JAYPRAKASH GHASITELAL vs UNION OF INDIA THROUGH GENERAL MANAGER

C/FA/159/2022 CAV JUDGMENT DATED: 07/05/2026
Reserved On : 30/04/2026
Pronounced On : 07/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 159 of 2022
FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
Yes
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JAYPRAKASH GHASITELAL
Versus
UNION OF INDIA THROUGH GENERAL MANAGER
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MS ARCHANA U AMIN(2462) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI


CAV JUDGMENT
1. The seminal question which fall for consideration in this
appeal is whether parent of stillborn child who met with railway
accident can claim compensation under section 16 of the
Railway Claims Tribunal Act, 1987 read with section 125 of the
Railways Act, 1989.
2. This appeal under section 23 of the Railway Claims
Tribunal Act, 1987 challenges judgment and order dated
07.12.2021 passed by learned Railway Claim Tribunal,
Ahmedabad in Case No.OA-IIu/2018/0112, whereby the claim
application preferred by Jayprakash Ghasitelal – father of
stillborn child for getting compensation of Rs.8 lakhs was
dismissed.
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3. Factual aspects borne out of impugned judgment and
order, as well as record and proceedings, in brief are as under :-
3.1. On 15.04.2018, the applicant – Jayprakash Ghasitelal was
travelling along with his wife – Usha Devi, who was having 9
months pregnancy, from Kim to Kanpur Railway Station holding
railway ticket No.N-28152749 to No.N-28152752 (in all total 4
tickets) including ticket for deceased Usha Devi. Husband and
wife along with family were travelling on train No.69109 down
memu passenger train. The claimant pleaded that there was
heavy rush in the train and therefore, there was no alternative
left for the applicant except to stand near entrance door of
compartment. It is further pleaded that when train started from
Kim railway station, due to heavy jerk and jolt, wife Usha Devi
fell from running train and died while shifting to hospital. Along
with Usha Devi, her stillborn child also died. It is in this
background, claimant claimed compensation of Rs.8 lakhs along
with interest for stillborn child.
4. Railway Administration filed written statement along with
DRM report contending that death of stillborn child was caused
because deceased Usha Devi - wife of claimant become victim of
accident due to her own negligence, as she was trying to board
the running train and therefore, the case does not fall under
section 123(c)(2) of the Railway Act, 1989. Moreover, stillborn
child cannot be equated with definition of bona fide passenger
and thereby, Railway Administration is not liable to pay
compensation. On this basis, dismissal of claim petition was
sought by Railway Administration.
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5. After framing issues and permitting both the parties to lead
evidence, the Railway Claims Tribunal dismissed the claim
petition raising preliminary issue that whether the claim
application for compensation of unborn child can be
maintainable ?.
6. It is in this backdrop, present appellant filed this appeal
where seminal issue arise as to whether claim application filed
by parent of stillborn child is maintainable for getting
compensation under the Railway Claims Tribunal Act, 1987 ?.
7. Heard learned advocate Mr. Rathin Raval for the appellant
and learned advocate Ms.Archana Amin for respondent – Railway
Administration.
8. Learned advocate Mr.Raval for the appellant submitted
that law has been evolved drastically by passage of time.
Previously, stillborn child, if born with some deformities
subsequent to accident, he was entitled to compensation but
later on law has changed wings and vision. Stillborn child which
was previously considered as no independent claim or right to
sue in paradigms shift right of stillborn child is recognized. He
further submit that evolution of law in Indian Court has began
to recognize right of stillborn child for prenatal injuries by
adopting liberal interpretation of compensation principles. He
referred to judgment of Madras High Court, Madurai Bench in
the case of Oriental Insurance Co. Ltd. v/s. Karuppasamy
[2020 ACJ 833] , and submitted that under jurisprudence of
tortious claim under M.V.Act, 1988, the claim for stillborn child
has been successfully accepted by the Courts and therefore, it is
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submitted that learned Tribunal has committed serious error in
rejecting claim petition.
8.1. In light of aforesaid submissions, learned advocate
Mr.Rathin Raval submitted to allow the appeal.
9. Learned advocate Ms. Amin for respondent referred to
section 125 of the Railways Act and submitted that expression
‘stillborn child’ is missing from provision of law and therefore,
lady who dies along with stillborn child, parents would not be
entitled to get compensation for loss of stillborn child.
Expanding submission, she submits that stillborn child carried
in womb is not independent passenger and therefore, does not
fall within definition of bona fide passenger.
