GAURAV KUMAR BANSAL versus UNION OF INDIA AND OTHERS on 4 October 2021

1. Pursuant to a detailed judgment and order dated 30.06.2021,this Court directed the National Disaster Management Authority(NDMA) and the appropriate authority in paragraph 16 as under:

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“16. In view of the above and for the reasons stated above, wedispose of the present writ petitions with the following directions:

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1) We direct the National Disaster Management Authority torecommend guidelines for ex gratia assistance on account of lossof life to the family members of the persons who died due toCovid-19, as mandated under Section 12(iii) of DMA 2005 for theminimum standards of relief to be provided to the persons affectedby disaster – Covid 19 Pandemic, over and above the guidelinesalready recommended for the minimum standards of relief to beprovided to persons affected by Covid-19. However, whatreasonable amount to be offered towards ex gratia assistance isleft to the wisdom of National Authority which may considerdetermining the amount taking into consideration the observationsmade hereinabove, such as, requirement/availability of the fundunder the NDRF/SDRF for other reliefs and the prioritiesdetermined by the National Authority/Union Government and thefund required for other minimum standards of relief and fundrequired for prevention, preparedness, mitigation and recoveryand other reliefs to carry out the obligation under DMA 2005.The aforesaid exercise and appropriate guidelines berecommended, as directed hereinabove, within a period of sixweeks from today; B

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2) The Appropriate Authority is directed to issue simplifiedguidelines for issuance of Death Certificates/official documentstating the exact cause of death, i.e., “Death due to Covid-19”, tothe family members of the deceased who died due to Covid-19.FWhile issuing such guidelines, the observations made hereinabovein paragraph 13 be borne in mind. Such guidelines may also providethe remedy to the family members of the deceased who died dueto Covid-19 for correction of the death certificate/official documentissued by the appropriate authority, if they are not satisfied withthe cause of death mentioned in the death certificate/officialGdocument issued by the appropriate authority; and

3) The Union of India to take appropriate steps on therecommendations made by the Finance Commission in this XVthFinance Commission Report bearing paragraph 8.131 inconsultation with other stakeholders and experts.”

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2. Under the above directions in terms of para 16(1), the NDMAwas required to recommend guidelines for ex-gratia assistance on accountof loss of life to the family members of the persons who died due toCovid-19, as mandatory under Section 12 (iii) of the DisasterManagement Act, 2005 (for short, ‘DMA 2005’) for the minimumstandards of relief to be provided to the persons affected by disaster –Covid-19 Pandemic, over and above the guidelines already recommendedfor the minimum standards of relief to be provided to persons affectedby Covid-19, within a period of six weeks from 30.06.2021. This Courtalso specifically observed that what reasonable amount to be offeredtowards ex-gratia assistance is left to the wisdom of the NDMA whichmay consider determining the amount taking into consideration theobservations made in the detailed judgment and order dated 30.06.2021,such as, requirement/availability of the fund under the NDRF/SDRF forother reliefs and the priorities determined by the National Authority/Union Government and the fund required for other minimum standardsof relief and fund required for prevention, preparedness, mitigation andrecovery and other reliefs to carry out the obligation under DMA 2005.

3. By order dated 16.08.2021, this Court extended the time forframing the guidelines as per the directions contained in paragraph 16(1)of the judgment dated 30.06.2021, by a further period of four weeks.

4. An affidavit/additional affidavit has been filed on behalf of theUnion of India with respect to compliance of the directions contained inparagraph 16(1) of the judgment dated 30.06.2021 and it is stated thatnow the NDMA has prepared guidelines for ex-gratia assistance to thenext of the kin of the deceased due to Covid-19 under Section 12(iii) ofthe DMA 2005, vide guidelines dated 11.09.2021 under which the NDMAhas recommended an amount of Rs.50,000/- as ex-gratia payment tothe next of the kin of the deceased due to Covid-19. It is stated that theex-gratia assistance shall be provided by the States from the StateDisaster Response Fund (SDRF) and the ex-gratia assistance to thenext of the kin of the deceased person shall be disbursed by the DistrictDisaster Management Authority/District Administration and thedisbursement shall be as per clause 8 of the said guidelines. The relevantclauses of the guidelines read as under:

“5. In view of the points mentioned in para 2, the Authorityrecommends an ex-gratia payment to next of kin of the deceaseddue to COVID-19, subject to cause of death being certified asCOVID-19 as per the guidelines issued by MoHFW and ICMR.

