Abhulasees P.P. and others v. Abdumanaf, Hanees Babu and The National Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON THE HONOURABLE MR. JUSTICE P.UBAID & THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 22ND DAY OF MARCH 2017/1ST CHAITHRA, 1939** **MACA.No. 2027 of 2011** **----------------------AGAINST THE AWARD IN OP(MV) NO. 941/2009 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 12-03-2010** **APPELLANTS/APPELLANTS:** **-----------------------** **1. ABHULASEES.P.P, AGED 28 YEARS, S/O. KUTTYHASSAN, PUDIYOTTUMPARAMBATH, PARAKKOTTUTHAZHAM, PERUMANNA P.O., KOZHIKODE TALUK,** **KOZHIKODE DISTRICT.** **2. BUSHARA, AGED 20 YEARS,** - **W/O. ABDULASEES P.P.,** - **-DO-** **3. UMAR MUKTHAR, AGED 1½ YEARS,** - **S/O. ABDULASEES P.P., -DO-, REPRESENTED BY FATHER AND GUARDIAN ABDULASEES P.P.** **BY ADV. SRI.V.KRISHNA MENON** **RESPONDENTS:** - **--------------** **1. ABDUMANAF, S/O.YAKOOB, IRANHITHODI HOUSE, KURUVA, MAKKARAPARAMBA – 676 507, MALAPPURAM DISTRICT. (R.C.OWNER OF CAR KL-53/9200).** **2. HANEESBABU, AGED 29 YEARS,** - **S/O. ALI, PARI HOUSE, EDAKKARA P.O., MALAPPURAM DISTRICT – 679 331.** **....2** MACA.No. 2027 of 2011 : 2 : **3. THE NATIONAL INSURANCE CO. LTD. MALAPPURAM P.O, MALAPPURAM – 676 505.** **R3 BY ADV. DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ab** ## **CR** **P.R.RAMACHANDRA MENON, P.UBAID & A.M.BABU, JJJ.** **---------------------------------------------M.A.C.A No.2027 of 2011 ----------------------------------------------** Dated this the 22[nd] day of March, 2017 ## **J U D G M E N T** ## **Ramachandra Menon, J.** Whether a 'still born child' in the womb of the mother can be treated as an individual, to be awarded compensation pursuant to the death occurred in a road traffic accident; is the question mooted in this case. By virtue of the law declared by a Division Bench of this Court in **Oriental Insurance Co.Ltd v. Rasheed (2004(3) KLT 552),** it was held that such a situation can result only in loss on injury and that compensation can be awarded, as if it were an 'injury case'; whereas another Division Bench in **Manikuttan v. Baby (2008(4) KLT 539)** has held that the foetus has to be reckoned as a living child and compensation has to be given accordingly. 2. Apparently, the conflicting views taken by the two Division Benches as above, made a subsequent co-ordinate 2 M.A.C.A No.2027 of 2011 Bench to doubt the correctness of the legal proposition, leading to the order dated 28.5.2015 referring the same to be considered by a Full Bench. The matter is listed accordingly. 3. Heard Sri.V.Krishna Menon, the learned counsel appearing for the appellants/claimants as well as Smt.Deepa George, learned counsel representing the 3[rd] respondent Insurance Company, at length. 4. The first appellant/husband of the second appellant, was riding a motor cycle bearing No.KL-57-1939 from Ramanattukara to Kuttikattoor with the second appellant/wife on the pillion on 10.10.2006. While so, on reaching near the place of occurrence, a car bearing No.KL 53F-9200 owned, driven and insured by the respondents 1 to 3 respectively dashed against the motor cycle from behind, causing serious injuries. The second appellant/wife externally sustained only some minor injuries, but impact of the hit was so hard that she lost the child in her womb at the advanced stage of pregnancy, having completed ' **eight months** '. The loss of foetus was due to 'abruptio placenta' and the position is revealed from the contents of Ext.A2 postmortem certificate issued by the doctor concerned. This led to the claim petition filed by the appellants/claimants M.A.C.A No.2027 of 2011 3 before the Tribunal, seeking for compensation including for the loss of baby, which was estimated and limited to 2 lakhs. ₹ 5. The owner and driver of the car did not contest the matter seriously, though they had filed a written statement admitting the ownership of the car, but disputing negligence. Written statement was filed from the part of the Insurance Company as well, disputing the negligence and injuries; besides challenging the quantum of compensation claimed, at the same time admitting the policy. No oral evidence was adduced on either side and the only evidence consists of the documents produced from the part of the claimants as Ext.A1 and A2. Based on the available materials, the Tribunal arrived at a finding that the accident was solely because of the negligence on the part of the driver of the car and proceeded to fix the compensation accordingly. 6. The factual sequences have noted by the Tribunal, particularly, with regard to the 'loss of baby', who was nearly eight months and the adverse consequences resulted because of the accident, as revealed from the records. Considering the facts and circumstances, the Tribunal awarded a sum of 300/-₹ towards transport to hospital, a sum 1,000/- towards funeral₹ 4 M.A.C.A No.2027 of 2011 expenses and a further sum of 50,000/- towards compensation₹ for the loss of baby; thus granting a total compensation of ₹51,300/-. This was directed to be satisfied with interest at the rate of 7% per annum from the date of petition, till satisfaction, in turn mulcting the liability upon the shoulders of the Insurance Company. 