Dissecting KK’s Death in Legal Lens: Natural Death or Tortious Negligence?

Introduction

The recent tragic demise of the versatile Indian playback singer Krishnakumar Kunnath, aka KK, creates an infuriating debate on whether the artist fall sick or been driven to death, whether he died an unnatural death,why artists are not covered by medical facilities and why the event management did not dispense their duty properly. Artists while performing can feel the necessity of medical checkup at any time for which medical protection is deserved by every performing artist.

Due to lack of medical facilities, there remains ample scope for the artist to get caught by any critical physical condition or medical emergency. Hence, it may not be an unjustified claim that lack of ‘timely medical treatment’ can bring death to an artist and raise liability. Such inadvertence of absence of medical aid may be seen in the lens of tort law. This writing attempts to analyse the legal aftermath of any brought death situation. Can the death becaused by negligent act or omission of the authority hiring the artist? This article will try to shed lights on the possibility of such assumption.

It would also be interesting to explore how a death invites legal intervention and how law enforcing agency works to identify the probability of crime commission with occurrence of death. In this article the readers will get a plausible scenario in Bangladesh context about the legal procedures after commission of an unnatural death. Before we get into the detailed discussion of negligence in KK’s death, let us have a brief account of read about the unnatural death and police case.

Does Every Death Involve Police Investigation?

Understanding the legal implication in any death one has to know which death is a natural death and which is an unnatural one. To simply put, two aspects can help to understand when death can be a matter of legal action. First aspect is that if the performing person is proved to be died a natural death for own account of physical activity or medical illness and without external suspicious injury marks on his body, it does not require any investigation. Any death occurred in a natural or normal way does not amount to police affiliation or legal intervention. It is the unnatural death that has to go through fixed legal procedure i.e., police investigation, Magistrate inquiry, crime scene search, conducting post mortem reports, police interrogation and verification etc. It does not always end up for a matter of legal investigation or criminal case unless it is an unnatural death.

What Constitutes an Unnatural Death?

Now it may come to our thought, when the necessity arises that a death should be investigated and how to determine the nature of a death? To know the answer, one has to know the types of unnatural deaths. There can be many forms of unnatural death-

Death by murder, Death by grievous hurt, Death by accident, Death by any animal or machinery, Death by Suicide, Death by obnoxious substance, Death by negligent act (intentional or unintentional omission of performing an act that could save the person), Death by circumstances invoking sufficient reason to constitute a suspicion that some other factors worked to cause the death etc.

This also indicates a very important fact for a criminal case- the cause of death. It is the cause of death that explains the nature of a death. In plain words, a natural death is a death happened due to old age, disease, being under treatment, long term suffered, or long-term untreated illness. A death is natural because it ‘occurs’ due to a natural cause of death. When the death is a result of not illness but an action coupled with malintent, mischievous intent, wrongful intent, that death becomes an unnatural death in general sense of criminal law.

An unnatural death is ‘caused’ when it occurs due to external force used, factor used, acts done by other person or persons with an ill intention or intended negligence with a ‘knowledge’ that such act will cause his death. Determining cause of death is completely a matter of forensic pathology as it is done by the forensic experts. Based on the forensic report, police and legal officers plays a role to determine the nature, intent, method, motive of committing a crime in order to detect whether there is enough evidence to frame a charge against the person and make him liable.

Legal Process to Deal Unnatural Death in Bangladesh Context

The Code of Criminal Procedure, 1898 has the detailed description of procedures of dealing with a crime or a case of unnatural death. A brief glimpse of the whole process is hereunder mentioned-

Offences are variedly classified into many types under criminal law. Unnatural deaths fall under the category of cognizable offence because these are of serious nature. Police can conduct investigation without any formal complaint lodged and without a court order in terms of any incident of an unnatural death. The investigation starts when the information of commission of an offense or unnatural death reached to the officer-in-charge of the police station of the area where the death caused and he records the information under section 154. Based on the information, police can conduct preliminary criminal investigation of such death under section 156 of the CrPC. Police will report to the empowered Magistrate about the cognizance.

According to section 157 police will proceed to the place of occurrence of the death to investigate the facts and details of the case, conduct search, seize materials, collect evidence and take all measures necessary to discover as well as arrest the offender or persons believed to be reasonably liable. Section 159 enables a Magistrate to conduct preliminary inquiry of such offences. Next step is examining the witnesses of the case. The investigating officer (IO) can ask questions to any persons, each and every person present or who, he thinks may know information of the incident or who the IO thinks fit, under section 161. As per section 172, police will maintain a diary and will record day by day in-detail information about every inspection done, witnesses examined, places visited and time of starting and ending of investigation of each day.

