Kerala High Court
Reliance General Insurance Co. Ltd vs Ambika Kumari K on 20 March, 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
FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941
MACA.No.1309 OF 2018(E)
AGAINST THE AWARD IN OPMV 190/2012 OF ADDITIONAL DISTRICT
COURT& MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT/S:
RELIANCE GENERAL INSURANCE CO. LTD
VISHNU BUILDING,K.P.VALLON ROAD,KADAVANTHRA KOCHI-
20,REP BY ITS LEGAL CLAIMS MANAGERRELIANCE GENERAL
INSURANCE CO LTD ERNAKULAM
BY ADV. SRI.R.AJITH KUMAR (128/84)
RESPONDENT/S:
1 AMBIKA KUMARI K
W/O LATE P.K.NARAYANAN NAMPOOTHIRI,PERINGASSERY
MADOM,AZHIYIDATHUCHIRA P.O,THIRUVALLA-689113
2 APARNA N NAMPOOTHIRI
D/O LATE P.K.NARAYANAN NAMPOOTHIRI,PERINGASSERY
MADOM,AZHIYIDATHUCHIRA P.O,THIRUVALLA-689113
R1-2 BY ADV. SRI.V.V.SHAJI
R1-2 BY ADV. SRI.VARGHESE C.KURIAKOSE
R1-2 BY ADV. SHRI.SUSANTH SHAJI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 20.03.2020, ALONG WITH MACA.3234/2019(F), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA Nos.1309 of 2018 & 3234 of 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941
MACA.No.3234 OF 2019(F)
AGAINST THE AWARD IN OPMV 190/2012 DATED 31-10-2017 OF
DISTRICT COURT& SESSIONS COURT, PATHANAMTHITTA
APPELLANT/S:
1 AMBIKA KUMARI K, AGED 66 YEARS
W/O.LATE P.K. NARAYANAN NAMBOOTHIRI,
PERINGASSERY MADOM, AZHIYIDATHUCHIRA P.O,
THIRUVALLA-689113, PATHANAMTHITTA DISTRICT.
2 APARNA N. NAMBOOTHIRI, AGED 38 YEARS
D/O. LATE P.K. NARAYANAN NAMBOOTHIRI,
PEINGASSERY MADOM, AZHIYIDATHUCHIRA P.O,
THIRUVALLA-689113, PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.VARGHESE C.KURIAKOSE
SRI.V.V.SHAJI
SHRI.SUSANTH SHAJI
RESPONDENT/S:
1 C R RAVIKUMAR, S/O. NEELAKANDAN,
KRISHNA KRIPA HOUSE, PINAPPUZHA, HARIPPAD P.O,
ALAPPUZHA-690514.
2 SANJU SASI, SREENILAYAM HOUSE, PENNUKKARA P.O,
CHENGANNUR, ALAPPUZHA-689520.
3 M/S. RALIANCE GENERAL INSURANCE CO.LTD,
VISHNU BUILDING, K.P. VALLON ROAD,
KADAVANTHRA, KOCHI-682020.
R2 BY ADV. SRI.S.SANTHOSH KUMAR
R2 BY ADV. SRI.S.VINODKUMAR
R2 BY ADV. SMT.P.LISSY JOSE
R2 BY ADV. SMT.ANJANA.S.SANTHOSH
R3 BY ADV. SRI.R.AJITH KUMAR (128/84)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 20.03.2020, ALONG WITH MACA.1309/2018(E), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA Nos.1309 of 2018 & 3234 of 2019
3
"CR"
JUDGMENT
These appeals arise out of the award dated 31.10.2017 passed by the Motor Accidents Claims Tribunal, Pathanamthitta in O.P(MV).No.190 of 2012. M.A.C.A.No.3234 of 2019 is filed by the claimants and M.A.C.A.No.1309 of 2018 is filed by the additional 3rd respondent insurer in that claim petition. Since common issues are raised, these appeals are disposed of by this common judgment. The parties are referred to in this judgment, as they appear in M.A.C.A.No.3234 of 2019.
