NATIONAL INSURANCE COMPANY LTD.versusKUSUMA AND ANR.

                       [2011] 10 S.C.R. 546


A            NATIONAL INSURANCE COMPANY LTD.
                                  v.
                         KUSUMA AND ANR.
                  (Civil Appeal No. 7212 of 2011)
                         AUGUST 23, 2011
B
                [D.K. JAIN AND R.M. LODHA, JJ.]

          Motor Vehicles Act, 1988 - ss. 166 and 168 -
    Assessment of quantum of compensation - Meaning of the
C   word "jusf' as appearing in s. 168 - Loss of foetus on account
    of injury sustained by the claimant-mother in an accident -
    Claim petition - Tribunal held that loss of foetus was akin to
    death of a child of tender age and awarded compensation of
    Rs. 50, 0001- towards loss of unborn child and a further sum of
D   Rs.10,0001- towards pain and sufferings to the claimant- High
    Court enhanced compensation to a consolidated amount of
    Rs. 1, 80, 0001- - On appeal, held: s. 168 casts an obligation
    on the Claims Tribunal to determine the amount of
    compensation "which appears to it to be jusf' - Word "jusf'
E   connotes something which is equitable, fair and reasonable,
    conforming to rectitude and justice and not arbitrary -
    Determination of "just" amount of compensation is beset with
    difficulties, more so when the deceased happens to be an
    infant/child - Though assessment of compensation in a case
F   where the deceased is an infant involves a good deal of
    guesswork but it cannot be a wild guesswork - Some material
    has to be adduced by the claimants to prove that they
    entertained a reasonable expectation of pecuniary advantage
    from the deceased - In the instant case, neither the Tribunal
    nor the High Court applied any principle for determination of
G   the amount of compens<Jtion on account of the death of a still
    born child - Besides, in the judgment of the High Court, there
    was no discussion on the question of non-pecuniary
    compensation awarded by the Tribunal to the claimant-mother

H                                546
     NATIONAL INSURANCE COMPANY LTD. v.                      547
              KUSUMA AND ANR.
on account of pain and suffering as a result of death of the        A
child - In the normal course, the matter would have been
remanded back to the Tribunal for fresh consideration -
 However, on facts, it would be too harsh to direct the claimants
 to undergo the entire gamut of a fresh exercise under s. 168
- Therefore, in the facts and circumstances of the case,            B
judgment of High Court not interfered with.

     The car in which respondent No.1 was travelling
collided with a Bus owned by respondent No.2.
Respondent no.1, who was 30 weeks pregnant, suffered                C
a fatal blow on the stomach as a result of which, The
following day she delivered a still born baby.
Respondent no.1 filed claim petition under Section 166
of the Motor Vehicles Act, 1988 (for Short 'the Act') before
the Motor Accident Claims Tribunal. The Tribunal held that
loss of foetus on account of injury sustained by the                D
claimant in the accident was akin to the death of a child
of tender age and awarded compensation of Rs.50,000/-
towards the loss of unborn child and a further sum of
Rs.10,0001- towards pain and sufferings to the claimant,
along with an interest @ 6% p.a. from the date of                   E
institution of the claim petition till the date of deposit/
payment. The appellant-Insurance Company was
directed to pay the said compensation to the claimant-
respondent no.1, in order to indemnify the owner of the
car. Dissatisfied with the quantum of compensation                  F
awarded by the Tribunal, respondent no.1 filed an appeal
before the High Court, seeking enhancement of the
aforesaid compensation. The High Court enhanced the
compensation to a consolidated amount of Rs.1,80,000/-
with interest @ 6% per annum from the date of the                   G
petition till the date of payment.
    In the instant appeal filed by the insurance company,
the question which arose for consideration was whether
the quantum of compensation determined by the High
                                                                    H
Court warranted interference by this Court.
    548     SUPREME COURT REPORTS              [2011] 10 S.C.R.


A         Dismissing the appeal, the Court
       HELD: 1.1. On receipt of an application for
  compensation made under Section 166 of the Motor
  Vehicles Act, 1988, Section 168 of the Act casts an
  obligation on the Motor Accident Claims Tribunal to
8
  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". [Para 1O] [553-D-E]
c
            1.2. 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
0     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
E 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
F 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
G benefit which may be derived by his parents during the
      life time of the child. But at the same time that canno~ be
     a ground to reject the claim of the parents, albeit if they
     establish that they had reasonable expectation of
     pecuniary benefit if the child had lived. The question
H whether there exists a reasonable expectation of
     NATIONAL INSURANCE COMPANY LTD. v.                 549
              KUSUMA AND ANR.
pecuniary benefit is always a mixed question of fact and       A
law but a mere speculative possibility of benefit is not
sufficient. [Para 11) [556-A-F]
    Helen C. Rebello & Ors. v. Maharashtra State Road
Transport Corporation & Anr. (1999) 1 SCC 90: 1998 (1)         B
Suppl. SCR 684 - relie_d on.
    2. It is quite true that the question of assessment of
compensation in a case where the deceased is an infant
involves a good deal of guesswork but it cannot be a wild
guesswork. Some material has to be adduced by the C
claimants to prove that they entertained a reasonable
expectation of pecuniary advantage from the deceased.
[Para 13) [555-F]
       New India Assurance Company Ltd. v. Satender & Ors.     D
 (2006) 13 SCC 60: 2006 (8) Suppl. SCR 745; Lata Wadhwa
. & Ors. v. State of Bihar & Ors. (2001) 8 SCC 197: 2001 (1)
 Suppl. SCR 578 and M. S. Grewal & Anr. v. Deep Chand
  Sood & Ors. (2001) 8 SCC 151: 2001 (2) Suppl. SCR 156 -
  referred to.
                                                               E
    3. In the instant case, 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. No reasons were indicated by the Tribunal
while awarding a lump sum amount of Rs.50,000/- F
towards the loss of unborn child and Rs.10,000/- towards
pain and suffering to the mother and by the High Court
while enhancing the said amounts to a consolidated
amount of Rs.1,80,000/-. Besides, in the impugned
judgment of the High Court, there was no discussion on G
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, this Court would have remanded the
matter back to the Tribunal for fresh consideration: . H
     550     SUPREME COURT REPORTS               [2011] 10 S.C.R.


