Kerala High Court
Sulochana vs K.Kannan on 14 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
TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941
MACA.No.1396 OF 2010
AGAINST THE AWARD IN OP(MV)NO.698/2005 DATED 28-12-2009 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANTS/PETITIONERS:
1 SULOCHANA, W/O.LATE SUBRAN
CHEMBAKASSERY HOUSE, AYKKARAKUNNU PO,, VELUKKARA
VILLAGE, MUKUNDAPURAM TALUK.
2 SUNITHA D/O.LATE SUBRAN
CHEMBAKASSERY HOUSE, AYKKARAKUNNU PO, VELUKKARA
VILLAGE, MUKUNDAPURAM TALUK.
3 GOPAKUMAR, S/O.LATE SUBRAN
CHEMBAKASSERY HOUSE, AYKKARAKUNNU PO, VELUKKARA
VILLAGE, MUKUNDAPURAM TALUK.
4 VELAYUDHAN, CHEMBAKASSERY HOUSE, AYKKARAKUNNU PO,
VELUKKARA VILLAGE, MUKUNDAPURAM TALUK.
5 THANKAMMA W/O.VELAYUDHAN
CHEMBAKASSERY HOUSE, AYKKARAKUNNU PO, VELUKKARA
VILLAGE, MUKUNDAPURAM TALUK.
BY ADV. SRI.P.V.BABY
RESPONDENTS/RESPONDENTS 5 TO 7:
1 K.KANNAN, S/O.MUTHUSWAMI,25 A, GANDHIPURAM III
STREET,, ERODE DISTRICT, TAMILNADU.
2 E.MARIAPPAN, S/O.ERUSAPPAN, 15/82A, KALLIKALIMEDU,
GANDHIPURAM,, K.N.PALAYAM, BHAVAVANI DISTRICT.
3 THE NATIONAL INSURANCE CO.LTD
PALANIAPPA COMPLEX, METTUR ROAD, ERODE, TAMIL NADU.
R3 BY ADV. SRI.E.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
14.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA.No.1396 OF 2010
2
JUDGMENT
The appellants are the claimants in O.P.(MV)No.698 of 2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Subran, husband of 1st appellant, father of appellants 2 and 3 and son of appellants 4 and 5, in a motor accident which occurred on 27.03.2005, while he was travelling on a motorcycle bearing registration No.KL-8/Z- 2976 as pillion rider. At the place of accident, the motorcycle happened to knock down a couple, who carelessly crossed the road. In the accident, the rider and pillion rider fell down with the motorcycle and they were run over by a tanker lorry bearing registration No.TN-37/D-8625 owned by the 1 st respondent, driven by the 2nd respondent and insured with the 3rd respondent herein. Respondents 1 to 3 before the Tribunal are the legal heirs of the deceased rider and 8 th respondent before the Tribunal was the insurer of the motorcycle. In the accident, the rider and pillion rider sustained fatal injuries, who succumbed to the injuries at MACA.No.1396 OF 2010 3 the place of accident itself. Alleging that the accident occurred due to rash and negligent driving of the tanker lorry by the 6th respondent driver and the rider of the motorcycle on which the deceased was a pillion rider, claim petition was filed before the Tribunal, claiming a total compensation of Rs.5,00,000/- under various heads.
2. Before the Tribunal, the owner and driver of the tanker lorry remained absent and they were set ex parte. The legal heirs of the deceased rider of the motorcycle, filed written statement contending that the accident occurred due to the negligence on the part of the couple who crossed road and the rider and pillion rider on the motorcycle happened to be run over by the lorry due to the rash and negligent driving of the tanker lorry by its driver, which came through wrong side. They pointed out that insurance policy of the motorcycle is a comprehensive policy covering the risk of the pillion rider also. The insurer of the motorcycle filed written statement admitting the insurance policy of the said vehicle; however denying negligence alleged against its rider. They contended that the accident occurred due to the negligence MACA.No.1396 OF 2010 4 on the part of the driver of the tanker lorry.
3. Before the Tribunal, the claim petition was tried along with connected case. Exts.A1 to A11 were marked on the side of the claimants. Exts.B1 and B2 were marked on the side of the respondents. Both sides have not chosen to adduce any oral evidence.
4. After considering the pleadings and materials on record; though charge sheet was submitted by the police against the rider of the motorcycle, relying on the Ext.A4 scene mahazar, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the tanker lorry by the 2nd respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3rd respondent insurer was held liable to indemnify the 1st respondent insured. Under various heads, the Tribunal awarded a total compensation of Rs.2,51,000/- together with interest at the rate 7% per annum from the date of petition, till the date of deposit, with proportionate cost and directed the 3rd respondent insurer to satisfy the award.
5. Dissatisfied with the quantum of compensation MACA.No.1396 OF 2010 5 awarded by the Tribunal under various heads, the appellants/claimants are before this Court in this appeal.
