Ms. Anshu Kashyap vs Iffco Tokio General Insurance Co. Ltd. & Ors.
- Court
- Delhi High Court
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 13 July 2026
+ MAC.APP. 15/2026
MS. ANSHU KASHYAP .....Appellant
Through: Mr. Varun Tyagi, Mr. Bharat Gupta
and Mr. Ishan Srivastava, Advs.
versus
IFFCO TOKIO GENERAL INSURANCE CO. LTD. & ORS.
.....Respondents
Through: Mr. Brijesh Bagga, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J (ORAL)
1. This appeal has been filed seeking enhancement of compensation
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awarded by the impugned judgment dated 14 August 2025, passed by Motor
Accident Claims Tribunal (‘ MACT ’) Saket Courts, in MACT No. 234/2019,
whereby compensation at Rs.40,91,841/- along with interest @7.5% per
annum was awarded.
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2. The case relates to an accident which occurred on 06 December 2018,
where 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.
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MAC.APP. 15/2026 Page- 1/11
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15
3. Mr. Varun Tyagi , counsel for appellant, contends that the
compensation ought to be enhanced on the following grounds:
(i) That the MACT assessed the functional disability at 10% ,
despite applying the principles enunciated in Raj Kumar v. Ajay
Kumar , (2011) 1 SCC 343, which is wholly disproportionate to
the certified permanent disability. Although the appellant
continued in her employment as a teacher, her full potential and
career prospects in the teaching profession have been
substantially impaired.
(ii) That future prospects ought to have been granted at 30% , since
she was in permanent employment and was 41 years of age at the
time of the accident.
(iii) That the Tribunal awarded attendant charges by taking the
monthly expenses at Rs.6,000/- and applying the appropriate
multiplier. However, the monthly attendant charges ought to
have been assessed on the basis of the minimum wages payable
to an unskilled worker at the time of the accident, i.e .,
Rs.13,896/-.
(iv) That compensation towards loss of amenities of life was
awarded at a meagre amount of Rs.2,00,000/-.
(v) That although appellant lost a six-month-old foetus, the Tribunal
awarded only Rs.5,00,000/- towards such loss, which is wholly
inadequate. It is, further submits that appellant has not only lost
the foetus but has also lost the ability to conceive and carry a
child in the future. He further submits that her husband has since
left her on account of the injuries sustained in the accident, and
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15
she is left without any support except for the attendants whom
she has engaged.
4. Mr. Brijesh Bagga, counsel for the Insurance Company, on the other
hand, contends that appellant had a pre-existing functional disability on
account of dwarfism, certified at 40% , which has duly been taken into
consideration by the Tribunal. He, therefore, submits that the assessment of
functional disability at 10% by the Tribunal is justified.
5. On the issue of loss of the foetus, Mr. Brijesh Bagga , counsel for the
Insurance Company, submits that a separate claim ought to have been filed,
since the loss pertains to a separate life. He contends that even the award of
Rs.5,00,000/- towards the loss of the foetus ought not to have been granted.
6. The other objection, Mr. Bagga , counsel for Insurance Company,
raises is that appellant is still continuing in her job and as per the record her
income has since increased from Rs.35,000-40,000/- at the time of the
accident and subsequently to Rs.70,000/-, the MACT noting that there was no
immediate reduction in earnings.
7. Mr. Bagga further submits that there is no evidence on record to
establish that appellant requires the services of an attendant.
Analysis
8. Having considered these submissions and the assessment by the
MACT, the Court is of the opinion as under:
8.1. The functional disability has been certified as 84% permanent
disability in relation to both lower limbs. Even application of Raj Kumar
( supra ) will not result in functional disability being calculated at 10% , which
is a highly depressed figure. The pre-existing disability of 40% on account of
dwarfism has no relevance to a disability, which has been incurred to the
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15
lower limbs due to the accident. Functional disability relates, per principles
enunciated in Raj Kumar ( supra ), 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.
8.2. As regards future prospects, since appellant was in permanent
employment with an SDMC school, 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) 16 SCC 680, and not 25%
as awarded by the Tribunal.
8.3. As regards the submission that there is no material on record to
establish the requirement of an attendant, this Court finds, upon considering
the evidence on record, particularly the photographs, medical treatment
records, and the Disability Certificate, including the photograph appended
thereto, that appellant would undoubtedly require the assistance of one
attendant.
8.4. As far as the attendant charges are concerned, there is no reason why
the minimum wages of an unskilled worker will not be taken for one
attendant. Therefore, the minimum wages applicable to unskilled worker in
Delhi at Rs.13,896/- will be taken along with a multiplier of 14, considering
that the injured was 41 years on the date of the accident.
8.5. As regards compensation for loss of foetus, this Court has perused the
judgment relied on Raghav Singh v Dinesh Kumar & Ors. 2023:DHC:5590
and Prakash & Ors. v Arun Kumar Saini & Anr., 2010 SCC OnLine Del
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15
478. Relying on these judgments, it is submitted by counsel for
respondent/Insurance Company that a separate claim ought to have been
instituted for loss of foetus. It can be seen from the judgment of Prakash
( supra ) which has been relied upon in Raghav ( supra ), that an award was
passed granting compensation for death of seven months’ pregnant woman.
