Kerala High Court
Thahira vs Mohammed T B on 18 February, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941
MACA.No.631 OF 2015(D)
AGAINST THE AWARD IN OPMV 2114/2005 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,PERUMBAVOOR
APPELLANTS:
1 THAHIRA
VATHELI HOUSE, MANJAPETTY, MARAMPALLY P.O
2 ABOOBACKER SIDDIQUE
S/O.ISMAIL (MINOR) (REPRESENTED BY MOTHER AND
GUARDIAN 1ST APPELLANT), DO. DO.
3 ABU TAHIR
S/O.ISMAIL (MINOR) (REPRESENTED BY MOTHER AND
GUARDIAN 1ST APPELLANT), DO. DO.
4 AYSHA
W/O.AMMU, VATTELI HOUSE, MANJAPETTY,
MARAMPALLY P.O.
BY ADV. SRI.K.K.MOHAMED RAVUF
RESPONDENTS:
1 MOHAMMED T B
S/O.BEERAN, THANGATHIL HOUSE, MALIYAKAPADY, EDATHALA
P.O.
*2 MATHAI (DELETED)
S/O.XAVIER THUNDATHIL HOUSE, NEAR EXCISE RANGE
OFFICE, ALUVA.
(DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANTS
AS PER ORDER DTD 23/10/17 IN IA 3807/17 IN MACA
631/15)
3 THE NEW INDIA ASSURANCE CO. LTD.
KODAVATH SHOPPING COMPLEX, SUB JAIL ROAD, ALUVA.
R3 BY ADV. SRI.GEORGE CHERIAN (SR.)
SMT. K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
MACA.No.631 OF 2015(D)
JUDGMENT
The appellants are the claimants in O.P.(MV) No.2114 of 2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Ismail, husband of the 1st appellant, father of 2nd and 3rd appellants and son of the 4th appellant, in a motor accident which occurred on 16.09.2005, while he was riding a motorcycle bearing registration No.KL-7/H-2731, with his wife and two minor children (aged 5 and 6 years respectively) as pillion riders. At the place of accident, the motorcycle was hit by a tempo van bearing registration No.KLI-8884, owned by the 1st respondent, driven by the 2nd respondent and insured with the 3rd respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries on the date of accident itself. Alleging that the accident occurred due to rash and negligent driving of the tempo van by the 2nd respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.9,26,000/- under various heads, which was limited to Rs.5,00,000/-, for the purpose of payment of Court Fee. 3 MACA.No.631 OF 2015(D)
2. Before the Tribunal, the 1st respondent owner of the tempo van and the 2nd respondent driver remained absent and they were set ex parte. The 3 rd respondent insurer filed written statement admitting the policy coverage of the tempo van involved in the accident; however, denying negligence alleged against the 2nd respondent driver. The insurer contended that the accident occurred solely due to the rash and negligent riding of the motorcycle by the deceased, who was riding the motorcycle with three pillion riders. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and it was contended that the compensation claimed is highly excessive.
3. Before the Tribunal, the claim petition was tried along with the connected matters. Exts.A1 to A24 were marked on the side of the claimants and PW1 was examined.
4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the tempo van by the 2nd respondent driver and also due to contributory negligence on the side of the deceased. The Tribunal fixed 4 MACA.No.631 OF 2015(D) negligence between the 2nd respondent driver of the tempo van and the deceased in the ratio 75:25. Since insurance coverage of the tempo van was not in dispute, the 3 rd respondent insurer was held liable to indemnify the insured. Under various heads the Tribunal awarded a total compensation of Rs.4,75,557/- and after deducting 25% towards contributory negligence of the deceased, the claimants were awarded a compensation of Rs.3,56,668/-, together with interest at the rate of 8% per annum from the date of petition till realisation and directed the 3rd respondent insurer to satisfy the award. The amount of compensation was ordered to be apportioned among the claimants equally.
5. Dissatisfied with the quantum of compensation awarded by the Tribunal and also challenging the finding of the Tribunal on the question of contributory negligence on the part of the deceased, the appellants/claimants are before this Court in this appeal.
6. Heard the learned counsel for the appellants/ claimants and also the learned Standing Counsel for the 3 rd respondent insurer.
7. The issues that arise for consideration in this appeal 5 MACA.No.631 OF 2015(D) are as to whether the finding of the Tribunal on the question of contributory negligence can be sustained in law; and whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under various heads.
