Loss of five-month-old foetus amounts to loss of child: Allahabad HC

The Lucknow bench of the Allahabad high court has held that the death of a sufficiently developed foetus of more than five months’ gestation in a railway accident amounts to the loss of a child and warrants separate compensation.

The court set aside a September 26, 2023 order of the Railway Claims Tribunal, Lucknow, and directed the railways to pay an additional ₹8 lakh for the death of a seven-month-old foetus carried by a woman who died after falling from a train.

Justice Prashant Kumar passed the order recently on an appeal filed by the family members of Savitri Devi, who died in the accident.

According to the case, the woman was travelling with her two sons on the Jan Sadharan Express from Sitapur Cantt to Biswan railway station in Uttar Pradesh on June 13, 2017. While getting down from the train at Biswan station, she fell and sustained serious injuries, resulting in her death. She was around seven months pregnant and the foetus also died.

Her family approached the Railway Claims Tribunal seeking compensation. The tribunal, however, declined to award separate compensation for the unborn child, holding that the foetus could not be treated as a bona fide passenger under the Railways Act.

The high court, however, disagreed with the tribunal’s view, observing that the death of a sufficiently developed foetus could be treated as the death of a child for determining compensation.

“Since the woman was carrying a seven-month-old foetus, the unborn child had to be treated separately,” the court observed, directing the railways to pay an additional ₹8 lakh to the claimants.

The court said the amount was in accordance with the compensation prescribed under the amended Schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, and allowed the appeal.

The court further said the fact that the Railways Act does not specifically mention the term “foetus” could not absolve the railways of its statutory liability under Section 124-A of the Act in cases involving death arising from a railway accident or untoward incident.