An unborn child aged five months onwards in the mother's womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a 'person' who can be the subject of an action for damages for his death. As already stated above a person means a human being regarded as an individual and an individual's body : concealed on his person'. Therefore, human foetus to whom personhood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day.In the instant case, admittedly the age of the stillborn child is ten months; therefore, I am of the opinion that the claimant is entitled to compensation under Section 140 read with Section 166 of the Act
1. This appeal involves a important question as to whether
an unborn child in womb should be considered at par with a
minor child.
2. The appellants have challenged the award of the
learned Tribunal whereby compensation of Rs.6,11,000/- has
been awarded to the appellants. The appellants seek
enhancement of the award amount.
3. The accident dated 8th June, 2008 resulted in the death of
Indu Devi. The deceased was survived by her husband and two
MAC.APP.No.602/2009 Page 1 of 40 children who filed the claim petition before the learned
Tribunal.
4. The deceased was aged 25 years at the time of the
accident. The deceased was a housewife. It was claimed that
the deceased was also working as a housemaid and was
earning Rs.5,500/- to Rs.6,000/- per month. However, in the
absence of any documentary proof of occupation and income,
the learned Tribunal took the deceased to be a housewife and
the value of her services was taken as Rs.3,000/- per month
and the multiplier of 16 was applied to compute the loss of
dependency at Rs.5,76,000/-. Rs.10,000/- has been awarded
for loss of consortium, Rs.20,000/- towards loss of love and
affection and Rs.5,000/- towards funeral expenses. The total
compensation awarded is Rs.6,11,000/-.
5. The learned counsel for the appellants submits that the
deceased was pregnant with a foetus of about 24 to 28 weeks
(about seven months) at the time of the accident. The learned
counsel further submits that the appellants are entitled to
compensation for the death of unborn child in the womb.
6. The learned Tribunal has held that though seven months
pregnancy was recorded in the MLC but the post-mortem report
- Ex.P-1 (colly.) recorded that the uterus of the deceased did
not contain any foetus. The learned Tribunal further held that
no doctor has been examined to prove the pregnancy of the
deceased and, therefore, no compensation was awarded for the
death of the foetus. The finding of the learned Tribunal in this
regard is as under:-
MAC.APP.No.602/2009 Page 2 of 40 "In the MLC of the deceased Indu Devi bearing no.99734, it has been mentioned that the deceased had a history of 7 months pregnancy but the postmortem report, which has been brought on record collectively as Ex.P-1 clearly states that the Uterus of the deceased did not contain any foetus or any placenta. If the deceased was operated upon the foetus, if any, was removed, then this fact has not been established on record by the petitioner. Even in the petition filed by the petitioner, it has nowhere been mentioned by the petitioner that the deceased Indu Devi was pregnant at the time of accident and carrying a 7 months old foetus and the affidavit of petitioner, which is Ex.PW2/A, carries only a bald testimony of the petitioner no.1 to this effect. No doctor has also been examined by the petitioner to prove this fact. However, the medical evidence in the form of the postmortem report, which has been placed on record, does not fortify the bald stand of the petitioner also. Any other treatment record, which would establish that the deceased was actually pregnant at the time of accident, the mentioning of pregnancy in the MLC is only a history of the patient i.e. the deceased, which was narrated by the person who was accompanying the deceased and in the instant case, it was most probably the petitioner Smt. Ratha. Since the medical evidence has not corroborated this fact, it is held that it was only the deceased Indu Devi, who sustained fatal injuries in the accident in question."
7. The learned counsel submits that the accident occurred
on 8th June, 2008 and the MLC records the "uterus size up to
umbilical weight approximately 24 to 28 weeks." It is
submitted that the unborn child died in womb on 17th June,
2008 and was removed while the mother was alive. The
mother expired on 14th August, 2008 and at that time, the
foetus was not inside the womb of the deceased. However,
no material was placed before the Claims Tribunal to prove
that the foetus was removed before the death of the
deceased.
MAC.APP.No.602/2009 Page 3 of 40
8. The learned Tribunal did not conduct any inquiry under
Section 168 of the Motor Vehicles Act to ascertain whether
the dead foetus was removed from the body of the deceased
before her death. This Court, therefore, conducted an inquiry
under Section 168 of the Motor Vehicles Act to ascertain the
truth. Vide order dated 21st December, 2009, the notice was
issued to Sushruta Trauma Centre as well as LNJP Hospital to
send the doctor who treated the deceased along with the
complete medical record of the deceased.
9. On 27th January, 2010, Dr. Satender Kumar, CMO
(Casualty Medical Officer), Sushruta Trauma Centre, Delhi
and Dr. P.N. Pandey, Head of Neurosurgery Department, LNJP
Hospital, New Delhi appeared before this Court and their
statements on oath were recorded before this Court. Dr.
Satender Kumar deposed that the deceased was brought to
Sushruta Trauma Centre on 8th June, 2008 after a road
accident. Dr. Satender Kumar examined the deceased and
prepared the MLC and admitted her in neurosurgery
department. The complete medical record of Sushruta
Trauma Centre relating to the deceased was produced and
marked as Ex.PW1/1 (Colly.) in which the pregnancy of the
deceased has been mentioned at points „A‟ & „B‟. The
ultrasound of the deceased was also done at Sushruta
Trauma Centre. The report of the ultrasound was marked at
point „C‟. The deceased was thereafter shifted to LNJP
Hospital on the same day.
MAC.APP.No.602/2009 Page 4 of 40
10. Dr. P.N. Pandey, Head of Neurosurgery Department,
LNJP Hospital deposed that the deceased was admitted in
LNJP Hospital on 8th June, 2008. CT Scan was performed and
the deceased was operated for acute subdural hematoma.
After the operation, the deceased was shifted to I.C.U. On
17th June, 2008, there was absence of foetus movement and
it was found that the foetus had died. The foetus was
removed by the Gynecologist on 17 th June, 2008. The
original record of LNJP Hospital was produced before this
Court and was marked as Ex.PW-2/1 (Colly.) in which the
removal of the foetus was mentioned in the record at point
„A‟. The deceased expired on 14th August, 2008. Since the
foetus was removed from the body of the deceased on 17 th
June, 2008, there was no foetus in the womb at the time of
death of the deceased and, therefore, it did not find mention
in the post-mortem report.
11. From the statements of Dr. Satender Kumar, CMO,
Sushruta Trauma Centre, Dr. P.N. Pandey, Head of
Neurosurgery Department, LNJP Hospital and medical records
- Ex.PW1/1 of Sushruta Trauma Centre, Ex.PW2/1 of LNJP
Hospital and MLC - Ex. P-1 (colly.), it has been proved
beyond doubt that the deceased was about seven months
pregnant at the time of the accident on 8th June, 2008. The
MLC clearly records "uterus size up to umbilical weight
approximately 24 to 26 weeks." It has further been proved
from the statement of Dr. P.N. Pandey and the medical MAC.APP.No.602/2009 Page 5 of 40 record - Ex.PW2/1 that the foetus died on 17th June, 2008 and
was removed on the same day. The removal of the foetus is
mentioned in Ex.PW2/1 (Colly.) at point „A‟. The deceased
expired on 14th August, 2008, i.e, after about two months
from the date of death of the foetus and, therefore, the
foetus was not found in the post-mortem report.
12. The learned counsel for the appellants submits that the
unborn child in womb should be considered at par with a
minor child and the compensation be awarded for the death
of the unborn child.
13. The Karnataka High Court, Madhya Pradesh High
Court, Andhra Pradesh High Court and Kerala High
Court have taken a view that the death of the foetus should
be considered as equal to the death of the child for the
purpose of computation of compensation in the following
cases:-
(i) The Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation Vs. Vidya Shindhe, 2005 ACJ 69 (Karnataka High Court) -
The accident resulted in grievous injuries to a pregnant woman. The surgery known as „Foetal distress‟ was conducted and she gave birth to a child who died after two days of delivery. The claim for compensation on account of the death of the child was filed. The learned Tribunal awarded Rs.1,50,000/- towards death of the child which was challenged before the Karnataka High Court on the ground that the claim
MAC.APP.No.602/2009 Page 6 of 40 was not maintainable as the child was not born on the date of the accident.
The Karnataka High Court held that as per the doctor‟s advice if the foetus had completed 37 weeks, for all practical purposes even the still-born child has to be considered as child and the claim petition filed by the mother on account of death of her two days old child who was born subsequent to the date of the accident was maintainable. The award of Rs.1,50,000/- by the learned Tribunal was upheld.
The findings of the Karnataka High Court in the above case are as under:-
"As per the doctor's evidence, if the foetus has completed 37 weeks, for all purposes even the still-born child has to be considered as child. In the instant case, in the accident the child had also received injuries which compelled the mother to undergo a surgery. The baby died due to the injuries sustained by him in the accident while in the womb. Though there is no direct impact between the vehicle and the baby, since the baby had received injuries while in the womb; this Court has to hold that there is a nexus between the accident and the cause of death of the child. In the circumstances, this Court is of the opinion that the claim petition filed by the mother on account of the death of her two days baby who has born subsequent to the accident as maintainable."
(ii) Bhawaribai Vs. New India Assurance Co. Ltd., 2006 ACJ 2085 (Karnataka High Court) -
The claimant suffered abortion on account of the accident. The Karnataka High Court considered the death of foetus in womb at par with death of a minor. The findings of the Court are as under:-
MAC.APP.No.602/2009 Page 7 of 40 "In the case of abortion and death of foetus in the womb should be considered on par with the case of a death of a minor."
(iii) Shraddha Vs. Badresh, 2006 ACJ 2067 (Madhya Pradesh High Court) -
The accident resulted in injury to a pregnant women carrying seven months old foetus. Due to accident, the claimant delivered a dead male baby by operation. The Tribunal awarded Rs.70,000/- towards the medical expenses and Rs.80,000/- towards the non- pecuniary compensation.
The appeal was filed for enhancement of the compensation. Madhya Pradesh High Court followed the judgment of the Karnataka High Court in the case of Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation (supra) and enhanced the compensation from Rs.1,50,000/- to Rs.2,50,000/- . The Court held that a still-born baby has to be considered as child.
The findings of the Court are as under:-
"For the purpose of considering the case for awarding compensation even the stillborn baby has to be considered as child. Stillborn baby died in the womb due to the injuries sustained by the appellant in the accident. In the opinion of this Court there is a nexus between the accident and the cause of death of the child. Appellant is entitled for compensation on account of death of or stillborn male baby. It was first delivery of the appellant. Since, no separate amount has been awarded on that account, therefore, this appeal stands allowed. Appellant shall be further entitled for a sum of Rs. 1,00,000 on account of
MAC.APP.No.602/2009 Page 8 of 40 death of stillborn male child. Total sum for which appellant shall be entitled comes to Rs. 2,50,000. The enhanced amount of Rs. 1,00,000 shall carry interest at the rate of 6 per cent per annum from the date of application."
(iv) Branch Office, New India Assurance Co. Ltd. Vs. Krishnaveni, MANU/TN/2882/2009 (Madras High Court) -
The accident resulted in death of a pregnant woman with a nine month pregnancy. The Madras High Court following the Karnataka High Court and Madhya Pradesh High Court held that the still-born baby has to be considered as a child and compensation of Rs.2,00,000/- was awarded for loss of child in mother‟s womb. It was held as under:-
"7. Learned Counsel for the first respondent/claimant would submit that the Tribunal has lost sight of awarding any compensation for the death of child in the mother's womb and a considerable compensation has to be awarded in this regard. He placed reliance upon a decision of the Karnataka High Court in 2004 (2) T.A.C. 574 (Kant.) Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation, Bangalore v. VidyaShinde and Anr. decided in the case of death of the foetus, completed 37 weeks, in the mother's womb, she was awarded a sum of Rs. 1,50,000/- as compensation. In the said case, the claimant lady has undergone surgery known as 'foetal distress' and male baby was born and she was kept in I.C.U but died after two days of delivery. It is also argued before this Court that if the mother had a normal delivery, there is no necessity to keep the baby in I.C.U. and there is no necessity for the claimant/respondent to undergo surgery.
MAC.APP.No.602/2009 Page 9 of 40
8. The learned Counsel for the first respondent also garnered support from and decision of the Madhya Pradesh High Court in : 2006 ACJ 2067 Shraddha v. Badresh and Ors. wherein identical situation arose that the baby was stillborn and it has to be considered as a child, that the child died due to the accident and separate amount of compensation was payable to its death. For this purpose, the amount of Rs. 1,50,000 awarded by the Tribunal was enhanced to Rs. 2,50,000/- from Rs. 1,50,000/-.
