An unborn child in womb should be considered at par with a minor child and the compensation be awarded for the death of the unborn child.

1. This appeal involves a important question as to whether an unborn child in womb should be considered at par with a minor child.

2. The appellants have challenged the award of the learned Tribunal whereby compensation of Rs.6,11,000/- has been awarded to the appellants. The appellants seek enhancement of the award amount.

3. The accident dated 8th June, 2008 resulted in the death of Indu Devi. The deceased was survived by her husband and two children who filed the claim petition before the learned Tribunal.

4. The deceased was aged 25 years at the time of the accident. The deceased was a housewife. It was claimed that the deceased was also working as a housemaid and was earning Rs.5,500/- to Rs.6,000/- per month. However, in the absence of any documentary proof of occupation and income, the learned Tribunal took the deceased to be a housewife and the value of her services was taken as Rs.3,000/- per month and the multiplier of 16 was applied to compute the loss of dependency at Rs.5,76,000/-. Rs.10,000/- has been awarded for loss of consortium, Rs.20,000/- towards loss of love and affection and Rs.5,000/- towards funeral expenses. The total compensation awarded is Rs.6,11,000/-.

5. The learned counsel for the appellants submits that the deceased was pregnant with a foetus of about 24 to 28 weeks (about seven months) at the time of the accident. The learned counsel further submits that the appellants are entitled to compensation for the death of unborn child in the womb.

6. The learned Tribunal has held that though seven months pregnancy was recorded in the MLC but the post-mortem report – Ex.P-1 (colly.) recorded that the uterus of the deceased did not contain any foetus. The learned Tribunal further held that no doctor has been examined to prove the pregnancy of the deceased and, therefore, no compensation was awarded for the death of the foetus. The finding of the learned Tribunal in this regard is as under:-

“In the MLC of the deceased Indu Devi bearing no.99734, it has been mentioned that the deceased had a history of 7 months pregnancy but the postmortem report, which has been brought on record collectively as Ex.P-1 clearly states that the Uterus of the deceased did not contain any foetus or any placenta. If the deceased was operated upon the foetus, if any, was removed, then this fact has not been established on record by the petitioner. Even in the petition filed by the petitioner, it has nowhere been mentioned by the petitioner that the deceased Indu Devi was pregnant at the time of accident and carrying a 7 months old foetus and the affidavit of petitioner, which is Ex.PW2/A, carries only a bald testimony of the petitioner no.1 to this effect. No doctor has also been examined by the petitioner to prove this fact. However, the medical evidence in the form of the postmortem report, which has been placed on record, does not fortify the bald stand of the petitioner also. Any other treatment record, which would establish that the deceased was actually pregnant at the time of accident, the mentioning of pregnancy in the MLC is only a history of the patient i.e. the deceased, which was narrated by the person who was accompanying the deceased and in the instant case, it was most probably the petitioner Smt. Ratha. Since the medical evidence has not corroborated this fact, it is held that it was only the deceased Indu Devi, who sustained fatal injuries in the accident in question.”

7. The learned counsel submits that the accident occurred on 8th June, 2008 and the MLC records the “uterus size up to umbilical weight approximately 24 to 28 weeks.” It is submitted that the unborn child died in womb on 17th June, 2008 and was removed while the mother was alive. The mother expired on 14th August, 2008 and at that time, the foetus was not inside the womb of the deceased. However, no material was placed before the Claims Tribunal to prove that the foetus was removed before the death of the decease