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Andhra Pradesh High Court
Judges : V.ESWARAIAH
Oriental Insurance Company Limited, Gandhinagar Branch, Bangalore, Rep. by its Branch Manager - Appellant
Versus
Santhilal Patel - Respondent
Decided On : 03/14/2007
Case No : Civil Miscellaneous Appeal No.2864 of 2001
Motor Vehicles Act, 1988 –Section 140, 166, 163-A – Compensation of Compensation – Oriental Insurance Company filed this appeal questioning the order passed in M.V.O.P. by the Chairman, Accidents Claims Tribunal - cum - IV Additional District Judge awarding compensation of the head of no fault liability for the death of an unborn child in favour of the first respondent first is the claimant in filed under Section 140 of the Motor Vehicles Act, 1988 claiming compensation of on the ground that his wife and unborn child, who was about in the womb of his wife died in an accident that occurred due to rash and negligent driving of the driver of the car bearing belonging to the second respondent herein and insured with the appellant it is the case of the claimant that he is the father of the child aged about in the womb of his wife at the time of the accident it is his further case that at while his deceased wife along with her two minor sons were traveling in a Rickshaw on Tirupati – Renigunta road, the driver of the car drove the vehicle in a rash and negligent manner endangering the human life on the public road and hit the rickshaw from behind, then passed ahead touching the right side body of the van belonging to one Nagamurali and also hit a cyclist, who also received injuries and then stopped in front of Shiva Garage as a result of which the wife of the claimant, his two children all received severe grievous and multiple injuries were immediately shifted to SVRR GG Hospital Tirupati where it was declared that the wife of the claimant and his unborn male child in the womb, died and it was found that the baby was in the womb weight and was counting days for delivery –Held, 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 until implantation occurs it is called an embryo from one week to the end of the second month and later it is called foetus becomes an infant only when it is completely born 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 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 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 unborn child aged five months onwards in the mother womb till its birth can be treated as equal to a child in existence. 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 individuals body concealed on his person – Civil miscellaneous appeal is accordingly dismissed.
The Oriental Insurance Company filed this appeal questioning the order dated 17.02.1997 passed in M.V.O.P. No. 560 of 1995 by the Chairman, Accidents Claims Tribunal - cum - IV Additional District Judge, Chittoor at Tirupati awarding compensation of Rs. 50,000/- under the head of 'no fault liability' for the death of an unborn child in favour of the first respondent herein.
2. The first respondent herein is the claimant in M.V.O.P.No. 560 of 1995 filed under Section 140 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation of Rs. 50,000/- on the ground that his wife and unborn child, who was about 10 months old in the womb of his wife, died in an accident that occurred on 19.07.1995 due to rash and negligent driving of the driver of the car bearing No. KA 04 M 6279 belonging to the second respondent herein and insured with the appellant - insurance company herein.
3. It is the case of the claimant that he is the father of the child aged about 10 months in the womb of his wife at the time of the accident. It is his further case that on 19.07.1995 at about 4.20 PM while his deceased wife along with her two minor sons were traveling in a Rickshaw on Tirupati – Renigunta road, the driver of the car drove the vehicle in a rash and negligent manner endangering the human life on the public road and hit the rickshaw from behind, then passed ahead touching the right side body of the van belonging to one Nagamurali and also hit a cyclist, who also received injuries and then stopped in front of Shiva Garage, as a result of which the wife of the claimant, his two children all received severe grievous and multiple injuries. They were immediately shifted to SVRR GG Hospital Tirupati where it was declared that the wife of the claimant and his unborn male child in the womb, died and it was found that the baby was 10 months in the womb with 2.7 Kgs weight and was counting days for delivery. It is stated that had the accident not occurred the child in the womb and his wife would have been alive and thus, the claimant, being the father of the child, filed the petition claiming compensation under the head 'no fault liability'. A separate claim petition was filed for the death of his wife.
4. I am of the opinion that the claimant ought to have claimed the compensation under the head 'fault liability' only but he has chosen to claim the compensation under the head 'no fault liability' for fixed compensation amount of Rs. 50,000/-. However, the insurance company has taken no defence that there was no rash and negligent driving of the driver of the said car. A finding has been recorded, in the other petition filed by the claimant for the death of his wife, to the effect that the accident occurred due to rash and negligent driving of the driver of the said car. If that be so, the claimant is also entitled to compensation under fault liability as there was fault of the driver of the offending vehicle. The insurance company preferred this appeal on the ground that the tribunal erred in awarding compensation under no fault liability to the child in the womb and that the child in the womb cannot be treated as a person; therefore, the claimant is not entitled to any compensation.
5. Insofar as the liability to pay compensation is concerned, under Section 140 of the Act where death of a person is resulted from an accident arising out of the use of a motor vehicle, the owner as well as the insurer of the vehicle are jointly and severally liable to pay compensation in respect of the death of that person. Therefore, the only question that arises for consideration is as to whether the unborn child aged about 10 months can be called as a person.
6. Under Section 163-A of the Act the legal heirs of the victim are also entitled for compensation. As per the Second Schedule inserted by Act 54 of 1994, which came into effect from 14.11.1994, compensation has to be paid with reference to the schedule mentioned therein depending upon the a
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