7. Admittedly, the Insurance Company has not challenged the finding or reasoning rendered by the Tribunal or the quantum of compensation awarded. The claimants have approached this Court by fling this appeal seeking for enhancement of the compensation, stating that the quantum awarded by the Tribunal for the 'loss of baby' is abysmally on the lower side. 8. When the matter came up for consideration before the Division Bench, reliance was sought to be placed by the Insurance Company on the decision rendered by this Court in **Oriental Insurance Company's** case (cited supra) wherein it was held that it could only be treated as an 'injury case' (as the child had not taken birth, no compensation could be awarded for the loss of life). A diametrically opposite view was taken by another Division Bench of this Court in **Manikuttan v. Baby** 5 M.A.C.A No.2027 of 2011 **[2008(4) KLT 539],** placing reliance on an earlier decision rendered by another Bench in M.F.A No.326/1993 (as per judgment dated 3.10.1994) to the effect that compensation had to be awarded, as if in the case of a child knocked down to death. The Division Bench of this Court, who passed the order of reference dated 28.5.2015 held that, the legal question declared by the above two different Benches were diametrically opposite. It was also observed that the verdict passed by the Supreme Court in **National Insurance Company Limited v. Kusuma and another [(2011) 13 SC 306]** was not of much help to resolve the issue. Though such a preposition was mooted by the Insurance Company, it was refused to be entertained, holding that, the Award passed by the Tribunal granting compensation, (treating the 'still born baby' as a child) was never sought to be challenged by the Insurance Company and that the challenge was raised only by the claimants, and as such, the Insurance Company was estopped from raising such a contention for the first time before the Supreme Court. In other words, the issue as now involved in the present case was not heard or decided by the Apex Court in **National Insurance Company's** case (cited supra). This made the Bench to pass M.A.C.A No.2027 of 2011 6 the order of reference, so as to resolve the conflict between the two Division Bench judgments reported in **Oriental Insurance Co.Ltd's** case (cited supra) and **Manikuttan's** case (cited supra). 9. Since the issue involved in this case is only a legal question, and since there is no much dispute with regard to the factual sequence, this Court finds it appropriate to go directly to the various rulings rendered by the Courts at different points of time. The first decision sought to be cited on the part of the appellants is **Oriental Insurance Company** (cited supra). That was a case filed by the Insurance Company contending that the Tribunal could not have awarded 25,000/- separately towards₹ loss of baby, over and above the compensation for death of the pregnant lady. A Division Bench of this Court upheld the Award and accordingly the appeal preferred by the Insurance Company was dismissed holding that it can't be stated that separate claim for death of the foetus, as such, was considered by the Tribunal. Paragraph 4 of the said judgment reads as follows: “4. The Tribunal calculated the compensation taking into account the notional income and the death of the foetus was taken as part of the bodily injury sustained by the deceased. The Tribunal rightly took into account the fact that the child in the womb also died in the accident while calculating the compensation for the death of the lady. It 7 M.A.C.A No.2027 of 2011 cannot be stated that the award is in any way wrong. It cannot be stated that separate claim for death of the foetus was considered by the Tribunal. The deceased was carrying the child and, therefore, the total compensation included Rs.25,000/- for the death of the lady.” ## 10. Coming to **Manikuttan's** case (cited supra) reference was made there to the judgment dated 3.10.1994 in M.F.A No.326/1993. The finding rendered is that, separate compensation is payable in respect of the 'still born child' as well. The observations made by the Bench, as given in paragraph 5 of the above verdict are in the following terms. “5. One important issue raised by the appellant in the appeal is that he is entitled to compensation for loss of the foetus on account of the death of his wife. Appellant's wife at the time of the accident was admittedly four month's pregnant and her death naturally led to the loss of the child which the appellant would have had, had his wife been alive. Since the appellant did not make any specific claim of compensation for loss of the foetus, the Tribunal had no occasion to consider the same. However, we feel when compensation was claimed for the death of a pregnant woman, the Tribunal ought to have taken into account the death of the foetus which automatically happens on the death of the