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 the violation of human rights. Even the Transfer of Property Act recognised the rights of the stillborn child and several provisions of Indian Penal Code, 1860, also provide for punishment by reason of 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.
We are unable to uphold the view taken by the High Court of Himachal Pradesh and this court in the decisions referred to above that loss of foetus should be taken as an injury sustained by the pregnant woman in the accident. 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 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 the death of 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 entitled to claim compensation separately for the loss of his child in the womb of his wife, who perished in the accident.
22. This court would be failing in its duty, if the judgment of the Hon'ble Mr. Justice J.R. Midha of Delhi High Court in Prakash v. Arun Kumar Saini, MANU/DE/0337/2010 : 2010 ACJ 2184 (Delhi), is not referred. The Hon'ble Judge has considered the whole gamut of law on the right of an unborn child, by considering the statutory provisions in various enactments, where the rights of an unborn child have been recognised in law, Indian and foreign case-laws and at para 16, held that the foetus is another life in woman and that loss of foetus is actually a loss of child in the offing and hence, the appellants therein were entitled to compensation for the loss of foetus. The Hon'ble Judge has held that an unborn child in the mother's womb till his birth has to be treated as equal to a child in existence. Among other statutory provisions, learned Judge has considered the Explanation to section 6 of the Limitation Act, 1963, which states that "for the purposes of this section, 'minor' includes a child in the womb". Section 20 of the Hindu Succession Act, 1956 recognises the rights of a child in the womb, which reads as follows:
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.
Among other judgments and enactments considered threadbare by the Hon'ble Judge, clauses (x) and (xi) of para 15 of the judgment in Prakash's case (supra), are worth reproduction,--
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, section 187), 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 earlier weeks of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa 267, 167 A 2d 93; Smith v. Brennan, 31 NJ 353, 157 A 2d 497, other States require that foetus be viable before a civil damage action can be brought on behalf of the unborn child.
(xi) The legal status of unborn person is discussed in Salmond on Jurisprudence, 11th Edn., at pp. 354 and 355, the relevant portion of which reads as follows:
Though the dead possesses 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 nonetheless 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 iam 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.
IN THE HIGH COURT OF MADRAS
C.M.A. No. 3279 of 2012 and M.P. No. 1 of 2012
Decided On: 30.01.2013
Rakhi Kothari Vs. R. Soundaapandian and Ors.
Hon'ble Judges/Coram:
S. Manikumar, J.
Citation: MANU/TN/2909/2013.
1. In an accident which occurred on 14.3.2004 a 30-year-old lady sustained closed fracture both bones right leg mid shaft transverse and undisplaced fracture left pubic bone. On 14.3.2004, she was admitted in Apollo Hospitals, Chennai. On 15.3.2004, I.M. nailing right tibia was done to fuse the fractured right tibia bone. She was discharged on 20.3.2004. At the time of accident, she was pregnant and the foetus was nine weeks old. As per discharge summary, Exh. P10, the course in the hospital and discussion, with the operation notes, read as hereunder:
Course in the Hospital & Discussion:
Rakhi Kothari, 26 years old normotensive and cuglyeemic pregnant lady, alleged to have met with a road accident was hemodynamically stable. She sustained fracture bone of right leg and undisplaced fracture of pubic bone.
With preliminary investigations done and after written consent and explaining the risk involved to the pregnancy during and after the procedure, patient was taken up for surgery on 15.3.2004.
Operation Notes:
Under spinal anesthesia and tourniquet control, right leg cleaned and draped. Through midline tendon splitting approach opening made in the upper tibia. Guide wire passed and fracture reduced. Then, using 360 x 11 mm nail fracture right tibia secured by closed I.M. nailing method. Proximal and distal locking done. Wounds closed with chain in section.
She was seen by Dr. Swarnakumari (Consultant Obstetrician & Gynecologist) and discussed the risk of radiation exposure and post-surgery as the pregnancy was in the vulnerable period of teratogenecity.
Patient was also seen by Dr. Sivagnanasundaram (Consultant Endocrinologist) for hypothyroidism and his advice followed.
The patient was mobilised with physiotherapy. Hospital stay was otherwise uneventful. At the time of discharge, patient's vitals were stable. Wounds are clean.
As per the discharge summary, Exh. P11, under endotracheal general anaesthesia and continuous cardiac monitoring, the appellant patient put in lithotomy position. Cleaned and draped. Two tablets of cytotec were kept inside the vagina on 29.3.2004 at 11 a.m. The patient expelled few products in the morning. Again, the appellant-claimant was admitted on 30.3.2004 in the same hospital and that on the same day, a surgery was performed. Medical termination of pregnancy was completed with suction curettage. Check curettage done and uterine cavity was empty. Bleeding P/V WNL. She was advised to review with Dr. Swarnakumari, Consultant Gynecologist, after one week.
