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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 2 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.

Karnataka High Court, in Bangalore (India).

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 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 

 2

 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

 3

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 

 4

 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

 5

 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 

 6

 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 

 7

 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

 8

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.

 9

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 1

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