Tripura High Court
Sri Pulak Saha vs The State Of Tripura on 20 April, 2022
Bench: Indrajit Mahanty, S.G. Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) (PIL) No. 04 of 2020
Sri Pulak Saha
Son of Nakul Chandra Saha, resident of Radhanagar, P.O. Kunjaban, P.S West
Agartala, District West Tripura, Pin 799006.
----- Petitioner(s)
Versus
1. The State of Tripura,
(To be represented by the Principal Secretary, Department of Health, Government
of Tripura, New Secretariat Building, New Capital Complex, Kunjaban, P.S New
Capital Complex, Agartala, West Tripura, PIN 799010.
2. The Director,
Department of Health, Govt. of Tripura, Gorkhabasti, PN Complex, P.O Kunjaban,
PIN 799006.
3. The Director,
Department of Fire, Govt. of Tripura, Agartala, West Tripura
4. The Officer in Charge
Maharajganj Bazar Fire Station, Department of Fire, Govt. of Tripura, Agartala,
West Tripura.
5. The Principal, AGMC & GBP Hospital,
Govt. of Tripura, Agartala, West Tripura.
6. The Medical Superintendent,
AGMC & GBP Hospital, Govt. of Tripura, Agartala, West Tripura.
7. The Director General of Police,
Govt. of Tripura, O/o the DGP, Akhaura Road, Agartala, West Tripura.
8. The Superintendent of Police,
West Tripura District, Govt. of Tripura, Agartala, West Tripura.
9. The Officer in Charge,
East Agartala Police Station, Govt. of Tripura, Agartala, West Tripura.
-----Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Sr. Adv.
Mr. S. Bhattacharjee, Adv.
Mr. K. Nath, Adv.
Ms. A. Debbarma, Adv.
For Respondent(s) : Mr. D. Bhattacharya, GA.
Mr. S. Saha, Adv.
Date of hearing & Judgment &
Order : 20th April, 2022.
Whether fit for Reporting : YES
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B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER (ORAL)
[Per S.G. Chattopadhyay, J] This petition has been filed under Article 226 of the Constitution of India in public interest by a practicing advocate of this court who is also engaged in social services activities. Petitioner has sought to project in-action and negligence on the part of doctors and hospital administration which according to him, led to the unfortunate premature death of a young promising lawyer who was the sole source of financial and emotional support for his widowed mother.
Prayers made in this PIL include those for conducting a detailed enquiry into the allegations of medical negligence, formation of a special investigation team for investigating into a complaint of commission of offence under section 304 Part II read with section 34 IPC and for payment of compensation of Rs.50,00,000/-
(Rupees Fifty Lakhs) to the mother of the deceased.
[2] After the death was reported to police, an FIR was registered for commission of offence punishable under section 304 Part II IPC with the intervention of the Superintendent of Police, West Tripura, Agartala. The police had completed the investigation and submitted the charge sheet on 15.10.2020 for commission of offence punishable under section 304A read with section 34 IPC against those who were found responsible for the death of Bhaskar Debroy. The State Government also constituted a death audit team comprising of four faculty members of GBP & AGMC hospital headed by Dr. Sankar Debroy, Assistant Professor of Agartala Government Medical College (AGMC) who has submitted preliminary audit report dated 10.03.2020. The final report of the death audit Page - 3 of 32 team dated 12.03.2020 has also been submitted. This apart, the State Government had also set up a Magisterial enquiry which was conducted by the District Magistrate & Collector, West Tripura, Agartala. Report of the Magisterial enquiry was submitted on 24.08.2020. The terms of reference for the Magisterial enquiry were to find out circumstances into the cause of unnatural death of Bhaskar Debroy leading to his death and medical negligence, if any, during his treatment.
[3] By filing I.A No.01 of 2020, petitioner prayed for directions to pay interim compensation of a sum of Rs.15,00,000/- (Rupees fifteen lakhs) to the mother of deceased Bhaskar Debroy pending further consideration of the public interest litigation. The I.A was decided by us by order dated 04.01.2021 directing State respondents No. 1 & 2 to pay compensation of a sum of Rs.10,00,000/-
(Rupees ten lakhs) to Smt. Kankana Debroy, mother of deceased Bhaskar Debroy.
[4] The facts of the case, findings of the death audit team as well as those of the Magisterial enquiry were discussed in detail in the said interim order dated 04.01.2021 in I.A No. 01 of 2020 which are as under:
"[2] Briefly stated the facts are as under :
Bhaskar Debroy was an advocate. He joined the bar in the year 2015. His father had died when he was young. He was the only child of his widowed mother. At late night on 6th March, 2020 it appears that Bhaskar Debroy had accidental injuries while he was travelling on his motorcycle. The personnel of Fire Brigade department helped shift injured Bhaskar Debroy to AGMC & GBP Hospital late at night. By all accounts it appears that when the patient was brought to the hospital he was still conscious and coherent. While under treatment, his condition deteriorated and at around 3.20 a.m. on 7th March, 2020 he was declared dead.
[3] The public interest petition is filed by an individual claiming to be involved in social service in the locality. In the petition, he has sought to project the inaction and negligence on part of the doctors and hospital administration which according to him, led to the unfortunate pre-mature death of a young promising lawyer who was the sole source of financial and emotion support for the widowed mother. Prayers made in this PIL include those for conducting a detail inquiry into the allegations Page - 4 of 32 of medical negligence, formation of a special investigation team for investigating into a complaint of commission of offence under Section 304 Part II read with Section 34 of IPC and for payment of compensation of Rs.50,00,000/- to the dependents of the deceased. By way of the interim application, prayer is made for payment of interim compensation to the mother of the deceased.
[4] The petitioner has relied on statements of members of the public present in the hospital when the deceased was brought there and certain other official documents. On the basis of such materials, the averments made in the petition in a nutshell are as under:
(i) On 7th March, 2020 the petitioner got information that advocate Bhaskar Debroy who was brought to AGMC & GBP Hospital had died late at night. The petitioner, therefore, rushed to the hospital at about 8.30 in the morning. The petitioner had access to the room where the dead body of Bhaskar Debroy was kept and found that he still was wearing his full clothes with belt and shoes on.
(ii) Examination of medical record of the deceased showed that at 12.59 on 7th March, 2020 condition of the patient was recorded to be conscious, drowsy but oriented with the history of alcohol consumption. At 1.15 a.m. his condition was recorded as semi-
conscious, drowsy and oriented.
(iii) The patient was referred to G.B.P Emergency for further management but this was not followed up. Instead, he was taken to Medicine Unit where the attending doctor advised certain tests such as CVC, KFT, LFT, ECG etc. at 2.10 a.m.
(iv) At 3.00 a.m. his BP recorded was 80/60. At 3.10 a.m. it was noted that BP was not recordable. At 3.20 a.m. he was declared dead.
(v) According to the petitioner, Bhaskar Debroy was carrying a smart phone. Further, despite his conscious condition and availability of his phone no relatives were informed about the accident. He was carrying an identity card issued by the Bar Council of Tripura from which also the details of his family members could have been traced.
(vi) The petitioner has pointed out that an FIR has been registered for commission of offence under Section 304 Part II IPC with the intervention of the Superintendent of Police, West Tripura.
(vii) According to the petitioner, at the said hospital after 5.00 p.m. no specialist doctors are available and the Trauma Centre, Emergency Unit and other wards of the hospital are managed by PG medical students. As a result, Bhaskar Debroy was not attended by any specialist doctor which led to his tragic death.
(viii) The petitioner has referred to the Death Audit Report submitted by a team of doctors of the Government hospitals constituted by the Government to inquire into the cause of death.
