Subramanian, F/O. Deceased Geetha v. Mohandas, S/o. Ittaman
2020-02-20
ANIL K.NARENDRAN
body2020
DigiLaw.ai
JUDGMENT : This appeal is one filed under Section 173 of the Motor Vehicles Act, 1988 challenging the award dated 15.07.2014 of the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV)No.326 of 2010. The appellants are the claimants in O.P.(MV)No.326 of 2010, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Geetha, daughter of appellants 1 and 2 and mother of appellants 3 and 4, in a motor accident which occurred on 24.11.2009, while she was riding a scooter bearing registration No.KL-45/8798. At the place of accident, the scooter was hit by a car bearing registration No.KL-45/D-111, owned and driven by the 1st respondent, and insured with the 2nd respondent. In the accident, she sustained fatal injuries, who succumbed to the injuries on the date of accident itself. Alleging that the accident occurred due to rash and negligent driving of the car by the 1st respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.10,00,000/-under various heads. The 3rd respondent before the Tribunal is husband of the deceased, who obtained Ext.A15 award from the Lok Adalat, Thrissur, whereby the matrimonial disputes were settled on payment of the amount mentioned in the award. On payment of that amount, both parties have agreed to file a joint petition under Section 13B of the Hindu Marriage Act, 1955 for divorce on mutual consent. 2. Before the Tribunal, the 1st respondent owner-cum-driver of the car and the 3rd respondent, husband of the deceased remained absent and they were set ex parte. The 2nd respondent insurer filed written statement admitting the policy coverage of the car involved in the accident; however, denying negligence alleged against the 1st respondent driver. The insurer pointed out that, at the time of accident, the deceased was riding the scooter without wearing any protective headgear and that, she died due to head injury. 3. Before the Tribunal, Exts.A1 to A15 were marked on the side of the claimants and the 3rd appellant was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by the 1st respondent driver.
The respondents have not chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by the 1st respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 2nd respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.6,62,500/-[wrongly stated as Rs.6,87,500/-in the award, which was later corrected as Rs.6,62,500/- by the order dated 25.11.2014 in I.A.No.4045 of 2014] together with interest at the rate 7.5% per annum from the date of petition, i.e., from 23.04.2010, till realisation, with proportionate cost and directed the 2nd respondent insurer [wrongly stated as 3rd respondent' in the operative portion of the award] to satisfy the award. The amount of compensation was ordered to be apportioned among the claimants in the ratio stated in the operative portion of the award. 5. Dissatisfied with the quantum of compensation 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 2nd respondent insurer. 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 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.
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 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; Sl. No. Head of claim Amount claimed (in Rs.) Amount awarded (in Rs.) Basis-vital details in a nutshell 1 Transport to hospital 3,000 2,000 2 Damage to clothing 2,000 500 3 Funeral expenses 5,000 25,000 4 Pain and suffering 10,000 5,000 5 Loss of dependency 9,50,000 6,30,000 (5,250 X 12 X 15 X 2/3) 6 Loss of love and affection 30,000 Total 10,00,000 Rs.6,62,500/-(wrongly shown as Rs.6,87,500/-in the award) interest at the rate of 7.5% p.a. from 23.04.2010 till realisation. 11. The accident occurred on 24.11.2009. At the time of accident, the deceased was aged 37 years. It was claimed that, at the time of accident, the deceased who was a beautician by profession was earning a monthly income of Rs.15,000/-, who was running Amrutha Herbal Beauty Parlour at Kodungallur.
