As per news reports, the Kolkata police on Wednesday registered a case of unnatural death in connection with the sudden death of singer Krishnakumar Kunnath, popularly known as K.K. 

While the initial post-mortem reports say the 53-year-old suffered cardiac arrest post performing live at the concert, a final post-mortem report is awaited.

Initial photos and video clippings raise troubling questions

Did K.K. express discomfort and unwillingness to perform during the live concert? Why wasn't the live performance stopped if KK had started feeling uneasy? What medical facilities and arrangements were made at the venue for a mega concert? Was the venue overcrowded? As family and fans try to come to terms with surmounting questions and the heartbreaking loss of their beloved artist, video clippings from the concert at the Nazrul Mancha auditorium have added to the distress. 

In one of the viral photos being shared online, KK— in public opinion—looks visually distressed while wiping his sweat during the live performance. In another short clipping that has surfaced on Twitter, fans remark that a visibly uncomfortable KK is being rushed outside the venue while there appears to be no medical team accompanying him: https://twitter.com/i/status/1531735713569460226

Can event organisers be blamed for an artist’s deteriorating health/tragic death during or shortly after a performance?

BW Legal World asked expert lawyers to shine some light on the law in this regard given the frenzy around KK’s untimely demise and the knee jerk reaction from the public alleging mismanagement at the event. We asked the experts for their learned opinions on what constitutes negligence? What is likely to be the line of enquiry, and what happens next?

Here's what the experts said:  “The demise of singer KK is a major loss to the Indian Populace. His songs and voice were heart-touching and he created a whole era of music for youngsters and senior people alike. If there is even a slight probability of KK dying due to poor management and lack of medical care, it is shameful for the development of India where it is losing such eminent artists. The charges faced can be negligence under section 304A of the Indian Penal Code (IPC),” says Senior Advocate, Pramod Dubey.

What is Negligence?

Section 304A under the Indian Penal Code refers to Causing Death by Negligence and reads: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Bharat Chugh, Advocate, The Chambers of Bharat Chugh and a former judge explains, “Negligence, simply put, is the doing of something which a reasonable person won’t do, or omitting to do something or taking care, which a reasonable person will. It becomes actionable if it leads to injury or death. To make out a case of negligence, the negligence or omission to take care has to be gross and culpable; in other words, it has to be a high degree of negligence where the doer of the act/omitter was absolutely reckless and proceeded with a reckless and wanton disregard of one’s duties.”

When questioned about applying this principle to the circumstances around KK’s death, Chugh said it was unlikely that a criminal case could be made out in the absence of strong evidence. He states, “on the facts of the case, while the investigation is pending, provisionally and tentatively—it seems unlikely that a case of negligence would be made out only because of an absence of proper cooling which aggravated the condition of the actor and led to his unfortunate demise. There does not seem to be any clear link/cause-effect relationship between the act/omission of the organizers and the aggravation of the actor’s health. In the absence of such a link and clear and cogent evidence, it is unlikely that a criminal case can be made out. Having said that, I’ve been told investigation is underway and one must await the results of the investigation.”

Liability of the concert organizers in general under tort law

Poornima Ranganath, Founder and Managing Partner, Law Assist says, “The organizers of the concert have a duty of care to its various stakeholders under tort law including the guests, consultants, singers, and all others on the premises at the time of the concert/ event. Further, the organizers have an obligation statutorily to comply with and ensure that the licenses are in place and all the terms and conditions of the license are complied with as per the relevant municipal and other applicable laws. Further, the grant of such licenses for concerts usually requires a doctor and health care facility to be available at such events. Failure will attract civil and criminal liability for breach as per the terms and conditions of the specific permissions and licenses and applicable laws. Further, the stakeholders can claim damages under tort law for breach of duty of care by the organizers.” Additionally, Ranganath points out, “there may be a mitigation of liability based on the nature of the contract of the stakeholder, etc.”

Potential Liability: Whether the organizers bear any responsibility or legal liability in KK’s death?

Niharika Karanjawala, Principal Associate, Karanjawala & Co shares her views on the matter and sheds light on pertinent questions to be considered in order to determine whether the event organizers can be held liable for any negligence. She says, “The tragic and untimely death of beloved singer Krishnakumar Kunnath, popularly known by his stage name KK, has brought tremendous scrutiny upon the organizers of his final concert at the Nazrul Manch Auditorium in Kolkata. While a determination on whether the organizers bear any responsibility or legal liability in the singer’s death can only be reached once the final autopsy findings are available (a preliminary autopsy report suggests cardiac arrest), disturbing details have arisen that could point to potential negligence on the part of the organizers. Attendees and staff from Nazrul Manch Auditorium have stated that the venue was overcrowded, with the numbers being almost twice the capacity of the auditorium; footage has also surfaced of a fire extinguisher being sprayed at attendees outside the venue in an attempt to disperse the crowd. Furthermore, poor ventilation and non-functional air conditioners at the venue, along with hot stage lights, appear to have created immense heat and attendees say that the popular singer could be seen sweating profusely, commenting on the heat, and allegedly asking the organizers to dim the stage lights.  

In this situation, the following questions must be considered in order to determine whether the event organizers can be held liable for any negligence (either civil or criminal)—first, whether the organizers breached a duty of care in allowing the venue to be overcrowded and/or under-ventilated, thereby leading to a potentially dangerous situation for the attendees, staff, and performers at the concert; an affirmative finding in this regard could lead to potential civil action.

Secondly, whether the prevalent circumstances at the venue, fostered due to alleged negligence on the part of the organizers, lead or contributed to  the cardiac arrest; an affirmative finding in this regard could lead to potential criminal action, including causing death by a rash and negligent act.