9. This Court is in respectful agreement with the concluding in the above said two decisions of the High Courts and holding that the stillborn baby is also to be considered as a child. This Court also records finding that since the child died in the womb due to the accident, the mental agony and physical strain and pain experienced by the mother should have been more and that has to be compensated in an appropriate manner. In the considered opinion of this Court a sum of Rs. 2,00,000/- may be fixed under the head loss of child in the mother's womb." (v) Oriental Insurance Co. Ltd. Vs. Santhilal Patal, 2007(4) ACD 835 (Andhra Pradesh High Court) -
The accident resulted in the death of a women and ten month old foetus. The Andhra Pradesh High Court held that an unborn child aged five months onwards in the mother‟s womb till its birth can be treated as a child in existence. The unborn child to whom the live birth never comes can be held to be a „person‟ who can be the subject of an action for damages for his death. The findings of the Court are as under:-
"6. .....Under Section 166 of the Act a person who has sustained injury or the legal heirs of the deceased person are entitled for compensation arising out of the accident involving death or bodily injuries. Therefore, if the child comes within the definition of person, I am of the opinion that the legal MAC.APP.No.602/2009 Page 10 of 40 heirs of the child are entitled for compensation. Under Section 8 of the Indian Penal Code, 1860 a gender means the pronoun "he" and its derivatives are used of any person, whether male or female. The meaning of a person as per Oxford Dictionary is 'a human being regarded as an individual and an individual's body : concealed on his person'.
7. No doubt, the Karnataka High Court in Divisional Controller, Karnataka State Road Transport Corporation v. Vidya Shindhe 2005 ACJ 069 : 2003 ILR (Kar) 04269, held that the stillborn child has to be considered as a child. The Madhya Pradesh High Court in Shraddha v. Headrest's II (2006) ACC 304, following the aforesaid judgment of the Karnataka High Court held that the stillborn child died in the accident due to the injuries sustained by its mother in the accident is also entitled to compensation, as there is nexus between the accident and the cause of death of the child and awarded a compensation of Rs. 1,00,000/- for the death of the stillborn child. In the said case the appellant was having pregnancy of 28 weeks whereas in the instant case the child in the womb was counting his days for delivery as he was aged about 10 months i.e. 40 weeks. In fact, the Supreme Court in S. Said-ud-Din v. Commissioner Bhopal Das Victims : (1997)11SCC460 , awarded compensation to a child, who was adversely affected due to the gas leakage, which was inhaled by her mother when the child was in the womb. The doctor who examined the child on the sixth day of its birth found symptoms including eruption of body and smarting of the eye as well as breathlessness. Therefore, the Supreme Court held that as the infant too was the victim of the MIC poison, she was entitled to compensation. Various Human Rights Commissions also held that the stillborn child is entitled to compensation on account of the injuries caused or death occurred due to violation of human rights. Even the Transfer of Property Act recognized the rights of the stillborn child and several provisions of the Indian Penal Code, 1980, also provide for punishment by reason of MAC.APP.No.602/2009 Page 11 of 40 hurt or birth or abortion with regard to the stillborn child.
8. To decide whether a child in the womb of the mother can be called as a person, it is pertinent to discuss different stages of birth of a child in the womb of a mother. Technically the term developing ovum is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an 'embryo' from one week to the end of the second month and later it is called 'foetus'. It becomes an infant only when it is completely born. The life may enter immediately on the date of conception in the form of a small cell, which gets multiplied, but physically a mother can feel the movement of child only when the foetus is twenty weeks old i.e., five months, as the cell changes its structures and texture to become an eye, legs, bones, blood, head etc. and only when the child makes movements touching the internal walls of the womb, then the actual life does take its physical form, therefore, there may be controversy as regards the exact date of life entering the foetus but there cannot be any controversy as regards the life of the unborn child if a woman is carrying seven months pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy and the child still survives.
An unborn child aged five months onwards in the mother's womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a 'person' who can be the subject of an action for damages for his death. As already stated above a person means a human being regarded as an individual and an individual's body : concealed on his person'. Therefore, human foetus to whom personhood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day.
MAC.APP.No.602/2009 Page 12 of 40
9. In the instant case, admittedly the age of the stillborn child is ten months; therefore, I am of the opinion that the claimant is entitled to compensation under Section 140 read with Section 166 of the Act. In view of the aforesaid facts and circumstances of the case, I do not see any merit in any of the contentions of the learned Counsel for the appellant - insurance company."
(vi) Manikuttan Vs. M.N. Baby, 2009 ACJ 1497 (Kerala High Court) -
The accident resulted in the death of a pregnant woman carrying a four month old foetus. Compensation for loss of foetus was claimed. The Kerala High Court held that foetus is another life in the woman and it comes as a baby in the course of time. Loss of foetus upon death of a pregnant woman is actually loss of a child in the offing for the husband of the woman. The Court held that compensation to be granted for the death of a pregnant women is for loss of two lives.
The findings of the Court are as under:-
"In the first place, foetus is
another life in the woman and it comes as a baby in the course of time. Though foetus grows in the body of the woman, it cannot be
equated to or considered to be a part of the body of the woman. In effect, loss of the foetus consequent upon the death of the pregnant woman is actually loss of a child in the offing for the
husband of the woman. Secondly,
there is no scope for considering compensation for the bodily injury of the victim who died in the road
accident. Therefore, it would be illogical to grant compensation treating death of the foetus along with the woman dying in the accident treating MAC.APP.No.602/2009 Page 13 of 40 death of the foetus along with the Woman dying in the accident treating it as another bodily injury. In our view, compensation to be granted for the death of a pregnant woman in motor accident is for loss of two lives. Therefore, appellant in this case is certainly entitled to claim compensation separately for the loss of his child in the womb of his wife who perished in the accident."
14. The Himachal Pradesh High Court in the case of
Rakesh Kumar Vs. Prem Lal, 1996 ACJ 980 -
(MANU/HP/0043/1995) has taken the view that the foetus
is a part of the body of the deceased and no separate
compensation is admissible on the ground of loss of foetus.
15. The Bombay High Court, in the case of Margappa
Shethappa Vadar Vs. Proctor and Gamble India, 2008
ACJ 2802, has taken the contrary view holding that unborn
child in the womb is not a person within the meaning of
Sections 165 and 166 of the Motor Vehicles Act. The accident
resulted in death of a pregnant woman with 28 weeks old
foetus in her womb. Two claim petitions were filed before
the Claims Tribunal - one for the death of the woman and the
other for the death of unborn child in the womb. The learned
Tribunal rejected the claim holding that unborn child in the
womb will not be included in the word „person‟. Following
the Division Bench judgment of the Himachal Pradesh High
Court in the case of Rakesh Kumar Vs. Prem Lal, Bombay
High Court dismissed the appeal holding that the foetus or a
MAC.APP.No.602/2009 Page 14 of 40 child in the womb is not a person within the meaning of
Sections 165 and 166 of the Motor Vehicles Act.
16. The rights of an unborn child are well recognized in
various different legal contexts which are as under:-
(i) Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus:
"Explanation:-- For the purposes of this section, 'minor' includes a child in the womb."
(ii) Section 20 of the Hindu Succession Act, 1956 recognises the rights of a child in the womb. Section 20 reads thus:
"Section 20. Right of child in womb: A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate." (iii) Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author while dealing with Section 20. The commentary reads thus:
"It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are regarded by reference to the moment of conception and not of birth and MAC.APP.No.602/2009 Page 15 of 40 the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. The child in embryo is treated as in esse for various purposes when it is for his benefit to be so treated. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognises that rule of beneficent indulgence and the child in utero although subsequently born is to be deemed to be born before the death of the intestate and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate."
(iv) In the Indian Succession Act, 1925, 'minor' is defined under Section 2(e), which reads as follows:
"Section(2)(e) "minor" means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and "minority" means the status of any such person;"
Section 7 of the Indian Succession Act provides that the domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled and in the case of a posthumous child, in the country in which his father was domiciled at the time of the father's death. Section 112 of the Indian Succession Act recognises the rights of a person coming into existence after the death of a testator.
(v) Sections 13 and 20 of the Transfer of Property Act deal with situations in which on a transfer of property, an interest therein is created for the benefit of a person not in existence. As per Section 20, where on a transfer of property an MAC.APP.No.602/2009 Page 16 of 40 interest therein is created for an unborn person, he acquires on his birth, a vested interest.
(vi) Sections 312 to 316 of the Indian Penal Code provide for punishment for the offence of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc.
(vii) The question whether a posthumous child would succeed to the estate of his father or a testator was a vexed one for the courts. In Elliot v. Lord Joicey and Ors., 1935 A.C. 209, it was held thus:
"From the earliest times the posthumous child has caused a certain embarrassment to the logic of the law, which is naturally disposed to insist that at any given moment of time a child must either be born or not born, living or not living. This literal realism was felt to bear hardly on the interests of posthumous children and was surmounted in the Civil Law by the invention of the fiction that in all matters affecting its interests the unborn child in utero should be deemed to be already born. The classical statement is to be found in the words of Paulus: "Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partus quaeritur: quanquam alii, antequam nascatur, nequaquam prosit" (Dig. Bk.l. Tit. v. De Statu Hominum, Section 7), thus rendered in Monro's translation: "An unborn child is taken care of just as much as if it were in existence, in any case in which the child's own advantage comes in question; though no one else can derive any benefit through the child before its birth." 'There is indeed," says Craig, commenting on this passage, "no reason in the case of a posthumous child to aggravate the calamity it suffers by the premature death of the father, nor to make
MAC.APP.No.602/2009 Page 17 of 40 that event a ground for diminishing its rights" (Jus Feudale, Lib. II., Dieg. 13, Section 15; Lord Clyde's translation II .p.643). This fiction has undoubtedly been adopted in the law of Scotland.... It is satisfactory for the purposes of the present case to find that the law of England in this matter is to all intents and purposes the same as the law of Scotland. The same fiction, derived from the same source in the Civil Law, and qualified by the same condition, is common to both systems. In the English case of Villar v. Gilbey, (1907) A.C. 139 your Lordships' House had occasion to emphasize that the limitation, which the Court of Appeal had there discarded, was an essential part of "this peculiar rule of construction," which accordingly applies only where it is for the benefit of the unborn child to apply it."
(viii) In Moore v. Wingfield, (1903) 2 Ch. 411, Justice Vaughan Williams L.J. held:
"In Blackstone's Commentaries, 4th ed. vol.i. 129, 130, it is stated that in contemplation of law life begins as soon as an infant is able to stir in the mother's womb: "For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child death in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter." Then the learned author goes on: "An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to it's use, and to take afterwards by such limitation, as if it were then actually born." And the rule as to a posthumous child being capable of taking in remainder (1) is stated in the same work, vol.ii, 169.1 merely mention this because part of Mr. Buckmaster' s argument seems to have proceeded upon the assumption that MAC.APP.No.602/2009 Page 18 of 40 although, according to Buckley J's judgment, there was a rule that a child during the period of gestation was to be treated as "a life in being," that was a rule of law applicable in some cases only. In my opinion, upon the authorities, that rule is applicable when you have to deal with the rule against perpetuities. For that purpose it is plain that, as soon as the child is born, that satisfies the limitation, and you retrospectively treat the life of that child as "a life in being" at the death of the testator." In the same decision, Romer L.J., held thus:
"For the purpose of deciding questions of perpetuity arising upon gifts in a will of the kind we find in the will in the present case, there is, in my opinion, an established rule that a child en ventre sa mere at the time of the testator's death, who is subsequently born, must be treated as having been alive at the death of the testator. And I do not think that rule should be departed from merely because, for some reason, it is in the interest of the child to contend that the gift is void as infringing the rule against perpetuity."