2. In the above medical background, the appellant-claimant has filed a claim petition in M.C.O.P. No. 2896 of 2004 on the file of the Motor Accidents Claims Tribunal (V Court of Small Causes), Chennai, claiming compensation of Rs. 3,00,000 under various heads. In her claim petition, she also submitted that the foetus of a baby was aborted. Prior to the accident, she claimed that she was engaged in taking tuition to children and earned Rs. 5,000 per month. To substantiate the injuries, she has marked discharge summaries dated 10.3.2004 and 30.3.2004 respectively, Exhs. P10 and P11, issued by Apollo Hospitals; medical bills, Exh. P12, X-rays, Exhs. P18 and P20; and disability certificate, Exh. P19. Doctor, PW 5, who clinically examined the injured-appellant, with reference to the medical records, assessed the disability at 45 per cent and issued disability certificate, Exh. P19.
3. In the oral testimony, the appellant-injured has deposed about the physical infirmities suffered by her, due to the gravity of the injuries. In her proof affidavit, she has stated that she was admitted in Apollo Hospitals on 30.3.2004 and on medical advice, abortion was done. She has also stated that earlier, she had spent lot of money for treatment to deliver a second boy and that the same went in vain.
4. Having regard to the pleadings and evidence that the appellant was engaged in taking tuition, the Claims Tribunal has fixed her monthly income at Rs. 3,000. The Claims Tribunal has also observed that she would have been prevented from attending to her work for a maximum period of five months due to the injuries. On evaluation of pleadings and evidence, the Claims Tribunal has awarded Rs. 89,000 with interest at the rate of 7.5 per cent per annum, as apportioned hereunder:
5. Not satisfied with the quantum of compensation, the appellant, who has lost a baby in the womb, has preferred this appeal, for enhancement, claiming compensation for the loss of the child in the womb and other heads.
6. Inviting the attention of this court to the gravity of injuries, viz., closed fracture both bones right leg mid shaft transverse and undisplaced fracture left pubic bone, the surgical process undergone by her, to fuse the bone, period of treatment and the periodical review for physiotherapy, consultation with the Consultant Orthopaedic Surgeon and Gynecologist, Apollo Hospitals, Chennai, stated supra, as per discharge summary, Exh. P11 , Mrs. V.A. Tamilarasi, learned counsel for appellant, submitted that in the absence of any contra medical evidence, the Tribunal, while estimating the loss of earnings, during the period of treatment, ought to have applied multiplier method, for the purpose of computing loss of future earning capacity.
7. Placing reliance on a decision of the Apex Court in B. Kothandapani v. Tamil Nadu State Trans. Corpn. Ltd., MANU/SC/0601/2011 : 2011 ACJ 1971 (SC) and a decision of this court in Managing Director, Tamil Nadu State Trans. Corpn. Ltd. v. S. Kannappan, 2007 (2) TN MAC 1, learned counsel for the appellant submitted that the Claims Tribunal ought to have awarded Rs. 90,000 as disability compensation at the rate of Rs. 2,000 per percentage of disability.
8. Again, inviting the attention of this court to the nature and situs of the injuries, viz., closed fracture both bones right leg mid shaft transverse and undisplaced fracture left pubic bone, sought to be corrected by passing guide wire, using 360 x 11 mm nail to the fractured right tibia, with proximal and distal locking and also the other surgery undergone by the injured-appellant on 30.3.2004, under endotracheal general anaesthesia for medical termination of pregnancy of 9 weeks' old foetus, learned counsel for the appellant submitted that the Claims Tribunal has failed to consider that in view of the gravity of injuries, the injured appellant was immobilized for a period of six months and that the compensation of Rs. 15,000 awarded for pain and suffering is inadequate.
9. The learned counsel for the appellant further submitted that immediately after the accident, the injured was taken to Apollo Hospitals in an ambulance van and was hospitalised between 14.3.2004 and 20.3.2004. Again, on 29.3.2004, she had visited the hospital. On 30.3.2004, when she was hospitalised again, medical termination of pregnancy was done by suction curettage procedure. She was advised to seek for review with Dr. Swarnakumari, Consultant Gynecologist, after one week.
10. Learned counsel for the appellant-injured further submitted that even after discharge from the hospital, the injured consulted both the Orthopaedic Surgeon and Gynecologist for various complications and physical infirmities and visited the hospital many times. But the Claims Tribunal has awarded Rs. 2,000 only under the head 'transportation to hospital' which is inadequate. Pointing out that the compensation of Rs. 3,000 awarded under the head 'extra nourishment' is inadequate, learned counsel for the appellant sought for suitable enhancement.
11. Learned counsel for the appellant further submitted that the compensation of Rs. 3,000 awarded under the head 'attendant charges' requires suitable enhancement. Finally, pointing out the gravity of injuries and the risk involved, during and after the procedure for surgery, for correction of the fractured bone, the injured appellant was constrained to give consent for termination of the foetus, which was done on 30.3.2004 with suction curettage and that she has lost an opportunity of begetting a baby.
