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

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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

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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

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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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