POONAM SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is heir and legal representative, of one Vinod Kumar Sharma. He met with an accident on 10.12.1992 while allegedly driving in a drunken state. A First Information Report ( in short, 'F.I.R.' ) was lodged on the basis of a telephone call, which is in the following terms :-

(2.) Thereafter the respondent No. 6 together with a Constable visited the site. The said respondent recorded statements of the witnesses whereupon he was taken in custody and sent for medical examination and/or treatment to Deen Dayal Upadhyay Hospital ( in short, 'DDU Hospital' ), as he suffered head injury and there was more than one inch cut in the head and he was bleeding. From the report of the doctor, it appears that it was opined therein that the said Vinod Kumar Sharma was under the influence of alcohol and there was gait staggering and wound of one-inch size. The doctor stitched the wound and gave Brufen tablet. Thereafter he was arrested for commission of an offence under Section 185 of the Motor Vehicles Act, 1988 ( in short, 'the said Act'). He at about 12.30 p.m. in the night complained of severe headache and was again taken to the same doctor. He was neither hospitalized nor was given any further treatment. Admittedly, in the morning, a cousin of the said Vinod Kumar Sharma visited the police station and obtained bail for him. At about 4.00 p.m. on the same day, as his condition deteriorated, he was again brought back to the DDU Hospital when X-Ray and CAT Scan were taken and thereafter he was referred to Ram Manohar Lohia Hospital ( in short, 'RML Hospital' ). It appears that before taking the deceased to the RML Hospital, he was taken to a private medical clinic, but when he was brought there he was declared dead.

(3.) Mr. J.P. Singh, the learned counsel appearing on behalf of the petitioner, would submit that the petitioner is entitled to compensation by way of a public law remedy not only having regard to the medical negligence of the doctors, but also having regard to the fact that the police authorities had also failed to discharge their statutory duties. The learned counsel would contend that the deceased could not have been declared that he was driving in a drunken stage without making him undergo the medical tests prescribed therefor. It was pointed out that respondent No.6 was statutorily obliged to follow the legal requirements as provided for in the said Act. The deceased could not have been detained, the learned counsel would urge, for the period of more than 2 hours. It is submitted that having regard to the purported findings arrived at that he was under the influence of alcohol, even the Employees' State Insurance Corpora Lion has rejected the claim of the petitioner. The learned counsel would submit that it was impossible for a person to drive 8 kilometers, especially if he was driving under intoxication. It is submitted that the legal representatives of the victim of a road accident cannot be denied just compensation on that ground. According to the learned counsel, having regard to the legislative policy as contained, in the said Act relating to hit and run cases, the petitioner was entitled to damages (a) Rs.5,76,000/- keeping in view the admitted fact that he was drawing a salary of Rs.3,000/- per month and at the relevant time he was aged only 30 years. The learned counsel would contend that the medical negligence on the part of the respondents would be evident from the report of the Committee, which was constituted for that purpose. The learned counsel, in this behalf, would rely upon Medical Negligence, Second Edition by Powers & Harris. The learned counsel would urge that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can award damages in a situation of this nature. In support of his plea, the learned counsel relied upon a large number of decisions, which are :- Spring Meadows Hospital v. Harjol Ahluwalia, 1998 2 SCALE 456 Thirath Ram Saini v. State of Punjab, 1997 11 SCC 623 D.K. Basu v. State of West Bengal, 1997 1 SCC 416 Nilabati Behera (Smt.) Alias Lalila v. State of Orissa, 1993 2 SCC 746 Rudul Sah v. State of Bihar, AIR 1983 SC 1086 P.A. Narayanan v. Union of India, 1998 3 SCC 67 Smt. Darshan v. Union of India, 1999 79 DLT(DB) 432 People's Union for Civil Liberties v. Union of India, 1997 1 SCALE 706 Shyama Devi v. National Capital Territory of Delhi, 1999 78 DLT(DB) 827