Mohanbhai Shankarbhai Nizama v. Ramanbhai Vishiyabhai Rathwa
2024-03-11
GITA GOPI
body2024
DigiLaw.ai
JUDGMENT : GITA GOPI, J. 1. The appeal is challenging judgment dated 31.1.2011 passed by the MACT (Aux), Vadodara in MACP No. 433/04. 2. Advocate Mr. Hiren Modi for the claimants submitted that the deceased was going as a pillion rider on the scooter who was a promising young boy aged 19 years who had a very good career as he had already completed F.Y. B.Com and was studying in S.Y. B.Com. He had also entered the National Fire Academy and necessary fees as tuition fees as well as for accommodation was paid and National Fire Academy had issued the certificate dated 15.3.2004 to substantiate the fact of the deceased being a bonafide fireman trainee in the academy. Advocate Mr. Modi submitted that the notional income has been considered at Rs. 1,500/- which would be degrading the status of the deceased who was a trainee in the Fire Academy. Advocate Mr. Modi also stated that consortium loss was required to be granted to the parents and amount for loss to estate and funeral expenses ought to have been as per the decision in the case of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680 . 3. Per contra, Advocate Ms. Ami Bhatt for the insurance company submitted that the deceased had not even completed his graduation and he had only taken the admission in the Fire Academy and nothing has come on record to show that he would have completed his course and hence, submitted that in absence of any surety of future development, notional income as assessed by the Tribunal should be considered as reasonable. 4. Facts of the case as noted by the Tribunal are to the effect that on 15/16.2.2004 at about 1.00 a.m. the deceased was going along with Dilipbhai Mangalbhai on scooter bearing registration no. GJ-6-FF-573 as a pillion rider and were heading from Panigate to Ajwa road. They were on the correct side of the road and were on moderate speed. During that time, when they came near four lane at Mahavir Hall, one truck bearing registration no. GJ-2-X-1260 came from the north to south direction in full speed and the opponent no. 1 was driving the vehicle in a rash and negligent manner and dashed the scooter. As a result of the force, the scooter was dragged for about 20 ft.
GJ-2-X-1260 came from the north to south direction in full speed and the opponent no. 1 was driving the vehicle in a rash and negligent manner and dashed the scooter. As a result of the force, the scooter was dragged for about 20 ft. and due to the injuries sustained, Dilipbhai died on the spot, while the pillion rider of the present matter died while he was taken to SSG Hospital, Vadodara. 5. The Tribunal has considered the educational certificate and marksheets, however, failed to appreciate the documents produced on record by list at S. Nos. 11 to 14, where by paying heavy tuition fees, hostel fees, catering charges, admission has been taken at National Fire Academy and the academy had also issued a certificate dated 15.3.2004. The deceased was pursuing his career as a Fireman. The Tribunal thus has erred in assessing the income of the deceased on notional basis. This Court considers that the accident is of the year 2004. The income in proportion should commensurate the educational qualifications as well as the career to be pursued by the person and hence, accordingly, Rs. 4,500/- is considered to be the income of the deceased. His age was 19 at the time of death and hence, 40% prospective rise in income is considered and as he died unmarried, half of the amount would be deducted for personal expenses and his income would have been considered as Rs. 3,150/- (Rs. 4,500/- + 40% = Rs. 1,800/- = Rs. 6,300/- - 50% = Rs. 3,150/-). 6. Considering annually the amount with multiplier of 18, loss of dependency would come to Rs. 6,80,400/- (Rs. 3,150/- x 12 x 18). 7. Both the parents have lost their son and hence, they are entitled for the loss of consortium. 8. In the case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and Others, (2018) 18 SCC 130 , it has been observed as under: “8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’ or ‘parental consortium’ and ‘filial consortium’.
One of these heads is Loss of Consortium. In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’ or ‘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. [Rajesh and Others vs. Rajbir Singh and Others, (2013) 9 SCC 54 ] 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.” BLACK'S LAW DICTIONARY (5th Ed. 1979) 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. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized 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 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. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.” 9.
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. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.” 9. In accordance to the decision in the case of Magma General Insurance Company Limited (supra), each appellant would be entitled for amount of Rs. 40,000/- and hence, under the head of consortium loss, an amount of Rs. 80,000/- is granted. 10. The amount of Rs. 15,000/- is paid for funeral loss and loss to estate as laid down in the case of Pranay Sethi (supra). Hence, the computation is as under: Loss of dependency Rs. 6,80,400/- Loss of consortium Rs. 80,000/- Loss to estate Rs. 15,000/- Funeral expenses Rs. 15,000/- Total compensation Rs. 7,90,400/- 11. As the Tribunal has granted compensation of Rs. 1,45,000/- with interest at the rate of 7.5% per annum, the claimants would be entitled to the enhanced amount of compensation of Rs. 6,45,400/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The enhanced amount is directed to be deposited within eight weeks from the date of receipt of writ of this Court. After deposit of the said amount, let both the parents receive the amount in equal proportion on verification of the identity. 12. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.