(ix) In Aswini Kumar Pan v. Parimal Debi, : AIR1964Cal354 , a question arose whether a posthumous son, within three years of his attaining majority, could challenge an alienation made by his widowed mother. Holding in the affirmative, it was held:
"13. We put it on the short ground that, in law, a child in the mother's womb is deemed to be in existence, at least for purposes of inheritance, which alone are relevant here, and has thus a right to challenge any transaction, which affects its interest at the time. If so, it has a right of action or a cause of action in respect of the said transaction and is entitled to institute a suit upon the same and, as such a child, as aforesaid, cannot, under the Indian Majority Act, be held to be a major, it must be held to be a minor, that is, a person, suffering from MAC.APP.No.602/2009 Page 19 of 40 disability, as contemplated in the aforesaid Section 6 of the Indian Limitation Act. This, we may respectfully add, has been rightly pointed out in the above three decisions of the Madras, Bombay and Allahabad High Courts, namely, : AIR1951All630 , already cited, and their Lordships have sufficiently demonstrated in those three decisions that there is nothing in the Indian Majority Act or in the Indian Limitation Act either, which conflicts with the view that a child in the mother's womb is a person in existence and is a minor. Indeed, so far as this latter part is concerned, namely, that such a child, if it be a person in existence, must be a minor, the relevant statute (the Indian Majority Act) carries its own confirmation, as, obviously on the terms of Section 3 and/or Section 4 of the said Act, a person is a minor until he attains the relevant age of majority, be it eighteen or twenty-one years, as the case may be, and as, so far as the theory of a child en ventre sa mere is concerned, if it otherwise applies to a particular case, as here, which is a case of inheritance, neither of the above two statutes would exclude it or render it inapplicable."
(x) Black's Law Dictionary refers to "rights of unborn child", thus: "The rights of an unborn child are recognised in various different legal contexts; e.g. in criminal law, murder includes the unlawful killing of a foetus (Cal. Penal Code Section187), and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth, an action will lie for his wrongful death. While certain States have allowed recovery even though the injury occurred during the early weeks MAC.APP.No.602/2009 Page 20 of 40 of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa.267,167 A.2d.93; Smith v. Brennan, 31 N.J.353, 157 A.2d.497, other States require that the foetus be viable before a civil damage action can be brought on behalf of the unborn child."
(xi) The legal status of unborn persons is discussed in Salmond on Jurisprudence, 11th Edition, at pages 354 and 355, the relevant portion of which reads as follows:
"Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. ....
A child in its mother's womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: "The law in many cases hath consideration of him in respect of the apparent expectation of his birth". Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities."
The rights of the child in the womb, in the matter of succession, are well protected by laws of the land.
17. This Court is of the view that the rights of an unborn
child are recognised in various different legal contexts; e.g.
in criminal law causing death of foetus has been held to be
an offence under Sections 312 to 316 of the Indian Penal
Code, and the law of property considers the unborn child in MAC.APP.No.602/2009 Page 21 of 40 being for all purposes which are to its benefit, such as taking
by will or descent. This Court is in respectful agreement with
the judgments of Andhra Pradesh High Court in the case of
Oriental Insurance Co. Ltd. (supra) and Kerala High Court
in the case of Manikuttan (supra), and holds that an unborn
child aged five months onwards in mother‟s womb till its
birth is treated as equal to a child in existence. The unborn
child to whom the live birth never comes is held to be a
'person' who can be the subject of an action for damages for
his death. The foetus is another life in woman and loss of
foetus is actually a loss of child in the offing. The appellants
are, therefore, entitled to compensation for the loss of
foetus.
18. The learned counsel for the appellants refers and relies
upon the judgment of this Court in the case of National
Insurance Co. Ltd. Vs. Farzana, MAC APP. No.13/2007
decided on 14th July, 2009 in which compensation of
Rs.3,75,000/- has been determined in respect of the death of
a child aged 7 years, following the judgments of the Hon‟ble
Supreme Court and this Court in the cases of Manju Devi
Vs. Musafir Paswan, VII (2005) SLT 257, Sobhagya
Devi Vs. Sukhvir Singh, II (2006) ACC 1997, Syam
Narayan Vs. Kitty Tours & Travels, 2006 ACJ 320, R.K.
Malik vs. Kiran Pal, III (2006) ACC 261, R.K. Malik vs.
Kiran Pal, 2009(8) Scale 451. This Court held as under: -
MAC.APP.No.602/2009 Page 22 of 40 "4. In the case of Manju Devi Vs. Musafir Paswan, VII (2005) SLT 257, the Hon‟ble Supreme Court awarded compensation of Rs.2,25,000/- in respect of death of a 13-years old boy by applying the multiplier of 15 and taking the notional income of Rs.15,000/- as per the Second Schedule of the Motor Vehicles Act. The relevant portion of the said judgment is reproduced hereunder:-
"As set out in the Second Schedule to the Motor Vehicles Act, 1988, for a boy of 13 years of age, a multiplier of 15 would have to be applied. As per the Second Schedule, he being a non- earning person, a sum of Rs.15,000/- must be taken as the income. Thus, the compensation comes to Rs.2,25,000/-"
5. The case of Sobhagya Devi & Ors. Vs. Sukhvir Singh & Ors., II (2006) ACC 1997 relates to the death of a 12-year old boy. Following the decision of the Apex Court in Manju Devi's case (supra), the Rajasthan High Court awarded Rs.2,25,000/- by applying the Second Schedule of the Motor Vehicles Act.
6. The case of Syam Narayan Vs. Kitty Tours & Travels, 2006 ACJ 320 relates to the death of a child aged 5 years. This Court relying on the judgment of the Apex Court in Manju Devi's case (supra) awarded compensation to the parents by applying the notional income of Rs.15,000/- and multiplier of 15 as per the Second Schedule and further awarded Rs.50,000/- for loss of company of the child as also pain and suffering by them. The relevant portion of the said judgment is reproduced hereunder:-
"3. By and under the award dated 5.12.2003, a sum of Rs.1,00,000/- has been awarded to the appellants.
While awarding sum of Rs.1,00,000/- to appellants, learned M.A.C.T. has held that the income of the deceased child was incapable of assessment or estimation. Recognising that every parent has a reasonable expectation of financial and moral support from his child, in the absence of any MAC.APP.No.602/2009 Page 23 of 40 evidence led, learned M.A.C.T. opined that the interest of justice requires that appellants are compensated with the sum of Rs.1,00,000/-.
4. Had the Tribunal peeped into the Second Schedule, as per section 163-A of Motor Vehicles Act, 1988, it would have dawned on the Tribunal that vide serial No.6, notional income for compensation in case of fatal accidents has been stipulated at Rs.15,000/- per annum.
5. In the decision reported as Manju Devi V. Musafir Paswan, 2005 ACJ 99 (SC), dealing with the
accidental death of 13 years old boy, while awarding compensation under the Motor Vehicles Act, 1988, Apex Court took into account the notional income stipulated in the Second
Schedule being Rs.15,000/- per annum.
6. In the instant case, baby Chanda was aged 5 years. Age of the appellants as on date of accident was 28 years and 26 years respectively as recorded in the impugned award.
Applying a multiplier of 15 as set out in Second Schedule which refers to the said multiplier, where age of the victim is upto 15 years, compensation determinable comes to Rs.15,000 x 15 = Rs.2,25,000/-.
7. The learned Tribunal has awarded Rs.1,00,000/- towards loss of expectation of financial and moral support as also loss of company of the child, mental agony, etc. I have found that the parents are entitled to compensation in the sum of Rs.2,25,000/- on account of loss of financial support from the deceased child. I award a sum of Rs.50,000/- on account of loss of company of the child as also pain and suffering suffered by them as a result of the untimely death of baby Chanda.
Appeal accordingly stands disposed of MAC.APP.No.602/2009 Page 24 of 40 enhancing the compensation to Rs.2,75,000/-.
7. In the case of R.K. Malik vs. Kiran Pal, III (2006) ACC 261, 22 children died in an accident of a school bus which fell in river Yamuna. This Court held the Second Schedule of the Motor Vehicles Act to be the appropriate method for computing the compensation. With respect to the non-pecuniary damages, the Court observed that loss of dependency of life and pain and suffering on that account, generally speaking is same and uniform to all regardless of status unless there is a specific case made out for deviation. This Court awarded Rs.75,000/- towards non-pecuniary compensation.
8. The aforesaid judgment of this Court was challenged before the Hon‟ble Supreme Court and which has been decided recently on 15th May, 2009 and is reported as R.K. Malik vs. Kiran Pal,2009(8) Scale 451. The Hon‟ble Supreme Court held that the claimants are also entitled to compensation towards future prospects. The Hon‟ble Supreme Court held that the claimants are entitled to compensate towards future prospects and granted further compensation of Rs.75,000/- towards future prospects of the children. The findings of the Hon‟ble Supreme Court are as under:-
"19. The other issue is with regard to non-pecuniary compensation to the appellants-dependents on the loss of human life, loss of company, companionship, happiness, pain and suffering, loss of expectation of life etc.
20. In the Halsbury's Laws of
England, 4th Edition, Vol. 12, page 446, it has been stated with regard to non-pecuniary loss as follows:
"Non-pecuniary loss: the
pattern. Damages awarded for
pain and suffering and loss of
amenity constitute a
conventional sum which is taken
to be the sum which society
deems fair, fairness being
MAC.APP.No.602/2009 Page 25 of 40 interpreted by the Courts in the light of previous decisions. Thus there has been evolved a set of
conventional principles providing a provisional guide to the comparative severity of
different injuries, and indicating a bracket of damages into which
a particular injury will currently fall. The particular circumstance of the plaintiff, including his age and any unusual deprivation he
may suffer, is reflected in the
actual amount of the award. The
fall in the value of money leads to a continuing reassessment of
these awards and to periodic
reassessments of damages at
certain key points in the pattern where the disability is readily
identifiable and not subject to
large variations in individual
cases.
21. In the case of Ward v. James (1965) I All E R 563, it was observed:
"Although you cannot give a
man so gravely injured much for
his `lost years', you can,
however, compensate him for
his loss during his shortened,
span, that is, during his expected `years of survival'. You can compensate him for his loss
of earnings during that time, and for the cost of treatment,
nursing and attendance. But
how can you compensate him
for being rendered a helpless
invalid? He may, owing to brain
injury, be rendered unconscious
for the rest of his days, or, owing to a back injury, be unable to
rise from his bed. He has lost
everything that makes life
worthwhile. Money is no good to
him. Yet Judges and juries have
to do the best they can and give him what they think is fair. No
wonder they find it well nigh
MAC.APP.No.602/2009 Page 26 of 40 insoluble. They are being asked
to calculable. The figure is
bound to be for the most part a
conventional sum. The Judges
have worked out a pattern, and
they keep it in line with the
changes in the value of money.
22. The Supreme Court in the case of R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551, at page 556, has observed as follows in
para 9:
"9. Broadly speaking while fixing an amount of compensation
payable to a victim of an
accident, the damages have to
be assessed separately as
pecuniary damages and special
damages. Pecuniary damages
are those which the victim has
actually incurred and which are
capable of being calculated in
terms of money; whereas non-
pecuniary damages are those
which are incapable of being
assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include
expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i)
damages for mental and physical shock, pain and suffering, already suffered or
likely to be suffered in future; (ii) damages to compensate for the
loss of amenities of life which
may include a variety of matters i.e. on account of injury the
claimant may not be able to
walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the
normal longevity of the person
MAC.APP.No.602/2009 Page 27 of 40 concerned is shortened; (iv)
inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life."
In this case, the Court awarded
non-pecuniary special damages
of Rs. 3, 00,000/- to the
claimants.
23. In Common Cause, A Registered Society v. Union of India (1999) 6 SCC 667 @ page 738, it was observed:
"128. The object of an award of
damages is to give the plaintiff compensation for damage, loss
or injury he has suffered. The
elements of damage recognised
by law are divisible into two
main groups: pecuniary and
non-pecuniary. While the pecuniary loss is capable of
being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money,
not as a substitute or replacement for other money,
but as a substitute, what
McGregor says, is generally
more important than money: it
is the best that a court can do. In Mediana, Re Lord Halsbury,
L.C. observed as under: "How is
anybody to measure pain and
suffering in moneys counted?
Nobody can suggest that you
can by arithmetical calculation
establish what is the exact sum
of money which would represent
such a thing as the pain and
suffering which a person has
undergone by reason of an
accident.... But nevertheless the law recognises that as a topic
upon which damages may be
given."
MAC.APP.No.602/2009 Page 28 of 40
24. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non- payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount
payable with mathematical accuracy. Human life cannot be measured only in terms of loss of earning or
monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has
suffered non-pecuniary loss or damage as a consequence of the
wrong done to him by way of
damages/monetary compensation. Undoubtedly, when a victim of a
wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for "loss of
expectation of life". This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependant brings about the action.
25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an
appropriate figure, an adequate
solatium is difficult to specify. The courts have therefore used the
expression "standard compensation" and "conventional amount/sum" to get over the difficulty that arises in MAC.APP.No.602/2009 Page 29 of 40 quantifying a figure as the same ensures consistency and uniformity in awarding compensations.
