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Judgment
MACA No.2027 of 2011 arises from award dated 12.03.2010 passed by the Motor Accidents Claims Tribunal, Kozhikode in OP(MV) No.941 of 2009. The appellants are the claimants. They claimed a total compensation of Rs.2,60,000/- limited to Rs.2,00,000/- on the allegation that the second appellant, who was eight months pregnant at the time of the motor accident on 20.10.2008, suffered a miscarriage due to the accident. The appellants contended that the sum of Rs.51,300/-awarded as compensation on account of the miscarriage or "the death of the foetus" as claimed by the appellants is meagre. A Division Bench of this Court had in Oriental Insurance Co.Ltd.v.Rasheed (2004(3) KLT 552) held that the death of the foetus in a case of death of a fully pregnant woman who died as a result of a motor accident is to be taken as a part of the bodily injury sustained by the deceased. It is stated therein as follows:- " The Tribunal rightly took into account the fact that the child in the womb also died in the accident while calculating the compensation for the death of the lady. It cannot be stated that the award is in any way wrong. It cannot be stated that the separate claim for death of the foetus was considered by the Tribunal. The deceased was carrying the child and therefore the total compensation included Rs.25,000/- for the death of the lady".
The award was therefore upheld. The Division Bench relied on the decision of the High Court of Himachal Pradesh in Rakesh Kumar v. Prem Lal and others (1996 ACJ 980) to hold that no separate compensation is payable for the loss of the foetus which should be treated as a part of the bodily injuries sustained by the deceased.
However, our attention has been drawn to the decision reported in Minati Das V. Laxmidhar Mohanty and others (1976 ACJ (512) wherein a learned Single Judge of the Orissa High Court had considered a claim for compensation on account of the miscarriage suffered as a result of a motor accident. As early as in the year 1976, the Orissa High Court awarded a compensation of Rs.7,500/- under the heads, physical and mental suffering, treatment expenses and loss of amenities. Later a Division Bench of this Court in Manikuttan v. Baby (2008(4) KLT 539) held that "foetus is another life in the woman and it comes as a baby in the course of time. Though foetus grows in the body of the woman it cannot be equated to or considered to be a part of the body of the woman. In effect, loss of the foetus consequent upon the death of pregnant woman is actually loss of a child in the offing for the husband of the woman." It is further held that "compensation to be granted for the death of a pregnant woman in a motor accident is for the loss of two lives. The appellant/husband was therefore entitled to claim compensation separately for the loss of his child in the womb of his wife who perished in the accident." As is clear from the observations above, the case covered by the decision was one of death of a pregnant woman.
The instant case is a case of miscarriage simplicitor. The second appellant who was eight months pregnant at the time of the accident suffered a spontaneous miscarriage due to the impact suffered by her in the motor accident besides other injuries. She, her husband and their elder child claimed compensation for the injuries suffered by her as well as for the death of the foetus and under other heads. The question to be considered is whether any compensation is to be awarded to the mother on account of the death of the foetus. The Medical Termination of Pregnancy Act, 1971 provides that a pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy does not exceeds twelve weeks, if such medical practitioner is of opinion, formed in good faith, that the continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or if there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. If the pregnancy exceeds twelve weeks but is within twenty weeks, then two registered medical practitioners have to form such an opinion. After the pregnancy has reached a term of twenty weeks or more, it is not possible to terminate such pregnancy even with the consent of the pregnant woman unless registered medical practitioners are of the opinion that the termination is absolutely essential to save the life of the pregnant woman. It is clear from these provisions that a foetus is not considered as merely a part of the pregnant woman. It is clear that the essential parts of the human body start forming very early in pregnancy and by about 12 weeks a rudimentary heart is beating in the foetus. Developments occur at an amazing speed and a baby born prematurely at about seven months into the pregnancy has a good chance of survival even outside the mother''s body. In such circumstances the view that a foetus which is more than six months old in the womb is to be disregarded while considering the question of compensation seems to be harsh. This apart, the mental condition of the mother to be, suddenly loses the child she has been expecting for a considerable length of time, is also to be taken into consideration. The agony suffered by her by the abrupt termination of her pregnancy is indeed difficult to estimate and quantify. The law also recognises the rights of the unborn in certain circumstances. One such instance is section 13 of the Transfer of Property Act.
The decisions rendered by the Karnataka High Court in Divisional Controller, B.T.S.Division, Karnataka State Road Transport Corporation v. Vidya Shindhe (2005 ACJ 69) and Bhawaribai v. New India Assurance Co.Ltd.(2006 ACJ 2085)], the Madras High Court in Branch Office, New India Assurance Co.Ltd v. Krishnaveni , the Madhya Pradesh High Court in Shraddha v. Badresh and Others (2006 ACJ 2067) and the Andhra Pradesh High Court in Oriental Insurance Co.Ltd v. Santhilal Patal (2007(4) ACD 835), have been referred to by the Delhi High Court in Prakash v. Arun Kumar Saini (2010 ACJ 2184) wherein compensation has been granted equating the death of the foetus in the womb as the death of a minor child.
Though the Hon''ble the Supreme Court also had occasion to consider a case of compensation awarded for the death of a foetus or a stillbirth as a result of a motor accident in National Insurance Company Ltd v. Kusuma and another (2011)13 SCC 306, the principles for grant of such compensation were not considered by the Apex Court. In that case, compensation of Rs.2,00,000/- was claimed by the woman who had to undergo an induced delivery on account of the death of her foetus in a motor accident. The accident in that case occurred on 28.06.1995, while the claimant was thirty weeks pregnant. The Tribunal by award dated 05.10.2004 awarded a compensation of Rs.25,000/- towards loss of affection, Rs.25,000/- towards loss of estate and an amount of Rs.50,000/- towards loss of unborn child and a further sum of Rs.10,000/- towards pain and suffering. Dissatisfied with the quantum the claimant preferred an appeal before the High Court. Relying on decision in New India Assurance Co.Ltd v. Satender and others [(2006) 13 SCC 60], the High Court enhanced the compensation to Rs.1,80,000/- with interest @ 6% per annum. Though the insurer took up the matter in appeal before the Apex Court, it was held that no appeal had been preferred by the insurer before the High Court and therefore the question whether an unborn child can be considered to be a child for the purpose of claiming compensation under section 166 of the Act cannot be agitated before the Supreme Court. The Hon''ble the Supreme Court upheld the award of compensation for the death of the unborn child. The above referred decision, according to us, does not provide necessary guidance to resolve the apparent conflict between two Bench decisions of this Court. In the above view of the matter, noticing the conflict in the decisions rendered by two Division Benches of this Court in Oriental Insurance Co.Ltd v. Rasheed (2004(3) KLT 552) and Manikuttan v. Baby (2008(4) KLT 539), we refer these cases to be heard and decided by a Full Bench of this Court. Registry to place the records before the Hon''ble the Chief Justice for orders.