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Allahabad High Court awards additional Rs.8 lakh for unborn child's death in railway accident
Bench of Justice Prashant Kumar holds that a foetus of five months or more is a ‘ ’ entitled to independent compensation under the Act
In a significant ruling on compensation rights for unborn children, the has directed the to pay an additional ₹8 lakh for the death of a seven-month-old foetus that perished when its pregnant mother died after falling from a train. The judgment, delivered on , sets aside the Railway Claims Tribunal’s order that had refused separate compensation for the unborn child.
A Life Cut Short Before Birth
The case arose from a tragic accident on . Savitri Devi, a mother of two, was travelling with her sons on the Jan Sadharan Express from Sitapur Cantt to Biswan Railway Station. As she was deboarding, she accidentally fell from the train and sustained fatal injuries. At the time of her death, she was carrying a seven-month-old foetus, which also died.
Her family filed a claim petition before the , in . The Tribunal, however, dismissed the claim for compensation related to the foetus, holding that an unborn child could not be considered a “ ” under Section 123(c)(2) read with Section 124-A of the Act, 1989. Aggrieved, the family appealed to the High Court.
The Legal Battle for the Unborn
Before the High Court, counsel for the appellants, , argued that the post-mortem report clearly showed Savitri Devi was carrying a seven-month foetus, and therefore compensation ought to have been awarded for the loss of the unborn child as well. He relied on a series of High Court judgments that recognised the foetus as a separate life entitled to damages.
Counsel cited the ’s decision in Divisional Controller, B.T.S. Division, KSRTC, Bangalore v. Vidya Shindhe (2003), where compensation was awarded for the death of a child born two days after an accident, and Bhawaribai v. New India Assurance Co. Ltd. (2006), which held that abortion and death of a foetus should be treated at par with the death of a minor. He also placed reliance on judgments from the in , the in Branch Office, New India Assurance Co. Ltd. v. Krishnaveni (2009), and the in Oriental Insurance Co. Ltd. v. Santhilal Patal (2007), all of which held that a or foetus over five months could be treated as a child for compensation purposes.
Opposing the appeal, , counsel for the , argued that Section 125 of the Act only allows applications for compensation by the injured , their , or . Since an unborn child is not included in these categories, no compensation could be awarded. He relied on a judgment in Margappa Shethappa Vadar v. Proctor and Gamble India (2008) that had rejected a similar claim.
Court’s Reasoning: Foetus as a
Justice Prashant Kumar, after hearing both sides and examining the record, delved into the legal status of the unborn child. The judgment noted the biological stages of development, observing that a foetus becomes viable at around five months, when the mother can feel its movements. “There cannot be any controversy as regards the life of an unborn child after seven months of pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy and the child still survives,” the Court stated.
The Court referred to the legal maxim —a child in the womb is considered as already born for many legal purposes. It cited Salmond on Jurisprudence and various precedents from the UK, Australia, and the US, as well as the ’s judgment in S. Said-ud-Din v. Commissioner Bhopal Das Victims (1997), where compensation was awarded to a child affected by gas leakage while in the womb.
The Court then analysed decisions from multiple High Courts and concluded that “an unborn child aged five months onwards in the mother’s womb till its birth can be treated as equal to a child in existence.” It held that “the unborn child to whom the never comes can be held to be a ‘ ’ who can be the subject of an action for damages for his death.”
The Verdict: Separate Compensation for Unborn Child
Rejecting the Tribunal’s finding, the High Court held that the case fell within Section 124-A of the Act because the death occurred as a result of an arising out of a railway accident. The Court noted that the schedule under the , as amended in 2016 (effective ), prescribes ₹8 lakh compensation for death of an individual. Since the foetus was treated as a child, its death was an independent loss apart from the mother’s death, entitling the claimants to an additional ₹8 lakh.
The Court set aside the Tribunal’s order and directed that ₹8 lakh be awarded towards the death of the unborn child. The appeal was allowed, and records were ordered to be sent back to the Tribunal for compliance. The judgment reiterates the principle that the rights of a child in the womb are well protected under Indian law, and loss of a foetus is indeed loss of a child.
