United India Insurance Company Limited v. Mariyamma George and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **MACA.No.679 OF 2017** **AGAINST THE AWARD IN OPMV 1406/2013 DATED 30-06-2016 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, PATHANAMTHITTA** ## **APPELLANT:** **UNITED INDIA INSURANCE COMPANY LIMITED,KOLLAM NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD,KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS:** |**1**|**MARIYAMMA GEORGE,**| |---|---| ||**W/O.LATE K.V.GEORGE,**| ||**KARAVALLIL HOUSE,**| ||**OONNUKAL P.O., MANJINIKKARA MURI,**| ||**KOZHENCHERRY TALUK, PIN-689 647.**| |**2**|**BIJU GEORGE,**| ||**S/O.LATE K.V.GEORGE,**| ||**KARAVALLIL HOUSE,**| ||**OONNUKAL P.O., MANJINIKKARA MURI,**| ||**KOZHENCHERRY TALUK, PIN-689 647.**| |**3**|**BLESON K.G.,**| ||**S/O.LATE K.V.GEORGE,**| ||**KARAVALLIL HOUSE,**| ||**OONNUKAL P.O., MANJINIKKARA MURI,**| ||**KOZHENCHERRY TALUK, PIN-689 647.**| |**4**|**BINU GEORGE,**| ||**S/O.LATE K.V.GEORGE,**| ||**KARAVALLIL HOUSE,**| ||**OONNUKAL P.O., MANJINIKKARA MURI,**| ||**KOZHENCHERRY TALUK, PIN-689 647.**| **MACA.No.679 OF 2017** -2- **5 SOBHA KUNJUMON, D/O.LATE K.V.GEORGE, MEKOTTEKATTU VEEDU, ELAMANNOOR P.O., VIA ADOOR, PIN-691 524.** **(NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 & 2 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL).** **R1&R2 BY ADV. SRI.T.P.PRADEEP R1&R2 BY ADV. SRI.S.SREEDEV** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.679 OF 2017** -3- ## **JUDGMENT** The appellant is the 3[rd] respondent insurer in O.P.(MV) No.1406 of 2013 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one K.V.George, husband of the 1[st] respondent, and father of respondents 2 to 5, in a motor accident which occurred on 22.05.2013, while he was walking along the side of a public road. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL26/A-8543, ridden by the 1[st] respondent and owned by the 2[nd] respondent before the Tribunal and insured with the appellant insurer. In the accident, he sustained fatal injuries, who succumbed to the injuries on 26.06.2013, after undergoing inpatient treatment for a period of 34 days. Alleging that the accident occurred due to rash and negligent riding of the motorcycle by its rider, claim petition was filed before the Tribunal, claiming compensation under various heads. 2. Before the Tribunal, the rider of the motorcycle did not file written statement. The owner filed written statement **MACA.No.679 OF 2017** -4- admitting the accident; however, denying negligence alleged against the rider. It was contended that the amount of compensation claimed is highly exorbitant. 3. The appellant insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against its rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the claimants. Both sides have not chosen to adduce any oral evidence. 5. 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 its rider. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.10,96,449/-, together with interest at the rate of 9% per annum from the date of **MACA.No.679 OF 2017** -5- petition, i.e., from 31.12.2013, till realisation, with proportionate cost and directed the insurer to satisfy the award. The amount of compensation was apportioned among the claimants in equal ratio. 6. Challenging the quantum of compensation awarded by the Tribunal under various heads, the appellant insurer is before this Court in this appeal. 7. Heard the learned Senior Counsel for the appellant and also the learned counsel for the respondents/claimants. 8. The issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation. 9. 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 **MACA.No.679 OF 2017** -6- 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. 10. 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 **MACA.No.679 OF 2017** -7- 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. 11. The compensation awarded by the Tribunal under ## various heads reads thus; |SI.<br>No|Head of claim|Amount awarded (in<br>rupees)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---| |1|Funeral expenses|25,000|| |2|Transport to hospital|2,000|| |3|Damage to clothing|1,000|| |4|Pain and suffering|Rs. 50,000|| |5|Loss of love and affection|Rs. 1,00,000|| |6|Loss of consortium to the 1st<br>appellant|Rs. 1,00,000|| |7|Medical expenses|Rs. 4,58,449|| |8|Loss of dependency|Rs. 3,60,000|| ||**Total**|**Rs. 10,96,449**|| 12. The accident occurred on 22.05.2013. At the time of accident, the deceased was aged 83 years. It was claimed that, at the time of accident, the deceased was earning a **MACA.No.679 OF 2017** -8- monthly income of Rs.10,000/- as an Agriculturist. No materials were placed before the Tribunal to prove the monthly income of the deceased. None of the claimants 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.8,000/-. 13. In **Ramachandrappa v. Manager, Royal 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 **MACA.No.679 OF 2017** -9- 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. 