Loss of consortium

Written by Indu Bhan | Indu Bhan | Updated: May 16 2013, 06:48am hrs
Insurance firms to shell out more

Insurance companies will have to shell out more to road accident victims for loss of consortium with the Supreme Court adding a new criteria in computing compensation for death and injury in the case of Rajesh vs Rajbir Singh. In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations. Stating that the courts/tribunals should not succumb to niceties or technicalities in such matters, the top court said that the tribunal/court has a duty to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.

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, it said, adding that English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. We may therefore, revisit the practice of awarding compensation under conventional heads, the apex court said, asking the courts to award at least R1 lakh for loss of consortium. Taking note that the tribunals were quite frugal with regard to award of compensation under the head Funeral Expenses, it directed that at least R25,000 be paid on this count keeping in view the spiralling Price Index.

In this case, the Claims Tribunal had granted the compensation of R8,96,500 with interest at 7.5% to the widow and three minor children of the 33-year-old deceased Bijender Singh who was working as clerk. Dissatisfied by the compensation, the claimants approached the Punjab and Haryana High Court, which increased the amount to R10,17,000 with interest at 7.5%. However, the Supreme Court awarded R22,81,320 with interest at 7.5% from the date of filing of the claim in 2007 till realisation.

Tata employees move courts

Upholding the Bombay and Delhi high courts judgments in appeals led by Jatya Pal Singh vs Union of India, the Supreme Court has held that Tata Communications, the successor of VSNL, was not performing a public function or a mandatory public duty, thus the terminated employees cannot move high courts for redressal of their grievances. Merely because TATA Communication Limited is performing the functions which were initially performed by OCS would not be sufficient to hold that it is performing a public function, the apex court said, adding that a perusal of the documents would show that VSNL had merely promised not to retrench any employee who had come from OCS for two years. But such a condition would not clothe the same with the characteristic of a public duty which the employer was bound to perform. It asked the employees to approach ordinary fora like the industrial courts to enforce their rights.

In this case, the engineers and technical staff were working in the Department of Overseas Communications, which was later converted into VSNL. Between 1992 and 2000, GoI divested a portion of its shareholding in VSNL and it became a Tata company and the name changed to Tata Communications Ltd. As per the shareholding and share purchase agreements, GoI mandated Tata to ensure that none of the employees should be retrenched for one year. However, services of 20 managerial employees were terminated in 2007 after paying them three months salary in lieu of notice. Ten petitions were filed by the employees in the DHC and two in BHC challenging termination orders. Their petitions were dismissed as the company was no longer a state enterprise.

Dept enquiry in employees tongue

The Supreme Court has said that departmental enquiry and proceedings against government employees must be conducted in the language of their preference as the refusal to do so will violate their right to effective defence. it would infringe the rule that justice must not only be done, but also seen to be done. However, abundant caution must be exercised in ensuring that this right to defend must not be reduced to mere lip service by the authority, the top court said, adding that the essence of this facet of natural justice lies in adequate and reasonable opportunity to put forth the defence before the disciplinary authority and any deviation from the said rule would tantamount to shell opportunity and will mean no opportunity in the eyes of law.

In this case, Mithilesh Kumar Singh had challenged the proceedings against him and punishment of reduction in his pay scale on the ground that inquiry was conducted against him in English against his desire. The denial to provide him with the charge-memo in Hindi has directly impinged upon his right to effectively put forth his case in defence of the charges against him and thus resulted in gross injustice to the appellant, the court said.

indu.bhan@expressindia.com