IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 WP(C).No. 335 of 2011(N) ------------------------ PETITIONER(S): --------------- 1. CHANDINI SAM.S.P., W/O.LATE DR.VINU.V., AGED 40 YEARS, T.C.NO.11/918, N.R.A.12, GANABHARANAM ROAD, NALANDA, KOWDIAR P.O., THIRUVANANTHAPURAM. 2. MAHIMA.V.C.(MINOR), D/O.LATE DR.VINU.V., AGED 10 YEARS, REPRESENTED BY CHANDINI SAM S.P., (MOTHER), T.C.NO.11/918, N.R.A.12, GANABHARANAM ROAD, NALANDA, KOWDIAR P.O., THIRUVANANTHAPURAM. 3. MARIA (MINOR), D/O.LATE DR.VINU.V., AGED 6 YEARS, REPRESENTED BY CHANDINI SAM.S.P. (MOTHER) T.C.NO.11/918, N.R.A.12, GANABHARANAM ROAD, NALANDA, KOWDIAR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.JAYAKUMAR (RAVIPURAM) RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, HEALTH AND FAMILY WELFARE (J) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. THE DIRECTOR OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695 001. 4. THE DISTRICT MEDICAL OFFICER OF HEALTH GENERAL HOSPITAL ROAD, ERNAKULAM-682 011. 5. THE DEPUTY DISTRICT MEDICAL OFFICER OF HEALTH, GENERAL HOSPITAL CAMPUS, GENERAL HOSPITAL ROAD, ERNAKULAM-682 011. GOVT. PLEADER SHRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No.335 of 2011 ================== Dated this the 6th day of January, 2011 J U D G M E N T The petitioners are the widow and the children of late Dr.Vinu.V., who was an Assistant Surgeon in the Health Service Department of the Government of Kerala. He died on account of a rare viral infection. By Ext.P5, the Deputy Director of Health Services, who was deputed to conduct an enquiry regarding the cause of death, recommended as follows; “Visited Medical Trust Hospital Ernakulam on 16.08.07 and had discussion with Dr.Babu John Mathews consultant Physician who attended Dr.V.Vinu till his death. Multiorgan failure was the end result of some sort of infection the cause of which could not be revealed by all the tests available at that time in our state. The possibility of other rare inflictions like that of Hantavirus which may culminate in renal failure cannot be ruled out. The only major infections rampant at that time were Dengue Fever & other Viral Fevers. Hence as tests for Dengue & Leptospirosis were negative, a retrospective diagnosis of a rare infection of viral origin is the only plausible answer. A befitting compensation for death while on duty is highly recommended.” Despite this recommendation, the Government rejected the claim of the petitioners for payment of compensation for the death of Dr.Vinu. The petitioners approached this Court and obtained Ext.P8 judgment for reconsideration of the claim of the petitioners. The Government reconsidered the matter as directed in the judgment and passed Ext.P6 order again rejecting the claim of the petitioners. The petitioners filed a contempt case for non-compliance with the directions in Ext.P8 w.p.c.335/11 2 judgment. In that contempt case, this Court passed Ext.P9 order closing the contempt case observing that if at all the petitioners are aggrieved, they will have to work out their remedies against the orders passed by the Government. It is accordingly that the petitioners have filed this writ petition seeking the following reliefs: “(i) call for the records leading to Exhibit P6 order and quash/set aside the same. (ii) Declare that the petitioners are entitled to a befitting compensation for the untimely death of late Dr.V.Vinu while on duty as highly recommended by the Enquiry Officer in Exhibit P5 and Exhibits P1 to P4 reports. (iii) Issue a writ of certiorari or appropriate writ or order or direction quashing Exhibit P6. (iv) declare that Exhibit P6 is unsustainable in law. (v) issue a writ of mandamus or appropriate writ or order or direction; directing the Government to reconsider the case of the petitioners afresh and grant them a befitting compensation in the light of Exhibit P3. (vi) to direct, the State of Kerala to bestow on the three petitioners a sum of Rs.30 lakhs (Rupees 10 lakhs each) to the petitioners in the light of Exhibits P1 to P4 and Exhibit P5.” 2. I have considered the contentions of the petitioners as well as those of the learned Government Pleader. 3. There is no law which gives a right to the petitioners to claim compensation on the death of late Dr.Vinu. Certainly they deserve sympathy. Compensation they seek is only an ex gratia payment. It has also been specifically stated in Ext.P8 judgment. This Court cannot simply direct the Government to make an ex gratia payment on account of the death of a doctor even if the death is while w.p.c.335/11 3 on duty. The question as to whether ex gratia payment has to be made to an employee is a discretion to be exercised by the Government depending financial position of the family and other factors. Unless the Government has decided the matter on the basis of irrelevant considerations or without taking into account relevant considerations, this Court cannot interfere with the orders of the Government in that regard. I note that in Ext.P9 judgment, the learned Single Judge, who originally passed Ext.P8 judgment, observed as follows; “5. Thus it is obvious that, it is not a case where the 1st respondent rejected the claim without adverting to the directions in the judgment. Further, the financial position of the family, the employment status of his wife, pension that is paid etc. were also duly adverted to. That apart, before the order was passed, the file was even circulated to the Chief Minister.” As such, this is not a case where the Government has not considered the matter in its right perspective. The Government has given very plausible reasons for deciding not to pay any compensation. I do not think that this Court can substitute its view in the place of the views of the Government on any sustainable ground. As such, I am not inclined to interfere with the impugned order. Accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.335/11 4