14. In **Syed Sadiq v. Divisional Manager, United 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 6,500/- per month. **MACA.No.679 OF 2017** -10- 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2013, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court finds that the deceased can be reasonably fixed the monthly income as Rs.9,000/-, for the purpose of assessing compensation under various heads. 16. 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, **MACA.No.679 OF 2017** -11- multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 17. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 18. In the instant case, as on the date of accident, the deceased was aged 83 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 correct and proper. 19. 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 **MACA.No.679 OF 2017** -12- arrive at the contribution to the dependents. Where the deceased was **married** , the deduction towards personal and living expenses of the deceased should be **one-third** where the number of dependent family members is **2 to 3** ; **onefourth** where the number of dependent family members is **4 to 6** ; and **one-fifth** where the number of dependent family members **exceeds 6** . In regard to **bachelors** , normally, **50%** is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the **MACA.No.679 OF 2017** -13- mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is **large and dependent on the income of the deceased** , as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to **one-third** and contribution to the family will be taken as **two-third** . 20. In **Reshma Kumari [(2013) 9 SCC 65]** a ThreeJudge Bench of the Apex Court reproduced paragraphs 30, 31 and 32 of **Sarla Verma** and approved the same, in paragraph 38 of the decision, by stating that, the standards fixed in **Sarla Verma** provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the **MACA.No.679 OF 2017** -14- number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. Therefore, the standards fixed in **Sarla Verma** on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out. In paragraph 43.6 the Apex Court directed that, insofar as deduction for 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** . 21. 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.679 OF 2017** -15- 22. In **Sujatha P. and others v. M/s. Oriental Insurance Company Ltd., Thazepalam [2017 (5) SCC 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 dependent 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 dependent 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 **MACA.No.679 OF 2017** -16- depends upon the marital status or the number of 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 **MACA.No.679 OF 2017** -17- been alive. In short, it is to be held that the Tribunal has rightly held that the 1[st] appellant 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's case (supra)** 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's case (supra)** . 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 nonearning sisters or brothers, his personal and **MACA.No.679 OF 2017** -18- living expenses may be restricted to onethird and contribution to the family will be taken as two-third.” Thus the said decision would fortify our view. 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's case (supra)** , 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 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's case (supra)** .” 23. In the instant case, at the time of accident, the deceased was aged 83 years. In the absence of any evidence to prove that respondents 2 to 6, who are the grown up children of the deceased were actually dependent on their father owing to any particular circumstance, the 1[st] respondent widow alone can be treated as the dependent of the deceased. Therefore, deduction of **50%** of the notional monthly income of **MACA.No.679 OF 2017** -19- the deceased towards his personal and living expenses has to be made and the Tribunal went wrong in deducting only 1/4[th] of the notional monthly income towards the personal and living expenses of the deceased. 24. Towards loss of dependency, the Tribunal awarded a sum of Rs.3,60,000/- (6,000 x 12 x 5). In this appeal, the monthly income of the deceased has already been re-fixed as Rs.9,000/-. Deducting 50% towards the personal and living expenses of the deceased; and applying the multiplier of 5, the compensation under the head loss of dependency is refixed as Rs.2,70,000/- (9,000 x 12 x 5 x 1/2), resulting an **excess payment** of **Rs.90,000/-** (3,60,000 – 2,70,000). 25. In the impugned award, towards funeral expenses the Tribunal awarded a sum of Rs.25,000/-. Towards loss of consortium the 1[st] respondent is awarded a sum of Rs.1,00,000/-. Towards loss of love and affection respondents are awarded a sum of Rs.1,00,000/-. The Tribunal awarded no compensation under the head loss of estate. 26. In **Rajesh [(2013) 9 SCC 54]** a Three-Judge Bench of the Apex Court granted Rs.25,000/- towards funeral **MACA.No.679 OF 2017** -20- expenses, Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of care and guidance for minor children. 27. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that the head relating to loss of care and guidance for minor children does not exist. Though **Rajesh** refers to **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , it does not seem to follow the same. The conventional and traditional heads cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The Court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders **MACA.No.679 OF 2017** -21- 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. 28. In **Santosh Devi v. Mahaveer Singh [(2018) 9 SCC 146]** a Three-Judge Bench of the Apex Court granted compensation on conventional heads, in terms of the figures standardised by the Constitution Bench in the year 2017, in **Pranay Sethi** , to the wife and children of one Puran Chand, who died in a motor accident, which occurred on **30.12.1992** . 29. In **Sureshchandra Bagmal Doshi v. New India Assurance Company Limited [(2018) 15 SCC 649]** the **MACA.No.679 OF 2017** -22- Apex Court granted the figures on conventional heads standardised by the Constitution Bench in the year 2017, in **Pranay Sethi** , i.e., Rs.15,000/- as loss of estate; Rs.40,000/towards loss of consortium; and Rs.15,000/- as funeral expenses to the parents [appellants before the Apex Court], who lost their only daughter in a motor accident which occurred on **16.08.1998** . In the said decision, Rs.40,000/granted in **Pranay Sethi** towards loss of consortium was granted to the appellants, who are the **parents** of the deceased, towards **loss of love and affection** . Paragraphs 1 and 14 of the said decision read thus; “ **1.** Fate can be cruel. This is a tragic case where the only daughter of a lawyer husband and a doctor wife, who got married early and unfortunately became a widow also at a young age, died in a vehicular accident, which took place on **16.8.1998** . The claim of the parents (appellants herein) in respect of this unfortunate demise forms the subject matter of the present appeal. xxx xxx xxx **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 **MACA.No.679 OF 2017** -23- standardised at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, which as per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years.” “underline supplied” 30. In **Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130]** , after referring to the decision in **Pranay Sethi** , the Apex Court held that in legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. **Spousal consortium** is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the **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 **MACA.No.679 OF 2017** -24- **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. 31. In **Magma General Insurance** the Apex Court held that consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the **love** , **affection** , care and companionship of the deceased child. The Motor Vehicles Act is a beneficial **MACA.No.679 OF 2017** -25- 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** . 32. 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 **MACA.No.679 OF 2017** -26- 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 - Rs.15,000/- and funeral expenses – Rs.15,000/-] The Apex **MACA.No.679 OF 2017** -27- Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an unmarried sister, the High Court correctly considered them to be dependants of the deceased, and made a deduction of 1/3[rd] towards personal expenses of the deceased. [Para.16 @ page 135 of SCC] The Apex Court found that the deceased was a bachelor, whose mother had **pre-deceased** him. The father of the deceased was about 65 years old and his sister was unmarried. The deceased was **contributing** a part of his meagre income to the family for their sustenance and survival. Therefore, the Apex Court held that the father and unmarried sister of the deceased would be entitled to compensation under his dependants. [Para.18 @ page 136 of SCC] Dealing with the contention of the insurer that the High Court had wrongly awarded Rs.1,00,000/towards loss of love and affection, and Rs.25,000/- towards funeral expenses, the 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 **MACA.No.679 OF 2017** -28- 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. 33. 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. 34. 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 **MACA.No.679 OF 2017** -29- 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** . 35. 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 **MACA.No.679 OF 2017** -30- Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/ relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. …..." 36. 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 **MACA.No.679 OF 2017** -31- law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras.11 to 13 of the judgment read thus; "11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. 12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, 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 **MACA.No.679 OF 2017** -32- categorised into one, in the nature of moulding of relief and the other, as the declaration of law. 'Declaration of Law' as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of **Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72]** , **Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 381]** and in **State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667]** , has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the 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 **MACA.No.679 OF 2017** -33- Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case. 13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment." 37. 