While the potential liability of organizers can only be speculated about at the moment, as details continue to emerge, recent events such as the high profile Astroworld Festival crowd crush incident in Texas, which resulted in 10 fatalities, is still under investigation, and launched a battery of lawsuits, demonstrates that wilful negligence and potential endangerment on the part of organizers is treated with immense seriousness by the legal system everywhere. In the present situation, even if the medical findings are that KK’s death was not caused or contributed to by the situation at the venue if investigations reveal that the claims of negligence are true and that the organizers willfully breached the duty of care incumbent upon them and fostered a potentially dangerous situation, that created a high risk of death or injury, the consequences of which would have been apparent to a prudent man, they should have to face the music for that.”

What is Duty of Care and what precautionary measures for concerts/events are prescribed under the law?

What is the law behind the Duty of Care that our experts have spoken about? Let’s look into these legal terminologies with Dr. Manoj Kumar, Founder & Managing Partner, Hammurabi & Solomon Partners. 

Sharing his views on incidences where Artists have met tragic ends during or shortly after their performances, Kumar says, “The tragic and untimely demise of the well-known singer Krishnakumar Kunnath who passed away shortly after performing at an event in Kolkata raises many questions in relation to what precautionary measures for such events are prescribed under the law. More importantly, this is not the first time that a performing artist has met with such a devastating end this year. Just last week itself we saw the untimely demise of popular playback singer Edeva Basheer who collapsed on stage while performing at a music event in Alappuzha, Kerala.  

With such shocking and dejecting news, one wonders what the law prescribes on precautionary responsibilities for avoiding such mishaps and the post-facto remedies that may be available to the family and loved ones of the demised, and it would be prudent to examine the established legal principles governing the responsibilities of organizers of such events.”

Dr. Manoj Kumar lends further clarity to the law hereunder:

Doctrine of Duty of Care 

The duty of care is said to be breached when, for instance, a person negligently harms another and thereby fails to discharge the duty of care. Such a breach is considered to be a civil wrong. 

Moreover, the Hon’ble Supreme Court in its 1997 judgment of Rajkot Municipal Corporation V. Manjuben while iterating upon the doctrine of duty of care observed that there is no liability of negligence unless a legal duty to take care exists. And it is rather the statutory duty that gives rise to liability under the law of torts. 

As a consequence, even for event organizers, their duty of care towards the attendees and performers at the events is not only a moral duty but also a legal duty to prevent a foreseeable risk of injury, take essential care of the stakeholders involved, prevent the breach of such duty and avoid damages thereby. 

Defenses Available to the Organizers

It is relevant to note that one of the defenses that may be available to the organizers of such events is propounded under the principle of “volenti no fit injuria” which in other words prescribes that one may not be held liable in the event that the aggrieved person had knowledge of the risk involved and was willing to be exposed to such risk. 

For instance, in the landmark 1951 judgment of the House of Lords Boltone v. Stone the underlying legal principle that was laid down was that if one purchases a ticket to a cricket match, and a player hits the ball into the pavilion area and the ball hits the attendee, then the attendee put himself in a position where he knows the consequences that he stood exposed to. 

Mitigation and Diligence

The Indian laws provide for an institutional framework calling for mitigation, diligence, and compliance, such as pollution laws, electricity regulation laws, fire prevention, and precaution laws, etc., which are designed to ensure that there is a proper system of checks and balances in place. 

Compliances Mandatory for Organizers

It also entails compliances that are mandatory for organizers of such events, which is including but is not limited to obtaining permissions in the form of no objection certificates (“NoCs”) from the concerned district authorities, maintaining the health safety and welfare of persons which includes performers/artists. 

For instance, public events being organized at circuses, fairs, fetes, exhibitions, dancing halls, restaurants, hotels, etc., require police NoC under The Regulations for Licensing and Controlling Places of Public Amusement (other than cinemas) and Performances For Public Amusement Act, 1980; or the concerned fire department’s NoC to ensure due fire prevention and fire safety measures have been taken in the building; or the food department’s NOC to check if adequate health and safety of the stakeholders involved are duly taken into consideration. 

What Next?

Speaking of the post-facto legal processes, on one hand, we have legislations that postulate remedies based on actual outcomes, say when an act has already been committed, like a criminal action under Section 304-A of the Indian Penal Code, 1860 – which provides punishment for death caused by negligence; and the courts deliberate and identify if there arises a duty of care, whether there is a breach of such duty and what is the injury caused to the parties.

Additionally, there is a civil action under Section 1-A of the Fatal Accidents Act, 1855 which provides for compensation to the family of a person, for losses occasioned in case of death caused by an actionable wrong. This is linked to Section 357 (1) of the Code of Criminal Procedure, 1973 which empowers courts to grant compensation to the aggrieved person even when a fine or sentence has already been imposed on the accused. 

Upon the death of a person being caused by a wrongful act, neglect, or default, and if the death would not have occurred in usual circumstances had the negligence been checked, then the aforesaid provision of the Fatal Accident Act, 1855 would be triggered and would entitle the affected party to maintain an action and recover damages in respect thereof.

While acknowledging the significance of state installed institutions and the present legislation in place which operate in utmost good faith to safeguard public interest at various levels, the growing trend of concerts, trade shows, live events, etc. and health being a far-reaching concern for everyone nowadays, it has become essential to have appropriate health, safety, and first aid facilities at venues and laws must be overhauled to emphasize on having an effective emergency management system in place. Strict implementation of both criminal and civil remedies is the least the nation owes to KK and other victims of negligence.

Based on the experts’ take one is compelled to wonder what turn this incident will take. In any case, it is important that event organizers know their responsibilities to ensure precious lives are not lost due to negligence or breach of duty of care.

Story by Ashima Ohri and Krishnendra Joshi of BW Legal World. For any queries or inputs related to the story, please write to [email protected] or [email protected]