Following the tragic death of renowned gastroenterologist from Bombay Hospital Deepak Amrapurkar who fell into an open manhole when the torrential downpour lashed Mumbai on Tuesday, the failure of the Brihanmumbai Municipal Corporation (BMC) to prevent such mishaps has angered many citizens.
The state of affairs in the civic body even attracted the ire of the Bombay High Court, which on Friday issued a notice to the BMC over the death of the doctor and sought a reply within two weeks. In the face of growing public outburst, the BMC also formed a one-member inquiry committee to investigate the matter and submit its report in 15 days.
As the cry for justice for Amrapurkar becomes louder, his family can seek legal recourse to at least punish those due to whose negligence a bright medical career met with an untimely and sad end.
Legal remedies for the family
As per legal norms, private parties can sue state officials both under civil and criminal laws. One could file a civil claim for monetary damages as well as a complaint seeking criminal prosecution. However, as far as the procedure for such cases is concerned, the rules that would apply in filing a case against a government servant are different from those that would apply if it were a private party.
For example, while causing a person's death due to negligence would not amount to homicide, it could still be punishable under 304A IPC which prescribed a maximum sentence of two years of imprisonment for causing the death of a person due to negligence.
In fact, as recently as February 2017, the Supreme Court sentenced real estate baron Gopal Ansal to one year of imprisonment under the same provision, for causing the deaths of the victims in the Uphaar Cinema fire in which 59 people died.
Government servants can also be held accountable under the same provisions as well. However, for a government servant to be held criminally liable for doing (or not doing) something in the discharge of his/her official duty, a prior sanction would be required from the government without which the courts could not even start prosecution against such a person.
This would be a different situation if it was, for example, a government servant who had caused his neighbour’s death by being negligent about the repairs and maintenance of his own home as it was not executed during the discharge of his official duties. Here, the government servant would be prosecuted in the same manner as any other citizen.
To summarise, to prosecute those officers who were directly in charge of that area, one would first need the government to first conduct an inquiry and consequently recommend prosecution of the individual if they so require.
To illustrate, in July 2017, a general body meeting of the BMC deliberated upon the possible criminal prosecution of civic officials responsible for two separate incidents: The Ghatkopar building collapse and the death of a news anchor in Chembur who was hit by a falling coconut tree. In both instances, it was found that the mishaps could have been easily avoided were it not for the corruption, indifference and incompetence of the government servants in charge.
Demand for compensation
Apart from criminal prosecution, the family of the victim could further file a civil claim for damages against the concerned officers, the BMC and the state government. This would, however, be a long-drawn affair as civil claims require evidential proof during the trial. One would have to, although to a limited extent, prove that that damage was directly attributable to the government’s negligence and breach of duty.
Since trials can take a considerable amount of time, the high courts can award compensation to be used by the family in the meantime as this would be considered a "constitutional tort".
Constitutional tort is defined as the violation of one's constitutional rights by a government servant.
One could sue the government for damages as this would be considered a breach of the fundamental Right to Life protected by our Constitution.
Joining the pending PIL
Amrapurkar's family should further, if they haven’t already, be represented independently before the Bombay High Court in the PIL filed by the Federation of Retail Traders Welfare Association.
The PIL filed by the traders' body claimed that Amrapurkar fell into the open manhole as there was no ‘Danger’ sign or barricade near it, The Indian Express reported, a gross negligence on part of the BMC.
According to The Times of India, the plea demanded registration of a criminal case under section 304A (causing death due to negligence) of Indian Penal Code against civic commissioner Ajoy Mehta and other officers of the Storm Water Drains department and a compensation of Rs 50 lakh to be given to any charitable organisation.
While this would not recompense the family for their loss, it would add momentum to the existing PIL and hopefully, this would produce some tangible results. Judicial oversight of the dismal state of infrastructure required to deal with heavy rainfall and floods in Mumbai is desperately required.
In a case recently taken up by the Bombay High Court on its own motion, the BMC was severely rebuked for the death of over 20 people in this monsoon alone attributed to potholes and collapsing roads. Since the government and local authorities have failed miserably year after year, it is quite appropriate for the judiciary to step in and fill this vacuum as it has done so in several other instances when there is inaction of the executive or the legislature.
Brilliant career cut short
Amarapurkar's body was found two days later near the Worli seashore after he fell into a manhole on a flooded street in Lower Parel. The police later recovered his umbrella from near the site.
The deceased was in a car on his way home to Ameya Cooperative Housing Society on Appasaheb Marathe Marg, Prabhadevi, when he found himself stuck in traffic due to waterlogging. He told his driver to drop him near the Elphinstone Road station and he would walk home since it was a short journey.
When Amrapurkar failed to reach home, members of his family showed his photograph to people along his supposed route. A missing complaint was later lodged and a search operation with the help of fire brigade and BMC personnel was started to find Amrapurkar which finally culminated to a tragic end.
Torrential rains had pounded Mumbai throughout Tuesday with rains equivalent of 11 days of average daily monsoon coming down in 12 hours, the highest in a day in August since 1997.
The author is a Delhi-based advocate.
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Updated Date: Sep 02, 2017 16:14:32 IST