In a significant ruling on the rights of unborn children, the Gujarat High Court has held that parents can claim compensation for the death of a stillborn child caused in a railway accident. The court observed that a foetus of advanced pregnancy must be treated as a child in existence for compensation purposes under railway law.
Justice J. C. Doshi passed the judgment while allowing an appeal filed by Jayprakash Ghasitelal, whose wife died after falling from a moving train in 2018 while carrying a nine-month pregnancy.
Background of the Case
According to court records, Jayprakash Ghasitelal and his wife Usha Devi were travelling from Kim to Kanpur on April 15, 2018, along with family members. The claimant stated that the compartment was overcrowded, forcing them to stand near the entrance of the train.
When the train started moving from Kim Railway Station, Usha Devi allegedly lost balance due to a jerk and fell from the running train. She later died while being shifted to hospital. The unborn child she was carrying also did not survive.
The Railway Claims Tribunal had earlier rejected compensation for the stillborn child, holding that such a claim was not maintainable under the Railways Act because the foetus could not be considered a bona fide passenger.
The High Court disagreed with the tribunal’s approach and extensively discussed legal principles protecting unborn children.
Justice Doshi referred to the doctrine of Nasciturus, under which an unborn child is treated as born when it benefits the child’s rights. The court also cited several Indian and foreign judgments recognising compensation rights for unborn or stillborn children in accident cases.
The bench observed,
“Foetus of nine month for all the purpose is a child in existence.”
The court further noted that the loss of a foetus cannot merely be treated as a bodily injury suffered by the mother. Instead, it amounts to the loss of an independent life.
Referring to earlier rulings of the Supreme Court and various High Courts, the bench held that a stillborn child can be recognised as a “person” for the purpose of claiming compensation arising out of an accident.
The court said,
“Stillborn child for all purpose is person and entitled to claim compensation under Railways Act.”
Allowing the appeal, the High Court set aside the tribunal’s order and awarded ₹8 lakh compensation along with 9% annual interest from the date of the accident.
The Railway Administration has been directed to deposit the amount within 12 weeks before the concerned tribunal, which will disburse the compensation to the claimant according to law.
Case Details
Case Title: Jayprakash Ghasitelal vs Union of India Through General Manager
Case Number: R/First Appeal No. 159 of 2022
Judge: Justice J. C. Doshi
Decision Date: May 7, 2026
