THE ORIENTAL INSURANCE COMPANY LIMITED THODUPUZHA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI Vs. SALEENA, W/O. MAJEED @ ABDUL MAJEED, MAHAROOF MANZIL, KODUVALLY, KOZHIKODE TALUK

JUDGEMENT

(1.) This appeal is preferred against the award dated 30.11.2011 in O.P.(M.V.) No. 494/2008 on the file of the Ist Additional Motor Accidents Claims Tribunal, Kozhikode. The Tribunal allowed the claim. The appellant is the Oriental Insurance Company Limited, who was the third respondent in the claim petition. Aggrieved by the above referred award, the Insurance Company came up with this appeal.

(2.) The facts relevant for consideration of this appeal is as follows:

(3.) When the appeal came up for hearing, the main contention of the learned counsel for the Insurance Company is that the claimant may be pregnant at that point of time. But there is nothing before the court to show that the alleged abortion was the direct impact of the alleged accident. It is the further submission of the learned counsel that even though the accident occurred on 10.9.2006, she was seen treated only on 16th of the said month and thereafter admitted in the hospital only on 18.9.2006. Under such circumstances, the petitioner failed to prove that the abortion, if any, was the direct result/impact of the accident. It is also brought to our notice that a sum of Rs. 1 lakh was awarded towards compensation for loss of unborn child. It is also the submission of the learned counsel that admittedly the foetus was aged only 50 days. If that is so, the foetus can by no stretch of imagination, be treated as an unborn child and no amount should have been awarded on the head of compensation towards loss of unborn child. It is also the submission that by going through the award, it can be seen that various decisions are referred by the Tribunal wherein it is categorically stated that only after 20 weeks (five months) a foetus can be considered as a child or can be considered for compensation purposes. The learned counsel appearing for the Insurance Company also specifically stated before us that in the written statement in paragraph 10 it is categorically stated that: the petitioner has to establish that the alleged abortion happened due to the accident. The wound certificate is not produced by the petitioner. Under such circumstances, the Tribunal erred in awarding the said amount.