M.C. Sharma, J.@mdashThis appeal has been filed against the Award dated 8.6.2009 passed by Judge, Motor Accident Claims Tribunal Tonk in MACT Case No. 164/2007 whereby he dismissed the claim petition filed by the claimant-appellants. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary. Brief facts giving rise to this appeal are that the claimants filed a claim petition u/s 166 and 140 of the Motor Vehicles Act, 1988 before the Tribunal against the non-claimants. In the claim petition it was pleaded that 30-10-2006 claimant Smt. Ram Kanya was standing near shop of Babu Khangar then a tractor No. RJ 26 R 3778 came with high speed and hit Ram Kanya in which she sustained various injuries on 30.10.2006. At the time of accident she was pregnant and a dead child was born on 3.11.2006 due to injuries. It was pleaded that accident took place due to rash and negligence of non-claimant No. 1.
2. The non-claimants 1 and 2 filed reply to the claim petition wherein it was pleaded that no accident took place with their tractor and police had involved the tractor after three days. It was also pleaded that the child was not died due to injuries. The non-claimant No. 3 filed reply to the claim petition wherein it was pleaded that vehicle was falsely involved in the accident. It was also pleaded that non-claimant No. 1 was not having valid and effective licence at the time of accident. It was also pleaded that there is no provision in regard to death of unborn child.
3. On the basis of the pleadings of the parties the Tribunal framed issues including relief. In support of claim petition statements of three witnesses were recorded. Documentary evidence Ex. 1 to Ex. 17 were also produced. On behalf of the non-claimants statements of two witnesses were recorded. After hearing the parties the Tribunal vide its judgment and award dated 8.6.2009 had decided issue No. 1 in favour of the claimants and held that Ram Kanya sustained injuries in the accident took place due to rashness with the rash and negligence of non-claimanant No. 1 i.e. driver of Tractor No. RJ 26 R 3778. However the claim of the claimants was dismissed on the ground that unborn child is not a property or not a living person in view of judgment of
4. Mr. Praveen Jain, learned counsel appearing for the claimants has argued that the finding of the Tribunal in respect of issue No. 1 in regard to death of unborn child due to injuries sustained in the road accident is absolutely contrary to law and facts. The Tribunal had wrongly recorded a finding of fact that no postmortem report of unborn female child was produced. The learned counsel has argued that the postmortem report was produced and was duly marked as Ex. 4. From the postmortem report it is clearly revealed that during the treatment of Ramkanya a female dead child was born on 3.11.2006. The accident took place on 30.10.2006 and Ramkanya remained hospitalised for about 4 days from the accident. The injury report of Ramkanya was also produced on record by the claimants Ex. 10. In the injury report Ramkanya sustained three injuries. The other medical evidence is Ex. 1 to Ex. 13 produced by the claimants. The learned counsel has argued that in these circumstances it is clearly proved that in the accident female child was died due to injuries sustained in the accident.
5. The learned counsel for the appellant has further argued that the findings of the Tribunal in respect of issue No. 4 regarding liability of the insurance company is absolutely incorrect. The non-claimant No. 3 did not produce any oral or documentary evidence in support of their defence. Therefore violation in regard to driving license of non-claimant No. 1 is not proved. The learned counsel has stated that even otherwise this is a third party case and as per Section 149 of the Motor Vehicles Act it is a primary duty of the insurance company to satisfy the impugned award and if there is willful violation on the part of insured then amount may be recovered from the owner of the vehicle.
6. The learned counsel for the appellant has further argued that the finding of the Tribunal in respect of issue No. 4 regarding death of unborn child and compensation is absolutely incorrect. The judgment relied by the Tribunal is not relating to motor accident. For the purpose of property and other purposes an unborn child cannot be treated as a property or living person. The facts of the present case and judgment relied by the Tribunal are absolutely distinguishable. In motor accident claim cases the parents are entitled to the amount of compensation in regard to miscarriage of the child.
7. The learned counsel has further argued that the Tribunal did not decide the quantum of compensation while deciding the issue No. 3. It is the duty of the Tribunal to decide the quantum of compensation also. It was argued that the claimants prayed before the Tribunal to ward the amount of compensation if ultimately the Tribunal came to a conclusion that the claimants are entitled to amount of compensation in regard to miscarriage of female child.
