Since the deceased was not a bachelor at the time of his death, the parents would not be entitled to claim any filial consortium, but is entitled to compensation in other conventional heads

Harshit Sharma | Amity Law School, Madhya Pradesh | 9th January 2020

IFFCO Tokio General Insurance Co. Ltd. V/s. Jyoti Ajay Avatade & Ors. FIRST APPEAL NO.1239 OF 2016

FACTS OF THE CASE

1. The present case pertains to that of the original claim by the present respondent no. 1 to 5 against the respondent no.6 (the negligent driver of offending vehicle) & the present appellant.
2. On 6th February, 2012, at about 7.00 p.m., the said deceased was proceeding on his motorcycle bearing registration No.MH – 13 AW 5393 towards his village Dongaon. When he reached near Mahadev Swami Wasti, one Maruti Van bearing registration No.MH – 13 N-7917 came from the opposite direction in rash and negligent manner and gave dash to the motorcycle of the said deceased. The said deceased fell down and sustained severe injuries and succumbed to the said injuries in the hospital.
3. The respondent nos.1 to 5 filed the claim application and claimed Rs.50.00 lacs from the respondent no.6, who was the owner of the offending vehicle and the appellant. The respondent no.6 failed to file any written statement. The appellant however, filed its written statement and resisted the claim petition contending that the said deceased himself was driving his motorcycle in rash and negligent manner. There was breach of the terms and conditions of the policy availed by the respondent no.6 from the appellant and thus the appellant was not liable to pay any compensation to the respondent nos.1 to 5.
4. It is held by the Tribunal that the said deceased had not contributed any negligence while driving his motorcycle. The Tribunal awarded the compensation in the sum of ₹25,42,000/- with interest at the rate of 9% p.a. from the date of application till realization.
5. The appellant has impugned the said judgment and award dated 3^rd December, 2012 in this First Appeal before the Bombay High Court.

ISSUES RAISED

1. Whether there was contributory negligence on the part of the deceased?
2. Whether the quantum of the claim awarded by the Tribunal is appropriate and the basis is just?
3. What are the criteria for the evaluation of the income of an agriculturist and how it is to be distributed & calculated?
4. Whether the filial consortium be provided in the present case and under what heads does the compensation falls, in the instant matter?

RULING OF THE COURT/ THE COURT HELD THAT

Not finding any infirmity in the impugned judgment and order of the Ld. Tribunal except in the head of loss of love & affection, estate etc, the following was observed

1. “In so far as the filial consortium claimed by the respondent nos. 1 to 5 is concerned, in my view, since the said deceased was not a bachelor at the time of his death, the parents would not be entitled to claim any filial consortium.”
2. “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 The Motor Vehicles Act is a benecial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has 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.”
3. “In case of death of agriculturist, the loss of heirs is that they are required to engage another person for cultivating the land. Thus, charges or remuneration of other person is in fact the loss or can be said to be dependency,”

Thus, the following directions were given:

1. The appellant is liable to pay the amount of compensation of Rs.25,12,500/- with interest @ 9% p.a. from the date of application till realization of the total amount.
2. In so far as the share of the respondent nos. 2 and 3 who are minor is concerned, their 2/5th share shall be invested in the Fixed Deposit of any Nationalized Bank till the period they attain the age of majority.
3. The respondent nos. 1 to 5 would be entitled to recover the decretal amount awarded by the Tribunal as modified by this judgment from the amount deposited by the appellant before the Tribunal.
4. First Appeal is disposed of on aforesaid terms, modifying the Tribunal’s Order by this judgment.