IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Seema Rana Vs. State of Rajasthan & Others (DB Civil Special Appeal (Writ) No.437/2001) D. B. Civil Special Appeal under Ordinance 18 of the Rajasthan High Court Ordinance,1949 against the judgment dated 6-2-2001 of learned Single Judge in SB Civil Writ Petition No.2029/2000. Date of Judgment: August 12, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Lokesh Sharma, for the appellant. Mr. Rajneesh Gupta, Dy. Govt. Advocate for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Challenge in this appeal is to the order dated February 6, 2001 of the learned Single Judge whereby the writ petition of the appellant claiming compensation was dismissed. 2. Following prayer is made by the appellant in the writ petition:- “(i) the death of the petitioner's husband late Dr.V.R.Rana may kindly be ordered to be treated as an accidental death; (ii) the respondents may kindly be directed to allow the compensation of Rs.50 lacs to the humble petitioner in relation to the death of her husband late Dr. Vir Raghvendra Rana; (iii) by an appropriate writ, order or direction the respondents may be directed to give all the benefits to the humble petitioner which are being given to an Army/ Police Officer killed during the course of his duties; (iv) by an appropriate writ, order or direction the respondents may kindly be further directed that as Dr.V.R.Rana died due to the infection during the course of his professional duties as Surgeon, his surviving family members may be compensated by giving them all the facilities like the facility of education of his children, facility of residence etc.; (v) by an appropriate writ, order or direction if this Hon'ble Court comes to the conclusion that such a matter can be decided only by a Civil Court, than an interim compensation of Rs.10.00 lacs may kindly be ordered to be awarded in favour of the humble petitioner so that she may approach to the civil Court to settle her claim.” 3. It is averred in the writ petition that husband of the appellant Dr.Vir Raghvendra Rana (for short `Dr.Rana'), an employee of State Government, was posted as Associate Professor in Surgery at Sawai Man Singh Medical College & Hospital Jaipur. Looking to his duties Dr.Rana was advised to take vaccine of Engerix-B and Smith Kleen Beecham as protective measures. The vaccines were administered to him in three phases i.e. first on January 27, 1993, second on March 3, 1993 and third on July 29, 1993. On March 14, 1994 Dr.Rana was directed to perform his duties at Kota to look after huge burn cases at Baran. Vide another order dated March 20, 1995 Dr.Rana along with his team was directed to perform his duties at Rawatbhata to conduct Epidemiological surgery from March 26, 1995 to March 31, 1995. Despite vaccination, Dr. Rana suffered from the disease relating to Hepatitis. The Principal and Controller vide order dated June 24, 1994 constituted a panel of three Specialists. The panel after medical examination opined that Dr.Rana was suffering from Hepatitis which could lead to life threatening complications like cirrhosis lever and lever malignancy. The Committee opined and advised Interferon Therapy for six months and estimated the cost of treatment to Rs.2 lacs was recommended. The matter was further referred to GB Panth Hospital New Delhi. During the course of treatment at GB Panth Hospital New Delhi Dr.Rana died on September 21, 1995 due to abovesaid disease and certificate to this effect was issued by Professor Dr.S.K.Sarin. After the death of Dr.Rana, looking to the seriousness of the disease and fatal outcome, the Committee made following suggestions:- (a) The medical and para medical staff (high risk group) should be compulsorily vaccinated against Hepatitis `B', the vaccines to be provided free of cost by the Hospital; (b) Since Dr.Rana acquired the infection during the course of his professional duties as a Surgeon, his family should be given same benefits as are given to an Army/ Police Officer killed in action. 4. Finding that Dr.Rana acquired infection due to sub-standard vaccine administered to him, the appellant made a demand of adequate compensation in the sum of Rs.50.00 lacs but she was paid only exgratia of Rs.1 lac. The appellant then preferred writ petition claiming compensation in the sum of Rs.50 lacs as indicated herein above. 5. We have given our anxious consideration to the rival submissions. 6. Before proceeding further it will be apt to consider Rule 268HH of Rajasthan Service Rules, according to which ex-gratia grant in the sum of Rs.one lac has been paid to the appellant. The Rule reads as follows:- “268HH (1) Subject to the provisions of this Chapter except as otherwise provided, an `ex-gratia grant' shall be admissible under sub-rule (2) to the family of a Government who dies while on duty in one of the following circumstances, (a) outside his normal headquarter, (b) in an accident, (c) due to injury intentionally inflicted or caused in consequence of the due performance of his official duties, (d) due to injury intentionally inflicted or caused in consequence of his official position, and (e) by violence attributable to causes relative to his service, (f) while on duty, at own headquarter or outside headquarter, in connection with special assignments like “Election duty”, “Census work” and/ or such other assignments which do not fall within normal duties of the post held.” 7. A close look at Rule 268HH goes to show that the circumstances under which Dr.Rana died are not covered in it. The apprehension of the appellant is that Dr.Rana acquired infection because of the negligence of the officers of the State Government in administering sub-standard vaccinations to Dr.Rana. 8. This Court cannot go into the disputed questions of fact regarding negligence of the respondent but some reasonable amount by way of interim compensation may be granted to the appellant for fighting litigation in the civil court which is the most cumbersome process. In D.K.Basu Vs. State of West Bengal (1997)1 SCC 416 the Apex Court indicated that compensation can be granted under Public Law by the Supreme Court and also by the High Court in addition to private law remedy for the tortuous action and punishment to wrongdoer and the ultimate award of compensation in Public Law proceedings may be adjusted against the damages awarded in civil suit. 9. In a similar situation the D.B. of this Court in Suraj Mal Chhajer Vs. State [1998(1) RLR 690] observed in para 4 as under:- “It depends on the facts of each case whether to grant compensation or some interim compensation or not, ordinarily this Court would not entertain such petitions, but in a given case there is a report of the Inquiry Committee. And in para 3 of it, it is clearly stated that, “She might not have contracted the disease, had she been vaccinated earlier against Hepatitis-B adopted other preventive measures such as using disposable syringes, needles, gloves, aprons etc. There may be a lapse in the availability of these above mentioned preventive measures”. In view of the above, we are of the opinion that the petitioner is at least entitled for some reasonable amount by way of an interim compensation from this Court.” 10.(i) Since questions of fact have to be taken into consideration in order to arrive at actual compensation to be paid by the respondents, we direct the appellant to file civil suit in the competent court. In the meanwhile pursuant to the ratio indicated by the Supreme Court in D.K. Basu (supra) we are of the view that granting interim compensation in the sum of Rupees ten lakhs to the appellant in the facts and circumstances of the case shall serve the ends of justice. This amount shall be paid within three months from the date of filing the civil suit. (ii) The impugned judgment of learned Single Judge shall stand set aside. (iii) There shall be no order as to costs. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/