11. The accident occurred on 24.11.2009. At the time of accident, the deceased was aged 37 years. It was claimed that, at the time of accident, the deceased who was a beautician by profession was earning a monthly income of Rs.15,000/-, who was running Amrutha Herbal Beauty Parlour at Kodungallur. As discernible from 'summary of claims' in paragraph 8 of the award, the Tribunal took the monthly income of the deceased as Rs.5,250/-, for the purpose of assessing compensation under the head loss of dependency. 12. The document marked as Ext.A7 is a certificate dated 03.11.2001 issued by Kerala Vocational Training Centre for Human Resources and Development, Kodungallur certifying that the deceased had completed 6 months training programme in 'Beauty Culture'. The document marked as Ext.A8 is the vocational certificate issued by National Open School, certifying that the deceased had completed and passed 6 months vocational course in the trade 'Beauty Culture' at Kerala Vocational Training Centre for Human Resources and Development, Kodungallur, in October, 2001. 13. The document marked as Ext.A9 is the permanent registration granted to Amrutha Herbal Beauty Parlour, Kodungallur, on 29.06.2006, under SSI Registration Scheme, with permanent registration No.320703158. Certificate of registration, which forms part of Ext.A9, is signed by the Manager, District Industries Centre, Thrissur. As evident from Ext.A9, the deceased was running the beauty parlour in a rented premises in Kodungallur Municipality. 14. The document marked as Ext.A10 is the certificate of registration issued to Amrutha Herbal Beauty Parlour, Kodungallur under the Kerala Shops and Commercial Establishments Act, 1960, which was valid upto 31.12.2009. In the said certificate, the number of employees is mentioned as one. The document marked as Ext.A11 is the trade licence issued by Kodungallur Municipality for running that beauty parlour, in building No.VII/545L, which was valid till 31.03.2009. 15. At the time of accident, appellants 3 and 4, the minor daughters of the deceased, were aged 15 years and 11 years respectively. Pending claim petition, the 3rd appellant attained majority, who was examined as PW1 (at the age of 19).
15. At the time of accident, appellants 3 and 4, the minor daughters of the deceased, were aged 15 years and 11 years respectively. Pending claim petition, the 3rd appellant attained majority, who was examined as PW1 (at the age of 19). She filed proof affidavit in lieu of chief examination, in tune with the averments in the claim petition, wherein she has stated that, at the time of accident, the deceased who was a qualified beautician, was running a beauty parlour on the strength of Ext.A9 SSI Registration, Ext.A10 certificate of registration and Ext.A11 trade licence, who was earning a monthly income of Rs.15,000/-. During cross examination, nothing could be brought out to discredit the version of PW1 that, at the time of accident, the deceased was running a beauty parlour. 16. The document marked as Ext.A15 is a copy of the award dated 09.10.2009 passed by the Lok Adalat, Thrissur in O.P.No.51 of 2009 and 421 of 2009 on the file of the Family Court, Thrissur relating to the matrimonial disputes between the deceased and her husband, the 3rd respondent herein. As seen from Ext.A15, both parties have agreed to settle the dispute and as part of that settlement, the 3rd respondent agreed to pay Rs.4,00,000/-each to appellants 3 and 4 and a further sum of Rs.2,00,000/-to the deceased. On payment of that amount, both parties have agreed to file a joint petition under Section 13B of the Hindu Marriage Act, 1955 for divorce on mutual consent. The 3rd respondent filed Ext.A12 affidavit relinquishing his claim for compensation, in favour of the appellants. 17. In Sarla Verma v. Delhi Transport Corporation [ (2009) 6 SCC 121 ], a Two-Judge Bench of the Apex Court made threadbare analysis of various issues arising before the Tribunals and High Courts in cases involving claim for award of compensation under the Motor Vehicles Act, reiterating the principles laid down in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [ (1994) 2 SCC 176 ], referred to the subsequent judgment in U.P. State Road Transport Corporation v. Trilok Chandra [ (1996) 4 SCC 362 ] and then observed 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. 18. In Sarla Verma the Apex Court held that assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. 19. In Sarla Verma the Apex Court noticed that, as laid down in Susamma Thomas, the proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and (c) number of dependants. The issues to be determined by the Tribunal to arrive at the loss of dependency are: (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal and living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. If these determinants are standardised, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. 20. In the impugned award, the Tribunal did not even advert to the evidence of PW1 or the documents placed on record to prove that, at the time of accident, the deceased was running a beauty parlour at Kodungallur, in a rented premises.