8. The documents marked as Ext.A3 is the final report in Crime No.512/2005 of Perumbavoor Police Station, registered in connection with the motor accident in question. The document marked as Ext.A2 is the scene mahazer. As per Ext.A2, the road is lying in east west direction. The total width of the tarred portion of the road is 6.50m. The deceased was riding the motorcycle from west to east and the 2nd respondent was driving tempo van from east to west. The spot of accident is 90cms south from the northern tar end of the road, which would show that the tempo van went wrong side and hit the motorcycle. However, the Tribunal fixed 25% contributory negligence on the deceased on the ground that he was riding the motorcycle with three pillion riders, i.e., his wife and two minor children, in violation of Section 128 of the Motor Vehicles Act.
9. In Binoj Antony v. New India Assurance Co. Ltd. [2014 (1) KLT 393] a Division Bench of this Court held that, 6 MACA.No.631 OF 2015(D) the mere fact that a motorcycle was carrying two pillion riders cannot ipso facto give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident. One can easily visualise a case where a motorcycle with two pillion riders was stationary on the right side of the motorcycle on a road and another vehicle comes from behind and hits the vehicle. In such a case, the mere fact that the motorcycle was carrying two pillion riders cannot spell out negligence on the part of the rider of the motorcycle or even on the two pillion riders. It is possible to visualise several other similar circumstances, where mere carrying of two pillion riders cannot possibly contribute to an accident as such. Therefore, the ratio of the decision in Pournami v. Sandhya Sudheer [2008 (4) KLT 817] has to be considered in the light of the facts of that case.
10. In Binoj Antony, on the facts of the case, the Division Bench noticed that, the scene mahazar proved that the accident occurred 50cms from the southern tar end. The appellant was going from east to west. That being so, he was thoroughly on his right side of the road. The tipper lorry, which is the other vehicle 7 MACA.No.631 OF 2015(D) involved in the accident, was totally on the wrong side of the road. In view of those facts, the Division Bench was unable to hold that the carrying of two pillion riders by the appellant on his motorcycle contributed to the accident to any extent whatsoever. Therefore, the Division Bench held that there was no contributory negligence on the part of the appellant, which contributed to the accident to any extent. Consequently, the Division Bench vacated the finding of the Tribunal that there was 25% contributory negligence on the part of the appellant and declared that the insurer of the tipper lorry is liable to satisfy the award to the full extent without any deduction for contributory negligence.
11. In Mohammed Siddique v. National Insurance Company Ltd. [2020 SCC OnLine SC 24], the Apex Court held that the fact that a person was a pillion rider on a motorcycle along with the rider and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a casual connection 8 MACA.No.631 OF 2015(D) between the violation and the accident or a casual connection between the violation and the impact of the accident upon the victim.
12. In the instant case, as already noticed, in the impugned award the Tribunal found that the place of accident is 90cms south from the northern tar end of the road, which would show that the tempo van went wrong side and hit the motorcycle. However, the Tribunal fixed 25% contributory negligence on the deceased on the ground that he was riding the motorcycle with three pillion riders, i.e., his wife and two minor children, in violation of Section 128 of the Motor Vehicles Act.
13. In the instant case, at the time of accident, apart from the rider of the motorcycle, there were three pillion riders (wife and two minor children), in violation of Section 128 of the Motor Vehicles Act. Sub-section (1) of Section 128 provides that, n o driver of a two-wheeled motorcycle shall carry more than one person in addition to himself on the motorcycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motorcycle behind the driver's seat with appropriate safety measures. If the violation of the said statutory rule had resulted in the accident, inference can certainly be drawn that the person who 9 MACA.No.631 OF 2015(D) violated that rule had contributed to the accident. But mere violation of a statutory rule cannot lead to an inference that the accident was on account of negligence. Evidence has to be adduced in order to establish that the violation of a statutory rule had resulted in negligence, which in turn had resulted in the accident. Then proportionate contributory/composite negligence could be attributed to the persons who violated that statutory rule.
14. In the instant case, there in nothing on record to suggest that the violation of Section 128 of the Motor Vehicles Act had resulted in negligence, which in turn had resulted in the accident. In the absence of any such evidence, mere contravention of Section 128 of the Act cannot be held to have resulted in the accident. In that view of the matter, the impugned award to the extent of limiting the entitlement of the appellants only to 75% of the total compensation cannot be sustained in law and the same is hereby set aside, by holding that the appellants are entitled for the entire compensation awarded by the Tribunal.
15. In Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] the Apex Court laid down the principles 10 MACA.No.631 OF 2015(D) governing determination of quantum of compensation in the case of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by following the well settled steps, namely, ascertaining the multiplicand (annual contribution to the family), the multiplier and calculation of loss of dependency by multiplying the multiplicand by such multiplier.
