Rajasthan High Court - Jodhpur
Smt. Sonia Giri vs Bhava Ram And Ors on 14 October, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1281/2010
Smt. Sonia Giri
----Appellant
Versus
Bhava Ram And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 1280/2010
Smt. Sonia Giri
----Appellant
Versus
Bhava Ram And Ors.
----Respondent
For Appellant(s) : Mr. Anil Bhandari
For Respondent(s) : Mr. Mahendra Trivedi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 14/10/2019 S.B. Civil Misc. Appeal No.1281/2010:
1. This misc. appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant-claimant claiming the following relief:
"It is, therefore, prayed that this appeal may kindly be allowed, the impugned judgment and order dated 09.08.2010 may kindly be modified and the claim petition filed by the appellants may kindly be allowed in toto with costs throughout."
2. The accident in question had happened on 01.07.2008 when the claimant was travelling by a Car bearing registration (Downloaded on 18/10/2019 at 08:23:19 PM) (2 of 16) [CMA-1281/2010] No.UP78 AG 8770, and the said Car met with an accident with another vehicle bearing registration No.GJ12 W 8800, which resulted into car turning turtle and the claimant getting injured.
The learned Tribunal while deciding the claim on 09.08.2010 has arrived at a conclusion that the claimant was entitled for Rs.14000/- for four injuries received by her and pain no account of such injuries; and also Rs.48200/- on account of the medical bills. The Tribunal has also arrived at a conclusion that the appellant was having seven months' old female foetus in her womb and the dead child had to be removed after operation.
3. This is an appeal for enhancement of compensation for the injuries and while taking into account the four injuries and adopting RALSA guidelines, this Court finds that the amount awarded for the injuries is sufficient. The amount awarded for the medical bills is also justified as the bills were on record. The averments made by learned counsel for the appellant-claimant that no amount for hospitalization or loss of income has been granted is not justified as the income of the lady has not been proved before the learned Tribunal, and thus, the impugned award does not call for any interference.
4. Hence, the appeal is dismissed. All the pending applications stand disposed of.
S.B. Civil Misc. Appeal No.1280/2010:
1. This misc. appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellants-claimants claiming the following relief:
"It is, therefore, prayed that this appeal may kindly be allowed, the impugned judgment and order dated 09.08.2010 may kindly be set (Downloaded on 18/10/2019 at 08:23:19 PM) (3 of 16) [CMA-1281/2010] aside and the claim petition filed by the appellants may kindly be allowed in toto with costs throughout."
2. The accident in question had happened on 01.07.2008 when the claimant was travelling by a Car bearing registration No.UP78 AG 8770, and the said Car met with an accident with another vehicle bearing registration No.GJ12 W 8800, which resulted into car turning turtle and the claimant getting injured.
On account of such accident, the seven months' female foetus which the claimant was carrying in her womb was delivered dead.
Therefore, the learned Tribunal has rejected the claim petitioner.
3. The claim is for compensation on account of death of seven months' female foetus, which the claimant was carrying in her womb and was delivered dead.
4. Learned counsel for the appellant has relied upon the judgment rendered by the Hon'ble Delhi Court in Prakash & Ors.
Vs. Arun Kumar Saini & Anr. reported in 2010 ACJ 2184, relevant portion of which reads as under:
"18. The learned Counsel for the appellants refers and relies upon the judgment of this Court in the case of National Insurance Co. Ltd. v. 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 v. Musafir Paswan, Sobhagya Devi v. Sukhvir Singh II (2006) ACC 1997, Syam Narayan v. Kitty Tours & Travels 2006 ACJ 320, R.K. Malik v. Kiran Pal MANU/DE/8734/2006 : III (2006) ACC 261, R.K. Malik v. Kiran Pal MANU/SC/0809/2009 : 2009 (8) Scale 451. This Court held as under: -
4. In the case of Manju Devi v. Musafir Paswan, 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:
(Downloaded on 18/10/2019 at 08:23:19 PM)(4 of 16) [CMA-1281/2010] 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 and Ors. v. Sukhvir Singh and Ors. II (2006) ACC 1997 relates to the death of a 12-year old boy. Following the decision of the Apex Court in Manju Devis 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 v. 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 Devis 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 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 163A 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 (Downloaded on 18/10/2019 at 08:23:19 PM) (5 of 16) [CMA-1281/2010] 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 enhancing the compensation to Rs. 2,75,000/-.
