IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.9089 of 1997 Between: 1 Khadirunnisa, W/o late Sh. Ahmad, Manchiryal 2 Jahira Begum, D/o late Sh. Ahmad, Garimullahm Manchiryal 3 Sh.Asif, S/o late Sh.Ahmad, Manchiryal 4 Sh.Adil Pasha, S/o Late Sh. Ahmad, Manchiryal 5 Sh. Muzahid, S/o late Sh.Ahmed, Manchiryal, Adilabad District ..... PETITIONERS AND 1 Secretary (Home), The Government of Andhra Pradesh, Secretariat, Hyderabad 2 The Inspector General of Prisons, Hyderabad 3 The Superintendent, District Jail, Asifabad, Adilabad District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more in the nature of Mandamus directing the respondents pay compensation for a sum of Rs. 3 Lakhs to the petitioners for the death of Sh.Ahmad Son of Abdul Khader, husband of the 1st petitioner and father of petitioner 2 to 5 herein who was lodged in Dist. Jail, Asifabd as under trial and who died in the jail due to the negligece and inaction of the jail authorities for not taking steps togive proper medical aid evenafter advise given by Dr. Vasudev Naik on the ground that the armed reserve police escort was not available by duly declaring the inaction of the respondent in this case is nothing but arbitrary , illegal and violative of Art. 14 and 21 of the Constitution of India and pass Counsel for the Petitioner: MR.V.RAVI KIRAN RAO Counsel for the Respondent No.: GP FOR HOME The Court made the following: Form-NIC-OGS/WP{PRASAD} THE HON'BLE SRI JUSTICE V.ESWARAIAH WRIT PETITION No.9089 of 1997 ORDER: Heard the learned counsel, appearing for the petitioners as well as the respondents. 2. The 1st petitioner is the wife of late Shaik Ahammed and petitioners Nos.2 to 5 are the children of the 1st petitioner and late Shaik Ahammed. The deceased Shaik Ahammed, S/o.Abdula Khader was working as a Lorry Driver and as he involved in a motor accident case, he was remanded to the judicial custody for the offence punishable under Sec.304-A of IPC on 22.04.1994 in C.C.No.489/1991 on the file of the Munsif Magistrate’s Court, Laxettepet. It is stated by the petitioners that though Shaik Ahammed reported about his ill-health and requested the jail authorities to provide medical aid, but the jail authorities did not take necessary steps to provide him required medical aid. On 25.04.1994 at a belated stage, Dr.Vasudeva Naik examined the said Shaik Ahammed and advised the jail authorities to shift him to the T.B.Hospital, Adilabad at earliest possible time as his condition was deteriorating. But, the said Shaik Ahammed was not at all shifted for the urgent medical treatment on the ground that armed reserve police escort was not available. On the next day i.e. on 26.04.1994 at about 7.20 p.m. when the deceased Shaik Ahammed went to answer the calls of nature in the Block lavatories, he vomited blood and returned back with unconscious stage, and then on only he was shifted to the Civil Hospital, Asifabad where he was declared dead. 3. It is stated that on the information given by the Jail Superintendent, Asifabad, a case was registered in Cr.No.24/94 under Sec.174 of Cr.P.C. on 26.04.1994 and inquest over the body of the deceased was conducted by the Mandal Revenue Officer and in the autopsy report, the Medical Officer opined that the death of the deceased was due to Tuberculoses. The Station House Officer, later examined 8 witnesses and recorded their statements. One S.A.Qayyum, S/o.S.A.Khadar, Jailer of the District Jails, Asifabad, stated that on 25.04.1994 when the Medical Officer Dr.Vasudev Naik visited the jail for medical check up, the said Shaik Ahammed informed the Doctor that he was suffering from Tuberculoses. On that the Medical Officer advised to take him to T.B.Hospital, Adilabad. But due to non-availability of armed reserve police escort, the jail authorities could not take him to Adilabad immediately. On the next day, i.e. on 26.04.1994 at about 6.45 p.m. after closure of the jail, there was a current failure. To check up the said power failure, he was stayed in the jail and at about 7.25 p.m. Sri B.Ramulu, Warder of Block-III came and informed him about the vomiting of the deceased Shaik Ahammed. Then, immediately, at about 7.35 p.m. the deceased was taken to the Government Hospital, Asifabad in a Jeep, where the said Shaik Ahammed was declared as dead. 4. Thus, it is stated that as per the statement of the Jailer, there is negligence on the part of the jail authorities for not immediately taking the deceased Shaik Ahammed for the medical check up at T.B.Hospital, Adilabad, and therefore, the negligence of the respondents caused the death of the deceased. 5. It is stated that the 1st petitioner is having four children and the eldest one is the daughter and remaining three are sons and all of them are minors and after the death of her husband Shaik Ahammed, the 1st petitioner suffered mental agony and she has also taken treatment, and therefore, it is submitted that she is entitled for the compensation of Rs.3 lakh as the deceased Shaik Ahammed is the only bread winner to the family. 