On Friday, the Bombay High Court held that parents of a married son are not entitled to claim filial compensation under the Motor Vehicles Act.
Partly modifying the order of the Motor Accident Claims Tribunal, Solapur, the single-Judge bench of Justice RD Dhanuka struck off the amount awarded to the deceased's parents towards filial compensation and said,
"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."
Reliance was placed 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.
"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 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," the Apex Court had said.
The deceased was an agriculturist and milk vendor, who was hit by a negligently driven Maruti Van while he was riding his bike. The insurance company had refused to grant compensation to the deceased's family, citing contributory negligence. Holding that the accident occurred due to no fault of the deceased, the Tribunal had awarded compensation to his family under multiple heads, as permitted by the Supreme Court in National Insurance Company Limited v. Pranay Sethi & Ors., AIR 2017 SC 5157.
Upholding the said order, the high court said that the Motor Accident Claims Tribunal had rightly divided the income of the deceased's entire joint family in four parts to ascertain the income of his family separately.
Further, it was held that dependency in case of agricultural income cannot be calculated by regular modes of income like salary of employee or of self-employment. The high court averted to the judgment of Supreme Court in State of Haryana and Anr. v. Jasbir Kaur and Others, (2003) 7 SCC 484 whereby it was held in case of death of an agriculturist, his heirs succeed the agricultural land and can get the yield from it. The only loss of the heirs is that instead of the deceased someone else is required to get the work of cultivation done or to cultivate the land personally.
"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," the high court said.
Case Title: IFFCO Tokio General Insurance Co. Ltd. v. Jyoti Ajay Avatade & Ors.
Case No.: FA No. 1239/2016
Quorum: Justice RD Dhanuka
Appearance: Advocate Abhijit P. Kulkarni (for Appellant); Advocate RS Alange with Advocate Ajit V. Alange (for Respondents)
Click HereTo Download Judgment