8. In support of his contention, Mr. Praveen Jain, learned counsel for the claimant-appellants placed reliance on
9. Mr. Sunil Jain, learned counsel appearing of the non-claimants 1 and 2 (respondents 1 and 2 herein) has argued that the award passed by the Tribunal is correct in so far as it relates to rejection of claim of the claimants. It is further argued that the finding of the Tribunal in respect of fastening the liability on the owner of the tractor and exonerating the insurance company from paying any compensation in relation to the accident is wrong. The insurance company has not produced any evidence to absolve it from the liability to pay the compensation. In support of its contention reliance has been placed on
10. Mr. Pritam Bijlani, learned counsel for the insurance company has argued that the insurance company has been rightly exonerated from its liability to pay the compensation as the tractor driver was not having valid and effective license. The learned counsel has placed reliance on
11. I have heard the learned counsel for the parties and gone through the record of the case.
12. The learned counsel for the appellants dis-satisfied with the findings of the MACT on issues 1, 3 and 4 filed the above appeal.
13. First of all, I may consider the cases cited by the learned counsel for the insurance company and the learned counsel for the vehicle owner and driver.
14. In Kamala Mangala Vayani v. M/s. United India Insurance Co. Ltd. (supra), the vehicle involved in the accident was insured with the first respondent under a comprehensive commercial vehicle insurance policy on the date of the accident (27-7-1990) is not disputed. The insurance cover under the said policy was available from 31-3-1990 to 30-3-1991. The schedule to the insurance policy shows that the owner of the vehicle had paid in addition to the basic premium, additional premium to cover liability in respect of ten passengers as also the driver. The insurer, however, contends that as it had denied that the vehicle had a valid permit, the claimants ought to have proved that the vehicle had a valid permit on the date of the accident; and as they failed to do so, it was not liable. The owner-cum-driver had remained ex-parte. Once it was established that the vehicle was comprehensively insured with the insurer to cover the passenger risk, the burden to prove that it was not liable in spite of such a policy, shifted to the insurer. The claimants are not expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit breach of any of the terms of the policy. It is for the insurer who denies its liability under the policy, to establish that in spite of the comprehensive insurance policy issued by it, it is not liable on account of the requirements of the policy not being fulfilled. The insurer produced a certified copy of the proceedings of the Registering Authority and Assistant Regional Transport Authority, Bangalore dated 7-7-1990 to show that the application for registration of the vehicle filed by the third respondent was rejected with an observation that it was open to the applicant to apply for registration in the appropriate class. But that only proved that on 7-7-1990, the vehicle did not have a permit. But that does not prove that the vehicle did not have a permit on 27-7-1990, when the accident occurred. The Apex Court held that:
...(4). The High Court committed an error in expecting the claimants to prove that the vehicle possessed a valid permit. We are of the view that there was no justification for the High Court to interfere with the judgment and awards of the Tribunal in the absence of relevant evidence.
(5) We, therefore, allow the appeals, set aside the order of the High Court and restore the judgment and awards of the Tribunal. The appellant claimants will be entitled to interest on the compensation amount from the date of application for compensation to the date of payment at the rate of 5% per annum.
(6) We make it clear that this judgment will not come in the way of the insurer proceeding against the owner and recovering the amount paid by it to the claimants, in the event of the insurer being able to establish, in any suit it may choose to file against the owner, that there was violation or breach of the conditions of the insurance policy or that the vehicle was not covered by a permit on the date of the accident.
(Emphasis added)
15. In
(9) In the subsequent decision in
(10) In the case of
(11) In the light of the various principles, the factual finding of the Tribunal, namely, the second respondent driver was not holding a valid licence on the date of the accident and also of the fact that the appellants are none else than widow and minor children of the deceased, we pass the following order:
(i) In view of the order of this Court dated 8-12-2006 granting stay of further proceedings of the recovery initiated by the Insurance Company for refund of the amount of Rs. 50,000 with interest claimed to have been paid to the appellants, we make it clear that the appellants need not repay the said amount in spite of our conclusion which is in favour of the Insurance Company. However, we permit the third respondent Insurance Company to recover the said amount from the owner of the vehicle in the same manner as was directed in Nanjappan (supra).
(ii) The appellants are permitted to proceed and recover the rest of the amount from the owner and driver of the vehicle, Respondents 1 and 2 herein in accordance with law.