26. While quantifying and arriving at a figure for "loss of expectation of life", the Court have to keep in mind that this figure is not to be calculated for the prospective loss or further
pecuniary benefits that has been awarded under another head i.e.
pecuniary loss. The compensation payable under this head is for loss of life and not loss of future pecuniary prospects. Under this head, compensation is paid for termination of life, which results in constant pain and suffering. This pain and suffering does not depend upon the financial position of the victim or the claimant but rather on the capacity and the ability of the deceased to provide happiness to the claimant. This
compensation is paid for loss of prospective happiness which the
claimant/victim would have enjoyed had the child not been died at the tender age.
27. In the case of Lata Wadhwa
(supra), wherein several persons including children lost their lives in a fire accident, the Court awarded substantial amount as compensation. No doubt, the Court noticed that the children who lost their lives were studying in an expensive school, had bright prospects and belonged to upper middle class, yet it cannot be said that higher compensation awarded was for deprivation of life and the pain and suffering undergone on loss of life due to financial status. The term "conventional compensation" used in the said case has been used for non pecuniary
compensation payable on account of pain and suffering as a result of death. The Court in the said case referred to Rs. 50, 000/- as conventional figure. The reason was MAC.APP.No.602/2009 Page 30 of 40 loss of expectancy of life and pain and suffering on that account which was common and uniform to all regardless of the status. Unless there is a specific case departing from the conventional formula, non- pecuniary compensation should not be fixed on basis of economic wealth and
background.
28. In Lata Wadhawa case (supra), wherein the accident took place on 03.03.1989, the multiplier method was referred to and adopted with approval. In cases of children between 5 to 10 years of age, compensation of Rs. 1.50 lakhs was awarded towards pecuniary compensation and in addition a sum of Rs. 50,000/- was awarded towards `conventional compensation". In the case of children between 10 to 18 years compensation of Rs. 4.10 lakhs was awarded
including "conventional compensation". While doing so the Supreme Court held that contribution of each child towards family should be taken as Rs. 24,000/- per annum
instead of Rs. 12, 000/- per annum as recommended by Justice Y. V.Chandrachud Committee. This was in view of the fact that the company in question had an un-written rule that every employee can get one of his children employed in the said company.
29. In the case of M.S. Grewal v. Deep Chand Sood MANU/SC/0506/2001,
wherein 14 students of a public school got drowned in a river due to
negligence of the teachers. On the question of quantum of compensation, this Court accepted that the multiplier method was
normally to be adopted as a method for assigning value of future annual dependency. It was emphasized that the Court must ensure that a just compensation was awarded.
MAC.APP.No.602/2009 Page 31 of 40
30. In Grewal case (supra), compensation of Rs. 5 lakhs was
awarded to the claimants and the same was held to be justified. Learned Counsel for the respondent No. 3, however, pointed out that in the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and therefore the compensation of Rs. 5 lakhs as
awarded by the High Court was not found to be excessive. It is no doubt true that the Supreme Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would
equally apply to the present case.
31. A forceful submission has been made by the learned Counsels
appearing for the claimants- appellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such
submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to
consider the said aspect while
awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in General Manager, Kerala S. R. T. C. v. Susamma Thomas(1994) 2 SCC 176;
Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179; and Lata Wadhwa case
(supra).
MAC.APP.No.602/2009 Page 32 of 40
32. In view of discussion made
hereinbefore, it is quite clear the claim with regard to future prospect should have been be addressed by the courts below. While considering such claims, child's performance in school, the reputation of the school etc. might be taken into consideration. In the present case, records shows that the children were good in studies and studying in a reasonably good school. Naturally, their future prospect would be
presumed to be good and bright.
Since they were children, there is no yardstick to measure the loss of future prospects of these children. But as already noted, they were performing well in studies, natural consequence supposed to be a bright future. In the case of Lata Wadhwa (supra) and M. S. Grewal (supra), the Supreme Court recognised such
future prospect as basis and factor to be considered. Therefore, denying compensation towards future prospects seems to be unjustified. Keeping this in background, facts and circumstances of the present case, and following the decision in Lata Wadhwa (supra) and M. S. Grewal
(supra), we deem it appropriate to grant compensation of Rs. 75,000/- (which is roughly half of the amount given on account of pecuniary
damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision. We would like to clarify that this amount i.e. Rs. 75,000/- is over and above what has been awarded by the High Court.
33. Besides, the Courts have been awarding compensation for pain and suffering and towards non-pecuniary damages. Reference in this regard can be made to R. D. Hattangadi case (supra). Further, the said compensation must be just and
MAC.APP.No.602/2009 Page 33 of 40 reasonable. This Court has observed as follows in State of Haryana v. Jasbir Kaur (2003) 7 SCC 484:
"7. It has to be kept in view that the Tribunal constituted under
the Act as provided in Section
168 is required to make an
award determining the amount
of compensation which is to be
in the real sense "damages"
which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs
or life can hardly be weighed in golden scales. But at the same
time it has to be borne in mind
that the compensation is not
expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just"
and it cannot be a bonanza; not
a source of profit; but the same should not be a pittance. The
courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be
just. What would be "just"
compensation is a vexed question. There can be no
golden rule applicable to all
cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at
by precise mathematical calculations. It would depend
upon the particular facts and
circumstances, and attending
peculiar or special features, if any. Every method or mode
adopted for assessing compensation has to be considered in the background of
"just" compensation which is the pivotal consideration. Though by use of the expression "which
appears to it to be just" a wide discretion is vested in the
MAC.APP.No.602/2009 Page 34 of 40 Tribunal, the determination has
to be rational, to be done by a
judicious approach and not the
outcome of whims, wild guesses
and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non- arbitrary. If it is not so it cannot be just."
34. So far as the pecuniary damage is concerned we are of the considered view both the Tribunal as well as the High Court has awarded the compensation on the basis of Second Schedule and relevant multiplier under the Act. However, we may
notice here that as far as non-
pecuniary damages are concerned, the Tribunal does not award any
compensation under the head of non- pecuniary damages. However, in
appeal the High Court has elaborately discussed this aspect of the matter and has awarded non-pecuniary
damages of Rs. 75,000. Needless to say, pecuniary damages seeks to
compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses. In contrast, non- pecuniary damages include such
immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non-pecuniary loss. As already noted it is difficult to quantify the non-pecuniary compensation, nevertheless, the endeavour of the Court must be to provide a just, fair and reasonable amount as compensation keeping in view all relevant facts and circumstances into consideration. We have noticed that the High Court in present case has enhanced the
compensation in this category by Rs. 75, 000/- in all connected appeals. We MAC.APP.No.602/2009 Page 35 of 40 do not find any infirmity in that regard."
9. The learned Tribunal was in error in taking the notional income to be Rs.22,500/- per annum. Following the aforesaid judgments, the notional income of the deceased is taken to be Rs.15,000/- per annum and applying the multiplier of 15, the claimants are entitled to loss of dependency of Rs.2,25,000/-. The claimants are also entitled to compensation of Rs.75,000/- towards the future prospects in terms of the judgment of the Hon‟ble Supreme Court in R.K. Malik Vs. Kiran Pal, 2009 (8) Scale 451. The claimants are also entitled to a further sum of Rs.75,000/- towards non-pecuniary damages in terms of the judgment of this Court in the case of R.K. Malik Vs. Kiran Pal, III (2006) ACC 261 upheld by the Hon‟ble Supreme Court. The claimants are entitled to total compensation of Rs.3,75,000/- (Rs.2,25,000/- + Rs.75,000/- + Rs.75,000/-)."
19. The learned counsel for the appellants submits that
compensation of Rs.3,75,000/- be awarded to the appellants
following the judgment of this Court in National Insurance
Company Ltd. Vs. Farzana (supra).
20. The judgment of this Court in National Insurance
Company Ltd. Vs. Farzana (supra) relates to the death of
7 year old child whereas the present case relates to the
death of a seven months old foetus. The seven months old
foetus cannot be compared with seven years old child and,
therefore, this Court is not inclined to award Rs.3,75,000/- to
the appellants. A foetus shall be treated as a child does not
mean that the compensation in respect of a foetus shall be
equal to a seven year old school going child. The love and
affection of the parents for seven year old child cannot be
MAC.APP.No.602/2009 Page 36 of 40 equated with that of a foetus which has yet to take birth.
The love and affection develops after the birth of the child
and it keeps on growing and goes deep in the memory. The
death of a seven year old child would leave deep memories
and, therefore, deeper hurt. In case of death of a child, the
photographs of the child and other articles belonging to
him/her keep on reminding the parents of the child and make
them sad. Memories are also refreshed when parents see
other children of same age and it takes a very long time for
pain and suffering to dissolve, whereas there are no such
memories in case of a foetus and, therefore, lesser hurt. The
compensation awarded to a seven year old child, therefore,
needs appropriate correction. Considering that Rs.2,50,000/-
was awarded by Madhya Pradesh High Court in the case of
Shraddha (supra), Rs.2,00,000/- by Madras High Court in
the case of Krishnaveni (supra) and Rs.1,50,000/- by
Karnataka High Court in the case of Bhawaribai (supra),
Rs.2,50,000/- is awarded to the appellants in the present
case.
21. The appeal is allowed and the compensation of
Rs.2,50,000/- along with interest @7.5% per annum from the
date of filing of the petition till realization is awarded to
appellant No.1 towards the death of seven months old foetus
on 17th June, 2008.
22. Considering the important question of law involved, this
Court appointed Ms. Rajdipa Behura, Advocate as amicus MAC.APP.No.602/2009 Page 37 of 40 curiae to assist this Court. This Court appreciates the able
assistance rendered by the learned amicus curiae.
23. The award amount be deposited by respondent No.2
with UCO Bank, Delhi High Court Branch A/c Prakash by
means of a cheque through Mr. M.M. Tandon, Member-Retail
Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile
No. 09310356400) within 30 days.
24. Upon the aforesaid deposit being made, the UCO Bank
is directed to keep a sum of Rs.2,00,000/- in fixed deposit in
the name of appellant No.1 in the following manner:-
(i) Fixed deposit for Rs.25,000/- for a period of six
months.
(ii) Fixed deposit for Rs.25,000/- for a period of one
year.
(iii) Fixed deposit for Rs.25,000/- for a period of one
and a half years.
(iv) Fixed deposit for Rs.25,000/- for a period of two
years.
(v) Fixed deposit for Rs.25,000/- for a period of two
and a half years.
(vi) Fixed deposit for Rs.25,000/- for a period of three
years.
(vii) Fixed deposit for Rs.25,000/- for a period of three
and a half years.
(viii) Fixed deposit for Rs.25,000/- for a period of four
years.
MAC.APP.No.602/2009 Page 38 of 40
25. The remaining amount be released to appellant No.1 by
transferring the same to his Saving Bank Account.
26. The interest on the aforesaid fixed deposits shall be
paid monthly by automatic credit of interest in the Savings
Account of the appellant.
27. Withdrawal from the aforesaid account shall be
permitted to appellant No.1 after due verification and the
Bank shall issue photo Identity Card to appellant No.1 to
facilitate identity.
28. No cheque book be issued to appellant No.1 without the
permission of this Court.
29. The original Fixed Deposit Receipts shall be retained by
the Bank in the safe custody. However, the original Pass
Book shall be given to appellant No.1 along with the
photocopy of the FDRs.
30. The original Fixed Deposit Receipts shall be handed
over to appellant No.1 on the expiry of the period of the
FDRs.
31. No loan, advance or withdrawal shall be allowed on the
said fixed deposit receipts without the permission of this
Court.
31. Half yearly statement of account be filed by the Bank in
this Court.
32. On the request of appellant No.1, the Bank shall
transfer the Savings Account to any other branch of UCO
Bank according to the convenience of the appellant. MAC.APP.No.602/2009 Page 39 of 40
33. Appellant No.1 shall furnish all the relevant documents
for opening of the Saving Bank Account and Fixed Deposit
Account to Mr. M.M. Tandon, Member-Retail Team, UCO Bank
Zonal, Parliament Street, New Delhi.
34. List for reporting compliance on 23rd April, 2010.
35. Copy of the order be given dasti to counsel for both the
parties under the signature of Court Master.
36. Copy of this order be also sent to Mr. M.M. Tandon,
Member-Retail Team, UCO Bank Zonal, Parliament Street,
New Delhi (Mobile No. 09310356400) through the UCO Bank,
High Court Branch under the signature of Court Master.
