Torts Affecting Personal Relations

Consortium means the society, comfort, care and companionship of a family member. Indian law now recognises three forms: spousal consortium, the company and affection of a husband or wife; parental consortium, the loss a child suffers by the death of a parent; and filial consortium, the loss a parent suffers by the death of a child.

The Indian case that made consortium a standard head

Facts. Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram, decided on 18 September 2018. The claim arose out of a fatal motor accident and the question was what heads of compensation the dependants were entitled to under section 168 of the Motor Vehicles Act 1988, which requires the Claims Tribunal to award compensation which appears to it to be just.

Held. The Court held that loss of consortium is a head of compensation in its own right, and that it is not confined to a spouse: parental consortium, which is the loss to a child of the care and company of a parent, and filial consortium, which is the loss to a parent of the company of a child, are also compensable. It also treated the conventional heads of loss of estate and funeral expenses as separate from consortium, and awarded them in addition.

Why it matters here. It converts an old proprietary idea into a modern one: the claim is no longer for the loss of a person's services as an asset, but for the loss of a relationship, and it is available to wives, husbands, children and parents alike. Chapter [Computing Just Compensation] shows how the head fits into the arithmetic of an award.

A worked example

Anand is killed in a road accident. He leaves a wife, a nine-year-old son and an elderly mother, and he had employed a driver whose wages he paid.

Enticement, harbouring and seduction have nothing to do with the case, and no Indian court would entertain an action of that kind today.

Loss of consortium is claimed by all three: spousal consortium for the wife, parental consortium for the son and filial consortium for the mother, on the authority of Magma General Insurance Co. Ltd v. Nanu Ram.

The driver has no claim for the loss of his employment. The old action was the master's for the loss of his servant's services, never the servant's for the loss of his master.

And if Anand had been injured rather than killed, his wife's claim for loss of consortium during the period of his incapacity would be part of the compensation awarded, the assessment being governed by section 168 of the Motor Vehicles Act 1988 and the cases in chapter [Computing Just Compensation].

What it does NOT mean

It does not mean a spouse is property. The modern head compensates the loss of a relationship, not the loss of an asset.

It does not mean these actions still lie in India. They are effectively dead, and matrimonial law provides the remedies.

It does not mean consortium is available only to a widow. Magma General Insurance Co. Ltd v. Nanu Ram recognises parental and filial consortium as well.

It does not mean the loss of services head has no descendants. It survives as a head of dependency in fatal accident claims.

Quick revision

1. The four old wrongs: enticement, harbouring, seduction, and loss of services or consortium.
2. They rest on the husband's proprietary interest in his wife and the master's in his servant, both abandoned.
3. Abolished by statute in England in 1970; in India effectively dead, and inconsistent with constitutional equality.
4. What survives is compensation for loss of consortium.
5. Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram, 18 September 2018: spousal, parental and filial consortium are all compensable, in addition to loss of estate and funeral expenses.
6. Section 168 of the Motor Vehicles Act 1988 requires the Tribunal to award just compensation, and consortium is part of it.
7. Limitation for the old action for loss of service by seduction: article 77 of the Schedule to the Limitation Act 1963, one year from when the loss occurs.

Test yourself

1. What are the torts affecting personal relations, and what is their position today? They are enticement of a spouse, harbouring a spouse, seduction of a daughter or servant, and the causing of loss of services or of consortium. Each rests on a premise the modern law has abandoned: the husband's proprietary interest in his wife's society and services, and the master's interest in the services of his servant, a daughter being treated as a servant by a fiction so that her father could sue her seducer. In England they were abolished by statute in 1970. In India there is no such statute, but they are effectively obsolete, both because their proprietary premise is inconsistent with constitutional equality and because matrimonial law now provides the appropriate remedies. What survives is compensation for loss of consortium, and it is regularly awarded in motor accident claims.

2. Explain loss of consortium as a head of compensation in Indian law. Consortium means the society, comfort, care and companionship of a family member. In Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram, decided on 18 September 2018, the Supreme Court held that loss of consortium is a head of compensation in its own right in a claim under the Motor Vehicles Act 1988, and that it is not confined to a spouse: a child who loses a parent may claim parental consortium and a parent who loses a child may claim filial consortium. The award is made in addition to the conventional heads of loss of estate and funeral expenses, and it is part of the just compensation which section 168 of the Act requires the Claims Tribunal to determine. The head illustrates how an old proprietary action has been replaced by a modern one that compensates the loss of a relationship.