Parents Not Entitled To Claim Filial Consortium Under Motor Vehicle Act On Death Of A Married Son: Bombay HC

 

In a significant development, we saw how just recently on January 3, 2020, the Bombay High Court in exercise of its civil appellate jurisdiction in IFFCO Tokio General Insurance Co. Ltd., Branch Office, Near Naval Petrol Pump, Daffrin Chowk, Solapur

Versus

1. Smt. Jyoti Ajay Avatade, Age 30 years, Occupation: Household,

2. Aryan Ajay Avatade, Age 5 years, Occupation: Nil

3. Anuj Ajay Avatade, Age 2 years, Occupation: Nil

4. Pandharinath Gundiba Avatade, Age 65 years, Occupation: Nil

5. Mainabai Pandharinath Avatade, Age 60 years, Occupation: Household

All resident of Patil Galli, 58/1, Dongaon North, Dongaon Taluka, North Solapur – 413002.

Nos. 2 and 3 being minor through their mother – Appellant No. 1

6. Mr. Bhagvant Shankar Patil, Age Adult, Occupation: Business, Resident of 30, Brahmachaitanya Nagar, Vijaypur Nagar, Solapur.

In First Appeal No. 1239 of 2016 with Civil Application No. 3457 of 2016 in First Appeal No. 1239 of 2016, has very rightly held that parents of a married son are not entitled to claim filial compensation under the Motor Vehicles Act. While partly modifying the order of the Motor Accident Claims Tribunal, Solapur, the single-Judge Bench of Justice RD Dhanuka of Bombay High Court struck off the amount awarded to the deceased parents towards filial compensation since the said deceased was not a bachelor at the time of his death and so the parents would not be entitled to claim any filial consortium. Very rightly so!

          To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed that, “By this first appeal filed under section 173 of the Motor Vehicles Act, 1988, the appellant (original opponent no. 2) has impugned the judgment and award dated 3rd December, 2015 passed by the Motor Accident Claims Tribunal, Solapur (for short “Tribunal”) in MACP No. 173 of 2013 allowing the claims filed by the respondent nos. 1 to 5 partly. By consent of the appellant and the respondent nos. 1 to 5 the first appeal is heard finally at the admission stage.”

To be sure, it is then pointed out in para 2 that, “The appellant was the original opponent no. 2, whereas the respondent nos. 1 to 5 were the original applicants before the Tribunal. The respondent no. 6 was the original opponent no. 1 before the Tribunal and was the owner of the Maruti Van (hereinafter referred to as “the offending vehicle”).”

While elaborating further, it is then enunciated in para 3 that, “The respondent no. 1 is widow of the deceased Ajay Avatade. The respondent nos. 2 and 3 are the children of the said deceased Ajay Avatade. The respondent nos. 4 and 5 are the parents of the said deceased. It was the case of the respondent nos. 1 to 5 that the said deceased Ajay Avatade was an agriculturist and milk vendor. 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 – 13N – 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. It was the case of the respondent nos. 1 to 5 that the said offending vehicle gave a dash by coming towards its wrong side and was in a high and excessive speed. The said accident was the outcome of the rash and negligent driving on the part of the driver of the offending vehicle. The said offending vehicle was insured with the appellant.”

Suffice it to say, para 4 then discloses that, “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. The Tribunal framed five issues for determination. The respondent nos. 1 to 5 examined the respondent no. 1 and also examined three more witnesses who produced various documentary evidence also on record to prove their case. No evidence was led by the appellant and the respondent no. 6 before the Tribunal.”

Be it noted, para 5 then states that, “The Tribunal rendered a finding that the death of the said deceased was caused due to accident dated 6th February, 2012 involving the motorcycle driven by the said deceased and the offending vehicle due to the rash and negligent driving by the driver of the offending vehicle. 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 Rs. 25,42,000/- with interest at the rate of 9% p.a. from the date of application till realization. The Tribunal also apportioned the amount payable to the respondent nos. 1 to 5. Insofar as the respondent nos. 2 and 3 are concerned they being minor, the Tribunal directed that an amount of Rs. 7,00,000/- each and interest thereon be kept in fixed deposits in any nationalized bank of the choice of the respondent no. 1 till they would attain the age of majority. The appellant has impugned the said judgment and award dated 3rd December, 2012 in this First Appeal. The respondent no. 6 did not file any appeal against the said judgment and award.”

It would be imperative to now mention here what para 16 stipulates that, “The Tribunal framed five issues. The respondent nos. 1 to 5 had examined 4 witnesses before the Tribunal to prove their case and produced several documents including medical record. The evidence produced by the respondent nos. 1 to 5 including the spot panchnama indicates that there was head on collusion as could be seen from the fact that both the vehicles were substantially damaged. The witnesses examined by the respondent nos. 1 to 5 proved that towards left side of the road there was a ditch. It was thus not possible for the said deceased to use the kaccha road. Though various suggestions were put to the witnesses examined by the respondent nos. 1 to 5 by the appellant, the appellant admittedly did not examine the driver of the offending vehicle to prove the contributory negligence of the said deceased.”

To put things in perspective, it is then held in para 17 that, “In my view, the finding thus rendered by the Tribunal that the death of the said deceased was caused on account of accident dated 6th February, 2012 by the offending vehicle due to rash and negligent driving of the driver of the offending vehicle does not warrant any interference. It is also rightly held that the said deceased had not contributed to the said accident, in any manner whatsoever. I do not find any infirmity with the said finding rendered by the Tribunal.”

On a different note, it is then pointed out in para 23 that, “As far as the quantum of claim for compensation based on various judgments and based on the evidence led by the respondent nos. 1 to 5 is concerned, both the parties tendered their respective calculation before this Court. There is no dispute that the respondent nos. 1 to 5 would be entitled to claim 40% of the yearly income after applying multiplier of 15 towards future prospect. There is also no dispute that two of the respondents who are children of the said deceased would be entitled to claim Rs. 40,000/- each towards parental consortium and all the respondents would be entitled to claim Rs. 70,000/- towards conventional heads.”

Most significantly, it is then observed in para 24 that, “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. The Supreme Court in case of Magma General Insurance Co. Ltd. (supra) has held that in case where the 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. In my view, the said part of the said judgment would clearly apply to the facts of this case. Thus, claim towards filial consortium demanded by the respondent nos. 4 and 5 cannot be considered.”

In conclusion, it may well be said that while partly modifying the order of the Motor Accident Claims Tribunal, Solapur, the single-Judge Bench of Justice RD Dhanuka of Bombay High Court struck off the amount awarded to the deceased parents towards filial compensation and observed what has already been illustrated in para 24 as mentioned above! Reliance was placed by the Bombay High Court in this noteworthy judgment on Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram & Ors., AIR 2018 SC 892, whereby the Supreme Court had held that only in cases where the 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 as has also been mentioned in para 24. No denying or disputing it!

Sanjeev Sirohi

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