J.R. MIDHA, J
FEBRUARY 05, 2010
MAC.APP.No.602/2009 Page 40 of 40
Print Page
Delhi High Court
Prakash & Ors vs Arun Kumar Saini & Anr on 5 February, 2010
1. This appeal involves a important question as to whether
an unborn child in womb should be considered at par with a
minor child.
2. The appellants have challenged the award of the
learned Tribunal whereby compensation of Rs.6,11,000/- has
been awarded to the appellants. The appellants seek
enhancement of the award amount.
3. The accident dated 8th June, 2008 resulted in the death of
Indu Devi. The deceased was survived by her husband and two
MAC.APP.No.602/2009 Page 1 of 40 children who filed the claim petition before the learned
Tribunal.
4. The deceased was aged 25 years at the time of the
accident. The deceased was a housewife. It was claimed that
the deceased was also working as a housemaid and was
earning Rs.5,500/- to Rs.6,000/- per month. However, in the
absence of any documentary proof of occupation and income,
the learned Tribunal took the deceased to be a housewife and
the value of her services was taken as Rs.3,000/- per month
and the multiplier of 16 was applied to compute the loss of
dependency at Rs.5,76,000/-. Rs.10,000/- has been awarded
for loss of consortium, Rs.20,000/- towards loss of love and
affection and Rs.5,000/- towards funeral expenses. The total
compensation awarded is Rs.6,11,000/-.
5. The learned counsel for the appellants submits that the
deceased was pregnant with a foetus of about 24 to 28 weeks
(about seven months) at the time of the accident. The learned
counsel further submits that the appellants are entitled to
compensation for the death of unborn child in the womb.
6. The learned Tribunal has held that though seven months
pregnancy was recorded in the MLC but the post-mortem report
- Ex.P-1 (colly.) recorded that the uterus of the deceased did
not contain any foetus. The learned Tribunal further held that
no doctor has been examined to prove the pregnancy of the
deceased and, therefore, no compensation was awarded for the
death of the foetus. The finding of the learned Tribunal in this
regard is as under:-
MAC.APP.No.602/2009 Page 2 of 40 "In the MLC of the deceased Indu Devi bearing no.99734, it has been mentioned that the deceased had a history of 7 months pregnancy but the postmortem report, which has been brought on record collectively as Ex.P-1 clearly states that the Uterus of the deceased did not contain any foetus or any placenta. If the deceased was operated upon the foetus, if any, was removed, then this fact has not been established on record by the petitioner. Even in the petition filed by the petitioner, it has nowhere been mentioned by the petitioner that the deceased Indu Devi was pregnant at the time of accident and carrying a 7 months old foetus and the affidavit of petitioner, which is Ex.PW2/A, carries only a bald testimony of the petitioner no.1 to this effect. No doctor has also been examined by the petitioner to prove this fact. However, the medical evidence in the form of the postmortem report, which has been placed on record, does not fortify the bald stand of the petitioner also. Any other treatment record, which would establish that the deceased was actually pregnant at the time of accident, the mentioning of pregnancy in the MLC is only a history of the patient i.e. the deceased, which was narrated by the person who was accompanying the deceased and in the instant case, it was most probably the petitioner Smt. Ratha. Since the medical evidence has not corroborated this fact, it is held that it was only the deceased Indu Devi, who sustained fatal injuries in the accident in question."
7. The learned counsel submits that the accident occurred
on 8th June, 2008 and the MLC records the "uterus size up to
umbilical weight approximately 24 to 28 weeks." It is
submitted that the unborn child died in womb on 17th June,
2008 and was removed while the mother was alive. The
mother expired on 14th August, 2008 and at that time, the
foetus was not inside the womb of the deceased. However,
no material was placed before the Claims Tribunal to prove
that the foetus was removed before the death of the
deceased.
MAC.APP.No.602/2009 Page 3 of 40
8. The learned Tribunal did not conduct any inquiry under
Section 168 of the Motor Vehicles Act to ascertain whether
the dead foetus was removed from the body of the deceased
before her death. This Court, therefore, conducted an inquiry
under Section 168 of the Motor Vehicles Act to ascertain the
truth. Vide order dated 21st December, 2009, the notice was
issued to Sushruta Trauma Centre as well as LNJP Hospital to
send the doctor who treated the deceased along with the
complete medical record of the deceased.
9. On 27th January, 2010, Dr. Satender Kumar, CMO
(Casualty Medical Officer), Sushruta Trauma Centre, Delhi
and Dr. P.N. Pandey, Head of Neurosurgery Department, LNJP
Hospital, New Delhi appeared before this Court and their
statements on oath were recorded before this Court. Dr.
Satender Kumar deposed that the deceased was brought to
Sushruta Trauma Centre on 8th June, 2008 after a road
accident. Dr. Satender Kumar examined the deceased and
prepared the MLC and admitted her in neurosurgery
department. The complete medical record of Sushruta
Trauma Centre relating to the deceased was produced and
marked as Ex.PW1/1 (Colly.) in which the pregnancy of the
deceased has been mentioned at points „A‟ & „B‟. The
ultrasound of the deceased was also done at Sushruta
Trauma Centre. The report of the ultrasound was marked at
point „C‟. The deceased was thereafter shifted to LNJP
Hospital on the same day.
MAC.APP.No.602/2009 Page 4 of 40
10. Dr. P.N. Pandey, Head of Neurosurgery Department,
LNJP Hospital deposed that the deceased was admitted in
LNJP Hospital on 8th June, 2008. CT Scan was performed and
the deceased was operated for acute subdural hematoma.
After the operation, the deceased was shifted to I.C.U. On
17th June, 2008, there was absence of foetus movement and
it was found that the foetus had died. The foetus was
removed by the Gynecologist on 17 th June, 2008. The
original record of LNJP Hospital was produced before this
Court and was marked as Ex.PW-2/1 (Colly.) in which the
removal of the foetus was mentioned in the record at point
„A‟. The deceased expired on 14th August, 2008. Since the
foetus was removed from the body of the deceased on 17 th
June, 2008, there was no foetus in the womb at the time of
death of the deceased and, therefore, it did not find mention
in the post-mortem report.
11. From the statements of Dr. Satender Kumar, CMO,
Sushruta Trauma Centre, Dr. P.N. Pandey, Head of
Neurosurgery Department, LNJP Hospital and medical records
- Ex.PW1/1 of Sushruta Trauma Centre, Ex.PW2/1 of LNJP
Hospital and MLC - Ex. P-1 (colly.), it has been proved
beyond doubt that the deceased was about seven months
pregnant at the time of the accident on 8th June, 2008. The
MLC clearly records "uterus size up to umbilical weight
approximately 24 to 26 weeks." It has further been proved
from the statement of Dr. P.N. Pandey and the medical MAC.APP.No.602/2009 Page 5 of 40 record - Ex.PW2/1 that the foetus died on 17th June, 2008 and
was removed on the same day. The removal of the foetus is
mentioned in Ex.PW2/1 (Colly.) at point „A‟. The deceased
expired on 14th August, 2008, i.e, after about two months
from the date of death of the foetus and, therefore, the
foetus was not found in the post-mortem report.
12. The learned counsel for the appellants submits that the
unborn child in womb should be considered at par with a
minor child and the compensation be awarded for the death
of the unborn child.
13. The Karnataka High Court, Madhya Pradesh High
Court, Andhra Pradesh High Court and Kerala High
Court have taken a view that the death of the foetus should
be considered as equal to the death of the child for the
purpose of computation of compensation in the following
cases:-
(i) The Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation Vs. Vidya Shindhe, 2005 ACJ 69 (Karnataka High Court) -
The accident resulted in grievous injuries to a pregnant woman. The surgery known as „Foetal distress‟ was conducted and she gave birth to a child who died after two days of delivery. The claim for compensation on account of the death of the child was filed. The learned Tribunal awarded Rs.1,50,000/- towards death of the child which was challenged before the Karnataka High Court on the ground that the claim
MAC.APP.No.602/2009 Page 6 of 40 was not maintainable as the child was not born on the date of the accident.
The Karnataka High Court held that as per the doctor‟s advice if the foetus had completed 37 weeks, for all practical purposes even the still-born child has to be considered as child and the claim petition filed by the mother on account of death of her two days old child who was born subsequent to the date of the accident was maintainable. The award of Rs.1,50,000/- by the learned Tribunal was upheld.
The findings of the Karnataka High Court in the above case are as under:-
"As per the doctor's evidence, if the foetus has completed 37 weeks, for all purposes even the still-born child has to be considered as child. In the instant case, in the accident the child had also received injuries which compelled the mother to undergo a surgery. The baby died due to the injuries sustained by him in the accident while in the womb. Though there is no direct impact between the vehicle and the baby, since the baby had received injuries while in the womb; this Court has to hold that there is a nexus between the accident and the cause of death of the child. In the circumstances, this Court is of the opinion that the claim petition filed by the mother on account of the death of her two days baby who has born subsequent to the accident as maintainable."
(ii) Bhawaribai Vs. New India Assurance Co. Ltd., 2006 ACJ 2085 (Karnataka High Court) -
The claimant suffered abortion on account of the accident. The Karnataka High Court considered the death of foetus in womb at par with death of a minor. The findings of the Court are as under:-
MAC.APP.No.602/2009 Page 7 of 40 "In the case of abortion and death of foetus in the womb should be considered on par with the case of a death of a minor."
(iii) Shraddha Vs. Badresh, 2006 ACJ 2067 (Madhya Pradesh High Court) -
The accident resulted in injury to a pregnant women carrying seven months old foetus. Due to accident, the claimant delivered a dead male baby by operation. The Tribunal awarded Rs.70,000/- towards the medical expenses and Rs.80,000/- towards the non- pecuniary compensation.
The appeal was filed for enhancement of the compensation. Madhya Pradesh High Court followed the judgment of the Karnataka High Court in the case of Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation (supra) and enhanced the compensation from Rs.1,50,000/- to Rs.2,50,000/- . The Court held that a still-born baby has to be considered as child.
The findings of the Court are as under:-
"For the purpose of considering the case for awarding compensation even the stillborn baby has to be considered as child. Stillborn baby died in the womb due to the injuries sustained by the appellant in the accident. In the opinion of this Court there is a nexus between the accident and the cause of death of the child. Appellant is entitled for compensation on account of death of or stillborn male baby. It was first delivery of the appellant. Since, no separate amount has been awarded on that account, therefore, this appeal stands allowed. Appellant shall be further entitled for a sum of Rs. 1,00,000 on account of
MAC.APP.No.602/2009 Page 8 of 40 death of stillborn male child. Total sum for which appellant shall be entitled comes to Rs. 2,50,000. The enhanced amount of Rs. 1,00,000 shall carry interest at the rate of 6 per cent per annum from the date of application."
(iv) Branch Office, New India Assurance Co. Ltd. Vs. Krishnaveni, MANU/TN/2882/2009 (Madras High Court) -
The accident resulted in death of a pregnant woman with a nine month pregnancy. The Madras High Court following the Karnataka High Court and Madhya Pradesh High Court held that the still-born baby has to be considered as a child and compensation of Rs.2,00,000/- was awarded for loss of child in mother‟s womb. It was held as under:-
"7. Learned Counsel for the first respondent/claimant would submit that the Tribunal has lost sight of awarding any compensation for the death of child in the mother's womb and a considerable compensation has to be awarded in this regard. He placed reliance upon a decision of the Karnataka High Court in 2004 (2) T.A.C. 574 (Kant.) Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation, Bangalore v. VidyaShinde and Anr. decided in the case of death of the foetus, completed 37 weeks, in the mother's womb, she was awarded a sum of Rs. 1,50,000/- as compensation. In the said case, the claimant lady has undergone surgery known as 'foetal distress' and male baby was born and she was kept in I.C.U but died after two days of delivery. It is also argued before this Court that if the mother had a normal delivery, there is no necessity to keep the baby in I.C.U. and there is no necessity for the claimant/respondent to undergo surgery.
MAC.APP.No.602/2009 Page 9 of 40
8. The learned Counsel for the first respondent also garnered support from and decision of the Madhya Pradesh High Court in : 2006 ACJ 2067 Shraddha v. Badresh and Ors. wherein identical situation arose that the baby was stillborn and it has to be considered as a child, that the child died due to the accident and separate amount of compensation was payable to its death. For this purpose, the amount of Rs. 1,50,000 awarded by the Tribunal was enhanced to Rs. 2,50,000/- from Rs. 1,50,000/-.