Page - 5 of 32 On the basis of such materials, the petitioner has contended that the death of the advocate could have been avoided had the injured been given proper timely treatment. The prayers made in the petition, therefore, seek proper investigation into cause of death, compensation for the dependence of the deceased and general directions for systemic improvement in order to avoid recurrence of any such incident. In this order, we would focus only on the interim prayer for compensation.
[5] Along with an affidavit dated 20th August, 2020 of Smt. Anima Debbarma, Under Secretary to the Government of Tripura, Health and Family Welfare Department, a copy of the preliminary Death Audit Report dated 10th March, 2020 has been annexed. The final report of the audit team dated 12th March, 2020 is also annexed. In the preliminary report dated 10th March 2020, the audit team had carried out a fairly extensive inquiry. The final report was kept pending for availability of post-mortem report. From the preliminary report following important aspects emerge:
(i) Patient Bhaskar Debroy was brought to the hospital by Fire Brigade personnel at late night on 7th March, 2020. At 12.59 Dr. Debasish Paul attended the patient and recorded that he was conscious and had given the history himself of having consumed alcohol and there was no history of assault.
(ii) No investigation was initiated and no specialist was called by the said doctor. Dr. Abhijit Acharjee was on duty but did not attend the patient since he was busy with other patients.
(iii) At 1.15 a.m. on 7th March, 2020 it was recorded that the patient was semiconscious, drowsy and not oriented and the pupils were reacting sluggishly.
(iv) Dr. Ronit Das advised various investigations such as CBC, LFT, KFT, Xray, Ultrasonography of abdomen etc. but did not arrange to do the same.
(v) It was found that there was no Call Duty Roster of Medical Department. Even at the Medicine Ward there was no official Call Duty Roster.
(vi) The patient was shifted to medicine ward at 2.00 a.m. where he was attended by Dr. J Harish, PG, 1st year who diagnosed that the patient has acute alcoholic intoxication and started conservative treatment. He suggested baseline investigations such as CBC, LFT, KFT, Lipid profile, Xray Chest, ECG etc. but did not arrange to do the same.
(vii) While planning for investigation and radio imaging, the patient suddenly became disoriented at 3.00 a.m. and cardiopulmonary resuscitation was done and life supporting drugs were given but the patient died at 3.20 a.m. Dr. J Harish stated that the patient's condition had deteriorated suddenly. He was busy reviving the patient and, therefore, could not call the specialist.
Page - 6 of 32 [6] On the basis of such material collected during the course of the inquiry, the death audit team unanimously came to following conclusions :
The Fire brigade personnel could not inform in details about RTA/Physical assault about the Patient Mr. Bhaskar Debroy. (Annexure I-Statement of Computer Mr. Amir Sohel).
No proper history was available as there were no patient party. But Dr. Debasish Pal who first examined the patient managed to take history from the patient who was conscious and oriented at that moment. History reveals that the patient had consumed alcohol but no history of RTA and Assault was given.(Annexure II- Statement of Dr. Debasish Paul).
Physical examination was not done systematically by all them on duty Doctors who had attended the patient Mr. Bhaskar Debroy.
No investigations were advised at Trauma centre, neither specialist call was initiated by Dr. Debasish Paul. Investigations was advised at Emergency by Dr. Ronit Das but not initiated to arrange the same, neither specialist call was sent.
No official call duty roster is available at present, but instead PGs are directed to call any one of the faculty in case of emergency. (Annexure XIX - Statement of Dr. Arunabha Das Gupta) There was a delay in initiating treatment right from the entry of the patient at trauma centre till reaching Medicine ward. The patient could have been managed at Trauma/Emergency block itself reducing transit time.
Dr. J Harish though initiated the treatment after receiving the patient Mr. Bhaskar Debroy but he also did not examine systematically and did not taken second opinion from senior faculty. He though advised emergency Investigations but not initiated to arrange the same.
On thorough scrutiny of Admission ticket, OPD ticket, Direction sheet along with statements of persons concerned it is difficult to opine regarding medical negligence as well as exact cause of death of Mr. Bhaskar Debroy.
For that a letter is issued to SP West to provide a copy of PM Report, Photographs taken by Investigating officer and any other relevant documents to compare the statements and to give final opinion. (Annexure XXXI & XXXII- Peon book copy & Letter given to SP west)."
[7] In the final report, the death audit team referred to the postmortem report in which as many as 17 external injuries and following internal injuries were recorded :
"External injury - Multiple abrasion and bruise all over the body of total 17(seventeen) numbers along with Page - 7 of 32 rotation of left lower limb outwards eventually found to be # Left Femur.
Internal injuries -
Multiple Rib fracture on the Rt. Side of Chest wall along anterior axillary line involving 3rd, 4th & 5th Ribs and 4th to 8th ribs along the Para vertebral line with fracture manubrium right.
Laceration of base of Rt. Lung with one litre of blood and clot in pleural Cavity.
Multiple Liver laceration of right lobe of size 20 cm × 10 cm × 6 cm along with some small pieces found in the peritoneal cavity.
Patchy subarachnoid hemorrhages present over Lt. Parietooccipital lobes.
Abdomen-Peritoneal cavity contains 1.5 litres of blood and blood clots.
Stomach-Contains semi digested food with alcohol smell positive with congested mucosa.
Omentum-Bruising of greater omentum with
blood clots present, mucosa congested.
Right Kidney-Hematoma present over perinephric
area.
Viscera & Blood-Preserved for toxicological
analysis.
After thoroughly scrutinizing and comparing the Postmortem report with the bed head ticket, all statements, especially statements of doctors concerned it is clear that on duty concerned doctors of Trauma Centre, Emergency and Medicine department did not examine and investigate the patient properly and therefore missed multiple grievous injuries that eventually caused the death."
[8] On the basis of such further information, the Death Audit Team recorded following discrepancies in its said report dated 12th March, 2020 :
"There is remarkable discrepancy in between the provisional diagnosis as Alcoholic Intoxication mentioned in bed head ticket and cause of death due to shock and hemorrhage from multiple injuries caused impact of hard and blunt force. Viscera & Blood-Preserved for toxicology.
Reason behind the gap causing unfortunate and painful death of Mr. Bhaskar Debroy is due to system failure of not maintaining the norms of level 2 trauma centre as per guidelines which shows on call facility only for neurosurgeons and paediatrician. Rest of the Departments of Medicine, Orthopaedics, Anaesthetists must be present and cover 24 × 7 at Trauma Centre. (Annexure no-XXXIII-DGHS guideline Page no-21) On investigation it is learnt that no faculties are posted at Trauma Centre rather the inexperience THS cadres not related to Medical College (AGMC), Intern and first Page - 8 of 32 year PG students are forced to cover the all the Units of medicine and all the Unit of Surgery at late evening and nights which is inhuman.
The faculties must share their responsibilities and DME, Principal and MS must immediately take initiative to rejuvenate the Level 2 Trauma Centre urgently to avert such type of incidences in future.
It is also observed that this type of incidents are on the raise and it will continue if the inexperience THS Cadre Doctors, PG Students, Interns are on duty without- faculties not below the rank of Asst. Professor, Senior Resident holding PG degree of the concerned Department who should be posted 24 × 7 at Trauma Centre as per guidelines."
[9] In the post-mortem report dated 10th March 2020, a panel of 3 doctors had recorded following external injuries :
"7) Injuries :
1) Reddish colour abrasion measuring 1.5 cm × 0.5 cm is present on the right side of forehead, 3.5 cm from midline and 0.7 cm above the right eyebrow.
