Absence of RT-PCR Report At Peak of Pandemic No Ground To Refuse COVID Death Compensation: Bombay HC Directs BEST To Pay 50L To Dead Conductor's Kin

A division bench of Chief Justice Dipankar Datta and Justice Madhav Jamdar said it would be "inhuman" to decline relief to the conductor who gave 22 years of his life to best and died while "answering the call of duty."

"Thus, merely because there was no RT-PCR report or adequate medical documentation could not have afforded ground to refuse the benefits flowing from the Government Resolution dated 9th May 2020. It would indeed be inhuman on our part if we refrain from interfering in this case and fold our hands to decline relief to the heirs of Krishna who died while answering the call of duty."

The court set aside BEST's decision to refuse compensation on 25th November, 2021 as the Committee of 3 civic doctors did not clearly certify that Krishna Jabare's death was due to covid, as the family had failed to produce a negative RT-PCR report.

Jabare passed away on 6th August, 2020, during the first covid-19 wave. BMC doctor Dr. R. V. Metkari suggested that an acute respiratory distress syndrome together with influenza like illness led to Krishna's death and certified that it was a suspected case of covid-19. But no post mortem was conducted due to a BMC circular.

Following his death, Jabare's daughter sought compensation under the Maharashtra government's 29^th May 2020 GR regarding ex-gratia payment of Rs. 50 lakh to the kin of frontline workers who died due to covid and compassionate appointment.

At the outset, the bench perused Jabare's attendance which was found to be regular. He had failed to report to duty on August 1 and passed away six days later. "The dreaded pandemic brought about by COVID 19 was the reason which threw normal life out of gear, yet, employees like Krishna were called upon to answer the call of duty and report."

Advocate Vishal Talsania for BEST submitted that BEST was obligated to compensate genuine covid victims. However, the government policy has to be strictly followed. So without a positive RT-PCR test report or a negative report being a false negative, refusal couldn't be impeached.

However, since post mortems were being conducted only in exceptional situations at the time, the bench inferred that the BMC doctor did not consider it necessary to obtain nasopharyngeal swab because he suspected Jabare had died due to covid.

The court noted that BMC's committee of doctors has not considered relevant factors while considering Jabari's daughter's claim. They also didn't observe that his wasn't a covid death.

In cases of doubt, it is always the weaker section that must benefit from benevolent compensation policies, the bench said. "We are of the view, bearing in mind the preambular promise of securing, inter alia, social and economic justice to all our citizens, that benefit has to be given in case of a real doubt in favour of the weaker class for whom the policy decisions to provide ex gratia compensation and accelerated compassionate appointment were conceived by the authorities."

The court held that the standard of proof in such cases has to be "preponderance of probability" for an inference that the fact of death of Krishna due to COVID 19 must be more probable.

Regarding BEST's contention that a relief in this case would open floodgates, the bench noted that eight other families were refused compensation but none of them had approached the HC. Even if they had it wouldn't change the fact that, "BEST acted illegally, unjustly and in an arbitrary manner to deprive the petitioner the benefits of policy decisions taken by the authorities."

Case Title: Mayuri Krishna Jabare Vs. General Manager, BEST & Anr. 

Citation: 2022 LiveLaw (Bom) 441  

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