12. Placing reliance on the decision of this court in National Insurance Co. Ltd. v. G. Parimala, MANU/TN/4116/2010 : 2012 ACJ 663 (Madras) and National Insurance Co. Ltd. v. Kusuma, MANU/SC/0972/2011 : 2011 ACJ 2432 (SC), learned counsel for the appellant submitted that when sufficient oral and documentary evidence was adduced to prove that the injured appellant was constrained to terminate the unborn child/foetus, the Claims Tribunal has failed to advert to the same and award a just and reasonable compensation for the loss of the child in the womb. She also submitted that the child in the womb has to be treated as a child in existence and when the life is terminated, the mother is entitled to a just compensation. She also prayed for compensation under the head 'loss of amenities'.
13. Per contra, Mr. S. Arun Kumar, learned counsel for the respondent insurance company, in all fairness submitted that the compensation of Rs. 89,000 with interest at the rate of 9 per cent per annum awarded to the injured appellant is not commensurate with the gravity of the injuries, extent of disablement, suffered by the appellant. However, he submitted that considering the avocation pleaded, there will not be any loss of earning capacity and hence, the Tribunal has rightly negatived the claim under the said head.
14. Distinguishing that in National Insurance Co. Ltd. v. Kusuma, MANU/SC/0972/2011 : 2011 ACJ 2432 (SC), a 30 weeks' old child died in uterus and that the chances of becoming a mother, who suffered serious injuries, when she was aged 36 years, were comparatively less than in the case on hand, where the appellant was aged 30 years at the time of accident, learned counsel for the respondent insurance company submitted that the Hon'ble Supreme Court, on the facts and circumstances of the case, affirmed the enhancement of compensation to Rs. 1,80,000 by the High Court, and that the said decision may not be squarely applicable to the case on hand.
15. Inviting the attention of this court to the age of the injured-claimant, in the present case, he submitted that in the absence of any clear medical evidence that there are no chances of becoming a mother again, this court need not award the same amount, as affirmed by the Apex Court. He fairly submitted that the injured appellant requires enhancement in compensation, which may be restricted to a maximum of Rs. 1,00,000 under all heads.
Heard the learned counsel for the parties and perused the materials available on record.
16. The details of the injuries, treatment, period of hospitalisation, surgeries undergone by the injured appellant, the circumstances under the medical termination of pregnancy of a 9 weeks' old foetus, have been extracted.
17. Before adverting to the claim for compensation enhancement under the other heads, at the outset, this court deems it fit to address the main ground, as to whether an unborn child in the womb should be considered on a par with a minor child and whether mother, who has lost a baby in the womb, is entitled to claim compensation. Considering the judgments on this issue, this court is of the view that it is no longer res Integra. Now let me consider some of the decisions.
18. In Divisional Controller, B.T.S. Division, Karnataka State Road Trans. Corpn. v. Vidya Shindhe, MANU/KA/0537/2003 : 2005 ACJ 69 (Karnataka), a pregnant woman, who sustained injuries in the accident, underwent surgeries. The child died after two days of his birth. She claimed compensation. Holding that the baby in the womb died due to the injuries received by her in the accident, Karnataka High Court held that in normal circumstances, if the mother had a normal delivery, there was no necessity for the doctors to keep the baby in ICU and that there was no necessity for the claimant therein to undergo a surgery and inasmuch as there was a nexus between the accident and the cause of death of the child, the claimant therein was entitled to claim compensation. Accordingly, an award of Rs. 1,50,000 granted by the Claims Tribunal, on the basis of the decision in Puttamma v. D.V. Krishnappa, MANU/KA/0378/1999 : 2000 ACJ 103 (Karnataka), has been confirmed.
