Vinod Kumar vs The State Of Bihar & Ors.

Heard learned counsel for the petitioner and the learned counsel for the State.

In the instant writ petition, the petitioner has prayed for the following relief(s):

Learned counsel for the petitioner submits that his mother, Binda Devi, a housewife whose husband had pre-deceased her, was looked after by the petitioner, her second son, while the elder son lives separately and has no objection to the petitioner collecting the amount. It is submitted that, on being affected by Covid-19, she was taken on 10.04.2021 to the clinic of Dr. D.K. Sharma (Respondent No. 4), who treated her and advised an RT-PCR/Covid-19 test. The petitioner got the test done at New National Media Lab (Respondent No. 5) on 22.04.2021, and the report was positive. She died on 23.04.2021, and the Birth and Death Registrar, Municipal Corporation, Patna, issued Death Certificate No. D-2021:10-90097-006158 dated 03.05.2021 (Annexure II).

Learned counsel for the petitioner also submits that he applied for ex gratia payment to the office of the Civil Surgeon on 17.06.2021, and that his mother’s name was entered in the list of Covid-19 deaths forwarded by the Civil Surgeon to the Executive Director, State Health Society, by letter No. 14971 dated 17.10.2022 at Serial No. 7. As he received no information, he applied under the Right to Information Act on 23.03.2024 and, receiving none, filed a first appeal (No. 354/24-25) on 11.06.2024, in which he was called for hearing on 20.08.2024. He was then informed by letter No. 90/State Health Committee dated 05.04.2024 that his claim was rejected because the medical check-up report of the deceased was issued by an unauthorised lab.

Learned counsel of the petitioner finally submits that he is a bona fide claimant, that the ground of rejection is technical and no verification was made against the laboratory, that the report has not been said to be fake or disbelieved, and that it is admitted that his mother died of Covid-19. Seeing his mother in a serious condition, he took her in a rush to the laboratory as advised by the doctor, and there was no wilful lapse on his part. In his reply to the counter affidavit, the petitioner submits that the report is of a Rapid Antigen Test showing positive for Covid-19, that the committee’s refusal is not reasoned or in accordance with law, and that his case deserves sympathetic consideration. He relies on the orders of this Court dated 15.03.2024 in C.W.J.C. No. 9588 of 2023 (Surendra Raut v. State of Bihar) and dated 15.04.2024 in C.W.J.C. No. 13671 of 2023 (Sushila Devi v. State of Bihar), in which, he says, payment was directed irrespective of the report having been issued by an unauthorised lab

Learned counsel for the State/Respondent No. 2 submits, that the petitioner’s mother, Binda Devi, died on 23.04.2021 and that she underwent a Rapid Antigen Test on 22.04.2021 at the New National Lab, which is an unauthorised lab.

Learned counsel for the State also submits that the case was examined by the Three-Member Committee, comprising the Additional Director, Health Services, the Administrative Officer, State Health Society, and the Director-in-Chief, Health Services, in its meeting dated 25.01.2023, in which it appears at Serial No. 17 (Serial No. 87 of the committee’s list). The entry records the name of the deceased as Binda Devi, aged 73 years, the type of test as RAT, the date of testing as 22.04.2021, the place of death as home isolation and the date of death as 23.04.2021, with the reason for rejection “lab from unauthorised lab”. It is submitted that this was communicated by the Executive Director, State Health Society, by Memo No. SHSB/GA/IDSP/4668/2020/6568 dated 03.02.2023, that the claim was rejected after careful consideration because the RAT was done at an unauthorised lab, and that the writ application is fit to be dismissed.

Having heard the parties and perused the record, it is evident that the claim of the petitioner for ex gratia assistance on account of the death of his mother has been rejected only on the ground that the Rapid Antigen Test was done at an unauthorised laboratory.