It will also be easier for the insurance companies to settle accident claims without delay. 20. In the impugned award, the Tribunal did not even advert to the evidence of PW1 or the documents placed on record to prove that, at the time of accident, the deceased was running a beauty parlour at Kodungallur, in a rented premises. A proper description of those documents finds no place in the impugned award or even in the appendix. 21. In National Insurance Co. Ltd. , North Paravur v. Sajeev and others [ 2018 (1) KHC 795 ] a Division Bench of this Court held that the provisions of the Code of Civil Procedure, 1908, except those provisions made specifically applicable, do not proprio vigore apply to claim petitions before the Motor Accidents Claims Tribunals. As per Section 167 of the Motor Vehicles Act, the Tribunal acts generally as a court and vested with necessary powers under the Code of Civil Procedure in certain matters and in respect of other matters, the Tribunal is certainly bound to follow the procedure consistent with the principle of fair play, propriety and natural justice. 22. Babu P.U. v. Abraham and others [ 2019 (4) KHC 20 ], relying on the law laid down in Sajeev, this Court held that, though the provisions under the Civil Rules of Practice, Kerala are not made applicable in proceedings before the Motor Accidents Claims Tribunal, the Tribunal has to follow the procedure consistent with the principle of fair play, propriety and natural justice. In that view of the matter, it cannot be said that, when an application under Section 174 of the Motor Vehicles Act is filed by the insurer, the Tribunal can pass orders on that application, by issuing recovery certificate, without notice to the owner of the offending vehicle against whom the recovery is permitted in the award passed by the Tribunal. 23. Rule 181 of the Civil Rules of Practice, Kerala deals with form of judgment. As per sub-rule (1) of Rule 181, the judgment of the court shall be headed and drawn up as in Form No.29 and a list of the exhibits filed and witnesses examined shall be annexed thereto. As per sub-rule (2), in preparing the list of exhibits, the number of the exhibit, the date of document and the description of the document should be shown in that order.
As per sub-rule (2), in preparing the list of exhibits, the number of the exhibit, the date of document and the description of the document should be shown in that order. Where the document does not give the English date, the corresponding English date should be shown. Where the document does not bear any date it must be shown as 'dated nil'. 24. In Circular No.1/61 (No.1475/60/Printing) dated 03.01.1961 this Court has issued instructions in the preparation of exhibit list in fair judgments. As per the said circular, when appendix of exhibits to the judgment is prepared, the number of the exhibit, the date of document and the description of the document should be shown in that order and, in the case of Malayalam dates, corresponding English dates should be shown. If a particular document bears no date, against the exhibit in the appendix of the judgment, 'dated nil' should be shown, to avoid doubt whether the document actually bears a date or not. On noticing that the appendix to the judgments and orders of the subordinate courts are being prepared in a casual manner, this Court has issued Circular No.2/80 (D1-50362/79) dated 24.01.1980, whereby attention of all subordinate courts was invited to the imperative necessity of bestowing prompt attention to the preparation of judgments and orders with proper appendix. 25. The Civil Rules of Practice, Kerala regulates the procedure and practice in the subordinate civil courts in the State. Though the provisions under the Civil Rules of Practice, Kerala are not made applicable in proceedings before the Motor Accidents Claims Tribunal, the Tribunal has to follow the procedure consistent with the principle of fair play, propriety and natural justice. In that view of the matter, the award passed by the Tribunal shall contain a list of the exhibits filed and witnesses examined, annexed thereto. In preparing the list of exhibits, the number of the exhibit, the date of document and the description of the document should be shown in that order. Where the document does not give the English date, the corresponding English date should be shown. Where the document does not bear any date it must be shown as 'dated nil'. 26. In the award, the Tribunal did not focus on any materials placed on record on the side of the claimants, while fixing the notional monthly income of the deceased.