9.1. In view of above submission, while supporting impugned
judgment, learned advocate Ms.Amin for respondent submitted
to dismiss the appeal.
10. Regard being had to rival submissions of learned Counsel
as well as going through impugned judgment along with Record
and Proceedings of the case, at the outset, it is to be noted that
falling of Usha Devi from down Memu passenger train when it
started from Kim Railway station is completely uncontroverted
fact. She having fell from train, was taken to hospital but she
was declared as brought dead. Again, it is uncontroverted fact.
Deceased Usha Devi was travelling with railway ticket. This fact
is also not denied. In the report of untoward accident at page
no.60, in column no.11, it is stated that deceased while climbing
train fell down, received injures in abdomen and she died. It is
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further reflected from the report that at the time of death, she
was carrying nine month old live foetus and foetus having
attained life has expired. Inquest report and PM report also
recorded identical facts. Further, it states that deceased died due
to rupture of spleen and uterus. For death of Usha Devi, present
petitioner has filed claim petition which was allowed and
compensation was awarded. Apt to note that Railway
Administration has not challenged that order before higher
Court. Order passed by learned Railway Claims Tribunal,
Ahmedabad in Case No.OA-IIu/2018/0113 dated 07.12.2021 is
taken on record.
11. In view of above, let me address core question whether
stillborn child can be treated as person who died in accident and
whether parent of stillborn child can claim compensation for
mishap in railway accident ?.
12. Doctrine of Nasciturus applies to core issue in the matter.
The maxim Nasciturus pro iam nato habetur, quotiens de
commodis eius agitur means an unknown child is deemed to be
born for its own benefit. Afore-noted doctrine comes from
classical roman jurisprudence where jurist recognize limited
right of unborn child. It was later adopted by English common
law and thereafter, by Indian Law. It has been successfully
applied to law of tort, where prenatal injuries or death of foetus
has been sought and compensation was granted.
13. Another maxim which can be pressed into service is ‘En
Ventre Sa Mere’ which means ‘in the mother’s womb’. It is french
phrase and widely used.
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14. The legal status of unborn persons is discussed in
Salmond on Jurisprudence, 11th Edition, at pages 354 and 355,
the relevant portion of which reads as follows:
"A child in its mother's womb is for many purposes regarded
by a legal fiction as already born, in accordance with the
maxim, Nasciturus pro jam nato habetur. In the words of
Coke: "The law in many cases hath consideration of him in
respect of the apparent expectation of his birth". Thus, in the
law of property, there is a fiction that a child en ventre sa
mere is a person in being for the purposes of (1) the
acquisition of property by the child itself, or (2) being a life
chosen to form part of the period in the rule against
perpetuities."
15. In Australia in Re: Watt v. Rama [1972] VR 353 , it has
been held that the foetus is a person and once born is entitled
for the compensation. American Court went even a step further
ahead and removed the requirement of the foetus to actually be
born. In re: Amadio v. Levin,. 501 A.2d 1085, 1088-89 (Pa.
1985) the Supreme Court of Pennsylvania held that it makes no
difference in liability under wrongful death and survival status
where the child dies prior to or after death.
16. In Moore v. Wingfield, (1903) 2 Ch. 411 , Justice
Vaughan Williams L.J. held:
"In Blackstone's Commentaries, 4th ed. vol.i. 129, 130, it is
stated that in contemplation of law life begins as soon as an
infant is able to stir in the mother's womb: "For if a woman is
quick with child, and by a potion, or otherwise, killeth it in
her womb; or if any one beat her, whereby the child death in
her body, and she is delivered of a dead child; this, though
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not murder, was by the ancient law homicide or
manslaughter." Then the learned author goes on: "An infant
in ventre sa mere, or in the mother's womb, is supposed in
law to be born for many purposes. It is capable of having a
legacy, or a surrender of a copyhold estate made to it. It may
have a guardian assigned to it; and it is enabled to have an
estate limited to it's use, and to take afterwards by such
limitation, as if it were then actually born."
17. Professor Mulla on Hindu Law in regards to section 20 of
Hindu Succession Act, Fifteenth Edition, commented as under :
"It is by fiction or indulgence of the law that the rights of a
child born justo matrimonio are regarded by reference to the
moment of conception and not of birth and the unborn child
in the womb if born alive is treated as actually born for the
purpose of conferring on him benefits of inheritance. The
child in embryo is treated as in esse for various purposes
when it is for his benefit to be so treated. This view is not
peculiar to the ancient Hindu law but one which is adopted
by all mature systems of jurisprudence. This section
recognises that rule of beneficent indulgence and the child in
utero although subsequently born is to be deemed to be born
before the death of the intestate and inheritance is to be
deemed to vest in the child with effect from the date of the
death of the intestate."
