Under Section 166(1)(c) of the Motor Vehicles Act, 1988, is a legal representative's entitlement to claim compensation dependent on proof of actual dependency on the deceased?

Paragraph 5Proceeding to consider the question about entitlement on part of the appellants- the wife and three children, the amounts to be awarded under the head of consortium, and the law developed in that regard, in Manjuri Bera vs. Oriental Insurance Company Limited and Another[^3], this Court considered in the context of Sections 140 and 166 of the Motor Vehicles Act, 1988, the entitlement to the amount of compensation on the count of dependency. Compensation was claimed by the married daughter not dependant on the deceased while the High Court held that the claim was maintainable but dismissed the same on the ground of lack of dependency. This Court held that the devolution of the estate of the deceased which is important and not the actual dependency. 5.1. In National Insurance Company Limited vs. Birender and Others[^4], this Court considered in the facts before it as to whether the major sons of the deceased who are married and gainfully employed or earning, can claim compensation. It was held that their claim would be maintainable under Section 166(1)(c), however, quantum of compensation would depend on extent of their dependency on the deceased parent. The Court found on evidence that though major sons were earning a livelihood were still largely dependent on their deceased mother. 5.1.1. While holding that the legal representatives of the deceased are entitled to move an application for compensation by virtue of clause (c) of Section 166(1) of the Act, it was observed, “…The major married son who is also earning and not fully dependent on the deceased, would be still covered by the expression “legal representative” of the deceased. This Court in Manjuri Bera had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the legal representative concerned…” (Para 12) 5.1.2. Stating that the expression “legal representative” has not been defined in the Act, referring to paragraphs 9 to 12 of Manjuri Bera (supra), the Court observed that all legal representatives of the deceased become entitled to compensation and can file a claim petition. 5.2. In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Another[^5], where the question answered was whether a brother of the deceased killed in a motor vehicle accident could be able to claim compensation. The Court observed that the “legal representative” ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Every legal representative who suffers on account of the death of a person because of a motor vehicle accident has a remedy for realisation of compensation to be paid under different heads. 5.3. In other words, when all such persons covered within the expression “legal representative” are entitled to maintain the compensation petition and seek compensation for loss of life of the victim of a motor accident, by virtue of that very principle and in view of the concept of consortium, it is one of the heads of compensation which becomes payable in motor accident claim cases. 5.4. The head of “consortium” is part of the conventional sum to be awarded as part of the compensation. The conventional amount has been provided in the Second Schedule of the Act which was enacted in 1994 as found to be defective as observed by this Court in U.P. State Road Transport Corporation and Others vs. Trilok Chandra and Others[^6] and in Puttamma and Others vs. K.L. Narayana Reddy and Another[^7] observing that the Second Schedule has become redundant, irrational and unworkable due to changed scenario including the present cost of living and the current rate of inflation as well as increased life expectancy. 5.4.1. Enacted in 1994, the Second Schedule contained the head general damages in case of death which provided a fixed amount of Rs. 2,000/- towards funeral expenses, Rs. 5,000/- towards loss of consortium, if beneficiary is the spouse, Rs. 2,500/- towards loss of estate and Rs. 15,000/- as a fixed amount towards actual medical expenses supported by bills and vouchers, however, starting from the decision in Trilok Chandra (supra), the suggested amount in the Second Schedule has not been followed, nor there has been amendment to the same. 5.4.2. In Rajesh vs. Rajbir Singh[^8], this Court discussed as to what is the concept of “consortium”, “… In legal parlance, “consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement…” (Para 17) 5.4.3. It was further stated, “…By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.” (Para 17) 5.5. This Court in National Insurance Company Limited vs. Pranay Sethi and Others[^9] dealt with the different heads under which compensation is to be awarded to the victim who had died in a motor accident. “Loss of consortium” is one of such heads. In Magma General Insurance Company Limited vs. Nanu Ram and Others[^10]. It was observed, “…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[^11].” (Para 21) 5.5.1. The ‘spousal consortium’ normally refers to the rights pertaining to relationship of a husband and wife which allow compensation to the surviving spouse for loss of company, society, cooperation, affection and aid of the other in the conjugal relations. The consortium amount which is granted to the child is called ‘parental consortium’ to be paid on the premature death of a parent. It is in the nature of compensation for parental aid, protection, affection, society, discipline, guidance and training which would have been available to the child had a parent been alive. The concept of ‘filial consortium’ is the right of parents to be compensated when there is accidental death of a child, for, parents would suffer shock and agony on loss of child during their lifetime. The filial consortium reflects the inbuilt love, affection and bond prevalent in the family for the children. 5.6. This Court in Pranay Sethi (supra) adopted a new, comprehensive and realistic approach and determined the amounts payable under the conventional heads namely loss of estate, loss of consortium and funeral expenses. It is relevant to notice the discussions in this regard in Pranay Sethi (supra). 5.6.1. It was thus stated, “…Therefore, we think it seemly to fix reasonable sums. It seems to us 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.” (Para 52) 5.7. The ‘consortium’ in different categories as above is an important and indispensable head to award accident claim compensation to make the compensation amount to be just compensation. The amount is to be increased by 10% at the end of every three years as held in Pranay Sethi (supra).