2) Reddish colour abrasion measuring 05 cm × 4.5 cm is present on the back of right arm, just above the elbow joint.
3) Reddish colour abraded bruise measuring 05 cm × 05 cm is present on the inner aspect of right elbow joint.
4) Reddish colour abrasion measuring 03 cm × 0.2 cm is present on the back of right forearm, 8 cm below the elbow joint.
5) Reddish colour bruise measuring 08 cm × 03 cm is present on the back of right forearm, just below injury no.4.
6) Reddish colour abrasion measuring 9.5 cm × 2.5 cm is present on the back of right hand, extending from the wrist joint to the thumb.
7) Reddish-blue colour bruise measuring 07 cm × 07 cm is present on the back of right hand, 1.5 cm below the wrist joint.
8) Reddish colour abrasion measuring 0.5 cm × 0.5 cm is present on the outer aspect of index finger of right hand, 5.5 cm below the base of finger.
9) Two reddish colour abrasions measuring 0.5cm × 0.4 cm and 0.9 cm × 0.5 cm are present on the outer aspect of middle finger of right hand, 2.4 cm apart and 04 cm below the base of finger.
10) Reddish colour abrasion measuring 0.7cm × 0.1 cm is present on the back of ring finger of right hand, just below the base of finger.
11) Reddish colour abrasion measuring 0.1 cm × 0.1 cm is present on the back of little finger of right hand, 01 cm below the base of finger.
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12) Reddish colour abrasion measuring 21 cm × 07 cm is present on the inner aspect of left forearm, just below the elbow joint.
13) Reddish colour abrasion measuring 0.5 cm × 0.1 cm is present on the outer aspect of left forearm, 03 cm above the wrist joint.
14) Reddish colour abrasion measuring 0.3 cm × 01 cm is present on the back of left forearm, 01 cm below the elbow joint.
15) Left lower limb is apparently shortened and rotated outwards. On dissection, left femur bone is found fracture, 24 cm above the knee joint and the fractured fragments are displaced. The upper part of the femur bone is displaced outwards and the lower part is displaced inwards and upwards. Hematoma is present in the soft tissues and muscles around the fractured site.
16) Reddish colour abrasion measuring 5.5 cm × 03 cm is present on the inner aspect of left knee joint.
17) Reddish colour abrasion measuring 04 cm × 2.5 cm is present over the medial malleolus of left ankle joint.
18) Reddish colour abrasion measuring 01 cm × 01 cm is present on the front of right knee joint.
All the above mentioned injuries are ante-mortem in nature and are of fresh in duration of age at the time of death and are caused by the impact of hard and blunt force."
The cause of the death was shown to be shock and haemorrhage resulting from multiple injuries caused by impact of hard and blunt force. All the injuries were ante mortem. [10] The Government had also set up a Magisterial inquiry which was conducted by District Magistrate and Collector, West Tripura, Agartala. He submitted his report on 24th August, 2020. The terms of reference included to find out circumstances into the cause of unnatural death of Bhaskar Debroy, to determine the sequence of events leading to his death and medical negligence, if any, during his treatment. The Magistrate recorded the statements of several witnesses and also relied on the Death Audit Report. His observations were that no physical examination was done systematically by all on duty doctors. No investigation was advised at Trauma Care Centre, neither specialist call was initiated by Dr. Debasish Paul. Investigation was advised at the Emergency Block but it was not initiated or arranged. He unequivocallyconcluded that this was a case of medical negligence in providingstandard care and treatment to the patient and such negligence led to theunfortunate death of Bhaskar Debroy. His conclusions in this respect are as under :
"So, here considering all the facts and evidence, finding of Death Audit Report, Post Mortem Report and summarizing the gist of all statements, I Dr. Mahatme Sandeep N, IAS, Magistrate find medical negligence in providing standard care and treatment to that injured patient namely Bhaskar Debroy and such negligence leads to unfortunate death to Late Debroy & I hold Dr. Debasish Paul, on duty Doctor of Trauma Care Centre, Dr. Ronit Das, Dr. Suman Nath, EMOs at Emergency Page - 10 of 32 Block of AGMC & GBP Hospital as responsible for such Gross Medical Negligence which leads to death of Bhaskar Debroy."
[11] The police had also completed the investigation and submitted the charge sheet on 15th October, 2020 relevant portion of which reads as under :
"Hence, I do hereby submit charge sheet vide NCC PS Charge sheet No-064/2020 dated -15/10/2020 U/S- 304A/34 of IPC in connection with New Capital Complex PS Case No.2020/NCC/042 dated 07/03/2020 U/S - 304(II)/34 of IPC against (1) Shri Suman Nath (26) S/O Shri Maniklal Nath of Bijoy Nagar PS - Sabroom, Junior Resident Doctor (NonAcademic) of AGMC & GBP Hospital (2) Mr. J Harish S/O Jothimani, MBBS (Uder Post Graduate Training, Medicine) of AGMC & GBP Hospital No.6/15 Arasamarathu Veedhi, Virachilai Post, Virachilai Dist-Pudukkottai Tamil Nandu Pin - 622 412 (3) Shri Ronit Das (25) S/O Shri Ranjit Kumar Das of Bhattapukur near Kalibari PS - West Agartala, Junior Resident Doctor (Non-Academic) of AGMC & GBP Hospital (4) Dr. Debasish Paul (30) S/O Late Dinendra Paul of Vill : Kalachari, P.O : Manik Bhander, PS -
Kamalpur, Dhalai District, Medical Officer, Trauma Care Centre of AGMC & GBP Hospital (5) Dr. Abhijit Acharjee (30) S/o Shri Swapan Kumar Acharjee of Krishna Nagar Natun Pally PS - West Agartala, Medical Officer, Trauma Care Centre of AGMC & GBP Hospital."
[12] Above noted materials clearly demonstrate that this was a case of medical negligence which resulted into the death of a young advocate and which death, going by the experts' opinion, could have been avoided had proper timely investigations done and treatment given. In the present case, neither proper investigation was carried out nor adequate treatment administered. These observations and conclusions are based on following salient features of the matter which emerge from the Death Audit Report and the report of the Magisterial inquiry:
(i) The patient was brought to the hospital late at night on 6th March, 2020 when he was still conscious and coherent. He was carrying a smart phone and identity card issued by the Bar Council. Under these circumstances, it should not have been very difficult for the hospital administration to inform his relatives about the accident, which appears was not done.
(ii) All throughout he was attended by junior doctors and PG medical students and no specialist was available or called.
(iii) In fact it appears that at no stage the medical or paramedical staff realized the seriousness of his injuries and the possibility that he may be carrying serious internal injuries. He was simply treated conservatively for possible alcohol overdose.
(iv) Even if the patient was brought to the hospital, seemingly under influence of alcohol, multiple external injuries which the post-mortem report indicated should have been noticed. Even the most basic and trivial medical knowledge would tell us that such external Page - 11 of 32 injuries could be correlated to internal damage which was a matter of immediate investigation. For example, min the post-mortem report several abrasions and bruises were found all over the body including on the forehead. Left femur bone was fractured above the knee. The medical team attending to the patient failed to notice these visible injuries including fractures.
(v) Several investigations such as X-ray, Sonogrpahy and ECG were advised but not done. Unknown to the doctors, the patient was carrying serious internal damage. Multiple lacerations were found on the liver. The gallbladder was also seriously damaged. Total neglect and lack of proper line of treatment led to the death of the patient due to "shock and hemorrhage resulting from multiple injuries caused by impact of hard and blunt force."
