Case BriefsHigh Courts

Delhi High Court: While addressing a matter of custodial violence in Tihar Jail, Mukta Gupta, J., stated that:

Walls of prison, howsoever high they may be, the foundation of a prison is laid on the Rule of Law ensuring the rights to its inmates enshrined in the Constitution of India.

Present matter was filed by the mother, sister and brother of Ankit Gujjar who lost his life to custodial violence in Tihar Jail.

Background

Ankit Gujjar, an under-trial prisoner was beaten brutally by the officials of Tihar Jail and despite repeated PCR calls and messages neither was any effort made to save Ankit nor complaint lodged nor FIR registered, nor any evidence collected. Rather a counter-affidavit was registered on the complaint of Jail Officials against Ankit.

Petitioners submitted that the deceased was long being harassed by the officials of Tihar Jail as he was unable to meet the regularly increasing demands of money made by them.

Grievance of the petitioners was that despite the fact that from the first PCR call itself the petitioners family was stating that Ankit was beaten because he failed to comply with the demands of money of the Deputy Superintendent Narender Meena and in this relation they have also provided the numbers to which the amounts were transferred, however, the entire investigation as was evident from the proceedings noted in the FIR as also the status report filed was aimed to show that since there was recovery of a mobile phone, charger and knife from the cell of the deceased, he was being transferred and when he refused to be transferred a scuffle took place, ignoring the genesis of the occurrence that there was demand of money from Narender Meena which was not fulfilled due to which Ankit was mercilessly beaten.

Serious Offence

High Court stated that in case the allegations of the petitioners are correct, it is a very serious offence that requires in-depth investigation to unearth the manner in which alleged extortion was carried out in the prison.

Bench directed for that the investigation of case under Sections 302/323/341/34 IPC be transferred to CBI. Further, a status reports to be filed by the SP concerned.

Proper Inquiry on whether medical treatment was provided to Ankit or not

An investigation not only as to who all committed the offence of brutally beating the deceased Ankit resulting in his death has to be carried out, but the role of jail doctors in not providing proper treatment at the right time is also required to be ascertained by a proper inquiry.

“…necessary rules and regulations so that the police is not denied entry in the jail to conduct an enquiry/investigation into the commission of a cognizable offence are also required to be made.”

 Further, the Court added that the present matter calls for immediate remedial actions by the State and Director General, Prison so that unscrupulous officers at the Jail do not take advantage of the knowledge of the non-working of the CCTVs so that they can get away by doing any illegal act/offences.

“A status report will be filed by the Director General( Prisons) indicating the measures taken to streamline the system as regards the CCTV cameras at the Jail and when the same are not working what alternative measures can be taken in the meantime, accountability of the Jail officers and Jail doctors and the mechanism by which immediate entry is provided to the police to the Jail on receipt of an information of a cognizable offence and the remedial steps taken.”

Petition to be listed on 28-10-2021. [Geeta v. State, 2021 SCC OnLine Del 4297, decided on 8-09-2021]


Advocates before the Court:

For the petitioners: Mehmood Pracha, Advocate with Shariq Nisar, Sanawar Choudhary, Yashovardhan Ojha and Jatin Bhatt, Advocates.

For the respondents: R.S. Kundu, Additional Standing Counsel for State/Respondent 1 and with Inspector Jeet Ram, P.S. Hari Nagar.

Anil Soni, CGSC for Union of India/Respondent 3.

Rajesh Kumar, Special P.P. for CBI/Respondent 4

Case BriefsTribunals/Commissions/Regulatory Bodies

As per the press release by NHRC dated 4-07-2021, the Chief Secretary, Government of Maharashtra has been issued a notice to ensure every possible medical treatment to imprisoned FR. Stan Swamy as part of life saving measure and protection of his basic human rights.

