Manjunath, J.:—
In this appeal, an interesting question has arisen for consideration of the Court. On 27.11.1998 at about 12-30 noon respondent - claimant Vidya Shindhe was proceeding with her father Vykuntharao as a pillion rider of scooter bearing No. KA-05-Y-3552 on Jayamahal road. A bus bearing No. CAF- 107 which was proceeding in the same direction in a rash and negligent manner dashed the scooter due to which Vidya Shindhe who was pregnant, sustained grievous injuries. Her father Vykuntharao died on the spot. Claimant Vidya Shindhe was shifted to St. Johns Medical College Hospital, Bangalore. On 1.12.1998 doctors conducted a surgery known as ‘Foetal distress’ and that the claimant - respondent gave birth to a male child. The child was kept in ICU and died two days after the delivery. Therefore, the claimant presented claim petition claiming compensation on account of the death of her child. Appellant - Corporation contended that the claimant is not entitled to claim compensation as the accident was not occurred due to rash and negligent driving of the driver of the bus. Tribunal, relying upon the evidence of the claimant as well as Dr. Shailesh attached to St. John's Medical College Hospital, Bangalore, awarded compensation of Rs. 1,50,000/- towards the death of a child. The said judgment and award is called in question before this Court.
2. Before this Court, following questions have been raised by the learned Counsel for the appellant;
(i) According to him, claim petition was not maintainable as the child had not been born on the date of the accident and that the claimant - respondent has already claimed compensation on account of the injuries sustained by her in the accident by filing a separate claim petition.
(ii) He also contends that the compensation awarded by the tribunal as on higher side.
3. Per contra, learned Counsel for the respondents contend that on the date of the accident child was in the womb of the mother and that the claimant-respondent gave birth to the child on 1.12.1998 The child died two days after its birth. If the claimant-respondent had not sustained injuries in the accident, child would not have died within two days from the date of birth. Therefore, he contends that the claimant was entitled to claim compensation separately on account of the death of her male child.
4. Having heard the learned Counsel for the parties, what is required to be considered by this Court in this appeal is whether a still born child in the womb can be said to be a person alive and whether the compensation can be claimed by the mother on account of the death of a child which has been born subsequent to the accident and whether the compensation awarded by the tribunal is required to be reduced.
5. It is not in dispute that the claimant was pregnant and the child was in the womb of the mother at the time of the accident. It is also not in dispute that the mother has sustained grievous injuries and on account of which she was hospitalized and she has also filed a separate claim petition claiming compensation on account of the personal injuries. It is also not in dispute that the tribunal has awarded compensation to the claimant - respondent in respect of the injuries sustained to her and the appellant - corporation has already satisfied the award. It is not in dispute that if the claimant had not suffered injuries, child in her womb would not have also been affected. According to PW-5 Dr. Shailesh, considering the nature of injuries sustained by the claimant - respondent, she had to undergo a surgery known as foetal distress and that the male baby was born on 1.12.1998 Considering the physical condition of the baby, baby was kept in ICU and child died two days after the delivery. From this it is clear that the child had received injuries in the accident while in the womb. In the normal circumstances, if the mother had a normal delivery there was no necessity for the doctors to keep the baby in ICU and that there was no necessity for the claimant - respondent to under go a surgery. As per the doctor's evidence, if the foetus has completed 37 weeks, for all purpose even the still born child has to be considered as child. In the instant case, in the accident the child has also received injuries which has compelled the mother to undergo a surgery. The baby died due to the injuries received by him in the accident while in the womb. Though there is no direct impact between the vehicle and the baby, since the baby had received injuries while in the womb, this Court has to hold that there is a nexus between the accident and the cause of death of the child. In the circumstances, this Court is of the opinion that the claim petition filed by the mother on account of the death of her two days baby who has born subsequent to the accident as maintainable.
6. Tribunal has awarded compensation of Rs. 1,50,000/-. According to the learned Counsel for the appellant, awarding of Rs. 1,50,000/- as compensation on account of the death of two days baby as on higher side. Per contra, learned Counsel for the respondents relying upon the judgment of this Court reported in Puttamma v. D.V Krishnappa . ILR 1999 KAR SN 69. contends that the compensation awarded by the tribunal is based on the judgment of this Court. When the tribunal has awarded compensation relying upon the judgment of this Court, this Court cannot hold that the tribunal has committed an error. Accordingly, I do not see any merit in this appeal.
7. In the circumstances, this appeal is rejected. Amount in deposit shall be transferred to the tribunal.