Ex-Gratia For COVID Deaths : Madras High Court Asks TN Govt If It Wants To Pay Over Rs 50K Minimum

The bench has also directed the state to put in place a mechanism to deal with the grievances in terms of the Supreme Court Order on Ex Gratia Assistance in October and ensure that there is quick disposal of matters at all levels.

The petitioner submitted that Supreme Court vide its judgment in Reepak Kansal v. Union of India LL 2021 SC 276 directed NDMA to issue fresh guidelines to deal with Ex Gratia Compensation for the next of kin of Covid Victims. Later, the Supreme Court, in its latest Order in Gaurav Kumar Bansal v. Union Of India LL 2021 SC 536 issued a slew of directions regarding ex gratia assistance, death certificates and grievance redressal after approving the guidelines framed by NDMA.

The petitioner tried to put forward that the Reepak Kansal Judgment deferred from the 2020 Supreme Court Judgment in Centre For Public Interest Litigation v. Union of India without overturning it, whereby it was held that there was no requirement to issue fresh guidelines and the 2016 guidelines for minimum standards in existence prior to Covid 19 pandemic (Under Section 12 of National Disaster Management Act, 2005) was enough for all disasters. The petitioner, therefore, contended that the latest judgment of the Supreme Court in Reepak Kansal can only be considered as per incuriam.

The petitioner, in abstract, requested the court to consider Revised list of items & norms of assistance from State Disaster Response Fund (SDRF)/ National Disaster Response Fund (NDRF), 2015 issued by the Ministry of Home Affairs as the extant norms for ex gratia compensation in Covid 19 deaths as well. As per the norms relied upon by the petitioner, ex gratia compensation for families of each deceased person would have been Rs 4 lakhs instead of Rs 50,000/-.

Advocate General R Shanmuga Sundaram submitted that there have been 36, 620 deaths until yesterday in Tamil Nadu due to Covid 19. By virtue of the Supreme Court judgment, the state already has to give ex gratia assistance for 36620 families out of the State Disaster Response Funds(SDRF).

After hearing the petitioner and Advocate General, the Chief Justice commented that it would be helpful for the families struck by Covid 19 if the amount could be augmented a bit. He also noted that ultimately it's a policy decision.

After analysing the arguments of the petitioner, the court noted in its order as follows:

"A needless controversy has been created by the petitioner in his overzealousness to present the case."

The court took note of the petitioner's reliance on Centre for Public Interest Litigation v. Union of India, where it was observed that the previous guidelines already in place for compensation to be paid to victims who lost their lives to disasters was apt for Covid-19 victims as well.

"You must realise that when 10 people die, the amount that can be given as compensation is different as compared to a disaster where over 36,000 people have died. Giving four lakhs each in such instances is a huge amount", the Chief Justice replied to the petitioner's argument.

The court took note of the state's reliance on Reepak Kansal judgment, a decision where two of the three judges (Justices Ashok Bhushan and MR Shah) in Centre For Public Interest Litigation was part of the Coram, wherein a slew of directions have been given for NDMA  (Paragraph 95) to recommend guidelines for ex gratia assistance to families of Covid 19 victims, considering it as a peculiar and widespread disaster. NDMA was thereby asked to frame guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19 under Section 12(iii) of DMA 2005 for the minimum standards of relief.

In the Reepak Kansal judgment, the Supreme Court had noted the variance in ex-gratia assistance paid by different states, like the State of Bihar paying Rs. 4 lacs, Karnataka paying Rs. 1 lac and Delhi paying Rs. 50,000/-. The Supreme had distinguished those financial assistances on the ground that they have been paid from Chief Minister Relief Fund or other relief funds as a policy decision, but not from SDRF. This was one of the reasons why the Supreme Court required NDMA to come up with uniform guidelines while providing minimum standards of relief in terms of ex gratia assistance on account of loss of life.

The Madras High Court iterated the Supreme Court's observation in paragraph 89 of Reepak Kansal's Judgment,

However, merely because some States might have been paying the ex gratia assistance on account of loss of life to the family members of the persons who have died due to Covid-19 pandemic, for the reasons stated hereinabove, no writ of mandamus can be issued directing the Central Government/State Governments to pay a particular sum/amount by way of ex gratia assistance as the utilization of the fund/money by the Central Government would depend upon the priorities fixed by them which includes the money/fund to be used for prevention, preparedness, mitigation, recovery etc. 

The Madras High Court observed that the first respondent constituted under NDMA, 2005 has filed a counter-affidavit and other documents wherein the guidelines pursuant to the Supreme Court Order in Reepak Kansal's case has been relied upon. The court went on to note that the heirs of the deceased persons received the relief from Supreme Court by an Order dated October 4, 2021, by a bench to which the author of the judgment in Reepak Kansal case was a party. The court also noted that paragraph 10 of the Gaurav Kumar Bansal's Order which states Rs 50,000/- as ex gratia compensation was in pursuance of the June 30 judgment in Reepak Kansal. Further, as evident from paragraph 11 of the same order that explains as to what constitutes a Covid 19 death, some of the directions issued in the June Order at para 16(2) has been modified.

The bench noted as follows:

By the relevant order, the National Disaster Management Authority, Ministry of Health and Family Welfare and the Union have been directed to issue guidelines to the States and Union Territories for incorporating directions issued in the order dated October 04, 2021 "which shall be binding to all the States/Union Territories." 

The Court continued to specify the following aspects arising out of the Supreme Court Order:

Every endeavour should be made to ensure that such basic minimum payment of Rs.50,000/- for the next of kin or the family members or legal heirs of the victims who fell to Covid-19 in the State of Tamil Nadu and the Union Territory of Puducherry is paid as expeditiously as possible. Further, nothing in the order prevents any State Government or the Government of any Union Territory to pay any further amount.

The court recorded the state's submission that there have been over 36,600 deaths due to Covid 19 until now and also took notice of the amounts paid in some states as ex gratia assistance on account of loss of life due to covid 19. Therefore, the court held that it is for the state to decide any further amount of assistance over and above the minimum amount indicated in the SC Order.

The Court has also asked the state to come up with its own set of instructions/ guidelines for placing a mechanism for grievance redressal regarding ex gratia assistance.

The court has listed the matter for further hearing on 19.11. 2021 in anticipation that the state will prepare the draft guidelines to be implemented immediately  by then.

Case Title: R. Vijayagopal v. National Disaster Management Authority & Anr.

Case No: WP(MD)/9858/2021 (PIL)