7. In the case of R.K. Malik v. Kiran Pal MANU/DE/8734/2006 : 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 v. Kiran Pal MANU/SC/0809/2009 : 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:
(Downloaded on 18/10/2019 at 08:23:19 PM)(6 of 16) [CMA-1281/2010]
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 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 (Downloaded on 18/10/2019 at 08:23:19 PM) (7 of 16) [CMA-1281/2010] wonder they find it well nigh 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. MANU/SC/0146/1995 :
(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 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 MANU/SC/0437/1999 : (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 (Downloaded on 18/10/2019 at 08:23:19 PM) (8 of 16) [CMA-1281/2010] 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.
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 (Downloaded on 18/10/2019 at 08:23:19 PM) (9 of 16) [CMA-1281/2010] 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 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 (Downloaded on 18/10/2019 at 08:23:19 PM) (10 of 16) [CMA-1281/2010] "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.
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 (Downloaded on 18/10/2019 at 08:23:19 PM) (11 of 16) [CMA-1281/2010] rendered by this Court in General Manager, Kerala S.R.T.C. v. Susamma Thomas MANU/SC/0389/1994 :
(1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav MANU/SC/0338/1996 : (1996) 3 SCC 179; and Lata Wadhwa case (supra).
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 reasonable. This Court has observed as follows in State of Haryana v. Jasbir Kaur MANU/SC/0549/2003 : (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 (Downloaded on 18/10/2019 at 08:23:19 PM) (12 of 16) [CMA-1281/2010] 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 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 (Downloaded on 18/10/2019 at 08:23:19 PM) (13 of 16) [CMA-1281/2010] 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 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 v. Kiran Pal MANU/SC/0809/2009 : 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 v. Kiran Pal MANU/DE/8734/2006 : 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. v. Farzana (supra).
20. 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 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 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 (Downloaded on 18/10/2019 at 08:23:19 PM) (14 of 16) [CMA-1281/2010] 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."
5. Learned counsel for the appellant-claimant has shown the medical certificate, which is not disputed by the respondents either before the learned Tribunal nor before this Court, which clearly states that seven months dead female foetus was removed in operation by Dr. Saroj Srivastava on 05.07.2008. The doctor has categorically mentioned in the Death Certificate that the cause of death is Abruptio Placentae due to the road accident suffered by the claimant on 01.07.2008. The medical documents of treatment and operation are also annexed.
6. Learned counsel for the respondents has however, seriously disputed the averments by submitting that seven months' female foetus is not a legal person and no compensation can be granted in respect thereof.
7. Learned counsel for the respondents further submits that though it is admitted that the accident happened on 01.07.2008 and the operation resulting into delivering of dead female foetus was done on 05.07.2008, but the death of child (female foetus) has not been proved due to the accident as it happened after four days of the accident and any child who would (Downloaded on 18/10/2019 at 08:23:19 PM) (15 of 16) [CMA-1281/2010] have died during the accident would have to be removed within 24 hours, as otherwise it would have been fatal for the mother.
8. Learned counsel for the respondents has also referred to the treatment undergone in the government hospital, which does not refer to any such injury or details which could point out the cause of death of seven months' female foetus to be arising out of the accident in question.
9. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court finds that the doctor's opinion is clear that the lady was having seven months' pregnancy and the dead female foetus was delivered in operation on 05.07.2008, which is four days after the accident. The presumption drawn by the learned Tribunal is not acceptable as the learned Tribunal itself has in a concurrent claim arising out of the same accident has accepted the fact that the claimant was having seven months pregnancy and the dead child could be a result of the accident.
10. The averment regarding no apparent injuries on the mother's body, which could lead to the death of foetus, cannot be accepted as the vehicle turning turtle could have certainly caused so much of pressure/natural injury, which could result into the death of child (female foetus). Such presumption can be safely drawn, particularly because the accident had happened on 01.07.2008 and the operation had been conducted on 05.07.2008.
The doctors certificate, as perused by this Court, clearly opines that the female foetus had died due to damage in placentae.
11. Furthermore, regarding the averment that death of seven months' female foetus does not call for any compensation, this Court is of the opinion that precedent law of Prakash (Downloaded on 18/10/2019 at 08:23:19 PM) (16 of 16) [CMA-1281/2010] (supra) absolutely applies in the present facts and the respondents have not been able to show any law that the seven months' foetus dying due to the accident would not make out a case for seeking compensation.
12. In view of the above, the appeal is allowed. The respondents are directed to pay the compensation of Rs.2,50,000/- with interest @ 6% per annum from the date of filing of the claim petition. However, the pay and recovery, which has already been ordered vide the impugned award in the simultaneous injury case/parallel case arising out of same accident, shall apply upon the Insurance Company in the present case also. All the pending applications stand disposed of.
(DR. PUSHPENDRA SINGH BHATI),J 7-Zeeshan/-
(Downloaded on 18/10/2019 at 08:23:19 PM)Powered by TCPDF (www.tcpdf.org)