Kerala High Court
M.B.Samadh vs Mr.Binu on 27 January, 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
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
MACA.No.2296 OF 2013(C)
AGAINST THE AWARD IN OP(MV)NO.1560/2008 DATED 18-01-2013 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANTS/PETITIONERS:
1 M.B.SAMADH
AGED 51 YEARS
S/O.BEERAVUNNI, RESIDING AT 16/1094, MUNDETHODAN
VEETTIL, OPP.CHURCH OF GOD, PARIPPU JUNCTION, COCHIN-
5.
2 SEENA SAMADH
AGED 49 YEARS
W/O.SAMADH, RESIDING AT 16/1094, MUNDETHODAN VEETTIL,
OPP.CHURCH OF GOD, PARIPPU JUNCTION, COCHIN-5.
3 SHEEJA M.S.
AGED 29 YEARS
D/O.SAMADH, RESIDING AT 16/1094, MUNDETHODAN VEETTIL,
OPP.CHURCH OF GOD, PARIPPU JUNCTION, COCHIN-5.
BY ADV. SRI.N.M.MOHAMMED AYUB
RESPONDENTS/RESPONDENTS:
1 MR.BINU
AGED ABOUT 36 YEARS
S/O.VARGHESE, MANJOORAN HOUSE, CHUNANGAMVELI,
ERUMATHALA P.O., PIN 683112, ALUVA.
2 K.A.SHAJI
AGED 46 YEARS
S/O.MUHAMMED ALIYAR, KUNNUMPURATH HOUSE, EAST OF
KAKKADASSERY BRIDGE, PADINJARE PUNNAMATTAM,
ERANALLOOR P.O., PIN 686673, ERNAKULAM DISTRICT.
3 THE ORIENTAL INSURANCE CO.LTD.
DIVISIONAL OFFICE, POTTAMANA BUILDINGS, PUMP
JUNCTION, RAILWAY STATION ROAD, ALUVA P.O., PIN
683101, REPRESENTED BY ITS MANAGER.
MACA No.2296 of 2013(C) 2
4 THE UNITED INDIA INSURANCE CO.LTD.
VETTUKATTIL BUILDINGS, M.G.ROAD, ERNAKULAM,
M.G.ROAD P.O., RAVIPURAM.P.O, PIN 682016,
REPRESENTED BY ITS MANAGER.
R3 BY ADV. SRI.RAJAN P.KALIYATH
R4 BY ADV. K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.2296 of 2013(C) 3
"CR"
JUDGMENT
The appellants are the claimants in O.P.(MV)No.1560 of 2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Shine @ Shiny, daughter of appellants 1 and 2 and sister of the 3 rd appellant, in a motor accident which occurred on 13.07.2007, while she was riding a scooter bearing registration No.KL-07/BC-2403 with her brother Sadath as pillion rider. At the place of accident, on seeing a motorcycle overtaking through the left side, the deceased rider turned the scooter to the right side. The scooter accidentally hit on the central median of M.G.Road. The rider and the pillion rider fell down, on the other side of the central median, who were ran over by a bus bearing registration No.KL-07/AQ-1939 owned by the 1 st respondent, driven by the 2nd respondent and insured with the 3rd respondent. In the accident, both the rider and pillion rider sustained fatal injuries, who died on the spot. Alleging that the accident occurred due to rash and MACA No.2296 of 2013(C) 4 negligent driving of the bus by the 2 nd respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.6,21,000/- under various heads, which was limited to Rs.5,00,000/- for the purpose of payment of court fee.
2. Before the Tribunal, the 1 st respondent owner and the 2nd respondent driver of the bus remained absent and they were set ex parte. The 3 rd respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; however, denying the negligence alleged against the 2nd respondent driver. The insurer contended that the accident occurred due to the negligence on the part of the deceased in riding the scooter. At the time of accident, the 2nd respondent driver was not holding a valid driving licence and badge and therefore, the insurer is not liable to indemnify the insured. The insurer contended further that the compensation claimed is highly excessive.