Appeal was filed seeking compensation for the death of the unborn child in
the womb. The question before the Court was whether unborn child in the
womb should be considered at par with a loss of a minor child. A Co-ordinate
Bench of this Court traversed the law on cases of loss of foetus, as well as the
rights of unborn child in various statutes namely, Limitation Act, 1963 , Hindu
Succession Act, 1956 , Indian Succession Act, 1925 , Transfer of Property,
1882 and Indian Penal Code, 1860 as also the English law discussing the
‘ born alive rule ’. The Court concluded that unborn child aged five months
onwards in mother’s womb till its birth is treated as child in existence and that
unborn child is a ‘ person ’ who can be subject of damages for death, as foetus
is another life in a woman, and loss of foetus is a loss of child. Thereby,
claimants were held entitled to loss of foetus and Court granted Rs. 2,50,000/-
as compensation.
8.6. Similarly, in Raghav ( supra ), the Tribunal awarded compensation for
the death of a female constable who was eight months pregnant at the time of
the accident and the same was assailed by claimants as inadequate
compensation awarded towards loss of foetus at Rs. 2,50,000/- . This Court
considering that Prakash ( supra ) was a 2010 case and that claimant had lost
his entire family in the accident awarded compensation of Rs. 5,00,000/- , but
left it to be decided on the facts and circumstances of each case.
8.7. Furthermore, this issue has been dealt with by the Supreme Court in
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
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Shiv Kumar v. Gainda Lal , (2022) 14 SCC 342 where in an appeal was
preferred for enhancement of the compensation, granted by High Court of
Punjab and Haryana. One of the grounds for enhancement of the
compensation was the loss of foetus. The case related to the death of the wife
of the claimant, who died in a motor accident. In this matter, the Supreme
Court held that the claimants are entitled to receive enhanced compensation
under the head of loss of foetus , and accordingly enhanced the compensation
to Rs. 1,00,000/- for the same.
8.8. In the aforementioned cases, no finding has been returned that a
separate claim ought to have been filed for loss of foetus as has been claimed
by counsel for respondent/ Insurance Company.
8.9. In English law, the born alive rule is followed. Reliance may be
placed on the judgment of Paton v British Pregnancy Advisory Service
Trustees [1979] QB 276 which states that foetus cannot have a right of its
own until it is born and has no separate existence from its mother. To acquire
legal personality a child must not just be born but also born alive; stillbirth
does not grant any legal personality. Therefore, Queen’s Bench in Burton v
Islington Health Authority [1993] QB 204 noted that a stillborn child cannot
bring an action or have another person bring an action on their behalf in tort.
This English Law has been subject to criticism as it is based on out-dated
evidential presumption due to advent of advance diagnostic tools to determine
that the child is alive in the womb.
8.10. However, this is not to say that the mother cannot claim compensation
for personal injury on account of emotional distress caused due to the death of
her unborn child. Reliance is placed on Giardina v. Bennet 111 N.J. 412, 545
A.2d 13, passed by the Supreme Court of New Jersey in a case of a baby who
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
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was stillborn, resulting from negligence of the obstetrician. One of the
questions that was considered by the Court, was the claim of compensation to
the parents under tort of negligence causing death of foetus. A claim was filed
under the Wrongful Death Act by the parents of the stillborn child as a result
of tortious conduct. The Court, traversed the common law principle regarding
the compensation for death of a foetus, and noted that the abovesaid Act did
not contemplate the foetus as a “ person ” but “ merely a part of his mother
without separate existence or personality ”. However, the Court went further
and upheld the entitlement of parents to be eligible for compensation on
account of the stillborn foetus, as it is a tort against parents, entailing direct
infliction of emotional distress, and mental suffering. The relevant findings
are reproduced herein below:
“We are satisfied that our common law has evolved to a
point that would recognize a valid cause of action for
the emotional injuries suffered by parents in this kind of
a case. Parents under such facts would be entitled to
claim compensatory damages based on their emotional
distress and mental anguish, proximately caused by the
negligent conduct of their doctor that results in the
stillbirth of their baby.”
(emphasis added)
8.11. 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
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15
having children in the future, in this circumstance the injured claimant will
also have a claim for personal injury for grant of compensation.
8.12. However, having regard to the peculiar facts and circumstances of the
present case, as well as the decision of this Court in Raghav Singh v. Dinesh
Kumar & Ors. 2023:DHC:5590, wherein compensation of Rs.5,00,000/- was
awarded for the loss of a foetus in a fatal accident case, this Court is not
inclined to defer the matter solely on the ground that a separate claim ought to
have been filed.
8.13. The issue is already before this Court and same is being decided by this
Court keeping in mind beneficial object of Motor Vehicles Act. Since
compensation of Rs.5,00,000/- was awarded in the year 2018 for an accident
which occurred in 2013, a sum of Rs.7,50,000/- is considered appropriate
towards compensation for the loss of the foetus.
8.14. The aforesaid determination regarding compensation for the loss of the
foetus is rendered in the peculiar facts and circumstances of the present case.