16. In Bhuwan Singh v. Oriental Insurance Co. Ltd. (supra), the Apex Court held as under:
(11) Concededly the appellant had been holding a learner''s licence. It expired on 22-12-2000. The accident took place on 5-1-2001. He applied for grant of a regular licence only on 22-1-2001, whereafter only the licence was granted to him.
Rule 14 of the Central Motor Vehicles Rules, 1989 provides for the manner in which an application for driving licence is to be filed. Such an application is to be filed in Form 4 and is required to be inter alia accompanied by an effective learner''s licence to drive the vehicle of the type to which the application relates.
(12) Different provisions in the Motor Vehicles Act as also the Rules framed thereunder exist for filing applications for grant of learner''s licence and a licence. Whereas an application for grant of a learner''s licence is filed in Form 3 prescribed by the Rules; an application for grant of licence is filed in Form 4.
(13) The word "effective" licence is defined in Section 3 of the Act. Subsection (2) of Section 149, however, uses the word duly licensed. In
(14) The Act provides for grant of a learner''s licence. It indisputably is a licence within the meaning of the provisions thereof. A person holding a learner''s licence is also entitled to drive a vehicle but it is granted for a specific period. The terms and conditions for grant of a learner''s licence are different from those of a regular licence. Holding of a learner''s licence is imperative for filing an application for grant of licence as provided for in Rule 4 of the Rules. The converse however is not true. Only because the appellant held a learner''s licence which had expired and was not valid on the date of accident, he cannot be said to be duly licensed. It is true that despite the expiry of a regular licence, it may be renewed, but no provision has been brought to our notice providing for automatic renewal of learner''s licence.
In
(18) It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period of 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the, date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured.
(15) The appellant herein raised a specific plea that he was not driving the vehicle and one Diwan Singh was driving the same. The said fact was within his special knowledge. The burden of proof, therefore, to prove the same was on him. He did not examine Diwan Singh.
(16) The claimants in their claim petition described the appellant as the owner as well as the driver of the vehicle. The Insurance Company, as noticed hereinbefore, has also categorically raised the plea that the appellant was not holding a valid and effective licence. The burden of proof ordinarily would be on the Insurance Company to establish that there has been a breach of conditions of the contract of insurance. In this case, however, the burden in terms of Section 106 of the Evidence Act was on the appellant. He failed to discharge the said burden. As indicated hereinbefore, not only a criminal case was pending against him, he was also charge-sheeted.
(17) A finding of fact has been arrived at that the appellant had been driving the vehicle. He in view of the pleadings raised by the Insurance Company cannot be said to have been prejudiced by non-framing of the specific issue as to whether he was driving the vehicle or not. He was aware of the pleadings of the parties. He adduced evidence in that behalf. The Tribunal as also the High Court arrived at a finding of fact that it was the appellant who had been driving the vehicle.
(18) If that be so, the question raised before us must be determined having regard to the proved facts, namely, as on the date of accident he was not holding any valid and effective licence.
(19) In terms of Section 149 of the Act, the Insurance Company would be liable to pay the awarded amount to the claimants provided the accident is covered by the terms of the policy, although the burden in respect thereof would be on the Insurance Company.
(20) It is now well settled in view of Section 58 of the India Evidence Act that facts admitted need not to be proved.
(21) The question as to whether the appellant was holding a valid licence or not was within his knowledge. The driver was to show that he held licence in respect of the vehicle for which he had filed an application. Filing of an application and grant thereof would therefore are prerequisite for holding a valid and effective licence.
(22) As on 5-1-2001 the appellant was not duly licensed as his learner''s licence expired on 22-12-2000. He filed an application for grant of licence much later. The Insurance Company, therefore, in our opinion was not bound to reimburse him in terms of the contract of insurance.
(23) There is, thus, no merit in the case. The appeal is dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.
(Emphasis added)
17. In United India Insurance Co. Ltd. v. Rakesh Kumar Arora (supra), the Apex Court held as under :
(19) This aspect of the matter has been considered by this Court in
(10) In the instant case, the State Commission has categorically found that the evidence on record clearly established that the licensing authority had not issued any licence, as was claimed by the driver and the respondent. The evidence of Shri A.V.V. Rajan, Junior Assistant of the Office of the Jt. Commissioner and Secretary, RTA, Hyderabad who produced the official records clearly established that no driving licence was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross-examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard.