2. M.A.C.A.No.3234 of 2019:- The appellants are the claimants in O.P.(MV)No.190 of 2012 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 Anoop N.Nampoothiry, son of the 1st appellant and brother of the 2 nd appellant, in a motor accident which occurred on 30.08.2009, while he was riding a motorcycle bearing registration No.KL- 27/A-1249. At the place of accident, the motorcycle was hit by a Toyota Innova car bearing registration No.KL-30/7003 driven MACA Nos.1309 of 2018 & 3234 of 2019 4 by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries at the place of accident itself. Alleging that the accident occurred due to rash and negligent driving of the car by the 1 st respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.35,00,000/- under various heads.
2.1. Before the Tribunal, respondents 1 and 2 did not file any written statement. The 3rd respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however denying negligence alleged against the 1st respondent driver. The insurer alleged contributory negligence on the part of the deceased. The insurer disputed the age, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is exorbitant.
2.2. Before the Tribunal, Exts.A1 to A56 were marked on the side of the claimants. Both sides have not chosen to adduce any oral evidence.
2.3. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident MACA Nos.1309 of 2018 & 3234 of 2019 5 occurred due to the rash and negligent driving of the car by the 1st respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3rd respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.21,33,000/- and directed the 3rd respondent insurer to satisfy the award, together with interest at the rate 9% per annum from the date of petition, i.e., from 29.02.2012, till realisation, with proportionate cost.
2.4. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimants are before this Court in this appeal.
3. M.A.C.A.No.1309 of 2018:- The additional 3rd respondent insurer in O.P.(MV)No.190 of 2012 has filed this appeal, by contending that the amount of compensation awarded by the Tribunal under various heads is on the higher side.
4. Heard the learned counsel for the appellant and also the learned counsel for the 3rd respondent insurer (the appellant in M.A.C.A.No.1309 of 2018).
MACA Nos.1309 of 2018 & 3234 of 2019 6
5. The issue that arises for consideration in these appeals is as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation.
6. In Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] the Apex Court laid down the principles governing determination of quantum of compensation in the case of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by following the well settled steps, namely, ascertaining the multiplicand (annual contribution to the family), the multiplier and calculation of loss of dependency by multiplying the MACA Nos.1309 of 2018 & 3234 of 2019 7 multiplicand by such multiplier.
7. In National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the Tribunal is quite wide, yet it is obligatory on the part of the Tribunal to be guided by the expression, i.e., just compensation.
8. In the instant case, the compensation awarded by MACA Nos.1309 of 2018 & 3234 of 2019 8 the Tribunal under various heads reads thus;
Head of claim Amount awarded (in rupees)
Loss of dependency 18,36,000/-
Funeral expenses 25,000/-
Transport to hospital 20,000/-
Damage to clothing 2,000/-
Pain and suffering 50,000/-
Loss of love and affection 1,00,000/-
Loss of estate 1,00,000/-
Total 21,33,000/-
9. The accident occurred on 30.08.2009. At the time of accident, the deceased was aged 26 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.60,000/- as a practicing lawyer and also as the Manager of Nice Lodge, Thiruvalla. The document marked as Ext.A42 is the certificate of enrollment of the deceased dated 24.12.2006. Ext.A48 is the acknowledgment for Income Tax Return, as per which the annual income of the deceased for the Assessment Year 2009-10 was Rs.1,44,500/-. (For the Assessment Year 2009-10 for personal income upto Rs.1,50,000/- the rate of tax is 'nil'.) The Tribunal noticed that Ext.A56 register of Nice Lodge does not show that the deceased was earning income as the Manager of that lodge. Moreover, being an advocate, the deceased is not expected to do any such MACA Nos.1309 of 2018 & 3234 of 2019 9 activity. Considering all those aspects, the Tribunal took the monthly income of the deceased as Rs.12,000/-, for the purpose of awarding compensation under various heads.