16. 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 11 MACA.No.631 OF 2015(D) and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the Tribunal is quite wide, yet it is obligatory on the part of the Tribunal to be guided by the expression, i.e., just compensation.
17. In the instant case, the compensation awarded by the Tribunal under various heads reads thus;
SI. Head of claim Amount Amount Basis-vital
No claimed awarded (in details in a
(in rupees) rupees) nutshell
1 Transport to 5,000 2,500
hospital
2 Damage to clothing 500 250
3 Funeral Expenses 10,000 2,500
4 Treatment 5,000 5,807 Actual bill
Expenses amount
5 Loss of support 25,000 Nil
6 Pain and suffering 25,000 5,000 Died on the
12
MACA.No.631 OF 2015(D)
same day
7 Loss of estate 1,50,000 2,500
8 Loss of dependancy 4,00,000 4,32,000 (3,000 x 12 x
16 x 3/4)
9 Loss of love and 60,000 15,000
affection
10 Loss of consortium 55,000 10,000
11 Shortened exptn of 1,30,000 Nil
life
12 Loss of guidance 60,000 Nil
etc
Total Rs.9,26,000/- Rs.4,75,557/- 8% interest
(Claim llimited to Rs.5,00,000/-) Rs.3,56,668/- p.a.from the
(75% of the date of filing till
award) realisation.
18. The accident occurred on 16.09.2005. At the time of accident, the deceased was aged 31 years. In the claim petition it was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.5,000/- as coolie (manual labourer). None of the appellants have chosen to mount the box to prove the monthly income of the deceased. The Tribunal fixed the monthly income of the deceased notionally as Rs.3,000/-.
19. 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 13 MACA.No.631 OF 2015(D) 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.
20. 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 14 MACA.No.631 OF 2015(D) 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.
21. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2005, 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. 5,000/- in the claim petition, cannot be said to be on the higher side, which is taken as the notional monthly income of the deceased, for the purpose of assessing compensation under various heads.
22. In Pranay Sethi [(2017) 16 SCC 680], a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma 15 MACA.No.631 OF 2015(D) [(2009) 6 SCC 121] and it has been approved in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]. The age and income, as stated earlier, have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In Pranay Sethi the Apex Court approved the principle of 'standardisation' so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.
23. In Rajesh v. Rajbir Singh [(2013) 9 SCC 54], a 16 MACA.No.631 OF 2015(D) Three-Judge Bench of the Apex Court held that, in case of self- employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In Munna Lal Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347] another Three- Judge Bench followed the principle stated in Rajesh. In Pranay Sethi, after expressing the opinion that the dicta laid down in Reshma Kumari being earlier in point of time would be a binding precedent and not the decision in Rajesh, the Constitution Bench observed that, in Munna Lal Jain, the Three- Judge Bench should have been guided by the principle stated in Reshma Kumari which has concurred with the view expressed in Sarla Devi or in case of disagreement, it should have been well advised to refer the case to a Larger Bench.
24. In Pranay Sethi [(2017) 16 SCC 680] the Constitution Bench held that, while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was 17 MACA.No.631 OF 2015(D) between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
25. In the instant case, at the time of accident, the deceased was aged 31 years. It was claimed that, at the time of accident, the deceased was earning monthly income as a coolie (manual labourer). The Tribunal fixed the monthly income of the deceased notionally as Rs.3,000/-. In the impugned award, the Tribunal did not add anything to the notional monthly income of the deceased towards future prospects.
26. As already noticed, no reliable materials were placed before the Tribunal to show that, at the time of accident, the 18 MACA.No.631 OF 2015(D) deceased had a permanent job. Therefore, the deceased can only be treated as a self-employed. In view of the law laid down by the Apex Court in Pranay Sethi, an addition of 40% of the notional monthly income of the deceased, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in Ramachandrappa and in Syed Sadiq referred to supra, can be made towards future prospects, since the deceased was aged below 40 years.
27. Therefore, for the purpose of re-fixing the compensation under the head loss of dependency, 40% of the monthly income of the deceased notionally re-fixed in this appeal as Rs.5,000/-, i.e., a sum of Rs.2,000/- (5,000 x 40/100) has to be added towards future prospects. In the result, the monthly income of the deceased, for the purpose of re-fixing the compensation under the head loss of dependency, is reckoned as Rs.7,000/- (5,000 + 2,000).
28. 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) 19 MACA.No.631 OF 2015(D) 2 SCC 176], U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362] and New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720] held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying Susamma Thomas, Trilok Chandra and Charlie], which starts with an operative multiplier of 18 [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of 17 for 26 to 30 years, multiplier of 16 for 31 to 35 years, multiplier of 15 for 36 to 40 years, multiplier of 14 for 41 to 45 years, and multiplier of 13 for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of 11 for 51 to 55 years, multiplier of 9 for 56 to 60 years, multiplier of 7 for 61 to 65 years and multiplier of 5 for 66 to 70 years.
