The Court started that the death of the 7-month-old foetus was an independent loss apart from the death of the mother and consequently directed the Railways to pay an additional ₹8 lakh under the applicable compensation rules.

A bench of Justice Prashant Kumar thus allowed the appeal against the judgment of the Railway Claims Tribunal, which had rejected the claim for compensation for the unborn child on the ground that the foetus could not be treated as a bona fide passenger under the Railways Act, 1989.

In March 2026, the same bench had categorically ruled that an unborn child aged five months or more in the mother's womb is treated as equal to a child in existence and the Railway would be liable to pay separate compensation for the accidental death of such an unborn child, distinct from the compensation awarded for the death of the mother.

More about the March 2026 order here: Railways Liable To Pay Compensation For Loss Of 'Unborn' Child Aged 5 Months Or More In An Accident: Allahabad High Court

Case in brief

The deceased (Savitri Devi) was travelling with her two sons in the Jan Sadharan Express from Sitapur Cantt. to Biswan Railway Station on June 13, 2017.

She was holding a second-class journey ticket. While deboarding the train at Biswan Railway Station, she accidentally fell and sustained injuries. She subsequently died.

At the time of the accident, she was carrying a foetus of about seven months, which also died in the accident.

Her family thereafter approached the Railway Claims Tribunal seeking compensation. The Tribunal, however, held that the unborn child was not a bona fide passenger within the meaning of Section 123(c)(2) read with Section 124-A of the Railways Act and rejected the claim relating to the foetus.

Challenging the Tribunal's order, the family of the woman moved the High Court.

High Court's observations

Taking a different view in the matter, the Court referred to the legal protection available to a child in the womb and observed thus:

"...the rights of the child in the mother's womb are well protected by laws of the land as the foetus is another life in the pregnant woman and loss of foetus is actually a loss of child".

The Court 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.

It further held that an unborn child to whom live birth never comes can be treated as a “person” who can be the subject of an action for damages for his death.

Consequently, the Court held that the appellants were entitled to compensation for the loss of the foetus independently, treating the foetus as a child.

The High Court noted that although the word 'foetus' is not specifically mentioned in the Railways Act, 1989, the case fell within Section 124-A because the death occurred as a result of an untoward incident arising out of a railway accident.

The Court therefore held that the statutory liability of the Railways to pay compensation was attracted.

The Court also referred to the Schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, as substituted and amended in 2016, which came into force from January 1, 2017.

The Schedule prescribed compensation of ₹8 lakh for the death of an individual.

Since the Court treated the foetus as a child, it held that the death of the foetus was to be treated as an independent accident apart from the death of the mother which entitled the claimants to an additional ₹8 lakh.

The High Court accordingly set aside the Railway Claims Tribunal's order and directed that ₹8 lakh be awarded towards the death of the unborn child (foetus) caused during the railway accident, in accordance with the applicable compensation rules.

The appeal was accordingly allowed and the records were directed to be sent back to the Tribunal for compliance.