28-Week-Old Foetus To Be Treated As Child: Punjab And Haryana High Court Enhances Motor Accident Compensation For Death Of Unborn Child
The Punjab and Haryana High Court was considering an appeal preferred by appellants-claimants (parents) being aggrieved by the award passed by the Motor Accident Claims Tribunal.
Justice Parmod Goyal, Punjab and Haryana High Court
While observing that a 28 week-old foetus has to be treated as a child, the Punjab and Haryana High Court has granted enhanced compensation to a couple for the death of their unborn child in a motor accident.
The High Court was considering an appeal preferred by appellants-claimants (parents) being aggrieved by the award passed by the Motor Accident Claims Tribunal, Panchkula dismissing the claim petition preferred under section 166 of the Motor Vehicles Act, 1988 by the appellants-claimants on account of death of their unborn child(deceased) in a motor vehicular accident allegedly caused due to rash and negligent driving of respondent-driver while driving a scooter.
The Single Bench of Justice Parmod Goyal held, “In the present case, the foetus was 28 weeks old and has to be treated as a child. It is further worth noticing that the judgment of Hon’ble Himachal Pradesh High Court Rakesh Kumar Vs. Prem Lal (supra) which was taken into consideration by learned Tribunal, was specifically dealt with by Hon’ble Full Bench of Kerala High Court while passing judgment titled as Abhulasees, P.P. and others Vs. Abdumanaf and others (supra). Therefore, in the present case also, learned Tribunal has erred in not granting compensation on account of death of unborn child due to injuries suffered by the mother i.e. appellant-claimant No.2.”
Advocate A. S. Virk represented the Appellant while Advocate Raj Kumar represented the Respondent.
Factual Background
The case dates back to the year 1997 when the appellants-claimants suffered an accident on their way back to their home from PGI on their motorcycle. On reaching near Bitta Petrol Pump on Chandigarh-Panchkula road, due to blockage on the road, the appellant-claimant put his motorcycle on the kacha portion of the road. The second claimant got down from the motorcycle and started walking ahead to see the passage of the motorcycle. The respondent-driver of the offending vehicle came from behind and struck his scooter against the second claimant dragging her eight to ten feet. Resultantly the second claimant struck against the cement pipe lying on the road and got stuck between the scooter and the pipe. The second claimant, who was 28 weeks pregnant, suffered multiple injuries including fractures and the unborn child also died due to injuries in the accident.
The Tribunal held that the accident had taken place on account of rash and negligent driving of the respondent-driver, however, it dismissed the claim petition on the ground that petition seeking compensation of loss of foetus/unborn child was not maintainable by relying upon the judgment of the Himachal Pradesh High Court in Kumar Vs. Prem Lal (1996).
Reasoning
The Bench held that the foetus was 28 weeks old and had to be treated as a child. According to the Bench, the Tribunal erred in not granting compensation on account of death of unborn child due to injuries suffered by the mother.
The Bench further held that in a case of minor child notional income needs to be determined as per minimum wages and for determining loss of dependency 40% future prospects needs to be added. Considering that the deceased was an unborn child, the Bench held that a multiplier of ‘9’ would be appropriate for the purposes of determining loss of earning capacity. “Accordingly, multiplier of ‘9’ is taken for calculating loss of dependency”, it stated.
The Bench also held that the deduction of 50% was required to be made towards personal expenses of the deceased, survived by parents. Further compensation was to be granted under the head funeral expenses, loss of estate and loss of consortium. The Bench held the appellant claimant entitled to Rs 15,000 towards loss of estate and Rs.15,000 towards funeral expenses. “Appellants-claimants no. 1 & 2 would also be entitled to Rs.40,000/- each towards filial consortium”, it added.
The Bench further clarified, “Appellants/claimants shall be entitled to compensation awarded in appeal along with 7.5% interest from the date of filing of claim petition till realization (except under the conventional heads i.e. loss of consortium, funeral expenses, loss of estate).
Cause Title: Suresh Kumar Sethi and Anr v. Sanjeev Kumar and Ors. (Neutral Citation: 2026:PHHC:196006)