Unborn Child Whose Live Birth Never Came Is Deemed ‘Person’ & Can Be Subject Of Action For Damages For His Death: Delhi HC

The Delhi High Court observed that an unborn child or fetus at least five months old and remains in the mother's womb until birth is considered ‘equal to a child who has been born'. The unborn child to whom live birth never came is still considered a 'person' and can be the subject of a legal claim for damages, the Court noted while placing reliance on the case of Prakash & Ors. v. Arun Kumar Saini & Anr [2010 SCC OnLine Del 478].

“This Court has held that an unborn child/foetus of five months onwards in the mother’s womb till its birth is treated as equal to a child in existence. It was held that 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”, Justice Navin Chawla observed.

Advocate Arun Sharma appeared for the Appellant and Advocate Pankaj Gupta with Advocate Suman Bagga appeared for the Respondents.

The Appellant's wife was employed as a constable in the Uttar Pradesh Police. She was riding pillion on the motorcycle her colleague drove, and they met with a road accident with an overspeeding truck that hit the constables from behind. The Appellant’s wife was eight months pregnant and died from her injuries. The Motor Accidents Claims Tribunal (Tribunal) held that the deceased died due to the negligent driving of the offending vehicle. The Tribunal held that the Appellant was not financially dependent on the deceased and cannot seek loss of dependency, however, would be entitled to loss of estate, which was calculated as 1/3rd of the income of the deceased. The Appellant, therefore, filed before the High Court, challenging the award.

The Court noted that the Appellant is entitled to compensation for the loss of his unborn child, who was eight months old in the mother’s womb at the time of the accident. The Court noted that compensation should be decided on a case-by-case basis and not arbitrarily. The compensation cannot be static for all time and all factual situations, the Court further asserted.

“The appellant herein lost his entire family in the accident, including the child whom he could never see. Compensation in each case has to be determined on its own facts, and while the same cannot be arbitrary or result in a windfall gain to the claimant, at the same time it cannot be static for all times to come and for all factual situations”, the Court observed.

“In view of the above judgment, there can be no doubt that the appellant herein is entitled to compensation that may be found ‘just’ for the loss of the foetus carried by the deceased at the time of the accident/her death”, the Court, in para 11, noted.

Accordingly, the Court allowed the Appeal and enhanced the award to Rs. 5,00,000.

Case Title: Raghav Singh v. Dinesh Kumar & Ors. (2023:DHC:5590)

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