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. 38. As already noticed, the compensation that has to be **MACA.No.679 OF 2017** -34- awarded to the surviving spouse towards spousal consortium; to the children of the deceased towards parental consortium; or to the parents of the deceased child towards filial consortium, is for loss of **love and affection** and such other matters. In such circumstances, once the surviving spouse is awarded compensation towards spousal consortium; or the children of the deceased are awarded compensation towards parental consortium; or the parents of the deceased child are awarded compensation towards filial consortium, they are not entitled for award of further compensation under the head loss love and affection, as it would result in duplication or overlapping of compensation under the relevant heads. 39. 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 **MACA.No.679 OF 2017** -35- years old, his sister was unmarried, and the deceased was **contributing** a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/- as compensation to unmarried sister of the deceased under the head filial consortium, after maintaining the compensation (Rs.50,000/- x 2) awarded by the High Court towards loss of love and affection, which can only be treated as a direction issued by the Apex Court in exercise of its powers under Article 142 of the Constitution of India to do proper justice and the exercise of such power cannot be considered as law laid down by the Apex Court under Article 141 of the Constitution of India. 40. 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); Rs.1,00,000/- awarded towards loss of consortium to the 1[st] respondent is scaled down to Rs.40,000/- and the same is granted under the head **MACA.No.679 OF 2017** -36- spousal consortium, resulting an **excess payment** of **Rs.60,000/-** (1,00,000 - 40,000); Rs.1,00,000/- awarded towards love and affection to the respondents is re-fixed as Rs.40,000/- each (40,000/- x 4 = 1,60,000) payable to respondents 2 to 5 and the same is granted under the head parental consortium, resulting an additional compensation of **Rs.60,000/-** (1,60,000 - 1,00,000). 41. 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 respondents are granted a sum of **Rs.15,000/-** towards loss of estate. 42. The Tribunal awarded Rs.50,000/- as compensation towards pain and suffering of the deceased. 43. 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 **MACA.No.679 OF 2017** -37- 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. 44. In the instant case, the deceased succumbed to the injuries after undergoing inpatient treatment for a period of 34 days. Considering the age of the deceased at the time of accident, and also the fact that he had undergone four surgeries, the compensation under this head is re-fixed as Rs.35,000/-, resulting an **excess payment** of **Rs.15,000/-** (50,000 - 35,000). 45. Towards transport to hospital, the Tribunal awarded a sum of Rs.2,000/-; and towards damage to clothing a sum **MACA.No.679 OF 2017** -38- of Rs.1,000/-. Considering the fact that the accident is of the year 2013, the compensation under the head damage to clothing and articles is re-fixed as Rs.1,250/-, resulting an additional compensation of **Rs.250/-** (1,250 - 1,000). The compensation awarded by the Tribunal under the head transport to hospital represents just and reasonable compensation, which requires no enhancement in this appeal. 46. Towards bystander expenses and extra nourishment, no amount has been awarded by the Tribunal. The accident is of the year 2013. The deceased had undergone inpatient treatment for 34 days. Therefore, this Court deem it appropriate to grant a sum of **Rs.8,500/-** (250 x 34) under the head bystander expenses and a further sum of **Rs.6,800/-** (200 x 34) under the head extra nourishment. 47. In the result, this appeal is disposed of by scaling down the total compensation awarded by the Tribunal in O.P. (MV) No.1406 of 2013 as **Rs.10,11,999/-** (Rupees ten lakh eleven thousand nine hundred and ninety nine only) [10,96,449 - (90,000 + 10,000 + 60,000 + 15,000) + (60,000 + 15,000 + 250 + 8,500 + 6,800] together with **MACA.No.679 OF 2017** -39- interest interest at the rate of **9%** per annum from the date of petition till realisation. The total compensation, excluding that under the head spousal consortium payable to the 1[st] respondent and parent consortium payable to respondents 2 to 6 shall be paid to the 1[st] respondent widow. The appellant 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 respondents/claimants towards Balance Court Fee and Legal Benefit Fund. Payment of compensation to the respondents/claimants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. The respondents/claimants shall submit their Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a **MACA.No.679 OF 2017** -40- certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN** **JUDGE** bpr