Background

The Commission has also called for a report in the light of the allegations made in the complaint and the treatment record of FR Swamy, who is very old and lodged in Taloja Jail, Navi Mumbai. This direction has come in continuation with the earlier order of the Commission wherein it had advised the State Government of Maharashtra to provide adequate medical care and treatment to Stan Swamy, who is hospitalized in Holy Family Hospital and submit a report within four weeks.

Earlier, the Commission had received a complaint on 16-05-2021 that FR. Stan Swamy (aged 84 years), lodged in Taloja Central Jail, Navi Mumbai was being denied medical facility during the COVID-19 period. It was also alleged that he had not been vaccinated yet and that there was no proper medical care in the jail hospital.

The Petitioner further alleged that the Majority of jail staff had tested Covid positive especially most of the kitchen staff. Number of under-trial prisoners had also contracted the corona virus and no RT-PCR tests were conducted there.


UPDATE: As per news reports, FR. Stan Swamy passes away [5-07-2021]


National Human Rights Commission

Case BriefsForeign Courts

Supreme Court of Ireland: While deliberating on a somber appeal of “life or death”, filed by the parents of a boy (hereinafter referred to as ‘John’ in order to protect the child’s privacy) with permanent brain injuries, intended at ensuring that they, rather than his treating hospital, have control over his medical treatment, the bench of Mr Justice O’Donnell, Ms Justice Dunne, Ms Justice O’Malley, and Ms. Justice Baker, held that the hospital would not be acting unlawfully if the clinical director considered it to be in the best health and welfare interests of John, (and if it was considered appropriate to do so) to withhold life-prolonging treatments/ supports that are not considered to be in the best medical or welfare interests of John. However, in order to maintain the possibility and primacy of parental decision-making, in this case, the hospital must act thus only in the instance the prior consent of John’s parents had been sought and refused.

Background

John suffered catastrophic injuries towards the end of June, 2020, in an accident which led to his treatment in ‘the hospital’ since the date of his accident. As per the doctors, John was required to be on a ventilator until the end of July when he was successfully extubated following a previous unsuccessful attempt. As a result of his injuries, John is currently fed by a nasogastric tube, has a long-term catheter to facilitate the delivery of medications. He had a urinary catheter and is doubly incontinent. As per the diagnosis, it is highly unlikely that John will ever walk, talk, develops any meaningful awareness of his surroundings, be able to communicate or process information; nor will he ever be capable of performing any voluntary movements.

In addition to the unfortunate condition, John has developed a severe form of ‘dystonia’ which is a hyperkinetic movement disorder that can arise for a number of reasons, including an acquired injury to the brain, in particular. This causes abnormal electrical signals to be sent to the muscles. In turn, these signals trigger painful, prolonged, and involuntary contractions of muscles. This is where the heart of the dispute lies- differences between the family and the hospital vis-à-vis the approach towards the treatment of John’s dystonia.

Medical Concerns: Although the medical team had gained a certain degree of control over John’s dystonia, but in their estimation, the condition is merely hidden and not gone. The dispute also centers on the consequences in case John suffers a further dystonic episode or, his condition worsens so much that invasive ICU measures are necessary to save his life. It is their professional opinion that, ultimately, John will suffer a dystonic crisis incapable of successful intervention; this is because, over time, John’s cardiac respiratory reserves will decrease to the point of him being unable to withstand a dystonic crisis.  The doctors were of the opinion that John’s respiratory capacity is failing due to the administration of painkilling medication to ease the pain brought on by a dystonic episode; whereas the parents are of firm belief that John’s preference would be for his life to be continued for as long as possible by whatever means necessary.