3. The 4th respondent insurer filed written statement admitting insurance coverage of the scooter involved in the accident, however denying the negligence alleged against the deceased, who was riding that scooter. They disputed MACA No.2296 of 2013(C) 5 the liability to pay compensation, by contending that the accident occurred due to the sole negligence of the 2 nd respondent driver of the bus.
4. Before the Tribunal, the claim petition was tried along with connected case. Exts.A1 to A9 were marked and PW1 was examined on the side of the claimants. The respondents have not chosen to adduce any oral or documentary evidence.
5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the bus by the 2nd respondent driver and also on account of contributory negligence on the part of the deceased. The Tribunal fixed negligence between the 2 nd respondent and the deceased in the ratio 50:50. Since the 3 rd respondent insurer failed to prove the alleged violation of the conditions of policy, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.6,53,000/- and after deducting 50% based on the finding on the question of contributory negligence, the claimants are found entitled for a sum of MACA No.2296 of 2013(C) 6 Rs.3,26,500/-, together with interest at the rate 8% per annum from the date of petition, i.e., from 30.07.2008, till the date of realisation, with proportionate cost and directed the 3rd respondent insurer to satisfy the award. The amount of compensation was ordered to be apportioned among the claimants, equally.
6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads and also the finding of the Tribunal on the question of contributory negligence, the appellants/claimants are before this Court in this appeal.
7. Heard the learned counsel for the appellants/ claimants and also the respective Standing Counsel for respondents 3 and 4.
8. The issues that arise for consideration in this appeal is as to whether the appellants are entitled for enhancement of the compensation awarded by the Tribunal under various heads; and whether the finding of the Tribunal on the question of contributory negligence can be sustained in law.
9. The document marked as Ext.A2 is the charge sheet in Crime No.4692/07 of Kochi City Traffic Police Station, MACA No.2296 of 2013(C) 7 registered in connection with the accident in question. The police, after investigation, charge sheeted the 2 nd respondent driver of the bus for an offence punishable under Sections 279 and 304A of the Indian Penal Code, 1860. As per Ext.A2, at the place of accident, on seeing a motorcycle overtaking through the left side, the deceased rider turned the scooter to the right side. The scooter accidentally hit on the central median of M.G.Road. The rider and the pillion rider fell down, on the other side of the central median, who were ran over by the bus driven by the 2nd respondent. The document marked as Ext.A8 is the scene mahazar. At the time of accident, the deceased was riding the scooter through M.G.Road, from south to north, through the western lane of the road. The accident spot is 45cms east of the central median. The deceased ride and pillion rider, who were lying on the eastern side of the central median, were ran over by the bus driven by the 2 nd respondent.
10. In the impugned award, the Tribunal held that, even if the motorcycle had overtaken through the left side, it was not necessary for the deceased rider to turn the MACA No.2296 of 2013(C) 8 scooter to the right side, since the road was having sufficient width for free movement of two vehicles. PW1, an occurance witness in Ext.A2 charge sheet, gave evidence to the effect that the accident occurred since the 2 nd respondent was driving the bus in a rash and negligent manner, in over speed, overtaking other vehicles. The Tribunal did not disbelieve the oral testimony of PW1. However, in the impugned award, the Tribunal observed that, even if the the 2nd respondent was driving the bus negligently, the accident could not have occurred if the deceased was riding the scooter slowly and carefully. The Tribunal noticed that, no case was registered against the rider of the motorcycle, which allegedly overtook the scooter through its left side. Therefore, the Tribunal concluded that the accident occurred due to the negligence of the 2 nd respondent driver of the bus and contributory negligence on the part of the deceased rider of the scooter. The Tribunal fixed negligence between the 2 nd respondent driver and the deceased rider in the ratio 50:50.
11. It is stated in Ext.A2 charge sheet that, the bus driven by the 2nd respondent was proceeding through MACA No.2296 of 2013(C) 9 M.G.Road, from north to south, through the eastern lane of the road, in a rash and negligent manner, in over speed, overtaking other vehicles. The bus ran over the deceased rider and pillion rider, who were lying on the eastern side of the central median, 45cms east of that median. Therefore, it is evident that, at the time of accident, the 2 nd respondent was driving the bus, which is a heavy vehicle/speed restricted vehicle in the 'right lane' of the carriage way on the eastern side of M.G.Road. PW1, an occurance witness in Ext.A2 charge sheet, has also deposed that, at the time of accident, the 2nd respondent was driving the bus in a rash and negligent manner, in over speed, overtaking other vehicles.