6. Heard the learned counsel for the appellants/ claimants and also the learned Standing Counsel for the 3 rd respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2nd respondent is dispensed with.
7. The issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under various heads.
8. 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 MACA.No.1396 OF 2010 6 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.
9. 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 MACA.No.1396 OF 2010 7 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.
10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus;
Head of claim Amount awarded in rupees
Dependency compensation 2,08,000/-
Pain and suffering 5,000/-
Loss of love and affection 15,000/-
Loss of consortium 20,000/-
Funeral expense 3,000/-
Total 2,51,000/-
11. The accident occurred on 27.03.2005. At the time of accident, the deceased was aged 48 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.6,000/- as fish vendor. None of the appellants have chosen to mount the box to prove the MACA.No.1396 OF 2010 8 monthly income of the deceased. In the absence of any reliable materials, the Tribunal fixed the monthly income of the deceased notionally as Rs.2,000/-.
12. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a 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 MACA.No.1396 OF 2010 9 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.
13. In Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], taking note of the earlier decision in Ramachandrappa's case (supra), the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month.
14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of MACA.No.1396 OF 2010 10 accident, i.e., during the year 2005, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the deceased notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads.
15. 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, 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 MACA.No.1396 OF 2010 11 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.
16. 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 MACA.No.1396 OF 2010 12 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.
17. 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 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 MACA.No.1396 OF 2010 13 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.
18. In the instant case, at the time of accident, the deceased was aged 48 years. It was claimed that, at the time of accident, the deceased was earning monthly income as fish vendor. The Tribunal fixed the monthly income of the deceased notionally as Rs.2,000/-. In the impugned award, the Tribunal did not add anything to the notional monthly income of the deceased, towards future prospects.
19. 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 self-employed. In view of the law laid down by the Apex Court in Pranay Sethi, an MACA.No.1396 OF 2010 14 addition of 25% 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 between the age of 40 to 50 years.
20. Therefore, for the purpose of re-fixing the compensation under the head loss of dependency, 25% of the monthly income of the deceased notionally re-fixed in this appeal as Rs.5,000/-, i.e., a sum of Rs.1,250/- (5,000 x 25/100) 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.6,250/- (5,000 + 1,250).
21. 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 MACA.No.1396 OF 2010 15 Corporation v. Trilok Chandra [(1996) 4 SCC 362] and New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720] held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying Susamma Thomas, Trilok Chandra and Charlie], which starts with an operative multiplier of 18 [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of 17 for 26 to 30 years, multiplier of 16 for 31 to 35 years, multiplier of 15 for 36 to 40 years, multiplier of 14 for 41 to 45 years, and multiplier of 13 for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of 11 for 51 to 55 years, multiplier of 9 for 56 to 60 years, multiplier of 7 for 61 to 65 years and multiplier of 5 for 66 to 70 years.
22. 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 MACA.No.1396 OF 2010 16 judgment.
23. In the instant case, as on the date of accident, the deceased was aged 48 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 13 applied by the Tribunal is correct and proper.
24. 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 MACA.No.1396 OF 2010 17 assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, 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 MACA.No.1396 OF 2010 18 contribution to the family will be taken as two-third.
25. 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 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 MACA.No.1396 OF 2010 19 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.
26. 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.
27. In the instant case, at the time of accident, the deceased was aged 48 years with a family consisting of 4 dependants. The 4th appellant, father of the deceased cannot be treated as a dependant. In the light of the decisions of the Apex Court in Sarla Verma, Reshma Kumari and Pranay Sethi referred to supra, deduction of 1/4th of the notional monthly income of the deceased towards his MACA.No.1396 OF 2010 20 personal and living expenses alone is possible. Therefore, the Tribunal went wrong in deducting 1/3 rd of the notional monthly income towards the personal and living expenses of the deceased.
28. Towards loss of dependency, the Tribunal awarded a sum of Rs.2,08,000/- (2,000 x 12 x 13 x 2/3). In this appeal, the monthly income of the deceased has already been re-fixed as Rs.5,000/-. Adding 25% of the notional monthly income of the deceased towards future prospects (5,000 + 1,250 = 6,250); deducting 1/4th towards the personal and living expenses of the deceased; and applying the multiplier of 13, the compensation under the head loss of dependency is re-fixed as Rs.7,31,250/- (6,250 x 12 x 13 x 3/4), resulting an additional compensation of Rs.5,23,250/- (7,31,250 - 2,08,000).
29. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.3,000/-. Towards loss of consortium the 1st appellant is awarded a sum of Rs.20,000/-. Towards loss of love and affection, the Tribunal awarded a sum of Rs15,000/-. The Tribunal MACA.No.1396 OF 2010 21 awarded no compensation under the head loss of estate.