pregnant woman. Decisions of this Court on entitlement of compensation for the death of the foetus are not consistent. Even though the matter is not discussed in detail, this Court in the decision in Oriental Insurance Co. Ltd. v. Rasheed, reported in (2004(3) KLT 552=2004(3) ILR 145) referred to a decision of the High Court of Himachal Pradesh in Rakesh Kumar and another v. Prem Lal & Ors., reported in (1996 A.C.J. 980) wherein that Court held that no separate compensation is payable for loss of foetus. However, we notice that a Division Bench of this Court in the judgment dated 3.10.1994 in M.F.A No.326 of 1993 granted specific compensation of Rs.30,000/- on account 8 M.A.C.A No.2027 of 2011 of medical termination of pregnancy of a woman consequent upon a motor accident. In Minati Das v. Laxmidhar Mohanty reported in (1976 A.C.J 512), the High Court of Orissa held that loss of foetus in a road accident entitles the claimant for compensation. We are unable to uphold the view taken by the High Court of Himachal Pradesh and this Court in the decisions above referred that loss of foetus should be taken as an injury sustained by the pregnant woman in the accident. In the first place, foetus is another life in the woman and it comes as a baby in the course of time. Though foetus grows in the body of the woman, it cannot be equated to or considered to be a part of the body of the woman. In effect, loss of the foetus consequent upon the death of the pregnant woman is actually loss of a child in the offing for the husband of the woman. Secondly, there is no scope for considering compensation for the bodily injury of the victim who died in the road accident. Therefore, it would be illogical to grant compensation treating death of the foetus along with the woman dying in the accident treating it as another bodily injury. In our view, compensation to be granted for the death of a pregnant woman in motor accident is for loss of two lives. Therefore, appellant in this case is certainly entitled to claim compensation separately for the loss of his child in the womb of his wife who perished in the accident.” 11 **.** It was a case where, pregnancy was advanced by 'four months'. The verdict passed by this Court in **Oriental Insurance Company's** case (cited supra) was of course brought to the notice of the learned judges. It was observed that the said verdict **(Oriental's case)** was rendered by referring to a decision of the Himachal Pradesh High Court in **Rakesh Kumar & another v. Prem Lal & Ors (1996 ACJ 980),** wherein it was held that no separate compensation was payable for loss of M.A.C.A No.2027 of 2011 9 foetus; though there was no much discussion in this regard in **Oriental's case** . The Bench disagreed with the declaration made by the Himachal Pradesh High Court that loss of foetus is part of injury sustained by the pregnant woman. According to the learned Judges, 'foetus' is another life in the woman, who takes birth as a Baby and breaths on its own, in the course of time. 'Loss of foetus' amounts to 'loss of child in the offing' for the husband of the pregnant woman as well. It was accordingly, that reliance was placed on the verdict passed by an earlier Division Bench of this Court in M.F.A No.326/1993 (where ₹ 30,000/- was awarded as specific compensation on account of Medical Termination of pregnancy of a woman consequent upon a motor accident) and held that death of a pregnant woman in motor accident was actually loss of two lives, with eligibility to get compensation under separate heads/claims. 12. This Court had occasion to consider the matter again, in **2016(5) KHC 306 (The Oriental Insurance Company Ltd., v. Saleena)** . Pregnancy of the claimant, who was travelling in a car came to be aborted because of the injuries sustained in motor accident- on collision with a jeep; which was sought to be compensated by approaching the Tribunal. The M.A.C.A No.2027 of 2011 10 claim was resisted by the Insurer of the offending vehicle mainly contending that no evidence was there to connect the Abortion with the motor accident. The said contention was repelled and the Tribunal awarded a total compensation of 1,20,276/-; of₹ which, 1 lakh was towards 'loss of unborn child'. This was₹ challenged at the instance of the Insurer. Detailed discussion was made therein with reference to the various aspects as to the development of the 'Embryo' immediately after the fertilization, going through the stage of 'Foetus' and subsequently, taking birth as a 'Child/Baby'. In the said case, the foetus was only of '50 days' old, as observed in paragraph 3. Reference was made to the verdict passed by the Andhra Pradesh High Court in **Oriental Insurance Company Ltd. v. Santhilal Patal (2007 - (4) ACD 835)** where a finding was rendered that the 'foetus' in the womb could be treated as a child for awarding compensation. The meaning of the term 'foetus' as given in the Oxford Advanced Learner's Dictionary was also referred to. The Bench held that since the 'age of pregnancy' was only '50 days', it had never become a 'foetus' but an 'embryo' and only after '8 weeks' from the date of fertilization, would it become a 'foetus'. Only after '20 weeks' (5 months), would the 'foetus' become eligible to M.A.C.A No.2027 of 2011 11 be termed as a 'child' for compensation purpose and that quickening of the child will be only after the said period. The Bench found in the said circumstances, that the compensation of ₹1 lakh awarded towards loss of unborn child was quite wrong and unsustainable. Considering all the relevant facts and figures, the Bench fixed 25,000/- as the 'just' compensation,₹ payable with interest @9% p.a from the date of petition, till realisation; also upholding the cost of 3,000/- awarded by the₹ Tribunal. 