Delhi High Court
Kuldeep Singh And Anr. vs Parveen Kumar & Anr. on 8 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 8th September, 2017
+ MAC.APP. 383/2015
KULDEEP SINGH AND ANR. ..... Appellants
Through: Mr. Partap Singh, Advocate
versus
PARVEEN KUMAR & ANR. ..... Respondents
Through: Mr. Pankaj Gupta, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the award of the Claims Tribunal
whereby compensation of Rs.2,50,000/- has been awarded in respect of the
death of a fetus.
2. On 05th February, 2013 at about 04:45 P.M, Sunita Devi was hit by a
truck bearing No.DL-1LP-4892 which resulted in the fatal injuries. The
deceased was carrying a four months' fetus in her womb. The deceased was
survived by her husband and minor daughter, who filed two separate claim
petitions, one in respect of death of Sunita Devi and the second in respect of
the death of the fetus.
3. The Claims Tribunal awarded compensation of Rs.19,97,722/- in
respect of the death of Sunita Devi and Rs.2,50,000/- in respect of the death
of the fetus. The appellant is seeking enhancement of the compensation
amount in respect of the fetus.
4. In Prakash v. Arun Kumar Saini, (2010) 167 DLT 311, this Court
examined the law with respect of the compensation in respect of the death of
the fetus and held that fetus aged five months onwards in mother's womb till
its birth is treated as an unborn child. This Court held that the unborn child
to be a 'person' and awarded Rs.2,50,000/- in respect of a seven month old
fetus. Relevant portion of the said judgment is as under:
"18. This Court is of the view that the rights of an unborn child are
recognised in various different legal contexts; e.g. in criminal law
causing death of foetus has been held to be an offence under Sections
312 to 316 of the Indian Penal Code, and the law of property
considers the unborn child in being for all purposes which are to its
benefit, such as taking by will or descent. This Court is in respectful
agreement with the judgments of Andhra Pradesh High Court in the
case of Oriental Insurance Co. Ltd. (supra) and Kerala High Court in
the case of Maniknttan(supra), and holds that an unborn child aged
five months onwards in mothers womb till its birth is treated as equal
to a child in existence. The unborn child to whom the live birth never
comes is held to be a „person‟ who can be the subject of an action for
damages for his death. The foetus is another life in woman and loss of
foetus is actually a loss of child in the offing. The appellants are,
therefore, entitled to compensation for the loss of foetus.
xxx xxx xxx
21. The judgment of this Court in National Insurance Company
Ltd. v. Farzana (supra) relates to the death of 7 year old child
whereas the present case relates to the death of a seven months old
foetus. The seven months old foetus cannot be compared with seven
years old child and, therefore, this Court is not inclined to award Rs.
3,75,000/- to the appellants. A foetus shall be treated as a child does
not mean that the compensation in respect of a foetus shall be equal to
a seven year old school going child. The love and affection of the
parents for seven year old child cannot be equated with that of a
foetus which has yet to take birth. The love and affection develops
after the birth of the child and it keeps on growing and goes deep in
the memory. The death of a seven year old child would leave deep
memories and, therefore, deeper hurt. In case of death of a child, the
photographs of the child and other articles belonging to him/her keep
on reminding the parents of the child and make them sad. Memories
are also refreshed when parents see other children of same age and it
takes a very long time for pain and suffering to dissolve, whereas
there are no such memories in case of a foetus and, therefore, lesser
hurt. The compensation awarded to a seven year old child, therefore,
needs appropriate correction. Considering that Rs. 2,50,000/- was
awarded by Madhya Pradesh High Court in the case
of Shraddha (supra), Rs. 2,00,000/- by Madras High Court in the case
of Krishnaveni (supra) and Rs. 1,50,000/- by Karnataka High Court
in the case of Bhazvaribai (supra), Rs. 2,50,000/- is awarded to the
appellants in the present case."
5. Learned counsel for the appellant urged at the time of the hearing that
the judgment of Prakash v. Arun Kumar Saini (supra) relates to an accident
dated 08th June, 2008 in which the compensation of Rs.2,50,000/- in respect
of a seven months old fetus was awarded on 05th February, 2010. It is
submitted that the enhancement be awarded on the ground of inflation in the
cost of living. Reliance is placed on Krishna Gopal v. Lala, (2014) 1 SCC
244 in which the Supreme Court took note of the inflation.
6. In the present case, the fetus was four months old for which the
Claims Tribunal has awarded Rs.2,50,000/- whereas in the case of Prakash
v. Arun Kumar Saini (supra) fetus was of seven months old for which this
Court awarded Rs.2,50,000/-. This Court is of the view that the
compensation awarded is just, fair and reasonable and no enhancement of
compensation is warranted.
7. The appeal is dismissed.
SEPTEMBER 08, 2017 J.R. MIDHA, J.
rsk