19. In Oriental Insurance Co. Ltd. v. Santhilal Patal, MANU/AP/0349/2007 : 2007 (4) ALD 855, compensation was claimed for the death of an unborn child, aged about 10 months, in the mother's womb. The Claims Tribunal awarded compensation of Rs. 50,000 under the head 'no fault liability* for the death of an unborn child. The insurance company preferred an appeal. Considering the different stages of pregnancy, taking note of a decision of Apex Court in S. Said-ud-Din v. Commissioner, Bhopal Gas Victims, : (1997) 11 SCC 460 and the decisions of other High Courts in Divisional Controller, B.T.S. Division, Karnataka State Road Trans. Corpn. v. Vidya Shindhe, MANU/KA/0537/2003 : 2005 ACJ 69 (Karnataka) and Shraddha v. Badresh, MANU/MP/0563/2005 : 2006 ACJ 2067 (MP), the statutory provisions in the Transfer of Property Act and Indian Penal Code, which recognise the rights of a stillborn child in Santhilal Patal's case, MANU/AP/0349/2007 : 2007 (4) ALD 855, Andhra Pradesh High Court held that the claimant mother therein was entitled to claim compensation under section 140 read with section 166 of the Motor Vehicles Act. At paras 7 and 8 of the above reported judgments, the court held as follows:
(7) No doubt, Karnataka High Court in Divisional Controller, B.T.S. Division, Karnataka State Road Trans. Corpn. v. Vidya Shindhe, MANU/KA/0537/2003 : 2005 ACJ 69 (Karnataka), held that the stillborn child has to be considered as a child. Madhya Pradesh High Court in Shraddha v. Badresh, MANU/MP/0563/2005 : 2006 ACJ 2067 (MP), following the aforesaid judgment of Karnataka High Court held that the stillborn child who 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 Apex Court in S. Said-ud-Din v. Commissioner, Bhopal Gas Victims, : (1997) 11 SCC 460, 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 breath-lessness. 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 the violation of human rights. Even the Transfer of Property Act recognised the rights of the stillborn child and several provisions of Indian Penal Code, 1860, also provide for punishment by reason of 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.
20. In Bhawaribai v. New India Assurance Co. Ltd. MANU/KA/0646/2005 : 2006 ACJ 2085 (Karnataka), the injured lady suffered a fracture of right hip joint and fracture of metacarpal bone. Her baby in the womb died. Fracture was healed, but the limb disability assessed by the doctor was 50-65 per cent. The total body disability was assessed at 20 per cent. She was hospitalised for 12 days. She claimed compensation for the death of the foetus in the womb, for pain and agony, medical and incidental expenses and for the loss of services to the family, for four months. The Tribunal awarded a sum of Rs. 61,000. While the enhancement was sought for, abortion and death of foetus, following Puttamma v. D.V. Krishnappa, 2000 ACJ 103 (Karnataka), Karnataka High Court held that since the injured therein suffered abortion, for the death of a non-earning minor, the compensation payable shall be at Rs. 1,50,000.
21. In Manikuttan v. Baby, MANU/KE/0318/2008 : 2009 ACJ 1497 (Kerala), a pregnant woman with four months old foetus died. Husband also sustained injuries. He filed separate claim petitions, for compensation for the injuries sustained by him and also for the death of his wife. The mother of the deceased was herself impleaded as a contesting respondent. While considering the quantum, as to whether husband/father was entitled to claim for compensation for the loss of foetus, on account of death of his wife, the High Court, at para 5, held as follows:
(5) One important issue raised by the appellant in the appeal is that he is entitled to compensation for loss of foetus on account of the death of his wife. Appellant's wife at the time of the accident was admittedly four months pregnant and her death naturally led to the loss of the child which the appellant would have had, had his wife been alive. Since the appellant did not make any specific claim of compensation for the loss of foetus, the Tribunal had no occasion to consider the same. However, we feel when compensation was claimed for the death of a pregnant woman, the Tribunal ought to have taken into account the death of foetus which automatically happens on the death of the pregnant woman. Decisions of this court on entitlement of compensation for the death of foetus are not consistent. Even though the matter is not discussed in detail, this court in the decision in Oriental Insurance Co. Ltd. v. Rasheed, MANU/KE/0268/2004 : 2005 ACJ 613 (Kerala), referred to a decision of High Court of Himachal Pradesh in Rakesh Kumar v. Prem Lal, MANU/HP/0043/1995 : 1996 ACJ 980 (HP), wherein that court held that no separate compensation is payable for loss of foetus. However, we notice that a Division Bench of this court in the judgment dated 3.10.1994 in M.F.A. No. 326 of 1993 granted specific compensation of Rs. 30,000 on account of medical termination of pregnancy of a woman consequent upon a motor accident. In Minati Das v. Laxmidhar Mohanty, MANU/OR/0240/1976 : 1976 ACJ 512 (Orissa), the High Court of Orissa held that loss of foetus in a road accident entitles the claimant for compensation. We are unable to uphold the view taken by the High Court of Himachal Pradesh and this court in the decisions referred to above that loss of foetus should be taken as an injury sustained by the pregnant woman in the accident. 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 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 the death of 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 entitled to claim compensation separately for the loss of his child in the womb of his wife, who perished in the accident.
However, the High Court, by observing that there was some difficulty in estimating the loss, for the death of an unborn baby, awarded only Rs. 10,000 to the husband and Rs. 5,000 to the mother of the deceased.