[13] The Death Audit Report and Magisterial inquiry both point in one singular direction of gross medical negligence. The police investigation also has resulted into filing of a charge sheet. Whether it is a collective failure and a case of systemic negligence or whether some individuals should carry greater burden of medical negligence, the time will tell. Nevertheless, inescapable conclusions that one would arrive at on the basis of the materials on record is that this was a case of negligence in treating the injured patient which led to his death. Going by the version of the petitioner when he had the access to the dead body of the young advocate he was still wearing his full clothes with belt and shoes on which would indicate that the doctors did not even care to take a look at the full body of the patient. This would be in consonance with the fact that the visible external injuries including the fractures do not even seem to have been noticed by the treating doctors. Serious internal injuries had to be detected through proper investigation. Reports of Xray, Sonography and ECG though called for, these investigations were not conducted. There was no senior doctor or specialist available or summoned. All in all, the official respondents must carry the vicarious civil liability for such wrongs committed.
[14] With this background, we may address the issue of awarding compensation in the writ petition. Though rare, it is not impermissible, nor uncommon. Learned counsel for the petitioner has relied on certain decisions to which we may refer at this stage.
In case of Leena Shamji Maru and Ors. Vs. B.Y. L. Nair Hospital and Ors. in a judgment dated 17th September, 2019 in Writ Petition No.2652/2018 Division Bench of Bombay High Court was dealing with a case of accidental death in a hospital run by Municipal Corporation of Greater Mumbai. A relative, Rajesh Maru, who was attending to a patient being taken to MRI centre was carrying a metallic oxygen cylinder. Suddenly, on account of magnetic field of the MRI machine, the relative got trapped between the MRI machine and the oxygen cylinder. The oxygen cylinder on account of the impact started leaking. Rajesh Maru inhaled excessive quantity of oxygen which caused his death. His legal heirs and dependents sought compensation from the Municipal Corporation alleging negligence on part of the administration. The Court referred to several decisions on the question of awarding compensation in Page - 12 of 32 such cases in a writ petition including the case of Municipal Corporation of Delhi Vs. Uphaar Tragedy Victims Association and Ors. reported in (2011) 14 SCC 481 and awarded a compensation of Rs.10,00,000/- to the petitioners.
In case of Uphaar Tragedy case (supra) the Supreme Court had made following observations :
"96. Courts have held that due to the action or inaction of the State or its officers, if the fundamental rights of a citizen are infringed then the liability of the State, its officials and instrumentalities, is strict. Claim raised for compensation in such a case is not a private law claim for damages, under which the damages recoverable are large. The claim made for compensation in public law is for compensating the claimants for deprivation of life and personal liberty which has nothing to do with a claim in a private law claim in tort in an ordinary civil court.
97. This Court in Union of India v. Prabhakaran Vidya Kumar (2008)9 SCC 527, extended the principle to cover public utilities like the Railways, electricity distribution companies, public corporations and local bodies which may be social utility undertakings not working for private profit. In Prabhakaran (supra) a woman fell on a railway track and was fatally run over and her husband demanded compensation. Railways argued that she was negligent as she tried to board a moving train. Rejecting the plea of the Railways, this Court held that her "contributory negligence" should not be considered in such untoward incidents - the railways has "strict liability". A strict liability in torts, private or constitutional do not call for a finding of intent or negligence. In such a case highest degree of care is expected from private and public bodies especially when the conduct causes physical injury or harm to persons. The question as to whether the law imposes a strict liability on the State and its officials primarily depends upon the purpose and object of the legislation as well. When activities are hazardous and if they are inherently dangerous the statute expects highest degree of care and if someone is injured because of such activities, the State and its officials are liable even if they could establish that there was no negligence and that it was not intentional. Public safety legislations generally fall in that category of breach of statutory duty by a public authority. To decide whether the breach is actionable, the Court must generally look at the statute and its provisions and determine whether legislature in its wisdom intended to give rise to a cause of action in damages and whether the claimant is intended to be protected.
98. But, in a case, where life and personal liberty have been violated, the absence of any statutory provision for compensation in the Statute is of no consequence. Right to life guaranteed under Article 21 of the Constitution of India is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Article 21 of the Constitution of India has to be read into all public safety statutes, since the prime object of public safety legislation Page - 13 of 32 is to protect the individual and to compensate him from the loss suffered. Duty of care expected from State or its officials functioning under the public safety legislation is, therefore, very high, compared to the statutory powers and supervision expected from officers functioning under the statutes like Companies Act, the Cooperative Societies Act and such similar legislations. When we look at the various provisions of the Cinematographic Act, 1952 and the Rules made thereunder, the Delhi Building Regulations and the Electricity Laws the duty of care on officials was high and liabilities strict."
In case of Puli Raju Vs. Government of A. P. and Ors a Single Judge of Telengana High Court in a decision dated 18th February, 2019 had invoked the writ jurisdiction for awarding compensation to the family of the victim in case of medical negligence.
In case of Umakant Kisan Mane Vs. The Dean, Rajawadi Municipal Hospital and Ors. reported in 2016 (2) Maharashtra Law Journal 266 Division Bench of the Bombay High Court exercised writ jurisdiction for awarding compensation in case of medical negligence. The Court awarded the compensation of Rs.21,82,500/- to be paid to the petitioner. Following observations were made :
"12. If the medication had been given properly inside the vein and the doctors and nurses were not negligent, the injury would not have happened and the gangrene could not have set in and the fingers could have been saved. It is a clear case of gross negligence on the part of the doctors and the nurses of the respondents to allow this to happen. Moreover, from the report of the inquiry committee it appears that the doctors were negligent in informing the relatives of the petitioner about the nature of the ailment and the nature of the operation. Even proper form was not filled in because the consent form is in English whereas the patient's father has signed in Marathi. Paragraph 6 of the observation of the inquiry committee's report dated 11th February, 2003 states that "Consent form lacked the proper form, witness signature and doctor's signature. It could have been in Marathi".
The inquiry committee has also noted that the relatives were not much concerned about the patient but at the same time that has no direct relationship with the events relating to gangrene of fingers. It is also observed that the patient was discharged against medical advice as per the wish of relatives but there is nothing on record to show why the patient was discharged after 2-3 days of amputation and the patient continued to attend the outpatient department after his discharge for receiving treatment.
* * *
15. There has been a breach of legal duty on the part of the respondents resulting in the petitioner losing his fingers of his right hand. In our view, due to this inaction on the part of the respondents, the fundamental right of the petitioner is infringed. The claim made in this petition is in public law, for compensating the petitioner, for deprivation of life and personal liberty. In this case, when Page - 14 of 32 the doctors were administering medication which could cause injury if not properly administered, the principle of Res Ipsa Loquitur applies."
[15] In the present case, the facts speak for themselves. It is a clear case where we can invoke the well-known and oft- repeated maxim of Res Ipsa Loquitur. Only question that remains is of assessing the interim compensation to be paid to the mother of the deceased. While doing so, one may base the calculations on the principles evolved in the context of motor accident claim cases of death due to negligence. The deceased was aged about 29 years and was a practicing advocate since about 5 years. He is survived by his sole dependent the mother, he himself was unmarried. As per settled principles, in such a case for choosing the multiplier, the age of the deceased and not that of the mother would have to be taken into consideration. For personal expenditure 50% of the income would be set apart for the deceased leaving the rest 50% for the mother. Even going by the modest estimate of the income of a lawyer with 5 years standing at Rs.10,00,000/- and providing for future rise in income as per the decisions of the Supreme Court in cases of Sarla Verma and ors. Vs. Delhi Transport Corporation and anr. reported in (2009) 6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi and ors. reported in (2017) 16 SCC 680; added by compensation for conventional heads such as loss of estate and loss of parental consortium estimated compensation for the mother would not come below Rs.10,00,000/-. By applying this rough and ready formula, in our opinion, the official respondents should be asked to pay interim compensation of Rs.10,00,000/- to the mother of the deceased. Awarding full compensation can be done only after brining full evidence on record. For which it would be open for the dependent of the deceased to file appropriate civil proceedings. For the future financial safety of the mother of the deceased part of this compensation must be invested in fixed deposits. We must also clarify that the observations made in this order are in relation to the civil liability and we have not concluded the question of individual specific negligence of any of the medical, paramedical or administrative staff to the hospital. In case of criminal case as well as departmental inquiries, if instituted or which may be instituted hereafter, none of these observations would limit the defence of any one."