18. Hon’ble Apex Court in the case of S. Said-ud-Din v.
Commissioner Bhopal Gas Victims [(1997) 11 SCC 460]
awarded compensation to a child, who was adversely affected
due to the gas leakage, which was inhaled by her mother when
the child was in the womb. The Supreme Court held as under :-
“...as the infant too was the victim of the MIC poison, she
was entitled to compensation. Various Human Rights
Commissions also held that the stillborn child is entitled to
compensation on account of the injuries caused or death
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occurred due to violation of human rights. Even the Transfer
of Property Act recognized the rights of the stillborn child and
several provisions of the Indian Penal Code, 1980, also
provide for punishment by reason of hurt or birth or abortion
with regard to the stillborn child.”
19. Worthy to notice that several Human Rights Commission
also held that stillborn child is entitled for compensation due to
violation of human rights. Apt to note that even Transfer of
property Act recognizes right of stillborn child, besides section
20 of the Hindu Succession Act.
20. Apt to note that Hon’ble Apex Court in the case of National
Insurance Company Ltd. v/s. Kusuma [(2011) 13 SCC 306]
recognized right of stillborn child and granted compensation for
loss of stillborn child, treating it as born child. This judgment
was delivered under jurisprudence of Motor Vehicle Act, but the
concept of loss of stillborn child due to tortious Act can be
borrowed in case of loss of stillborn child in railway accident.
Hon’ble Apex Court in para 7 has held as under :-
“7. Thus, under the given circumstances, the question that
survives for our consideration is whether the quantum of
compensation determined by the High Court, at a lump sum
amount of `1,80,000/-, for the loss of still born child, treating
it as a child, and towards pain and sufferings to the
respondent-claimant awarded by the Tribunal at `50,000/-
and `10,000/- respectively, warrants interference by this
Court.”
th
21. While referring to Modi’s Medical Jurisprudence (25
edition), High Court of Kerala at Ernakulam in the case of
Abhulasees P.P. v/s. Abdumanaf [MACA No.2027 of 2011] in
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para 20 held as under :-
20. For compensating the loss, the 'foetus/still born child'
could be equated as a living child and the quantum of
damages fixed could be ordered to be given to the Husband
and Wife/Appellants. The stage of the foetus is having some
importance/relevance in fixation of quantum. After
fertilization, the 'Embryo' starts development and on
completing 'five months' (20 weeks), formation of different
organs will be almost nearing completion. The "viability of
the child" as explained in "Modi's Medical Jurisprudence"
(25th Edition) is extracted below:
"Viability of Child-The term 'viability' means the ability
of neonate to lead a separate existence outside the
mother. Viability denotes the stage of maturity at
which a normally developed neonate is potentially able
to survive. Generally, the term 'viability' is used in its
legal rather than in its biological sense, the legal
definitions of viability ranging from 180 to 210 days of
intra-uterine development. Viability, it should be noted,
is not synonymous with live birth."
It is clear from the above authentic version, that formation of
the child becomes complete after 180 days and in the
remaining period growth of the child takes place, to take
birth in the due course. In other words, the 'Embryo' in the
womb of the mother would be viable as a 'child' between
180-210 days. If for any reason, a pre-mature delivery takes
place after the said stage, it is quite possible to save the
child with all faculties and without any deformities, by virtue
of the advanced technology and infrastructure available as
on the date. In the instant case, the pregnancy had
advanced by 'eight months' and as such, the 'foetus' had
attained full viability, even if there occurred a pre- mature
birth and it was quite possible for the Husband and Wife to
have saved the child, by appropriate means. Because of the
road traffic accident occurred in 10.10.2006, such a chance
is lost for ever and this being the position, the
parents/claimants/ appellants are entitled to be
compensated for the 'loss of baby' treating the 'foetus' as a
'child'. We hold it accordingly. The reference is answered to
the effect that, in all cases where the pregnancy has
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advanced beyond 'six months' and if any miscarriage occurs
because of a road traffic accident, it is open to claim
compensation in respect of the 'loss of baby', treating the
'foetus' as a viable 'child', apart from the compensation
payable under other appropriate heads.”
