1. Heard Mr. Manish Kumar Srivastava, learned counsel for the appellants as well as Mr. Vijay Pratap Singh, learned counsel for the Union of India and perused the record.

2. The instant appeal has been preferred against the judgment and award dated 26.09.2023 passed by the Railway Claims Tribunal, Lucknow Bench (hereinafter referred to as the 'Tribunal') in Claim Application No.OA/II/U/LKO/202/2018.

3. Brief facts of the case are that on 13.06.2017, one Smt. Savitri Devi along with her two sons was travelling by train Jan Sadharan Express from Sitapur Cantt. to Biswan Railway Station and she was having a second class journey ticket. While de-boarding the train, she accidentally fell down from the train at Biswan Railway Station and sustained injuries and succumbed to the same. At the time of death, she was carrying a female foetus of about 7 months, that also expired along with her. Thereafter, family members of the deceased filed a claim petition before the Tribunal on 25.04.2018. The Tribunal, after hearing the parties and perusing the record came to the conclusion that the deceased unborn child (foetus) was not a bona fide passenger under Section 123(c)(2) read with Section 124-A of the Railway Act, 1989, and accordingly, the Tribunal dismissed the claim petition vide its judgment and award dated 26.09.2023.

4. This order has been assailed by the claimants on the ground that no compensation was granted for the death of the foetus.

Submissions of learned counsel for the parties

5. Mr. Manish Kumar Srivastava, learned counsel for the appellants submitted that the postmortem report of the deceased (mother of unborn child) clearly shows that she was carrying a foetus of about 7 months. Therefore, the Tribunal ought to have awarded the compensation not only towards the deceased but also towards the foetus.

6. He has placed reliance upon a judgement passed by the Karnataka High Court in the matter of Divisional Controller, B.T.S. Division, KSRTC, Bangalore v. Vidya Shindhe, reported in 2003 SCC OnLine Kar 447, wherein the accident resulted in grievous injuries to a pregnant woman. The surgery known as 'Foetal distress" was conducted and she gave birth to a child who died after two days of delivery. The claim for compensation on account of the death of the child was filed. The Tribunal awarded a compensation of Rs.1,50,000/- towards death of the child which was challenged before the Karnataka High Court on the ground that the claim was not maintainable, as the child was not born on the date of the accident. The Karnataka High Court held that as per the doctor's advice if the foetus had completed 37 weeks, for all practical purposes the still-born child has to be considered as a child and the claim petition filed by the mother on account of death of her two days old child who was born subsequent to the date of the accident was maintainable.

7. He has further placed reliance upon a judgment passed by the Karnataka High Court in the matter of Bhawaribai Vs. New India Assurance Co. Ltd., reported in 2006 ACJ 2085, wherein the claimant suffered abortion on account of the accident. The Court considered the death of foetus in womb is at par with death of a minor and also came to the finding that in case of abortion and death of foetus in the womb should be considered at par with the case of a death of a minor.

8. Mr. Manish Kumar Srivastava, learned counsel for the appellants further placed reliance upon a judgment passed by the Delhi High Court in the matter of Prakash & Ors. v. Arun Kumar Saini & Anr. (MAC. App. No.602 of 2009), wherein it has been held as under:

"17. ... The unborn child to whom the live birth never comes is held to be a 'person' who can be the subject of an action for damages for his death. The foetus is another life in woman and loss of foetus is actually a loss of child in the offing. The appellants are, therefore, entitled to compensation for the loss of foetus."(emphasis supplied