IMPORTANT POINT
It may be true that Section 168 of Motor Vehicles Act,1988 confers a wide discretion on the Tribunal to determine the amount of compensation but this discretion is also coupled with a duty to see that this exercise is carried out rationally and judiciously by accepted legal standards and not whimsically and arbitrarily, a concept unknown to public law.

JUDGMENT

D.K. Jain, J. —

1. Leave granted.

2. Challenge in this appeal, by special leave, is to the legality and validity of the judgment and order dated 17th January, 2008, delivered by the High Court of Karnataka at Bangalore, whereby the High Court has allowed the appeal preferred by respondent No.1 herein, enhancing the compensation awarded to her by the Motor Accident Claims Tribunal (for short “the Tribunal”) constituted under the Motor Vehicles Act, 1988 (for short “the Act”) to `1,80,000/- along with interest @ 6% per annum.

3. To appreciate the controversy, the factual matrix in a nutshell is as under :

On 28th June 1995, the car in which Mrs. Kusuma, respondent No.1 in this appeal (hereinafter referred to as “the claimant”), aged about 36 years, was travelling from Sullia to Puttur collided with a Bus owned by Karnataka State Road Transport Corporation, respondent No.2 herein. Due to the impact of the accident, the claimant and others sustained injuries. The claimant, who was 30 weeks pregnant, suffered a fatal blow on the stomach. She was admitted in the hospital, where an X-ray and scanning of the foetus showed that the baby had died inside the uterus. On an induced delivery, the following day she delivered a still born baby. The claimant filed a claim petition under Section 166 of the Act before the Tribunal, Mangalore, making a claim of `2,00,000/- with cost and interest at 12%, towards the expenses incurred on medical treatment, mental shock, pain and loss of child.

4. The Tribunal vide award dated 5th October 2004, inter alia, held that loss of foetus on account of injury sustained by the claimant in the accident was akin to the death of a child of a tender age. Relying on a decision of the Karnataka High Court, wherein the Court had awarded a compensation of ‘25,000/- towards the loss of affection and ‘25,000/- towards the loss of estate on the death of a child of less than 1 year of age in an accident, the Tribunal allowed the claim in part and awarded a compensation of an amount of ‘50,000/- towards the loss of unborn child and a further sum of ‘10,000/- towards pain and sufferings to the claimant, along with an interest @ 6% per annum from 18th November 1995 i.e. the date of institution of the claim petition till the date of deposit/payment. The Insurance Company, the appellant in this appeal, was directed to pay the said compensation to the claimant, in order to indemnify the owner of the car. Claim petition against the owner of the Bus was rejected.

5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant filed an appeal before the High Court, seeking enhancement of the aforesaid compensation. Pertinently, the Insurance Company did not question the award.

6. Applying the principle indicated by this Court in New India Assurance Company Ltd. Vs. Satender & Ors.1 (2006) 13 SCC 60, in relation to assessment of quantum of compensation on the death of a child in an accident, the High Court, by a short judgment allowed the appeal in part and enhanced the compensation to a consolidated amount of ‘1,80,000/- with interest @ 6% per annum from the date of the petition till the date of payment.

7. Being aggrieved, the Insurance Company is before us in this appeal.

8. At the time of issuing notice to the respondents, at the first blush, it was felt that the appeal involved a very important question of law, namely, whether an unborn child (foetus) while still in mother’s womb can be considered to be a child for the purpose of claiming compensation under Section 166 of the Act and, therefore, Mr. Uday U. Lalit, Senior Advocate, was requested to assist the Court as Amicus Curiae. Accordingly, we heard Mr. Gaurav Aggarwal, learned counsel appearing for the appellant and the learned Amicus Curiae on the said issue. However, having closely examined the fact-situation as emerging from the record, we are convinced that the appellant cannot be permitted to raise the aforesaid issue. In the presen