22. This court would be failing in its duty, if the judgment of the Hon'ble Mr. Justice J.R. Midha of Delhi High Court in Prakash v. Arun Kumar Saini, MANU/DE/0337/2010 : 2010 ACJ 2184 (Delhi), is not referred. The Hon'ble Judge has considered the whole gamut of law on the right of an unborn child, by considering the statutory provisions in various enactments, where the rights of an unborn child have been recognised in law, Indian and foreign case-laws and at para 16, held that the foetus is another life in woman and that loss of foetus is actually a loss of child in the offing and hence, the appellants therein were entitled to compensation for the loss of foetus. The Hon'ble Judge has held that an unborn child in the mother's womb till his birth has to be treated as equal to a child in existence. Among other statutory provisions, learned Judge has considered the Explanation to section 6 of the Limitation Act, 1963, which states that "for the purposes of this section, 'minor' includes a child in the womb". Section 20 of the Hindu Succession Act, 1956 recognises the rights of a child in the womb, which reads as follows:
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.
Among other judgments and enactments considered threadbare by the Hon'ble Judge, clauses (x) and (xi) of para 15 of the judgment in Prakash's case (supra), are worth reproduction,--
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, section 187), 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 earlier weeks of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa 267, 167 A 2d 93; Smith v. Brennan, 31 NJ 353, 157 A 2d 497, other States require that foetus be viable before a civil damage action can be brought on behalf of the unborn child.
(xi) The legal status of unborn person is discussed in Salmond on Jurisprudence, 11th Edn., at pp. 354 and 355, the relevant portion of which reads as follows:
Though the dead possesses 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 nonetheless 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 iam 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.
On the quantum of compensation, after considering various decisions, as to how pecuniary and non-pecuniary damages in the case of death of a child in the womb, has to be assessed, on the principles of 'just compensation', stated in Common Cause, A Registered Society v. Union of India, MANU/SC/0437/1999 : (1999) 6 SCC 667; R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., MANU/SC/0146/1995 : 1995 ACJ 366 (SC); Lata Wadhwa v. State of Bihar, MANU/SC/0456/2001 : 2001 ACJ 1735 (SC); M.S. Grewal v. Deep Chand Sood, MANU/SC/0506/2001 : 2001 ACJ 1719 (SC) and other cases, the Hon'ble Judge has awarded Rs. 2,50,000 as compensation, with interest at the rate of 7.5 per cent per annum, from the date of claim. At this juncture, this court deems it fit to reproduce paras 20 to 26 from R.K. Malik v. Kiran Pal, MANU/SC/0809/2009 : 2009 ACJ 1924 (SC), considered in Prakash's case (supra), as hereunder:
(20) In Halsbury's Laws of England, 4th Edn., Vol. 12, p. 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 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 circumstances 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) 1 All ER 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 insoluble. They are being asked to calculate the incalculable. 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 Apex Court in the case of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., MANU/SC/0146/1995 : 1995 ACJ 366 (SC), 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 as 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 concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
In this case, the court had awarded non-pecuniary special damages to the claimant of Rs. 3,00,000.
(23) In Common Cause, A Registered Society v. Union of India, MANU/SC/0437/1999 : (1999) 6 SCC 667, 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 re: Medians (1900) AC 113, 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.
(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. A human life cannot be measured only in terms of loss of earnings 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 visualised 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 the 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 the 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 quantifying a figure as the same ensures consistency and uniformity in awarding compensation.
(26) While quantifying and arriving at a figure for 'loss of expectation of life', the court has 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 died at the tender age.
Ultimately, after considering a decision in National Insurance Co. Ltd. v. Farzana, MANU/DE/1893/2009 : 2009 ACJ 2763 (Delhi), which related to death of seven-year-old child and holding that a 7-year-old child cannot be equated with 7 months' old foetus, the Hon'ble Mr. Justice J.R. Midha of Delhi High Court, at para 19 of the judgment, held as follows:
(19) The judgment of this court in National Insurance Co. Ltd. v. 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 years old school going child. The love and affection of the parents for seven-year-old child cannot be 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, MANU/MP/0563/2005 : 2006 ACJ 2067 (MP), Rs. 2,00,000 by Madras High Court in the case of Krishnaveni, MANU/TN/2882/2009 : 2011 ACJ 2400 (Madras) and Rs. 1,50,000 by the Karnataka High Court in the case of Bhawaribai, 2006 ACJ 2085 (Karnataka), Rs. 2,50,000 is awarded to the appellants in the present case.
23. In National Insurance Co. Ltd. v. G. Parimala, MANU/TN/4116/2010 : 2012 ACJ 663 (Madras), there was a death of a 6 months old baby in the womb. Mother, who sustained fracture of bones in the right leg, dislocation of knee joint and assessed to disability at 80 per cent, claimed compensation. The Claims Tribunal awarded a sum of Rs. 5,00,000 as lump sum compensation for the death of the child. Among other grounds, the insurance company questioned the said award. After considering the decision in Shraddha v. Badresh, MANU/MP/0563/2005 : 2006 ACJ 2067 (MP), a Division Bench of this court reduced the compensation to Rs. 2,50,000 for the death of the baby in the womb.
