Although the government has stated in Parliament that there is no provision of compensation for any side-effects or medical complications (adverse events) due to inoculation under emergency-use, an individual can still take legal recourse to get compensated in the following ways:
Negligence Tort Case Under ‘Fault Liability’
Despite the inoculations drive for emergency use organised by the Government of India, both the manufacturer of the vaccine and the State as an administering or distributing agent of the vaccine including the approving authority are liable to pay compensatory or punitive damages as compensation to the injured party or his or her next of kin, if a tort case of accident arising out of composite negligence can be established by the plaintiff in a court of law for fault liability.
The manufacturer of the Covid-19 vaccine, whether a patent-holder or a licensee, is liable to pay compensation for criminal negligence despite the vaccine being intended for emergency-use, unless there is a directive or specific Act of Parliament allowing for the sanctioning of Immunity from Prosecution to the Manufacturer of the vaccine.
On the other hand, the Strict-Liability Rule U/Enactment of New-Statute or Issue of Directive may sanction the payment of compensation regardless of fault on the part of the challenged parties.
Compensation From the Approving Authority under Drugs & Cosmetics Act 1940
The approving authority — the Drugs Controller General of India (DGCI), Central Drugs Control Organization (CDCO) — under the Drugs & Cosmetics Act of 1940 along with either or both the Central and State governments acting as administering or distributing-agents of the manufactured-vaccine are also liable to pay compensation for contributory negligence.
Claim Under Fatal Accidents Act 1855
Specifically, if, there are adverse side-effects from a vaccination manufactured or administered by any agency, resulting in loss or injury to the vaccinated, including permanent-disablement or death then a legal-action can be brought by the injured-party or his or her representative in a Court of Law under Fatal Accidents Act of 1855 to claim compensation for losses arising out of:
1. Medical Expenses incurred to treat the injury of the vaccinated party from the adverse side-effects of the vaccine;
2. Impaired earning capacity of the vaccinated party as a result of the injury caused by the adverse side-effects of the vaccine, and
3. Intrinsically, immeasurable element of pain & suffering of the vaccinated-party who is injured, or the pain & suffering of his or her next of kin in the event of death from the adverse side-effects of the vaccine, that is, in Breach of Duty of Care which all challenged parties owe to the Vaccinated Party, and the Actions of the challenged parties is the Proximate-Cause of the Death, Disablement, Injury or Loss caused to the Vaccinated Party, and not some pre-existing condition that manifested in Death or Disablement of the Vaccinated-Party not in the knowledge of the Administering Party.
1. Filing of an FIR U/Section 304A of Indian Penal Code 1860 read with Section-34 for Causing: Death by Rash or Negligent Act not amounting to culpable homicide with common intention for police investigation into the case drawing upon forensic evidence of the product in question, and medico-legal certificate issued to the injured if alive or post-mortem examination of the deceased-patient.
2. Filing of an FIR U/Section 336/337/338 of Indian Penal Code 1860 for Causing: Death by rash or negligent act not amounting to culpable homicide by doctors and medical personnel for police investigation into the case drawing upon forensic evidence of the method of service rendered in administering the product to the patient.
Claim under Consumer Protection Act
Filing of Civil Suit to claim compensatory damages under Consumer-Protection Act of 2019 before the Consumer Dispute Redressal Agencies at the district, state and national level for product liability.
Filing of Civil Suit to claim compensatory-damages under Code of Civil Procedure 1908 read with Court-Fees Act of 1870 before the district court for product liability with the payment of ad valorem court fee.
(The writer is an Advocate)