12. In exercise of the powers conferred by Section 118 of the Motor Vehicles Act, 1988 the Central Government made Rules of the Road Regulations, 1989, which came into force with effect from 01.07.1989. As per Regulation 2, the driver of a motor vehicle shall drive the vehicle as close to the left side of the road as may be expedient and shall allow all traffic which is proceeding in the opposite direction to pass on his right hand side. As per Regulation 6, overtaking MACA No.2296 of 2013(C) 10 is prohibited in certain cases. As per clause (a) of Regulation 6, the driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself, if his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction.
13. It is pertinent to note that, in exercise of the powers conferred by Section 118 of the Motor Vehicles Act, 1988 and supersession of the Rules of the Road Regulations, 1989 the Central Government made the Motor Vehicles (Driving) Regulations, 2017 for the driving of motor vehicles, which came into force with effect from 23.06.2017. Regulation 4 of the said Regulations deals with use of roads by vehicles. As per clause (5) of Regulation 4, a heavy vehicle or speed restricted vehicle shall be driven in the left lane on a carriageway with several lanes in one direction, except when overtaking an obstruction or a slower moving vehicle. As per the proviso to clause (5), the driver shall return to the left lane as soon as he is safely past the obstruction or the slower moving vehicle, as the case may be. The said provisions have no application in the instant case, since the accident occurred on 13.07.2007. MACA No.2296 of 2013(C) 11
14. In New India Assurance Company Ltd. v.
Pazhaniammal and others [2011 (3) KHC 595] a Division Bench of this Court held that, as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunal should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. Wherever, on the facts of a given case, the Tribunal feels that the police charge sheet does not satisfy its judicial conscience, the Tribunal can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged MACA No.2296 of 2013(C) 12 negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet. Paragraphs 7 and 8 of the said decision read thus;
"7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to MACA No.2296 of 2013(C) 13 adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.
8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet."
15. In N.K.V. Bros. (P) Ltd. v. Karumai Ammal MACA No.2296 of 2013(C) 14 [(1980) (3) SCC 457] the Apex Court held that Motor Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Tribunals should not succumb to niceties, technicalities and mystic maybes.
16. In Kusum Lata v. Satbir [(2011) 3 SCC 646] the Apex Court held that, in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.
17. In Parameshwari v. Amir Chand [(2011) 11 SCC 635] the Apex Court reiterated that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In Parameshwari, the Apex Court had taken note of the observation made in its earlier decision in Bimla Devi v. Himachal Road Transport Corporation [(2009) 13 SCC 530] that, the claimants were merely to establish their case on the touchstone of preponderance of probability MACA No.2296 of 2013(C) 15 and that standard of proof beyond reasonable doubt could not have been applied.
18. In Sherin J. Thankom v. Thankom and others [2014 (3) KLT 44] a Division Bench of this Court held that, in deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive at or decide things necessary to be decided for awarding compensation.
19. In view of the law laid down in Pazhaniammal, the production of Ext.A2 charge sheet filed in Crime No.4692/07 of Kochi City Traffic Police Station, registered in connection with the motor accident in question, in which the 2nd respondent driver of the bus was charge sheeted for an offence punishable under Section 279 and Section 304A of the Indian Penal Code, is prima facie sufficient evidence of negligence on his part, for the purpose of a claim under MACA No.2296 of 2013(C) 16 Section 166 of the Motor Vehicles Act.