(20) Yet again, this Court in
(10) The provisions relating to the necessity of having a licence to drive a vehicle are contained in Sections 3, 4 and 10 of the Act. As various aspects of the said provisions vis-�-vis the liability of the insurance company to reimburse the owner in respect of a claim of a third party as provided in Section 149 thereof have been dealt with in several decisions, it is not necessary for us to reiterate the same once over again. Suffice it to notice some of the precedents operating in the field.
In
(81) Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder thereof to drive the vehicle falling within that class or description.
(82) Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section.
It was furthermore observed:
(83) We have construed and determined the scope of sub-clause (ii) of sub-section (2)(a) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.
(84) On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court.
The decision in
(21) In view of the authoritative pronouncement of this court as noticed hereinbefore, the impugned judgment cannot be sustained. It is set aside accordingly and that of the learned Tribunal is restored. However, keeping in view the admitted fact that as no stay had been granted by the High Court the appellant has deposited the entire amount which has since been withdrawn by the respondent claimant, we direct that the appellant shall be entitled to recover the amount in question from the owner of the vehicle, namely, Respondent 1.
(22) The appeal is allowed accordingly.
(23) No costs.
(Emphasis added)
18. In Sardari and others v. Sushil Kumar and others (supra), the Apex Court held as under :
(5)... This Court, time and again made a distinction between a case where a third party is involved vis-�-vis where the owner of the vehicle was involved in the accident. The matter relating to grant of licence is dealt with in the Act. There are provisions in terms whereof despite expiry of the period of licence, the same can be renewed. There are also provisions providing for grant of a fresh licence. In certain situations, the authorities are also entitled to refuse to renew the licence.
(6) Although, in terms of a contract of insurance, which is in the realm of private law domain having regard to the object for which Sections 147 and 149 of the Act had been enacted, the social justice doctrine as envisaged in the Preamble of the Constitution of India has been given due importance. The Act, however, itself provides for the cases where the insurance company can avoid its liability. Avoidance of such liability would largely depend upon violation of the conditions of contract of insurance. Where the breach of conditions of contract is ex facie apparent from the records, the court will not fasten the liability on the insurance company. In certain situations, however, the court while fastening the liability on the owner of the vehicle may direct the insurance company to pay to the claimants the awarded amount with liberty to it to recover the same from the owner.
(7) The concurrent finding of fact herein is that Sushil Kumar never held a licence. The owner of the vehicle has a statutory obligation to see that the driver of the vehicle whom he authorised to drive the same holds a valid licence. Here again, a visible distinction may be noticed viz. where the licence is fake and a case where the licence has expired, although initially when the driver was appointed, he had a valid licence.
The question came up for consideration before this Court in
(12) Under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of the third party who might have suffered on account of vehicular accident caused by such unlicensed driver.
A three-Judge Bench of this Court in
(77) We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical fault or vis major. (See
In
(9) It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lai who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence.
XXX XXX XXX
(12) This Court in
(8) Yet again in
(33) In the present case, all the facts were before the District Forum. It considered the assertion of the complainant and defence of the Insurance Company in the light of the relevant documentary evidence and held that it was established that the vehicle which met with an accident was a ''transport vehicle''. Ram Narain was having a licence to drive light motor vehicle only and there was no endorsement as required by Section 3 of the Act read with Rule 16 of the Rules and Form 6. In view of necessary documents on record, the Insurance Company was right in submitting that
However,
In
(10) In the case of
In
(10) In the instant case, the State Commission has categorically found that the evidence on record clearly established that the licensing authority had not issued any licence, as was claimed by the driver and the respondent. The evidence of Shri A.V.V. Rajan, Junior Assistant of the Office of the Jt. Commissioner and Secretary, RTA, Hyderabad who produced the official records clearly established that no driving licence was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross-examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard.
In
(9) From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the Rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place on 28-4-1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident."
(9) For the reasons aforementioned, there is no merit in this appeal which is accordingly dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs.