[5] While deciding the I.A in the manner as aforesaid, we held that if the mother of the deceased wants any further compensation, the same must be after bringing on record full material such as the income of the deceased etc which can be done in a properly instituted civil suit. It was held by us that it would be open for her to file such proceedings in which, if any order for compensation is passed, amount awarded in the I.A will be adjusted towards the final compensation that may be awarded.
Page - 15 of 32 [6] In the preliminary audit report submitted on 10.03.2020, the death audit team constituted by the State Government made the following recommendations in order to improve the facilities in the trauma care centre as well as in the emergency block of the hospital to prevent system failure and negligence in the care of patients brought to the hospital:
[i] One senior faculty of Medicine and allied Dept. should be posted at Emergency Block from 05.00 PM to 09.00 AM, next morning.
[ii] One senior faculty of Surgery and allied Dept. should be posted at Trauma care centre from 05.00 PM to 09.00 AM next morning.
[iii] The call system of Trauma care Centre and emergency Block must be abolished.
[iv] The name of the on duty Doctors must be properly displayed in trauma care centre, Emergency block and also in respective Departments.
[v] Medical Officers who are already trained in trauma care and posted elsewhere should be brought immediately to Trauma centre.
[vi] Untrained health care personnel including doctors should not be posted at Trauma Centre.
[vii] CCTV cameral to be installed at trauma care Centre and emergency block immediately. Presently CCTV cameras are on trial and not yet handed over to authority as informed by MS office.
[viii] To reduce the workload of treating Doctors (Clinicians) Clinical Forensic Medicine Unit must be established at AGMC & GBP Hospital. This Unit may take over the Emergency Block under the HOD Forensic Medicine and regularly conduct death audit as per MCI norms. All the medico legal matters must be dealt with by Forensic department, which will reduce the clinicians' burden as well as attending court cases may be averted which will involve them only in clinical activities.
[7] When the matter was taken up by us on 08.11.2021, the State counsel could not apprise the court as to whether the steps suggested by the death audit team were implemented or not. Therefore, we called upon the State to file an affidavit within a period of three weeks indicating as to whether the Page - 16 of 32 steps as recommended by the death audit team were implemented and if so, in what manner. The order passed by us on 08.11.2021 reads as under:
"Heard learned counsel for the respective parties. Learned Government Advocate has drawn our attention to the suggestions made by the Audit team who inquired into the unfortunate death of Bhaskar Debroy and in particular, in its conclusion. It appears that the suggestions that have been made by the Audit team in order to try and ensure that no future negligence takes place in the care of patients brought to the hospital. The learned Government Advocate is unable to state in Court today as to whether the steps as suggested have been implemented or not whereas the counsel for the petitioner asserts to his information that no such steps have been taken in terms of the suggestions made by the Audit team. However, in view of this fact, we call upon the State to file an affidavit indicating as to whether the steps as recommended by the Audit team have been implemented and if so, in what manner. Affidavits should be sworn and filed before this Court within a period of three weeks from today. Copies be served in advance on the learned counsel for the petitioner."
[8] Pursuant to our order dated 08.11.2021, an affidavit dated 17.01.2022 came to be filed by the Deputy Secretary to the Government of Tripura, Health and Family Welfare Department in which the deponent claimed that pursuant to the recommendations dated 10.03.2020 of the death audit team, following actions were taken by the State Government towards implementation of those recommendations:
[a] 2 (Two) senior Specialists from Medicine & allied Department have been performing duty in the Casualty Block One from 4.30 pm to 10pm and another one from 10 pm to 9 am next day.
[b] In Trauma Care Center 1 (One) Senior specialist from Surgery & allied Departments are posted from 10 pm to 9am next day and from 4 pm to 10 pm specialist coverage is already given by the Surgery & allied Department.
[c] After implementation of the duty rosters, the call system for the specialist is no longer required.
Page - 17 of 32 [d] Regarding the implementation of displaying the names of the consultant, the M.O. I/C of Casualty Block and Trauma Care centre have taken adequate steps and the name of consultant are accordingly being displayed.
[e] Regarding posting of Medical Officers specially trained in Trauma Care, at present there is no such trained doctor available in the state of Tripura.
However endeavour has been made to appoint trained trauma doctors.
[f] Regarding the installation of the CCTV, the same has already been installed and in operation in the trauma care centre and emergency block.
[g] A clinical Forensic Medicine Unit at AGMC & GBP Hospital, Agartala has been set-up to reduce the workload of Treating Doctors has been processed under the guidance of the HOD Dept. of FM & T, AGMC & GBP Hospital, Agartala.
[9] Without commenting or adjudicating on such issues, we requested the death audit team led by Dr. Sankar Debroy, M.S. (Ortho) to go through the affidavit filed by the Deputy Secretary to the Government of Tripura, visit the trauma care centre located in AGMC & GBP hospital, Agartala and submit its report in a sealed cover before this court indicating as to whether in its opinion the recommendations made by the death audit team have been complied with or not and whether any further issues are left for consideration of the State in such matter. Since it was claimed by the Deputy Secretary to the Government of Tripura in his said affidavit that two Senior Specialists from Medicine and allied Departments were performing duty at the casualty block, one between 04.30 pm to 10pm and another from 10pm to 9am next day, we called upon the Deputy Secretary to file an affidavit as to who were those Doctors performing such duty in the trauma care centre and casualty block. We passed the following order dated
18.01.2022 containing such directions:
Page - 18 of 32 "The main issue that remains for consideration in the present Public Interest Litigation (PIL) is as to whether the final report of the Audit team dated 12th March 2020, which had been created by this Court for the purpose of taking recommendations for enhancing the treatment facilities at the Trauma Care Centre of AGMC & GBP Hospital, has been complied with or not both in letter and spirit. The objects behind the recommendation made by the Audit team were obvious in order to enhance the capacity of the Trauma Care Centre and to meet the requirements of persons requiring treatment at such Trauma Care Centre.
Pursuant to directions issued by this Court an affidavit has come to be filed by the Deputy Secretary to the Government of Tripura, Health & Family Welfare Department dated 17 th January, 2022. The said affidavit contains various steps taken by the State to comply with the suggestions made by the Audit team. Without commenting or adjudicating on such issues, this Court feels it appropriate to request the self-same Audit team led by Dr. Sankar Debroy, M.S (Ortho) to go through the affidavit filed by the Deputy Secretary to the Government of Tripura, as noted hereinabove, visit the Trauma Centre and submit its report in a sealed cover before this Court indicating as to whether in its opinion the recommendations made by the Audit team have been complied with or not and whether any further issues are left for consideration by the State in such matter.