20. As evident from Ext.A2 charge sheet, at the place of accident, the bus driven by the 2 nd respondent was proceeding through the eastern lane of M.G.Road, within the city limits, in a rash and negligent manner, in over speed, overtaking other vehicles. The 2 nd respondent was driving the bus, which is a heavy vehicle/speed restricted vehicle in the 'right lane' of the carriage way on the eastern side of M.G.Road. PW1, an occurance witness in Ext.A2 charge sheet, has also deposed that, at the time of accident, the 2 nd respondent was driving the bus in a rash and negligent manner, in over speed, overtaking other vehicles. When the standard of proof required in a claim petition filed under Section 166 of the Motor Vehicles Act is much below than what is required in a criminal case as well as in a civil case, the Tribunal went wrong in concluding that there is contributory negligence on the part of the deceased rider to an extent of 50%. While arriving at such a conclusion, the Tribunal discarded the prima facie evidence of negligence on the part of the 2nd respondent driver of the bus, let in by the claimants by way of production of Ext.A2 charge sheet and MACA No.2296 of 2013(C) 17 also the oral testimony of PW1, an occurrence witness in Ext.A2 charge sheet. The Tribunal did not even disbelieve the oral testimony of PW1.
21. Before the Tribunal, the 1st respondent owner and the 2nd respondent driver of the bus remained absent and they were set exparte. The 3 rd respondent insurer has not chosen to adduce any oral or documentary evidence. Therefore, in the absence of any evidence to the contra, the Tribunal ought to have held that the accident occurred solely due to the rash and negligent driving of the bus by the 3 rd respondent driver. In such circumstances, the finding to the contra in the impugned award is set aside, by holding that the accident occurred solely due to the rash and negligent driving of the bus by the 2nd respondent driver.
22. Now the remaining issue to be considered is as to whether the compensation awarded by the Tribunal under various heads represents just and reasonable compensation.
23. 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 MACA No.2296 of 2013(C) 18 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.
24. 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 MACA No.2296 of 2013(C) 19 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.
25. In the instant case, the compensation awarded by the Tribunal under various heads reads thus;
Heads Amount Amount
claimed awarded
in Rs. in Rs.
Transport to hospital 5000 1000
and back to home
Damage to clothes and 3000 500
articles
Medical expenses 3000 0 No bills
Compensation for 15000 7500
funeral expenses
Compensation for pain 25000 15000
and sufferings
undergone by the
MACA No.2296 of 2013(C) 20
deceased before his
death
Compensation for 100000 0
short expectation
Compensation for 100000 0
mental agony
Compensation for loss 100000 25000
of love and affection
Compensation for loss 270000 5,04,000 36000 x
of dependency 14
Total claim limited to 621000 6,53,000 - (deduction
Rs.5,00,000/- 3,26,500 of 50%)
3,26,500
26. The accident occurred on 13.07.2007. At the time of accident, the deceased was a bachelor aged 24 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.5,000/- as Supervisor in Bharati Airtel Ltd. No materials were placed before the Tribunal to prove the monthly income of the deceased. None of the appellants have chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income of the deceased notionally as Rs.4,000/-.
27. 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, MACA No.2296 of 2013(C) 21 notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time.
28. 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 MACA No.2296 of 2013(C) 22 the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning Rs.6,500/- per month.
29. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2007, 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.
30. 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 MACA No.2296 of 2013(C) 23 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, 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 MACA No.2296 of 2013(C) 24 that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.
31. 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 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.
32. 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 MACA No.2296 of 2013(C) 25 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 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.
33. In the instant case, at the time of accident, the deceased was a bachelor aged 24 years. It was claimed that, at the time of accident, the deceased was earning monthly income as Supervisor in Bharati Airtel Ltd. The Tribunal fixed the monthly income of the deceased MACA No.2296 of 2013(C) 26 notionally as Rs.4,000/-. In the impugned award, relying on the decisions in Santhosh Devi v. National Insurance Company Ltd. [2012 ACJ 1428] and New India Assurance Company Ltd. V. Gopali & Others [2012 ACJ 2131], the Tribunal added 50% of the notional monthly income of the deceased towards future prospects.
34. As already noticed, no reliable materials were placed before the Tribunal to show that, at the time of accident, the deceased had a permanent job. Therefore, the deceased can only be treated as on fixed salary. 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. The addition of 50% of the notional monthly income of the deceased towards future prospects, made in the impugned award of the Tribunal, relying on the decision in Santhosh MACA No.2296 of 2013(C) 27 Devi cannot be sustained, in view of the law laid down in Pranay Sethi.