19. On issue No. 1, the MACT gave following findings :
(Omitted as in vernacular)
20. On issue No. 3, the M.A.C.T. gave the following findings:
(Omitted as in vernacular)
21. On issue No. 4, the M.A.C.T. gave the following findings:
(Omitted as in vernacular)
22. On considering the judgments relied by the parties, the findings to the extent that the insurance company is not liable for the compensation and only the driver and owner are liable to make the payment of compensation is correct view and so far as other view in relation to rejecting the claim of the claimants for allowing compensation in case of death of female child died during treatment is wrong and the claim in this respect is maintainable.
23. Now I may consider the judgments of various High Court granting compensation in relation to loss of foetus by a woman in the accident.
24. In the Divisional Controller,
(5)...As per the doctor''s evidence, if the foetus has completed 37 weeks, for all purposes even the still-born child has to be considered as child. In the instant case, in the accident the child had also received injuries which compelled the mother to undergo a surgery. The baby died due to the injuries received by him in the accident while in the womb. Though there is no direct impact between the vehicle and the baby, since the baby had received injuries while in the womb; this Court has to hold that there is a nexus between the accident and the cause of death of the child. In the circumstances, this Court is of the opinion that the claim petition filed by the mother on account of the death of her two days baby who has born subsequent to the accident as maintainable.
25. In
(3) In the case of abortion and death of foetus in the womb should be considered on par with the case of a death of a minor.
26. In
For the purpose of considering the case for awarding compensation even the stillborn baby has to be considered as child. Stillborn baby died in the womb due to the injuries sustained by the appellant in the accident. In the opinion of this Court there is a nexus between the accident and the cause of death of the child. Appellant is entitled for compensation on account of death of or stillborn male baby. It was first delivery of the appellant. Since, no separate amount has been awarded on that account, therefore, this appeal stands allowed. Appellant shall be further entitled for a sum of Rs. 1,00,000 on account of death of stillborn male child. Total sum for which appellant shall be entitled comes to Rs. 2,50,000. The enhanced amount off Rs. 1,00,000 shall carry interest at the rate of 6 per cent per annum from the date of application.
27. In
(7) Learned Counsel for the first respondent/claimant would submit that the Tribunal has lost sight of awarding any compensation for the death of child in the mother''s womb and a considerable compensation has to be awarded in this regard. He placed reliance upon a decision of the Karnataka High Court in Divisional Controller,
(8) The learned Counsel for the first respondent also garnered support from and decision of the Madhya Pradesh High Court in
(9) This Court is in respectful agreement with the concluding in the above said two decisions of the High Courts and holding that the stillborn baby is also to be considered as a child. This Court also records finding that since the child died in the womb due to the accident, the mental agony and physical strain and pain experienced by the mother should have been more and that has to be compensated in an appropriate manner. In the considered opinion of this Court a sum of Rs. 2,00,000/- may be fixed under the head loss of child in the mother''s womb.
28. In
(6)...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. u/s 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 inDivisional Controller,
(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 u/s 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.
29. In
In the first place, 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 the pregnant woman is actually loss of a child in the offing for the husband of the woman. Secondly, there is no scope for considering compensation for the bodily injury of the victim who died in the road accident. Therefore, it would be illogical to grant compensation treating death of the foetus along with the woman dying in the accident treating death of the foetus along with the Woman dying in the accident treating it as another bodily injury. In our view, compensation to be granted for the death of a pregnant woman in motor accident is for loss of two lives. Therefore, appellant in this case is certainly entitled to claim compensation separately for the loss of his child in the womb of his wife who perished in the accident.
30. Black''s Law Dictionary refers to "rights of unborn child", thus: "The rights of an unborn child are recognised in various different legal contexts; e.g. in criminal law, murder includes the unlawful killing of a foetus (Cal. Penal Code Section 187), and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth, an action will lie for his wrongful death. While certain States have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa. 267,167 A. 2d. 93; Smith v. Brennan, 31 N.J. 353, J 57 A. 2d. 497, other States require that the foetus be viable before a civil damage action can be brought on behalf of the unborn child."
31. The legal status of unborn persons is discussed in Salmond on Jurisprudence, 11th Edition, at pages 354 and 355, the relevant portion of which reads as follows:
Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership...
A child in its mother''s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetnr. In the words of Coke: "The law in many cases hath consideration of him in respect of the apparent expectation of his birth". Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of (I) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities.
The rights of the child in the womb, in the matter of succession, are well protected by laws of the land.
