ASOPA, J. - (1.) WITH the consent of the parties, the matter was heard finally at the admission stage.
(2.) BY this writ petition, the petitioners are seeking appropriate writ, order or direction to the respondent-State to bear all the medical expenses including the expenses of plastic surgery etc. and further award compensation on account of acid burn injuries sustained by the petitioners No. 2 to 5 which was thrown by Sajid Ali, Mohammad Khan and Kayyom Pathan. Briefly stated, the facts of the case, are that on the fateful day of 6. 3. 2000 when three daughters of the petitioner No. 1 namely, Afsana, Shanu and Shamin as well as Bhanji Sajida were sleeping in the house, at about 3. 00 am, suddenly all of them loudly cried and after hearing their cries, the petitioner No. 1 as well as other members of the family woke up and they saw that four persons namely Sajid Ali, Ayub Khan, Mahmood Khan and Riyaz, residents of the same village, were throwing acid on his daughters as well as Bhanji. In the aforesaid incident, the petitioners No. 2 to 5 had burnt seriously and all got various other injuries. Thereafter, they were taken to the Medical Hospital, Khandela but the Medical Officer of Khandela referred all the injured to SMS Hospital, Jaipur. At the time of filing of the writ petition, they were being treated at SMS Hospital, Jaipur and incurred medical expenses, as no free full medical aid was provided to the victims. After treatment also, scar of the same are still in existence. It is also stated in the writ petition that an FIR No. 21/2000 was registered against the accused persons and challan was filed. At bar, it was further stated that the accused persons have been convicted but the petitioners No. 2 to 5 have suffered on account of heinous and treacherous crime of throwing of acid on their faces and bodies. State has failed to protect the life and liberty of the petitioners. Therefore, they are entitled for compensation. The submission of Mr. Gupta is that the State has failed to protect the fundamental rights guaranteed under Article 21 of the Constitution of India, therefore, they are entitled for reimbursement of medical expenses as well as suitable compensation. He has further placed reliance on the judgments of the Supreme Court rendered in Rudul Sah vs. State of Bihar & Another reported in AIR 1983 SC 1086 and Paschim Banga Khet Mazdoor Samity & Ors. vs. State of West Bengal & Anr. reported in AIR 1996 SC 2426 and one judgment of this Court given in SBCWP No. 2765/1997; S. K. Gupta vs. State & Ors. decided on 19. 5. 1997. Although no reply has been filed but the submission of Dr. A. S. Khangarot, Additional Government Advocate is that all these girls were admitted in the SMS Hospital, Jaipur which is a government hospital and necessary medical help was given to them. Since the dispute is between two parties, therefore, the petitioners are not entitled for compensation from the State and can file a civil suit for compensation against the private person. I have gone through the record of the writ petition and further considered the rival contentions of the parties.
(3.) USUALLY the compensation cannot be claimed against the State in the matter of tort committed by one private party against another which may result in criminal case and may be granted by the civil Court. In case of damages on account of injuries or death caused by the employee of the State, then compensation can also be claimed by filing civil suit. But, after 1983 in appropriate cases the Supreme Court and High Courts had granted compensation claimed on account of violation of fundamental right, while hearing petition under Article 32 or appeal under Article 136 of the Constitution of India against the judgment passed under Article 226 of the Constitution of India of the Constitution of India and under Article 226 of the Constitution of India. The relevant paragraph No. 10 of Rudul Shah vs. State of Bihar & Anr. (supra) and paragraphs No. 9, 15 and 16 of Paschim Banga Khet Mazdoor Samity & Ors. vs. State of West Bengal & Anr. (supra) wherein the issue of violation of fundamental rights under Article 21 of the Constitution of India and compensation has been discussed and decided in favour of the victims and granted the same, are as follows:      " Rudul Shah vs. State of Bihar & Anr. : 10. We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file suit to recover damages from the State Government. Happily, the State's counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights for the individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. Paschim Banga Khet Mazdoor Samity & Ors. vs. State of West Bengal & Anr. : 9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligation undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the Medical Officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State, the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the Court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution. (See Ruddal Sah vs. State of Bihar (1983) 3 SCR 508 : (AIR 1983 SC 1086) Nilabati Behara vs. State of Orissa, (1993 2 SCC 746: (1993 AIR SCW 2366); Consumer Education and Research Centre vs. Union of India, (1995) 3 SCC 42 : (1995 AIR SCW 759 ). Hakim Seikh should, therefore, be suitably compensated for he breach of his right guaranteed under Article 21 of the Constitution. Having regard to the facts and circumstances of the case, we fix the amount of such compensation at Rs. 25,000/ -. A sum of Rs. 15,000/- was directed to be paid to Hakim Seikh as interim compensation under the orders of this Court dated April 22, 1994. The balance amount should be paid by respondent No. 1 to Hakim Seikh within one month. 15. We have considered the aforesaid submissions by Shri Dhavan. Apart from the recommendations made by the Committee in that regard and the action taken by the State Government in the memorandum dated August 22, 1995 on the basis of the recommendations of the Committee, we are of the view that in order that proper medical facilities are available for dealing with emergency cases it must be that: 1. Adequate facilities are available at the Primary Health Centres where the patient can be given immediate primary treatment so as to stabilize his condition; 2. Hospitals at the district Level are upgraded so that serious cases can be treated there; 3. Facilities for giving Specialist treatment are increased and are available at the hospitals at District level and Sub- Division level having regard to the growing needs; 4. In order to ensure availability of bed in an emergency at State level hospitals there is a centralised communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment which is required; 5. Proper arrangement of ambulance is made for transport of a patient from the Primary Health Centre to the District Hospital or Sub-Division Hospital and from the District hospital or Sub- Division hospital to the State hospital. ; 6. The ambulance is adequately provided with necessary equipment and medical personnel. 7. The Health Centres and the hospitals and the medical personnel attached to these centres and hospitals are geared to deal with larger number of patients needing emergency treatment on account of higher risk of accidents on certain occasions and in certain seasons. 16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. (See Khatri (II) vs. State of Bihar, (1981) 1 SCC 627 at P. 631: (Air 1981 SC 928 at P. 931 ). The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. It is necessary that a time- bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same. The State of West Bengal alone is a party to these proceedings. Other States, though not parties, should also take necessary steps in the light of the recommendations made by the Committee, the directions contained in the Memorandum of the Government of West Bengal dated August 22, 1995 and the further directions given herein. " This Court has also granted medical expenses to the tune of Rs. 50,000/- to a victim of acid burn in the case of S. K. Gupta & Anr. vs. State (SBCWP No. 2765/1997 decided on 19. 5. 1997) (supra ). The relevant portion of which is as under:-      " Keeping in view the special circumstances of the case, I direct the State of Rajasthan to pay Rs. 50,000/- (Rs. Fifty thousand) within a period of one week to the father of Shivani Jadeja, which has been spent by him in the medical treatment given to her, so far. I further direct the State of Rajasthan to provide all free medical facilities to Shivani Jadeja, who is admitted in SMS Hospital and to make arrangements for her plastic/cosmatic surgery, which may be prescribed by the experts on this subject, within any certre of this country. Copies of this order be supplied to the counsel for the parties. ;