10. Though the learned counsel for the appellants would contend that the monthly income taken by the Tribunal is on the lower side, this Court finds no merit in the said contention, since the monthly income taken by the Tribunal is the professional income of the deceased, as reflected in Ext.A48 acknowledgment for Income Tax Return. Therefore, the fixation of monthly income by the Tribunal, relying on the said document, warrants no interference in this appeal.
11. In Pranay Sethi [(2017) 16 SCC 680], a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma [(2009) 6 SCC 121] and it has been approved in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]. The age and income, as stated earlier, MACA Nos.1309 of 2018 & 3234 of 2019 10 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.
12. In Rajesh v. Rajbir Singh [(2013) 9 SCC 54], a Three-Judge Bench of the Apex Court held that, in case of self-employed persons also, if the deceased victim is below 40 MACA Nos.1309 of 2018 & 3234 of 2019 11 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.
13. In Pranay Sethi [(2017) 16 SCC 680] the Constitution Bench held that, while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased MACA Nos.1309 of 2018 & 3234 of 2019 12 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.
14. In the instant case, at the time of accident, the deceased was aged 26 years. The Tribunal fixed the monthly income of the deceased, who was a practising lawyer, as Rs.12,000/-. In the impugned award, the Tribunal added 50% of the notional monthly income of the deceased towards future prospects.
15. As evidenced by Ext.A42 certificate of enrollment issued by the Bar Council of Kerala, the deceased was a practising lawyer since 24.12.2006. He was also an Income Tax MACA Nos.1309 of 2018 & 3234 of 2019 13 assessee, as evidenced by Ext.A48 acknowledgement for Income Tax Return. In view of the law laid down by the Apex Court in Pranay Sethi, the addition of 50% of the monthly income of the deceased made by the Tribunal towards future prospects, since the deceased was aged below 40 years is perfectly legal.
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, multiplier of 15 for 36 to 40 years, multiplier of 14 for 41 to 45 years, and MACA Nos.1309 of 2018 & 3234 of 2019 14 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 a 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 26 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 17 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 arrive at the contribution to the dependants. Where the MACA Nos.1309 of 2018 & 3234 of 2019 15 deceased was married, the deduction towards personal and living expenses of the deceased should be one-third where the number of dependant family members is 2 to 3; one-fourth where the number of dependant family members is 4 to 6; and one-fifth where the number of dependant 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 dependant. 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 dependant 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 MACA Nos.1309 of 2018 & 3234 of 2019 16 living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant 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 Three- Judge Bench of the Apex Court reproduced paragraphs 30, 31 and 32 of Sarla Verma and approved the same, in paragraph 38 of the decision, by stating that, the standards fixed in Sarla Verma provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the MACA Nos.1309 of 2018 & 3234 of 2019 17 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.
22. In the instant case, at the time of accident, the deceased was a bachelor aged 26 years. In the light of the MACA Nos.1309 of 2018 & 3234 of 2019 18 decisions of the Apex Court in Sarla Verma, Reshma Kumari and Pranay Sethi referred to supra, deduction of 50% of the notional monthly income of the deceased towards his personal and living expenses is perfectly legal.
23. Towards loss of dependency, the Tribunal awarded a sum of Rs.18,36,000/- [(12,000 + 6,000) x 12 x 17 x 1/2]. The compensation awarded by the Tribunal under this head, after fixing the monthly income of the deceased, relying on Ext.A48 acknowledgment for Income Tax Return, adding 50% towards future prospects, and applying the multiplier of 17 applicable to his age group, represents just and reasonable compensation, which requires no interference in this appeal.
24. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.25,000/-. Towards loss of love and affection, the Tribunal awarded a sum of Rs.1,00,000/-. Towards loss of estate, the Tribunal awarded a sum of Rs.1,00,000/-.
25. 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 MACA Nos.1309 of 2018 & 3234 of 2019 19 Rs.1,00,000/- towards loss of care and guidance for minor children.
26. 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 passed by the Tribunals and Courts are likely to be unguided. Therefore, the reasonable MACA Nos.1309 of 2018 & 3234 of 2019 20 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.
27. 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.
