How to decide quantum to compensation for death of unborn child in motor accident?

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.

35. In Prakash and others vs. Arun Kumar Saini (supra), Delhi High Court further held as under:

(19) The judgment of this Court in National Insurance Company 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 ` 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 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 ` 2,50,000/- was awarded by Madhya Pradesh High Court in the case of Shraddha (supra), ` 2,00,000/- by Madras High Court in the case of Krishnaveni (supra) and ` 1,50,000/- by Karnataka High Court in the case of Bhawaribai (supra), ` 2,50,000/- is awarded to the appellants in the present case.

 IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Misc. Appeal No. 4767 of 2009

Decided On: 26.09.2011

Hemraj and Ors. Vs. Ramdhan and Ors.

Hon'ble Judges/Coram:

M.C. Sharma, J.

Citation:  MANU/RH/1420/2011.

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Whether insurance company can file appeal on merits questioning quantum of compensation?

Reference, at this stage, can be made to a judgment of

Hon'ble the Supreme Court in a case of National Insurance Co.

Ltd vs. Nicolletta Rohtagi and others 2002(4) RCR (Civil) 464

wherein Hon'ble the Supreme Court had discussed in detail the

provisions of Section 149 of the Motor Vehicles Act and has held

that the Insurer is entitled to file an appeal only on the issues and

grounds prescribed under Section 149(2) or on satisfaction of the

conditions prescribed specified in Section 170 not to challenge

only quantum of compensation. Hon'ble the Supreme Court in

para Nos. 19, 20, 21, 22 & 31 observed as under:-

“19. In Shankarayya and Anr. v. United India

Insurance Co. Ltd. and Anr. [1998] 3 SCC 140, it

was held that an insurance company when impleaded

as a party by the Court can be permitted to contest the

proceedings on merits only if the conditions precedent

mentioned in Section 170 are found to be satisfied and

for that purpose the insurance company has to obtain

an order in writing from the Tribunal and which

should be a reasoned order by the Tribunal. Unless

this procedure is followed, the insurance company

cannot have a wider defence on merits than what is

available to it by way of statutory defences. In

absence of the existence of the conditions precedent

mentioned in Section 170, the insurance company was

not entitled to file an appeal on merits questioning the

quantum of compensation.

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

FAO No.3601 of 2015 (O&M)

Date of decision: 14.12.2015

IFFCO Tokio General Insurance Company Limited

 ….Appellant

Versus

Suman Rani and others

 ….Respondents

CORAM: HON’BLE MS. JUSTICE RITU BAHRI

Citation:2016(4) ALLMR(JOURNAL) 4

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Whether insurer is entitled to file appeal only on quantum of compensation?

Hon'ble the Supreme Court in a case of National Insurance Co.
Ltd vs. Nicolletta Rohtagi and others 2002(4) RCR (Civil) 464
wherein Hon'ble the Supreme Court had discussed in detail the
provisions of Section 149 of the Motor Vehicles Act and has held
that the Insurer is entitled to file an appeal only on the issues and
grounds prescribed under Section 149(2) or on satisfaction of the
conditions prescribed specified in Section 170 not to challenge
only quantum of compensation. Hon'ble the Supreme Court in
para Nos. 19, 20, 21, 22 & 31 observed as under:-
“19. In Shankarayya and Anr. v. United India
Insurance Co. Ltd. and Anr. [1998] 3 SCC 140, it
was held that an insurance company when impleaded
as a party by the Court can be permitted to contest the
proceedings on merits only if the conditions precedent
mentioned in Section 170 are found to be satisfied and
for that purpose the insurance company has to obtain

an order in writing from the Tribunal and which
should be a reasoned order by the Tribunal. Unless
this procedure is followed, the insurance company
cannot have a wider defence on merits than what is
available to it by way of statutory defences. In
absence of the existence of the conditions precedent
mentioned in Section 170, the insurance company was
not entitled to file an appeal on merits questioning the
quantum of compensation.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.3601 of 2015 (O&M)
Date of decision: 14.12.2015
IFFCO Tokio General Insurance Company Limited

Versus
Suman Rani and others

CORAM: HON’BLE MS. JUSTICE RITU BAHRI
Citation:2016 (4) ALLMR(JOURNAL) 4

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