B.B. Vagyani, President—This appeal filed by the appellant/org. complainant is directed against the order dated 10-10-2005 passed by the District Consumer Forum, Yavatmal by which the Forum below rejected the claim of the complainant in respect of unborn child.

2. In brief the facts giving rise to this appeal are as under:

3. Mr. Mohanlal Kotecha who is no more alive had taken comprehensive Insurance Policy from M/s. United India Insurance Company. The insurance cover was taken for four unnamed passengers. The sum assured for 3 unnamed passengers was Rs. 1,00,000/- each and Rs. 2,00,000/- for owner driver. The insurance policy was valid for the period 23-4-2003 to 22-4-2004. Mr. Mohanlal Kotecha had a valid driving licence. Similarly his son Mr. Atul Kotecha had also a valid driving licence. On the day of accident, Mr. Mohanlal Kotecha, his Son Atul Kotecha and his daughter-in-law Mrs. Switi Kotecha were travelling by Maruti Car. On the night between 5-2-2004 and 6-2-2004 accident occurred on Yavatmal Nagpur road. In the said accident all the three occupants of the vehicle died on the spot. Mrs. Switi Kotecha was pregnant at the time of accident. Accident was reported to the nearest police station. On the basis of First Information Report, Crime No. 9/04 was registered under Sections 279, 337, 304(A) of Indian Penal Code. Smt. Kanta widow of Mohanlal Kotecha, mother of Atul Kotecha and the Mother-in-law of Switi Kotecha submitted claim to the Insurance Company. Insurance Company repudiated the claim in respect of Atul Kotecha on the ground that he was not paid driver of the vehicle. Similarly, Insurance Company repudiated the claim for unborn child on the ground that unborn child cannot be treated as passenger. However Insurance Company allowed the claim for Mohanlal Kotecha.

4. Feeling aggrieved by the repudiation Letter, Smt. Kanta Kotecha filed consumer complaint No. 117/2005.

5. The said complaint was resisted by the Insurance Company. The Forum below by impugned order allowed the complaint and directed the Insurance Company to pay Rs. 1,00,000/- to the complainant for death of Atul Kotecha. Forum below awarded interest @ 6% p.a. Forum below awarded compensation of Rs. 5,000/- to the complainant for mental pain and agony and cost of Rs. 1000/-. Forum below however rejected the claim in respect of unborn child. Therefore complainant has filed this appeal.

6. We heard Ld. Advocate Mr. J.V. Wadhwani for the appellant and Mr. A.S. Vidyarthi, Advocate for the respondent/United India Insurance Company.

7. Very interesting law point that has arisen in this appeal is as to whether a child in the mother’s womb can be regarded as unnamed passenger of the vehicle. Ld. Advocate Mr. Wadhwani heavily placed reliance on the decision of the Supreme Court in the case of S. Said Ud Din v. Court of Welfare Commissioner Bhopal Gas Victims Tribunal.1 In the said case, Deputy Commissioner awarded compensation of Rs. l,50,000/- to the father of the child on the ground that wife of the claimant had been a victim of gas tragedy and she conceived soon thereafter and adverse effects of poisonous gas were noticed within 6 days after child was born. However Welfare Commissioner, Bhopal Gas Victim Tribunal in suo motu exercise of revisional power set aside the order passed by the Deputy Commissioner. Therefore matter was carried to the Supreme Court and Supreme Court quashed and set aside the order of Welfare Commissioner, Bhopal Gas victim Tribunal and restored the order of Deputy Commissioner. Ld. Advocate Mr. Vidyarthi for the Insurance Company forcefully argued that the child in the womb cannot be regarded as a person.

8. We gave anxious consideration to the rival submissions advanced at the bar. Reference with profit can be made to the American decision Roe v. Wade. A pregnant woman Roe brought legal action challenging the Constitutionality of Texas Criminal Abortion Laws, which prescribe attempting an abortion except on the medical advice