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6. Amount of ex-gratia payment: The Authority recommendsan amount of Rs.50,000/- (Fifty Thousand only) per deceasedperson including those involved in relief operations or associatedin preparedness activities, subject to cause of death being certifiedas COVID-19. With regards to such certification, and redressalof any grievances regarding the same, guidelines issued byMoHFW and ICMR on 3[rd] September, 2021 and referred to inpara 2 above, will be applicable.

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7. Source of funds: The ex-gratia assistance shall be providedby States from the State Disaster Response Fund (SDRF).

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C8. Disbursement: The District Disaster Management Authority(DDMA)/ district administration would disburse the ex-gratiaassistance to the next of kin of the deceased persons. Theconcerned families will submit their claims through a form issuedby State Authority along with specified documents including thedeath certificate that certifies the cause of death to be COVID-D19. The DDMA will ensure that the process of claim, verification,sanction, and the final disbursement of ex-gratia payment will bethrough a robust yet simple and people-friendly procedure. Allclaims must be settled within 30 days of submission of requireddocuments and disbursed through Aadhaar linked Direct BenefitETransfer procedures.

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9. Grievance redressal: In case of any grievances with regardsto certification of the death, as prescribed in the MoHFW andICMR guidelines mentioned above a Committee at district levelconsisting of Additional District Collector, Chief Medical OfficerFof Health (CMOH), Additional CMOH/Principal or HODMedicine of a Medical College ( if one existing in the district) anda subject expert, will propose necessary remedial measures,including issuance of amended Official Document for COVID-19 death after verifying facts in accordance with these guidelines.In case the decision of the Committee is not in favour of theGclaimant, a clear reason for the same shall be recorded.

10. Continuous Scheme: The Ex-gratia assistance to familiesaffected by COVID-19 deaths will continue to be provided fordeaths that may occur in the future phases of the COVID-19pandemic as well, or until further notification.

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5. Now so far as the directions contained in para 16(2) of thejudgment dated 30.06.2021 are concerned, first affidavit has beenfiled on 08.09.2021 in which it is stated that in compliance of thedirections issued by this Court contained in paragraph 16(2), theMinistry of Health & Family Welfare, Government of India andthe Indian Council of Medical Research have jointly issuedguidelines dated 3.9.2021 for issuance of an official document forCovid-19 related deaths. It is further stated that office of theRegistrar General of India has also issued a circular dated 3.9.2021to provide a medical certificate of cause of death to the next ofthe kin of the deceased. Under the guidelines dated 3.9.2021, it isprovided as under:

“Government of India Ministry of Health & Family Welfare &Indian Council of Medical Research Guidelines for OfficialDocument for COVID19 Death (lssued in compliance to theHon’ble Supreme Court order dated 30.06.2021 in WP(Civil) No.539 and WP (Civil) 554 of 2021) .

1. Background

Since the beginning of the Covid-19 pandemic, Indian Council ofMedical Research (ICMR) and Ministry of Health & FamilyWelfare have been issuing specific guidelines to States/UTs basedon World Health Organization’s (WHO) guidelines & global bestpractices on reporting Covid deaths. Relevant officers in States/UTs have also been trained on correct recording of deaths relatedto Covid-19. Hon’ble Supreme Court in Writ Petition (Civil) No.539 and 554 of 2021 directed the Central Government to issuesimplified guidelines for issuance of Official Document relating toCOVID-19 deaths to the family members of the deceased, whodied due to COVID-19. Hon’ble Court had directed that suchguidelines may also provide the remedy to the family members ofthe deceased who died due to COVID-19 for correction of theMedical Certificate of Cause of Death/Official Document issuedby the appropriate authority.

2. Guiding Principles

i. COVID-19 cases, for the purpose of these Guidelines, are thosewhich are diagnosed through a positive RT-PCR/ Molecular Tests/RAT OR clinically determined through investigations in a hospital/

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in-patient facility by a treating physician, while admitted in thehospital/ in-patient facility.

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ii. Deaths occurring due to poisoning, suicide, homicide, deathsdue to accident etc. will not be considered as COVID-19 deathseven if COVID19 is an accompanying condition.

