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2003 DIGILAW 1130 (MAD)

Jayalakshmi v. State of Tamil Nadu & Others

2003-07-25

D.MURUGESAN

body2003
Judgment :- This Writ Petition has been filed by the wife of one Murugesan, who was allegedly taken into custody on 23.8.1994 for the offence under Section 20(b) of N.D.P.S.Act. 2. Though it is complained that the said accused was arrested on 15.8.1994 and was remanded before the Judicial Magistrate only on 23.8.1994, no document to support the said contention is filed. Hence, the question of consideration of the date of arrest as 15.8.1994 does not arise. 3. However, the grievance of the petitioner is that after the arrest, the petitioner's husband complained of severe stomach pain and he was not treated as mandated by the Apex Court in the judgment reported in SHRI D.K. BASU VS STATE OF WEST BENGAL (1996(4) Crimes 233(SC) by producing the accused for medical treatment every 48 hours. Since the accused was not given proper treatment, he became unconscious on 27.10.1994 and he was taken to Government Headquarters Hospital, Dharmapuri where admission was refused on the ground that the condition of the accused was so serious and he should be given treatment only in the Governmment Mohan Kumaramangalam Medical College Hospital, Salem. The further grievance of the petitioner is that her husband was denied treatment at Government Headquarters Hospital, Dharmapuri in the morning at 9.00 a.m., no immediate steps were taken to take her husband to the Government Mohan Kumaramangalam Medical College Hospital, Salem for treatment and ultimately, with a delay of more than eight hours, he was taken to Salem Hospital and was admitted at 6.00 p.m. on the same day by the time his condition became still worse and therefore he died at 11.00 a.m. on 28.10.1994. This serious lapse and failure to comply with the directions issued by the Apex Court in the judgment cited supra, and the failure of arrest to the petitioner immediately has resulted in the death of the husband of the petitioner and for which, the petitioner should be adequately compensated. 4. I heard Mr.S.Sankara Subbu learned counsel for the petitioner. The learned counsel cited number of decisions to contend that this Court has got ample power to order compensation in the case of custodial death as well as in the case of death due to negligence on the part of the police Officer or prison authorities in not giving proper, timely and adequate treatment as mandated by the Apex Court 5. I heard Mr.S. Venkatesh, learned Additional Government Pleader. 6. Insofar as the grievance of the petitioner that she was not informed of the arrest of her husband immediately in terms of the guidelines issued by the Apex Court in the judgment referred supra, from para 3 of the affidavit filed in support of the petition, it is seen that the petitioner herself had stated that she came to know that her husband's condition was so serious on 23.8.1994, she requested the respondents to provide treatment for the injuries. From the said fact, it is clear that she was aware of the arrest of her husband. No exception could be drawn for non compliance of the intimation of arrest of the husband of the petitioner at this stage. 7. However, the question remains to be considered is as to whether the husband of the petitioner, who complained of severe stomach pain and jaundice admittedly on 24.10.1994 was properly treated or not? 8. Even according to the counter affidavit filed by the 3rd respondent, it is admitted that the husband of the petitioner complained of severe stomach pain and also jaundice on 24.10.1994. Though in the counter affidavit in para 5, it is stated that immediately on such complaint, he was treated as Out Patient in the Government Headquarters Hospital, Dharmapuri on 24.10.1994, 25.10.1995 and 26.10.1994. the file produced by the learned Additional Government Pleader do not support the said averment. From the file, I find no document to sustain the plea that the husband of the petitioner was taken to Government Headquarters Hospital, Dharmapuri either on 24.10.1994 or on 25.10.1994 or on 26.10.1994. Of course, I find a O.P. Chit issued by the Government Headquarters Hospital, Dharmapuri dated 27.10.1994 at 9.00 a.m. This supports only the case of the petitioner that the petitioner's husband was taken to the Government Headquarters Hospital, Dharmapuri only on 27.10.1994. Therefore, when the averment is not supported by any document, the contention the petitioner that her husband though complained of severe stomach pain and jaundice even on 24.10.1994, was not given proper treatment muchless immediate treatment for three days viz., from 24.10.1994 to 26.10.1994, has to be necessarily accepted. Therefore, when the averment is not supported by any document, the contention the petitioner that her husband though complained of severe stomach pain