Registry is directed to send a copy of this order along with affidavit of the Deputy Secretary to Dr. Sankar Debroy who on receipt of the order of this Court shall request his colleagues who were earlier members of the team to go along with him, visit the Trauma Care Centre and submit a report before this Court in a sealed cover within a period of 5 (five) weeks from today. All necessary logistic support that may be required by the said team would be provided by the State.
On perusal of the affidavit filed by the Deputy Secretary to the Government of Tripura, particularly in Para 2(a) and (b), although it is claimed that two senior Specialists from Medicine & allied Departments are performing duty at the Casualty Block one between 4.30 pm to 10 pm and another one from 10 pm to 9am next day, the Deputy Secretary is called upon to file an affidavit as to who are the doctors manned during the day hours i.e. between 9 am to 4.30 pm in both the Trauma Care Centre and the Casualty Block. Further, we find from assertion made in Para 2(e) that the State is making endeavour to appoint the trained trauma doctors. We also call upon the Deputy Secretary to explain what such endeavours are and also to take a decision in this regard and intimate this Court by way of further affidavit."
Page - 19 of 32 [10] Pursuant to our order dated 18.01.2022, the members of the death audit team led by its Chairman, Dr. Sankar Debroy conducted a visit to the trauma care centre and casualty block on 09.02.2022 from 01.00 pm to 04.00 pm to take stock of the status of implementation of its recommendations dated 10.03.2020. After such visit, the death audit team has submitted its report dated 24.02.2022. It has recorded the following observations with regard to the deficiencies in implementation of its recommendations:
"[1] Duty Roster from 5.00 PM to 9.00 AM next day by the Senior Faculties at Casualty Block and Trauma care Centre for the Month of January 2022 is available but no room is earmarked with attached washroom for Specialties of Medicine/Surgery and Allied Department at both Trauma Care Centre and Casualty Block. On enquiry it is found that Post Graduate Doctors of The Orthopaedic Department are staying at Trauma Care Centre upto 10 PM but not after that at night. No other Department faculties are following the roster stated above.
[2] The Notice Board at Casualty Block that is maintained by Morning shift Sister of Casualty are still continuing the old system of writing names of "Doctors on Call" without getting any Duty Roster signed by Medicine and Allied Department.
[3] On enquiry it is found that Senior Faculties at Casualty Block and Trauma care Centre from Department of Medicine/Surgery and Allied are not staying inside the Casualty Block/Trauma Centre for performing duty, but being called over telephone.
[4] There is no Emergency Medicine Department at Casualty Block at present as per NMC guidelines. The Emergency Medicine Department will be holding the Administrative Control of Casualty Block. Though a committee was Page - 20 of 32 formed to establish the same vide Memo No.F.3(13)-HFW/2014 Dated 30/09/2019 and report of the committee was also submitted. Copy of Memo No.F.3(15)-
HFW/2014 Dated 30/09/2019 along with report is Annexed-"B".
[5] Notice Board of Casualty Block depicting name of on Duty Doctors is not displayed at proper place but inside a room.
[6] The CCTV cameras at Casualty and Trauma care Centre are not functioning.
[7] Rooms at Trauma Centre are not yet earmarked for Establishment of Clinical Forensic Medicine Unit (CFMU)."
[11] We are surprised to note that in the compliance affidavit, the Deputy Secretary to the Department of Health and Family Welfare, categorically asserted that senior specialists from Medicine and allied Department were performing duty in Casualty Block from 04.30 pm to 10 pm and 10 am to 9 am on the next day and that Senior Specialists from surgery and allied Departments were also posted from 4pm to 10 pm and 10pm to 9am next day in the Trauma Care Centre and the duty roster system was also fully implemented. It was further asserted by her that CCTV were functional both in the trauma care centre and in the emergency block. As stated, her affidavit was filed on 17.01.2022. Pursuant to the direction of this court, the death audit team visited the trauma care centre as well as the casualty block on 09.02.2022 and found that no post graduate doctors/Specialists of the orthopaedic department were staying in the trauma care centre after 10 pm and even no faculties of other departments were following the duty roster. It was also detected by the death audit team that no senior faculties were saying inside the casualty block and trauma care centre for performing duty.
Page - 21 of 32 They were only being called over telephone. Even CCTV camera at the casualty block and the trauma care centre were not functioning.
[12] We are really shocked to note that a senior officer of the rank of Deputy Secretary in the Health and Family Welfare Department acted in such a casual and irresponsible manner on such a sensitive issue. The officer did not even verify the truth of her statements before swearing the affidavit on 17.01.2022.
However, we leave the matter to the State Government to enquire as to how the officer made such inaccurate statements in her affidavit and take suitable action in the matter.
[13] The facts and circumstances stated above demonstrate that despite the direction of this court for implementing the recommendations of the death audit team, the most basic and essential facilities are not yet made available in the trauma care centre as well as in the casualty block. Along with its final report dated 12.03.2020, the death audit team has submitted the operational guidelines issued by the Government of India, Ministry of Health and Family Welfare Department for developing trauma care centres in hospitals at national highways and hospitals across the country which contains the following road safety policy of the Government of India:
"The Government will strive to aim that all persons involved in road accidents benefit from speedy and effective trauma care and health management. The essential functions of such a service would include the provision of rescue operation and administration of first aid at the site of an accident, the transport of the victim from accident site to an appropriate nearby trauma care hospital."
[14] Based on statistical data received from across the globe, it has been stated in the said scheme that road traffic deaths and injuries are predictable and preventable. It has been experienced that a well equipped trauma care centre Page - 22 of 32 can significantly reduce accidental deaths. Detailed guidelines have been provided as to how an well equipped trauma care centre and a strong trauma care system can be created in the State.
[15] In the course of his arguments, Mr. P. Roy Barman, learned senior advocate apart from pointing out to the system failure also contended that the victim of this case lied wounded on the street for quite sometime before he was rescued by the Fire Service staff. Had he been brought to the hospital without losing the golden hour, the situation could have been otherwise. Counsel contended that death in many cases of road traffic accidents can be prevented by shifting the injured to hospital or health care institution in time. But due to fear of legal consequence, involvement in litigation and repeated visits to police station people are hesitant to render immediate help to the road accident victims. As a result, the medical attention gets delayed which in many cases appear to be fatal.
Having relied on the decision of the Apex Court in the case of Savelife Foundation & Anr. vs. Union of India & Anr. reported in (2016) 7 SCC 194, Mr. Roy Barman, learned senior counsel contended that pursuant to order dated 29.10.2014 passed by the Apex Court in the said case, the Central Government, Ministry of Road Transport and Highways had issued a notification on 12.05.2015 for protection of good Samaritans which is as under:
"No.25035/101/2014-RS.--Whereas the Hon'ble Supreme Court in Savelife Foundation V/s. Union Of India vide its order dated 29.10.2014, interalia, directed the Central Government to issue necessary directions with regard to the protection of Good Samaritans until appropriate legislation is made by the Union Legislature;
And whereas, the Central Government considers it necessary to protect the Good Samaritans from harassment on the actions being taken by them to save the life of the road accident victims and, therefore, the Central Government hereby issues the following guidelines to be followed by hospitals, police and all Page - 23 of 32 other authorities for the protection of Good Samaritans, namely:-
1(1) A bystander or good Samaritan including an eyewitness of a road accident may take an injured person to the nearest hospital, and the bystander or good Samaritan should be allowed to leave immediately except after furnishing address by the eyewitness only and no question shall be asked to such bystander or good Samaritan.
(2) The bystander or good Samaritan shall be suitably rewarded or compensated to encourage other citizens to come forward to help the road accident victims by the authorities in the manner as may be specified by the State Governments. (3) The bystander or good Samaritan shall not be liable for any civil and criminal liability.