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3. Scenario based approach and interventions

i. COVID-19 cases which are not resolved and have died eitherin hospital settings or at home, and where a Medical Certificateof Cause of Death (MCCD) in Form 4 & 4 A has been issued tothe registering authority as required under Section 10 of theRegistration of Birth and Death (RBD) Act, 1969, will be treatedas a COVID-19 death. Registrar General of India (RGI) will issuenecessary guidelines to Chief Registrars of all States/UTs.

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ii. As per the study by Indian Council of Medical Research (ICMR),95% i. deaths take place within 25 days of being tested Covidpositive. To make the scope broader and more inclusive, deathsoccurring within 30 days from the date of testing or from the dateof being clinically determined as a COVID-19 case, will be treatedas ‘deaths due to COVID-19, even if the death takes place outsidethe hospital/ in-patient facility.

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iii. However, a COVID-19 case, while admitted in the hospital in-patient ii. facility, and who continued as the same admission beyond30 days, and died subsequently, shall be treated as a COVID-19death.

iv. In cases where the MCCD is not available or the next of kin ofFthe deceased is not satisfied with the cause of death given inMCCD (Form 4/4A), and which are not covered by the aforesaidscenarios, the States/ UTs shall notify a Committee at districtlevel consisting of Additional District Collector, Chief MedicalOfficer of Health (CMOH), Additional CMOH/ Principal or HODMedicine of a Medical College (if one exists in the district) and aGsubject expert, for issuance of the Official Document for COVID-19 Death. The Committee will follow the procedure outlined below:

a. The next of kin of the deceased shall submit a petition to theDistrict Collector for issuance of the appropriate Official Documentfor COVID-19 Death.

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b. The Official Document for COVID-19 Death will be issued inthe format annexed to these Guidelines by the aforesaid district-level Committee after due examination and verification of all facts.

c. The Official Document for COvID-19 Death shall also becommunicated to Chief Registrars of States/UTs and Registrarof Birth and Death, who issued the death certificate.

d. The Committee shall also examine the grievances of the nextof kin of the deceased, and propose necessary remedial measures,including issuance of amended Official Document for COVID-19 Death after verifying facts in accordance with these guidelines.

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e. The applications for issuance of Official Document for COVID-19 Death and for redressal of grievances shall be disposed offwithin 30 days of submission of the application/ grievance.”

6. It provided that the deaths occurring due to poisoning, suicide,homicide, deaths due to accident etc. will not be considered as Covid-19deaths even if Covid-19 is an accompanying condition.

7. On the last date of hearing, a concern was shown on some ofthe clauses in the guidelines dated 3.9.2021 including the deaths occurringdue to poisoning, suicide, homicide, deaths due to accident etc. will notbe considered as Covid-19 deaths even if Covid-19 is an accompanyingcondition.

7.1 A concern was also shown with respect to Grievance RedressalMechanism in case of any grievance with regard to certification of thedeath. To that, under the guidelines dated 11.09.2021 in clause 9, aprovision is made with respect to constitution of a Grievance RedressalCommittee at District level consisting of the members mentioned in clause9 of the guidelines dated 11.09.2021, which is reproduced hereinabove.

8. A further additional affidavit dated 22.09.2021 has been filedon behalf of the Union of India on some of the issues/concerns expressedby this Court during the course of hearing on 13.09.2021 and in responsethereto, it is submitted as under:

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SUPREME COURT REPORTS

GAURAV KUMAR BANSAL v. UNION OF INDIA AND OTHERS[M. R. SHAH, J.]

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A9. Having heard Shri Tushar Mehta, learned Solicitor General ofIndia and the writ petitioner Mr. Gaurav Kumar Bansal and Mr. SumeerSodhi, learned Advocate for the intervenor and considering the Guidelinesdated 11.09.2021 issued by the National Disaster Management Authorityissued under Section 12 (iii) of DMA, 2005 on amount of ex-gratiaassistance to the next of the kin of the deceased due to Covid-19 and theBaffidavit/additional affidavit filed on behalf of the Union of India, it appearsthat the NDMA has recommended an amount of Rs.50,000/- as ex-gratia payment to the next of the kin of the deceased due to Covid-19.The Guidelines also provide that ex-gratia assistance shall be providedby the States from the State Disaster Response Fund (SDRF) and theCex-gratia assistance to the next of the kin of the deceased person shallbe disbursed by the District Disaster Management Authority/DistrictAdministration.

