Loss of Consortium

What is Loss of Consortium?

Loss of consortium is a term used to refer to the deprivation of the benefits of family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law.

The action has its origin in a Latin expression: "per quod servitium et consortium amisit", translated as "in consequence of which he lost her servitude and sex".

While some jurisdictions only recognize spousal consortium others recognize parental consortium as well allowing children to recover for the death or disability of a parent and vice-versa. In some states, persons in live-in relationship can also claim loss of consortium.

In simple term ‘loss of consortium’ is a claim for damages suffered by the spouse or family member of a person who has been injured or killed as a result of the defendant’s negligent or intentional, or otherwise wrongful acts.

The concept is that, as a result of the defendant's actions, the person who was killed or injured cannot provide his or her spouse or family member with the same love, affection, companionship, comfort, society, or sexual relations that were provided before the accident. So, the spouse or family member of the person injured has a claim against the wrongdoer for those losses.

Who Can Bring a Loss of Consortium Claim?

Spouses and Partners (Spousal Consortium)

Historically, only spouses could bring a claim for loss of consortium. Many states, however, of late, have permitted committed partners or same-sex couples to file a lawsuit for loss of consortium.

Children and Parents (Filial Consortium & Parental Consortium)

Some states also permit a child or parent to file a loss of consortium claim. In such cases the child or parent would argue that his injured parent or child is no longer able to provide the same level of care, nurturing, and affection as he provided prior to the injury. In this situation, the child or parent would have to show that the parent/child relationship was irrevocably altered by the injury or deceased.

Child and parent relationships are a bit trickier. In a case involving young children losing a parent, the loss of care and affection is easy to see. Adult children of the deceased or injured person will have to work a bit harder to prove their loss, showing that their relationship has been irrevocably damaged following the incident.

For a parent who has lost a child, the complications are identical. If the child served as a caregiver for an elderly parent, the parent may qualify for a loss of consortium claim. If, on the other hand, the parent and child had been estranged prior to the incident, a claim would unlikely to succeed in absence of a manifestly strong relationship between them.

In India, though the situation is quite different. While awarding compensation under Motor Vehicle Act, courts and Tribunals grant a certain amount under the head “loss of consortium”. Until recently, the Courts in India had been awarding this sum only to the surviving spouse living with the deceased at the time of accident. A Divisional Bench judgment of Supreme Court on 18.09.2018 altered this position and extended this remedy to some other family members by adding some more types of consortium – ‘parental consortium’ and ‘filial consortium’.

In Magma General Insurance Co. Ltd. v Nanu Ram alias Chohru Ram & Ors. (2018) SCC Online SC 1546, the Apex Court was examining the adequacy of the amount under different heads in an appeal arising out of a judgment of Punjab & Haryana High Court in which insurance co. has challenged that amounts awarded under some of the heads are in contrary to the recent Constitution Bench judgment of National Insurance Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680 in which comprehensive guidelines were issued to ensure just compensation to the petitioners in road accident cases and certain criteria were set to ensure uniformity and consistency in practices to arrive at just compensation envisioned under Motor Vehicle Act, 1988.

The Division Bench while adding new types, it seems, were willingly ostrich to the fact that Constitution Bench in Pranay Sethi had already taken note of the modern day practice of loss of consortium prevalent in developed countries more particularly, Australia, United States of America, and England, before formulating the guidelines on loss of consortium and after careful scrutiny, allowed only the spousal consortium in motor accident compensation cases. By non-observance or deviating from the guidelines the Division Bench has either tried to dilute the impact of the Constitution Bench judgment at least compensation amount under ‘other heads’, or created an escape route for tribunal and subordinate courts to not adhere to the guidelines. It has tried to do something indirectly it can’t do directly. It is apt here to quote from Pranay Sethi:

“Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi (supra), the two-Judge Bench followed the traditional method and granted Rs. 5,000/- for transportation of the body, Rs. 10,000/- as funeral expenses and Rs. 10,000/- as regards the loss of consortium. In Sarla Verma, the Court granted Rs. 5,000/- under the head of loss of estate, Rs. 5,000/- towards funeral expenses and Rs. 10,000/- towards loss of Consortium. In Rajesh, the Court granted Rs. 1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses. It also granted Rs. 1,00,000/- towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio-economic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (supra). On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote:

“17. … 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 recognized the right of a spouse to get compensation even during the period of temporary disablement. 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.” ”

Further, the Division Bench while lauding the practices of awarding loss of consortium in many developed countries overlooked the fact that the loss of consortium at the same time is not finding favor in many countries as well, and the common law rule of consortium has been amended or abolished by statute in many jurisdictions. Actions for loss of consortium have been abolished in England and Wales, Northern Ireland, New South Wales, Tasmania, Western Australia, the Australian Capital Territory and New Zealand, by the Administration of Justice Act 1982 (UK) s 2, the Law Reform (Marital Consortium) Act 1984 (NSW) s 3, the Common law (Miscellaneous Actions) Act 1986 (Tas) s 3, the Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 3, the Civil Law (Wrongs) Act 2002 (ACT) s 218 and the Accident Compensation Act 1972 (NZ) s 5(2) respectively.

There is no denying that in legal parlance, “consortium” is a compendious term and right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. But in absence of any concrete evidence of significant change in care giving to the parents after the accident in case of filial consortium and to the children in case of parental consortium courts should not follow the mandates blindly in disregarding the underlying logic, and ratio laid down in Pranay Sethi case.

Last but not the least, after discussing filial consortium and parental consortium, Court awarded a sum of Rs. 40,000 to a sibling which does not fall either under parental or filial consortium and thereby created another type consortium called sibling consortium which is nether discussed in this judgment nor in Pranay Sethi or probably any other judgments of motor accident claims in India and alien to the concept of loss of consortium.

The Court has laid down a blanket rule for granting parental and filial loss of consortium advocating the beneficial legislation theory without setting the requirement of evidence to prove the altered situation. It is prone to abuse by the petitioners where petitioners were in estranged relationship with the deceased or injured before the accident. In countries where such claims are recognized, it is not granted automatically but the petitioners have to prove their case by adducing evidence.  

The Nanu Ram judgment has disturbed the calculus of awarding compensation in motor accident cases and has created doubts in the minds of law practitioners, academicians and law students as to which judgment should be followed - Nanu Ram or Pranay Sethi on the question of consortium.

Conclusion

Constitution Bench judges in Pranay Sethi after carefully study of loss of consortium and after quoting and discussing the Santosh Devi and Rajesh on the issue came to the conclusion that loss of consortium should be allowed to spouse only. Not only that, Court also deprecated the practice of awarding sums under some other conventional heads created by the courts and tribunals over the period of time like love and affection, love and care, and a few more. If Nanu Ram is given effect the judicial propriety will be compromised as it waters down the impact of Pranay Sethi under ‘other heads’ and deviates the law as laid down in that judgment, and will further result into relapse into the era of lack of uniformity and consistency in practices by tribunals and courts as prevalent before Pranay Sethi. The courts and tribunals should not grant the parental or filial consortium unless there are compelling reasons to do so in the light of peculiar facts and circumstances of a given case and where there is credible evidence on record to prove the altered family equation.