Loss of love and affection is included in loss of consortium, and separate compensation for it is not justified.

JUDGMENT :

1. Considering the issue involved, let First Appeal be listed today itself for final hearing.

2. The challenge is given by the Insurance Company to the judgment dated 12.02.2020 in MACP No.1713 of 2011 by Motor Accident Claims Tribunal (Aux.), Ahmedabad (Rural) at Mirzapur.

3. Mr. Maulik Shelat, learned advocate for the Insurance Company submitted that just and reasonable amount should be given, and the compensation granted under various heads should be in consonance with the Apex Court judgment.

3.1 Advocate Mr. Shelat referring to the schedule with details of different heads submitted that in accordance to the judgment of National Insurance Company Ltd. v. Pranay Sethi and Ors., reported in AIR 2017 SC 5157, once consortium loss has been granted then no amount should be given under the head of loss of love and affection. Mr. Shelat further, stated that calculation of loss to estate, consortium loss and funeral expense should be in accordance to the judgment of Pranay Sethi and Ors. (supra) and Magma General Insurance Company Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in (2018) SCC 130 [2018 ACJ 2782], while excess amount has been paid by the Tribunal. The calculation should be in accordance to the Pranay Sethi and Ors. (supra), where the enhancement of 10% would be only after every three years. The judgment of the Pranay Sethi and Ors. (supra) had been delivered on 31.10.2017, while the impugned judgment is of 12.02.2020, which, thus, does not complete three years.

4. Advocate Mr. Krunal R.Saksena for the claimants submitted that the assessment has been made by the Tribunal are supported by the reasons, and submitted that judgment does require any interference of this Court.

5. As per the facts of the case, the accident took place on 02.05.2011 at about 9.30 p.m. The deceased and one Vijuji Laluji Thakor were going towards Savarkundla in loading Rickshaw No.GJ-2Z-1346, for the purpose of purchasing farming equipment. The deceased was driving the loading rickshaw, and when they reached near under pass of village Zinzar, near Dhandhuka, the driver of Tata Vehicle No.GJ-1AU- 4404, came in rash and negligent manner, violating the traffic rules and tried to overtake the loading rickshaw. As a result, Tata vehicle dashed with the rickshaw. The deceased sustained serious fatal injuries and succumbed during the course of treatment.

6. The age of the deceased has been considered as 45 years and 25% prospective rise has been assessed on the monthly income of Rs.3,500/-. Accordingly, the calculation is made deducting 1/3rd amount considering the dependency, and dependency loss of Rs.4,90,000/- has been granted.

7. The Tribunal has relied upon the judgment of Pranay Sethi and Ors. (supra), and considered the basic amount of 15,000/- for funeral expense and loss to estate and even added 10% on the said amount observing that it has to be enhanced at the said rate for every three years.

7.1 As referred hereinabove, to the date of judgment of Pranay Sethi and Ors. (supra), the date of the impugned judgment does not complete a period of three years, hence, the addition of 10% to the amount, would, on the face of record becomes erroneous. Further, the loss of consortium has been granted as Rs.40,000/- for both the claimants, thus, adding the amount, which has been noted under the head of loss to estate, consortium loss and funeral expense, the total amount would come to Rs.1,10,000/-, while the Tribunal has granted Rs.1,19,000, and, thus, Rs.9,000/- is excess amount under the said head.

8. The consortium loss becomes payable in accordance to the judgment of Magma General Insurance Company Ltd. (supra), and both the children have received the amount of consortium loss.

9. As noted in the judgment of Pranay Sethi and Ors. (supra), the Apex Court has differentiated the concept of amount under the head of consortium loss and that of the love and affection for the children on death of the parents.

10. In United India Insurance Company Ltd.