22. Few more judgment can also be referred to strengthen the
finding that foetus of certain weeks or having been conceived is
living person. In the case of Divisional Controller, KSRTC,
Bangalore v/s. Vidhya Shindhe [2003 SCC Online Kar 447] ,
Karnataka High Court held that for all practical purpose, the
stillborn child has to be considered as child and claim petition
filed by mother on account of death of her 37 weeks old foetus in
accident is entitled to maintain claim petition. Observation of
Karnakata High Court reads as under :-
“5. ………………...As per the doctor's evidence, if the foetus
has completed 37 weeks, for all purpose even the still born
child has to be considered as child. In the instant case, in
the accident the child has also received injuries which has
compelled the mother to undergo a surgery. The baby died
due to the injuries received by him in the accident while in
the womb. Though there is no direct impact between the
vehicle and the baby, since the baby had received injuries
while in the womb, this Court has to hold that there is a
nexus between the accident and the cause of death of the
child. In the circumstances, this Court is of the opinion that
the claim petition filed by the mother on account of the death
of her two days baby who has born subsequent to the
accident as maintainable.”
23. In the same line, Madhya Pradesh High Court in the matter
of Shraddha v/s. Badresh [2005 SCC Online MP 574] , held
that still born baby has to be considered as child. The findings of
the Court reads as under :-
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“ 7. It is not in dispute that claimant was pregnant and the
child was in the womb of the mother at the time of accident.
It is also not in dispute that the mother who is appellant
herein has sustained grievous injuries and on account of
which she was hospitalized. It is also not in dispute that if
claimant had not suffered injuries, child in her womb would
not have been affected. She had to undergo a surgery and
delivered a dead male baby. For the purpose of considering
the case for awarding compensation even the stillborn baby
has to be considered as child.
8. Stillborn baby died in the womb due to the injuries
sustained by the appellant in the accident. In the opinion of
this court there is a nexus between the accident and the
cause of death of the child. Appellant is entitled for
compensation on account of death of or stillborn male baby.
It was first delivery of the appellant. Since, no separate
amount has been awarded on that account, therefore, this
appeal stands allowed. Appellant shall be further entitled for
a sum of Rs. 1,00,000 on account of death of stillborn male
child. Total sum for which appellant shall be entitled comes
to Rs. 2,50,000. The enhanced amount of Rs. 1,00,000 shall
carry interest at the rate of 6 per cent per annum from the
date of application.”
24. Andhra Pradesh High Court in the case of Oriental
Insurance Co. Ltd. v/s. Santhilal Patel [Manu/ AP/
0349/2007] held that an unborn child aged five months
onwards in the mother’s womb till its birth can be treated as
child in existence. Relevant observations reads as under :-
“6. .....Under Section 166 of the Act a person who has
sustained injury or the legal heirs of the deceased person
are entitled for compensation arising out of the accident
involving death or bodily injuries. Therefore, if the child
comes within the definition of person, I am of the opinion
that the legal heirs of the child are entitled for compensation.
Under Section 8 of the Indian Penal Code, 1860 a gender
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means the pronoun "he" and its derivatives are used of any
person, whether male or female. The meaning of a person as
per Oxford Dictionary is 'a human being regarded as an
individual and an individual's body :concealed on his
person'.
7. No doubt, the Karnataka High Court in Divisional
Controller, Karnataka State Road Transport Corporation v.
Vidya Shindhe 2005 ACJ 069 : 2003 ILR (Kar) 04269, held
that the stillborn child has to be considered as a child. The
Madhya Pradesh High Court in Shraddha v. Headrest's II
(2006) ACC 304, following the aforesaid judgment of the
Karnataka High Court held that the stillborn child died in the
accident due to the injuries sustained by its mother in the
accident is also entitled to compensation, as there is nexus
between the accident and the cause of death of the child
and awarded a compensation of Rs. 1,00,000/- for the
death of the stillborn child. In the said case the appellant
was having pregnancy of 28 weeks whereas in the instant
case the child in the womb was counting his days for
delivery as he was aged about 10 months i.e. 40 weeks…”
8. To decide whether a child in the womb of the mother can
be called as a person, it is pertinent to discuss different
stages of birth of a child in the womb of a mother.
