Andhra HC (Pre-Telangana)
Oriental Insurance Co. Ltd., ... vs Santhilal Patal And Anr. on 14 March, 2007
Equivalent citations: 2007(4)ALD855
JUDGMENT V. Eswaraiah, J.
1. The Oriental Insurance Company filed this appeal questioning the order dated 17-2-1997 passed in M.V.O.P. No. 560 of 1995 by the Chairman, Accidents Claims Tribunal-cum-IV Additional District Judge, Chittoor at Tirupati awarding compensation of Rs. 50,000/- under the head of 'no fault liability' for the death of an unborn child in favour of the first respondent herein.
2. The first respondent herein is the claimant in M.V.O.P. No. 560 of 1995 filed under Section 140 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation of Rs. 50,000/- on the ground that his wife and unborn child, who was about 10 months old in the womb of his wife, died in an accident that occurred on 19-7-1995 due to rash and negligent driving of the driver of the car bearing No. KA 04 M 6279 belonging to the second respondent herein and insured with the appellant - insurance company herein.
3. It is the case of the claimant that he is the father of the child aged about 10 months in the womb of his wife at the time of the accident. It is his further case that on 19-7-1995 at about 4.20 p.m. while his deceased wife along with her two minor sons were travelling in a rickshaw on Tirupati-Renigunta Road, the driver of the car drove the vehicle in a rash and negligent manner endangering the human life on the public road and hit the rickshaw from behind, then passed ahead touching the right side body of the van belonging to one Nagamurali and also hit a cyclist, who also received injuries and then stopped in front of Shiva Garage, as a result of which the wife of the claimant, his two children all received severe grievous and multiple injuries. They were immediately shifted to SVRR GG Hospital, Tirupati where it was declared that the wife of the claimant and his unborn male child in the womb, died and it was found that the baby was 10 months in the womb with 2.7 Kgs weight and was counting days for delivery. It is stated that had the accident not occurred the child in the womb and his wife would have been alive and thus, the claimant, being the father of the child, filed the petition claiming compensation under the head 'no fault liability'. A separate claim petition was filed for the death of his wife.
4. I am of the opinion that the claimant ought to have claimed the compensation under the head 'fault liability' only but he has chosen to claim the compensation under the head 'no fault liability' for fixed compensation amount of Rs. 50,000/-. However, the insurance company has taken no defence that there was no rash and negligent driving of the driver of the said car. A finding has been recorded, in the other petition filed by the claimant for the death of his wife, to the effect that the accident occurred due to rash and negligent driving of the driver of the said car. If that be so, the claimant is also entitled to compensation under fault liability as there was fault of the driver of the offending vehicle. The insurance company preferred this appeal on the ground that the Tribunal erred in awarding compensation under no fault liability to the child in the womb and that the child in the womb cannot be treated as a person, therefore, the claimant is not entitled to any compensation.
5. Insofar as the liability to pay compensation is concerned, under Section 140 of the Act where death of a person is resulted from an accident arising out of the use of a motor vehicle, the owner as well as the insurer of the vehicle are jointly and severally liable to pay compensation in respect of the death of that person. Therefore, the only question that arises for consideration is as to whether the unborn child aged about 10 months can be called as a person.
6. Under Section 163-A of the Act the legal heirs of the victim are also entitled for compensation. As per the Second Schedule inserted by Act 54 of 1994, which came into effect from 14-11-1994, compensation has to be paid with reference to the schedule mentioned therein depending upon the age of the victim and by adopting appropriate multiplier to the monthly income. The schedule also goes to show that the income of a non-earning person has to be taken at Rs. 15,000/- per annum. 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 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 , 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 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.
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.
The civil miscellaneous appeal is accordingly dismissed with costs.