Govt. Of Nct Of Delhi vs Guddo & Another
2011 Latest Caselaw 2388 Del

$~26&27.
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LETTERS PATENT APPEAL NO. 343/2010

                                            Date of order: 4nd May, 2011

       GOVT. OF NCT OF DELHI              .....   Appellant
                    Through Ms. Ruchi Sindhwani & Ms.
                    Megha Bharara Advocates along with Mr.
                    Sunil Gupta, Law Officer, Tihar Jail.

                       Versus

       GUDDO & ANOTHER                 ..... Respondents

Through Ms. Aruna Mehta, Advocate.

LETTERS PATENT APPEAL NO. 344/2010

GOVT. OF NCT OF DELHI ..... Appellant Through Ms. Ruchi Sindhwani & Ms. Megha Bharara Advocates along with Mr. Sunil Gupta, Law Officer, Tihar Jail.

Versus

SHAFIRUN & ORS. ..... Respondents Through Ms. Aruna Mehta, Advocate.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

SANJIV KHANNA, J.:

These two intra-Court appeals by Government of National

Capital Territory of Delhi arise out of a common judgment dated

2nd April, 2009 passed in Writ Petition (Civil) No. 7060/2003,

Smt. Guddo and Another versus The Superintendent,

Central Jail, Tihar, New Delhi and Writ Petition (Civil) No.

5095-98/2005, Shafirun and Others versus The

Superintendent, Central Jail, New Delhi. The two writ

petitions have been allowed and the respondents herein have

been awarded compensation on account of death of Ram Avtar

and Abdul Hafiz, who were lodged in Central Jail, Tihar.

2. The learned single Judge in the impugned judgment while

allowing the writ petitions has referred to the Prisoners Act, Delhi

Prisons (Medical Administration) Rules, 1988 and Delhi Jail

Manual to hold that the appellants were negligent and has, inter

alia, held as under:-

"16. Thus, it is unassailable that both the deceased had an indefeasible right to health which was implicit in their right to life under Article 21 of the Constitution of India. The custodial nature of their confinement a fortiorari befitted them to greater protection and well-being from the respondents. The various provisions of the Delhi Jail Manual unequivocally suggest that protection of the health and well-being of a prisoner is an integral part of the efficient functioning of prison administration. It is also well-endorsed that untimely death resulting from negligence on the part of jail authorities is not a part of the penal policy of the State.

17. The various statutory provisions and administrative rules, enunciated in the paragraphs above, unequivocally suggest that the respondents' duty to protect the health and well-being of the deceased was strict and admitted no exceptions. I have no hesitation in stating that the respondents have not just been negligent, but compulsively and systemically negligent, in discharging their duties towards the deceased. The recidivist tendency of the respondents is apparent from the fact that there was negligence on their part not just at the stage of diagnosing the diseases but also at the stage of providing even the most immediate and accessible medicare to the deceased. Moreover, the facts and circumstances ensuing the filing of the present petitions are in themselves deplorable. The death of its two inmates was perhaps not enough to move the conscience of the jail authorities who continued to play truant by keeping the petitioners in dark about the real cause of death of the two deceased. It was only at the intervention of this Court on 22.3.2005 that the Jail Authorities produced the relevant documents, viz., post mortem and Inquest Report, etc., which revealed that Ram Avatar and Abdul Hafiz had succumbed to Tuberculosis and Bhroncal Pneumonia respectively. Merely stating that the deceased in the present petitions died a natural death cannot be used as a shield by the respondents to evade liability. It is common knowledge that both tuberculosis and broncho-

pneumonia are neither terminal nor asymptomatic diseases. There is no doubt that if timely medical care had been provided to both Ram Avatar and Abdul

Hafiz, they would have not met their untimely death. The jail authorities were thus clearly negligent in their duty to provide medical help to the deceased for which they must now be liable to compensate the petitioners."

3. Accordingly, it has been held that the legal representatives

of Ram Avtar are entitled to compensation of Rs.6,15,686/- and

legal representatives of Abdul Hafiz are entitled to compensation

of Rs.6,56,879/- respectively. Interest @ 6% per annum has

been awarded.

4. Learned counsel for the appellant has raised a number of

contentions before us, including the method of computing

compensation and the calculation of compensation. It is pointed

out that Ram Avtar was undergoing trial under Section 363 of

the Indian Penal Code, 1860 (IPC, for short) and was arrested

on 9th July, 2002 and had expired on 18th September, 2002. He

was provided medical attention on 10th July, 2002 and 17th July,

2002. On 17th July, 2002 he had taken regular meal at dinner

time and had gone to sleep without any complaint. On 18th

September, 2002, he did not respond and wake up and a doctor

was immediately called but was declared dead at 5.32 a.m.

Post-mortem and inquest proceedings were conducted. The

post-mortem does not show foul play or any injury. The inquest

report refers to statement of several prisoners and the brothers

of the deceased. It is stated that Ram Avtar as per the post-

mortem died due to pulmonary tuberculosis, which is a natural

cause. His brothers did not state that Ram Avatar was suffering

from the said disease or had complained about any such

decease or chronic ailment. Referring to the findings recorded

by the learned single Judge in paragraphs 16 and 17 it is

submitted that the said findings do not show or make out a case

of negligence. Learned counsel for the appellant also relied

upon medical literature and had drawn our attention to some

articles on diagnosis in case of pulmonary tuberculosis.

