Chandigarh: The Punjab and Haryana high court has held that parents are entitled to compensation for the death of an unborn child in a road accident, treating a 28-week-old foetus as a viable child in a decision delivered 25-years after the appeal was filed.




Justice Parmod Goyal set aside a May 2000 order by the Motor Accident Claims Tribunal (MACT), Panchkula, and awarded the parents, Suresh Kumar Sethi and his wife, Rs 2.27 lakh with interest.




“In the present case, the foetus was 28 weeks old and has to be treated as a child,“ the court observed.




The couple filed the appeal in 2001 following a June 1997 accident on the Chandigarh-Panchkula road, where a speeding scooter struck the woman, then 28 weeks pregnant, while she was walking on an unpaved portion of a road ahead of her husband who was on a motorcycle. She hit a cement pipe lying on the road and got stuck between the scooter and the pipe. She suffered severe injuries, including fractures, resulting in the loss of the foetus.




Although the tribunal found the scooter driver negligent, it dismissed the claim, citing a Himachal Pradesh high court precedent holding that unborn children were ineligible for compensation under the Motor Vehicles Act.




Their counsel A S Virk submitted that the Motor Vehicles Act, 1988, does not prescribe the nature of loss that can be compensated under its provisions. He submitted that all kinds of pecuniary and non-pecuniary losses were compensable and the loss of a foetus was a grave loss to the parents.




Overturning the MACT finding, the high court cited a 2017 Kerala high court full bench ruling which held that a foetus advanced beyond six months is a viable child eligible for claim.




Assessing the unborn child’s notional income based on 1997 minimum wages for unskilled workers (Rs 1,548 per month), the court added 40% for future prospects, deducted 50% for personal expenses, and applied a multiplier of nine to set the final payout at Rs 2,27 lakh.