13. The decision rendered by a Division Bench of the Himachal Pradesh High Court in **Rakesh Kumar v. Prem Lal and others (1996 ACJ 980)** was in a case where, compensation of 5,000/- was awarded in respect of the 'foetus', which was of₹ 'seven months' age. It was held that such an instance could be treated only as a 'bodily injury' to the mother and no separate compensation could be claimed in respect of the foetus. 14. The learned counsel for the appellant brought to our notice the other judgments as well, rendered by different Single Benches of various High Courts. **In Divisional Controller, Karnataka State Road Transport Corporation v. Vidya Shindhe (2005 ACJ 69)** (learned Single Judge of the Karnataka M.A.C.A No.2027 of 2011 12 High Court), the foetus was '37 weeks' old. In the said case, pursuant to a road traffic accident, though the child was born, it took its last breath just two days after the birth. Compensation of ₹1.5 lakh awarded by the Tribunal treating the foetus as equivalent to a child was upheld by the High Court, for the reasons stated in Paragraph 5 therein. In **Bhawaribai and another v. New India Assurance Company Ltd (2006 ACJ 2085),** another learned Judge of the Karnataka High Court held that in the case of abortion and death of 'foetus' in the womb, it was to be considered on par with the death of a minor and a sum of 1.5 lakhs was awarded (though, the exact age of the 'foetus'₹ is not discernible). Similar view has been taken by another learned Judge of the Madras High Court as per the judgment dated 27.7.2009 in **New India Assurance Co. Ltd., v. Krishnaveni** (C.M.A (NPD) No.2180/2004); where the 'foetus' was nearly of 'nine months'. It was accordingly that a compensation of ₹2 lakhs was awarded. Under similar circumstance, where the foetus was of '28 weeks', compensation of 1 lakh was awarded by a learned Single Judge of the Madhya₹ Pradesh High Court in respect of an accident occurred on 14.3.2000, as per the verdict reported in **2006 ACJ 2067** 13 M.A.C.A No.2027 of 2011 ## **(Shraddha v. Badresh and others).** 15. Verdicts rendered by different High Courts on the subject came to be considered and discussed by the Delhi High Court (Single Bench), when judgment was rendered in **Prakash** **& ors v. Arun Kumar Saini & another (2010 ACJ 2184)** . Rights of an unborn child, as recognized in different legal contexts have been dealt with in paragraph 16 of the said verdict; relevant portion of which is reproduced below, for convenience of reference. “16. The rights of an unborn child are well recognized in various different legal contexts which are as under: (i) Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus: Explanation :--For the purposes of this section, 'minor' includes a child in the womb.” (ii) Section 20 of the Hindu Succession Act, 1956 recognises the right of a child in the womb, Section 20 reads thus: Section 20. Right of child in womb: A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the 14 M.A.C.A No.2027 of 2011 date of the death of the intestate.” (iii) Mulla on Hindu Law, Fifteenth Edition, contains a commentry by the author while dealing with Section 20. The commentary reads thus: “It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are regarded by reference to the moment of conception and not of birth and the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. The child in embryo is treated as in esse for various purposes when it is for his benefit to be so treated. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognises that rule of beneficent indulgence and the child in utero although subsequently born is to be deemed to be born before the death of the intestate and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate. (iv) In the Indian Succession Act, 1925, 'minor' is defined under Section 2(e), which reads as follows: “Section (2)(e) “minor” means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and “minority” means the status of any such person;” Section 7 of the Indian Succession Act provides that the domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled and in the case of a posthumous child, in the country in which his father was domiciled at the time of the father's death. Section 112 of the Indian Succession Act recognises the rights of a person coming into existence after the death of a testator. (v) Sections 13 and 20 of the Transfer of Property Act deal with situations in which on a transfer of property, an interest therein is created for the benefit of a person not in existence. As per Section 20, where on a transfer of property an interest therein is created for an unborn person, he acquires on his birth, a vested interest. 