6. A counter has been filed, admitting that the said Shaik Ahammed, under trial prisoner UT No.6090, was admitted in jail on 22.04.1994. At the time of admission, he looked like healthy person and was stout also. He did not disclose that he was having ailment within. As he did not say anything about the ill-health nor reported sick, he was admitted. But he had gone to the Jail Dispensary on 25.04.1994, and there, the Pharmacist Khaja Wasimuddin examined him and recorded in the medical journal that “U.T.Prisoner Shaik Ahammed is suspected to be suffering from Tuberculoses.” It is stated that on 25.04.1994 Dr.Vasudev Naik examined Shaik Ahammed and one Peeraji, under trial prisoners, and suspected them to be suffering Tuberculoses and advised the jail authorities to send them to District Tuberculoses Centre, Adilabad. 7. The averments made in the writ affidavit about the statement of the Jailer regarding non-sending the deceased Shaik Ahammed to the District Tuberculoses Centre, Adilabad for want of armed reserve police escort, are not denied in the counter. It is only stated that on 26.04.1994 at about 7.20 p.m. Shaik Ahammed, U.T.Prisoner had gone for calls of nature where he vomited blood and immediately he was shifted to the Government Hospital, Adilabad for medical treatment and while he was under medical treatment, he expired at 8.10 p.m. on 26.04.1994. It is stated that when the Pharmacist Khaja Wasimuddin examined the deceased Shaik Ahammedand, recorded in the medical journal that he is suspected to be suffering from Tuberculoses and also took the signature of Dr.Vasudev Naik in the medical journal on the next day. The fact remains that no steps have been taken from 25.04.1994 till he vomited the blood while he was answering the calls of nature on the evening of 26.04.1994. 8. The reason for not taking the deceased till the evening of 26.04.1994 to the T.B.Hospital, Adilabad was also stated that due to non-availability of the armed reserve police escort, the authorities could not shift the deceased to the T.B.Centre, Adilabad. It is not known whether the deceased Shaik Ahammed would survive or not when he was admitted in the T.B.Hospital, Adilabad on 25.04.1994, but the fact remains that due to negligence on the part of the jail authorities, the health of the deceased Shaik Ahammed is deteriorated, and after vomiting the blood, his condition became serious, and while he was shifting to the hospital he was dead. 9. There are no disputes with regard to the factual aspects. The only question that would arise for consideration in the present matter is whether the petitioners are entitled for any compensation, though the husband of the 1st petitioner died due to Tuberculoses. It is not in dispute that the death of the deceased Shaik Ahammed was caused by Tuberculoses alone. Whether the Tuberculoses disease was at the curable stage or not, and whether the deceased would survive or not, if the authorities take immediate steps in shifting him to the Hospital at the earliest point of time, cannot be decided in the present writ petition. But the fact remains that there was some negligence on the part of the respondents in providing medical aid to the deceased Shaik Ahammed at the earliest point of time. Therefore, it cannot be said that there is no negligence on the part of the respondents in not providing the medical aid at the earliest point of time. 10. If there is any negligence on the part of the Government Servant, the State is liable vicariously for the negligence of its servants, as held by the Honourable Supreme Court of India in the case of Chairman, Railway Board v. Chandrima Das[1]. The learned counsel appearing for the petitioners further submits that this Court in the case of Marri Yadamma and others v. State of A.P.[2] in more or less similar facts of the case, wherein under trial prisoner died because of abdomen pain and where there was no any medical check up, and in those circumstances, compensation of Rs.3 lakhs for 30 years old deceased was granted. 11. In the instant case, as the deceased Shaik Ahammed was suffering from chronic disease of Tuberculosis, having collapsed one side lung completely, and as he was not immediately reported either before the Magistrate or before the Jail authorities on the date of remand i.e. on 22.04.1994 or on the subsequent days i.e. on 23.04.1994 or 24.04.1994, but the deceased himself gone to the Jail Dispensary on 25.04.1994 where he was examined and suspected that he was suffering from Tuberculosis, and therefore, it cannot be said that there was total negligence on the part of the jail authorities. According to the jail authorities, it is stated that even the petitioner had no any knowledge about the chronic disease of Tuberculosis as no medical record is accompanied along with him while he met with an accident. But, however, having regard to the facts and circumstances of the case, I am of the opinion that there was some negligence on the part of the jail authorities also. Under those circumstances, I feel that the interests of justice would have been met, if the petitioners are awarded compensation of Rs.50,000/- for the negligence of the respondents, as narrated above. 12. Accordingly, the Writ Petition is allowed, awarding compensation of Rs.50,000/- (Rupees fifty thousand only) to the petitioners, payable by the respondents, within a period of four months, from the date of receipt of a copy of this order. No order as to costs. _____________________ V.ESWARAIAH,J Dated: 16.04.2008 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Secretary (Home), The Government of Andhra Pradesh, Secretariat, Hyderabad 2 The Inspector General of Prisons, Hyderabad 3 The Superintendent, District Jail, Asifabad, Adilabad District. 4 2. 2CCs to 5. 2CD copies [1] (2000) 2 SCC 465 [2] 2001 (6) ALD