30. 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.
31. 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. MACA.No.1396 OF 2010 22 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.
32. 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 MACA.No.1396 OF 2010 23 Pranay Sethi, to the wife and children of one Puran Chand, who died in a motor accident, which occurred on 30.12.1992.
33. 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, 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 MACA.No.1396 OF 2010 24 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"
34. 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, MACA.No.1396 OF 2010 25 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.
35. 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 MACA.No.1396 OF 2010 26 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.
36. 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 MACA.No.1396 OF 2010 27 the deceased, as he could not be considered to be a dependent. Compensation was awarded to the father and unmarried sister of the deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that the Claims Tribunal used the wrong principle for application of multiplier. The multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/- (Rs.50,000/- x 2) towards loss of love and affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependants, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependant. The grant of Rs.1,00,000/- on account of loss of love and affection, and Rs.25,000/- towards funeral expenses is erroneous. It was MACA.No.1396 OF 2010 28 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 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, MACA.No.1396 OF 2010 29 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.
37. 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.
38. In view of the law laid down by the Apex Court in MACA.No.1396 OF 2010 30 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.
39. 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, MACA.No.1396 OF 2010 31 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 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. ......"
40. 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 MACA.No.1396 OF 2010 32 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 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 MACA.No.1396 OF 2010 33 declaration of law. 'Declaration of Law' as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72], Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 381] and in State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667], has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the 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 MACA.No.1396 OF 2010 34 first two judgments and the latter judgment."
41. In Magma General Insurance Company Ltd., the Apex Court maintained the compensation awarded by the High Court at the rate of Rs.50,000/- to the father and unmarried sister of the deceased towards loss of love and affection. However, the compensation under the head funeral expenses was decreased from Rs.25,000/- to Rs.15,000/-, after quoting para 52 of the decision in Pranay Sethi. After explaining the concept of spousal consortium, parental consortium and filial consortium, the Apex Court awarded the father and unmarried sister of the deceased an amount of Rs.40,000/- each for loss of filial consortium.
42. 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 MACA.No.1396 OF 2010 35 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.
43. 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 MACA.No.1396 OF 2010 36 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.
44. In view of the law laid down by the Apex Court in Pranay Sethi and Magma General Insurance Company Ltd. referred to supra, Rs.3,000/- awarded by the Tribunal in the impugned award towards funeral expenses is enhanced to Rs.15,000/-, resulting an additional compensation of Rs.12,000/- (15,000 - 3,000); Rs.20,000/- awarded towards loss of consortium to the 1 st appellant is enhanced to Rs.40,000/- and the same is granted under the head spousal consortium, resulting an additional compensation of Rs.20,000/- (40,000 - 20,000); Rs.50,000/- awarded towards love and affection is re-fixed as Rs.1,60,000/- (40,000 x 4) and the same is granted under the head parental consortium to appellants 2 and 3, who are the children of the deceased, and under the MACA.No.1396 OF 2010 37 head filial consortium to appellants 4 and 5, who are the parents of the deceased, resulting an additional compensation of Rs.1,45,000 /- (1,60,000 - 15,000).
45. The Tribunal awarded no compensation towards loss of estate. In view of the law laid down by the Apex Court in Pranay Sethi [(2017) 16 SCC 680] an amount Rs.15,000/- can be granted under the head loss of estate. Accordingly, the appellants are granted a sum of Rs.15,000/- towards loss of estate.
46. The Tribunal awarded Rs.5,000/- as compensation towards pain and suffering of the deceased.
47. 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 MACA.No.1396 OF 2010 38 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.
48. In the instant case, the deceased succumbed to the injuries instantaneously. Considering the said fact, the compensation awarded by the Tribunal towards pain and suffering of the deceased is just and reasonable, which requires no enhancement in this appeal.
49. No amount has been awarded by the Tribunal towards damage to clothing. Considering the fact that the accident is of the year 2005, a sum of Rs.750/- is granted under the said head.
50. In the result, the appellants/claimants are entitled for payment of an additional compensation of Rs.7,16,000/- (Rupees Seven lakh and sixteen thousand only) [5,23,250 + 12,000 + 20,000 + 1,45 000 + 15,000 + MACA.No.1396 OF 2010 39 750] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The additional compensation granted in this appeal, excluding that granted to the 1st appellant as spousal consortium, that granted to appellants 2 and 3 under the head parental consortium and that granted to appellants 4 and 5 under the head filial consortium shall be apportioned among the appellants 1 to 3 and 5 in the ratio 50:20:20:10. The 3 rd respondent insurer (7th respondent before the Tribunal) shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellants/claimants towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellants/ claimants shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellants shall provide their Bank account details MACA.No.1396 OF 2010 40 (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment.
This appeal is disposed of as above. No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE AV/20/1