and jaundice even on 24.10.1994, was not given proper treatment muchless immediate treatment for three days viz., from 24.10.1994 to 26.10.1994, has to be necessarily accepted. As a necessary corollary, this Court can also take note of the fact that because of the failure on the part of the respondents in giving proper and timely treatment to the husband of the petitioner, his condition became worse and the same is proved by the fact that even the Doctors at Government Headquarters Hospital, Dharmapuri refused to admit the husband of the petitioner on the ground that his condition was so serious and he should be given treatment only by the Government Mohan kumaramangalam Medical College Hospital, Salem. In addition to the above, there is one more serious lapse on the part of the respondents, in not taking steps to immediately admit the husband of the petitioner at the Government Mohan Kumaramangalam Medical College Hospital, Salem. The only explanation, sought to be placed is that for want of escort the husband of the petitioner could not be immediately transported. The said explanation cannot be a justification. Any failure on the part of the Officers to see that the accused whose condition was so serious as certified by the Doctors at General Headquarters Hospital, Dharmapuri, ought to have been immediately given treatment as advised by them. The facts reveal that the husband of the petitioner was in fact, admitted in the Government Mohan Kumaramangalam Medical College Hospital at Salem only at 6.30 p.m. on 27.10.1994 after a lapse of nearly eight hours by which time the condition of the husband of the petitioner became still worse. Due to the inaction on the part of the respondents in taking timely action to admit the husband the petitioner and give proper treatment, the husband of the petitioner died on 28.10.1994 at 11.00 a.m. For this lapse on the part of the respondents, the petitioner is certainly entitled to get reasonable compensation. 9. Due to the inaction on the part of the respondents in taking timely action to admit the husband the petitioner and give proper treatment, the husband of the petitioner died on 28.10.1994 at 11.00 a.m. For this lapse on the part of the respondents, the petitioner is certainly entitled to get reasonable compensation. 9. The Apex Court in the judgment reported in RUDUL SHAH VS STATE OF BIHAR (A.I.R. 1983 SC 1086) has held that the power of Court to award compensation is always available in the event, the death in custody is proved to be due to either harassment or torture or negligence on the part of the police Officers. In view of the above, for the inaction on the part of the 3rd respondent, viz., The Superintendent, Sub-Jail, Dharmapuri,the compensation to be awarded by this Court shall be borne by the first respondent viz., The State. 10. Coming to the quantum of compensation, even in the bail application filed on 25.10.1994, the husband of the petitioner had complained of stomach pain only. There, the husband of the petitioner has stated that he was suffering from illness for the past seven months. It appears that the husband of the petitioner has got illness of jaundice for over a period of seven months and it is not as if, the husband of the petitioner died of any ill-treatment or harassment at the hands of the respondents. The death was due to illness which the husband of the petitioner suffered for six or seven months prior to his death. But the illness aggravated because of failure to give proper treatment. In such circumstances, I am of the considered view that though the petitioner has asked for a sum of Rs.5,00,000/- towards compensation, to meet the ends of justice, a sum of Rs.2,00,000/- would be the proper compensation to be paid to the petitioner. 11. But the illness aggravated because of failure to give proper treatment. In such circumstances, I am of the considered view that though the petitioner has asked for a sum of Rs.5,00,000/- towards compensation, to meet the ends of justice, a sum of Rs.2,00,000/- would be the proper compensation to be paid to the petitioner. 11. Accordingly, the Writ Petition is allowed with a direction to the first respondent to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) as compensation to the petitioner for the death of her husband due to the negligence on the part of the 3rd respondent in not providing him proper, timely and adequate treatment for his illness and the said amount shall be deposited with the Registrar (General) of this Court within a period of two months from the date of receipt of copy of this order or on production of the same by the petitioner. On receipt of the amount, the Registrar (General)shall pay the said amount to the petitioner on request in writing through her counsel. The first respondent shall file a report about the compliance. No costs. 12. Post the matter on 30.9.2003 for reporting compliance.