35. 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).
36. 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 MACA No.2296 of 2013(C) 28 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.
37. 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.
38. In the instant case, as on the date of accident, the deceased was aged 24 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 14 applied by the Tribunal is not correct and the proper multiplier to be applied is 18 .
MACA No.2296 of 2013(C) 29
39. 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 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 MACA No.2296 of 2013(C) 30 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.
40. 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 MACA No.2296 of 2013(C) 31 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.
41. 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 MACA No.2296 of 2013(C) 32 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.
42. In the instant case, at the time of accident, the deceased was an unmarried girl aged 24 years. In the light of the 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.
43. Towards loss of dependency, the Tribunal awarded a sum of Rs.5,04,000/- (6,000 x 12 x 14 x 1/2). 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); deducting 50% towards the personal and living expenses of the deceased; and applying the multiplier of 18, the compensation under the head loss of dependency is re-fixed as Rs.7,56,000/- (7,000 x 12 x 18 x 1/2), resulting an additional compensation of Rs.2,52,000/- (7,56,000 - 5,04,000).
MACA No.2296 of 2013(C) 33
44. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.7,500/-. Towards loss of love and affection, the Tribunal awarded a sum of Rs.25,000/-. The Tribunal awarded no compensation under the head loss of estate.
45. 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.
46. In Pranay Sethi [(2017) 16 SCC 680] the Constitution Bench of the Apex Court held that the head relating to loss of care and guidance for minor children does not exist. Though Rajesh refers to Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421], it does not seem to follow the same. The conventional and traditional heads cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price MACA No.2296 of 2013(C) 34 index, fall in bank interest, escalation of rates in many a field have to be noticed. The Court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the Tribunals and Courts are likely to be unguided. Therefore, the reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact- centric or quantum-centric. The Apex Court observed that, it would be condign that the amounts that have quantified as above should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years, which will bring in consistency in respect of those heads.
47. In Santosh Devi v. Mahaveer Singh [(2018) 9 SCC 146] a Three-Judge Bench of the Apex Court granted MACA No.2296 of 2013(C) 35 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.
48. In Sureshchandra Bagmal Doshi v. New India Assurance Company Limited [(2018) 15 SCC 649] the Apex Court granted the figures on conventional heads standardised by the Constitution Bench in the year 2017, in Pranay Sethi, i.e., Rs.15,000/- as loss of estate; Rs.40,000/- towards loss of consortium; and Rs.15,000/- as funeral expenses to the parents [appellants before the Apex Court], who lost their only daughter in a motor accident which occurred on 16.08.1998. In the said decision, Rs.40,000/- granted in Pranay Sethi towards loss of consortium was granted to the appellants, who are the parents of the deceased, towards loss of love and affection. Paragraphs 1 and 14 of the said decision read thus;
"1. Fate can be cruel. This is a tragic case where the only daughter of a lawyer husband and a doctor wife, MACA No.2296 of 2013(C) 36 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"
49. 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 MACA No.2296 of 2013(C) 37 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.
50. 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 MACA No.2296 of 2013(C) 38 of the compensation awarded in the case of the death of a child. Most jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In a case where parents have lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Motor Vehicles Act. The Apex Court held further that, the amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'loss of consortium' as laid down in Pranay Sethi.
51. 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, MACA No.2296 of 2013(C) 39 brother and sister of the deceased filed claim petition under Section 166 of the Motor Vehicles Act. The Claims Tribunal did not award any compensation to the brother of the deceased, as he could not be considered to be a dependent. Compensation was awarded to the father and unmarried sister of the deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that the Claims Tribunal used the wrong principle for application of multiplier. The multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/- (Rs.50,000/- x 2) towards loss of love and 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 MACA No.2296 of 2013(C) 40 Rs.1,00,000/- on account of loss of love and affection, and Rs.25,000/- towards funeral expenses is erroneous. It was contended that only Rs.30,000/- could have been awarded as per the judgment in Pranay Sethi. [i.e., loss of estate - Rs.15,000/- and funeral expenses - Rs.15,000/-] The Apex Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an unmarried sister, the High Court correctly considered them to be dependants of the deceased, and made a deduction of 1/3 rd towards personal expenses of the deceased. [Para.16 @ page 135 of SCC] The Apex Court found that the deceased was a bachelor, whose mother had pre-deceased him. The father of the deceased was about 65 years old and his sister was unmarried. The 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 MACA No.2296 of 2013(C) 41 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.