Section 173 instructs police to send report to the competent Magistrate disclosing the outcome of investigation. A police report contains either of these two outcomes- one is, if sufficient evidence and proofs are found against the alleged person police will frame charge-sheet and the other is, if no such enough evidence found, he will submit final report. A Magistrate can issue commission or order to examine any witness necessary for due inquiry under section 503. The matter of medical report, inquest report, post mortem or autopsy report fall under the phase of examination of witness. They work as medical witness in a criminal case.

Section 509 permits evidence given by Civil Surgeon or doctor or medical officers for using in a criminal case inquiry. Using Section 510 of the Code, the court has the authority to accept the reports of government-appointed forensic chemists and serologists without their presence being required. Section 509A of the Code specifies that a post-mortem report may be presented as evidence even if the examining physician cannot testify in person.

This is how an investigation and inquiry occur in any criminal commission or unnatural death in Bangladesh.  Now, let us move on to the primary discussion whether KK’s death can trigger Tort Law implication.

What is Tort?

The Latin term ‘tortum’, which means twisted, crooked, or incorrect, is the source of the word ‘tort’. Tort is defined as a civil cause of action for which compensation is attainable when a duty is breached outside of a contract.

Law of Tort stands as in any society of people living together, numerous con­flicts of interest will arise and that the actions of one man or group of men will from time-to-time cause damage to others i.e., injury to the person, physical damage to property, damage to financial interests, injury to reputation and so on and whenever a man suffers damage, he is inclined to look to the law for redress. The law of tort is a branch of law endowed with one prime motto- to find who is liable for the act or omission in a criminal case.

Tort law provides scope to the victim to seek remedy for various types of tortuous conducts. While sometimes though the death not caused directly by anyone, certain atmosphere or acts of people involved may lead to or prepare a situation that causes death to a person.

This can cause due to intentional act, unintentional act of negligence of the authority or where the authority has a ‘duty to care’ but fails to do that duty. All these actions are different forms of ‘tortuous conduct’. When the act causing harm to the person occurred due to an act of negligence from the other side, that act is can be called a tortuous negligence or a crime of negligence.

Crime and Tort

Observing the death in discussion, people can mingle the term ‘tort’ with the concept of‘ crime’. It should be bear in mind that tort is inclined to the civil misconduct primally and tortious liability arises from a private wrong, which means a wrongful act done to one individual. Crime is an act that is committed against public at large, affects a broader range of inhabitants and a more serious conduct to create anarchic prevalence or predominance of lawlessness in a society.

Tortious liability arises from breach of duty and criminal liability born with breach of statutory or criminal law. The remedy in tort is a variety forms of monetary damages or compensations whereas compensation is only one milder form of punishment, often indicted in addition to any severe penalty, for example, life imprisonment or prison for 10 years, in criminal case.

When Liability for Death Arise?

The difference between natural death and accidental death or death as a result of someone’s negligence is that the first one involves no ‘liability’ issues while the latter will trigger ‘tortuous liability’. The case of KK’s death may switch on the ground of a civil wrong(tort) if it can be proven that the death is a direct result of the negligence in the management of the authority of the program. The branch of law that dictates such matter of negligence, is ‘Law of Tort’ and the liability arisen in a death case, where question of negligence of an entity to another person is or may be involved, is called ‘Tortuous Liability’.

If the negligent act is proven, the person or people involved or the authority found interlinked to such act will be legally liable and have to pay compensation or monetary damage to the victim’s family.  To attract the tort law remedy, the paramount thing to do is to ensure the victim has suffered any harm physical, financial, or mental due to the wrongful, unreasonable, negligent act of a person or an organisation or institution which that person, organisation or institution could reasonably foresee.

The Doctrine of Vicarious Liability

The doctrine resembles to the legal maxim Qui facit via aliumfacit per se, which stipulates that ‘Acting through another person is the same as doing it yourself’. In a broader sense, it illustrates the accountability of anybody who had the “right, power, or duty to regulate” the actions of a violator. Thus, superiors/employers can be held liable for the actions and omissions of their subordinates/employees because of the well-established legal theory of vicarious liability.

This relationship is sometimes referred to as ‘master and servant’, in which the employer sets the rules and the employee abides by them, but this is a mischaracterization of the relationship, which is based on the fact that the employer is in a position of greater power and authority than the employee. The employee is fully subordinate to the employer and has only a limited degree of personal freedom.