32. In Prakash and others v. Arun Kumar Saini (supra) considering the case of the Bombay High Court, in the case of
33. In Prakash and others v. Arun Kumar Saini (supra). Delhi High Court has considered that the rights of an unborn child are well recognized in various different legal contexts which are as under:-
(i) Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus:
Explanation;-- For the purposes of this section, ''minor'' includes a child in the womb.
(ii) Section 20 of the Hindu Succession Act, 1956 recognises the rights of a child in the womb. Section 20 reads thus:
Section 20. Right of child in womb: A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.
(iii) Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author while dealing with Section 20. The commentary reads thus:
It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are regarded by reference to the moment of conception and not of birth and the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. The child in embryo is treated as in esse for various purposes when it is for his benefit to be so treated. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognises that rule of beneficent indulgence and the child in utero although subsequently born is to be deemed to be born before the death of the intestate and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate.
(iv) In the Indian Succession Act, 1925, ''minor'' is defined u/s 2(e), which reads as follows:
Section (2)(e) "minor" means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and "minority" means the status of any such person;
Section 7 of the Indian Succession Act provides that the domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled and in the case of a posthumous child, in the country in which his father was domiciled at the time of the father''s death. Section 112 of the Indian Succession Act recognises the rights of a person coming into existence after the death of a testator.
(v) Sections 13 and 20 of the Transfer of Property Act deal with situations in which on a transfer of property, an interest therein is created for the benefit of a person not in existence. As per Section 20, where on a transfer of property an interest therein is created for an unborn person, he acquires on his birth, a vested interest.
(vi) Sections 312 to 316 of the Indian Penal Code provide for punishment for the offence of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc.
(vii) The question whether a posthumous child would succeed to the estate of his father or a testator was a vexed one for the courts.
34. In
(16). This Court is of the view that the rights of an unborn child are recognised in various different legal contexts; e.g. in criminal law causing death of foetus has been held to be an offence under Sections 312 to 316 of the Indian Penal Code, and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. This Court is in respectful agreement with the judgments of Andhra Pradesh High Court in the case of Oriental Insurance Co. Ltd. (supra) and Kerala High Court in the case of Manikuttan (supra), and holds that an unborn child aged five months onwards in mother''s womb till its birth is treated as equal to a child in existence. The unborn child to whom the live birth never comes is held to be a ''person'' who can be the subject of an action for damages for his death. The foetus is another life in woman and loss of foetus is actually a loss of child in the offing. The appellants are, therefore, entitled to compensation for the loss of foetus.
35. In Prakash and others vs. Arun Kumar Saini (supra), Delhi High Court further held as under:
(19) 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 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.
36. Thus, it is clear that for the loss of foetus, Delhi High Court awarded compensation in the amount of Rs. 2,50,000/ - on the basis of judgments of Madhya Pradesh High Court, Madras High Court and Karnataka High Court.
37. In the instant matter, the claimant Ramkanya received injuries in the accident and the trial court awarded Rs. 3,000/- to her for the injuries received by her. It is also an admitted fact that she delivered female child dead during the period she remained admitted in the Hospital. The Post mortem report Ex. 4 the members of the Board were of the opinion that cause of death was shock. The post mortem of the dead body of female child was conducted on 3.11.2006. The post mortem report also reveals that the child was born dead during treatment. The portion showing this entry reads as under :
Daurane ilaj mrit shishu ko janam diya.
In my view the claimant Ramkanya during treatment gave birth to a dead female child. The findings of the MACT are perverse as per the principles enunciated above. Thus as per the decisions of the Delhi High Court based on the decisions of the Andhra Pradesh High Court, Karnataka High Court and Madhya Pradesh High Court, the claimants are entitled for compensation for the death of dead female child. The MACT has not determined the compensation payable on account of death of female child of the claimants, hence at this stage without sending the matter back to the Tribunal, I award an amount of Rs. 1,50,000/- as compensation to the claimants. Out of this 50% amount shall be kept in FD for a period of five years and the 50% amount shall be payable to the claimants. The claimants are also entitled to 6% interest per annum from the date of filing of the claim petition. The respondents 1 and 2, who are driver and owner shall pay the amount within a period of three months. To this extent the award of the Tribunal in claim case No. 164/07 is modified. The appeal is disposed of accordingly. The parties are directed to bear their own costs.