The Hon’ble Supreme Court in Gaurav Kumar Bansal v. Union of India & Anr. (M.A. No. 1120 of 2021 in W.P.(C) No. 539 of 2021), while giving effect to the guidelines dated 03.09.2021 and 11.09.2021 issued respectively by the Ministry of Health & Family Welfare/ICMR and the National Disaster Management Authority, laid down the eligibility criteria for treating a death as one caused by Covid-19 for the purpose of ex-gratia assistance under Section 12(iii) of the Disaster Management Act, 2005. On a conjoint reading of paragraphs 11(i) to 11(ix) of the said order, a case qualifies as a Covid-19 death where any one of the following conditions is satisfied: (i) the deceased was diagnosed Covid-19 positive through an RT-PCR/Molecular Test/RAT, or was clinically determined to be a Covid-19 case through investigation by a treating physician while admitted in a hospital/in-patient facility; (ii) death occurred within thirty days of such positive test or clinical determination, irrespective of whether death took place inside or outside the hospital; (iii) the deceased, having been admitted as a Covid-19 case, continued in the same admission beyond thirty days and died subsequently; (iv) a Medical Certificate of Cause of Death (MCCD) in Form 4/4A has been issued under Section 10 of the Registration of Birth and Death Act, 1969, treating the death as Covid-19 related; and (v) the deceased died by suicide within thirty days of being diagnosed Covid-19 positive.

In the present case, it is not in dispute that the petitioner’s mother, Late Binda Devi, was tested by Rapid Antigen Test on 22.04.2021 and the report was positive for Covid-19, and that she died the very next day, on 23.04.2021, while in home isolation. It is also not in dispute that her name was duly included, at Serial No. 7, in the list of persons who died of Covid-19 forwarded by the Civil Surgeon, Patna, to the Executive Director, State Health Society, vide letter No. 14971 dated 17.10.2022, and was placed before the Three-Member Committee. The claim was rejected solely on the ground that the laboratory was not authorised, without any finding that the report is fabricated, without any verification of the laboratory, and without reference to the criteria laid down by the Hon’ble Supreme Court.

This Court finds that the rejection, being founded solely on the status of the laboratory, and without any of the eligibility criteria laid down by the Hon’ble Supreme Court in Gaurav Kumar Bansal (supra), which expressly include a case where the deceased was diagnosed Covid-19 positive through an RT-PCR/Molecular Test/RAT and death occurred within thirty days of the positive test, irrespective of whether death took place inside or outside the hospital, having been considered by the State Health Society or its Three-Member Committee, is unsustainable. Here the death occurred one day after the positive test, and the criteria laid down by the Hon’ble Supreme Court do not make the claim depend on the authorisation of the laboratory.

It is important to reiterate that, in a welfare state, the government has a binding constitutional and statutory duty under Article 21 and the Disaster Management Act, 2005, to act as an active guardian of public welfare, ensuring just and proper relief and financial compensation to citizens who lost their family members during a national health crisis like Covid-19. The State authorities cannot reject a genuine claim of a Covid-19 death merely on the technicality that the test was done at a laboratory said to be unauthorised, particularly where the report is not alleged to be false, the death occurred within a day of the positive test, and the deceased’s name finds place in the official list of Covid-19 deaths forwarded by the Civil Surgeon. The Constitution does not conceive the State as a distant spectator to human suffering, but as an active guardian of welfare and dignity.

In view of the above, the decision of the Three-Member Committee of the State Health Society, taken in its meeting dated 25.01.2023 (Serial No. 17), as communicated vide Memo No. SHSB/GA/IDSP/4668/2020/6568 dated 03.02.2023, and the consequential communication vide letter No. 90/State Health Committee dated 05.04.2024, rejecting the claim of the petitioner, are hereby quashed.

The authority concerned is hereby directed to reconsider the claim of the petitioner, in light of the Rapid Antigen Test report dated 22.04.2021 (Annexure I/1), the death certificate (Annexure II) and the eligibility criteria laid down in Gaurav Kumar Bansal (supra), within four weeks from the date of receipt or production of a certified copy of this order. Further, if on such consideration the petitioner is found eligible, the compensation of Rs. 4,00,000/- shall be paid to him under the applicable Covid-19 relief scheme, along with any consequential ex-gratia benefits, and the same shall be released to him within a period of four weeks thereafter.

As regards the prayer of the petitioner for interest at the rate of 9% per annum and for costs, this Court is not inclined to grant the same at this stage. The ex gratia assistance is payable under a relief scheme, and the eligibility of the petitioner has yet to be determined by the competent authority in light of the criteria laid down in Gaurav Kumar Bansal (supra). In these circumstances, no liability to pay interest can be said to have accrued, and the prayer is left to be considered, if at all, by the authority concerned in accordance with the scheme and the law.

Accordingly, with the above observation and directions, the present writ petition is allowed.