Where the document does not bear any date it must be shown as 'dated nil'. 26. In the award, the Tribunal did not focus on any materials placed on record on the side of the claimants, while fixing the notional monthly income of the deceased. The exercise undertaken by the Tribunal for taking Rs.5,250/-as the notional monthly income of the deceased is not discernible from the award, except the fact that the said figure finds a place in the 'summary of claims' at paragraph 8 of the award. The age of the deceased or even the number of dependant family members of the deceased, finds no place in the impugned award. 27. In Breen v. Amalgamated Engineering Union [1971 (1) All. E.R. 1148] Lord Denning, M.R. observed that, the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120] it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. 28. In Chairman and Managing Director, United Commercial Bank v. R.C. Kakkar [ (2003) 4 SCC 364 ], following the principle laid down in the decisions referred to above, the Apex Court held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 29. In Woolcombers of India Ltd. v. Woolcombers Workers Union [ (1974) 3 SCC 318 ] the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947 held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons.
First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions. 30. In Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers [ (2010) 4 SCC 785 ] the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion, showing proper application of mind. Violation of either of them could, in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction. 31. In the impugned award, the Tribunal has stated no reasons for taking the notional monthly income of the deceased as Rs.5,250/-(who was a qualified beautician conducting her own beauty parlour at Kodungallur, in a rented premises, after obtaining necessary registration, licence, etc. from statutory authorities) as against the monthly income of Rs.15,000/-claimed in the claim petition.
31. In the impugned award, the Tribunal has stated no reasons for taking the notional monthly income of the deceased as Rs.5,250/-(who was a qualified beautician conducting her own beauty parlour at Kodungallur, in a rented premises, after obtaining necessary registration, licence, etc. from statutory authorities) as against the monthly income of Rs.15,000/-claimed in the claim petition. The Tribunal, in the matter of assessment of compensation under the head loss of dependency, has to take note of the age of the deceased; the income of the deceased; and also the number of dependants, as established by the claimants. Then the Tribunal has to arrive at the compensation payable under the head loss of dependency by determining the additions/deductions to be made for arriving at the income of the deceased; the deduction to be made towards the personal and living expenses of the deceased; and the multiplier to be applied with reference to the age of the deceased. A reading of the impugned award would not show any such exercise undertaken by the Tribunal while fixing the compensation under the head loss of dependency. 32. An award passed by the Tribunal (which acts generally as a court and vested with necessary powers under the Code of Civil Procedure in certain matters), in a claim petition seeking compensation on account of death or injury in a motor accident, should give reason for arriving at any conclusion, showing proper application of mind. An award passed by the Tribunal, which does not disclose the reasons, will be of little assistance to this Court exercising appellate jurisdiction under Section 173 of the Motor Vehicles Act. In an appeal filed against such an award, this Court will have to wade through the entire records, in order to find out whether the decision in appeal is right or wrong. Such an award virtually makes the appellate jurisdiction of this Court nugatory and ineffective, inasmuch as, an award passed in a mechanical exercise of power will be of little assistance to this Court while analysing the reasoning essential to such a decision.
Such an award virtually makes the appellate jurisdiction of this Court nugatory and ineffective, inasmuch as, an award passed in a mechanical exercise of power will be of little assistance to this Court while analysing the reasoning essential to such a decision. At any rate, this Court cannot countenance the casual approach by the Tribunal in deciding the issues raised in a claim petition filed by the victim or the legal representatives of the victim, seeking 'just and reasonable' compensation, thereby leaving the parties and also the Appellate Court in total darkness to find out what could be the reasoning of the Tribunal essential to such an award. Therefore, this Court in the strongest words deprecate the causal approach made by the Tribunal in the impugned award, while dealing with a claim made by the legal representatives of the deceased, among whom two were her minor daughters. 33. 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 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. 34. In Syed Sadiq v. Divisional Manager, United India Insurance Co.