9. This Court is in respectful agreement with the concluding in the above said two decisions of the High Courts and holding that the stillborn baby is also to be considered as a child. This Court also records finding that since the child died in the womb due to the accident, the mental agony and physical strain and pain experienced by the mother should have been more and that has to be compensated in an appropriate manner. In the considered opinion of this Court a sum of Rs. 2,00,000/- may be fixed under the head loss of child in the mother's womb." (v) Oriental Insurance Co. Ltd. Vs. Santhilal Patal, 2007(4) ACD 835 (Andhra Pradesh High Court) -
The accident resulted in the death of a women and ten month old foetus. The Andhra Pradesh High Court held that an unborn child aged five months onwards in the mother‟s womb till its birth can be treated as a child in existence. The unborn child to whom the live birth never comes can be held to be a „person‟ who can be the subject of an action for damages for his death. The findings of the Court are as under:-
"6. .....Under Section 166 of the Act a person who has sustained injury or the legal heirs of the deceased person are entitled for compensation arising out of the accident involving death or bodily injuries. Therefore, if the child comes within the definition of person, I am of the opinion that the legal MAC.APP.No.602/2009 Page 10 of 40 heirs of the child are entitled for compensation. Under Section 8 of the Indian Penal Code, 1860 a gender means the pronoun "he" and its derivatives are used of any person, whether male or female. The meaning of a person as per Oxford Dictionary is 'a human being regarded as an individual and an individual's body : concealed on his person'.
7. No doubt, the Karnataka High Court in Divisional Controller, Karnataka State Road Transport Corporation v. Vidya Shindhe 2005 ACJ 069 : 2003 ILR (Kar) 04269, held that the stillborn child has to be considered as a child. The Madhya Pradesh High Court in Shraddha v. Headrest's II (2006) ACC 304, following the aforesaid judgment of the Karnataka High Court held that the stillborn child died in the accident due to the injuries sustained by its mother in the accident is also entitled to compensation, as there is nexus between the accident and the cause of death of the child and awarded a compensation of Rs. 1,00,000/- for the death of the stillborn child. In the said case the appellant was having pregnancy of 28 weeks whereas in the instant case the child in the womb was counting his days for delivery as he was aged about 10 months i.e. 40 weeks. In fact, the Supreme Court in S. Said-ud-Din v. Commissioner Bhopal Das Victims : (1997)11SCC460 , awarded compensation to a child, who was adversely affected due to the gas leakage, which was inhaled by her mother when the child was in the womb. The doctor who examined the child on the sixth day of its birth found symptoms including eruption of body and smarting of the eye as well as breathlessness. Therefore, the Supreme Court held that as the infant too was the victim of the MIC poison, she was entitled to compensation. Various Human Rights Commissions also held that the stillborn child is entitled to compensation on account of the injuries caused or death occurred due to violation of human rights. Even the Transfer of Property Act recognized the rights of the stillborn child and several provisions of the Indian Penal Code, 1980, also provide for punishment by reason of MAC.APP.No.602/2009 Page 11 of 40 hurt or birth or abortion with regard to the stillborn child.
8. To decide whether a child in the womb of the mother can be called as a person, it is pertinent to discuss different stages of birth of a child in the womb of a mother. Technically the term developing ovum is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an 'embryo' from one week to the end of the second month and later it is called 'foetus'. It becomes an infant only when it is completely born. The life may enter immediately on the date of conception in the form of a small cell, which gets multiplied, but physically a mother can feel the movement of child only when the foetus is twenty weeks old i.e., five months, as the cell changes its structures and texture to become an eye, legs, bones, blood, head etc. and only when the child makes movements touching the internal walls of the womb, then the actual life does take its physical form, therefore, there may be controversy as regards the exact date of life entering the foetus but there cannot be any controversy as regards the life of the unborn child if a woman is carrying seven months pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy and the child still survives.
An unborn child aged five months onwards in the mother's womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a 'person' who can be the subject of an action for damages for his death. As already stated above a person means a human being regarded as an individual and an individual's body : concealed on his person'. Therefore, human foetus to whom personhood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day.
MAC.APP.No.602/2009 Page 12 of 40
9. In the instant case, admittedly the age of the stillborn child is ten months; therefore, I am of the opinion that the claimant is entitled to compensation under Section 140 read with Section 166 of the Act. In view of the aforesaid facts and circumstances of the case, I do not see any merit in any of the contentions of the learned Counsel for the appellant - insurance company."
(vi) Manikuttan Vs. M.N. Baby, 2009 ACJ 1497 (Kerala High Court) -
The accident resulted in the death of a pregnant woman carrying a four month old foetus. Compensation for loss of foetus was claimed. The Kerala High Court held that foetus is another life in the woman and it comes as a baby in the course of time. Loss of foetus upon death of a pregnant woman is actually loss of a child in the offing for the husband of the woman. The Court held that compensation to be granted for the death of a pregnant women is for loss of two lives.
The findings of the Court are as under:-
"In the first place, foetus is
another life in the woman and it comes as a baby in the course of time. Though foetus grows in the body of the woman, it cannot be
equated to or considered to be a part of the body of the woman. In effect, loss of the foetus consequent upon the death of the pregnant woman is actually loss of a child in the offing for the
husband of the woman. Secondly,
there is no scope for considering compensation for the bodily injury of the victim who died in the road
accident. Therefore, it would be illogical to grant compensation treating death of the foetus along with the woman dying in the accident treating MAC.APP.No.602/2009 Page 13 of 40 death of the foetus along with the Woman dying in the accident treating it as another bodily injury. In our view, compensation to be granted for the death of a pregnant woman in motor accident is for loss of two lives. Therefore, appellant in this case is certainly entitled to claim compensation separately for the loss of his child in the womb of his wife who perished in the accident."
14. The Himachal Pradesh High Court in the case of
Rakesh Kumar Vs. Prem Lal, 1996 ACJ 980 -
(MANU/HP/0043/1995) has taken the view that the foetus
is a part of the body of the deceased and no separate
compensation is admissible on the ground of loss of foetus.
15. The Bombay High Court, in the case of Margappa
Shethappa Vadar Vs. Proctor and Gamble India, 2008
ACJ 2802, has taken the contrary view holding that unborn
child in the womb is not a person within the meaning of
Sections 165 and 166 of the Motor Vehicles Act. The accident
resulted in death of a pregnant woman with 28 weeks old
foetus in her womb. Two claim petitions were filed before
the Claims Tribunal - one for the death of the woman and the
other for the death of unborn child in the womb. The learned
Tribunal rejected the claim holding that unborn child in the
womb will not be included in the word „person‟. Following
the Division Bench judgment of the Himachal Pradesh High
Court in the case of Rakesh Kumar Vs. Prem Lal, Bombay
High Court dismissed the appeal holding that the foetus or a
MAC.APP.No.602/2009 Page 14 of 40 child in the womb is not a person within the meaning of
Sections 165 and 166 of the Motor Vehicles Act.
16. The rights of an unborn child are well recognized in
various different legal contexts which are as under:-
(i) Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus:
"Explanation:-- For the purposes of this section, 'minor' includes a child in the womb."
(ii) Section 20 of the Hindu Succession Act, 1956 recognises the rights of a child in the womb. Section 20 reads thus:
"Section 20. Right of child in womb: A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate." (iii) Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author while dealing with Section 20. The commentary reads thus:
"It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are regarded by reference to the moment of conception and not of birth and MAC.APP.No.602/2009 Page 15 of 40 the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. The child in embryo is treated as in esse for various purposes when it is for his benefit to be so treated. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognises that rule of beneficent indulgence and the child in utero although subsequently born is to be deemed to be born before the death of the intestate and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate."
(iv) In the Indian Succession Act, 1925, 'minor' is defined under Section 2(e), which reads as follows:
"Section(2)(e) "minor" means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and "minority" means the status of any such person;"
Section 7 of the Indian Succession Act provides that the domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled and in the case of a posthumous child, in the country in which his father was domiciled at the time of the father's death. Section 112 of the Indian Succession Act recognises the rights of a person coming into existence after the death of a testator.
(v) Sections 13 and 20 of the Transfer of Property Act deal with situations in which on a transfer of property, an interest therein is created for the benefit of a person not in existence. As per Section 20, where on a transfer of property an MAC.APP.No.602/2009 Page 16 of 40 interest therein is created for an unborn person, he acquires on his birth, a vested interest.
(vi) Sections 312 to 316 of the Indian Penal Code provide for punishment for the offence of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc.
(vii) The question whether a posthumous child would succeed to the estate of his father or a testator was a vexed one for the courts. In Elliot v. Lord Joicey and Ors., 1935 A.C. 209, it was held thus:
"From the earliest times the posthumous child has caused a certain embarrassment to the logic of the law, which is naturally disposed to insist that at any given moment of time a child must either be born or not born, living or not living. This literal realism was felt to bear hardly on the interests of posthumous children and was surmounted in the Civil Law by the invention of the fiction that in all matters affecting its interests the unborn child in utero should be deemed to be already born. The classical statement is to be found in the words of Paulus: "Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partus quaeritur: quanquam alii, antequam nascatur, nequaquam prosit" (Dig. Bk.l. Tit. v. De Statu Hominum, Section 7), thus rendered in Monro's translation: "An unborn child is taken care of just as much as if it were in existence, in any case in which the child's own advantage comes in question; though no one else can derive any benefit through the child before its birth." 'There is indeed," says Craig, commenting on this passage, "no reason in the case of a posthumous child to aggravate the calamity it suffers by the premature death of the father, nor to make
MAC.APP.No.602/2009 Page 17 of 40 that event a ground for diminishing its rights" (Jus Feudale, Lib. II., Dieg. 13, Section 15; Lord Clyde's translation II .p.643). This fiction has undoubtedly been adopted in the law of Scotland.... It is satisfactory for the purposes of the present case to find that the law of England in this matter is to all intents and purposes the same as the law of Scotland. The same fiction, derived from the same source in the Civil Law, and qualified by the same condition, is common to both systems. In the English case of Villar v. Gilbey, (1907) A.C. 139 your Lordships' House had occasion to emphasize that the limitation, which the Court of Appeal had there discarded, was an essential part of "this peculiar rule of construction," which accordingly applies only where it is for the benefit of the unborn child to apply it."
(viii) In Moore v. Wingfield, (1903) 2 Ch. 411, Justice Vaughan Williams L.J. held:
"In Blackstone's Commentaries, 4th ed. vol.i. 129, 130, it is stated that in contemplation of law life begins as soon as an infant is able to stir in the mother's womb: "For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child death in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter." Then the learned author goes on: "An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to it's use, and to take afterwards by such limitation, as if it were then actually born." And the rule as to a posthumous child being capable of taking in remainder (1) is stated in the same work, vol.ii, 169.1 merely mention this because part of Mr. Buckmaster' s argument seems to have proceeded upon the assumption that MAC.APP.No.602/2009 Page 18 of 40 although, according to Buckley J's judgment, there was a rule that a child during the period of gestation was to be treated as "a life in being," that was a rule of law applicable in some cases only. In my opinion, upon the authorities, that rule is applicable when you have to deal with the rule against perpetuities. For that purpose it is plain that, as soon as the child is born, that satisfies the limitation, and you retrospectively treat the life of that child as "a life in being" at the death of the testator." In the same decision, Romer L.J., held thus:
"For the purpose of deciding questions of perpetuity arising upon gifts in a will of the kind we find in the will in the present case, there is, in my opinion, an established rule that a child en ventre sa mere at the time of the testator's death, who is subsequently born, must be treated as having been alive at the death of the testator. And I do not think that rule should be departed from merely because, for some reason, it is in the interest of the child to contend that the gift is void as infringing the rule against perpetuity."