While we commonly think of accountability as requiring some level of personal involvement, the modifier ‘vicarious’ seems to imply that no such involvement is required. Such tortious liability actually includes both direct and indirect participation. The doctrine delineates that one person’s act (tortious conduct) or omission (not doing the duty of care he was required to do in that situation) can hold liable to the person who is in charge of that one person.

The doctrine of vicarious liability can only be applied if these requirements exist simultaneously:

• The defendant and the person who committed the alleged offence must have a master-servant relationship;
• The act of tort must have been connected to the relationship of the master-servant.
• The wrongdoing must have occurred while the employee was on working hours, it means during his employment.

Tort Application of Vicarious Liability in Bangladesh and Indian Jurisprudence

Bangladesh Case Laws

To exemplify the tort application in Bangladesh, the Catherine Masud vs. Md Kashed Miah might be a good choice. In this case, prominent film director Tareque Masud met a horrendous road accident due to a negligently and recklessly driven bus ‘Chuadanga Deluxe Paribahan’ on a high-speed driving on the wrong side of the road, having no vehicle fitness and driving license, rushing towards the microbus and causing a head-on collision with the microbus bearing the claimants. The case was initially transferred to the Supreme Court where the court found the master guilty of vicarious liability.

A compensation of Tk. 4 crore was awarded to the 3 claimants, family members of the deceased Abu Tareque Masud jointly for loss of dependency, loss of love and affection, funeral expenses for the deceased, medical expenses for treatment of the claimant herself and damage caused to property.

Another remarkable judgment on vicarious liability is pronounced in Children’s Charity Bangladesh Foundation vs. Bangladesh and others. In this case, the Appellate Division awarded Tk. 20 lakh compensation to parents of a 4 years old child Zihad who fell in an uncovered shaft while playing. The Bangladesh Railway and WASA authority’s was found negligent and was ordered to provide compensation to the victim’s family.

Indian Case Laws

In State of Rajasthan v. Vidyawati, plaintiffs filed a lawsuit against a State employee, and the case centred on whether the State was accountable for the tortious act performed by its servant while engaged and acting as such. The Court found that the State’s obligation was equivalent to that of any other employer. According to the ruling, the State, like any other employer, is liable for the torts committed by its employee while performing his or her duties as an employee.

In State of Bihar v. Rudal Shah, the victim Rudal Shah was imprisoned at Muzaffarpur Jail for 14 years despite the fact that he had been absolved of any wrongdoing by the Sessions Court in June 1968. An Indian court compensated Rudal Shah and his beleaguered family with Rs 30,000 in restitution for the hurt and injustice they’d been through.

The decision in Machindranath Kernath Kasar v. D.S Mylarappa And Others also replicates that, Unless the servant is implicated, the master cannot be sued to recover damages for negligence on his part. The facts of the case showed grounds for the master to be sued for the wrongful conduct of his employee, thus, the owner was held accountable for the negligent actions of his or her employee.

Penalty for Crime of Negligence

Though tort is primarily a civil wrong, it can also be a crime if it affects a community or public at large in an issue related to public safety and is defined under penal laws of a state. The crime of negligence is a cognizable bailable offence in Bangladesh.

The Penal Code, 1860 describes that act of negligence does not require any criminal intention or knowledge of the act done negligently. It means committing a negligent act without having any wrong intention is also punishable under law. It will not come to rescue the alleged person that he did not want to cause a person’s death, it just happened. Section 304A of the Penal Code, 1860 asserts if any person cause death to another person by negligent act shall be punished with an imprisonment up to 5 years or with fine or with both.

The Indian Penal Code (IPC), 1860 construed the similar provision as Bangladesh except the degree of penalty. In IPC section 304A punishes a person alleged with up to 2 years or with fine or with both.

The Issue of Vicarious Liability in KK’s Death

To assess whether vicarious liability doctrine has a place in the death, it needs to be ensured whether the management authorities have the required master-servant relationship. To understand the issue, some facts might be thought provoking and taken into account for the liability of the event management.

The first occasion of the negligent act is not to send the artist to the nearest hospital immediately. After the artist fall sick, he left the stage and the management took him to the hotel room instead of a hospital. It is also alleged that the hospital he was taken to was not the nearest one. This extra time belated the treatment of a cardiac arrest patient which might be taken as a ground of negligence of the management.

From different news sources and videos posted on social media containing images of the singer performing in the Nazrul Mancha of Kolkata showed that, the artist sweated a lot due to the massive crowd inside the auditorium. In one of those videos the singer was seen to wipe face on continuous basis, feeling terribly unwell, informing the persons of management about the excessive heat and pointing to the AC.

