Point of Law: 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.

JUDGMENT :

Heard Mr. A.J. Saikia, learned counsel for the appellant. I have Also heard Mr. D. Mondal, learned counsel appearing on behalf of the respondent nos.1 and 2 and Mr. S. Dutta, learned Senior Counsel assisted by Mr. S. Dutta, learned counsel appears on behalf of the Respondent No.3 insurance company. None appears for the Respondent Nos.4 & 5.

2. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short Act of 1988) is directed against the judgment and award dated 21.05.2012 passed by the Member, Motor Accident Claims Tribunal, Morigaon in MAC Case No.6/2010. The grievance of the appellant in the instant appeal primarily is at the direction of the learned Tribunal below whereby the appellant insurance company was directed to pay 50% of the awarded compensation of Rs.23,62,456/-along with interest @6% from the date of filing of the claim petition. The appellant have also assailed the quantum of the compensation on the various grounds enumerated in the Memo of Appeal.

3. The brief facts of the instant case is that one Rakesh Bora (since deceased) on 25.11.2009 was moving on the motor cycle as a pillion rider to go to his place of posting at Amritsar by train on getting urgent telegram from his department and the said motor cycle was driven by one Raju Borah, the deceased brother. The offending vehicle i.e. the Tata Indica No. AS-01-H-2451 was coming from the same direction and knocked the motor cycle on the PWD road and as a result of that the said Rakesh Bora fell on the pucca road and sustained serious head injury and multiple fractures. He was immediately taken to Morigaon Civil Hospital for treatment. Thereafter though he was referred to the GMCH but he was taken for treatment to the Dispur Poly Clinic Nursing Home. However, unfortunately at 10:30 p.m. the said Rakesh Bora expired. The Post Mortem was conducted on 26.11.2009. At this stage also it is relevant herein to mention that a case was registered in Morigaon Police Station being Morigaon P.S Case No.213/2009 (GR Case No.1281/2009) under Section 279/304-A of the Indian Penal Code. The offending vehicle i.e. Tata Indica car was insured with the respondent no.3 insurance company. It is also relevant to take note of that the motor cycle wherein the deceased was travelling i.e. Motor Cycle No.AS-01-AE-6913 was insured with the appellant company.

4. The respondent nos.1 and 2 herein as claimants filed a claim petition before the Member, Motor Accident Claims Tribunal, Morigaon which was registered and numbered as MAC Case No.6/2010. In the same claim petition it was mentioned that the monthly income of the deceased was Rs.16,206/-and that the deceased was working in the Indian Armed Forces. It was also mentioned that the medical expenditure of an amount of Rs.41,568.24 paisa was incurred on the treatment of the deceased after the accident. The claimants on the basis of the claim petition claimed an amount of Rs.27,65,232.24 paisa.

5. The Respondent No.3 who was the opposite party no.1 in the claim proceedings filed their written statement claiming that the respondent insurance company is not liable to make any payment on ground of violation of the insurance policy and further denied all the averments made in the claim application. It is interesting to note that a perusal of the written statement do not in any manner disclose a defence of contributory negligence. In other words, there is no pleading to that effect that the motor cycle wherein the deceased was travelling was equally responsible for the accident. The appellant who was the Opposite Party No.3 in the claim proceedings had categorically taken a stand in paragraph 15 of the written statement that the accident had occurred due to rash and negligent driving of the driver of the vehicle No. AS-01-H-2541 (Tata Indica). Similarly in paragraph 20 it was pleaded that as the accident took place on ac