Court holds unborn child in mother’s womb beyond five months can be treated as a “person” and a separate compensable loss under the Railways Act.
The Allahabad High Court has set aside a Railway Claims Tribunal order and awarded Rs 8 lakh compensation for the death of a seven-month foetus that perished along with its mother in a railway accident.
Justice Prashant Kumar held that an unborn child aged more than five months in the mother’s womb can be treated as a child in existence for the purpose of compensation. The Court said the loss of a foetus is not merely part of the mother’s injury, but an independent loss of life deserving separate compensation.
The case arose from a 13 June 2017 incident in which Smt. Savitri Devi, who was travelling by Jan Sadharan Express with a valid second-class ticket, accidentally fell while de-boarding at Biswan Railway Station and died of her injuries. The post-mortem report showed that she was carrying a female foetus of about seven months, which also died in the incident.
Her family had approached the Railway Claims Tribunal, but the Tribunal rejected the claim for the foetus on the ground that an unborn child was not a bona fide passenger and was not specifically covered under the Railways Act, 1989. Challenging that order, the appellants argued that the foetus should be treated as a child and compensation should be paid separately.
The High Court accepted this submission. Referring to legal principles and several Indian and foreign judgments, the Court observed that a foetus is “another life in the pregnant woman” and that once pregnancy has crossed five months, the unborn child can be treated as a person in law for the purpose of damages. The Court relied on earlier decisions from the Karnataka, Madhya Pradesh, Andhra Pradesh, Kerala and Madras High Courts, all of which recognized compensation claims for stillborn or unborn children in accident cases.
The Court also held that although the word “foetus” is not expressly mentioned in the Railways Act, the death of the unborn child clearly fell within the ambit of Section 124A, since it occurred due to an untoward incident arising out of a railway accident. It further noted that under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, as amended in 2016 and effective from 1 January 2017, the compensation payable in case of death is Rs 8 lakh.
Accordingly, the Court ruled that the foetus must be treated independently as a child and that the claimants were entitled to separate compensation of Rs 8 lakh for its death, in addition to any compensation payable for the deceased mother. The Tribunal’s order was set aside and the appeal was allowed.
Bottom Line :
Railways Act, 1989 - Compensation - Death of 7 months unborn child in railway untoward incident - Unborn child aged more than five months in mother's womb can be treated as a child in existence and a person for purposes of claim for damages - Claimants held entitled to separate compensation of Rs. 8,00,000/- for loss of foetus under Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.
Statutory provision(s): Railways Act, 1989 Sections 123(c)(2), 124A, 125, Railway Accidents and Untoward Incidents (Compensation) Rules, 1990
Ashok Kumar v. Union of India, (Allahabad)(Lucknow) : Law Finder Doc id # 2987070