Family’s Concerns: The concerns expressed by the family members were highlighted in the affidavit submitted by John’s guardian ad litem Mr McGrath, “Her (mother) view was that the clinicians were always negative in relation to the prospects for John. It is apparent that she found it frustrating and upsetting that so much of the discussions with the treating doctors concerned the possibility of his early death”. The families pointed out that John’s physical injuries have healed and he just needs time to recuperate further. Their view is that John should be given a chance of life. They also accepted that John would most likely require a lifetime of care but, according to McGrath, “She believed that he could come out of it as a new born baby to the point where he would relearn each step”. The Guardian also pointed out the opinions of John’s father, which were more or less similar to that of the mother, “He expressed the view that John did not seem to be in a lot of pain and he described the situation of John as being like he was in a very long sleep. He noted that his heart, lungs, and liver were fine. He did not need oxygen or life support. Like John’s mother, he emphasised a desire to give John a chance and to treat him in the context of further care needs. He did, however, accept that if that was not working, he would have to accept that situation”.

Relief sought: The hospital thus sought permission to administer such medication, sedation or anaesthesia as might be required to alleviate breakthrough or neurological symptoms, and the permission to withhold certain specified invasive treatments and therapies.

Meanwhile, the position of John’s parents was that they would not consent to a care plan that envisaged a scenario where medication might be administered to a level that caused a risk to John’s life.

Observations

At the heart of this case is the concern of the medical team not to prolong John’s pain and suffering, on the one hand, and the concern of his parents that he should be allowed the chance to recover to the fullest extent possible by whatever means are available, on the other hand. At the moment, these positions are in a precarious – if uneasy – balance. However, these positions may prove to be irreconcilable in the event that John suffers from any further serious dystonic episode. This is the dilemma at the heart of this very sad case”. Highlighting the quandary that came before the Court, the Bench at first addressed the decision rendered on the issue by the High Court. The High Court had concluded that the conduct of the parents in the particular circumstances amounted to a failure, therefore requiring the State, through the court, to supply the place of the parents. Keeping in mind the decision of the High Court, the Court delved into a detailed scrutiny of the constitutional aspects involved- 

Constitutional Aspects – Child’s interest, Parental Failure: The key provision of the Irish Constitution involved in the proceedings was Article 42A, which allowed the State to intervene in case the parents fail in their duty to the child to the extent that the welfare of the child was prejudicially affected; the best interest of the child being the paramount consideration. Article 42A recognises family as the natural, primary and fundamental unit group of society possessing inalienable and imprescriptible rights antecedent and superior to all positive law, and as such being the primary and natural educator of the child. “Some decisions made within the Family are decisions by parents in relation to their children, and where it is possible that the parental decision, or the absence of a parental decision can be said to be damaging to the interests of the child. Article 42A.1 is an emphatic statement of the rights of the child, and that there is, therefore, a corresponding duty on parents to uphold and vindicate those rights”.

The Court duly noted that the question of medical treatment is one such area which can pose a distinct problem because parental decisions in relation to medical treatment are not necessarily an example of collective family decision-making about life choices. In common law, any medical procedure requires the patient’s consent; since a child cannot lawfully provide such consent, a substitute consent is necessary. In such circumstances, the rights of the child come to the forefront. One of the objectives of Article 42A.1 is to ensure that such cases were not approached by reference to the objective of maintaining the authority of the family, but rather through the lens of the rights of the child.

Rejecting the argument put forth by the parents that, there must be parental failure to such an extent that the safety or welfare of the child is likely to be prejudicially affected and the case must be exceptional; the Bench observed that if there is parental failure to the extent required by the Constitution and the rights of children were prejudicially affected, then the State could not be barred from acting to protect the child because, ‘exceptionality’ is not a legal test capable of determining this or any other case. It is potentially dangerous that it “may lead to the wrongful downgrading of significant circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional” –HH v. Deputy Prosecutor Italian Republic, Genoa, [2012] 3 WLR 90.

Any approach to the question of whether a particular parental decision should be supplanted by the State must give full value and effect to the genuine, heartfelt, and honest response of the family here, even if it runs counter to the entirety of the medical consensus”. The Court duly observed that John’s parents’ response, in this case, has been both exemplary and humbling. The parents, even though now separated, have been with John in the Hospital from the moment he was admitted and have remained involved and the father has made it clear that he sees his role as being as supportive as possible to John’s mother. However, the Court also noted that John’s family had to deal with the confusing medical procedures and specialisations which they had never encountered before and attempt to digest and comprehend sometimes complex medical terms and advice, especially now that the matter has developed legal technicalities.