(ix) In Aswini Kumar Pan v. Parimal Debi, : AIR1964Cal354 , a question arose whether a posthumous son, within three years of his attaining majority, could challenge an alienation made by his widowed mother. Holding in the affirmative, it was held:
"13. We put it on the short ground that, in law, a child in the mother's womb is deemed to be in existence, at least for purposes of inheritance, which alone are relevant here, and has thus a right to challenge any transaction, which affects its interest at the time. If so, it has a right of action or a cause of action in respect of the said transaction and is entitled to institute a suit upon the same and, as such a child, as aforesaid, cannot, under the Indian Majority Act, be held to be a major, it must be held to be a minor, that is, a person, suffering from MAC.APP.No.602/2009 Page 19 of 40 disability, as contemplated in the aforesaid Section 6 of the Indian Limitation Act. This, we may respectfully add, has been rightly pointed out in the above three decisions of the Madras, Bombay and Allahabad High Courts, namely, : AIR1951All630 , already cited, and their Lordships have sufficiently demonstrated in those three decisions that there is nothing in the Indian Majority Act or in the Indian Limitation Act either, which conflicts with the view that a child in the mother's womb is a person in existence and is a minor. Indeed, so far as this latter part is concerned, namely, that such a child, if it be a person in existence, must be a minor, the relevant statute (the Indian Majority Act) carries its own confirmation, as, obviously on the terms of Section 3 and/or Section 4 of the said Act, a person is a minor until he attains the relevant age of majority, be it eighteen or twenty-one years, as the case may be, and as, so far as the theory of a child en ventre sa mere is concerned, if it otherwise applies to a particular case, as here, which is a case of inheritance, neither of the above two statutes would exclude it or render it inapplicable."
(x) Black's Law Dictionary refers to "rights of unborn child", thus: "The rights of an unborn child are recognised in various different legal contexts; e.g. in criminal law, murder includes the unlawful killing of a foetus (Cal. Penal Code Section187), and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth, an action will lie for his wrongful death. While certain States have allowed recovery even though the injury occurred during the early weeks MAC.APP.No.602/2009 Page 20 of 40 of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa.267,167 A.2d.93; Smith v. Brennan, 31 N.J.353, 157 A.2d.497, other States require that the foetus be viable before a civil damage action can be brought on behalf of the unborn child."
(xi) The legal status of unborn persons is discussed in Salmond on Jurisprudence, 11th Edition, at pages 354 and 355, the relevant portion of which reads as follows:
"Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. ....
A child in its mother's womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: "The law in many cases hath consideration of him in respect of the apparent expectation of his birth". Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities."
The rights of the child in the womb, in the matter of succession, are well protected by laws of the land.
17. This Court is of the view that the rights of an unborn
child are recognised in various different legal contexts; e.g.
in criminal law causing death of foetus has been held to be
an offence under Sections 312 to 316 of the Indian Penal
Code, and the law of property considers the unborn child in MAC.APP.No.602/2009 Page 21 of 40 being for all purposes which are to its benefit, such as taking
by will or descent. This Court is in respectful agreement with
the judgments of Andhra Pradesh High Court in the case of
Oriental Insurance Co. Ltd. (supra) and Kerala High Court
in the case of Manikuttan (supra), and holds that an unborn
child aged five months onwards in mother‟s womb till its
birth is treated as equal to a child in existence. The unborn
child to whom the live birth never comes is held to be a
'person' who can be the subject of an action for damages for
his death. The foetus is another life in woman and loss of
foetus is actually a loss of child in the offing. The appellants
are, therefore, entitled to compensation for the loss of
foetus.
18. The learned counsel for the appellants refers and relies
upon the judgment of this Court in the case of National
Insurance Co. Ltd. Vs. Farzana, MAC APP. No.13/2007
decided on 14th July, 2009 in which compensation of
Rs.3,75,000/- has been determined in respect of the death of
a child aged 7 years, following the judgments of the Hon‟ble
Supreme Court and this Court in the cases of Manju Devi
Vs. Musafir Paswan, VII (2005) SLT 257, Sobhagya
Devi Vs. Sukhvir Singh, II (2006) ACC 1997, Syam
Narayan Vs. Kitty Tours & Travels, 2006 ACJ 320, R.K.
Malik vs. Kiran Pal, III (2006) ACC 261, R.K. Malik vs.
Kiran Pal, 2009(8) Scale 451. This Court held as under: -
MAC.APP.No.602/2009 Page 22 of 40 "4. In the case of Manju Devi Vs. Musafir Paswan, VII (2005) SLT 257, the Hon‟ble Supreme Court awarded compensation of Rs.2,25,000/- in respect of death of a 13-years old boy by applying the multiplier of 15 and taking the notional income of Rs.15,000/- as per the Second Schedule of the Motor Vehicles Act. The relevant portion of the said judgment is reproduced hereunder:-
"As set out in the Second Schedule to the Motor Vehicles Act, 1988, for a boy of 13 years of age, a multiplier of 15 would have to be applied. As per the Second Schedule, he being a non- earning person, a sum of Rs.15,000/- must be taken as the income. Thus, the compensation comes to Rs.2,25,000/-"
5. The case of Sobhagya Devi & Ors. Vs. Sukhvir Singh & Ors., II (2006) ACC 1997 relates to the death of a 12-year old boy. Following the decision of the Apex Court in Manju Devi's case (supra), the Rajasthan High Court awarded Rs.2,25,000/- by applying the Second Schedule of the Motor Vehicles Act.
6. The case of Syam Narayan Vs. Kitty Tours & Travels, 2006 ACJ 320 relates to the death of a child aged 5 years. This Court relying on the judgment of the Apex Court in Manju Devi's case (supra) awarded compensation to the parents by applying the notional income of Rs.15,000/- and multiplier of 15 as per the Second Schedule and further awarded Rs.50,000/- for loss of company of the child as also pain and suffering by them. The relevant portion of the said judgment is reproduced hereunder:-
"3. By and under the award dated 5.12.2003, a sum of Rs.1,00,000/- has been awarded to the appellants.
While awarding sum of Rs.1,00,000/- to appellants, learned M.A.C.T. has held that the income of the deceased child was incapable of assessment or estimation. Recognising that every parent has a reasonable expectation of financial and moral support from his child, in the absence of any MAC.APP.No.602/2009 Page 23 of 40 evidence led, learned M.A.C.T. opined that the interest of justice requires that appellants are compensated with the sum of Rs.1,00,000/-.
4. Had the Tribunal peeped into the Second Schedule, as per section 163-A of Motor Vehicles Act, 1988, it would have dawned on the Tribunal that vide serial No.6, notional income for compensation in case of fatal accidents has been stipulated at Rs.15,000/- per annum.
5. In the decision reported as Manju Devi V. Musafir Paswan, 2005 ACJ 99 (SC), dealing with the
accidental death of 13 years old boy, while awarding compensation under the Motor Vehicles Act, 1988, Apex Court took into account the notional income stipulated in the Second
Schedule being Rs.15,000/- per annum.
6. In the instant case, baby Chanda was aged 5 years. Age of the appellants as on date of accident was 28 years and 26 years respectively as recorded in the impugned award.
Applying a multiplier of 15 as set out in Second Schedule which refers to the said multiplier, where age of the victim is upto 15 years, compensation determinable comes to Rs.15,000 x 15 = Rs.2,25,000/-.
7. The learned Tribunal has awarded Rs.1,00,000/- towards loss of expectation of financial and moral support as also loss of company of the child, mental agony, etc. I have found that the parents are entitled to compensation in the sum of Rs.2,25,000/- on account of loss of financial support from the deceased child. I award a sum of Rs.50,000/- on account of loss of company of the child as also pain and suffering suffered by them as a result of the untimely death of baby Chanda.
Appeal accordingly stands disposed of MAC.APP.No.602/2009 Page 24 of 40 enhancing the compensation to Rs.2,75,000/-.
7. In the case of R.K. Malik vs. Kiran Pal, III (2006) ACC 261, 22 children died in an accident of a school bus which fell in river Yamuna. This Court held the Second Schedule of the Motor Vehicles Act to be the appropriate method for computing the compensation. With respect to the non-pecuniary damages, the Court observed that loss of dependency of life and pain and suffering on that account, generally speaking is same and uniform to all regardless of status unless there is a specific case made out for deviation. This Court awarded Rs.75,000/- towards non-pecuniary compensation.
8. The aforesaid judgment of this Court was challenged before the Hon‟ble Supreme Court and which has been decided recently on 15th May, 2009 and is reported as R.K. Malik vs. Kiran Pal,2009(8) Scale 451. The Hon‟ble Supreme Court held that the claimants are also entitled to compensation towards future prospects. The Hon‟ble Supreme Court held that the claimants are entitled to compensate towards future prospects and granted further compensation of Rs.75,000/- towards future prospects of the children. The findings of the Hon‟ble Supreme Court are as under:-
"19. The other issue is with regard to non-pecuniary compensation to the appellants-dependents on the loss of human life, loss of company, companionship, happiness, pain and suffering, loss of expectation of life etc.
20. In the Halsbury's Laws of
England, 4th Edition, Vol. 12, page 446, it has been stated with regard to non-pecuniary loss as follows:
"Non-pecuniary loss: the
pattern. Damages awarded for
pain and suffering and loss of
amenity constitute a
conventional sum which is taken
to be the sum which society
deems fair, fairness being
MAC.APP.No.602/2009 Page 25 of 40 interpreted by the Courts in the light of previous decisions. Thus there has been evolved a set of
conventional principles providing a provisional guide to the comparative severity of
different injuries, and indicating a bracket of damages into which
a particular injury will currently fall. The particular circumstance of the plaintiff, including his age and any unusual deprivation he
may suffer, is reflected in the
actual amount of the award. The
fall in the value of money leads to a continuing reassessment of
these awards and to periodic
reassessments of damages at
certain key points in the pattern where the disability is readily
identifiable and not subject to
large variations in individual
cases.
21. In the case of Ward v. James (1965) I All E R 563, it was observed:
"Although you cannot give a
man so gravely injured much for
his `lost years', you can,
however, compensate him for
his loss during his shortened,
span, that is, during his expected `years of survival'. You can compensate him for his loss
of earnings during that time, and for the cost of treatment,
nursing and attendance. But
how can you compensate him
for being rendered a helpless
invalid? He may, owing to brain
injury, be rendered unconscious
for the rest of his days, or, owing to a back injury, be unable to
rise from his bed. He has lost
everything that makes life
worthwhile. Money is no good to
him. Yet Judges and juries have
to do the best they can and give him what they think is fair. No
wonder they find it well nigh
MAC.APP.No.602/2009 Page 26 of 40 insoluble. They are being asked
to calculable. The figure is
bound to be for the most part a
conventional sum. The Judges
have worked out a pattern, and
they keep it in line with the
changes in the value of money.
22. The Supreme Court in the case of R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551, at page 556, has observed as follows in
para 9:
"9. Broadly speaking while fixing an amount of compensation
payable to a victim of an
accident, the damages have to
be assessed separately as
pecuniary damages and special
damages. Pecuniary damages
are those which the victim has
actually incurred and which are
capable of being calculated in
terms of money; whereas non-
pecuniary damages are those
which are incapable of being
assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include
expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i)
damages for mental and physical shock, pain and suffering, already suffered or
likely to be suffered in future; (ii) damages to compensate for the
loss of amenities of life which
may include a variety of matters i.e. on account of injury the
claimant may not be able to
walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the
normal longevity of the person
MAC.APP.No.602/2009 Page 27 of 40 concerned is shortened; (iv)
inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life."
In this case, the Court awarded
non-pecuniary special damages
of Rs. 3, 00,000/- to the
claimants.
23. In Common Cause, A Registered Society v. Union of India (1999) 6 SCC 667 @ page 738, it was observed:
"128. The object of an award of
damages is to give the plaintiff compensation for damage, loss
or injury he has suffered. The
elements of damage recognised
by law are divisible into two
main groups: pecuniary and
non-pecuniary. While the pecuniary loss is capable of
being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money,
not as a substitute or replacement for other money,
but as a substitute, what
McGregor says, is generally
more important than money: it
is the best that a court can do. In Mediana, Re Lord Halsbury,
L.C. observed as under: "How is
anybody to measure pain and
suffering in moneys counted?
Nobody can suggest that you
can by arithmetical calculation
establish what is the exact sum
of money which would represent
such a thing as the pain and
suffering which a person has
undergone by reason of an
accident.... But nevertheless the law recognises that as a topic
upon which damages may be
given."
MAC.APP.No.602/2009 Page 28 of 40
24. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non- payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount
payable with mathematical accuracy. Human life cannot be measured only in terms of loss of earning or
monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has
suffered non-pecuniary loss or damage as a consequence of the
wrong done to him by way of
damages/monetary compensation. Undoubtedly, when a victim of a
wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for "loss of
expectation of life". This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependant brings about the action.
25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an
appropriate figure, an adequate
solatium is difficult to specify. The courts have therefore used the
expression "standard compensation" and "conventional amount/sum" to get over the difficulty that arises in MAC.APP.No.602/2009 Page 29 of 40 quantifying a figure as the same ensures consistency and uniformity in awarding compensations.
