Gujarat High Court
Shantaben Kirtanbhai Pagi Thakor vs Mukeshbhai Kalubhai Rathod on 6 June, 2023
Bench: Gita Gopi
C/FA/1292/2023 JUDGMENT DATED: 06/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1292 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
No4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SHANTABEN KIRTANBHAI PAGI THAKOR
Versus
MUKESHBHAI KALUBHAI RATHOD
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1,2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/06/2023
ORAL JUDGMENT
1. Since the issue has been raised in a very narrow
compass, with consent of learned Advocates appearing
for the respective parties, this Appeal is taken up for
final hearing today.
C/FA/1292/2023 JUDGMENT DATED: 06/06/2023
2. By way of this Appeal, the Appellants-claimants have
challenged the judgment and award dated 23.07.2019
passed by the learned Motor Accident Claims Tribunal
(Main), Kheda at Nadiad in M.A.C.P. No.1658 of
2010. The claimants are the aged mother, widow
and two children of the deceased.
3. The only issue that has been raised is that the
learned Tribunal has granted vide the above judgment
and award only Rs.40,000/- under the head of loss of
consortium.
4. The facts of the case in a nutshell is that on
22.08.2010 the deceased Kirtan Lakhabhai Thakor was
plying the motorcycle bearing Registration No.GJ-1-
JE-7825 in moderate speed and on the correct side of
the road. When the deceased reached near the place
of accident, at that point of time, the respondent
No.1 came driving the Truck bearing Registration
No.GJ-18-T-9721 in excessive speed and in a rash and
negligent manner and dashed the truck with the
above Motorcycle from the rear side, as a result of
which, the deceased suffered serious injuries on
C/FA/1292/2023 JUDGMENT DATED: 06/06/2023
various parts of the body and ultimately succumbed
because of the injuries so received.
5. Learned Advocate for the appellants Mr. Nishit A.
Bhalodi submits that the claimants were four in
number at the time of the delivery of the judgment
and award. It is submitted that the learned Tribunal
ought to have taken into consideration the decision of
the Hon'ble Apex Court in the case of Magma
General Insurance Co. Ltd vs Nanu Ram Alias Chuhru
Ram reported in 2018 ACJ 2782 where the
consortium amount is determined to be granted to
the claimants.
6. Learned Advocate for the respondent - Insurance
Company Mr. Rathin P. Raval submits the learned
Tribunal has granted an amount of Rs.40,000/- under
the head of loss of consortium, which is just and
reasonable.
7. The learned Tribunal vide its judgment and award
after considering the evidence on record has granted
the compensation under the following heads :-
C/FA/1292/2023 JUDGMENT DATED: 06/06/2023
Future loss of Dependency Rs.8,06,400/-
Consortium Rs.40,000/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Total Compensation Rs.8,76,400/-
8. Here the claimants are the aged mother, widow and
two children of the deceased. Only an amount of
Rs.40,000/- has been granted under the head of
consortium loss. The rest of the claimants are also
entitled under the above head. Hence, considering
Rs.40,000/- for each individual, an amount of
Rs.1,20,000/- for rest of the claimants (3 claimants x
Rs.40,000/- each) is required to be granted under the
head of loss of consortium.
9. As per the decision of the Hon'ble Apex Court in the
case of Magma General Insurance Co. Ltd, the
consortium amount is to be granted. Relevant
paragraphs of this decision are reproduced
hereunder :-
"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
C/FA/1292/2023 JUDGMENT DATED: 06/06/2023
legal parlance, "consortium" is a compendious term
which encompasses 'spousal consortium', '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. 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."
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 3 Rajesh and Ors. vs.
Rajbir Singh and Ors. (2013) 9 SCC 54 4 BLACK'S
LAW DICTIONARY (5th ed. 1979) 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
C/FA/1292/2023 JUDGMENT DATED: 06/06/2023
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."
10. The learned Tribunal has awarded an amount of
Rs.8,76,400/- with rate of interest @ 9% per annum,
which the respondents are liable to deposit, with the
enhanced / additional amount as Rs.1,20,000
(Rs.9,96,400/- minus Rs.8,76,400/-). In the result,
the present respondents are directed to deposit the
above / enhanced amount within a period of SIX (6)
WEEKS from the date of receipt of writ of the order
of this Court. It is further directed that the
claimants would be entitled to receive the enhanced
compensation @ 7.5% per annum from the date of
C/FA/1292/2023 JUDGMENT DATED: 06/06/2023
the application and the disbursement of the amount
be made as per the judgment and award of the
learned Tribunal.
11. In view of the above, the Appeal is allowed and
the judgment and award dated 23.07.2019 passed by
the learned Motor Accident Claims Tribunal (Main),
Kheda at Nadiad in M.A.C.P. No.1658 of 2010 stands
modified to the above extent. Record and
proceedings, if any, be sent back to the concerned
Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