Regarding Euthanasia: The Court also considered the question of whether the course of treatment proposed amounts to an impermissible acceleration of death and, therefore, euthanasia. The Court however stated that the course proposed by the Hospital, did not amount to euthanasia or the impermissible hastening of death by direct intentional measures. The Bench noted that, “It is perhaps understandable why, particularly in a crisis situation involving engagement with unfamiliar, and perhaps bewildering, medical and legal terminology and procedures, John’s mother might understand the application in this way if, indeed, she does so”.

Conclusion

Upon detailed perusal and appreciation of John’s family’s concerns and their position on the matter, the Court however reluctantly but clearly concluded that, John’s parents’ decision to refuse their consent to any care plan that contemplates, in the event of a dystonic or other medical crisis, the administration of whatever level of medication is required to alleviate suffering, unless invasive therapies and treatments are also made available for the purpose of resuscitation, was a decision which could not be said to be in John’s best interests. The Court further concluded that the Parents’ decision to not give the said assent is prejudicial to his welfare since it was a decision which, if implemented, would be likely on the evidence to cause him extreme and avoidable pain and suffering. It is also clear, on the evidence that any intervention in John’s case will (even if successful in the short term) return him to a weakened state of health, with depleted cardio-respiratory reserves. Thus, albeit the commendable care, love and determination shown by John’s parents, their decision in this single regard can properly be described as constituting a failure of duty.

Other Significant Conclusions: Stating that cases involving the withholding of medical treatment contrary to the wishes of a family of a child involve decisions of enormous importance for everyone involved, the Court also made the following conclusions-

  • A child has rights under the Constitution both individually as a person, and collectively as a member of a family. The Constitution recognises the benefits to a child of being a member of a family. The dynamics of relationships are sensitive and important and should be upheld where possible.
  • In cases of disagreements between doctors and parents as to medical treatment, it may be necessary to distinguish between consent to treatment and the withholding of treatment.
  • In the absence of a specific statutory procedure to resolve disputes as to the future treatment of a child, wardship jurisdiction may be used to determine if the court, in performance of the State’s duty under Article 42A, should supply the place of the parents and provide, in the particular circumstances, consent to treatment. Accordingly, wardship orders should be limited to the relevant decision as to those aspects of medical treatment where there is reason to believe that parental approval will not be provided.

[J.J., In Re., S:AP: IE:2020:000131, decided on 22-01-2021]


Sucheta Sarkar, Editorial Assistant has put this story together.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member), upheld the State Commission’s Majority Order with regard to alleged medical negligence.

The instant revision petition was filed against the Order by the U.P. State Consumer Disputes Redressal Commission, Lucknow.

Complainant had visited the SS Hospital, Varanasi (OP 1) for pain in his left knee. OP 2 examined the patient and suggested Arthroscopic removal of the loose bodies. Complainant alleged that instead of Arthroscopy, OP 2 performed an open operation. Another X-Ray was taken, wherein it was found that the loose bodies were still present.

Later, the complainant underwent the Arthroscopy procedure at Mumbai by the hands of Dr Anant Joshi and gradually his left knee started functioning normally.

What was the complainant aggrieved of?

Aggrieved by the careless and negligent treatment of the OPs, the complainant filed the consumer complaint before the District Forum.

The District Forum allowed the complaint and ordered OPs to pay compensation of Rs 2,30,000 jointly and severally to the complainant.

Further, on an appeal being filed before the State Commission, OP’s were ordered to pay compensation of Rs 4,37,965 by the minority order but the majority order allowed the appeal and set aside the District Forum’s Order.

Again on being aggrieved by the State Commission’s Order, the instant revision petition was filed.

