Allahabad High Court Awards Rs 8 Lakh For Death Of Seven-Month Foetus In Railway Accident

The Allahabad High Court has held that an unborn child aged more than five months in the mother's womb can be treated as equal to a child in existence for the purpose of compensation, and awarded an additional Rs 8 lakh for the death of a seven-month-old foetus in a railway accident.

A single-judge bench of Justice Prashant Kumar made the observation while setting aside an order of the Railway Claims Tribunal, Lucknow Bench, which had rejected a claim for compensation for the foetus on the ground that it was not a “bona fide passenger” under the Railways Act, 1989.

Why did high court award compensation for the foetus?

The case arose from an incident on June 13, 2017, when a woman travelling with her two sons in the Jan Sadharan Express from Sitapur Cantt to Biswan Railway Station fell from the train while de-boarding at Biswan station. She suffered injuries and died.

The woman was carrying a seven-month-old female foetus, which also died in the incident. Her family subsequently approached the Railway Claims Tribunal seeking compensation. The Tribunal, however, held that the unborn child did not qualify as a bona fide passenger under Section 123(c)(2) read with Section 124-A of the Railways Act.

The high court disagreed.

It said that “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.” It further held that an unborn child who dies in the womb can be treated as a “person” who can be the subject of an action for damages for death.

‘Loss of foetus is actually a loss of child’

The court examined several earlier decisions in which courts had recognised compensation for the death of a foetus following an accident.

Referring to these decisions, the court said it was in agreement with the view taken by the Karnataka, Madhya Pradesh and Andhra Pradesh High Courts that “the death of foetus should be considered as equal to the death of the child for the purpose of computation of compensation.”

The bench also relied on an earlier Allahabad High Court judgment which had held that if an unborn child suffers a fatal injury in a railway accident, the parents or mother can claim compensation for it. That judgment had also referred to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.

The high court noted that the foetus is not merely part of the mother's body. Referring to a Kerala High Court ruling, it said that “foetus is another life in the woman” and that the loss of a foetus following the death of a pregnant woman amounts to the loss of a child.

Railways liable even though Act does not expressly mention foetus

The court rejected the argument that compensation could not be claimed because the Railways Act does not specifically mention a foetus.

It held that although the word “foetus” is not expressly mentioned in the Railways Act, the incident fell within Section 124-A because the death occurred as a result of an untoward incident arising from a railway accident.

This, the court said, attracted the Railways' statutory liability to pay compensation in case of death.

The court also observed that the rights of a child in the mother's womb are protected by law and said, “loss of foetus is actually a loss of child.” It consequently held that the foetus had to be treated independently as a child for calculating compensation.

Rs 8 lakh additional compensation

The court noted that the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, as substituted and amended in 2016 and brought into force from January 1, 2017, prescribed compensation of Rs 8 lakh in case of death.

Since the foetus was to be treated as a child, the court held that its death constituted an independent loss apart from the mother's death. It therefore awarded an additional Rs 8 lakh for the loss of the unborn child.

The high court accordingly set aside the Tribunal's September 26, 2023 order, directed payment of Rs 8 lakh for the death of the foetus and allowed the appeal.

Case title: Ashok Kumar & Others v. Union of India through General Manager, North Eastern Railway, Gorakhpur

Order date: September 23, 2026

Bench: Justice Prashant Kumar