Krishnakumar Kunnath, aka KK

Many allegations come out against the venue authority Kolkata Metropolitan Development Authority (KMDA), the controlling authority of Nazrul Mancha. Some of them are- the auditorium was said to be jampacked and contained people more than its accommodational capacity, was not air conditioned due to unworkable air conditioning system, no medical team to assist the singer while he felt uneasy and later felt suffocated precipitating an ultimate consequence of death. However, the event organiser Black Eyed Event House claimed all the leaked videos online to be fake and not from 31^st May show. They reiterated that the singer did not show any single symptom of illness and performed till the end smoothly.

The BlackEyedEvent House proclaimed the venue selection was not in their hand. But the same venue was used in two time for two fests on 30^th and on 31^st May under their sole management. Nazrul Mancha has a capacity of 2,700 to 3,000, yet a crowd of approximately 6,000 gathered on the 31^st May show. With that superseded number of audience and the failure of AC, the room temperature can be estimated to be extremely high. Such heat can easily cause suffocation and pressure on heart. Secondly, in such situation the vocal activity of singing song continuously with bare minimum interval or rest made the artist completely exhausted.

More to speculate the scenario, over crowded room exhales much more carbon dioxide and reduction of oxygen. It can make a person unable to breathe and specially for a singer who required a lot of energy and oxygen to perform. Moreover, the ticketing management was negligently left which made such huge crowd enter into the room.

From these facts it appears that the Nazrul Mancha and KMDA negligently left the whole place unattended, did not take any precautionary step, did not monitored the show they were supposed to- which clearly shows their negligence of not applying their ‘duty to care’. This indicates the master-servant essence of vicarious liability dogma.

It can be questioned that, as the organiser, why they did not foresee the overwhelming audience issue keeping in mind the artist’s popularity, supervise the ticketing system, check the room facilities in order or not etc. Hence, the KK death case exhibits many scopes to hold the authority liable for their mismanagement.

Probability to Succeed Tortious Liability Allegation in KK’s Death

As the decision to perform solely relies upon the performer, the authority may find room to escape liability. Though before any show the artist and show organizer approach by a contract, yet this does not liberate the organizers from any responsibility. The organizer has a duty of care and a responsibility to provide medical protection to the artists. In KK’s Case, the singer was taken to the hotel room at first instead of a hospital, which certainly is an eyebrow frowning matter. This also indicates to the irresponsibility and negligent behaviour of the organizers which can be used as a legal ground by KK’s family to prove organizer’s negligence and liability before the court.

If the aforementioned facts are proven to be true, KK’s family has to prove the death of KK to be a direct result of the mismanagement of the authorities. To claim compensation from court, this may enable them to present in the court that the show management Nazrul Mancha and the show organizer Black Eyed Event House are vicariously responsible.

However, it will be too hard for the petitioner to attract a tortious liability for proving the death as a consequence of negligence on ground of worst crowd management, lack of medical facilities, inadequate AC facilities and lack of suitable environment to perform. Proving a case of tortious liability and/or vicarious liability requires strong evidence and the victim’s kins cannot claim punitive damage on mere mental hurt, emotional duress or financial loss due to the demise of the person upon whom they were dependent emotionally and financially. Moreover, as the torts are considered as private wrongs, it completely depends upon the victim’s family to make the matter bring to the court’s corridor.

For getting justice, KK’s family may choose to approach for legal battle by filing petition under relevant articles of the Constitution of India. Article 32 and Article 226 of the Indian Constitution provides to citizens and residents in India the right to seek invoking of any fundamental rights by filing a writ petition in respective courts prescribed in the provisions. In this case, the victim’s family can argue before the court that the right to life of the artist has been violated. In sense of tort law, the family can seek compensation for the loss of life of the artist.

A criminal case has been registered by Kolkata Police on the death of the singer. The singer is reported to have caught by cardiac arrest through an initial post mortem conducted by the Kolkata police. Ultimately the actual reason of death can be brought after the final autopsy report whether the death was natural one. The preliminary findings indicated that the singer had passed away as a result of a myocardial infarction. There were no suspicious circumstances surrounding his passing.

According to the results of the clinical evaluation, the singer was also suffering from untreated cardiac issues with multiple heart blockades. This initially eliminate the assumption of unnatural death of the singer. But according to the autopsy surgeon he could have been saved if rushed to hospital and given an on time Cardiopulmonary Resuscitation (CPR), an emergency treatment to save patients when their heart stops functioning.