26. While quantifying and arriving at a figure for "loss of expectation of life", the Court have to keep in mind that this figure is not to be calculated for the prospective loss or further
pecuniary benefits that has been awarded under another head i.e.
pecuniary loss. The compensation payable under this head is for loss of life and not loss of future pecuniary prospects. Under this head, compensation is paid for termination of life, which results in constant pain and suffering. This pain and suffering does not depend upon the financial position of the victim or the claimant but rather on the capacity and the ability of the deceased to provide happiness to the claimant. This
compensation is paid for loss of prospective happiness which the
claimant/victim would have enjoyed had the child not been died at the tender age.
27. In the case of Lata Wadhwa
(supra), wherein several persons including children lost their lives in a fire accident, the Court awarded substantial amount as compensation. No doubt, the Court noticed that the children who lost their lives were studying in an expensive school, had bright prospects and belonged to upper middle class, yet it cannot be said that higher compensation awarded was for deprivation of life and the pain and suffering undergone on loss of life due to financial status. The term "conventional compensation" used in the said case has been used for non pecuniary
compensation payable on account of pain and suffering as a result of death. The Court in the said case referred to Rs. 50, 000/- as conventional figure. The reason was MAC.APP.No.602/2009 Page 30 of 40 loss of expectancy of life and pain and suffering on that account which was common and uniform to all regardless of the status. Unless there is a specific case departing from the conventional formula, non- pecuniary compensation should not be fixed on basis of economic wealth and
background.
28. In Lata Wadhawa case (supra), wherein the accident took place on 03.03.1989, the multiplier method was referred to and adopted with approval. In cases of children between 5 to 10 years of age, compensation of Rs. 1.50 lakhs was awarded towards pecuniary compensation and in addition a sum of Rs. 50,000/- was awarded towards `conventional compensation". In the case of children between 10 to 18 years compensation of Rs. 4.10 lakhs was awarded
including "conventional compensation". While doing so the Supreme Court held that contribution of each child towards family should be taken as Rs. 24,000/- per annum
instead of Rs. 12, 000/- per annum as recommended by Justice Y. V.Chandrachud Committee. This was in view of the fact that the company in question had an un-written rule that every employee can get one of his children employed in the said company.
29. In the case of M.S. Grewal v. Deep Chand Sood MANU/SC/0506/2001,
wherein 14 students of a public school got drowned in a river due to
negligence of the teachers. On the question of quantum of compensation, this Court accepted that the multiplier method was
normally to be adopted as a method for assigning value of future annual dependency. It was emphasized that the Court must ensure that a just compensation was awarded.
MAC.APP.No.602/2009 Page 31 of 40
30. In Grewal case (supra), compensation of Rs. 5 lakhs was
awarded to the claimants and the same was held to be justified. Learned Counsel for the respondent No. 3, however, pointed out that in the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and therefore the compensation of Rs. 5 lakhs as
awarded by the High Court was not found to be excessive. It is no doubt true that the Supreme Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would
equally apply to the present case.
31. A forceful submission has been made by the learned Counsels
appearing for the claimants- appellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such
submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to
consider the said aspect while
awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in General Manager, Kerala S. R. T. C. v. Susamma Thomas(1994) 2 SCC 176;
Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179; and Lata Wadhwa case
(supra).
MAC.APP.No.602/2009 Page 32 of 40
32. In view of discussion made
hereinbefore, it is quite clear the claim with regard to future prospect should have been be addressed by the courts below. While considering such claims, child's performance in school, the reputation of the school etc. might be taken into consideration. In the present case, records shows that the children were good in studies and studying in a reasonably good school. Naturally, their future prospect would be
presumed to be good and bright.
Since they were children, there is no yardstick to measure the loss of future prospects of these children. But as already noted, they were performing well in studies, natural consequence supposed to be a bright future. In the case of Lata Wadhwa (supra) and M. S. Grewal (supra), the Supreme Court recognised such
future prospect as basis and factor to be considered. Therefore, denying compensation towards future prospects seems to be unjustified. Keeping this in background, facts and circumstances of the present case, and following the decision in Lata Wadhwa (supra) and M. S. Grewal
(supra), we deem it appropriate to grant compensation of Rs. 75,000/- (which is roughly half of the amount given on account of pecuniary
damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision. We would like to clarify that this amount i.e. Rs. 75,000/- is over and above what has been awarded by the High Court.
33. Besides, the Courts have been awarding compensation for pain and suffering and towards non-pecuniary damages. Reference in this regard can be made to R. D. Hattangadi case (supra). Further, the said compensation must be just and
MAC.APP.No.602/2009 Page 33 of 40 reasonable. This Court has observed as follows in State of Haryana v. Jasbir Kaur (2003) 7 SCC 484:
"7. It has to be kept in view that the Tribunal constituted under
the Act as provided in Section
168 is required to make an
award determining the amount
of compensation which is to be
in the real sense "damages"
which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs
or life can hardly be weighed in golden scales. But at the same
time it has to be borne in mind
that the compensation is not
expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just"
and it cannot be a bonanza; not
a source of profit; but the same should not be a pittance. The
courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be
just. What would be "just"
compensation is a vexed question. There can be no
golden rule applicable to all
cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at
by precise mathematical calculations. It would depend
upon the particular facts and
circumstances, and attending
peculiar or special features, if any. Every method or mode
adopted for assessing compensation has to be considered in the background of
"just" compensation which is the pivotal consideration. Though by use of the expression "which
appears to it to be just" a wide discretion is vested in the
MAC.APP.No.602/2009 Page 34 of 40 Tribunal, the determination has
to be rational, to be done by a
judicious approach and not the
outcome of whims, wild guesses
and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non- arbitrary. If it is not so it cannot be just."
34. So far as the pecuniary damage is concerned we are of the considered view both the Tribunal as well as the High Court has awarded the compensation on the basis of Second Schedule and relevant multiplier under the Act. However, we may
notice here that as far as non-
pecuniary damages are concerned, the Tribunal does not award any
compensation under the head of non- pecuniary damages. However, in
appeal the High Court has elaborately discussed this aspect of the matter and has awarded non-pecuniary
damages of Rs. 75,000. Needless to say, pecuniary damages seeks to
compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses. In contrast, non- pecuniary damages include such
immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non-pecuniary loss. As already noted it is difficult to quantify the non-pecuniary compensation, nevertheless, the endeavour of the Court must be to provide a just, fair and reasonable amount as compensation keeping in view all relevant facts and circumstances into consideration. We have noticed that the High Court in present case has enhanced the
compensation in this category by Rs. 75, 000/- in all connected appeals. We MAC.APP.No.602/2009 Page 35 of 40 do not find any infirmity in that regard."
9. The learned Tribunal was in error in taking the notional income to be Rs.22,500/- per annum. Following the aforesaid judgments, the notional income of the deceased is taken to be Rs.15,000/- per annum and applying the multiplier of 15, the claimants are entitled to loss of dependency of Rs.2,25,000/-. The claimants are also entitled to compensation of Rs.75,000/- towards the future prospects in terms of the judgment of the Hon‟ble Supreme Court in R.K. Malik Vs. Kiran Pal, 2009 (8) Scale 451. The claimants are also entitled to a further sum of Rs.75,000/- towards non-pecuniary damages in terms of the judgment of this Court in the case of R.K. Malik Vs. Kiran Pal, III (2006) ACC 261 upheld by the Hon‟ble Supreme Court. The claimants are entitled to total compensation of Rs.3,75,000/- (Rs.2,25,000/- + Rs.75,000/- + Rs.75,000/-)."
19. The learned counsel for the appellants submits that
compensation of Rs.3,75,000/- be awarded to the appellants
following the judgment of this Court in National Insurance
Company Ltd. Vs. Farzana (supra).
20. The judgment of this Court in National Insurance
Company Ltd. Vs. Farzana (supra) relates to the death of
7 year old child whereas the present case relates to the
death of a seven months old foetus. The seven months old
foetus cannot be compared with seven years old child and,
therefore, this Court is not inclined to award Rs.3,75,000/- to
the appellants. A foetus shall be treated as a child does not
mean that the compensation in respect of a foetus shall be
equal to a seven year old school going child. The love and
affection of the parents for seven year old child cannot be
MAC.APP.No.602/2009 Page 36 of 40 equated with that of a foetus which has yet to take birth.
The love and affection develops after the birth of the child
and it keeps on growing and goes deep in the memory. The
death of a seven year old child would leave deep memories
and, therefore, deeper hurt. In case of death of a child, the
photographs of the child and other articles belonging to
him/her keep on reminding the parents of the child and make
them sad. Memories are also refreshed when parents see
other children of same age and it takes a very long time for
pain and suffering to dissolve, whereas there are no such
memories in case of a foetus and, therefore, lesser hurt. The
compensation awarded to a seven year old child, therefore,
needs appropriate correction. Considering that Rs.2,50,000/-
was awarded by Madhya Pradesh High Court in the case of
Shraddha (supra), Rs.2,00,000/- by Madras High Court in
the case of Krishnaveni (supra) and Rs.1,50,000/- by
Karnataka High Court in the case of Bhawaribai (supra),
Rs.2,50,000/- is awarded to the appellants in the present
case.
21. The appeal is allowed and the compensation of
Rs.2,50,000/- along with interest @7.5% per annum from the
date of filing of the petition till realization is awarded to
appellant No.1 towards the death of seven months old foetus
on 17th June, 2008.
22. Considering the important question of law involved, this
Court appointed Ms. Rajdipa Behura, Advocate as amicus MAC.APP.No.602/2009 Page 37 of 40 curiae to assist this Court. This Court appreciates the able
assistance rendered by the learned amicus curiae.
23. The award amount be deposited by respondent No.2
with UCO Bank, Delhi High Court Branch A/c Prakash by
means of a cheque through Mr. M.M. Tandon, Member-Retail
Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile
No. 09310356400) within 30 days.
24. Upon the aforesaid deposit being made, the UCO Bank
is directed to keep a sum of Rs.2,00,000/- in fixed deposit in
the name of appellant No.1 in the following manner:-
(i) Fixed deposit for Rs.25,000/- for a period of six
months.
(ii) Fixed deposit for Rs.25,000/- for a period of one
year.
(iii) Fixed deposit for Rs.25,000/- for a period of one
and a half years.
(iv) Fixed deposit for Rs.25,000/- for a period of two
years.
(v) Fixed deposit for Rs.25,000/- for a period of two
and a half years.
(vi) Fixed deposit for Rs.25,000/- for a period of three
years.
(vii) Fixed deposit for Rs.25,000/- for a period of three
and a half years.
(viii) Fixed deposit for Rs.25,000/- for a period of four
years.
MAC.APP.No.602/2009 Page 38 of 40
25. The remaining amount be released to appellant No.1 by
transferring the same to his Saving Bank Account.
26. The interest on the aforesaid fixed deposits shall be
paid monthly by automatic credit of interest in the Savings
Account of the appellant.
27. Withdrawal from the aforesaid account shall be
permitted to appellant No.1 after due verification and the
Bank shall issue photo Identity Card to appellant No.1 to
facilitate identity.
28. No cheque book be issued to appellant No.1 without the
permission of this Court.
29. The original Fixed Deposit Receipts shall be retained by
the Bank in the safe custody. However, the original Pass
Book shall be given to appellant No.1 along with the
photocopy of the FDRs.
30. The original Fixed Deposit Receipts shall be handed
over to appellant No.1 on the expiry of the period of the
FDRs.
31. No loan, advance or withdrawal shall be allowed on the
said fixed deposit receipts without the permission of this
Court.
31. Half yearly statement of account be filed by the Bank in
this Court.
32. On the request of appellant No.1, the Bank shall
transfer the Savings Account to any other branch of UCO
Bank according to the convenience of the appellant. MAC.APP.No.602/2009 Page 39 of 40
33. Appellant No.1 shall furnish all the relevant documents
for opening of the Saving Bank Account and Fixed Deposit
Account to Mr. M.M. Tandon, Member-Retail Team, UCO Bank
Zonal, Parliament Street, New Delhi.
34. List for reporting compliance on 23rd April, 2010.
35. Copy of the order be given dasti to counsel for both the
parties under the signature of Court Master.
36. Copy of this order be also sent to Mr. M.M. Tandon,
Member-Retail Team, UCO Bank Zonal, Parliament Street,
New Delhi (Mobile No. 09310356400) through the UCO Bank,
High Court Branch under the signature of Court Master.
J.R. MIDHA, J
FEBRUARY 05, 2010
MAC.APP.No.602/2009 Page 40 of 40
No comments:
Post a Comment