10. In furtherance of our earlier order dated 30.06.2021, it isdirected as under:D

i)that the next of the kin of the deceased died due to Covid-19 shall be paid ex-gratia assistance of an amount ofRs.50,000/-, which shall be treated as ex-gratia paymentunder Section 12(iii) of the DMA, 2005 and which shall beminimum and which shall be over and above theEcompensation/amount to be paid by the Union of India/StateGovernments/Union Territories to be declared/providedunder different benevolent schemes; ii)that the ex-gratia assistance of Rs. 50,000/- shall be providedby the concerned States from the State Disaster ResponseFFund (SDRF);

iii)that the ex-gratia assistance to the next of the kin of thedeceased shall be disbursed by the District DisasterManagement Authority/District Administration;

iv)that the full particulars and address of the District DisasterGManagement Authority/District Administration who isrequired to disburse the ex-gratia assistance of Rs. 50,000/- shall be published in the Print Media and Electronic Mediaand wide publicity shall be given; that the same shall be published within a period of oneHweek from today; it is further directed that such information shall also bepublished in the prominent offices of the village/taluk/district,such as, Gram Panchayat Office, Taluk Panchayat Office,District Collector Office, Corporation Office etc.;

v)that such ex-gratia assistance of Rs. 50,000/- shall bedisbursed within a period of 30 days from the date ofsubmitting the application to the concerned District DisasterManagement Authority/District Administration along withthe proof of the death of the deceased due to Covid-19 andthe cause of death being certified as “Died due to Covid-19”;

vi)that the amount to be disbursed as per the Guidelines dated11.09.2021 and as observed hereinabove on the death beingcertified as Covid-19 death for which the cause of deathmentioned in the death certificate shall not be the conclusiveand if other documents are provided as discussedhereinbelow, the next kin of the deceased died due to Covid-19 shall be entitled to the ex-gratia assistance of Rs. 50,000/

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vii)that no States shall deny the ex-gratia assistance ofRs.50,000/- to the next of the kin of the deceased died dueto Covid-19 solely on the ground that in the death certificateissued by the appropriate authority, the cause of death isnot mentioned as “Died due to Covid-19”; viii)that in case of any grievance with regard to certification ofthe death, the aggrieved person may approach theCommittee at District level consisting of Additional DistrictCollector, Chief Medical Officer of Health (CMOH),Additional CMOH/Principal or HOD Medicine of a MedicalCollege (if one existing in the district) and a subject expert,who shall take remedial measures including issuance ofamended official document for Covid-19 death afterverifying the facts on production of the necessary documentsshowing that the death is due to Covid-19;

ix)that the Authority/Committee shall carry out the directionsas mentioned hereinbelow while considering the case ofthe deceased as Covid-19. All the States shall constitute A

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Asuch Committee within a period of one week from todayand the address location and full particulars of the saidCommittee at the District level shall be published in PrintMedia and Electronic Media having wide circulation; so far as the Corporation area is concerned, a similarBCommittee be constituted consisting the DeputyCommissioner, Medical/Health, the Chief Medical Officerof Health of the Civil Hospital in the area, if any, AdditionalCMOH/Principal/HOD Medicine of a Medical College (ifone existing in the district) and a subject expert and theiroffice shall be at the office of the Municipal Corporation ofCthe concerned municipality;

x)it is further directed that in case the decision of theCommittee is not in favour of the claimant, a clear reasonfor the same shall be recorded by the Committee which iscalled a Grievance Redressal Committee;D

xi)as agreed, and as per the Guidelines, the ex-gratiaassistance to the families affected by Covid-19 deaths shallcontinue to be provided for deaths that may occur in futurephases of Covid-19 as well.

E11. Now so far as the directions contained in para 16(2) of ourearlier order dated 30.06.2021 for issuance of the death certificates/official document stating the exact cause of death, i.e., “died due toCovid-19” to the family members of the deceased who died due to Covid-19 is concerned, considering the additional affidavit filed on behalf of theUnion of India dated 8.9.2021 and the subsequent clarification in theFadditional affidavit dated 22.09.2021 and the guidelines dated 3.9.2021,in furtherance of our earlier order dated 30.06.2021, it is further directedas under:

i)Covid-19 cases, for the purpose of considering the deathsof the deceased due to Covid-19, are those which areGdiagnosed through a positive RT-PCR/Molecular Tests/RATor clinically determined through investigations in a hospital/in-patient facility by a treating physician, while admitted inthe hospital/in-patient facility;

