The Punjab and Haryana High Court has held that parents can claim compensation under the Motor Vehicles Act, 1988 for the death of an unborn child in a road accident, and that a 28-week foetus has to be treated as a child for this purpose.

Justice Parmod Goyal set aside a 2000 award of the Motor Accident Claims Tribunal, Panchkula, which had dismissed the parents' claim as not maintainable. Following the Kerala High Court Full Bench, the Court held:

“In the present case, the foetus was 28 weeks old and has to be treated as a child.”

The Court added that the Tribunal “has erred in not granting compensation on account of death of unborn child due to injuries suffered by the mother.”

On the night of June 8, 1997, the couple were returning home from PGI on their motorcycle. Near the Bitta Petrol Pump on the Chandigarh-Panchkula road, the road was blocked, so the husband moved the motorcycle onto the kacha (unpaved) portion. The wife got off and walked ahead to check whether there was room to pass.

After she had gone only seven or eight steps, a scooter came from behind and hit her, dragging her eight to ten feet. She was struck against a cement pipe lying on the road and got stuck between the scooter and the pipe. She was 28 weeks pregnant and suffered multiple injuries, including fractures. The unborn child died from the injuries.

In its award of May 10, 2000, the Tribunal found that the accident was caused by the scooter driver's rash and negligent driving. Even so, it dismissed the claim, relying on the Himachal Pradesh High Court's decision in Rakesh Kumar v. Prem Lal (1996 ACJ 980). That decision held that a claim for the loss of a foetus or unborn child is not maintainable.

The parents appealed in 2001, their counsel argued that the Act does not limit the kinds of loss that can be compensated, and that “loss of foetus/unborn child is a grave loss to the parents of such child”.

Foetus Is A 'Child'

The Court relied on the Full Bench decision of the Kerala High Court in Abhulasees P.P. v. Abdumanaf (2017). That decision drew on the Delhi High Court's ruling in Prakash v. Arun Kumar Saini (2010), which surveyed the several ways in which Indian law recognises the rights of a child in the womb. The Explanation to Section 6 of the Limitation Act, 1963, Section 20 of the Hindu Succession Act, 1956, the provisions of the Transfer of Property Act on interests created for unborn persons and Sections 313 to 316 of the IPC.

The Kerala Full Bench had held, “The reference is answered to the effect that, in all cases where the pregnancy has advanced beyond 'six months' and if any miscarriage occurs because of a road traffic accident, it is open to claim compensation in respect of the 'loss of baby', treating the 'foetus' as a viable 'child', apart from the compensation payable under other appropriate heads.”

The High Court also noted that the Himachal Pradesh decision relied on by the Tribunal “was specifically dealt with” by the Kerala Full Bench.

The parents argued that the notional income of the deceased should be taken as the minimum wage of an unskilled worker, since that is the least the child would have earned as an adult.

The Court relied on the Supreme Court's decision in Devendra Kumar Tripathi v. Oriental Insurance Co. (2026). That decision held that, for a child, notional income may be taken under the Minimum Wages Act, with 40% added for future prospects and one-half deducted for personal expenses. The Court also applied its own decision in Birbal v. Bhalla (February 2026), which laid down age-wise multipliers for children.

Holding that “since deceased was unborn child, multiplier of '9' would be appropriate for the purposes of determining loss of earning capacity,” the Court took the 1997 minimum wage for an unskilled worker, Rs. 1,548 a month, as the notional income. It computed the compensation as follows:

It took Notional income Rs. 1,548 per month,  future prospects (40%) Rs. 2,167 per month, Less personal expenses (50%) Rs. 1,084 per month, Loss of dependency (Rs. 1,084 × 12 × 9) Rs. 1,17,072, Loss of estate Rs. 15,000, Funeral expenses Rs. 15,000, Filial consortium (Rs. 40,000 to each parent) Rs. 80,000. Hence, calculated total Rs. 2,27,072.

The amount carries interest at 7.5% from the date the claim petition was filed. For the conventional heads (loss of estate, funeral expenses and filial consortium), interest runs from August 2017. Apportionment and liability are to follow the original award.

In the light of the above the appeal was allowed.

Mr. A. S. Virk, Advocate for the appellants.

Mr. Raj Kumar, Advocate for respondent No.3