IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.17777 of 2001 Between: 1 Smt.Lakshmi, W/o. Late Mallaiah, R/o. Mittapalli Village, Jaipur Mandal, Adilabad District. 2 Kum.Sattevva, D/o. Late Mallaiah, R/o. Mittapalli Village, Jaipur Mandal, Adilabad District. 3 Kum.Rajeswari, D/o. Late Mallaiah, R/o. Mittapalli Village, Jaipur Mandal, Adilabad District. ..... PETITIONERS AND 1 The Government of Andhra Pradesh, Rep. by its Secretary, Home Department, Secretariat, Hyderabad. 2 The Inspector General of Prisons, Hyderabad. 3 The Superintendent, District Jail, Asifabad, Adilabad District. 4 The Medical Officer, 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 to issue a writ, oreder or direction more in the nature of writ of Mandamus directing the respondents herein to pay the compensation of Rs.3 Lakhs for the death of the husband of the first petitioner viz. late Mallaiah who was lodged in District Jail Asifabad as an under-trail in Cr.No.92/98 U/Sec.302 & 201 R/W Sec.34 IPC on the file of SHO P.S. Jaipur died while he was in judicial custody due to the negligence and inaction on the part of the jail authorities for not taking effective steps to provide proper medical aid to the husband of 1st petitioner by duly declaring the inaction fo the respondents in not providing proper medical aid to her husband who was in judical custody is nothing but arbitrary, illegal and violative of ARt.14, 21 and 22 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{ANURADHA} THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.17777 of 2001 O R D E R: The 1st petitioner is 26 years old young woman and wife of the deceased Mallayya and the petitioners 2 and 3 are their minor daughters, aged 8 and 5 years respectively. The petitioners seek to issue a Writ of Mandamus, declaring the action of the respondents in not providing timely medical aid to the husband of the 1st petitioner and save his life and accordingly seek to issue a direction to the respondents for payment of compensation at Rs.3 lakhs. The case of the petitioners is that the husband of 1st petitioner by name Mallayya was arrested in connection with Cr.No.92/98 by the police Jaipur of Adilabad District for the offence under Sec.302 and 201 of IPC and he was remanded to judicial custody on 01.02.1999. It is stated that he was hale and healthy, maintaining good health and on 20.06.1999 he was said to have been reported illness. It is stated that one Mr.Kuchen Hari Dev Kumar, District Medical officer of District Jail Asifabad i.e. the 4th respondent examined and treated him from 20.06.1999 to 30.06.1999. Since there was no improvement and as he was still suffering from fever and his health has been deteriorating, on 05.07.1999 the 4th respondent referred the deceased to Government Head Quarters Hospital, Adilabad. But due to lack of escort facility, he was not taken to the hospital on 08.07.1999 after lapse of two days, and on the next day itself i.e. on 09.07.1999 he died. Thus, it is stated that there are lapses on the part of the respondents in providing him medical aid having fully known that his health is deteriorated and therefore, there is gross negligence on the part of the prison officials in not shifting the husband of the 1st petitioner immediately on 05.07.1999 to District Head Quarters Hospital Adilabad for better treatment. Accordingly, it is stated that the fundamental rights guaranteed to the deceased have not been protected by the jail authorities and therefore, the deceased died. It is stated that the deceased is the only bread winner of the family and the petitioners have no any other sources of income or other occupation for their livelihood except depending upon the income of the deceased and therefore, the petitioners sought compensation for the loss of life of deceased Mallay for gross negligence on the part of the prison officials. A counter has been filed stating that the prisoner No.7471 namely Mallayya aged 30 years, resident of Mittapally village involved in Cr.No.92/98 on the file of the PS Jaipur was remanded by the Judicial First Class Magistrate, Chennur to judicial custody and he was admitted in the District Jail, Asifabad on 21.01.1999. While so, he complained on 20.05.1999 to the District Jail authorities, Asifabad that he was suffering from body pains and the Medical Officer treated him and from that day onwards he was under constant supervision of the Medical Officer of the Jail, and on 05.07.2001 the Medical Officer referred him to the Government Head Quarters Hospital, Adialabad as his fever has not been reduced since 15 days though antibiotic medicines were given. Accordingly, he was sent to the Government Head Quarters Hospital, Adilabad on 08.07.2001 where he was admitted and while undergoing treatment, on 09.07.2001 he was expired. The specific averment made in the writ affidavit that he was not at all sent immediately to the Government District Head Quarters Hospital, Adilabad on 05.07.2001 for want of police escort has not been denied, but only it is stated that the police escort will be provided to such prisoners whenever there was specific directions to admit them in Government Head Quarters Hospital, Adilabad for treatment. It is stated that there is no specific indication to admit him in the Government Head Quarters Hospital, Adilabad, therefore, the police escort could not be arranged immediately. It is also admitted that the said prisoner died as per the death report due to Cardio Respiratory Failure, due to the Pericardial Effecession. Therefore, it is clear that the prisoner has not been died due to fever, but he was died due to cardio respiratory failure only. Therefore, taking into account the seriousness of the deceased, the 4th respondent referred him to be taken to the Government Head Quarters Hospital, Adilabad, but as per the statement of the 3rd respondent, the Superintendent of police himself reveals that he has referred the said prisoner on 08.07.2001 itself for necessary treatment to the Government Head Quarters Hospital, but he could not be taken the deceased to the Hospital on 05.07.2001 due to escort problem, therefore, he was taken to the hospital only two days after. Thus, I am of the opinion that it cannot be said that there are no lapses on the part of the jail authorities in not taking him to the District Head Quarters Hospital in time, and I am also of the opinion that due to the lapses on the part of the jail authorities the deceased could not be given treatment in time to save his life. It is brought to the notice of this Court that in such similar facts and circumstances, this Court in the case of Marri Yadamma and others v. State of A.P.[1] held that the State vicariously liable in damages to the person wronged by its employees and compensation be awarded under public law domain in the cases relating to custodial deaths and those relating to medical negligence, as held by the Supreme Court in the case of Chairman Railway Board v. Chandrima Das[2]. It is further stated that where the public functions are involved and the matters relates to violation of fundamental rights or the enforcements of public duties, the remedy would still be available under the public law notwithstanding that the suit could be filed for damages under private law. Having regard to the facts of the case, I am of the opinion that the petitioners are entitled to compensation for negligence on the part of the jail authorities for loss of life of husband of the 1st petitioner. In view of the facts of the case, a reasonable amount of Rs.50,000/- (Rupees fifty thousand only) can be awarded to the petitioners towards just and proper compensation. Accordingly, the Writ Petition is allowed, directing the respondents to pay the compensation as awarded to the petitioners. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 18.06.2008 Dsr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Government of Andhra Pradesh, Rep. by its Secretary, Home Department, Secretariat, Hyderabad. 2 The Inspector General of Prisons, Hyderabad. 3 The Superintendent, District Jail, Asifabad, Adilabad District. 4 The Medical Officer, District Jail, Asifabad, Adilabad District. 5.2CCs to 6.2CD copies [1] 2001 (6) ALD 821 [2] (2000) 2 SCC 465