The submission of Mr. Brijesh Bagga, counsel for Insurance Company, that
the present determination should not be treated as a precedent for deciding
similar issues in future, is accepted.
9. On the issue of raise by Mr. Bagga , counsel for the Insurance
Company, of continued income even after the accident, the same will have to
be addressed.
10. The MACT has given loss of the future income on the basis of the
annual income, calculated on basis of ITR, at the time of the accident and
taken the multiplier of 14 on the presumption that the loss of income will be
calculated from the date of the accident.
11. In response to the Court’s query, counsel for appellant, submits that
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15
appellant was retained in her job, however, there is a need to accommodate
loss of promotional opportunities as a consequence of disability suffered and
loss of income suffered post-retirement.
12. This Court in Govind Singh Mauni v Tej Bhan & Ors. 2026:
DHC:102 considered post-retirement loss of potentiality incurred and applied
multiplier of 9 to account for post-retirement loss of potentiality to earn.
Further, considering that there would be loss of promotional opportunities
future prospects at 30% should be granted as the injured was 41 years of age
at the time of the accident. Essentially, the Court factors in that appellant
continues to be paid her salary with increments but would suffer loss of
potentiality of income post-retirement.
13. Accordingly, the benchmark income will be taken as Rs.5,39,488/- per
annum and future prospects at 30% with a multiplier of 9, which would basis
the retirement age of 60, factoring in the functional disability at 60%.
14. The revised compensation is as under:
S.no Heads of
Compensation
Awarded by
tribunal
Awarded by the
Court
Pecuniary Loss
1. Medicine and
Treatment (A)
Rs. 98,658/- Rs. 98,658/-
2. Expenditure on
special diet (B)
Rs.1,00,000/- Rs.1,00,000/-
3. Expenditure of
conveyance (C)
Rs. 1,47,800/- Rs. 1,47,800/-
4. Attendant Charges
(D)
Rs. 12,48,000/- Rs. 23,34,528/-
5. Annual Income of
injured (E)
Rs. 5,39,488/- Rs. 5,39,488/-
6. Future prospects @
30% (F)
Rs. 1,34,872/- Rs. 1,61,846/-
7. Loss of income (G) Rs.3,53,279/- Rs.3,53,279/-
8. Functional
disability (H)
10% 60%
9. Multiplier (I) 14 9
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15
10. Loss of future
income
[(E+F) x H x I]= J
Rs. 9,44,104/- Rs. 37,87,204/-
Non-pecuniary loss
11. Pain and suffering
(K)
Rs. 5,00,000/- Rs. 5,00,000/-
12. Loss of Amenities
of Life (L)
Rs. 2,00,000/- Rs. 2,00,000/-
13. Loss of foetus (M) Rs. 5,00,000/- Rs. 7,50,000/-
14. Total Rs.40,91,841/- Rs. 82,71,469/-
15. Enhanced
Compensation
Rs. 41,79,628/-
16. Interest 7.5% 7.5%
Conclusion
15. Accordingly, the compensation is enhanced by Rs. 41,79,628/-.
16. Enhanced amount along with 7.5% interest per annum from the date of
filing the petition shall be deposited before MACT within a period of four
weeks. It is directed that a lump sum amount of Rs. 3,00,000/- shall be
released to the claimant from the deposit of enhanced amount within a period
of two weeks thereafter. Remaining enhanced amount, along with accrued
interest, shall be kept in Fixed Deposit Receipts ( FDRs ) of Rs. 25,000/- each
for periods of 3 month, 6 months, 9 months and so on, in succession as maybe
calculated. Interest accruing on said FDRs shall be credited to the designated
Savings Bank Account of claimant. The amount of FDRs on maturity would
be released to the Savings Bank Account of claimant upon due verification.
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17. By order dated 09 January 2026, it was noted that out of compensation
of Rs. 40,91,841/- awarded along with interest @ 7.5% per annum was
directed to deposited by Insurance Company. Out of the total award amount, a
sum of Rs. 30 lakhs , along with proportionate interest was directed to be kept
in monthly FDR of Rs. 20,000/- each. Remaining amount, along with
proportionate interest, has been directed to be released in her bank account.
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MAC.APP. 15/2026 Page- 10/11
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15
Therefore, Rs. 10 Lakhs along with proportionate interest, has already been
directed to be released in a bank account. Further, directions were passed for
release of additional Rs.10 Lakhs, along with proportionate interest out of the
amount deposited, on account of medical issues. The remaining amount shall
continue to be deposited in FDRs of Rs. 20,000/- each, as already directed by
MACT.
18. Accordingly, in view of the scheme set out by the MACT in the
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impugned award and the order of this Court dated 09 January 2026, the
original compensation deposited shall continue to be disbursed as per the
scheme set out by the MACT in the impugned award.
19. Accordingly, the appeal is disposed of.
20. Pending applications, if any, are rendered infructuous.
21. Judgment be uploaded on the website of this Court.
(ANISH DAYAL)
JUDGE
JULY 13, 2026/mk/ zb
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MAC.APP. 15/2026 Page- 11/11
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:23.07.2026
10:23:15