Railways Liable To Pay Compensation For Loss Of 'Unborn' Child Aged 5 Months Or More In An Accident: Allahabad High Court

A bench of Justice Prashant Kumar thus allowed an appeal against an order of the Railway Claims Tribunal in Lucknow by granting an additional compensation of Rs. 8,00,000/- to the claimant for the loss of a foetus.

It may be noted that the Tribunal had awarded compensation for the death of a pregnant woman but denied any relief for the death of her 8-9-month-old foetus.

The Court opined that though the word 'foetus' is not specifically mentioned under the Railways Act, 1989, however, since the death in the present case occurred as a result of an 'untoward incident' arising out of a railway accident, the Railways has a statutory liability under Section 124A [Compensation on account of untoward incidents] to pay compensation to the claimants in case of death.

Briefly put, on September 2, 2018, one Bhanmati was travelling by train Marudhar Express from Barabanki to Bandikul Railway Station. While boarding the train, she accidentally fell from the train and sustained injuries. later, she died during her treatment.

At the time of death, she was carrying a male foetus of about 8-9 months, which also expired along with her. Thereafter, the deceased's family members filed a claim petition before the Tribunal in March 2019.

The Tribunal concluded that the deceased was a bona fide passenger and the death had occurred by falling from the train while she was boarding the train and hence, the accident clearly fell within the ambit of untoward accident and hence, a compensation of Rs.8,00,000/- was awarded on February 2025.

The claimant challenged the tribunal's order before the HC on the ground that no compensation was granted for the death of the foetus.

The counsel for the claimant relied upon the decisions of the Karnataka High Court, Delhi High Court, and Madras High Court, wherein a view was taken by the HCs that the death of a foetus should be considered as equal to the death of the child for the purpose of computation of compensation.

Agreeing with these decisions of various HCs, the bench 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.

The Court further observed that since a human foetus to whom personhood could be attributed was destroyed in the accident in the instant case, it can be the subject of an action for damages for his death.

The bench thus held that the appellant-claimant was entitled to compensation for the loss of a foetus, independently treating the foetus as a child.

The Court added that under the Motor Vehicle Act, 1988, the compensation for a child is assessed separately as compared to the grown-up person and as per the schedule under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, in case of death, the amount of compensation for loss of an individual is Rs.8,00,000/-.

Hence, holding that since the foetus is treated as a child, the Bench said that the death of a foetus/child would be treated as an independent accident apart from the death of the mother and thus, the claimant would be entitled to get the additional compensation of Rs. 8,00,000 for the loss of the foetus.