(4) A bystander or good Samaritan, who makes a phone call to inform the police or emergency services for the person lying injured on the road, shall not be compelled to reveal his name and personal details on the phone or in person. (5) The disclosure of personal information, such as name and contact details of the good Samaritan shall be made voluntary and optional including in the Medico Legal Case (MLC) Form provided by hospitals.
(6) The disciplinary or departmental action shall be initiated by the Government concerned against public officials who coerce or intimidate a bystander or good Samaritan for revealing his name or personal details.
(7) In case a bystander or good Samaritan, who has voluntarily stated that he is also an eye-witness to the accident and is required to be examined for the purposes of investigation by the police or during the trial, such bystander or good Samaritan shall be examined on a single occasion and the State Government shall develop standard operating procedures to ensure that bystander or good Samaritan is not harassed or intimidated.
(8) The methods of examination may either be by way of a commission under section 284 of the Code of Criminal Procedure, 1973 or formally on affidavit as per section 296 of the said Code and Standard Operating Procedures shall be developed within a period of thirty days from the date when this notification is issued.
(9) Video conferencing may be used extensively during examination of bystander or good Samaritan including the persons referred to in guideline (1) above, who are eye witnesses in order to prevent harassment and inconvenience to good Samaritans.
(10) The Ministry of Health and Family Welfare shall issue guidelines stating that all registered public and private hospitals are not to detain bystander or good Samaritan or Page - 24 of 32 demand payment for registration and admission costs, unless the good Samaritan is a family member or relative of the injured and the injured is to be treated immediately in pursuance of the order of the Hon'ble Supreme Court in Parmanand Katara vs Union of India.
(11) Lack of response by a doctor in an emergency situation pertaining to road accidents, where he is expected to provide care, shall constitute "Professional Misconduct", under Chapter 7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 and disciplinary action shall be taken against such doctor under Chapter 8 of the said Regulations.
(12) All hospitals shall publish a charter in Hindi, English and the vernacular language of the State or Union territory at their entrance to the effect that they shall not detain bystander or good Samaritan or ask depositing money from them for the treatment of a victim.
(13) In case a bystander or good Samaritan so desires, the hospital shall provide an acknowledgement to such good Samaritan, confirming that an injured person was brought to the hospital and the time and place of such occurrence and the acknowledgement may be prepared in a standard format by the State Government and disseminated to all hospitals in the State for incentivising the bystander or good Samaritan as deemed fit by the State Government.
(14) All public and private hospitals shall implement these guidelines immediately and in case of noncompliance or violation of these guidelines appropriate action shall be taken by the authorities concerned.
(15) A letter containing these guidelines shall be issued by the Central Government and the State Government to all Hospitals and Institutes under their respective jurisdiction, enclosing a Gazette copy of this notification and ensure compliance and the Ministry of Health and Family Welfare and Ministry of Road Transport and Highways shall publish advertisements in all national and one regional newspaper including electronic media informing the general public of these guidelines.
2. The above guidelines in relation to protection of bystander or good Samaritan are without prejudice to the liability of the driver of a motor vehicle in the road accident, as specified under section 134 of the Motor Vehicles Act, 1988 (59 of 1988).
Sd/-
Joint Secretary."
[16] Counsel has also submitted that in terms of paragraph 1(7) and paragraph 1(8) of the said guidelines dated 12.05.2015, the Central Government, Ministry of Road Transport and Highways notified the standard operating Page - 25 of 32 procedure on 21.01.2016 for examination of the good Samaritans by the police or during trial which is as under:
"No. RT-25035/101/2014-RS.--Whereas, the Hon'ble Supreme Court in Save Life Foundation Vs Union of India vide its order dated 29.10.2014, inter-alia, directed to issue necessary directions with regard to the protection of Good Samaritans until appropriate legislation is made by the Union Legislature;
And whereas, the Central Government published the guidelines in the Gazette of India, Extraordinary, Para 1, Section 1 dated 12.05.2015 for protection of the Good Samaritans, i.e. a person who is a bystander or a passer-by, who chooses to assist an injured person or a person in distress on the road; And whereas, as per Paras 1(7) and 1(8) of the said guidelines dated 12.05.2015, Standard Operating Procedures are to be framed for the examination of Good Samaritans by the Police or during trial;
And whereas, the Central Government considers it necessary to issue Standard Operating Procedure for the examination of Good Samaritans by the Police or during trial and hereby issue the following standard operating procedure, namely:--
1.1. The Good Samaritan shall be treated respectfully and without any discrimination on the grounds of gender, religion, nationality, caste or any other grounds.
2. Any person who makes a phone call to the Police control room or Police station to give information about any accidental injury or death, except an eyewitness may not reveal personal details such as full name, address, phone number etc.
3. Any Police official, on arrival at the scene, shall not compel the Good Samaritan to disclose his / her name, identity, address and other such details in the Record Form or Log Register.
4. Any Police official or any other person shall not force any Good Samaritan who helps an injured person to become a witness in the matter. The option of becoming a witness in the matter shall solely rest with the Good Samaritan.
5. The Police official(s) concerned shall allow the Good Samaritan to leave after having informed the Police about an injured person on the road, and no further questions shall be asked if the Good Samaritan does not desire to be a witness in the matter.
2. Examination of Good Samaritan by the Police-
(i) In case a Good Samaritan so chooses to be a witness, he shall be examined with utmost care and respect and without any discrimination on the grounds of gender, religion, nationality, caste or any, other grounds.
Page - 26 of 32
(ii) In case a Good Samaritan chooses to be a witness, his examination by the investigating officer shall, as far as possible, be conducted at a time and place of his convenience such as his place of residence or business, and the investigation officer shall be dressed in plain clothes, unless the Good Samaritan chooses to visit the police station.
(iii) Where the examination of the Good Samaritan is not possible to be conducted at a time and place of his convenience and the Good Samaritan is required by the Investigation Officer to visit the police station, the reasons for the same shall be recorded by such officer in writing.
(iv) In case a Good Samaritan so chooses to visit the Police Station, he shall be examined in a single examination in a reasonable and time-bound manner, without causing any undue delay.
(v) In case the Good Samaritan speaks a language other than the language of the Investigating Officer or the local language of the respective jurisdiction, the Investigating Officer shall arrange for an interpreter.
(vi) Where a Good Samaritan declares himself to be an eye- witness, he shall be allowed to give his evidence on affidavit, in accordance with section 296 of the Code of Criminal Procedure, 1973 (2 of 1974) which refers to Evidence in Formal Character on Affidavit.
(vii) The complete statement or affidavit of such Good Samaritan shall be recorded by the Police official while conducting the investigation in a single examination.
(viii) In case the attendance of the Good Samaritan cannot be procured without delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, or his examination is unable to take place at a time and place of his convenience, the Court of Magistrate may appoint a commission for the examination of the Good Samaritan in accordance with section 284 of the Code of Criminal Procedure, 1973 (2 of 1974) on an application by the concerned.
3. The Superintendent of Police or Deputy Commissioner of Police or any other Police official of corresponding seniority heading the Police force of a District, as the case may be, shall be responsible to ensure that all the above mentioned procedures are implemented throughout their respective jurisdictions with immediate effect.
Sd/-
Joint Secretary."
[17] Counsel contends that these guidelines which have been framed under the direction of the Apex Court of the country requires strict compliance for Page - 27 of 32 protection of bystanders who come to the aid and rescue of victims of road crashes in order to save their life.
