J&K HC | Death by consumption of spurious cough syrup; is government vicariously liable? HC backs up NHRC’s order directing State to pay 3 lakh compensation

Jammu and Kashmir High Court: The Division Bench of Pankaj Mithal, CJ. and Sindhu Sharma, J., upheld National Human Rights Commission’s order regarding compensation, whereby the commission had held the government vicariously liable for the death of children in Udhampur district due to consumption of spurious cough syrup. The Bench expressed,

“We fail to understand the hick-up in paying compensation as directed in the present case.”

Background

The instant petition was preferred by the Union Territory of Jammu and Kashmir for quashing of the orders of the National Human Rights Commission and for quashing of all proceedings in relation thereto. Noticeably, in December 2019 and January 2020, about 10 children died in Ramnagar Tehsil of Udhampur District of UT of Jammu and Kashmir due to consumption of a
spurious cough syrup.

On the complaint by one social activist, alleging that the incident had occurred due to the  negligence of the officials of the Drug and Food Control Department, therefore, appropriate action be taken against its officers and the families of the victims be provided with adequate compensation; the Commission directed for issuance of notice. Pursuant to which a report was submitted by the Under Secretary, Department of Health and Medical Education, Government of Jammu and Kashmir stating that the department had carried out an investigation in
the alleged incident of infant mortality and 33 samples of the left-over/partially consumed alleged cough syrup were collected. The test reports of the Chief Scientist, CSIR IIIM indicated the presence of Parabens, Heavy Metal and Diethylene Glycol and their presence was considered to be the cause of death. Accordingly, an FIR had been lodged under the Drugs and Cosmetics Act against the manufacturers of the alleged cough syrup.

On consideration of the aforesaid report, the Commission found out procedural lapses on the part of the Drugs Department and that it failed to keep a regular vigil on the contents of the medicines. Recording that there was no denial of the lapse on part of the Drugs Department, the Commission held that the UT of Jammu and Kashmir was vicariously liable for the lapses on part of the department and as such it proceeded to recommend for the payment of compensation of Rs. 3,00,000 each to the next of kins of all the deceased.

The grievance of the government was that the manufacture of the cough syrup alone was responsible to compensate the next of kins of the victims and that the State could not be held vicariously liable to pay the compensation.

Court’s Verdict

“Until and unless, the State is held vicariously responsible for such actions or omissions, the Government or its department would never swing into action effectively so as to control the menace of sale of contaminated or spurious drugs. A welfare State cannot escape from the responsibility to compensate the irreparable loss so caused to the families of the victims due to lapses of the Department.”

The Bench observed that lapse on part of the Drugs and Food Control Department was not
denied rather accepted. Thus, the State was rightly held vicariously liable for the omissions of the department in allowing the sale of spurious/contaminated cough syrup so as to compensate the families of the victims. The Bench opined,

“If the said department had acted vigilantly, the sale of the spurious cough syrup which was the cause of the death could have been avoided.”

Lastly, the Bench stated, ordinarily the State of its own always come out with packages and grants of financial help in events of any social carnage or accidental death wherever such incidents gain political mileage. We fail to understand the hick up in paying compensation as directed in the present case. Accordingly, the instant petition was dismissed with the directions to the government to comply with Commission’s order.[UT of J&K v. NHRC, WP(C) No. 388 of 2021, decided on 02-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the petitioner: Sr. AAG H. A. Siddiqui

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