Malabika Dutta VsThe Chief Executive Officer

Deepak Gupta, C.J.—The following interesting question arises in this appeal. Whether compensation can be awarded for loss of foetus and what should be the compensation in such cases?

A number of Judgments have been cited and the first question is whether compensation should be granted for loss of foetus. I am clearly of the view that compensation must be granted for loss of a foetus. What is the compensation to be granted will depend upon the evidence led in each case with regard to the age and health of the foetus, if any.

Two High Courts i.e. the High Court of Rakesh Kumar and Another Vs. Prem Lal and Others, and Bombay High Court in the case of Margappa Shethappa Vadar Vs. Proctor and Gamble India and Another, have held that the unborn child in the womb is not a person within the meaning of sections 165 and 166 of the Motor Vehicles Act and therefore, a claim for the loss of foetus is not maintainable under the provisions of the Motor Vehicles Act.

Most of the other High Courts have taken the view that compensation can be claimed for loss of the foetus also. The Karnataka High Court in The Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation Vs. Vidya Shindhe and Another, was dealing with a matter where a pregnant woman suffered grievous injuries. Evidence was led that she was carrying a foetus which had completed 37 weeks. A stillborn child was born two days after the accident. The High Court held that the foetus of 37 weeks for all purposes was equal to a stillborn child and therefore, awarded Rs. 1,50,000/-. In Bhawaribai and Another Vs. New India Assurance Co. Ltd. and Another, following the earlier Judgment and award of Rs. 1,50,000/- was made for loss of foetus, but no reasoning is there in this Judgment.

The High Court of Madhya Pradesh in the case of Shraddha Vs. Badresh and Others, was dealing with a matter where the foetus was 28 weeks old and awarded Rs. 1,00,000/- for loss of foetus. A learned Single Judge of the Delhi High Court in the case of Prakash and Others Vs. Arun Kumar Saini and Another, has in an elaborate Judgment dealt with all the issues and awarded Rs. 2,50,000/- for loss of foetus. The Madras High Court in the case of Branch Office, New India Assurance Co. Ltd. Vs. Krishnaveni and R. Prakash, awarded Rs. 2,00,000/- for loss of stillborn child. In that case also the lady was pregnant by 9 months. The Apex Court in the case of National Insurance Company Ltd. Vs. Kusuma and Another, was dealing with a matter where the Tribunal had awarded Rs. 50,000/- for death of an unborn child. In that case, the claimant was 30 weeks pregnant and lost the unborn child. The High Court awarded compensation for loss of foetus. The appeal was dismissed by the Apex Court.

The Apex Court in Para 14 however, held as follows:-

"14. Having examined the instant case on the touchstone of the aforestated broad principles, we are of the opinion that neither the Tribunal nor the high Court applied any principle for determination of the amount of compensation on account of the death of an unborn child. It is clear from a bare reading of the orders of the Tribunal and the High Court that no reasons have been indicated by the Tribunal while awarding a lump sum amount of Rs. 50,000 towards the loss of unborn child and Rs. 10,000 for pain and suffering to the mother and by the High Court enhancing the said amounts to a consolidated amount of Rs. 1,80,000. Besides, in the impugned judgment, we do not find any discussion on the question of non-pecuniary compensation awarded by Tribunal to the claimant-mother on account of pain and suffering as a result of death of the child. In the normal course, we would have remanded the matter back to the Tribunal for fresh consideration. However, bearing in mind the quantum of compensation awarded by the courts below and the fact that the accident took place in the year 1995, we are of the opinion that at this juncture it would be too harsh to direct the claimants to undergo the entire gamut of a fresh exercise u/s 168 of the Act. Therefore, in the facts and circumstances of the case, we refrain from interfering with the impugned judgment and dismiss the appeal accordingly, with no order as to costs."

A foetus is a part of the human body and when a woman looses the foetus she obviously suffers pain and suffering. The question is whether the foetus is to be treated as a separate entity or living being for assessing the compensation. That would depend on the facts and circumstances of each case. The most important factor would be the age of the foetus. A child in the womb has certain rights as envisaged in Section 6 of the Limitation Act and Section 20 of the Hindu Succession Act. The unborn child also has a right of succession. However, I am in not total agreement with the reason given by the Delhi High Court in Prakash and others vs. Arun Kumar Saini and another (supra) case. The rights of the child/unborn child mature only if the child is born and becomes a living being. If the foetus does not survive it has no right of succession and cannot claim benefit of Limitation Act etc. Though I am in agreement with the view that a mother or a father must be compensated for the loss of a foetus what is the compensation will depend on the facts of the each case. In all the cases cited, the foetus was at an advanced stage between 28 to 36 weeks. It is established according to medical jurisprudence that a foetus at the age of 28 weeks is almost a complete human being and premature children born at the stage of 7 months pregnancy very often survive and live like normal human beings.

A 3 months old foetus cannot be equated to a 7 month or 9 month old foetus. There are many pregnancies which may unfortunately not lead to the birth of a child. As far as the present case is concerned, there is no evidence whatsoever. No medical evidence has been led to prove the age of the foetus or the health of the foetus. In all the cases referred to by the appellant, medical evidence was led in respect of the age of the foetus and the development of the foetus. As far as the present case is concerned, the claimant only stated that she went to the chamber of Dr. P.P. Saha, Gynecologist, who told her that she had suffered miscarriage. Neither Dr. Saha was examined nor any evidence led to show what was the age of the foetus. In fact, there is no evidence led, that prior to the accident the claimant had visited any doctor in connection with her pregnancy. She however, stated that she was pregnant and the doctor stated that she had suffered miscarriage. Learned trial Court held that the claimant was entitled to Rs. 25,000/- for the miscarriage. He has also held that the pregnancy was of three and a half months. It is in these circumstances that the compensation has to be assessed.

In Puttamma and Others Vs. K.L. Narayana Reddy and Another, , the Apex Court has held that in case of a child less than 5 years, the compensation should in no case be less than Rs. 1,00,000/-. The accident, in question, took place in the year 2002 and compensation shall have to be assessed by taking the money value as in the year 2002. The age of the foetus was only three and a half months and cannot be equated to be foetus aged 28 weeks or 36 months.

Keeping all these facts and circumstances, I feel the petitioner would be entitled to sum of Rs. 50,000/- for loss of foetus. In addition thereto I find that the compensation even in the other heads is on the lower side and the claimant shall entitle to total sum of Rs. 25,000/- for medical treatment, pain and suffering etc. Therefore, the compensation is enhanced from Rs. 34,000/- to Rs. 75,000/-, i.e. by Rs. 41,000/-. On this amount, the claimant shall also be entitled to interest @ 9% per annum from the date of filing of the claim petition till payment/deposit of the amount. The opposite party has not challenged the award and, therefore, it is directed to deposit the entire awarded amount of compensation along with interest in the Registry of this Court within four months from today after deducting/adjusting the amount, if any, already paid/deposited by them along with proof of such earlier deposit.

The appeal is disposed of in the aforesaid terms. No order as to costs.

Send down the lower court records forthwith.