28. 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 MACA Nos.1309 of 2018 & 3234 of 2019 21 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 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 MACA Nos.1309 of 2018 & 3234 of 2019 22 enhanced @ 10 percent in the span of every three years. However, we are still within the window of three years."
"underline supplied"
29. 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 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 MACA Nos.1309 of 2018 & 3234 of 2019 23 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.
30. 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 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 MACA Nos.1309 of 2018 & 3234 of 2019 24 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.
31. 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 dependant. Compensation was awarded to the father and unmarried sister of the deceased, who were held to be dependants. 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 MACA Nos.1309 of 2018 & 3234 of 2019 25 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 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 1/3rd towards personal expenses of the deceased. [Para.16 @ page 135 of SCC] The MACA Nos.1309 of 2018 & 3234 of 2019 26 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 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.
32. In view of the law laid down by the Constitution MACA Nos.1309 of 2018 & 3234 of 2019 27 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.
33. In view of the law laid down by the Apex Court in Magma General Insurance Company Ltd., after referring to the decision in Pranay Sethi, the surviving spouse is entitled for spousal consortium; children of the deceased are entitled for parental consortium; and parents of a deceased child, who died in a motor accident, are entitled for filial consortium. The amount of compensation that has to be awarded will be governed by the principles of awarding compensation under the head loss of consortium, as laid down in Pranay Sethi.
34. 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 MACA Nos.1309 of 2018 & 3234 of 2019 28 under Article 142 of the Constitution of India to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by that Court under Article 141. It was also pointed out that, other Courts do not have the power similar to that conferred on the Apex Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. The Apex Court left open that question, observing as follows;
"Though there appears to be some merit in the first respondent's submission, we do not propose to examine that aspect." Though the said question was left open, the Apex Court observed as follows in Para.26 of the judgment;
"26. ....... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the MACA Nos.1309 of 2018 & 3234 of 2019 29 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. ......"
35. In State of Punjab v. Rafiq Masih [(2014) 8 SCC 883] a Three-Judge Bench of the Apex Court affirmed the view taken in ABS Marine Products' case (supra) holding that, the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding MACA Nos.1309 of 2018 & 3234 of 2019 30 precedent. Paras.11 to 13 of the judgment read thus;
"11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution.
12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the Statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. 'Declaration of Law' as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in 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 MACA Nos.1309 of 2018 & 3234 of 2019 31 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.
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."
36. In Magma General Insurance Company Ltd., the MACA Nos.1309 of 2018 & 3234 of 2019 32 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.
37. As already noticed, the compensation that has to be awarded to the surviving spouse towards spousal consortium; to the children of the deceased towards parental consortium; or to the parents of the deceased child towards filial consortium, is for loss of love and affection and such other matters. In such circumstances, once the surviving spouse is awarded compensation towards spousal consortium; or the children of the deceased are awarded compensation towards parental consortium; or the parents of the deceased child are awarded compensation towards filial consortium, they are not entitled for MACA Nos.1309 of 2018 & 3234 of 2019 33 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.
38. 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 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 MACA Nos.1309 of 2018 & 3234 of 2019 34 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.
39. 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). Similarly, Rs.1,00,000/- awarded by the Tribunal towards loss of love and affection is scaled down to Rs.40,000/- and the same is granted to the 1 st appellant, the mother of the deceased, under the head filial consortium, resulting an excess payment of Rs.60,000/- (1,00,000 - 40,000).
40. As already noticed, 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 MACA Nos.1309 of 2018 & 3234 of 2019 35 loss of consortium. Therefore, the 2nd appellant, who is the sibling of the deceased, is not entitled for payment of any compensation under the head loss of consortium or loss of love and affection.
41. The Tribunal awarded Rs.1,00,000/- as compensation towards loss of estate. In view of the law laid down by the Apex Court in Pranay Sethi [(2017) 16 SCC 680], an amount Rs.15,000/- can be granted under the head loss of estate. In the result, the compensation awarded under the head loss of estate is scaled down to Rs.15,000/-, resulting an excess payment of Rs.85,000/- (1,00,000 - 15,000).
