It is stated in the claim petition that on 14.3.2000 at about 10.00 a.m. while the petitioner was walking on her left side of Kurinjipodi main Road, first respondent's vehicle bearing Registration No.TN-31-A-0853 came behind her in a rash and negligent manner dashed against the petitioner, by means of which she sustained grievous injuries and multiple fractures all over her body and head. She was pregnant by nine month at the time of accident. She was admitted to the Government Hospital at Cuddalore and thereafter referred to JIPMER Hospital, Pondicherry for further treatment. Due to the accident the child in the womb aged 9 month died. She was running dry cleaner's shop and was earning Rs.10,000/- per month. Hence, a sum of Rs.10 lakhs is claimed as compensation.
2. In the counter filed by the respondent, it is stated that the fitness certificate, possession of valid driving licence of the first respondent and the insurance with the second respondent are denied. Age, income and avocation of the petitioner are also refuted. The amount claimed is high. since the accident took place due to the negligence on the part of the petitioner there is no need to pay compensation. Hence, the petition has to be dismissed.
3. After analysing the evidence on record the Tribunal anchored liability upon the driver by appreciating the evidence of P.W.1 and P.W.2 coupled with the allegations in the F.I.R. This Court does not find any infirmity in the said finding and the same is confirmed.
4. Insofar as the quantum of compensation as fixed by the Tribunal is concerned, the learned counsel for the appellant would assail it very much by stating that it is on the higher side. The bottom line contention of the learned counsel for the appellant is that the multiplier method is not acceptable in this case and there is no evidence to show that the claimant has been disabled from attending to her avocation viz., maintaining the dry cleaners shop.
5. The claimant sustained two fractures one in her right side pelvis and in right femur. In the accident the child in her womb also was stillborn. The doctor P.W.2 would say that the fractured portions in the pelvis region and femur bone malunited and de-generated, that there were pain and swelling in the right thigh and there was a healed scar with a length of 10 c.m., that she experienced pain in her right hip and right joint, that her movements in her right hip and right joint were considerably restricted, that the length of right thigh has shortened by one c.m., that she could not squat on the floor, that she could not conceive in future and that she is suffering from permanent disability to the extent of 70%.
6. The Tribunal has considered Rs.3,000/- as monthly income, applied multiplier 17 and assessed Rs.4,28,400/- on the basis of 70%. The Tribunal has also awarded Rs.25,000/- towards Permanent Disability, Rs.5,000/- for Pain and Sufferings, Rs.3,000/- towards extra nourishment in all Rs.4,61,400/- has been awarded as compensation. In view of this Court, adopting multiplier method is not sustainable, since there is no evidence to show that she has been prevented from running dry cleaner shop in future. In the considered opinion of this Court, Rs.2,000/- may be awarded for each per centage of the permanent disability.
7. Learned counsel for the first respondent/claimant would submit that the Tribunal has lost sight of awarding any compensation for the death of child in the mother's womb and a considerable compensation has to be awarded in this regard. He placed reliance upon a decision of the Karnataka High Court in 2004 (2) T.A.C. 574 (Kant.) [Divisional Controller, B.T.S.Division, Karnataka State Road Transport Corporation, Bangalore v. VidyaShinde and another] decided in the case of death of the foetus, completed 37 weeks, in the mother's womb, she was awarded a sum of Rs.1,50,000/- as compensation. In the said case, the claimant lady has undergone surgery known as 'foetal distress' and male baby was born and she was kept in I.C.U but died after two days of delivery. It is also argued before this Court that if the mother had a normal delivery, there is no necessity to keep the baby in I.C.U. and there is no necessity for the claimant/respondent to undergo surgery.
8. The learned counsel for the first respondent also garnered support from and decision of the Madhya Pradesh High Court in 2006 ACJ 2067 [Shraddha v. Badresh and others] wherein identical situation arose that the baby was stillborn and it has to be considered as a child, that the child died due to the accident and separate amount of compensation was payable to its death. For this purpose, the amount of Rs.1,50,000 awarded by the Tribunal was enhanced to Rs.2,50,000/- from Rs.1,50,000/-.
9. This Court is in respectful agreement with the concluding in the above said two decisions of the High Courts and holding that the stillborn baby is also to be considered as a child. This Court also records finding that since the child died in the womb due to the accident, the mental agony and physical strain and pain experienced by the mother should have been more and that has to be compensated in an appropriate manner. In the considered opinion of this Court a sum of Rs.2,00,000/- may be fixed under the head loss of child in the mother's womb. The following is the compensation under various heads:
Permanent Disability : Rs.1,40,000/-
Pain and Sufferings : Rs. 40,000/-
10. In fine the appeal is allowed in part reducing the compensation from Rs.4,61,400/- to Rs.4,30,000/- and the appellant is permitted to withdraw the excess amount of compensation with interest. The award amount of Rs.4,30,000/- shall carry interest at 7.5% from the date of filing the claim petition till the date of deposit. No costs.
ggs To The Additional Sub-Ordinate Judge, The Motor Accidents Claims Tribunal, Cuddalore