34. 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 Rs.6,500/- per month. 35. In Ramachandrappa the Apex Court reckoned the monthly income of a coolie (manual labourer) aged 35 years, who met with a road accident in the year 2004, as Rs.4,500/-. In Syed Sadiq, taking note of the earlier decision in Ramachandrappa, the Apex Court reckoned the monthly income of a vegetable vendor aged 24 years, who met with a road accident in the year 2008, as Rs.6,500/-. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2009, and taking note of the fixation of notional monthly income by the Apex Court in Ramachandrappa and Syed Sadiq, the monthly income of a coolie (manual labourer) or a labourer in an unorganised sector doing his own business as vegetable vendor, fruit vendor, etc., who met with a road accident in the year 2009, can be reckoned as Rs.7,000/-, even in the absence of any documents to prove his monthly income. 36. In the instant case, at the time of accident, the deceased was a qualified beautician, who was running a beauty parlour on the strength of Ext.A9 SSI Registration, Ext.A10 certificate of registration and Ext.A11 trade licence, in a rented premises in Kodungallur Municipality.
36. In the instant case, at the time of accident, the deceased was a qualified beautician, who was running a beauty parlour on the strength of Ext.A9 SSI Registration, Ext.A10 certificate of registration and Ext.A11 trade licence, in a rented premises in Kodungallur Municipality. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2009, and taking note of the fixation of notional monthly income by the Apex Court in Ramachandrappa and Syed Sadiq, and also the oral testimony of PW1 and the documents place on record as Exts.A7, A9, A10 and A11, the notional monthly income of the deceased is re-fixed as Rs.9,000/-, for the purpose of assessing compensation under various heads. 37. 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 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. 38.
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. 38. 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. 39. 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 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. 40.
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. 40. In the instant case, at the time of accident, the deceased was aged 37 years. It was claimed that, at the time of accident, the deceased was earning monthly income as beautician. The Tribunal fixed the monthly income of the deceased notionally as Rs.5,250/-. In the impugned award, the Tribunal did not add anything to the notional monthly income of the deceased, towards future prospects. 41. As already noticed, at the time of accident, the deceased was a self-employed. In view of the law laid down by the Apex Court in Pranay Sethi, an addition of 40% of the notional monthly income of the deceased, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in Ramachandrappa and in Syed Sadiq referred to supra, can be made towards future prospects, since the deceased was aged below 40. 42. 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.9,000/-, i.e., a sum of Rs.3,600/-(9,000 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.12,600/-(9,000 + 3,600). 43. 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.
43. In Sarla Verma [ (2009) 6 SCC 121 ], the Apex Court, after referring to its earlier decisions in Kerala State Road Transport Corporation v. Susamma Thomas [ (1994) 2 SCC 176 ], U.P. State Road Transport Corporation v. Trilok Chandra [ (1996) 4 SCC 362 ] and New India Assurance Co. Ltd. v. Charlie [ (2005) 10 SCC 720 ] held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying Susamma Thomas, Trilok Chandra and Charlie], which starts with an operative multiplier of 18 [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of 17 for 26 to 30 years, multiplier of 16 for 31 to 35 years, multiplier of 15 for 36 to 40 years, multiplier of 14 for 41 to 45 years, and 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. 44. 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. 45. In the instant case, as on the date of accident, the deceased was aged 37 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 15 applied by the Tribunal is correct and proper. 46. 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.
46. 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 dependent 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 dependents, 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 dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger 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. 47. 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.
47. 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 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. 48. 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. 49. In the instant case, at the time of accident, the deceased was aged 37 years with a family consisting of 3 dependants. The 1st appellant, father of the deceased, cannot be treated as her dependent, in the absence of evidence. In the light of the decisions of the Apex Court in Sarla Verma, Reshma Kumari and Pranay Sethi referred to supra, deduction of 1/3rd of the notional monthly income of the deceased towards his personal and living expenses is perfectly legal. 50. Towards loss of dependency, the Tribunal awarded a sum of Rs.6,30,000/-(5,250 x 12 x 15 x 2/3).
