Shriram General Insurance Company Ltd. vs Smt. Asha Devi & Others

This Miscellaneous Appeal under Section 173(1) of the Motor Vehicles Act has been filed against the Award dated 17th May, 2013 passed by Motor Accident Claims Tribunal, Bhind in Claim Case No.32/2012, thereby awarding a compensation of Rs.6,25,000/-.

It is submitted by the counsel for the appellant that he is confining his argument to the quantum of compensation. Accordingly, this Court is not required to mention the facts of the case except that at about 16:45 deceased Kushal Singh met with a vehicular accident on 06/07/2012 on Bhind- Lahar Road and lost his life. He was coming on his Tractor and his tractor was dashed by offending vehicle bearing Registration No.UP75-J-9516.

The claimants/respondents No.1 to 6 preferred a claim petition under Section 166 of Motor Vehicles Act for grant of compensation.

The Claims Tribunal, after recording the evidence of both the parties, came to a conclusion that the personal expenses of the deceased must be 1/4th. His yearly income was assessed as Rs.60,000/- and after deducting 1/4th of the income towards personal expenses, it was held that the yearly loss of income was Rs.45,000/- and after applying multiplier of 13, it was held that the claimants are entitled for the compensation of Rs.5,85,000/- under the head of loss of income. Since the respondent No.1 has lost her husband, therefore, an amount of Rs.15,000/- was awarded towards loss of consortium and the respondents No.2 to 4 were awarded Rs.5,000/- each towards loss of love and affection. An amount of Rs.5,000/- was awarded towards funeral expenses.

It is submitted by the counsel for the appellant that since the respondents No.2 to 4/claimants No.2 to 4 were major sons of the deceased, therefore, it cannot be said that they were dependent upon the deceased and further, the sons of the deceased were not entitled for compensation for loss of love and affection.

Per contra, the counsel for the respondents No.1 to 6 has supported the Award passed by the Claims Tribunal.

So far as the question as to whether the major and earning sons of the deceased are treated to be the legal representatives of the deceased or not, is no more res integra.

The Supreme Court in the case of  National Insurance Company Limited vs. Birender and Others, by order dated 13th January, 2020 passed in Civil Appeal Nos.242- 243 of 2020 has held as under:-

''13. Reverting to the first issue - that needs to be answered on the basis of the scheme of the Act. Section 166 of the Act provides for filing of application for compensation by persons mentioned in clauses (a) to (d) of sub- section section (1) thereof. Section 166 of the Act, as applicable at the relevant time, reads thus:-

"Section 166. Application for compensation.-(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3) ***

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act."

(emphasis supplied)

The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:-

"9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.

.....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.

According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g) .

As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique[1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representatives". As observed in Gujarat SRTC v. Ramanbhai Prabhabhai [(1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."

In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.

It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.''

It is not the case of the appellant that the respondents No.2 to 4 had independent income. Accordingly, the first contention of the counsel for the appellant that the respondents No.2 to 4 were not entitled for compensation for the reason that the respondents No.2 to 4 are major sons of the deceased cannot be accepted and, therefore, the personal expenses of the deceased were rightly taken as 1/4th.

It is next contended by the counsel for the appellant that the Claims Tribunal should not have awarded Rs.5,000/- each to the respondents No.2 to 4 towards loss of love and affection. This question is also no more res integra.

The Supreme Court in the case of The New India Assurance Company Limited vs. Smt. Somwati and Ors. by order dated 07th September, 2020 passed in Civil Appeal No. 3093 of 2020, has held as under:-

''32. A two-Judge Bench in Magma General Insurance Company Limited awarded the amount of Rs.40,000/- to father and sister of the deceased. Paragraph 24 is as follows:-

"24. 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 (supra) . In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium."

A three-Judge Bench in United India Insurance Company Ltd. versus Satinder Kaur alias Satvinder Kaur and others, (2020) SCC Online 410, had reaffirmed the view of two-Judge Bench in Magma General insurance Company Ltd. Three-Judge Bench from paragraph 53 to 65, dealt with three conventional heads. The entire discussion on three conventional heads of three-Judge Bench is as follows: -

"53. In Pranay Sethi (supra), the Constitution Bench held that in death cases, compensation would be awarded only under three conventional heads viz. loss of estate, loss of consortium and funeral expenses.

The Court held that 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, which has to be based on a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration.

The Court held that 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 Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads.

a) Loss of Estate - Rs. 15,000 to be awarded

b) Loss of Consortium

Loss of Consortium, in legal parlance, was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately.The concept of nonpecuniary damage for loss of consortium is one of the major heads for awarding compensation in various jurisdictions such as the United States of America, Australia, etc. English courts have recognised the right of a spouse to get compensation even during the period of temporary disablement.

In Magma General Insurance Co. Ltd. v. Nanu Ram & Ors., 12 this Court interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as well as 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.

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 and affection, and their role in the family unit.

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 permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.

The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of 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 the children who lose the care and protection of their parents in motor vehicle accidents.

The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).

At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.

In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.

The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.

c) Funeral Expenses - Rs. 15,000 to be awarded"

The Three-Judge Bench in the above case approved the comprehensive interpretation given to the expression 'consortium' to include spousal consortium, parental consortium as well as filial consortium. Three- Judge Bench however further laid down that 'loss of love and affection' is comprehended in 'loss of consortium', hence, there is no justification to award compensation towards 'loss of love and affection' as a separate head.

The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards 'loss of love and affection' which have been now further reiterated by three- Judge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head 'loss of love and affection'.

The word 'consortium' has been defined in Black's law Dictionary, 10th edition. The Black's law dictionary also simultaneously notices the filial consortium, parental consortium and spousal consortium in following manner:-

"Consortium 1. The benefits that one person, esp. A spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium.

*Filial consortium A child's society, affection, and companionship given to a parent.

*Parental consortium A parent's society, affection and companionship given to a child.

*Spousal consortium A spouse's society, affection and companionship given to the other spouse."

The Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd. (Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), 'consortium' to all the three claimants was thus awarded. Paragraph 87 is quoted below:-

"87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:-

i) Loss of Estate: Rs. 15,000

ii) Loss of Consortium:

a) Spousal Consortium: Rs. 40,000

b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000

iii) Funeral Expenses: Rs. 15,000"

Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium.The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the 'loss of consortium' but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife.

The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable.

We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head 'loss of love and affection'. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head 'loss of love and affection'.''

Thus, it is clear that compensation under the head of loss of love and affection cannot be awarded to the children and parents of the deceased but compensation under the head of loss of consortium can be awarded to the parents and children of the deceased. The Claims Tribunal has awarded Rs.5,000/- each to the respondents No. 2 to 4 under the head of loss of love and affection, therefore, it is held that in place of love and affection the amount of Rs.5,000/-awarded to the respondents No.2 to 4 would be treated as compensation for loss of consortium. Since the respondents No.2 to 6 claimants have not filed any appeal or cross-objection for enhancement of compensation under the conventional head, therefore, the Award dated 17th May, 2013 passed by Motor Accident Claims Tribunal, Bhind in Claim Case No.32/2012, is maintained without any modification.

Accordingly, this miscellaneous appeal fails and is hereby dismissed.