P&H HC Treats 28-Week Foetus Lost In Crash As Child, Awards Parents ₹2.27 Lakh in Compensation

The appellants, the parents of a 28-week-old foetus, sought compensation under Section 166 of the Motor Vehicles Act, 1988 after the mother was injured in a scooter accident and the foetus died as a result.

The Tribunal found that the accident was caused by the scooter driver’s rash and negligent driving, but dismissed the claim on the ground that compensation for the loss of an unborn child was not maintainable.

The parents appealed.

Section 166 of the Motor Vehicles Act, 1988 permits compensation for loss resulting from a motor accident; the Act does not confine compensation to a specified category of loss.

Relying on the Kerala High Court Full Bench decision in Abhulasees, P.P. v. Abdumanaf, the Court applied the rule that where a pregnancy has advanced beyond six months and a miscarriage results from a road accident, the foetus may be treated as a viable child for a claim for compensation.

For quantification, the Court relied on Devendra Kumar Tripathi v. Oriental Insurance Co. Ltd. for minimum-wage-based notional income, 40% future prospects, 50% deduction for personal expenses, and conventional heads; it also applied the multiplier principles discussed in Sarla Verma v. Delhi Transport Corporation and Birbal v. Bhalla.

The Tribunal had already determined that the accident was caused by the driver’s rash and negligent driving. Because the foetus was 28 weeks old—beyond the six-month threshold adopted in Abhulasees—the Court held that the loss could be compensated as the death of a viable child, rejecting the Tribunal’s maintainability reasoning.

For quantification, it used the 1997 minimum wage for an unskilled worker of ₹1,548 per month, added 40% future prospects, deducted 50% for personal expenses, and applied a multiplier of 9. It then added amounts for loss of estate, funeral expenses, and filial consortium.

The Court awarded total compensation of ₹2,27,072, comprising ₹1,17,072 for loss of dependency and ₹1,10,000 under conventional heads.

Interest at 7.5% per annum was payable from the date of filing the claim petition until realization, except on the conventional heads, for which interest was payable from August 2017.

Apportionment and liability were to be as provided in the Tribunal’s award.