52. 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.
53. In view of the law laid down by the Apex Court in MACA No.2296 of 2013(C) 42 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.
54. 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 MACA No.2296 of 2013(C) 43 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 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. ......"
55. In State of Punjab v. Rafiq Masih [(2014) 8 SCC 883] a Three-Judge Bench of the Apex Court affirmed MACA No.2296 of 2013(C) 44 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 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 MACA No.2296 of 2013(C) 45 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 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 MACA No.2296 of 2013(C) 46 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."
56. 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 MACA No.2296 of 2013(C) 47 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.
57. 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 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.
58. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the MACA No.2296 of 2013(C) 48 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 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.
59. In view of the law laid down by the Apex Court in Pranay Sethi and Magma General Insurance Company MACA No.2296 of 2013(C) 49 Ltd. referred to supra, Rs.7,500/- awarded by the Tribunal in the impugned award towards funeral expenses is enhanced to Rs.15,000/-, resulting an additional compensation of Rs.7,500/- (15,000 - 7,500); Rs.25,000/- awarded towards loss of love and affection is re-fixed as Rs.80,000/- (40,000 x 2) and the same is granted under the head filial consortium to appellants 1 and 2, who are the parents of the deceased, resulting an additional compensation of Rs.55,000/- (80,000 - 25,000).
60. 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 loss of consortium. Therefore, the 3rd 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.
61. The Tribunal awarded no compensation towards loss of estate. In view of the law laid down by the Apex MACA No.2296 of 2013(C) 50 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.
62. The Tribunal awarded a sum of Rs.15,000/- as compensation towards pain and suffering of the deceased.
63. 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 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 MACA No.2296 of 2013(C) 51 awarded under the head pain and suffering in such cases.
64. In the instant case, the deceased succumbed to the injuries on the spot of accident. Considering the said fact, the compensation awarded by the Tribunal towards pain and suffering of the deceased is scaled down to Rs.10,000/-, resulting an excess payment of Rs.5,000/- (15,000 - 10,000).
65. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. The accident is of the year 2007. The compensation awarded by the Tribunal under this head is re-fixed as Rs.2,500/-, resulting an additional compensation of Rs.1,500/- (2,500 - 1,000).
66. The Tribunal awarded no amount towards damage to clothing. Considering the fact that the accident is of the year 2007, this Court deem it appropriate to grant a sum of Rs.1,000/- under this head.
67. The finding of contributory negligence on the part of the deceased to an extent of 50% in the impugned award has already been set aside in this appeal, by holding that the accident occurred solely due to the rash and negligent driving of the bus by the 2nd respondent driver. In such MACA No.2296 of 2013(C) 52 circumstances, the appellants are entitled for payment of the balance compensation awarded by the Tribunal amounting to Rs.3,26,500/- (6,53,000 - 3,26,500), which will carry interest at the rate of 8% per annum from the date of petition till realisation.
In the result, the appellants/claimants are entitled for payment of an additional/balance compensation of Rs.6,53,500/- (Rupees six lakhs fifty three thousand and five hundred only) [(2,52,000 + 7,500 + 55,000 + 15,000 + 1,500 + 1,000 + 3,26,500) - 5,000] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The additional/balance compensation granted in this appeal, excluding that granted to appellants 1 and 2 under the head filial consortium shall be apportioned among the appellants/claimants 1 to 3 in the ratio 45:45:10. 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 MACA No.2296 of 2013(C) 53 disbursement of additional/balance compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellants shall provide their Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer within one month from the date of certified copy of this judgment.
This appeal is disposed of as above. No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE AV