24. In New India Assurance Co. Ltd. v. Krishnaveni, MANU/TN/2882/2009 : 2011 ACJ 2400 (Madras), a lady suffered a fracture in the right pelvis and femur. She was assessed to have suffered 70 per cent disablement. At the time of accident, she was pregnant. Due to the injuries, she lost her child in the womb. Evidence was let in that she could not conceive in future. Following the decision in Shraddha v. Badresh, MANU/MP/0563/2005 : 2006 ACJ 2067 (MP), a learned single Judge of this court awarded Rs. 40,000 under the head pain and suffering and for the death of a child in the womb, awarded Rs. 2,00,000. Considering the extent of disablement, restriction in the movement, in the right hip and right joint, shortening of thigh and also of the difficulty in squatting on the floor, this court has awarded Rs. 1,40,000 under the head disability (Rs. 2,000 per percentage of disability).
25. In National Insurance Co. Ltd. v. Kusuma, MANU/SC/0972/2011 : 2011 ACJ 2432 (SC), respondent therein, 30 weeks pregnant, suffered a blow in her stomach. She was admitted in the hospital and found that the baby inside the uterus had died. On induced delivery, the stillborn baby was taken out. A claim for compensation under section 166 of Motor Vehicles Act was made for Rs. 2,00,000. Relying on a decision of Karnataka High Court, the Tribunal awarded Rs. 25,000 for loss of love and affection, Rs. 25,000 for loss to estate, Rs. 50,000 for loss of the unborn child and further awarded Rs. 10,000 towards pain and suffering. The insurance company, which preferred an appeal, was directed to pay the compensation to the claimant, in order to indemnify the owner of the car. Not satisfied with the quantum of compensation, the claimant preferred an appeal for enhancement. Applying the principles laid down in New India Assurance Co. Ltd. v. Satender, MANU/SC/8659/2006 : 2007 ACJ 160 (SC), in relation to the assessment of quantum of compensation for the death of a child in an accident, the High Court enhanced the quantum of compensation to Rs. 1,80,000 with 6 per cent interest. Being aggrieved by the same, insurance company preferred an appeal before the Apex Court. Having regard to the question of law involved, as to whether an unborn child (foetus), while still in mother's womb, can be considered to be a child, for the purpose of claiming compensation under section 166 of the Act, the Supreme Court engaged Mr. Uday U. Lalit, a Senior Advocate, as amicus curiae to assist the court. After considering the valuable assistance of the learned senior counsel and also the expression 'which appears to it to be just', appearing in section 168 of the Act and also of the fact that when the insurance company had not chosen to question the correctness of the award, determining the compensation for the loss of an unborn child, the Apex Court held that the insurance company is estopped from contending that child (foetus) cannot be considered to be a child for the purpose of claiming compensation under section 166 of the Act. While approving the judgment of Karnataka High Court, the Supreme Court, at para 11, held as follows:
(11) Thus, the word 'just' connotes something which is equitable, fair and reasonable, conforming to rectitude and justice and not arbitrary. It may be true that section 168 of the Act confers a wide discretion on the Tribunal to determine the amount of compensation but this discretion is also coupled with a duty to see that this exercise is carried out rationally and judiciously by accepted legal standards and not whimsically and arbitrarily, a concept unknown to public law. Amount of compensation awarded is not expected to be a windfall or bonanza for the victim or his dependant, as the case may be, but at the same time it should not be niggardly or a pittance. Thus, determination of 'just' amount of compensation is beset with difficulties, more so when the deceased happens to be an infant/child because the future of a child is full of glorious uncertainties. In the case of death of an infant many imponderables, like life expectancy of the deceased, his prospects to earn, save, spend and distribute have to be taken into account. It is quite possible that there may be no actual pecuniary benefit which may be derived by his parents during the lifetime of the child. But at the same time that cannot be a ground to reject the claim of the parents, albeit they establish that they had reasonable expectation of pecuniary benefit if the child had lived. The question whether there exists a reasonable expectation of pecuniary benefit is always a mixed question of fact and law but a mere speculative possibility of benefit is not sufficient. In Satender (supra), relied upon by the High Court, while dealing with a claim for compensation under the Act in relation to the death of a nine-year-old child in a truck accident, this court had observed as follows:
(9) There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendour of the stars, beyond the reach of monetary tape-measure. Determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents.
26. The child includes a stillborn child. [Section 3(b) of the Maternity Benefit Act, 1961 'foetus' means a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation (excluding any time in which its development has been suspended) and ending at the birth. [Section 2(bc) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (57 of 1994)] 'Foetal death' means absence of all evidence of life prior to the complete expulsion or extraction from its mother of a product of conception irrespective of the duration of pregnancy. [Section 2(c) of the Registration of Birth and Deaths Act, 1969 (18 of 1969)].