[18] Having referred to the observations made by this court in order dated 04.01.2021 in I.A No.01 of 2020, Mr. P. Roy Barman, counsel of the petitioner contends that as per observations made by this court, the death audit report and the Magisterial enquiry have pointed in one singular direction of gross medical negligence leading to the death of Bhaskar Debroy. Counsel contends that even during the investigation of the criminal case arising out of the incident, the investigating agency has charge sheeted the responsible medical officers and staff of the hospital for their negligence causing the death of Bhaskar Debroy. Counsel has contended that this court has granted an interim compensation of Rs.10,00,000/- (Rupees ten lakhs) whereas the petitioner claimed compensation of a sum of Rs.50,00,000/- (Rupees fifty lakhs). It is submitted on behalf of the petitioner that the deceased was a promising lawyer having 5 years experience at the Bar and he was the only financial support of his widowed mother. It is submitted by Mr. Roy Barman, learned senior counsel that Rs.10,00,000/- (Rupees ten lakhs) is far less than adequate for the survival of the widowed mother of the deceased. Learned senior counsel has pointed out to the observation of this court made in the order dated 04.01.2021 in I.A No.01 of 2020 wherein this court has observed that if the mother of the deceased wants, she may bring a properly instituted civil suit with details of income of her deceased son etc. for further compensation. Counsel contends that the mother of the deceased who is in acute financial crisis needs urgent financial support which cannot be obtained by her by filing a civil suit.
Page - 28 of 32 [19] Considered the entire facts and circumstances of the case and the submissions made by learned counsel representing the parties.
[20] The death audit team in its final report dated 12.03.2020 has categorically observed that the doctors of the trauma care centre, emergency and medicine department did not examine and investigate the patient properly and therefore missed multiple grievous injury that eventually caused the death. It would be appropriate to reproduce the relevant observations made by the death audit tem which is as under:
"After thoroughly scrutinizing and comparing the Post mortem report with the bed head ticket, all statements, especially statements of doctors concerned it is clear that on duty concerned doctors of Trauma Centre, Emergency and Medicine department did not examine and investigate the patient properly and therefore missed multiple grievous injuries that eventually caused the death."
[21] In the Magisterial enquiry report dated 24.08.2020 conducted by the then District Magistrate & Collector, West Tripura, Agartala it has been held at page 18 that no on duty doctor had noticed the injuries sustained by the deceased and had any doctor examined the body of the deceased, such injuries could have been noticed and all necessary steps could have been taken. The Magisterial enquiry report at page 19 reads as under:
"It is here clear that there was GROSS MEDICAL NEGLIGENCE on the part of Dr Debasish Paul who commits gross negligence when he deliberately acted knowingly that his such omission was likely to cause harm but consciously and voluntarily disregarded to give reasonable care to the patient Bhaskar Debroy and his such omission or not providing "Standard of Care" to Bhaskar Debroy leading to his unfortunate death. The "Standard of Care" is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances."
[22] Concluding remark of the Magisterial enquiry at page 22 is as under:
Page - 29 of 32 "So, here considering all the facts and evidence, finding of Death Audit Report, Post Mortem Report and summarizing the gist of all statements, I Dr. Mahatme Sandeep N., IAS, Magistrate find medical negligence in providing standard care and treatment to that injured patient namely Bhaskar Debroy and such negligence leads to unfortunate death to Late Debroy & I hold Dr. Debasish Paul, On duty Doctor of Trauma Care Centre, Dr. Ronit Das, Dr. Suman Nath, EMOs at Emergency Block of AGMC & GBP Hospital as responsible for such Gross Medical Negligence which leads to death of Bhaskar Debroy."
[23] It is apparent from the facts and circumstances stated above that there is a breach of legal duty on the part of the respondents resulting in the unfortunate death of Bhaskar Debroy for which his widowed mother is entitled to compensation. We have already observed in paragraph 15 of our order dated
04.01.2021 that if the mother of the deceased wants, she may bring a properly instituted civil suit claiming adequate compensation for the death of her son due to medical negligence giving full details including the income of the deceased. We find no reason to deviate from our earlier observation. However, considering the financial crisis and plight of the widowed mother of the deceased for immediate financial support, as it has been projected before us by the counsel of the petitioner, we find it appropriate to award a further sum of Rs.10,00,000/-
(Rupees ten lakhs) to Smt. Kankana Debroy, mother of deceased Bhaskar Debroy as compensation.
[24] In view of what has been discussed hereinabove, we issue the following directions in this case:
[i] Respondents 1 and 2 shall pay further sum of Rs.10,00,000/-
(Rupees ten lakhs) to Smt. Kankana Debroy, mother of deceased Bhaskar Debroy as compensation. The said sum of money shall be deposited before the Registry of this court latest by 15th June, 2022.
Page - 30 of 32 [ii] Upon such deposit, a sum of Rs.2,00,000/- (Rupees two lakhs) would be released in favour of Smt. Kankana Debroy through account payee cheque after due verification by the Registry. Remaining Rs.8,00,000/- (Rupees eight lakhs) would be invested in a term deposit in any nationalized bank for a period of 5 years and the monthly interest accrued therefrom shall continue to be deposited in the savings bank account of Smt. Debroy.
[iii] The recommendations made by the death audit team shall be implemented in letter and spirit within 31.05.2022.
[iv] The State Government shall take initiative to create trauma care facilities across the State in terms of the scheme framed by the Government of India, Department of Health and Family Welfare which has been brought to record by the death audit team along with its final report dated 12.03.2020 at the earliest.
[v] The suggestions made by the death audit team in its report dated 24.02.2022 which has been submitted in compliance of order dated 18.01.2022 of this court shall be discussed at the appropriate level of the State Government and corrective measures be taken immediately in terms of the suggestions made by the audit team.
[vi] The Director General of Police shall ensure that the guidelines dated 12.05.2015 and the standard operative procedure notified on 21.01.2016 by the Central Government, Ministry of Road Transport and Highways for protection of good Samaritans in terms of the decision of the Supreme Court in the case of Savelife Foundation & Anr. (supra) are made available at all police stations across the State for strict compliance and required awareness about these guidelines and SOP is created among the staff members of police at the earliest.
Page - 31 of 32 [vii] The Secretary, Department of Health and Family Welfare, Government of Tripura shall ensure that the said guidelines and SOP are made available in all hospitals and health care institutions, public and private, across the State at the earliest for strict compliance.
[viii] A compliance report in respect of the directions in [i], [iii], [iv], [v] and [vii] shall be submitted by respondent No.1 and 2 within 31.05.2022 before the Registrar (Judicial), High Court of Tripura. Compliance report in respect of direction [iii] shall be supported by an inspection report of the death audit team.
[ix] Compliance report in respect of the direction in [vi] shall be submitted by respondents No.1 and 7 before the Registrar (Judicial), High Court of Tripura within 31.05.2022.
[25] Before parting with the case, we reiterate that the observations made herein are in relation to civil liability which will have no bearing on the criminal case as well as departmental inquiries instituted against any of the medical, paramedical or administrative staff of the concerned hospital. It is further made clear that none of these observations would limit the defence of anyone.
[26] At the end, we must record our deep appreciation for the Death Audit Team for conducting a free and fair audit and submitting an objective and useful report.
We also appreciate Mr. P. Roy Barman, learned senior advocate and his juniors Mr. Samarjit Bhattacharjee, Mr. Kawsik Nath and Ms. Aradhita Debbarma, learned advocates for dedicatedly pursuing a genuine public interest litigation.
[27] In terms of the above, the petition stands disposed of. Pending application(s), if any, shall also stand disposed of.
Page - 32 of 32 The Registry will immediately communicate the order to all concerned for compliance.
(S.G. CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ Rudradeep