Separate Compensation Payable For Stillborn Child Of Pregnant Woman Who Died In Railway Accident: Gujarat High Court

The Gujarat High Court has held that a 9-month foetus is treated as a child and thus parent of a still-born child can claim accident compensation under the Railways Act, clarifying that the death of a child in womb would be "treated as independent accident apart from death of mother". In doing so the court granted compensation to the father– who lost his pregnant wife who died after falling from a running train–for the loss of the child as well due to the accident. Justice JC Doshi in his order referred to various judgments and observed:"Above being exposition of law, the question raised hereinbefore remain no more res-integra. Since the foetus is treated as child, death of child would be treated as independent accident apart from death of mother. Stillborn child for all purpose is person and entitled to claim compensation under Railways Act. Further, child can plead cause of action through parents. Liberal interpretation of law provides that still-born child being victim of accident is entitled to claim compensation. Therefore, according to this Court, impugned order passed by learned Tribunal suffers from patent illegality and unjustified. In the case on hand deceased Usha Devi at the time of untoward incident, was carrying 9 month pregnancy. Foetus of nine month for all the purpose is a child in existence. Pragmatic and liberal interpretation of definition of bona fide passenger shall also include stillborn child". On 15.04.2018, the applicant – Jayprakash Ghasitelal was travelling along with his wife who was 9 months pregnant. The claimant pleaded that there was heavy rush in the train and therefore, there was no alternative left for the applicant except to stand near entrance door of compartment. It is further pleaded that when train started, due to heavy jerk and jolt, his wife fell from running train and died while being shifted to hospital. Along with her, the child also died. He thus claimed compensation of Rs.8 Lakhs along with interest for stillborn child, which was denied by the Railway Tribunal. The court was thus considering whether stillborn child can be treated as person who died in accident and whether parent of stillborn child can claim compensation for mishap in railway accident. The court said, "Doctrine of Nasciturus applies to core issue in the matter. The maxim Nasciturus pro iam nato habetur, quotiens de commodis eius agitur means an unknown child is deemed to be born for its own benefit. Afore-noted doctrine comes from classical roman jurisprudence where jurist recognize limited right of unborn child. It was later adopted by English common law and thereafter, by Indian Law. It has been successfully applied to law of tort, where prenatal injuries or death of foetus has been sought and compensation was granted. Another maxim which can be pressed into service is 'En Ventre Sa Mere' which means 'in the mother's womb'. It is french phrase and widely used". The court referred to Salmond on Jurisprudence which states that, "A child in its mother's womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur...".The court also referred to foreign judgments including Re: Watt v. Rama [1972] wherein Supreme Court of Victoria (full court) has held that the foetus is a person and once born is entitled for the compensation. It further referred to In re: Amadio v. Levin (1985) Supreme Court of Pennsylvania has held that it makes no difference in liability under wrongful death and survival status where the child dies prior to or after death. The court also referred to Supreme Court's decision in S. Said-ud-Din v. Commissioner Bhopal Gas Victims (1997) where it awarded compensation to a child, who was adversely affected due to the gas leakage, which was inhaled by her mother when the child was in the womb.The court quashed the Tribunal's order and awarded compensation of Rs.8 Lakhs with 9% interest per annum to the father, from the date of accident i.e. 15.04.2018 till realization for stillborn child. The appeal was allowed. Case title: JAYPRAKASH GHASITELAL v/s UNION OF INDIA THROUGH GENERAL MANAGERR/FIRST APPEAL NO. 159 of 2022Click Here To Read/Download Order

Separate Compensation Payable For Stillborn Child Of Pregnant Woman Who Died In Railway Accident: Gujarat High Court

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