27. May be, the present case is not the one, where life is not taken away illegally, but the destruction of foetus life, due to the unforeseen accident, would certainly give rise to a cause for claiming compensation. At this juncture, it is worthwhile to reproduce the opinion of a notable author, Taylor, in his book, titled Principle and Practice of Medical Jurisprudence, considered by the Supreme Court in a matter, arising under Termination of Pregnancy Act, in Jacob George v. State of Kerala, MANU/SC/0684/1994 : (1994) 3 SCC 430. In the said book, at page 332 (13th Edn.), the author has opined that legally both abortion and miscarriage are synonymous because the foetus being regarded as a 'human life...from the movement of fertilisation'.
28. Death of foetus is certainly a loss to the parents, particularly to the expectant mother and it is a physical and emotional injury. But for the accident and the injuries, the appellant would not have undergone a surgery and that in the normal course, she would have given birth to a child, but for any unforeseen circumstances in the midway, but it also depends upon the general condition of the mother. There must be proximity with the injuries and the death. The cause of death should not be remote and unconnected with the injury sustained. If the cause of death is integrally connected with the injury sustained and is one, in the chain of causa causans, then the cause of death can be attributed to the injuries. In the case on hand, there is relationship with the death of the foetus, for the reason that due to the severe injuries in the hip and the likelihood of danger to the foetus, during surgery, the appellant was constrained to abort the baby in the womb.
29. When right of action for pecuniary damages for the loss of life by wrongful act or neglect or default of another person is recognised under the Motor Vehicles Act, 1988 and when foetus is also considered as a separate legal entity in our statutes, the parent is also entitled to claim compensation for the loss of foetus in the womb. Restitutio in integrum is a question to be decided in a case of death of foetus in the womb. But it is a settled principle that the quantum of compensation should be calculated, so as to put the claimant in an identical position, to put it in other words, the damages should be calculated in the same way and that the victim is put in the same position, as if there was no accident.
30. In the light of the above decisions and medical evidence that there was termination of pregnancy, entitlement of the appellant to payment of compensation, for the loss of foetus, is absolute and as rightly contended by the learned counsel for the appellant, the Claims Tribunal has failed to award a just and reasonable compensation for the loss of the unborn child in the womb, which has to be treated as a child in existence. When the life of a child in the womb is terminated, on account of the injuries or where there is nexus between the injuries and termination of pregnancy, mother/father is entitled to claim a just and reasonable compensation. Hence, following the decisions in National Insurance Co. Ltd. v. G. Parimala, MANU/TN/4116/2010 : 2012 ACJ 663 (Madras) and National Insurance Co. Ltd. v. Kusuma, MANU/SC/0972/2011 : 2011 ACJ 2432 (SC), this court is inclined to award a sum of Rs. 2,50,000 for the loss of life of the child in the womb.
31. Details in the discharge summaries, Exhs. P10 and P11, dated 10.3.2004 and 30.3.2004, issued by Apollo Hospitals at Chennai, extracted supra, show that the appellant had sustained closed fracture both bones right leg mid shaft transverse and undisplaced fracture left pubic bone and other injuries. She was admitted in the hospital on 14.3.2004 and that a surgery has been performed on 15.3.2004, using 360 x 11 mm nail fracture right tibia secured by closed IM nailing method. Proximal and distal locking has been done and after some time, she has been again admitted on 30.3.2004, on which date, medical termination of pregnancy has been done by suction curettage. Discharge summary, Exh. P11, also shows that she has been advised to review with Dr. Swarnakumari, Consultant Gynaecologist, and also with Orthopaedician. At the time of accident, she was aged 26 years. Doctor, PW 5, who clinically examined the appellant, with reference to medical records, stated supra, has assessed the disability at 45 per cent.
32. Considering the situs and the nature of injuries, i.e., closed fracture both bones right leg mid shaft transverse and undisplaced fracture left pubic bone, sustained by a pregnant woman and the consequential disability of 45 per cent assessed by doctor, PW 5, this court is of the view that the disability compensation has to be enhanced, following a decision of this court in Prahalath Jasmathiya v. V. Sankaran, MANU/TN/2389/2008 : 2009 (5) MLJ 1549 (Mad-NOC) and Managing Director, Tamil Nadu State Trans. Corpn. Ltd. v. S. Kannappan, 2007 (2) TN MAC 1 and, therefore, a sum of Rs. 90,000 is awarded, as disability compensation.