Analysis & Decision

Bench stated that it is an admitted fact that Dr S.C. Goel preferred open operation during the time of procedure instead of Arthroscopy.

As per the operative notes, it was the case of degenerative changes in the left knee joint and the four loose bodies were seen during Arthroscopy and their sizes were 1.5, 1.25, 1 & 1 cm. A large body of more than 5 mm size is difficult to be removed by Arthroscopy. Therefore, the Opposite Party No. 2 preferred open surgery. Moreover, admittedly, the patient before the operation was informed that if the Arthroscopy was not successful, open surgery would be done.

Hence, in view of the above, nothing amounts to negligence in the present matter.

The commission relied on the Supreme Court’s decision in Jacob Mathew, (2005) 6 SCC 1 wherein it was held that,

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

Coram held that Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation.

A medical error is only considered “negligent” if the healthcare practitioner has failed to take “reasonable care”.

It was noted in the present case through the medical records of the patient that it was the patient’s misconception that despite the advice of Arthroscopy,  OP 2 performed open surgery.

Hence, the State Commission’s Order had no jurisdictional error, or a legal principle ignored or miscarriage of justice. [Anil Kumar Gupta v. Banaras Hindu University, 2020 SCC OnLine NCDRC 462, decided on 05-10-2020]

Case BriefsCOVID 19High Courts

Kerala High Court:  Division Bench of S. Manikumar, CJ and Saji P. Chaly, J., while addressing a matter wherein plight of transgender community was placed, Court held that,

“…in order to translate the rights into a reality, and to avoid practical difficulties, Court is of the firm opinion that it is for the members of the community, or NGOs and others who are working with the transgender community to identify the problems faced by the members of the community and point out the same to the officers.”

Present Public Interest Litigation was filed by a transgender person.

Issues

Respondents have not undertaken to ensure the distribution of ration, medicines, access to medical treatment etc. to the transgender community in Kerala.

Transgender persons have been discriminated in the matter of relief measures during lockdown.

Petitioners’ case

Petitioner states that she was recognised a transgender person in the State of Kerala and it was issued an identity card by the Social Justice Department.

Petitioner has also sought benefits as laid down in the Supreme Court decision of National Legal Services Authority v. Union of India, (2014) 5 SCC 438,

all transgender persons have a right to self-determine their gender identity as male, female or transgender and non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India.

Transgender policy was evolved for the transgender persons in Kerala during the year 2015.

Petitioner states that, apart from the above mentioned issues, transgender community is being subjected to threats with regard to eviction as they are unable to pay rent.

Authorities have not been extending any financial benefits to the transgender community.

Respondents Contentions

Director of Social Justice contended while refuting the claims of the petitioner that earnest efforts were being made by the State Government to provide the necessary facilities to the public at large including the transgender community.

So far as the general allegations with respect to the failure on the part of the Government to take necessary steps for supplying ration kits and other articles to the members of the community are concerned, it is stated that earnest efforts were made for the supply of the ration, ration kits and other articles, and also for providing shelter for those persons who were in crisis during the period of lock down.

Necessary medicines were provided to all transgender persons who had undergone hormone therapy and arrangements were made through the Transgender Justice Committee and other NGOs.

Civil Supplies Department had provided the facility for transgender community to mark their gender as ‘T’ in the ration card, so that they could also avail the facility to buy ration articles through their ration cards.

It is prominently submitted that the Social Justice Department, the State as well as the District Authority functioning for the transgender community have not received any complaint with respect to non-access to food supply, medicines and threat of eviction. 

Decision of the Bench

Petitioner has not specified ay of the instances whereby the ration articles, ration kit and the ration card was denied to the transgender persons on them approaching appropriate statutory authority.

Wirth regard to rights of the transgender community, Court stated that,

“…when the State Government has taken enough and more steps to provide various facilities and the authorities are appointed for addressing their issues, it is for members of that community or the NGOs or the members representing the transgender community to approach the said authorities and put forth the rights, they are entitled to.”