29. 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. 20 MACA.No.631 OF 2015(D)
30. In the instant case, as on the date of accident, the deceased was aged 31 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 16 applied by the Tribunal is correct and proper.
31. In Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] the Apex Court, on the question of deduction towards the personal and living expenses of the deceased held that, the personal and living expenses of the deceased should be deducted from his monthly income, to arrive at the contribution to the dependents. Where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third where the number of dependent family members is 2 to 3; one-fourth where the number of dependent family members is 4 to 6; and one-fifth where the number of dependent family members exceeds 6. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event 21 MACA.No.631 OF 2015(D) the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
32. 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 22 MACA.No.631 OF 2015(D) of the decision, by stating that, the standards fixed in Sarla Verma provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. Therefore, the standards fixed in Sarla Verma on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out. In paragraph 43.6 the Apex Court directed that, insofar as deduction for 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.
23MACA.No.631 OF 2015(D)
33. 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.
34. In the instant case, at the time of accident, the deceased was aged 31 years with a family consisting of 4 dependants. In the light of the decisions of the Apex Court in Sarla Verma, Reshma Kumari and Pranay Sethi referred to supra, deduction of 1/4th of the notional monthly income of the deceased towards his personal and living expenses is perfectly legal.
35. Towards loss of dependency, the Tribunal awarded a sum of Rs.4,32,000/- (3,000 x 12 x 16 x 3/4). In this appeal, the monthly income of the deceased has already been re-fixed as Rs.5,000/-. Adding 40% of the notional monthly income of the deceased towards future prospects (5,000 + 2,000 = 7,000); 24 MACA.No.631 OF 2015(D) deducting 1/4th towards the personal and living expenses of the deceased; and applying the multiplier of 16, the compensation under the head loss of dependency is re-fixed as Rs.10,08,000/- (7,000 x 12 x 16 x 3/4), resulting an additional compensation of Rs.5,76,000/- (10,08,000 - 4,32,000).
36. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.2,500/-. Towards loss of consortium the 1st appellant is awarded a sum of Rs. 10,000/-. Towards loss of love and affection the Tribunal awarded a sum of Rs.15,000/- and a further sum of Rs.2,500/- under the head loss of estate.
37. 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.
38. 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 25 MACA.No.631 OF 2015(D) 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 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 26 MACA.No.631 OF 2015(D) 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.
39. 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.
40. 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. 27 MACA.No.631 OF 2015(D) 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 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"
41. 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 28 MACA.No.631 OF 2015(D) 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.
42. 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 29 MACA.No.631 OF 2015(D) 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 under 'loss of consortium' as laid down in Pranay Sethi.
43. 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 30 MACA.No.631 OF 2015(D) 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 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 31 MACA.No.631 OF 2015(D) erroneous. It was contended that only Rs.30,000/- could have been awarded as per the judgment in Pranay Sethi. [i.e., loss of estate - Rs.15,000/- and funeral expenses - Rs.15,000/-] The Apex Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an unmarried sister, the High Court correctly considered them to be dependants of the deceased, and made a deduction of 1/3 rd towards personal expenses of the deceased. [Para.16 @ page 135 of SCC] The Apex Court found that the deceased was a bachelor, whose mother had pre- deceased him. The father of the deceased was about 65 years old and his sister was unmarried. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Therefore, the Apex Court held that the father and unmarried sister of the deceased would be entitled to compensation under his dependants. [Para.18 @ page 136 of SCC] Dealing with the contention of the insurer that the High Court had wrongly awarded Rs.1,00,000/- towards loss of love and affection, and Rs.25,000/- towards funeral expenses, the Apex Court, after quoting Para.52 of the decision in Pranay 32 MACA.No.631 OF 2015(D) 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.
44. 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.
45. 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 33 MACA.No.631 OF 2015(D) 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.
46. 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 34 MACA.No.631 OF 2015(D) judgment;
"26. ....... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/ relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. ......"
47. 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 35 MACA.No.631 OF 2015(D) 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 categorised into one, in the nature of moulding of relief and the other, as the declaration of law.36
MACA.No.631 OF 2015(D) '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 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.37
MACA.No.631 OF 2015(D)
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."
48. 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.
49. As already noticed, the compensation that has to be awarded to the surviving spouse towards spousal consortium; to the children of the deceased towards parental consortium; or to the parents of the deceased child towards filial consortium, is for 38 MACA.No.631 OF 2015(D) 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.
50. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; and filial consortium to the parents of the deceased child laid down by the Apex Court in Magma General Insurance Company Ltd. does not speak anything as to the right of siblings to get compensated under the head loss of consortium. In Magma, after noticing the fact that the mother of the deceased had pre- deceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was contributing a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/- as compensation to 39 MACA.No.631 OF 2015(D) 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.
51. In view of the law laid down by the Apex Court in Pranay Sethi and Magma General Insurance Company Ltd. referred to supra, Rs.2,500/- awarded by the Tribunal in the impugned award towards funeral expenses is enhanced to Rs.15,000/-, resulting an additional compensation of Rs.12,500/- (15,000 - 2,500); Rs.10,000/- awarded towards loss of consortium to the 1st appellant is enhanced to Rs.40,000/- and the same is granted under the head spousal consortium, resulting an additional compensation of Rs.30,000/- (40,000 - 10,000); Rs.15,000/- awarded towards love and affection is re- fixed as Rs.1,20,000/- (40,000 x 3) and the same is granted to appellants 2 and 3, who are the children of the deceased, under 40 MACA.No.631 OF 2015(D) the head parental consortium, and to the 4th appellant, who is the mother of the deceased, under the head filial consortium, resulting an additional compensation of Rs.1,05,000/- (1,20,000 - 15,000).
52. The Tribunal awarded Rs. 2,500/- as compensation towards loss of estate. In view of the law laid down by the Apex Court in Pranay Sethi [(2017) 16 SCC 680] an amount Rs.15,000/- can be granted under the head loss of estate. Accordingly, the appellants are granted a sum of Rs.15,000/- towards loss of estate, resulting an additional compensation of Rs.12,500/- (15,000 - 2,500).
53. The Tribunal awarded Rs.5,000/- as compensation towards pain and suffering of the deceased.
54. In Jyni and others v. Raphel P.T. and others [2016 (2) KHC 870] a Division Bench of this Court held that, death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case 41 MACA.No.631 OF 2015(D) 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.
55. In the instant case, the deceased succumbed to the injuries on the date of accident itself. Considering the said fact, the compensation of Rs.5,000/- awarded by the Tribunal towards pain and suffering of the deceased is just and reasonable, which requires no enhancement in this appeal.
56. Towards transportation to hospital the Tribunal awarded a sum of Rs.2,500/- and towards damage to clothing and articles the Tribunal awarded a sum of Rs.250/-. The accident is of the year 2005. The deceased succumbed to the injuries on the very same day. The compensation under the head transportation to hospital is re-fixed as Rs.3,000/-, resulting an additional compensation of Rs.500/- (3,000 - 2,500). The 42 MACA.No.631 OF 2015(D) compensation under the head damage to clothing and articles is re-fixed as Rs.750/-, resulting an additional compensation of Rs.500/- (750 - 250).
57. Towards medical expenses, the Tribunal awarded a sum of Rs.5,807/-, covered by actual medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal.
58. The impugned award, to the extent of limiting the entitlement of the appellants only to 75% of the total compensation, has already been set aside in this appeal, by holding that the appellants are entitled for the entire compensation awarded by the Tribunal. Therefore, the appellants will be entitled for payment of the balance compensation of Rs.1,18,889/- (4,75,557 - 3,56,668) awarded by the Tribunal, together with interest at the rate of 8% per annum from the date of petition till realisation.
59. In the result, the appellants/claimants will be entitled for payment of an additional/balance compensation of Rs.8,55,889/- (Rupees eight lakhs fifty five thousand eight 43 MACA.No.631 OF 2015(D) hundred and eighty nine only) [5,76,000 + 12,500 + 30,000 + 1,05,000 + 12,500 + 500 + 500 + 1,18,889] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation, excluding the period of delay of 1421 days in filing this appeal, which was condoned by the order dated 24.11.2019, subject to the condition that in case enhanced compensation is granted in this appeal, the appellants shall not be entitled for interest on the said amount for the period of delay. The additional/balance compensation granted in this appeal, excluding that granted to the 1st appellant as spousal consortium, that granted to appellants 2 and 3 under the head parental consortium and that granted to the 4 th appellant under the head filial consortium shall be apportioned among the appellants in the ratio 60:15:15:10. The 3rd respondent insurer shall satisfy the additional/balance compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellants/claimants towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional/balance compensation to the appellants/claimants shall 44 MACA.No.631 OF 2015(D) 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 thier Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment.
This appeal is disposed of as above. No order as to costs.
Sd/-
ANIL K.NARENDRAN JUDGE hmh