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 depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the MACA Nos.1309 of 2018 & 3234 of 2019 36 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 at the place of accident itself. Considering the said fact, the compensation awarded by the Tribunal towards pain and suffering of the deceased is scaled down to Rs.5,000/-, resulting an excess payment of Rs.45,000/- (50,000 - 5,000).
45. Towards transportation to hospital, the Tribunal awarded a sum of Rs.20,000/-. The accident is of the year 2009. The accident occurred at Nangiarkulangara. The deceased, who succumbed to the injuries at the place of accident itself, was taken to General Hospital, Haripad. After postmortem, his dead body was taken to Azhidathuchira at MACA Nos.1309 of 2018 & 3234 of 2019 37 Thiruvalla. The compensation awarded by the Tribunal under the above head cannot be said to be on the lower side, which requires no enhancement in this appeal.
46. The Tribunal awarded a sum of Rs.2,000/- under the head damage to clothing. The accident occurred in the year 2009. The compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal.
47. In the result, the total compensation awarded by the Tribunal in O.P.(M.V)No.190 of 2012 is scaled down as Rs.19,33,000/- (Rupees Nineteen lakh and thirty three thousand only) [21,33,000 - (10,0000 + 60,000 + 85,000 + 45,000)] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3rd respondent insurer (appellant in M.A.C.A.No.1309 of 2019) shall satisfy the said amount of compensation, together with interest, after deducting the liability, if any, of the claimants towards Balance Court Fee and Legal Benefit Fund. The disbursement of the amount of compensation to the claimants shall be made taking note of the law on the point and in terms MACA Nos.1309 of 2018 & 3234 of 2019 38 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 claimants shall provide their Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer.
48. Before parting with these appeals, this Court consider it necessary to refer to the orders dated 05.03.2020 and 13.03.2020 passed in M.A.C.A.No.1309 of 2018. The said appeal was filed by the insurer on 28.05.2018, challenging the award of the Tribunal dated 31.10.2017 in O.P.(MV) No.190 of 2012. The said appeal was filed along with C.M.Appln.No.1 of 2018 seeking an order to condone the filing delay of 89 days. On 07.06.2019, this Court issued notice to the respondents/claimants in C.M.Appln.No.1 of 2018. Notice in C.M.Application was served on the respondents in July, 2019. Thereafter, C.M.Application was brought up before the Bench only on 24.02.2020, on which date the matter was adjourned MACA Nos.1309 of 2018 & 3234 of 2019 39 to 05.03.2020. On that date, the learned counsel for the respondents/claimants submitted that, though the claimants have filed E.P.No.3 of 2019 in O.P.(MV).No.190 of 2012, in January, 2019, the Tribunal is adjourning the execution petition, in view of the pendency of M.A.C.A.No.1309 of 2018 filed by the insurer. Therefore, by the order dated 05.03.2020, Registry was directed to get a report from the Tribunal, along with a copy of 'A' Dairy.
49. Pursuant to the order dated 05.03.2020, Registry has obtained a report from the Tribunal, which is one dated 12.03.2020. A copy of 'B' Dairy is enclosed along with that report. As per the said report, on 22.03.2019, E.P.No.3 of 2019 was posted for return of notice. On that date, the judgment debtor informed the Tribunal that an appeal is pending. Hence the case was posted to 03.08.2019. As there was no sitting on 03.08.2019, the case was adjourned to 26.10.2019. On that date, as the appeal was pending, the case was adjourned to 04.01.2020. On that date, the case was adjourned to 07.03.2020, as it was informed by the counsel for the judgment debtor that appeal is pending and the counsel MACA Nos.1309 of 2018 & 3234 of 2019 40 for the decree holder did not press for any further steps. On 07.03.2020, the case was posted to 30.05.2020 for production of stay order by the judgment debtor. In the report dated 12.03.2020, the Tribunal has also stated that, in E.A.No.26 of 2020 filed by the decree holder for attachment of the bank account of the judgment debtor, steps for garnishee notice is not taken.