15 M.A.C.A No.2027 of 2011 (vi) Sections 312 to 316 of the Indian Penal Code provide for punishment for the offence of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc. 16. From the above, it is evident that various provisions were referred to, particularly, the 'Explanation' under Section 6 of the Limitation Act to the effect that, it will include the 'child in womb' and Section 20 of the Hindu Succession Act, referring to the equal right of the 'child in womb' to the property in respect of intestate succession; besides referring to the meaning of the term 'right of unborn child' given in the Black's Law Dictionary in the 11[th] edition. It was accordingly, that a sum of 2,50,000/-₹ was ordered to be given as compensation in the said case. 17. Few other decisions have also been referred to and sought to be relied on, from the part of the claimants; which have been rendered by the learned Single Judges of Rajastan High Court, Delhi High Court, apart from the decision rendered by the Division Bench of the Madras High Court in **The Managing Director v. S.Thenmozhi (2015 ACJ 2771)** where a compensation of 2 lakhs was given in respect of the 'loss of₹ baby'. It is pointed out that almost all the decisions in the line, except for the decisions rendered by the Himachal Pradesh High M.A.C.A No.2027 of 2011 16 Court in **Rakesh Kumar** 's (cited supra) case and the decision of this Court in **Oriental Insurance Company's** (cited supra) case stand in support of the appellants; to make them eligible to get compensation in respect of the loss of 'foetus', treating it as a child. 18. The learned counsel appearing for the Insurance Company submits that the issue has already been dealt with by the Apex Court as per the decision reported in ( **2011) 13 SCC** **306 (National Insurance Company Ltd. v. Kusuma and another)** ; which (as claimed to be) stands in favour of them. We have gone through the said decision. It is true that such a preposition was mooted by the Insurance Company before the Supreme Court, to the effect that the 'loss of foetus' cannot be treated as a 'loss of child' and that no separate compensation can be given, treating the 'foetus' as a 'child'. As obvious from the discussion in paragraphs 4, 5 and 6 of the judgment, the Apex Court held that no such case was put up by the Insurance Company before the Tribunal or the High Court. The High Court had in fact granted compensation for the 'loss of baby', which was sought to be enhanced by filing an appeal by the claimants and this being the position, no 'U' turn could be taken by the M.A.C.A No.2027 of 2011 17 Insurance Company at that stage and that they were estopped in this regard. From this, it is clear that the question put up by the Insurance Company was never permitted to be entertained and as such the said decision is not an authority to support the case of the Insurer and to decline the relief to the appellant herein. 19. Incidentally, a doubt may arise, as to whether the claim petition itself is maintainable? This is by virtue of the fact that Section 166 of the Motor Vehicles Act enabling the party to file claim petition, specifically stipulates that it could be done only by the owner of the property or the person injured or the legal representative of the deceased. Whether the appellants could be treated as the 'legal representatives' of a 'still born child' is the moot question. The terms 'legal representative' is not defined in the Motor Vehicles Act 1988. However, Section 2 (11) of the Code of Civil Procedure defines the term legal representative in the following terms. “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued;” By virtue of the above position, which can be pressed into service to the given context, we are of the view that the M.A.C.A No.2027 of 2011 18 claimants (the Husband and Wife) who filed the claim petition in respect of the 'loss of foetus' could be deemed as the legal representatives of the foetus, treating the 'foetus' as a 'child' to award the compensation under the statute. 