Lucknow: The Allahabad High Court, Lucknow Bench, has set aside a Railway Claims Tribunal order and awarded ₹8,00,000 compensation for the death of a seven-month-old foetus, holding that an unborn child aged five months onwards in the mother's womb “can be treated as equal to a child in existence.”
Justice Prashant Kumar, was examining a challenge to the Railway Claims Tribunal, Lucknow's order dismissing compensation for a unborn child, who died after accidentally falling from a train at Biswan Railway Station while carrying a female foetus of about seven months, which also perished.
The Tribunal had held that the foetus was not a “bona fide passenger” under Section 123(c)(2) read with Section 124-A of the Railways Act, 1989, and had accordingly declined any compensation for its death.
Surveying case law from the Karnataka, Madhya Pradesh, Andhra Pradesh, Kerala and Madras High Courts, the Court noted that a still-born child conceived beyond a certain gestational stage has consistently been treated as a child for compensation purposes, since “the foetus is another life in the woman and it comes as a baby in the course of time.”
The Court held that while the physical form of life develops gradually, “there cannot be any controversy as regards the life of an unborn child after seven months of pregnancy,” given that premature babies born at that stage routinely survive.
Relying on Salmond's principle that a child in the womb is, by legal fiction, “already born” for many purposes, and on comparative authority recognising the foetus as a person, the Court concluded that “the unborn child to whom the live birth never comes is held to be a 'person' who can be the subject of an action for damages for his death.”
Rejecting the Union of India's contention that Section 125 of the Railways Act did not contemplate a claim on behalf of an unborn child, the Court held that although the word “foetus” does not appear in the statute, the death fell within the ambit of Section 124-A as an untoward incident arising out of a railway accident.
Applying the schedule under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, as amended in 2016, the Court held that the foetus's death was to be treated “as an independent accident apart from the death of the mother,” and awarded the claimants an additional ₹8,00,000 for the loss of the unborn child, setting aside the Tribunal's order and allowing the appeal.
Appearances: Mr. Manish Kumar Srivastava, along with Mr. Chandra Prakash Singh and Ms. Saroj Kumari, Advocates, appeared for the appellants. Mr. Vijay Pratap Singh, Advocate, appeared for the respondent, Union of India.
Case Title: Ashok Kumar and Others vs. Union of India Thru. General Manager, North Eastern Railway, Gorakhpur
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