Court added to its observation that, identification of the transgender community is an issue involving privacy and therefore, unless and until such persons approach the authorities and their identity is so revealed and recognised, the authorities cannot take action for supplying medicines, ration, ration cards and identity cards and that too after thorough medical examination.

“…there are no reasons for denying any basic human right to a member of the transgender community.”

Yet, the Court issued the following directions:

  • Whenever any member of the transgender community approached the statutory authority concerned with medical prescription of the doctor, medicine should be supplied free of cost.
  • When any member of the transgender community approaches the District Authority or Nodal Officer appointed for the purpose of issuing gender identity card and the ration card, necessary steps shall be taken at the earliest to address the issues
  • Any other issues raised by the transgenders in writing shall also be addressed appropriately
  • 5 persons whose names have been mentioned in the statement filed, if approach the District Authority concerned, their issues should be addressed.

With the above observations, Court dismissed the petition.[Kabeer v. State of Kerala, WP(C) No. 9890 of 2020(S), decided on 08-06-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of S. Muralidhar and Anup Jairam Bhambhani, JJ., held a special sitting on orders being given by the Senior Most Judge –Justice G.S. Sistani with regard to wounded victims not being able to be removed from AI Hind Hospital for treatment at GTB Hospital.

AI Hind Hospital is a fairly small hospital and lacks facilities for treating the grievously wounded persons.

Advocate Suroor Mander had approached the Court and asked for a safe passage to be provided for them from the said hospital.

Bench being concerned with the safety of the injured people that require medical attention at the nearest government hospitals directed the Delhi police to ensure the safe passage for the ambulance by deploying all the resources.

Court asked for a status report including the information of the injured victims and treatment offered to be laced before them today when the matter will be taken up at 2.15 PM, i.e. 26-02-2020.

The Court accordingly directs Delhi Police to ensure such safe passage by deploying all the resources at its command and on the strength of this order and to ensure that apart from the safe passage, the injured victims receive immediate emergency treatment, if not at the GTB Hospital, then at the LNJP Hospital or Maulana Azad or any other government hospital.

[Rahul Roy v. Govt. (NCT of Delhi), Order dt. 26-02-2020]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and R.G. Avachat, JJ., pronounced an order while extending the provisions of Section 335 CrPC to the appellant in order to detain him in Yerwada Mental Hospital and setting aside the impugned order of conviction and sentence under Section 302 IPC.

The present challenge was made to the judgment and order passed by learned Additional Sessions Judge, Udgir. Appellant had been convicted for the offence of murder, punishable under Section 302 IPC.

Factual matrix of the present case is that the deceased was a daily wage earner and at times used to sell Pepsi candies as a hocker in summer. On one such day, appellant asked the deceased for a Pepsi candy for free but the deceased refused for the same. Result of the said circumstances was that the appellant picked up a stone and lynched the deceased due to which on reaching the hospital the deceased lost his life.

Appellant was arrested after the above-said facts took place in the form of an FIR filed by deceased’s uncle. Trial Court framed charge and appellant pleaded not guilty and claimed to be tried. His defence was that of insanity.

Learned Counsel for the appellant stated that appellant did not have intention to kill the deceased and therefore it would at most be an offence of culpable homicide not amounting to murder, punishable under Section 304 Part-B of the Indian Penal Code. On appreciation of the evidence in the case, the trial court found the appellant to have caused culpable homicide and found it to be a case of murder. In the trial court’s view, appellant failed to make out defence of his insanity.

Conclusion & Analysis

The High being not in agreement with the trial court’s finding addressed the issue of legal insanity with an in-depth analysis of Section 299 IPC, Sections 105 and 101 Evidence Act and reference was taken from the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. 