20. For compensating the loss, the 'foetus/still born child' could be equated as a living child and the quantum of damages fixed could be ordered to be given to the Husband and Wife/Appellants. The stage of the foetus is having some importance/relevance in fixation of quantum. After fertilization, the 'Embryo' starts development and on completing 'five months' (20 weeks), formation of different organs will be almost nearing completion. The “viability of the child” as explained in “ **Modi's Medical Jurisprudence** ” (25[th] Edition) is extracted below: “ **Viability of Child** -The term 'viability' means the ability of neonate to lead a separate existence outside the mother. Viability denotes the stage of maturity at which a normally developed neonate is potentially able to survive. Generally, the term 'viability' is used in its legal rather than in its biological sense, the legal definitions of viability ranging from 180 to 210 days of intra-uterine development. Viability, it should be noted, is not synonymous with live birth.” It is clear from the above authentic version, that formation of the child becomes complete after 180 days and in the remaining period growth of the child takes place, to take birth in M.A.C.A No.2027 of 2011 19 the due course. In other words, the 'Embryo' in the womb of the mother would be viable as a 'child' between 180-210 days. If for any reason, a pre-mature delivery takes place after the said stage, it is quite possible to save the child with all faculties and without any deformities, by virtue of the advanced technology and infrastructure available as on the date. In the instant case, the pregnancy had advanced by 'eight months' and as such, the 'foetus' had attained full viability, even if there occurred a premature birth and it was quite possible for the Husband and Wife to have saved the child, by appropriate means. Because of the road traffic accident occurred in 10.10.2006, such a chance is lost for ever and this being the position, the parents/claimants/ appellants are entitled to be compensated for the 'loss of baby' treating the 'foetus' as a 'child'. We hold it accordingly. The reference is answered to the effect that, in all cases where the pregnancy has advanced **beyond 'six months'** and if any miscarriage occurs because of a road traffic accident, it is open to claim compensation in respect of the 'loss of baby', treating the 'foetus' as a viable 'child', apart from the compensation payable under other appropriate heads. 21. The next question is whether the matter is to be sent M.A.C.A No.2027 of 2011 20 back to the Division Bench for computing the compensation. We are aware of the verdict passed by the Apex Court in **Sukumaran P.M v. Puthiya Kuttimappilakath Shalima** [ILR 2008(2) Ker 149(SC)] holding that, when only reference is made to Full Bench, the Full Bench is to answer only the question referred to it and remit the matter to the Division Bench to decide the merits. But, **Section 7** of the Kerala High Court Act (which was omitted to be brought to the notice of the Apex Court) specifically says that, on making a reference it can be answered by the Full Bench and sent back for further steps based on the point answered or can decide the merit as well. Since the only remaining question in this appeal is the adequacy of the compensation, based on the finding rendered by us, answering the reference, this Court finds that the matter need not be sent back to the Division Bench and it can be dealt with right now; to save time and to extend relief to the appellants to the permissible extent. 22. The quantum of compensation payable in respect of children had attracted the attention of the Supreme Court on many an occasion. Time and again, the law makers were alerted by the Apex Court (by way of judgments in **U.P State Road** 21 M.A.C.A No.2027 of 2011 ## **Transport Corporation v. Trilok Chandra (1996(2) KLR** **218 (SC)** and other cases) that the compensation by way of structured formula in terms of Section 163A of the Motor Vehicles Act, 1988 required a thorough overhaul and amendment, which is still to take place. Taking note of the lapse on the part of the Government when the matter came to be considered by the Apex Court again in **Puttamma and others v. K.L.Narayana Reddy and another (2014(1) KLT 738)** , it was made clear that, till the schedule was amended, some minimum compensation had to be paid in respect of the death of children, holding that, in cases of the demise of the children upto five years a minimum compensation of 1 lakh₹ has to be paid and in respect of the others aged above five years, it shall be 1.5₹ lakhs. 23. By virtue of the legal fiction treating the 'foetus' as a 'child', the appellants in the instant case are also entitled to get the above minimum compensation of 1 lakh for the 'loss of₹ foetus'. The Tribunal has already awarded a sum of 50,000/-₹ under this head. As such, the deficit/balance compensation payable comes to 50,000/-. It is awarded accordingly. It shall₹ carry interest @ 9% per annum from the date of petition till 22 M.A.C.A No.2027 of 2011 satisfaction except for the period of delay (490 days) in filing the appeal, which was condoned as per the order dated 12.12.2011. Since the policy is admitted and no violation of any policy condition/statutory condition is involved, the amount due shall be deposited by the 3[rd] respondent Insurance Company at the earliest, at any rate, within 'one month' from the date of receipt of a copy of the judgment. On effecting the deposit, the appellants are free to get it disbursed from the Tribunal. Appeal stands allowed to the said extent. No costs. ## Sd/- **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **P.UBAID, JUDGE** Sd/- **A.M.BABU JUDGE** //True Copy// P.A to Judge ab