ii)that the deaths occurring within 30 days from the date ofHtesting or from the date of being clinically determined as a Covid-19 case shall be treated as “Deaths due to Covid-19”, even if the death takes place outside the hospital/in-patient facility;

iii)also, the Covid-19 case while admitted in the hospital/in-patient facility and who continued to be admitted beyond30 days and died subsequently shall also be treated as aCovid-19 death;

iv)Covid-19 cases which are not resolved and have died eitherin the hospital settings or at home, and where a MedicalCertificate of Cause of Death (MCCD) in Form 4 & 4Ahas been issued to the registering authority, as required underSection 10 of the Registration of Birth & Death (RBD)Act, 1969, shall also be treated as Covid-19 death. However,it is observed and made clear that irrespective of the causeof death mentioned in the death certificate, if a familymember satisfies the eligibility criteria mentioned inparagraphs 11(i) to 11(iv) as above shall also be entitled tothe ex-gratia payment of Rs. 50,000/- on production ofrequisite documents as observed hereinabove, and no Stateshall deny the ex-gratia payment of Rs. 50,000/- on theground that in the death certificate the cause of death is notmentioned as “Died due to Covid-19”; v)all concerned hospitals where the patient was admitted andgiven treatment shall provide all the necessary documentsof treatment etc. to the family member of the deceased, asand when demanded, and if any hospital and/or the placewhere the deceased had taken treatment refuses to furnishsuch documents, it will be open for the Grievance RedressalCommittee to call for such information and the concernedhospital/institution where the deceased was admitted shallhave to furnish such particulars as required for the purposeof establishing that the death was due to Covid-19;

vi)a family member of the deceased who committed suicidewithin 30 days from being diagnosed as Covid-19 positiveshall also be entitled to avail the financial help/ex-gratiaassistance of Rs. 50,000/- as granted under the SDRF inaccordance with the guidelines dated 11.09.2021 issued bythe NDMA under Section 12(iii) of DMA, 2005, as directedhereinabove; A

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586SUPREME COURT REPORTS

Avii)if any family member/kin of the deceased died due toCovid0-19 has any grievance with respect to non-receiptof the ex-gratia payment of Rs. 50,000/-, it will be open forthe aggrieved claimant to approach the Grievance RedressalCommittee constituted as observed hereinabove, and theGrievance Redressal Committee shall examine theBcontemporaneous medical record of the deceased patient,and take a decision within a period of 30 days fromapproaching the said Grievance Redressal Committee andas observed hereinabove such Grievance RedressalCommittee shall have powers to call for the details/Cdocuments from the concerned hospital/hospitals fromwhere the deceased took the treatment; viii)all endeavours shall be made by the District DisasterManagement Authority/District Administration and even theGrievance Redressal Committee to avoid any technicalitiesDand all concerned authority shall act as a helping hand, soas to wipe off the tears of those who have suffered due toloss of a family member died due to Covid-19;

ix)it is further directed that in cases of the death certificationsalready issued and any family member of the deceased isEaggrieved by the cause of death mentioned in the deathcertificate already issued, it will be open for the aggrievedperson to move the appropriate authority who issued thedeath certificate and/or registering authority and onproduction of the necessary documents as observedFhereinabove, including production of documents, such as,positive RT-PCR/ Molecular Tests/ RAT OR clinicallydetermined through investigations in a hospital/ in-patientfacility by a treating physician, while admitted in the hospital/in-patient facility, the concerned authority shall modify/amend such death certificates. If the person is still aggrieved,Git will be open for the aggrieved person to approach theGrievance Redressal Committee constituted as hereinaboveand the concerned registering authority shall ratify/amendthe death certificate as directed by the Grievance RedressalCommittee.

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GAURAV KUMAR BANSAL v. UNION OF INDIA AND OTHERS[M. R. SHAH, J.]

12. The National Disaster Management Authority (NDMA),Ministry of Health and Family Welfare, Union of India are directed toissue guidelines to the concerned States/Union Territories incorporatingthe directions issued hereinabove which shall be binding to all the States/Union Territories.

13. Miscellaneous Application No. 1120/2021 stands disposed ofwith the aforesaid directions.

Devika Gujral

Miscellaneous Application disposed of.

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