Himachal Pradesh High Court
Kalawati And Ors. And Gian Chand vs The State Of H.P. And Anr. on 29 July, 1987
Equivalent citations: 2(1988)ACC192
JUDGMENT P.D. Desai, C.J.
1. The prayer in these two petitions, inter alia, is that the respondents be directed to pay adequate compensation/damages to the petitioner(s) in the respective case for the death of Laiq Ram and Rakesh Kumar, which occurred as a result of nitrous oxide having been administered to the deceased persons instead of oxygen at the time of the performance of the surgical operation upon them on September 15,1986 and September 17, 1986 respectively, on account of the negligence on the part of the staff of the Indira Gandhi Hospital, Shimla. The petitions were instituted on April 13, 1987 and on April 20, 1987 affidavit(s)-in-reply were directed to be filed on or before May 7, 1987. Applications (CMP No. 316 of 1987 and CMP No. 317 of 1987 respectively) were moved by and on behalf of the respondents on May 8, 1987 in these cases praying that the time for filing the reply affidavit be extended by eight weeks. Orders were passed on the said applications on May 26, 1987 in the following terms:
Adjourned to June 9, 1987 in order to enable the Government to decide the question of ex gratia payment of compensation to the petitioners without prejudice to rights and contentions.
2. On June 29,1987, when the cases reached hearing, the Court made a reference to the orders passed on May 26, 1987 and proceeded to make the following observations:
It was expected that the Government would take a decision on the question of ex-gratia payment of compensation to the petitioners on or before the said day (June 9, 1987). The learned Advocate General states that case is still under consideration. The State Government is directed to take an appropriate decision on the question of ex-gratia payment of compensation to the petitioners failing which the Court will consider granting appropriate relief on the judicial side, final or interim. The decision of the State Government will be placed on the record of the case on or before July 16, 1987. (Bracketted portion added in the quotation for clarity) Instead of complying with this order, the respondents have chosen to move yet another application in each case (CMP No. 618 of 1987 and CMP No. 619 of 1987) on July 27, 1987 seeking extension of time by ten weeks "for filing the reply" on behalf of the respondents. The applications incidentally recite that the matter with regard to the payment of compensation to the petitioner(s) is under active consideration at the Government level. However, no extension of time is prayed for arriving at the said decision and the purport of the applications appears to be that the respondents really want time to file the affidavit(s)-in-reply to contest the petitions. The applications have been granted by separate orders of the day so far as the extension of time for the filing of the a affidavit(s) is concerned. However, as observed in the order dated June 29, 1987, the Court proceeds to consider the question of granting appropriate interim relief to the petitioners by ordering the payment of ad-hoc or ad interim compensation/grant.
3. It may be mentioned at this stage that the State Government had ordered a magisterial inquiry to be held into the incident(s) giving rise to the present petitions. The inquiry was held by the Additional District Magistrate, Shimla. Orders were passed yesterday on CMP No. 618 of 1987 and CMP No. 619 of 1987 directing the respondents to produce the report of the magisterial inquiry. Copies of the report have accordingly been produced. They are now ordered to be taken on record. The relevant portions thereof have been perused with the assistance of the learned Deputy Advocate General and the learned Counsel for the petitioners who was given access to the report earlier under the orders of the Court.
4. The findings of the magisterial inquiry establish, prima-facie, the negligence of the members of the staff of the Indira Gandhi Hospital, Shimla. The Magistrate has found that Ward Boy Amin Chand had removed the anesthesia machine on September 14, 1986 while cleaning Operation Theatre No. 3 after disconnecting the same from hose-pipes by opening the hexagonal nut in the valve unit and that after cleaning the Operation Theatre he had placed the machine back in position but had wrongly reconnected the pipes with the result that the oxygen and nitrous oxide gas hose-pipes were interchanged "inadvertantly". The said act on his part, according to the Magistrate, was not deliberate but disclosed negligence in the performance of duties on two counts: (1) he opened the pipes, removed the machine and reconnected the pipes after replacing the same which he was not supposed to do, and (2) he failed to report to the higher authorities that he had removed the anaesthesia machine from the Operation Theatre and reconnected it. There is a further finding to the effect that the checks and procedures as outlined by Dr B. Chhabra, Head of Department of Anaesthesia, Indira Gandhi Hospital, Shimla, and as mentioned in the expert opinion of Dr. Hariwir Singh. Head of Department of Anaesthesia, PGI, Chandigarh, were not conducted either by the Anaesthetist Dr. A K. Gupta or by Dr. D.R. Sharma before the start of the operations and that if those checks and procedures had been duly conducted, the interchange of the oxygen and nitrous oxide tubes would have been detected much earlier and the accidents would have been averted. The report further indicts virtually everyone from the Medical Superintendent downwards for lapses of diverse kinds.
