REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7212 OF 2011
(Arising out of S.L.P. (C) No.17905 of 2008)
NATIONAL INSURANCE COMPANY LTD. -- APPELLANT
VERSUS
KUSUMA & ANR. -- RESPONDENTS
J U D G M E N T
D.K. JAIN, J.:
1. Leave granted.
2. Challenge in this appeal, by special leave, is to the legality and
validity of the judgment and order dated 17th January, 2008, delivered
by the High Court of Karnataka at Bangalore, whereby the High Court
has allowed the appeal preferred by respondent No.1 herein,
enhancing the compensation awarded to her by the Motor Accident
Claims Tribunal (for short "the Tribunal") constituted under the Motor
Vehicles Act, 1988 (for short "the Act") to `1,80,000/- along with
interest @ 6% per annum.
3. To appreciate the controversy, the factual matrix in a nutshell is as
under :
On 28th June 1995, the car in which Mrs. Kusuma, respondent No.1
in this appeal (hereinafter referred to as "the claimant"), aged about 36
years, was travelling from Sullia to Puttur collided with a Bus owned by
Karnataka State Road Transport Corporation, respondent No.2 herein.
Due to the impact of the accident, the claimant and others sustained
injuries. The claimant, who was 30 weeks pregnant, suffered a fatal blow
on the stomach. She was admitted in the hospital, where an X-ray and
scanning of the foetus showed that the baby had died inside the uterus.
On an induced delivery, the following day she delivered a still born baby.
The claimant filed a claim petition under Section 166 of the Act before
the Tribunal, Mangalore, making a claim of `2,00,000/- with cost and
interest at 12%, towards the expenses incurred on medical treatment,
mental shock, pain and loss of child.
4. The Tribunal vide award dated 5th October 2004, inter alia, held that
loss of foetus on account of injury sustained by the claimant in the
accident was akin to the death of a child of a tender age. Relying on a
decision of the Karnataka High Court, wherein the Court had awarded
a compensation of `25,000/- towards the loss of affection and
`25,000/- towards the loss of estate on the death of a child of less than
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1 year of age in an accident, the Tribunal allowed the claim in part and
awarded a compensation of an amount of `50,000/- towards the loss of
unborn child and a further sum of `10,000/- towards pain and
sufferings to the claimant, along with an interest @ 6% per annum
from 18th November 1995 i.e. the date of institution of the claim
petition till the date of deposit/payment. The Insurance Company, the
appellant in this appeal, was directed to pay the said compensation to
the claimant, in order to indemnify the owner of the car. Claim
petition against the owner of the Bus was rejected.
5. Dissatisfied with the quantum of compensation awarded by the
Tribunal, the claimant filed an appeal before the High Court, seeking
enhancement of the aforesaid compensation. Pertinently, the
Insurance Company did not question the award.
6. Applying the principle indicated by this Court in New India
Assurance Company Ltd. Vs. Satender & Ors.1, in relation to
assessment of quantum of compensation on the death of a child in an
accident, the High Court, by a short judgment allowed the appeal in
part and enhanced the compensation to a consolidated amount of
`1,80,000/- with interest @ 6% per annum from the date of the petition
till the date of payment.
1 (2006) 13 SCC 60
3
7. Being aggrieved, the Insurance Company is before us in this appeal.
8. At the time of issuing notice to the respondents, at the first blush, it
was felt that the appeal involved a very important question of law,
namely, whether an unborn child (foetus) while still in mother's womb
can be considered to be a child for the purpose of claiming
compensation under Section 166 of the Act and, therefore, Mr. Uday
U. Lalit, Senior Advocate, was requested to assist the Court as Amicus
Curiae. Accordingly, we heard Mr. Gaurav Aggarwal, learned counsel
appearing for the appellant and the learned Amicus Curiae on the said
issue. However, having closely examined the fact-situation as
emerging from the record, we are convinced that the appellant cannot
be permitted to raise the aforesaid issue. In the present case, having
chosen not to question the correctness of the award made by the
Tribunal, determining the amount of compensation "towards the loss
of unborn child", the appellant-Insurance Company is now estopped
from contending that an unborn child cannot be considered to be a
child for the purpose of claiming compensation under Section 166 of
the Act. It is manifest from the impugned judgment that the question
for consideration before the High Court in claimant's appeal was with
regard to the quantum of compensation and not the entitlement of
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claim for grievous injury to a 30 weeks old child in utero resulting in
the birth of a still born child.
9. Thus, under the given circumstances, the question that survives for our
consideration is whether the quantum of compensation determined by
the High Court, at a lump sum amount of `1,80,000/-, for the loss of
still born child, treating it as a child, and towards pain and sufferings
to the respondent-claimant awarded by the Tribunal at `50,000/- and
`10,000/- respectively, warrants interference by this Court.
10. On receipt of an application for compensation made under Section 166
of the Act, Section 168 of the Act casts an obligation on the Tribunal
to determine the amount of compensation "which appears to it to be
just". The expression "which appears to it to be just" gives a wide
discretion to the Tribunal to determine the compensation which in the
opinion of the Tribunal is "just". Explaining the meaning of the word
"just" as appearing in Section 110B of the Motor Vehicles Act, 1939,
which was in pari materia with Section 168 of the Act, this Court in
Helen C. Rebello & Ors. Vs. Maharashtra State Road Transport
Corporation & Anr.2 observed thus :
"The word "just", as its nomenclature, denotes
equitability, fairness and reasonableness having a large
peripheral field. The largeness is, of course, not
2 (1999) 1 SCC 90
5
arbitrary; it is restricted by the conscience which is fair,
reasonable and equitable, if it exceeds; it is termed as
unfair, unreasonable, unequitable, not just. Thus, this
field of wider discretion of the Tribunal has to be within
the said limitations and the limitations under any
provision of this Act or any other provision having the
force of law."
