"If Use Of 'Defective Ventilators' Results In Loss Of Life, Central Govt Will Have To Take The Responsibility" :Bombay High Court

Justices Ravindra Ghuge and Justice BU Debadwar were hearing their suo motu criminal PIL on Covid-19 Management.

Dictating their order, Justice Ghuge said they might also direct the return of such ventilators through the Union of India if need be, as manufacturing defects call for replacement.

"In short, we will not permit the experimentation of ventilators which have undergone major repairs, in treating the patients since this would be causing a risk/health hazard to the patient. If unfortunately, the use of such ventilators results in the loss of life, it will be the UOI which will have to take the responsibility."

Even as Justices Ghuge dictated the second sentence in open court, Additional Solicitor General Anil Singh, for the Union of India, requested the court to leave the statement out of its order till the next date.

Singh submitted the Centre provided the ventilators free of cost, on the State's demand. Moreover, an expert's team would be visiting the hospital for inspecting the ventilators on Thursday.

"You tell us then, if these defective ventilators are put to use and it results in casualties, who will be responsible?" Justice Ghuge sough to know. "Let the Statement come from the UOI, that we will not allow the State to use the ventilators until they are fit."

Following this, the court recorded the ASG's statement that there would be no casualty since these ventilators would not be made operational in the treatment of the patients until the team of the doctors visiting GMCH Aurangabad and representatives of the manufacturer ensure that the ventilators are upto desirable operational standards.

Even after the court completed its dictation, the ASG requested the judges not to include their court's earlier statement in the order. The bench said it would consider the request. The observation does not form part of their order.

Doctors team from Delhi to Visit GMCH Aurangabad tomorrow

On Wednesday, ASG Anil Singh began his submissions by apologising if any misunderstanding was created on the last occasion.

The bench had made scathing remarks against the Union during the previous hearing for indulging in a blame game and virtually supporting the defective ventilator manufacturer, Jyoti CNC, from Rajkot.

"We don't want to blame anyone or fight on this issue; ultimately, we are all we are working together and want to resolve the issue. I assure your lordships, if the ventilators are not in a working condition, or if there is any defect in the ventilator, we will look into it." Singh said.

HE added that a committee of two "very senior doctors" has been appointed, one from Ram Manohar Lohia Hospital & one from Safdurjung Hospital, an eight-member technical team, and others, to inspect and ventilators and make them functional.

"We have already written to the State government that if it requires replacement, we will try to replace it. If the defect is such," he added.

Justice Ghuge pointed out that according to Live Law and Bar n Bench's reports, a statement was made before the Karnataka HC last week admitting that 1800 ventilators supplied through the PM Cares Fund are all malfunctioning.

I will have to take instructions, Singh said.

The bench also observed that the Central Government had declared that the present ventilators are not from the PM Cares fund.

"Yes, that true," Singh added.

21- Member State Team finds Ventilators defective

The court pointed out to the ASG a document placed before it by the Chief Public Prosecutor for the State, DR Kale. A meeting was held on 29/05/2021 in the Government Medical College and Hospital, Aurangabad, regarding the ventilators.

Among the 21 persons who participated in the inspection and analysis were the manufacture's representatives, the procurement agency HLL, CDSCO representatives, DGHS/AIIMS Nagpur, and two more representative manufacturers.

The report concluded the following about the Dhaman-III Model ventilator from Jyoti CNC, Rajkot.

a) The commissioned ventilators have suffered a continuous breakdown even after repairs;

b) Desaturation, water drain issue, User Interface not proper, frequent oxygen sensor failure, water drain failure and defective user interface are some of the defects

d) There are 269 trained personnel in the hospital to operate the ventilators

e) The hospital had training material/User Manuals at the time of the deployment of the ventilators;

"The manufacturer has signed this document," Justice Ghuge said.

The ASG, however, submitted the doctors would visit the hospital tomorrow and produce their report to the court.

The court added that if the manufacturer is found guilty, he should not be allowed to "go scot-free, he's been paid in crores."

In its order the court said,

We make it clear that we expect the Union of India to be firm with the manufacturer in the event of a supply of defective ventilators, and if we find it necessary, we would be directing the returning of the defective ventilators. In such a situation, it would be the responsibility of the Union of India to ensure that the defective ventilators are replaced with new functional ventilators. Manufacturing defects call for replacement under the warranty scheme. In short, we would not permit experimentation of the ventilators which have undergone major repairs, in treating the patients, since this would be causing a risk/health hazard to the patients and unfortunately, the use of such ventilators may cause loss of life, which should be averted.

The matter was then adjourned to June 7.