50. Order XLI, Rule 5 of the Code of Civil Procedure, 1908 deals with stay by appellate court. As per sub-rule (1) of Rule 5, an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate court may for sufficient cause order stay of execution of such decree. As per Explanation to sub-rule (1), an order by the appellate court for the stay of execution of the decree shall be effective from the date of communication of such order to the court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of MACA Nos.1309 of 2018 & 3234 of 2019 41 the decree has been made by the appellate court shall, pending the receipt from the appellate court of the order for the stay of execution or any order to the contrary, be acted upon by the court of first instance.
51. In Madan Kumar Singh v. District Magistrate, Sultanpur [(2009) 9 SCC 79] the Apex Court held that, it is trite to say that mere filing of a petition, appeal or suit would by itself not operate as stay until specific prayer in this regard is made and orders thereon are passed.
52. In Inderchand Jain (dead) through L.R.s v. Motilal (dead) through L.R.s [(2009) 14 SCC 663], the Apex Court held that Order XLI, Rule 5(1) of the Code of Civil Procedure, 1908 stipulates that filing of an appeal would not amount to automatic stay of execution of the decree. The law acknowledges that during the pendency of the appeal, it is possible for the decree holder to get the decree executed.
53. In view of the provisions under Order XLI, sub-rule (1) of Rule 5 of the Code of Civil Procedure and the law laid down by the Apex Court in Madan Kumar Singh and Inderchand Jain, mere filing of an appeal would by itself not MACA Nos.1309 of 2018 & 3234 of 2019 42 operate as stay until specific prayer in this regard is made and orders thereon are passed by the appellate court. During the pendency of the appeal, it is possible for the decree holder to get the decree executed. In view of the provisions under Explanation to sub-rule (1) of Rule 5 of the Code of Civil Procedure, an order by the appellate court for the stay of execution of the decree shall be effective only from the date of communication of such order to the court of first instance. However, pending the receipt from the appellate court of the order for stay of execution, an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the appellate court shall be acted upon by the court of first instance. Therefore, the Motor Accidents Claims Tribunal shall not adjourn the execution petition, on mere pendency of an appeal before the appellate court or on an oral submission of the judgment debtor or his counsel that that an order for the stay of execution of the award has been made by the appellate court.
54. In the instant case, O.P.(MV)No.190 of 2012 arises out of a motor accident which occurred on 30.08.2009, MACA Nos.1309 of 2018 & 3234 of 2019 43 resulting in the death of the son of the 1 st claimant and brother of the 2nd claimant. In the claim petition filed on 29.2.2012, the Tribunal passed an award on 31.10.2017. In E.P.No.3 of 2019, the Tribunal issued notice to the judgment debtor on 22.01.2019. On 22.03.2019, the judgment debtor informed the Tribunal about the pendency of M.A.C.A.No.1309 of 2018 before this Court. Based on that submission, the execution petition is being adjourned for the last one year. Though M.A.C.A.No.1309 of 2018 was filed on 28.05.2018, along with C.M.Appln.No.1 of 2018 to condone the filing delay, the said application was brought up before the Bench only on 07.06.2019 for issuing notice to the respondents/claimants. Though notice was served on the respondents in July, 2019, the said application was brought up before the Bench only on 24.02.2020.
55. The Motor Accidents Claims Tribunals shall take necessary steps to ensure that the just and reasonable compensation awarded to the victims in motor accidents or the legal representatives of the victims are disbursed to them within a reasonable time. In an execution petition filed by MACA Nos.1309 of 2018 & 3234 of 2019 44 victims or their legal representatives, the Tribunals are not expected to grant repeated adjournments on account of mere pendency of an appeal filed by the judgment debtor before the appellate court or on oral submission of the judgment debtor or his counsel that, an order for the stay of execution of the award has been made by the appellate court.
In the result, M.A.C.A.No.1309 of 2018 filed by the insurer, the 3rd respondent in O.P.(MV)No.190 of 2012, is disposed of by scaling down the total compensation awarded by the Tribunal as Rs.19,33,000/-; and M.A.C.A.No.3234 of 2019 filed by the claimants for enhanced compensation is dismissed. No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE AV