In the light of the decisions of the Apex Court in Sarla Verma, Reshma Kumari and Pranay Sethi referred to supra, deduction of 1/3rd of the notional monthly income of the deceased towards his personal and living expenses is perfectly legal. 50. Towards loss of dependency, the Tribunal awarded a sum of Rs.6,30,000/-(5,250 x 12 x 15 x 2/3). In this appeal, the notional monthly income of the deceased has already been re-fixed as Rs.9,000/-. Adding 40% of the notional monthly income of the deceased towards future prospects (9,000 + 3,600 = 12,600); deducting 1/3rd towards the personal and living expenses of the deceased; and applying the multiplier of 15, the compensation under the head loss of dependency is re-fixed as Rs.15,12,000/-(12,600 x 12 x 15 x 2/3), resulting an additional compensation of Rs.8,82,000/-(15,12,000 – 6,30,000). 51. In the impugned award, towards funeral expenses, the Tribunal awarded a sum of Rs.25,000/-. The Tribunal awarded no compensation under the heads loss of love and affection and loss of estate. 52. 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. 53. In Pranay Sethi [ (2017) 16 SCC 680 ] the Constitution Bench of the Apex Court held that the head relating to loss of care and guidance for minor children does not exist. Though Rajesh refers to Santosh Devi v. National Insurance Company Limited [ (2012) 6 SCC 421 ], it does not seem to follow the same. The conventional and traditional heads cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The Court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the Tribunals and Courts are likely to be unguided.
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 been 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. 54. In Santosh Devi v. Mahaveer Singh [ (2018) 9 SCC 146 ] a Three-Judge Bench of the Apex Court granted compensation on conventional heads, in terms of the figures standardised by the Constitution Bench in the year 2017, in Pranay Sethi, to the wife and children of one Puran Chand, who died in a motor accident, which occurred on 30.12.1992. 55. 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 the present appeal. xxx xxx xxx 14.
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”) 56. In Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130], after referring to the decision in Pranay Sethi, the Apex Court held that in legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of 'company, society, co-operation, affection, and aid of the other in every conjugal relation'. Parental consortium is granted to the child upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training'. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An 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. 57. 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.
57. In Magma General Insurance the Apex Court held that consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In a case where parents have lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of 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. 58. In Magma General Insurance, the deceased was aged 24 years, who was engaged in the business of manufacturing 'namkeen products', who died in a motor accident which occurred on 01.12.2013. The father, brother and sister of the deceased filed claim petition under Section 166 of the Motor Vehicles Act. The Claims Tribunal did not award any compensation to the brother of the deceased, as he could not be considered to be a dependent. Compensation was awarded to the father and unmarried sister of the 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 multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/-(Rs.50,000/-x 2) towards loss of love and affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependants, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependant. The grant of Rs.1,00,000/-on account of loss of love and affection, and Rs.25,000/-towards funeral expenses is erroneous. It was contended that only Rs.30,000/-could have been awarded as per the judgment in Pranay Sethi. [i.e., loss of estate -Rs.15,000/-and funeral expenses – Rs.15,000/-] The Apex Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an unmarried sister, the High Court correctly considered them to be dependents 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, 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. 59.
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. 59. 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. 60. In view of the law laid down by the Apex Court in Magma General Insurance Company Ltd., after referring to the decision in Pranay Sethi, the surviving spouse is entitled for spousal consortium; children of the deceased are entitled for parental consortium; and parents of a deceased child, who died in a motor accident, are entitled for filial consortium. The amount of compensation that has to be awarded will be governed by the principles of awarding compensation under the head loss of consortium, as laid down in Pranay Sethi. 61. In Indian Bank v. ABS Marine Products (P) Ltd. [ (2006) 5 SCC 72 ] one of the contentions raised was that, any direction issued by the Apex Court in exercise of power under Article 142 of the Constitution of India to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by that Court under Article 141. It was also pointed out that, other Courts do not have the power similar to that conferred on the Apex Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. The Apex Court left open that question, observing as follows; "Though there appears to be some merit in the first respondent's submission, we do not propose to examine that aspect." Though the said question was left open, the Apex Court observed as follows in Para.26 of the judgment; "26. …....