Technically the term developing ovum is used for the first
seven to ten days after conception i.e. until implantation
occurs. It is called an 'embryo' from one week to the end of
the second month and later it is called 'foetus'. It becomes an
infant only when it is completely born. The life may enter
immediately on the date of conception in the form of a small
cell, which gets multiplied, but physically a mother can feel
the movement of child only when the foetus is twenty weeks
old i.e., five months, as the cell changes its structures and
texture to become an eye, legs, bones, blood, head etc. and
only when the child makes movements touching the internal
walls of the womb, then the actual life does take its physical
form, therefore, there may be controversy as regards the
exact date of life entering the foetus but there cannot be any
controversy as regards the life of the unborn child if a
woman is carrying seven months pregnancy, as in many
instances premature delivery takes place during the seventh
month of pregnancy and the child still survives.
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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 to whom the live birth never
comes can be held to be a 'person' who can be the subject of
an action for damages for his death. As already stated
above a person means a human being regarded as an
individual and an individual's body : concealed on his
person'. Therefore, 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.”
25. It would be an advantage to refer recent judgment of
Allahabad High Court, Lucknow in the case of Shri Sukhnandan
v/s. Union of India through General Manager, Northern
Railway Baroda House, New Delhi [2026-AHC-LKO-16113]
addressing the issue, in para 28 and 29 held as under :-
“28. In view of the aforesaid, this court concludes that 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 unborn child to whom the live birth never
comes is held to be a 'person' who can be the subject of an
action for damages for his death. The appellants are,
therefore, entitled to compensation for the loss of foetus
independently treating the foetus as a child.
29. Though the word “foetus” is not specifically mentioned
under the Railways Act, 1989, however the present case
would fall within the ambit of Section 124A of the Railways
Act, as the death occurred as a result of an untoward
incident arising out of a railway accident, thereby attracting
the statutory liability of the Railways to pay compensation to
the claimants in case of death.”
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26. Above being exposition of law, the question raised herein-
before remain no more res-integra . Since the foetus is treated as
child, death of child would be treated as independent accident
apart from death of mother. Stillborn child for all purpose is
person and entitled to claim compensation under Railways Act.
Further, child can plead cause of action through parents. Liberal
interpretation of law provides that still-born child being victim of
accident is entitled to claim compensation. Therefore, according
to this Court, impugned order passed by learned Tribunal
suffers from patent illegality and unjustified. In the case on hand
deceased Usha Devi at the time of untoward incident, was
carrying 9 month pregnancy. Foetus of nine month for all the
purpose is a child in existence. Pragmatic and liberal
interpretation of definition of bona fide passenger shall also
include stillborn child.
27. The appellant who got compensation for his wife – Usha
Devi in case No.OA-IIu/2018/0013 in tune of Rs.8 lakhs with
9% per annum from the date of accident i.e. 15.04.2018 till the
date of realization, is also entitled to get compensation in the
present case for loss of stillborn child out of same untoward
incident.
28. Before parting with the order, with profit, I may refer to
judgment of Rajasthan High Court in the case of Hemraj v/s.
Ramdhan [S.B.Civil Misc. Appeal No. 4767/2009] , whereby,
while granting compensation under jurisdiction of M.V.Act,
Rajasthan High Court referred to various authorities and held
that foetus is another life in woman. Relevant observation in
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para 18 reads as under :-
“In the first place, foetus is another life in the woman and it
comes as a baby in the course of time. Though foetus grows
in the body of the woman, it cannot be equated to or
considered to be a part of the body of the woman. In effect,
loss of the foetus consequent upon the death of the pregnant
woman is actually loss of a child in the offing for the
husband of the woman. Secondly, there is no scope for
considering compensation for the bodily injury of the victim
who died in the road accident. Therefore, it would be illogical
to grant compensation treating death of the foetus along with
the woman dying in the accident treating death of the foetus
along with the Woman dying in the accident treating it as
another bodily injury. In our view, compensation to be
granted for the death of a pregnant woman in motor accident
is for loss of two lives. Therefore, appellant in this case is
certainly entitled to claim compensation separately for the
loss of his child in the womb of his wife who perished in the
accident.”
29. In view of above, the first appeal is allowed. Impugned
judgment is quashed and set aside. Compensation of Rs.8 lakhs
with 9% interest per annum is granted to the appellant -
claimant from the date of accident i.e. 15.04.2018 till realization
for stillborn child. Railways Administration is directed to deposit
the entire amount with interest accrued before the learned
Tribunal concerned within twelve weeks from today. Upon
deposit of entire amount, learned Tribunal shall disburse the
amount to the claimant in accordance with law by passing
specific order. Record and proceedings, if any, be returned to
learned Tribunal concerned.
(J. C. DOSHI,J)
SATISH
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