33. The situs and nature of injuries themselves would cause pain and suffering, More than that the surgical process of passing a guide wire and usage of 360 x 11 mm nail, to fuse the fracture right tibia, by closed IM nailing method, with proximal and distal locking, would have certainly immobilized the appellant, beyond the period of hospitalisation, between 14.3.2004 and 20.3.2004 and further treatment on 30.3.2004. The physical pain undergone by the appellant, at the time of accident, during the treatment and convalescence, would be inexplicable. For the pain, agony and suffering, due to the loss of a child in the womb, time is the only remedy. Pain is one, which is experienced momentarily, but it may continue even for a longer period, depending upon the gravity and situs of the injury, whereas suffering is loss of happiness, on account of the same and the disability caused due to the injuries. Pain has no difference between rich and raff. Considering the above, Rs. 15,000 awarded for pain and suffering is inadequate. Hence, this court is inclined to award Rs. 40,000 towards the same.
34. Loss of amenities as defined by the Full Bench of this court in Cholan Roadways Corporation Ltd. v. Ahmed Thambi, MANU/TN/9516/2006 : 2006 ACJ 2703 (Madras), is extracted:
Deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function,
In the light of the above judgment, a sum of Rs. 20,000 is awarded under the head loss of amenities.
35. A woman, either a housewife or employed, would voluntarily engage herself in all household work and extend her valuable gratuitous services to her husband, children and other members in the family. In Arun Kumar Agrawal v. National Insurance Co. Ltd., MANU/SC/0507/2010 : 2010 ACJ 2161 (SC), the Supreme Court, after considering the services which the husband and the family stand to lose, as per Kemp on Negligence, held as follows:
(24) It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family, i.e., husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term 'services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.
Though it is a case of death of the wife, still the principles can be equally made applicable even to an injured, who is otherwise incapacitated from doing any work.
36. In the case on hand, when the appellant has suffered 45 per cent disablement, certainly she would not have been in a position to do all the household works and consequently, would have engaged an attendant, for cooking, washing and to do other household work. Even during the period of treatment in the hospital and thereafter, she would have taken the assistance of some person, preferably a lady, considering the fact that the injury is in the hip. Loss of earnings has been claimed on the basis of the averment that prior to the accident, she was engaged in tuition and earned Rs. 5,000 per month. Except her oral testimony, there is no other evidence. Nevertheless, the gratuitous services of the wife/mother can always be taken as a factor, measured in terms of money, to certain extent, for the loss of income, during the period of treatment and convalescence and that the husband or other family members would have been constrained to engage somebody to do the household work. She would have been immobilized for a considerable time to come back to the normal stage, particularly when she has lost a baby in the womb. Estimating the loss of monthly income at Rs. 4,000, this court deems it fit to award a sum of Rs. 20,000 under the head loss of income during the period of treatment, for at least 5 months. Considering the avocation pleaded, this court is of the view that after recovering from the shock, still she can continue her avocation from her residence and, therefore, not inclined to award any compensation under the head future loss of earnings. This court deems it fit to award a sum of Rs. 10,000 towards attendant charges.
37. Compensation of Rs. 2,000 awarded for transportation is inadequate. Periodical review has been suggested by both the doctors, Orthopaedician and Gynaecologist. Considering the injuries and the necessity to seek for periodical review and treatment, this court is inclined to enhance the quantum of compensation under the head transportation to Rs. 5,000.
38. After surgery, a patient normally becomes weak and nutritious diet is required for improving the general condition and speedy recovery. That apart, in the case on hand, on 30.3.2004, there was also a termination of pregnancy. Needless to state that termination of pregnancy to a woman, coupled with the fact that there was a surgery on 15.3.2004, to set right the closed fractured both bones right leg mid shaft transverse and undisplaced fracture of left pubic bone, just two weeks before such termination of pregnancy, requires proper diet and hence, this court is of the view that the quantum of compensation of Rs. 3,000 awarded under the head extra nourishment is inadequate and hence, it is enhanced to Rs. 10,000.
39. Though a surgery was performed on 15.3.2004 and that there was also a termination of pregnancy on 30.3.2004 in Apollo Hospitals, Chennai, considering the submission of the learned counsel for the appellant that for the first sitting, the medical expenses have been settled, the Claims Tribunal, taking note of the above said submission and based on Exh. P2, has awarded Rs. 5,500 for medical expenses, which does not require any enhancement. A sum of Rs. 500 is awarded for damages to clothes.
40. In the result, the appellant-claimant is entitled to Rs. 4,41,000 with interest at the rate of 7.5 per cent per annum from the date of claim till the date of realization, as apportioned hereunder:
The appeal for enhancement is allowed. The respondent No. 2, insurance company, is directed to deposit a sum of Rs. 4,41,000, the enhanced amount, with proportionate accrued interest at the rate of 7.5 per cent per annum, with costs, from the date of claim, till the date of realization, less the amount already deposited, to the credit of M.C.O.P. No. 2896 of 2004, on the file of the Motor Accidents Claims Tribunal (V Court of Small Causes), Chennai, within a period of four (4) weeks from the date of receipt of a copy of this order. On such deposit, the appellant-claimant is permitted to withdraw the same, by making necessary application before the Tribunal. No costs.
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