The Apex Court left open that question, observing as follows; "Though there appears to be some merit in the first respondent's submission, we do not propose to examine that aspect." Though the said question was left open, the Apex Court observed as follows in Para.26 of the judgment; "26. ….... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the 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. …..." 62. In State of Punjab v. Rafiq Masih [ (2014) 8 SCC 883 ] a Three-Judge Bench of the Apex Court affirmed the view taken in ABS Marine Products' case (supra) holding that, the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras.11 to 13 of the judgment read thus; "11.
Paras.11 to 13 of the judgment read thus; "11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. 12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the Statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. 'Declaration of Law' as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of Indian Bank v. ABS Marine Products (P) Ltd. [ (2006) 5 SCC 72 ], Ram Pravesh Singh v. State of Bihar [ (2006) 8 SCC 381 ] and in State of U.P. v. Neeraj Awasthi [ (2006) 1 SCC 667 ], has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by 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 Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case. 13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment." 63. 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. 64. 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.
64. 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. 65. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; and filial consortium to the parents of the deceased child laid down by the Apex Court in Magma General Insurance Company Ltd. does not speak anything as to the right of siblings to get compensated under the head loss of consortium. In Magma, after noticing the fact that the mother of the deceased had pre-deceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was contributing a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/-as compensation to unmarried sister of the deceased under the head filial consortium, after maintaining the compensation (Rs.50,000/-x 2) awarded by the High Court towards loss of love and affection, which can only be treated as a direction issued by the Apex Court in exercise of its powers under Article 142 of the Constitution of India to do proper 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. 66. In view of the law laid down by the Apex Court in Pranay Sethi and Magma General Insurance Company Ltd. referred to supra, Rs.25,000/-awarded by the Tribunal in the impugned award towards funeral expenses is scaled down to Rs.15,000/-, resulting an excess payment of Rs.10,000/-(25,000 – 15,000). Appellants 1 and 2, the parents of the deceased, are granted Rs.80,000/-(40,000 x 2) under the head filial consortium; and appellants 3 and 4, the children of the deceased, are granted Rs.80,000/-(40,000 x 2) under the head parental consortium.
Appellants 1 and 2, the parents of the deceased, are granted Rs.80,000/-(40,000 x 2) under the head filial consortium; and appellants 3 and 4, the children of the deceased, are granted Rs.80,000/-(40,000 x 2) under the head parental consortium. 67. 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. 68. The Tribunal awarded Rs.5,000/-as compensation towards pain and suffering of the deceased. 69. 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 awarded under the head pain and suffering in such cases. 70. In the instant case, the deceased succumbed to the injuries on the date of accident itself. Considering the said fact, the compensation of Rs.5,000/-awarded by the Tribunal towards pain and suffering of the deceased represents just and reasonable compensation, which requires no enhancement in this appeal. 71. Towards transportation to hospital the Tribunal awarded a sum of Rs.2,000/-. Towards damage to clothing the Tribunal awarded a sum of Rs.500/-. The accident is of the year 2009. The deceased succumbed to the injuries on the date of accident itself. The compensation awarded by the under the head transportation to hospital represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head damage to clothing is re-fixed as Rs.1,000/-, resulting an additional compensation of Rs.500/-( 1,000 - 500). 72.
The deceased succumbed to the injuries on the date of accident itself. The compensation awarded by the under the head transportation to hospital represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head damage to clothing is re-fixed as Rs.1,000/-, resulting an additional compensation of Rs.500/-( 1,000 - 500). 72. In the result, the appellants/claimants are entitled for payment of an additional compensation of Rs.10,47,500/-(Rupees ten lakhs forty seven thousand five hundred only) [(8,82,000 + 80,000 + 80,000 + 15,000 + 500) -(10,000)] 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 appellants 1 to 2 under the head filial consortium and that granted to appellants 3 to 4 under the head parental consortium shall be apportioned among the appellants in the ratio 10:10:40:40. The 2nd respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the 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/claimants shall provide their Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, 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.