If the full autopsy report does not show any sign of unnatural demise of the artist, it will be hardly possible to prove a case of tortious negligence. It is because damage in tort law is always relies on the fact whether the alleged had any duty and whether the person acted negligently. Hence, without providing evidence and witnesses it cannot be proven that the accidental death was the direct output of the negligence and mismanagement of the concerned authority.

Conclusion

The painful demise of the popular Indian artist is quite a lesson that may strike the senses of both artists and organizers of events in Bangladesh. During a live performance, concerts or programmes of mass gathering, security checks are the prime focus and public safety the main concern for the authority arranging it. Artists have to perform for a good number of hours and mostly in a continuous mode. Needless to say, it requires a lot of physical stamina, extreme physical and mental pressure. In most of the time, concerts do contain number of audiences thrice to their capacity limits. This can cause the venue more heat induced resulting an abnormal temperature increase if the place is an auditorium rather than an open space and if it is arranged in summer season. Concerts of mass gathering programmes must be organised keeping in view the venue condition, capacity limit and whether the venue have all required facilities. In plain language, live performances do require two constant medical care units- one unit as a stand-by medical team and one unit to deal with the emergency and critical medical cases. It is specially needed more when the event is going to be a gargantuan gathering of people. Organizers may also provide routine medical check-up even before letting the artist perform in their event so that no unusual situation arises. Also, to avoid unwanted situations, accidents and tortuous liability, live performances should be arranged possibly in open space considering the weather and temperature and well-equipped medical team must be produced.

Author : Evnat Bhuiyan; Legal Research Associate, Redleaf Publishing.

Reference:

1. Catherine Masud vs. Md Kashed Miah (2017) 70 DLR 349.
2. Children’s Charity Bangladesh Foundation vs. Bangladesh and others (2016) 70 DLR 49.
3. Glavaničová, D., Pascucci, M., “Making Sense of Vicarious Responsibility: Moral Philosophy Meets Legal Theory”, Erkenn (2022),https://doi.org/10.1007/s10670-022-00525-x, accessed 5 June 2022.
4. IANS, “KK’s death impact: College fests to be banned at Nazrul Mancha in Kolkata?”, India TV, 1 June 2022, available at: https://www.indiatvnews.com/entertainment/news/kk-death-impact-college-fests-to-be-banned-at-nazrul-mancha-in-kolkata-2022-06-01-781189, accessed 5 June 2022.
5. Lewis, K.,“Vicarious liability”, BDJ In Pract 32, 16–17 (2019),https://doi.org/10.1038/s41404-019-0013-8, accessed 5 June 2022.
6. Mekhala Saran, ‘KK’s Demise: What Constitutes a Case of ‘Unnatural Death’ Under the Law?’, The Quint, 2 June 2022, available at: https://www.thequint.com/news/law/rip-kk-case-of-unnatural-death-postmortem-legally-explained, accessed 2 June 2022.
7. Pallavi Soni, “KK Sudden Death: The Late Singer Could Have Been Saved If CPR Was Given On Time, Reveals A Doctor Who Conducted His Autopsy”, Spotboye, 2 June 2022, available at: https://www.spotboye.com/music/music-news/kk-sudden-death-the-late-singer-could-have-been-saved-if-cpr-was-given-on-time-reveals-a-doctor-who-conducted-his-autopsy/62988bbb7b83c17b2087f0ef, accessed 5 June 2022.
8. State of Bihar v. Rudal Shah (1983) 4 SCC 141.
9. State of Rajasthan v. Vidyawati 1962 AIR 933, 1962 SCR Supl. (2) 989.
10. Subhajoy Roy and Monalisa Chaudhuri, “Kolkata Municipal Development Authority wakes up to Nazrul Mancha loopholes after KK incident”, Telegraph India, 3 June 2022, available at: https://www.telegraphindia.com/my-kolkata/news/kolkata-municipal-development-authority-wakes-up-to-nazrul-mancha-loopholes-after-kk-incident/cid/1868068, accessed 5 June 2022.
11. Suryagni Roy, “KK’s last concert in Kolkata was for student union body managed by Trinamool,” India Today, 2 June 2022, available at: https://www.indiatoday.in/india/story/singer-kk-kolkata-concert-tmc-student-union-body-1957480-2022-06-02, accessed 5 June 2022.
12. The Quint, ‘Did Not Show Any Signs of Sickness’: Event Company Issues Statement on KK Death’, 4 June 2022, available at: https://www.thequint.com/entertainment/kk-death-mismanagement-nazrul-manch-event-company-clarifications#read-more, accessed 5 June 2022.