5. The cases of Laiq Ram and Rakesh Kumar have been specifically dealt with in the report. The obserations/findings are follows:
(1) In the case of Laiq Ram, who was "a poor risk for surgery prior to the operation" which was performed on September 15, 1986, it was noticed on the operation table in Operation Theatre No. 3 itself, when incision was made in the abdomen, that "the colour of the blood was dark red which happens due to lack of oxygen". He was administered "100% oxygen" twice, once before he was anaesthetised and later at the conclusion of the operation. He was shifted at 6 45 P.M. to the ward in a very critical condition while he was not fully conscious. He was declared dead at 7.40 P.M. The death was attributed to "septicaemic shock". No postmortem was made to verify the cause of death although it ought to have been conducted. The conclusion has been recorded in the following words:
In the case of Laiq Ram who was operated upon on 15-9-86, like I have discussed in detail earlier in my report, the cause attributed to death should have been verified and for that postmortem should have been conducted. Postmortem should also have been conducted because the death of the patient was preoperational. If the postmortem had been conducted the fault in the anaesthesia machine could have been known.
(2) In the case of Rakesh Kumar, who "pre-operatively was described as a healthy patient" and who was operated upon on September 17, 1986 for open reduction and internal fixation of K. nail, nothing abnormal was detected during the operation. After the operation, when the Anaesthetist started administering "100% oxygen" to bring him out, he immediately developed cyanosis and respiration gasping. The Senior Anaesthetist was called in who observed that the patient was cyanosed and that his heart had stopped. He was given cardiac massage and was once again administered "100% oxygen". The heart beats started coming back intermittently and stopped. There was no improvement in the body colour which continued to remain blue. It was then that the Senior Anaesthetist suspected that there might be something wrong with the gas being administered to the patient and on verification it was found that it was not oxygen. The pipe through which the gas was being administered was then disconnected and pure oxygen was thereafter started to be admistered to him. The heart could be revived and the colour also improved. The immediate diagnosis was that the cardiac arrest was due to the administration of nitrous oxide gas due to the inter-changing of the rubber hose-pipes of oxygen and nitrous oxide gases. The patient was shifted to the Ward in unconscious state and put on an artificial respirator. There was no improvement in his condition from the time he was brought to the Ward till his death. He died on September 24, 1986 at 3 A.M. without regaining consciousness. His body was sent fof postmortem examination. The conclusion has been recorded in the following words:
After this operation of Rakesh Kumar on 17-9-1986, it dawned upon the anaesthetists that the 100% oxygen that they had been administering in O.T. No. 3 on 15th and 16th September, 1986 and after which the patients had either gone into shock or developed cardiac arrest or had held their breath was in fact 100% nitrous oxide.
6. The report of the magisterial inquiry, read as a whole, leads to a reasonable inference that the death of Laiq Ram occurred on account of the cause abovementioned, namely, the administeration of nitrous oxide instead of oxygen on account of negligence and leaves little scope for doubt or debate that the sole cause of the death of Rakesh Kumar was the same. The petitioner(s) in each case has thus established a strong prima-facie case for the award of damages.
7. This Court is empowered in the exercise of its writ jurisdiction to award damages in cases where a precious fundamental right like that of life and liberty is violated. The question is no longer resintegra in view of the decision in Rudul Sah v. State of Bihar and Anr. . The question in that case was whether compensation could be granted under Article 32 for the illegal detention of the petitioner without affecting his right to sue for damages. The petitioner was there detained illegally in the prison for over 14 years after his acquittal in a full-dressed trial. He had filed a habeas corpus petition for his release from illegal detention. He obtained that relief, the finding being that his detention in the prison after his acquittal was wholly unjustified. He contended that he was entitled to be compensated for his illegal detention and that an appropriate order for the payment of compensation ought to be passed in the habeas corpus petition itself. The submission was accepted and the law on the point was declared in the following emphatic words:
We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the State's counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of the right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative Sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.
The State was ordered to pay to the petitioner in that case a sum of Rs. 30,000/- as "an interim measure" in addition to the sum of Rs. 5,000/-already paid earlier. It was clarified that although the State had agreed to make the payment, the order was not based on their consent. The Court then proceeded to make the following further observations:
This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials. The order or compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings. A full dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the filing of such a suit by the poor Rudul Sah. The Leviathan will have liberty to raise those points in that suit. Until then, we hope, there will be no more Rudul Sabs in Bihar or elsewhere.
8. True it is that the cases in hand have not been instituted under Article 32 but under Article 226. It needs no emphasis, however, that the jurisdiction under Article 226 is much wide than that under Article 32. True it is also that the factual matrix is not identical. The damages in Rudul Sah's case were claimed by a person aggrieved by an unlawful act consisting of illegal detention whereas in the present case the claim for compensation is by the dependents/legal representatives of persons who lost their lives on account of the apparent negligence of the employees of the State. The distinction, if any, cannot, however, make a difference in the application of the principle. It cannot debar or deter the Writ Court from awarding a reasonable sum by way of compensation as an ad-interim or interim measure of a palliative nature, if, on the facts and in the circumstances of the case and on the basis of the material on record, its judicial conscience is satisfied, that if a suit were to be filed to recover the damages, a decree would follow almost as a matter of course, although the precise amount which would be decreed cannot be predicated. Such a course of action would not only help in protecting, preserving and enforcing the fundamental right to life but also prevent its violation in other cases. Besides, the dependant family of the deceased will be saved from penury and undeserved want till fine points of fact and law, which legal ingenuinity may discover, are extensively argued, deliberated and adjudicated in a compensation suit, which it can be directed to file for recovering full damages, and till the said proceeding passes through the usual gamut of the trial court, the appellate court(s) and the executing court.
9. Against the background aforesaid and having regard to the findings abovementioned recorded in the report of the Magisterial inquiry which was submitted to the State Government as far back as November 1, 1986, in view of the total inaction on the part of the State Government to mitigate the pain and hardship suffered by the families of the deceased persons for almost an year since the occurrence of the tragedy and for nine months even after. the submission of the report, in light of the non-compliance of the specific judicial directions with regard to the consideration of the payment of ex-gratia compensation and in consideration of the fact that in the case of Laiq Ram the widow and his three minor children are left without any means of subsistence and in the case of Rakesh Kumar the main financial support to his family has been taken away, the Court is of the view that there is a full justification for ordering the State Government to give ad-hoc or ad-interim compensation/grant to the petitioner(s) in each case pending a fuller hearing of these cases.
10. In order to decide the quantum of ad-hoc or ad interim compensation/grant, it would be legitimate to take into consideration Section 92-A of the Motor Vehicles Act, 1939 which provides for the payment of compensation in the sum of Rs 15,000/- or the basis of no-fault liability where a motor vehicle accident results in death. It would also be legitimate to take into account the fact that the Himachal Road Transport Corporation makes payment in the sum of Rs. 30,000/- under the Passenger Insurance Scheme (now called "the ex-gratia scheme") without going into the question of negligence and liability in the case of death of a passenger resulting on account of an accident. It would further be legitimate to take into consideration the fact that the Stats Government has evolved a scheme which provides, inter alia, that the family of a Government servant, who dies while in service, is entitled to ex-gratia grant equivalent to twenty times of the emoluments which the deceased employee was receiving immediately before his death subject to a minimum of Rs. 10,000/- and a maximum of Rs. 30,000/-. In the cases in hand, having regard to the findings recorded in the report submitted at the conclusion of the magisterial inquiry and bearing in mind the rates at which ex-gratia payments are made as aforesaid in cases of death where the issue of negligence is neither relevant nor present, the Court is of the view that it would be just and proper to direct the State Government to give ad-hoc or ad-interim compensation/grant in the sum of Rs. 50,000/- each to the petitioner(s) in each cash. Pursuant to these orders, the sum of rupees one lakh will be deposited in the Registry of this Court on or before August 5, 1987. The ad-hoc or ad-interim compensation/grant given accordingly will be liable to be adjusted against the damages, if any, payable in accordance with law upon proper adjudication of the claim.
11. Upon the deposit of the amount aforesaid in the Registry, the matter be listed before the Registrar for Settlement of the usual draft order regarding investment which shall provide that the sum of Rs. 50,000/- in each case shall be invested in a fixed deposit with a nationalised bank for a period of 37 months in the joint names of the four petitioners in Civil Writ Destitution No. 44 of 1987 and in the joint names of the petitioner and his wife in Civil Writ Petition No. 50 of 1987 subject to the following conditions:
(1) The fixed deposits shall not be encashed before the due date of maturity.
(2) No loan shall be raised against the same.
(3) The interest periodically accruing due on such fixed deposits shall be paid to the holders thereof.
(4) The final disbursement of the sums covered by the fixed deposits shall abide by the orders which the Court will pass hereafter.
12. It may be stated that the learned Deputy Advocate General prayed that a little longer time be granted for depositing the amount but the request has been rejected in view of the fact that there has already been an inordinate delay in the consideration of the question of payment of ex-gratia compensation for no justifiable reasons and there is no reason to believe that the State Government will not be able to spare a sum of rupees one lakh in such like cases at short notice to alleviate the suffering of the families of the deceased.
13. The learned Deputy Advocate General states that the recommendation made by the Committee constituted to arrive at an amicable negotiated settlement with the petitioners has been accepted by the State Government and that the balance amount of Rs. 80,000/- has been deposited in the Registry on October 8, 1987. The delay in depositing the amount is condoned.
14. The total amount deposited in the Registry, as and by way of compensation, namely, Rs. 1,30,000/-, is apportioned equally between all the petitioners. The amount will be paid to the learned Counsel for the petitioners, who will arrange to have the same deposited in four independent fixed deposits of equal amounts, each in the name of the concerned petitioner, with a nationalised bank/Post Office at Shimla, for a period of seven years, or such other shorter or longer period as is permissible but which shall not be less than four years, on the condition that the fixed deposit(s) shall not be encashed before the due date of maturity save and except with the prior permission of this Court and that the interest accruing due thereon from time to time will be paid to the first petitioner, who will utilise the interest earned on the fixed deposits of the minors for their education and maintenance. Upon the expiry of the period of deposit, the fixed deposits placed in the names of the minors shall be renewed for further period(s) so that the amounts apportioned in their favour remain deposited till the date each of them attains majority. The fixed deposit receipts shall be produced before the Registrar for verification within 15 days and shall remain lodged in the Registry till maturity.
15. The writ petition is disposed of in light of the above orders.