Balu and Others vs Ramesh Chandra and another

Hon''ble Mr. N.K. Mody, J.—With the consent of the parties matter heard finally.

This is an appeal filed by the claimants u/s 173 of the Motor Vehicles Act against an award dated 16-5-08 passed by VIII AMACT, (Fast Track), Ujjain in Claim Case No. 32/07. By impugned award, the Claims Tribunal has awarded a total sum of Rs. 50,000/- with interest to the claimants for the death of one unborn child in womb who died in vehicle accident. According to claimants, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent?

As observed supra, it is a death case. On 1-12-06 Sangitabai who was carrying a baby in her womb met with a motor accident and the foetus died, giving rise to filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking compensation for her/his death. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal by impugned award partly allowed the claim petition filed by claimants and as stated supra, awarded a sum of Rs. 50.000/-.

Learned Counsel for the appellants submits that the Sangeetabai was the wife of appellant No. 1 and mother of rest of the appellants. It is submitted that at the time of accident Sangeetabai was pregnant and because of accident the 9 months old foetus died. Learned Counsel placed reliance on a decision in the matter of Shraddha Vs. Headrest''s, 2006 (2) TAC 970. Wherein this Court laid down the principles for awarding compensation for even still-born baby to be considered as child. Learned Counsel further submits that since the child was in womb, therefore the amount awarded is on lower side, which deserves to be enhanced. It is submitted that the appeal filed by the appellants be allowed and the amount of compensation be enhanced.

Learned Counsel for respondent No. 3 submits that the cross-objections have been filed by respondent No. 3, It is submitted that the learned Tribunal committed error in holding the respondent No. 3 liable for payment of compensation. For this contention reliance is placed on a decision in the matter of Margappa Shethappa Vadar Vs. Proctor and Gamble India and Another, . wherein pregnant lady who was carrying 28 weeks old foetus died and the Tribunal held that unborn child in womb is not a person and rejected the claim. Bombay High Court held that death of foetus in womb cannot be treated as death of person within the meaning of Section 165 of Motor Vehicles Act. It was also held that there is no concept as legal representative of foetus. On the strength of aforesaid position of law, learned Counsel submits that the appeal filed by the appellants be dismissed and the cross-objections filed by respondent No. 3 be allowed and the award passed by the learned Tribunal be set aside.

I have gone through the evidence adduced by the claimants. In the matter of Shraddha (supra), this Court had an occasion to consider the claim of a child in womb and it was observed that for the purpose of considering the case for awarding compensation even the still-born baby has to be considered as child, still born baby died in the womb due to the injuries sustained by the injured in the accident. It was also held that there is a nexus between the accident and the cause of death of the child who was in womb. This Court is bound by its own decision. Otherwise also no appeal has been filed by the respondent No. 3 and after payment of compensation as awarded by the learned Tribunal upon filing the appeal by the appellants cross-objections have been filed.

So far as amount of compensation is concerned, deceased was already having four children who are appellant Nos. 2 to 5. Sangeetabai also died in the said accident, for which separate claim petition was filed and compensation has been awarded to the appellants. In the facts and circumstances of the case, this Court is of the view that a case of marginal enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs. 15.000/-. In view of this, appeal filed by the appellants is allowed and the cross-objections filed by respondent No. 3 stands dismissed. Thus, the appellants are entitled for total sum of Rs. 65.000/- instead of Rs. 50,000/-. The enhanced amount of Rs. 15.000/- shall carry interest @ 8% p.a. from the date of application. With the aforesaid modification the appeal stands disposed of. No order as to costs.