A seven-month foetus is a person who can be the subject of an action for its own death
The Railway Claims Tribunal held the unborn child was not a bona fide passenger and dismissed the claim. The Allahabad High Court awards a second Rs 8 lakh for a death it treats as separate from the mother’s.
On 13 June 2017 a woman travelling with her two sons on the Jan Sadharan Express from Sitapur Cantt. to Biswan fell while getting off the train at Biswan station and died of her injuries. She held a second class journey ticket. She was seven months pregnant with a daughter, and the foetus died with her.
Her family claimed compensation. On 23 September 2026 Justice Prashant Kumar held they were entitled to be paid twice — once for the mother, and once for the child she was carrying.
The appeal was against an award of the Railway Claims Tribunal made more than six years after the accident.
Why the Tribunal said no
The claim was filed before the Railway Claims Tribunal at Lucknow in April 2018. In September 2023 the Tribunal dismissed it so far as the unborn child was concerned.
Its reasoning was textual. Section 124-A of the Railways Act, 1989 makes the railway administration liable to pay compensation for death or injury caused by an untoward incident — but to a passenger. Section 123(c)(2) defines who counts. A foetus, the Tribunal held, was not a bona fide passenger, and so no compensation was payable for its death.
Read narrowly that is difficult to argue with. The child had no ticket, and could not have had one.
The difficulty with it is that it makes the entitlement turn on a document the deceased could not have obtained, in circumstances where nobody suggests the mother was travelling unlawfully. She had a ticket; the question was whether what she was carrying counted at all.
What the High Court held
The Court approached it from the other end — not whether the foetus bought a ticket, but whether it was a life that the law recognises as capable of being lost.
Its holding is stated without hedging. The foetus is another life in the pregnant woman, and loss of the foetus is actually the loss of a child. An unborn child aged more than five months onwards, in the mother’s womb until its birth, is to be treated as equal to a child in existence. An unborn child to whom live birth never comes is a “person” who can be the subject of an action for damages for his death.
From that it follows that the claimants are entitled to compensation for the loss of the foetus independently, treating the foetus as a child.
On the statutory objection, the Court accepted that the word “foetus” is not specifically mentioned in the Railways Act, 1989, but held the case falls within Section 124-A nonetheless, because the death occurred as a result of an untoward incident.
The Court's use of the word "person" is deliberate and carries the holding. Compensation under the Schedule is payable for the death of an individual; describing the unborn child as a person capable of being the subject of an action brings it within that language without needing the Act to mention a foetus at all.
Two deaths, two awards
The consequence is arithmetical and substantial.
The Schedule under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 — as substituted and amended in 2016, in force from 1 January 2017 — fixes compensation for death of an individual at Rs 8,00,000.
Since the foetus is treated as a child, the Court held, the death of that child is an independent death apart from the death of the mother. The claimants were therefore entitled to an additional Rs 8,00,000 for the loss of the unborn child.
The Tribunal’s award of September 2023 was set aside, compensation of Rs 8,00,000 was awarded for the death of the unborn child under the 2016 Schedule, and the appeal was allowed. The lower court records and a copy of the judgment were directed to be sent to the Tribunal for compliance.
The phrase the Court uses — that the death of the foetus is an independent accident apart from the death of the mother — is what does the work. Treated as one event, the family recovers once. Treated as two deaths in one incident, the Schedule applies twice.
What the reasoning rests on
The five-month line the Court draws is not arbitrary. It reflects the point at which the law in several contexts treats a foetus as having an existence capable of protection — and the Court’s formulation, that an unborn child to whom live birth never comes may still be a person for an action in damages, is the key move.
In the ordinary law of tort, a claim for prenatal injury usually requires live birth: the child is born, suffers, and sues. Holding that the action survives where birth never happened extends the principle, and the extension is what makes this judgment worth noting beyond railway claims.
For families in this position the practical effect is direct. A pregnant woman killed in an untoward incident is, on this reasoning, two deaths under the Schedule rather than one — and a Tribunal that treats the unborn child as a non-passenger will be reversed.