the deceased at the time of his accidental death. 7. Then, the question is what should have been the extent of income deductible, rather, to be deducted in terms of the decision in **Sarla Verma** towards the personal and living expenses of the deceased which he would have incurred had he been alive? 8. For answering the aforesaid question, it is only appropriate to refer to paragraphs 30 to 32 of the decision in **Sarla Verma** . When the number of surviving dependent family is only one, deduction towards personal and living expenses of the deceased has to be 50% of the income. It is stated in paragraph 32 of the said decision thus: “32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, 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.” Thus the said decision would fortify our view. MACA No.1901 of 2010 19 Therefore, the Tribunal ought to have deducted the 50% of the income, instead of its 1/3[rd] , for the aforesaid purpose. Our view is further strengthened by the fact that in **Sarla Verma** , 1/3[rd] deduction of the income is ordered where the number of dependent family members is '2' or '3' and when it is '4' to '6', 1/4[th] of the income has to be deducted. Going by the decision, if the said number is above six, 1/8[th] of the income is to be deducted on the aforesaid count. Thus, our finding that 50% of the income has to be deducted when there is only one surviving dependent family members towards personal and living expenses of the deceased would gain support from the decision in **Sarla Verma** .” 24. In **New India Assurance Co. Ltd. v. Vinish** **Jain [(2018) 3 SCC 619]** the Apex Court was dealing with a case in which, the deceased was aged 78 years. At the time of death, his annual income was assessed at Rs.3,64,500/-. The Tribunal deducted only 1/3[rd] towards the personal and living expenses of the deceased. The Apex Court held that the deduction made for personal expenses at 1/3[rd] is very low keeping in view the fact that the claimants are his two major sons and two granddaughters. The major sons have their own source of income and were not MACA No.1901 of 2010 20 dependant on the deceased and the two granddaughters are primarily dependant on their father and not on their grandfather. Therefore, **50%** deduction is called for. 25. In the instant case, at the time of accident, the deceased was aged 65 years, as evident from Ext.A8 electoral identity card. He is survived by his wife and two major children. In view of the law laid down by the Apex Court in **Sarla Verma** , deduction of 1/3[rd] of the monthly income of the deceased towards personal and living expenses can be made, where the number of dependant family members of the deceased is 2 to 3. The age and also the marital status of appellants 2 and 3 are not disclosed either in the claim petition or in the memorandum of appeal. In the impugned award, the Tribunal has stated no reasons to deduct only 1/3[rd] of the notional monthly income of the deceased towards his personal and living expenses. Before the Tribunal or before this Court, the appellants 2 and 3 did not adduce any evidence to prove that they were actually dependant on their father, owing to any particular circumstances. In the absence of any such evidence, the 1[st] MACA No.1901 of 2010 21 appellant wife alone can be treated as the dependant family member of the deceased, for the purpose of effecting deduction from his monthly income towards his personal and living expenses, which he would have incurred had he been alive. Therefore, a deduction of **50%** of the notional monthly income of the deceased has to be made towards his personal and living expenses, and the Tribunal went wrong in deducting only 1/3[rd ] of the notional monthly income of the deceased towards his personal and living expenses. 26. Towards loss of dependency, the Tribunal awarded a sum of Rs.1,00,000/- (2,500 x 12 x 5 x 2/3). In this appeal, the monthly income of the deceased has already been re-fixed as Rs.4,000/-. Deducting 50% towards the personal and living expenses of the deceased and applying the multiplier of 7, the compensation under the head loss of dependency is re-fixed as Rs.1,68,000/- (4,000 x 12 x 7 x 1/2), resulting an additional compensation of **Rs.68,000/-** (1,68,000 – 1,00,000). 27. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.5,000/-. MACA No.1901 of 2010 22 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.15,000/-. The Tribunal awarded Rs.10,000/- towards loss of estate. 28. 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. 29. 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 MACA No.1901 of 2010 23 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 factcentric 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. 30. In **Santosh Devi v. Mahaveer Singh [(2018) 9** MACA No.1901 of 2010 24 **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** . 31. 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; MACA No.1901 of 2010 25 “1. Fate can be cruel. This is a tragic case where the only daughter of a lawyer husband and a doctor wife, who got married early and unfortunately became a widow also at a young age, died in a vehicular accident, which took place on **16.8.1998** . The claim of the parents (appellants herein) in respect of this unfortunate demise forms the subject matter of the present appeal. xxx xxx xxx 14. Now coming to the last aspect, i.e., the conventional heads, in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , it has been standardised at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, which as per the said judgment is capable of being enhanced @ 10 percent in the span of every three years. However, we are still within the window of three years.” “underline supplied” 32. 