Justice Anish Dayal, Delhi High Court
Motor Accident Compensation| Woman Can Claim For Personal Injury Due To Loss Of Foetus: Delhi High Court
|The appeal before the Delhi High Court was filed seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal.
The Delhi High Court has granted Rs 7.5 lakh as compensation for the loss of foetus to a woman who met with a motor accident. The High Court held that an injured woman can raise a claim for personal injury due to loss of foetus and compensation has to be awarded on that count.
The appeal before the High Court was filed seeking enhancement of compensation awarded by the impugned judgment passed by the Motor Accident Claims Tribunal (MACT) whereby compensation at Rs 40,91,841 along with interest was awarded.
The Single Bench of Justice Anish Dayal held, “This Court has departed from the born alive rule in Prakash (supra), wherein unborn child was considered to be a ‘person’ who can be subject for the claim of damages. Even though no finding has been returned that a separate claim ought to be filed, and even if the argument of counsel for respondent/ Insurance Company is accepted, the injured claimant would have a claim for personal injury due to loss of foetus and compensation would have to be awarded on that count. In the present case, the injured in addition to psychiatric injury due to loss of foetus has also been rendered incapable of having children in the future, in this circumstance the injured claimant will also have a claim for personal injury for grant of compensation.”
Advocate Varun Tyagi represented the Appellant while Advocate Brijesh Bagga represented the Respondent.
Factual Background
The matter revolved around an accident which occurred in 2018, where the injured claimant, a teacher employed with SDMC Primary School sustained grievous injuries after being hit from behind by an offending RTV when she was walking towards the school. She was declared as 84% permanently disabled with respect to both lower limbs. She also lost a six-month-old foetus.
Reasoning
The Bench explained that functional disability relates, as per principles enunciated in Raj Kumar v. Ajay Kumar, (2011), to the injured’s ability to continue with a regular life with depressed functionality. “Accordingly, the functional disability will be taken at 60%. The job of a teacher may not require heavy physical labour but requires a lot of mobility and hours of standing, strenuous effort is required in order to commute to and from the school and reduced options for postings or promotions”, it added.
Considering that the appellant was in permanent employment with an SDMC school, the Bench held that the addition towards future prospects ought to be 30%, in terms of the principles laid down in National Insurance Company Limited v. Pranay Sethi & Ors., (2017) and not 25% as awarded by the Tribunal. The Bench further held that she required the assistance of one attendant.
The Bench also held that a sum of Rs 7,50,000 would be appropriate towards compensation for the loss of the foetus. The Bench thus disposed of the appeal by enhancing the compensation by Rs 41,79,628.
Cause Title: Anshu Kashyap v. Iffco Tokio General Insurance Co. Ltd. (Neutral Citation: 2026:DHC:5591)
Appearance
Appellant: Advocates Varun Tyagi, Bharat Gupta, Ishan Srivastava
Respondent: Advocate Brijesh Bagga