11. Thus, the word "just" connotes something which is equitable, fair and
reasonable, conforming to rectitude and justice and not arbitrary. It
may be true that Section 168 of the Act confers a wide discretion on
the Tribunal to determine the amount of compensation but this
discretion is also coupled with a duty to see that this exercise is carried
out rationally and judiciously by accepted legal standards and not
whimsically and arbitrarily, a concept unknown to public law. The
amount of compensation awarded is not expected to be a windfall or
bonanza for the victim or his dependent, as the case may be, but at the
same time it should not be niggardly or a pittance. Thus, determination
of "just" amount of compensation is beset with difficulties, more so
when the deceased happens to be an infant/ child because the future of
a child is full of glorious uncertainties. In the case of death of an infant
many imponderables, like life expectancy of the deceased, his
prospects to earn, save, spend and distribute have to be taken into
account. It is quite possible that there may be no actual pecuniary
benefit which may be derived by his parents during the life time of the
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child. But at the same time that cannot be a ground to reject the claim
of the parents, albeit they establish that they had reasonable
expectation of pecuniary benefit if the child had lived. The question
whether there exists a reasonable expectation of pecuniary benefit is
always a mixed question of fact and law but a mere speculative
possibility of benefit is not sufficient. In Satender & Ors. (supra),
relied upon by the High Court, while dealing with a claim for
compensation under the Act in relation to the death of a nine year old
child in a truck accident, this Court had observed as follows :
"9. There are some aspects of human life which are
capable of monetary measurement, but the totality of
human life is like the beauty of sunrise or the splendor of
the stars, beyond the reach of monetary tape-measure.
The determination of damages for loss of human life is
an extremely difficult task and it becomes all the more
baffling when the deceased is a child and/or a non-
earning person. The future of a child is uncertain.
Where the deceased was a child, he was earning nothing
but had a prospect to earn. The question of assessment of
compensation, therefore, becomes stiffer. The figure of
compensation in such cases involves a good deal of
guesswork. In cases, where parents are claimants,
relevant factor would be age of parents."
12.It was further observed that:
"In cases of young children of tender age, in view of
uncertainties abound, neither their income at the time of
death nor the prospects of the future increase in their
income nor chances of advancement of their career are
capable of proper determination on estimated basis. The
reason is that at such an early age, the uncertainties in
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regard to their academic pursuits, achievements in career
and thereafter advancement in life are so many that
nothing can be assumed with reasonable certainty.
Therefore, neither the income of the deceased child is
capable of assessment on estimated basis nor the
financial loss suffered by the parents is capable of
mathematical computation."
13. It is quite true, as observed in Satender & Ors. (supra), that the
question of assessment of compensation in a case where the deceased
is an infant involves a good deal of guesswork but in our view it
cannot be a wild guesswork. As aforesaid, some material has to be
adduced by the claimants to prove that they entertained a reasonable
expectation of pecuniary advantage from the deceased. There are quite
a few precedents providing guidelines for determination of
compensation in such cases but because of nature of the order we
propose to pass on facts in hand, we deem it unnecessary to burden the
judgment by making a reference to all these cases, except to note that
in Lata Wadhwa & Ors. Vs. State of Bihar & Ors.3 as also in M.S.
Grewal & Anr. Vs. Deep Chand Sood & Ors.4, wherein a large
number of young school going children had lost their lives,
respectively in fire and by drowning, multiplier method was adopted
and applied for assigning value of future dependency to determine the
quantum of compensation.
3 (2001) 8 SCC 197
4 (2001) 8 SCC 151
8
14. Having examined the instant case on the touchstone of the aforestated
broad principles, we are of the opinion that neither the Tribunal nor
the High Court applied any principle for determination of the amount
of compensation on account of the death of a still born child. It is
clear from a bare reading of the orders of the Tribunal and the High
Court that no reasons have been indicated by the Tribunal while
awarding a lump sum amount of `50,000/- towards the loss of unborn
child and `10,000/- towards pain and suffering to the mother and by
the High Court enhancing the said amounts to a consolidated amount
of `1,80,000/-. Besides, in the impugned judgment, we do not find any
discussion on the question of non-pecuniary compensation awarded by
the Tribunal to the claimant-mother on account of pain and suffering
as a result of death of the child. In the normal course, we would have
remanded the matter back to the Tribunal for fresh consideration.
However, bearing in mind the quantum of compensation awarded by
the courts below and the fact that the accident took place in the year
1995, we are of the opinion that at this juncture it would be too harsh
to direct the claimants to undergo the entire gamut of a fresh exercise
under Section 168 of the Act. Therefore, in the facts and
circumstances of the case, we refrain from interfering with the
impugned judgment and dismiss the appeal accordingly, with no order
as to costs.
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15.Before concluding, we place on record our appreciation for the
valuable assistance rendered by Mr. Uday U. Lalit, the learned
Amicus Curiae.
...........................................
(D.K. JAIN, J.)
............................................
(R.M. LODHA, J.)
NEW DELHI;
AUGUST 23, 2011.
ARS
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