5. Our attention is also drawn to affidavit filed by Dr. B.C.

Jain, who had examined the medical prescriptions and the post-

mortem report, etc. It is stated that his affidavit is entirely vague

and there is no evidence or material to show that Ram Avtar had

ever complained of the said ailment or shown or displayed

clinical symptoms that he was suffering from the said ailment.

6. On the question of quantum of compensation awarded to

Ram Avtar, it is pointed out that in the writ petition compensation

of Rs.5,00,000/- was prayed for. It is further submitted that the

compensation should not have been calculated by applying the

multiplier or the table mentioned in the Motor Vehicles Act, 1988.

It is further submitted that the conventional figure has been

wrongly computed by applying Consumer Price Index and

benefit of future prospects have been given. Questions are also

raised on the multiplier of 17, which has been applied.

7. In the case of Abdul Hafiz, it is pointed out that he was 40

years old and was a life convict under Section 376/342 of the

IPC. He was arrested on 2nd April, 2000 and expired on 25th

October, 2002. He was given treatment from time to time for

pain in abdomen and was also attended to by Specialist

(Psychiatrist). On 25th October, 2002 at about 12.10 p.m. he

was admitted to Central Jail Dispensary by co-prisoners on

medical call and thereafter taken to DDU Hospital emergency at

1230 hours. He expired at 2030 hours on 25th October, 2002.

In his case also post-mortem and inquest proceedings were

conducted. As per the final opinion of Dr. L.K. Baruah, DDU

Hospital and Dr. Alexander F. Khakha of Safdarjung Hospital,

death of Abdul Hafiz was due to bilateral broncho-pneumonia.

The inquest report, which has been placed before us, there were

no anti-mortem external injuries. No foul play was suspected by

the wife and co-inmates of the deceased in jail. The treatment

given has been highlighted. It is submitted that the learned

single Judge did not notice several aspects, including the

conviction and the sentence of life imprisonment.

8. On the question of quantum of compensation also, several

objections have been raised, including the method of

computation, the multiplier applied, benefit of future prospects,

etc., which have been given. It is pointed out that in the case of

Abdul Hafiz, who was 40 years of age and a life convict,

compensation of Rs.6,56,879/- has been awarded whereas in

the case of Ram Avtar, who was 22 years of age, compensation

of Rs.6,15,686/- has been awarded.

9. Learned counsel for the respondents, on the other hand,

has submitted that once Ram Avtar and Abdul Hafiz were

detained and were admitted to Central Jail, Tihar, it was duty of

the appellant to take care and provide all medical treatment.

The appellants should have, as held by the learned single

Judge, carried out diagnostic tests, etc. On the question of

quantum of compensation, reference was made to the findings

and the reasoning given by the learned single Judge.

10. There is no doubt that both Ram Avtar and Abdul Hafiz

once in jail should have been given proper medical attention and

treatment. However, number of questions and issues do arise

with regard to medical health and the reason and cause why

they expired. Ram Avtar, younger in age but as per the post-

mortem report he was suffering from pulmonary tuberculosis.

He was admitted to jail on 9th July, 2002 and had expired on 18th

September, 2002. There is no evidence or material that prior to

his arrest he was taking any treatment for the said decease.

We find that the medical evidence on his death is sketchy and

not clear. Whether or not pulmonary tuberculosis could have

been diagnosed, even if the patient was not suffering from fever

or clinical symptoms, is a matter of debate. In the case of Abdul

Hafiz also several issues arise including quantum of

compensation as he was 40 years old.

11. We were inclined to go into all the said aspects and, if

required, ask for specialist or doctor's opinion. On the last date,

Ms. Ruchi Sindhwani, who is appearing for the appellants, had

requested for some time to obtain instructions. Today, during

the course of hearing, Ms. Ruchi Sindhwani on instructions has

stated that the appellants are ready and willing to make ex-gratia

payment of Rs.4,00,000/- to the legal representatives of Ram

Avtar and Rs.3,50,000/- to the legal representatives of Abdul

Hafiz but this should not be construed as an admission or fault

or negligence.

12. Learned counsel appearing for the respondents, however,

has some reservations to the said figure and has prayed that

Rs.50,000/- should be added to the above figures. However, we

feel that the gesture to make ex-gratia payment and figure given

by the appellants should be accepted. We refrain from

elaborating and go into all aspects/issues which have been

elaborated above in view of the statement of the appellants. We

accordingly dispose of the above appeals with the direction that

the appellants should make payment of Rs.4,00,000/- to the

legal representatives of Ram Avtar and Rs.3,50,000/- to the

legal representatives of Abdul Hafiz within four weeks from the

date of this order.

13. Abdul Hafiz is survived by his widow who is the natural

guardian of his three minor children who were aged 10 years, 8

years and 6 years respectively at the time of filing of this

appeal. It is directed that the compensation amount be divided

equally amongst the four legal representatives. In the case of

Ram Avtar, he is survived by his widow and a minor daughter.

The amount of compensation is to be divided equally between

the two. The payments will be made directly to the bank

account of the legal representatives.

14. The disbursement of compensation shall be

done in such manner that the legal representatives

who are above the age of 18 years on the date of

passing of this order will be paid 25% of their

share. The balance amount will be kept in FDRs

and will be paid after 3 years. The legal

representatives who are minor on the date of passing of

this order will be paid 25% of their share of the

compensation amount when they attain the age of 18

years and the remaining amount will be kept in FDRs

and be paid to them after 3 years. Interest accruing on

the said FDRs will be paid periodically to all the legal

representatives.

The appeals are disposed of.

SANJIV KHANNA, J.

CHIEF JUSTICE MAY 04, 2011 VKR