Thus, in light of the above stated,  along with circumstances of the case, it was stated that there was no enmity between the deceased and the appellant and appellant had lynched the deceased for such a trivial issue. Further, as for representations regarding appellant’s mental health, PW-8 had testified that once appellant along with other villagers had visited a temple where he had hit his wife with a watermelon for no reason. Therefore in Court’s opinion, such acts could not be attributed to the person of sound mind.

Court stated that “the appellant may not have been found medically insane.  We, however, found him legally insane. The fact that none of the family members of the appellant stood by him during the proceeding before the trial court speaks in volume.”

Disagreeing with the decision of the trial court, the High Court held that the appellant did not know the nature of the act that would otherwise have constituted the offence of murder, and therefore impugned order is set aside by declaring the appellant legally insane and detaining him in Yerwada Mental Hospital as per the provisions of Section 335 CrPC. [Balaji Kishan Nagarwad v. State of Maharashtra, 2019 SCC OnLine Bom 116, decided on 30-01-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition filed against the order of Respondent 3, whereby the medical claim of the petitioner was rejected on the ground that his case was not covered under Rule 6(5) of Medical Attendance Cum-Allowance Rules, 1990.

The petitioner went to Mumbai where he fell ill and was subsequently admitted to a hospital where he was diagnosed with cancer. He incurred Rs 58,468 towards medical expenses during 2004-06, however his claim was rejected by Respondent 3 on the ground that his case was not covered under Rule 6(5) of the Rules of 1990. The main issue that arose before the Court, in this case, was whether the petitioner was entitled to get medical reimbursement for the cost incurred by him for his treatment.

The Court observed that it was an accepted fact that the case of petitioner was genuine and that he was actually diagnosed with cancer for which he incurred a specific sum of money towards medical expenses. Taking into account another decision of the same Court, it was further observed that the rules cannot be interpreted to operate harshly in medical treatment cases.

The Court held that the respondents had declared the petitioner’s treatment to be genuine and hence merely saying that the case of the petitioner did not fall within the purview of Rule 6(5) of Rules of 1990 does not disentitle the petitioner to get the amount which the petitioner has actually incurred on the medical treatment. Finally, the impugned order was quashed and the respondents were directed to disburse an amount of Rs 58,468 incurred by the petitioner for his treatment at Tata Memorial Centre Hospital, Mumbai subject to furnishing of necessary bills for the amount incurred on his treatment. [Mohd. Younis v. State, 2018 SCC OnLine J&K 498, order dated 09-08-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: An appeal was filed by the Oriental Insurance Company challenging the order of the lower court which had allowed a patient’s family to claim insurance for the death of the patient who had denied taking treatment against medical advice. The patient had met with an accident and he was in a serious condition, said doctors. But he got himself discharged against medical advice and succumbed to his injuries on the day of his discharge itself.

The appellant argued that the insured was already a TB patient with cirrhosis of liver and it could not be predicted that the death was only on account of head injury suffered in the accident and not his pre-existing condition. The doctor testifying for the Insurance Company stated in court that the chances of the recovery couldn’t be ruled out if the patient had stayed on for treatment. The doctor however, not able to assess the prospect of recovery.

The Court examined that between the date of accident and death, there were no other intervening incident that could have affected the medical conditions except that the patient himself denied the treatment which perhaps was available. The cause for death could also be easily discerned from the fact that when he was readmitted, the diagnosis was that there were internal bleeding within the skull and when there was a reference about the general poor condition. Seen in the context of such diagnosis with no reference to the condition of cirrhosis of liver or the tuberculosis which the deceased was said to have already contacted the precipitating factor for the poor condition was only the head injury with internal bleeding within the skull in the brain area. A decision to get discharged even against medical advice at the terminal stage of life shall not be likened to an invitation to assisted suicide. It is embracing dignity in death.

Thus, the High Court dismissing the appeal, approved the payment of the claim. [Oriental Insurance Company Limited v. R.K. Dogra, 2016 SCC OnLine P&H 3397, decided on 18-05-2016]