A recent ruling by a Lucknow bench of the Allahabad High Court has established that the death of a fetus over five months’ gestation due to an accident is to be considered the loss of an independent child for compensation purposes. This decision marks a significant legal precedent in how fetal loss is treated in the context of wrongful death claims.
Setting aside a Sept 2023 order of the Railway Claims Tribunal, Justice Prashant Kumar directed the railways to pay an additional Rs 8 lakh to the family of Savitri Devi for the death of her unborn daughter in a railway accident. Directing payment of Rs 8 lakh in accordance with the amended Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, the court held that since Savitri was carrying a seven-month-old fetus, separate compensation was warranted for the unborn child’s death. it declined to grant separate compensation for the unborn child While the tribunal had awarded compensation for Savitri’s death. Challenging the order, her family approached the high court. Allowing the appeal, the court held that the death of a sufficiently developed fetus cannot be merged with the death of the mother for compensation purposes. It observed that a fetus of more than five months’ gestation can be treated as an independent child and its death constitutes a separate loss.