An unborn child cannot be considered a separate person for the purpose of awarding interim compensation under Section 92-A of the Motor Vehicles Act, 1939, unless it is born alive.

1. - This appeal by United India Insurance Company is directed against the interim award passed by the Motor Accidents Claims Tribunal (District Judge) Bharatpur, dated 26th May, 1987.

2. Smt. Premvati died in an accident by Jonga Jeep No. RSA 5983 on 3rd November, 1986. Shri Sampat Singh, husband of Premvati filed a claim petition under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) against Smt. Shringar Devi, owner, Shri Chano driver and United Insurance Company insurer of jeep No. RSA 5983. Smt. Premvati at the time of accident was pregnant having a seven months child in her womb. Shri Sampat Singh also filed a separate petition under section 92-A of the Act. The learned Tribunal passed an interim award for an amount of Rs. 30,000 on account of death of Smt. Premvati as well as the death of unborn child of seven months. The appellant Insurance Company has challenged the above order of the Tribunal to the concept of awarding Rs. 15,000 for the death of unborn child of Smt. Premvati.

3. It was contended by learned Counsel for the appellant that the unborn child cannot be considered as "person" for the purpose of awarding compensation under section 92-A of the Act. It was submitted that the compensation is awarded on account of dependency and loss suffered by the claimant due to the death of a person in that accident. In the instant case no question of any dependency can arise on account of the death of the unborn child.

4. On the other hand learned Counsel for the respondents contended that a liberal and wider meaning should be given to the word "person" and the claimant is entitled to compensation for the death of unborn child also. It was also contended that the unborn child was seven months old and as such had sufficient development for separate existence from her mother and according to the medical science a child of seven months could have been born alive. I have given my careful consideration to the arguments advanced by learned Counsel for both the parties and have gone through the scheme of the Act. I shall also deal with the cases cited at the bar during the course of arguments. Section 92-A of the Act was inserted by Act 47 of 1982 with effect from 1st October, 1982. The compensation of a fixed sum of Rs. 15,000 is allowed under this provision in respect of the death of any person and the claimant is not required to plead and establish that the death was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. Thus, the liability to pay compensation under the above provisions based on the principles of no fault. A compensation of fixed sum of Rs. 7,500 is provided under the above provision in respect of permanent disablement of any person. The claims for compensation in respect of the accidents involving the death of, or bodily injury to persons arising out of the use of Motor Vehicles of damages, to any property of a third party so arising, or both are filed under section 110-A of the Act. Thus, there should be the death of a person in order to claim compensation under the above provisions of the Act. Apart from the death of a person, the claim for compensation is determined for the benefits which the claimant would have received from the person who died in the accident. The compensation is also determined for the loss of love and affection, loss of consortium, mental agony, pain etc. in given set of circumstances. In the present case, there is no dispute with regard to the interim compensation awarded under section 92-A of the Act for the death of Smt. Premvati. It is also not argued by the learned Counsel for the appellant as to what compensation would be ultimately determined at the time of final award on account of the death of Smt. Premvati carrying a pregnancy of 7 months of child. The only controversy to be determined at this stage is as to whether an unborn child of seven months can be considered