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 MACA No.1901 of 2010 26 consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. **Spousal consortium** is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the **surviving spouse** for loss of 'company, society, co-operation, affection, and aid of the other in every conjugal relation'. **Parental consortium** is granted to the **child** upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training'. **Filial consortium** is the right of the **parents** to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the 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. 33. In **Magma General Insurance** the Apex Court MACA No.1901 of 2010 27 held that consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the **love** , **affection** , care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In a case where parents have lost their **minor child** , or **unmarried son or daughter** , the parents are entitled to be awarded loss of consortium under the head of **filial consortium** . Parental 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 MACA No.1901 of 2010 28 ## under 'loss of consortium' as laid down in **Pranay Sethi** . 34. In **Magma General Insurance** , the deceased was aged 24 years, who was engaged in the business of manufacturing 'namkeen products', who died in a motor accident which occurred on 01.12.2013. The **father** , **brother** and **sister** of the deceased filed claim petition under Section 166 of the Motor Vehicles Act. The Claims Tribunal did not award any compensation to the **brother** of the deceased, as he could not be considered to be a dependent. Compensation was awarded to the **father** and **unmarried sister** of the deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that 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 MACA No.1901 of 2010 29 affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependants, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependant. The grant of Rs.1,00,000/- on account of loss of love and affection, and Rs.25,000/- towards funeral expenses is erroneous. It was contended that only Rs.30,000/- could have been awarded as per the judgment in **Pranay Sethi** . [i.e., loss of estate - Rs.15,000/- and funeral expenses – Rs.15,000/-] The Apex Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an 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 MACA No.1901 of 2010 30 deceased was **contributing** a part of his meagre income to the family for their sustenance and survival. Therefore, the Apex Court held that the father and unmarried sister of the deceased would be entitled to compensation under his dependants. [Para.18 @ page 136 of SCC] Dealing with the contention of the insurer that the High Court had wrongly awarded Rs.1,00,000/- towards loss of love and affection, and Rs.25,000/- towards funeral expenses, the Apex Court, after quoting Para.52 of the decision in **Pranay Sethi** , decreased the compensation under the head funeral expenses from Rs.25,000/- to Rs.15,000/-. However, the amount awarded under the head loss of love and affection was maintained. After explaining the concept of **spousal 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. 35. 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** MACA No.1901 of 2010 31 **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. 36. 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** . 37. 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 MACA No.1901 of 2010 32 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 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 MACA No.1901 of 2010 33 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. …..." 38. 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 MACA No.1901 of 2010 34 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 Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in MACA No.1901 of 2010 35 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.1901 of 2010 36 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." 39. 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. 40. 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 MACA No.1901 of 2010 37 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. 41. 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 MACA No.1901 of 2010 38 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. 42. In view of the law laid down by the Apex Court in **Pranay Sethi** and **Magma General Insurance Company Ltd.** referred to supra, Rs.5,000/- awarded by the Tribunal in the impugned award towards funeral expenses is enhanced to Rs.15,000/-, resulting an additional compensation of **Rs.10,000/-** (15,000 – 5,000); Rs.10,000/- awarded towards loss of consortium to the 1[st] appellant, the wife of the deceased, is enhanced to Rs.40,000/- and the same is granted under the head spousal MACA No.1901 of 2010 39 consortium, resulting an additional compensation of **Rs.30,000/-** (40,000 – 10,000); Rs.15,000/- awarded towards love and affection to appellants 2 and 3, who are the children of the deceased, is re-fixed as Rs.80,000/(40,000 x 2) and the same is granted under the head parental consortium, resulting an additional compensation of **Rs.65,000/-** (80,000 – 15,000). 43. The Tribunal awarded Rs.10,000/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.5,000/-** (15,000 – 10,000) . 