Law of Torts, MV Act and Consumer Protection: Eseries S.37

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Law of Torts, MV Act and

Consumer Protection
eSeries
S.37
•Consider the case of Magma General Insurance Co. Ltd. v.
Nanu Ram 2018 (8) SCJ 338:
-The family had claimed that the deceased was engaged in
making namkeen deriving income of Rs.15000 per month, but
they could not produce any evidence to that effect; Thus the
High Court took his income to be Rs.6000, marginally above
minimum wage of an unskilled worker; The Supreme Court
affirmed this holding
-The age of the deceased was 24 years old; the High Court had
awarded compensation based on future prospects at 50% of
the actual income of the deceased even though he was self-
employed; The Supreme Court corrected this as 40%
(Continued…)
-The deceased was a bachelor and was living in a village where he was residing with
his aged father who was about 65 years old and an unmarried sister; The High Court
made deduction from salary as 1/3rd
The Insurance Company argued that for bachelors, the deduction should be ½; The
Supreme Court pointed out that in National Insurance Co. v. Pranay Sethi (2017) 16
SCC 680 the following para makes an exception wherein it states:
“where the family of the bachelor is large and dependant on the income of the
deceased, as in a case where he has a widowed mother and large number of younger
non-earning sisters or brothers, his personal and living expenses may be restricted to
one-third, as contribution to the family will be taken as two-third”
Thus, the Supreme Court affirmed the deduction
-The High Court had awarded Rs.1,00,000 towards loss of love and affection and
Rs.25,000 towards funeral expenses
The Supreme Court noted that funeral expenses should be Rs.15,000 as per Pranay
Sethi;
(Continued…)
The Supreme Court gave an expanded meaning of consortium as considered in Pranay Sethi:
In 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
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.
(Continued…)
The Supreme Court awarded Rs.40,000 each for
loss of consoritum to the father and sister
Additionally, the Supreme Court as per Pranay
Sethi awarded Rs.15,000 towards loss of estate
The Supreme Court also affirmed the High
Court’s decision to award Rs.1,00,000
(Rs.50,000) each towards loss of love and
affection
• Consider the case of The New India Assurance Co. Ltd. v. Bapi Debbarma
MANU/TR/0125/2018:
- The High Court of Tripura decided an important question in this case
- Whether academic qualification can be sole criterion for calculation of income
- It was noted that there are rapid societal changes which influence the economic
scenario and job prospects due to recession and uncertainty in respect of
employment, both in Government and Private sector. A change of mind-set is also
being noticed of late, that a young man instead of looking for government job
prefers to be entrepreneur even with lesser qualification. In our country, there
are so many instances that a person with less academic career has become a
successful industrialist and even participated in generating the economic growth
of the nation. In the instant case, though the claimant has secured 3rd division in
matriculation examination, but he did not stop his studies rather, he was admitted
in a diploma course which might have paved a way to acquire a higher degree. The
claimant also could have been a successful entrepreneur. The matter would have
been different if it was found that he is a daily wage earner.
- Thus, the High Court upheld the amount of Rs.10,000 per month set by the
Tribunal.
• Consider the case of Jaswant v. Ummed Singh (2017) MP High Court[unreported]
- This case considered an important question
- Whether any amount out of the annual income of the housewife should be
deducted towards her personal expenses or not
- The High Court held that the services by a house wife are not rendered for her
personal purposes but by rendering services as a house wife, she looks after her
husband, her children and her elderly members of the house etc. Hence, it can be
said that a house wife renders a service to others and she do not do anything for
her own. The maintenance of his wife is the primary obligation of the husband and
therefore, it cannot be said that if the house wife is residing in the house or
is having meals or is getting clothes etc, then, certain amount under the head of
personal expenses should be deducted from the income of the deceased so
assessed on the basis of the services rendered by her for her. Thus, this court is of
the considered opinion that when the income of deceased house wife is assessed
on the basis of the services rendered by her in the capacity of a house wife, then,
no deduction may be made under the head of personal expenses
- This was affirmed by the Bombay High Court in a recent decision of The New India
Assurance Co. Ltd. v. Ashish Ravindra Kulkarni MANU/MH/3565/2019.
•Please note in context to compensation that with respect to death
and permanent disability, the Supreme Court’s decision in National
Insurance Co. v. Pranay Sethi (2017) 16 SCC 680 provides an
established mechanism
•With respect to injuries other than mentioned above, compensation
is calculated in the manner of identification of pecuniary and non-
pecuniary damages
•Schedule II under the Motor Vehicles Act 1988 provided for a
structured format for non-fault base calculation of compensation in
case of death or permanent disability
-This Schedule has been omitted by the 2019 Amendment
- While this Schedule has been omitted, the estimation of percentage
of disability and of loss of earning capacity can be guided as per
Schedule I under Workmen's Compensation Act, 1923.

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