 A 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, it is clear that at this
   juncture it would be too harsh to direct the claimants to
   undergo the entire gamut of a fresh exercise under
 s Section 168 of the Act. Therefore, in the facts and
   circumstances of the case, this Court refrains from
   interfering with the impugned judgment. [Para 14] [556-
   B-F]

                           Case Law Reference:
 c
           2006 (8) Suppl. SCR 745 referred to        Paras 6, 11
           1998 (1) Suppl. SCR 684 relied on          Para 10
           2001 (1) Suppl.SCR 578 referred to         Para 13
 D         2001 (2) Suppl.SCR 156 referred to         Para 13
         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
     7212 of 2011.

 E       From the Judgment & Order dated 17.01.2008 of the High
     Court of Karnataka at Bangalore in MFA No. 2227 of 2006.
                                                                 ·'
         Gaurav Aggarwal (for Law Associates & Co.) for the
     Appellant.

 F         U.U. Lalit, K. Sarada Devi for the Respondents.

           The Judgment of the Court was delivered by

           D.K. JAIN, J.: 1. Leave granted.

 G        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
_, H- compensation awarded to her by the Motor Accident Claims
      NATIONAL INSURANCE COMPANY LTD . .v.                    551
          KUSUMA AND ANR. [D.K. JAIN, J.]

Tribunal (for short "the Tribunal") constituted under the Motor      A
Vehicles Act, 1988 (for short "the Act") to Rs.1,80,000/- along
with interest @ 6% per annum.

    3. To appreciate the controversy, the factual matrix in a
nutshell is as under :
                                                                     B
      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            C
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    o
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 Rs. 2,00,000/- with cost and
interest at 12%, towards the expenses incurred on medical
treatment, mental shock, pain and loss of child.                     E

      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               F
Rs.25,000/- towards the loss of affection and Rs. 25,000/-
towards the loss of estate on the death of a child of less than 1
year of age in an accident, the Tribunal allowed the claim in part
and awarded a compensation of an amount of Rs.50,000/-
towards the loss of unborn child and a further sum 6f Rs.10,000/     G
- towards pain and sufferings to the claimant/ ~long with an
interest@ 6% per annum from 18th November 1995 i.e. the
date of institution of the claim petition till the date of deposiV
payment. The Insurance Company, the apperlant in this appeal,
was directed to pay the said compensation to the claimant. in        H
     552     SUPREME COURT REPORTS                 [2011] 10 S.C.R.


 A 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
 B 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
 C 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.
 D
         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
  E 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,
- F 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
  G 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-
    lilsurance Company is now estopped from contending that an
    unborn child cannot be considered to be a child for the purpose
 H 1. (2006) 13 sec 60.
       NATIONAL INSURANCE COMPANY LTD. v.                        553
           KUSUMA AND ANR. [D.K. JAIN, J.]
of claiming compensation under Section 166 of the Act. It is            A
manifest from the impugned judgment that the question for
consideration before the High Court in clalmant's appeal was
with regard to the quantum of compensation and not the
entitlement of claim for grievous injury to a 30 weeks old child
in utero resulting in the birth of a still born child.                  8
      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 Rs. 1,80,000/-, for the loss of still born child, treating
it as a child, and towards pain and sufferings to the respondent-       C
claimant awarded by the Tribunal at Rs. 50,000/- and
Rs.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           D
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"    E
as appearing in Section 11 OB 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,     F
      fairness and reasonableness having a large peripheral
      field. The largeness is, of course, not 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    G
      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."

2.   (1999) 1 sec 90.                                                   H
    554     SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A         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
8   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,
C   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
D   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 child. But at the same time that cannot be a
    ground to reject the claim of the parents, albeit they establish
E   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
F   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
G
          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.
H
       NATIONAL INSURANCE COMPANY LTD. v.                     555
           KUSUMA AND ANR. [D.K. JAIN, J.]
      The future of a child is uncertain. Where the deceased was     A
      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         B
      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 C
      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
      regard to their academic pursuits, achievements in career. D
      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 E
      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
                                                                     F
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        G
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
3.   c2001) a sec 197.                                               H
    556      SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A   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.
B
        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
C 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
D amount of' 1,80,000/-. Besides, in the impugned judgment, we
  do not fin~ 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
E 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
F 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.

G       15. Before concluding, we place on record our
    appreciation for the valuable assistance rendered by Mr. Uday
    U. Lalit, the learned Amicus Curiae.

    B.B.B.                                       Appeal dismissed.

H 4. c2001) a sec 1s1.