44. The Tribunal awarded no compensation towards pain and suffering of the deceased. 45. 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 MACA No.1901 of 2010 40 severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. 46. In the instant case, the deceased succumbed to the injuries on the way to hospital. Considering the said fact, this Court deem it appropriate to grant a sum of **Rs.5,000/-** towards pain and suffering of the deceased. 47. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,500/-. The accident is of the year 2004. The deceased succumbed to the injuries on the way to hospital. Therefore, the compensation awarded by the MACA No.1901 of 2010 **==> picture [13 x 8] intentionally omitted <==** Tribunal under the above head represents just and reasonable compensation, which requires no enhancement in this appeal. 48. The Tribunal awarded a sum of Rs.500/- towards damage to clothing and articles. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 49. The learned counsel for the 1[st] respondent owner of the mini lorry, relying on the decision of the Punjab and Haryana High Court in **National Insurance Co.Ltd v. Rajender Giri and Others [2013 ACJ 1213]** would contend that the violation of the 1[st] respondent owner in bringing the mini lorry to State of Kerala without a valid permit (since the said vehicle was having permit only to ply in the State of Tamil Nadu) would not amount to violation of the conditions of policy and would not give the 3[rd] respondent insurer a defence under sub-section (2) of Section 149 of the Motor Vehicles Act. 50. In **Rani v. National Insurance Co. Ltd.** MACA No.1901 of 2010 42 **[(2018) 8 SCC 492]** the Apex Court was dealing with a case in which the lorry involved in the accident, bearing registration No.MH-43/U-3365, was not having a valid permit for being operated in the State of Karnataka. It was having permit for being operated in the State of Maharashtra. The lorry met with the road accident in the State of Karnataka. The lorry hit on a motorcycle bearing registration No.KA-05/EJ-4029, resulting in the death of the rider and causing injury to the pillion rider. The insurer of the lorry contended that, by virtue of the statutory provisions under sub-section (2) of Section 149 of the Motor Vehicles Act, it cannot be made liable to pay the compensation amount as the lorry did not have a valid permit for being operated in the State of Karnataka. In the appeal filed before the High Court of Karnataka, challenging the award of the Motor Accidents Claims Tribunal, Bangaluru, the principal issue raised by the insurer was that the Tribunal could not have fastened the liability on the insurer as the lorry did not possess a valid permit to operate in the State of Karnataka in view of Section 149(2)(a)(i)(a) MACA No.1901 of 2010 43 of the Motor Vehicles Act, since the permit was limited to the State of Maharashtra. The insurer succeeded before the High Court, as the liability to pay compensation amount has been restricted to that of the owner of the lorry. The widow and daughter of the deceased rider approached the Apex Court challenging the correctness of the view taken by the High Court absolving the insurer of the lorry from the liability to pay compensation, and also for further enhancement of the compensation amount. On the challenge made against the view taken by the High Court in absolving the insurer of the lorry from the liability to pay compensation, the Apex Court held that the amount of compensation determined by the High Court shall be first paid by the insurer with liberty to recover the same from the owner of the lorry, keeping in mind the exposition in **Singh Ram v. Nirmala [(2018) 3 SCC 800]** and **Pappu v. Vinod Kumar Lamba [(2018) 3 SCC 208]** . 51. The learned counsel for the 4[th] respondent insurer would point out that, the insurer of the autorickshaw satisfied 50% of the interim award passed by the Tribunal by MACA No.1901 of 2010 44 depositing Rs.25,000/-. In the impugned award, the Tribunal exonerated the 4[th] respondent insurer from the liability to pay the amount of compensation. The learned Standing Counsel for the 3[rd] respondent insurer would submit that, if not already returned, the 3[rd] respondent insurer shall return to the 4[th] respondent insurer any payment made towards the interim award, since the entire liability to pay the amount of compensation is fastened upon the 3[rd] respondent insurer, as per the award of the Tribunal. The said submission made by the learned Standing Counsel for the 3[rd] respondent insurer is recorded. 52. In the result, the appellants/claimants will be entitled for payment of an additional compensation of **Rs.1,83,250/-** (Rupees one lakh eighty three thousand two hundred and fifty only) [68,000 + 10,000 + 30,000 + 65,000 + 5,000 + 5,000 + 250] 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 as spousal consortium and that granted to appellants 2 and 3 MACA No.1901 of 2010 45 under the head parental consortium shall be apportioned among the appellants in the ratio 60:20:20. 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. In view of the finding of the Tribunal as to violation of the conditions of policy, the 3[rd] respondent insurer will be entitled to recover the said amount by proceeding against the 1[st] respondent owner of the mini lorry. 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 MACA No.1901 of 2010 **==> picture [13 x 8] intentionally omitted <==** the learned Standing Counsel for the 3[rd] respondent 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