Lekha v. Mary Biju and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 MACA NO. 2285 OF 2010 ``` ``` AGAINST THE AWARD DATED 28.03.2010 IN OP(MV) 1648/2003 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, THALASSERY`** ## **`APPELLANT/PETITIONER:`** ``` LEKHA W/O THAMPAN, 25 YERAS NADUVILE VEETIL, VELLORA AMSOM, PERUMPADAVU, P.O.KARIPPAL. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA SMT.N.K.SHEEBA ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MARY BIJU W/O BIJU PANTHALANGAL PADIVUR KALLIYAD, P.O.ULIKKAL, TALIPARAMA TALUK- 670 593. 2KONGATH VAKKAR SIVA RAJAN S/O.KESAVAN, 34 YEARS, NAYIKKUNNU, VELLORA AMSOM, P.O.KARIPPAL- 670 306. 3MS.UNITED INDIA INSURANCE CO.LTD. PAYYANNUR BRANCH, TEMPLE ROAD, PAYYANNUR-670307. BY ADV ``` ``` SC – ADV.RINNY STEPHEN CHAMAPARAMPIL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2285 OF 2010 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.1648/2003 on the files of the Motor Accident Claims Tribunal, Thalassery. The said claim petition was submitted by her seeking compensation for the injuries sustained to her in a motor accident that occurred on 26.07.2002 when she was travelling in an autorickshaw driven by the 2[nd] respondent. The 1[st] respondent was the owner of the said autorickshaw, and it was insured with the 3[rd] respondent herein. 2. According to her, she was a pregnant lady who had completed eight months of pregnancy at the time of the accident and consequent to the impact of the accident, the child in the womb died and LSCS was done to remove the dead child. Consequent to the same, the uterus was also removed at the early age of 25 years. Therefore, the amount of compensation claimed was Rs.2,50,000/-. 3. The 3[rd] respondent Insurance Company alone contested the matter by filing a written statement. They admitted the coverage of the policy but contended that there was violation of policy condition as the insured failed to hand over vehicular documents to ``` MACA NO. 2285 OF 2010 ``` ``` 3 ``` them. They also disputed the quantum of compensation. 4. The evidence in this case consists of oral evidence of PW1 and Exts.A1 to A5. After examining the materials placed on record, the Tribunal came to the finding that the accident occurred due to the negligence on the part of the driver of the autorickshaw and being the insurer of the said vehicle, the 3[rd] respondent Insurance Company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,55,200/- and the 3[rd] respondent was directed to deposit the said amount along with interest @7.5% per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 5. Heard Sri.Abhilash K.N., the learned counsel appearing for the appellant and Sri.Rinny Stephen Chamaparambil, learned counsel appearing for the 3[rd] respondent Insurance Company. 6. The main contention of the learned counsel for the appellant is with respect to the lack of compensation awarded for the loss of the child. It was pointed out that, at the time of the ``` MACA NO. 2285 OF 2010 ``` ``` 4 ``` accident, the foetus was 32 weeks and, therefore, had to be treated as a viable child, and the compensation ought to have been calculated accordingly. In this regard, the attention of this Court was brought to the observations made by a Full Bench of this Court, in **Abhulasees v. Abdumanaf** [2017 (3) KLT 519]. In the said decision, a question as to the loss of a child in the womb in a motor accident and the impact thereof as far as the liability to pay compensation is concerned, was specifically considered by this Court. After referring to various medical journals and the decisions rendered by the Hon'ble Supreme Court in this regard, it was observed by the Court in paragraphs 21 to 23 as follows: _“21. 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 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 premature 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_ ``` MACA NO. 2285 OF 2010 ``` ``` 5 ``` _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._ _22. The next question is whether the matter is to be sent 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_ ``` MACA NO. 2285 OF 2010 ``` ``` 6 ``` _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._ _23. 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 Transport Corporation v. Trilok Chandra ((1996) 2 KLT 218 (SC) and other cases) that the compensation by way of structured formula in terms of Section 163-A 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_ ``` MACA NO. 2285 OF 2010 ``` ``` 7 ``` _matter came to be considered by the Apex Court again in Puttamma v. K.L. Narayana Reddy ((2014) 1 KLT 738): ((2013) 15 SCC 45: AIR 2014 SC 706), 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 Rs. 1 lakh has to be paid and in respect the others aged above five years, it shall be Rs. 1.5 lakhs. 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 Rs. 1 lakh for the loss of ‘foetus'. The Tribunal has already awarded a sum of Rs. 50,000/- under this head.”_ Thus, it is evident that, as per the observations made by this Court, for all the purposes relating to compensation, the foetus was treated as a viable child and the compensation was determined accordingly. For the purpose of quantification of the amount this Hon’ble court relied on the decision rendered by the apex court in **Puttamma v. K.L. Narayana Reddy** [(2014) 1 KLT 738] and held that the foetus can be treated as a valid child and considered the fact that the ``` MACA NO. 2285 OF 2010 ``` ``` 8 ``` compensation fixed by the Hon’ble Supreme Court in **Puttamma’s** case for the children up to the age of five years was Rs.1,00,000/-. It is to be noted that, the **Abhulasees’s** case (cited supra) was decided in respect of an accident occurred in the year 2006, whereas the accident in this case is of the year 2002. Therefore, the method of quantifying the compensation adopted by this Court in Abhulasees’s case can also be accepted in this case. Thus, an amount of Rs.1,00,000/- is awarded under the head of loss of child. 7. The learned counsel for the appellant would further contend that, the amount awarded for removal of uterus and other related difficulties was only Rs.1,00,000/- which is not sufficient. Even though the learned counsel for the Insurance Company opposes the same, I find some force in the said contention. It has come out in evidence that the appellant lost the capacity to give birth to a child, and therefore, she was to be satisfied with the child, which she already has. There cannot be any doubt that the loss suffered by her consequent to the removal of the uterus at the young age of 25 years is something which cannot be measured in terms of ``` MACA NO. 2285 OF 2010 ``` ``` 9 ``` money. However, considering the serious and far-reaching impact of the same, a reasonable amount has to be granted as compensation to give some solace to the appellant. Therefore, I find that the amount of Rs.1,00,000/- awarded under the said head is not at all reasonable. Considering the year of the accident, which is 2002 and other relevant aspects, I deem it appropriate to fix the compensation under the said head as Rs.1,50,000/- thereby, granting an additional amount of Rs.50,000/- under the said head. Similarly, it is seen from the records that the amount awarded under the head of pain and suffering is Rs.20,000/- only. Considering the nature of the injury sustained and the fact that the impact extended to the removal of the uterus, I deem it appropriate to grant a further sum of Rs.10,000/- under the said head. For the very same reasons, I deem it appropriate to grant a further sum of Rs.10,000/- under the head of loss of amenities as no amount has been granted by the Tribunal under the said head. 8. Thus, the additional compensation receivable by the appellant is fixed as Rs.1,70,000/- (1,00,000 + 50,000 + 10,000 + ``` MACA NO. 2285 OF 2010 ``` ``` 10 ``` 10,000). In the light of the aforesaid observations and findings, this appeal is allowed, and the award dated 28.03.2010 in O.P.(M.V.) No.1648/2003 passed by the Motor Accident Claims Tribunal, Thalassery is modified by granting an additional compensation of Rs.1,70,000/- (Rupees one lakh and seventy thousand only), and the said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs