Wednesday, February 10, 2010

Indian Court Rules Born and Unborn Are Equal

"The foetus is another life in a woman and loss of the foetus is actually loss of a child"

By Thaddeus M. Baklinski

NEW DELHI, February 9, 2010 ( - The Delhi High Court has ruled that an unborn child can be considered equivalent to a minor child and has directed an insurance company to pay compensation of 250,000 rupees (about $5750 Canadian) to a man who lost his pregnant wife in a road accident a year and half ago.

Justice J R Midha allowed an appeal filed by a Mr. Prakash seeking compensation for the death of his unborn child when his plea was ignored by the Motor Accident Claim Tribunal (MACT), which rules on insurance claim disputes in India.

"This court holds that an unborn child — aged five months onwards in the mother’s womb till its birth — is treated as equal to a child ... the fetus is another life in a woman and loss of the fetus is actually loss of a child in the offing," Justice Midha stated.

The Delhi High Court ruling followed a precedent set by the Kerala High Court’s verdict of October 2008 involving an identical issue, when it had ordered the payment of separate compensation for the death of an unborn child to the husband of a pregnant woman, who died in a road accident.

Prior to the Kerala High Court’s verdict, courts in India generally held that compensation for the death of an unborn child could only be paid in case of a miscarriage by the mother who survived an accident - but no separate claim was allowed for an unborn child if the mother had died.

The Delhi court heard that the MACT had already awarded 611,000 rupees to Mr Prakash for the accident in which his wife died with their seven-month-old child in her womb, but refused to take into account the death of the child.

Counsel for MACT said that the "post-mortem report did not mention anything about the presence of a fetus."

Clarifying that the unborn child was absent at the time of the victim’s death, counsel for Mr. Prakash explained to the court that as a result of the accident that took place on June 8, 2008, the child Mrs Prakash was carrying died and was removed from her womb by Caesarean section on June 17. Following this Mrs. Prakash died from her injuries on August 14.

"The appeal is allowed and the compensation of 250,000 rupees along with interest at 7.5 per awarded to the appellant (Prakash) towards the death of a seven month-old foetus on June 17,2008," the Court judgment said.


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