Lucknow: In a landmark judgement, the Lucknow bench of the Allahabad High Court directed the Railway Claims Tribunal to clear payment of an additional compensation of Rs 8 lakh for the loss of an eight-nine-month-old foetus who died along with the mother, when the latter was trying to board a train in 2018.
The tribunal had, in February last year, ordered the railways to pay Rs 8 lakh for the death of the pregnant woman.
The bench of Justice Prashant Kumar, however, observed: “…an unborn child aged five months onwards in the mother’s womb till its birth can be treated as equal to a child in existence. The unborn child, who dies in the womb, can be held to be a ‘person’ who can be the subject of an action for damages for his death.”
“Since the foetus is treated as a child, hence death of a foetus/child would be treated as an independent accident apart from the death of the mother. Thus, the claimants are also entitled to get the additional compensation of Rs 8,00,000 for the loss of foetus,” the Court further said.
It was hearing a petition against a judgment of the Lucknow bench of the tribunal that ordered the railways to pay a compensation of Rs 8 lakh for the death of pregnant passenger, Bhanmati, but did not consider the loss of the foetus, as reported by The Indian Express.
Bhanmati was boarding the Marudhar Express at Barabanki railway station for travelling to Bandikui station in Rajasthan’s Dausa district on September 2, 2018, the petition stated. She had a second-class reservation ticket. While boarding the train, she fell from the train and sustained serious injuries.
She was rushed to Barabanki district hospital, where she died during treatment. At the time of death, she was carrying a male foetus of about eight to nine months that passed away, the petition stated.
Family members filed a claim petition before the tribunal on March 29, 2019. The tribunal concluded that the deceased Bhanmati was a bona fide passenger and the death had occurred by falling while she was boarding the train. The accident clearly falls within the ambit of an untoward accident as defined under the relevant sections of the Railway Act, 1989, and accordingly, the tribunal granted a compensation of Rs 8 lakh in its order on February 18 last year.
The petitioner’s counsel quoted previous judgments regarding compensation for the loss of a foetus in an accident, but the counsel appearing for the railways opposed the same, stating that since the unborn child is not included in the section, no compensation would be awarded to him. The counsel also quoted a judgment and justified the tribunal for rightly rejecting the claim of the unborn child, in support of the tribunal’s ruling.
“Human foetus to whom personhood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day,” Justice Kumar observed after hearing both sides.
“The rights of the child in the mother’s womb are well protected by laws of the land as the foetus is another life in the pregnant woman and loss of foetus is actually a loss of child. Thus, this court has no hesitation in holding that an unborn child aged more than five months onwards in the mother’s womb till its birth is treated as equal to a child in existence,” the Court added.
The unborn child is held to be a ‘person’ who can be the subject of an action for damages for his death, the Court further added. The appellants are, therefore, entitled to compensation for the loss of foetus, independently treating the foetus as a child, the Court said.
“The judgment and award passed by the Railway Claims Tribunal, Lucknow Bench is modified to the extent that a compensation of Rs 8,00,000/- along with the same interest as awarded to the mother of the foetus shall further be awarded towards the death of the foetus, which was caused during the course of the accident as per schedule under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990,” the HC ruled.
