Rs.6,08,00,550/ crores compensation to N.R.I. for the death of his wife = Medical Negligence – Compensation was fixed based on principles and theories of M.V. ACT =
The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2867 OF 2012
Dr. Balram Prasad … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
WITH
CIVIL APPEAL No.692 of 2012
Advanced Medicare & Research
Institute Ltd. … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
WITH
CIVIL APPEAL No.2866 of 2012
Dr. Kunal Saha …Appellant
Vs.
Dr. Sukumar Mukherjee & Ors. … Respondents
WITH
CIVIL APPEAL No.731 of 2012
Dr. Baidyanath Haldar … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
AND
CIVIL APPEAL No.858 of 2012
Dr. Sukumar Mukherjee … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
J U D G M E N T
V. Gopala Gowda, J.
The Civil Appeal Nos.2867, 731 and 858 of 2012 are filed by the
appellant-doctors, Civil Appeal No. 692 of 2012 is filed by the
appellant-AMRI Hospital and Civil Appeal No. 2866 of 2012 is filed by
the claimant-appellant – Dr. Kunal Saha (hereinafter referred to as
‘the claimant’), questioning the correctness of the impugned judgment
and order dated 21.10.2011 passed by the National Consumer Disputes
Redressal Commission (hereinafter referred to as the ‘National
Commission’) in Original Petition No.240 of 1999.
2. The appellant-doctors are aggrieved by the quantum of compensation
awarded by the National Commission and the liability fastened upon
them for the negligence on their part and have prayed to set aside
the same by allowing their appeals. In so far as the appellant-AMRI
Hospital is concerned, it has also questioned the quantum of
compensation awarded and has prayed to reduce the same by awarding
just and reasonable compensation by modifying the judgment by
allowing its appeal.
So far as the claimant is concerned, he is aggrieved by the said
judgment and the compensation awarded which, according to him, is
inadequate, as the same is contrary to the admitted facts and law laid
down by this Court in catena of cases regarding awarding of
compensation in relation to the proved medical negligence for the
death of his wife Anuradha Saha (hereinafter referred to as the
‘deceased’).
3. The brief relevant facts and the grounds urged on behalf of the
appellant-doctors, AMRI Hospital and the claimant in seriatim are
adverted to in this common judgment for the purpose of examining
the correctness of their respective legal contentions urged in
their respective appeals with a view to pass common judgment and
award.
4. Brief necessary and relevant facts of the case are stated
hereunder:
The claimant filed Original Petition No. 240 of 1999 on
09.03.1999 before the National Commission claiming compensation for
Rs.77,07,45,000/- and later the same was amended by claiming another
sum of Rs.20,00,00,000/-. After the case of Malay Kumar Ganguly Vs.
Dr. Sukumar Mukherjee[1] was remanded by this Court to the National
Commission to award just and reasonable compensation to the claimant
by answering the points framed in the said case, the National
Commission held the doctors and the AMRI Hospital negligent in
treating the wife of the claimant on account of which she died.
Therefore, this Court directed the National Commission to determine
just and reasonable compensation payable to the claimant. However, the
claimant, the appellant-Hospital and the doctors were aggrieved by the
amount of compensation awarded by the National Commission and also the
manner in which liability was apportioned amongst each of them. While
the claimant was aggrieved by the inadequate amount of compensation,
the appellant-doctors and the Hospital found the amount to be
excessive and too harsh. They further claimed that the proportion of
liability ascertained on each of them is unreasonable. Since, the
appellant-Hospital and the doctors raised similar issues before the
Court; we intend to produce their contentions in brief as under:
On granting the quantum of compensation based on the income of the
deceased:
5. It is the claim of the learned counsel on behalf of the appellant-
doctors and the Hospital that there is no pleading in the petition
of the claimant that the deceased had a stable job or a stable
income, except in paragraph 2A of the petition which states that
the deceased was a Post-Graduate student and she had submitted her
thesis. The only certificate produced by the claimant shows that
she was just a graduate in Arts (English). Further, it is urged by
the learned counsel that the document produced by the claimant - a
computer generated sheet, does not explain for what work the
remuneration, if at all was received by the deceased. Also, whether
the same was a onetime payment of stipend or payment towards
voluntary work, is not explained by the claimant. Further, it is
stated by the learned counsel that there is no averment in the
petition of the claimant as to on what account the said payment was
received by the deceased and whether she has received it as a Child
Psychologist as claimed by the claimant or otherwise.
6. It is also the case of the appellant-doctors and the Hospital that
the claimant had not led any oral evidence with regard to the
income of the deceased and further he has not explained why just a
single document discloses the payment made sometime in the month of
June 1988 in support of the income of the deceased when admittedly,
the couple came to India in the month of March-April, 1998.
Therefore, the learned counsel for the appellant-doctors and the
Hospital have urged that the said document is a vague document and
no reliance could have been placed by the National Commission on
the same to come to the conclusion that the deceased in fact had
such an income to determine and award the compensation as has been
awarded in the impugned judgment and order. From a perusal of the
said document, it could be ascertained that it shows just one time
payment received for some odd jobs. Therefore, it is contended by
the appellant-doctors and the Hospital that the claimant has not
been able to discharge his onus by adducing any positive evidence
in this regard before the National Commission.
7. It is further contended by the learned counsel that the assertion
of the claimant in the petition and in his evidence before the
National Commission that the income of the deceased was $30,000 per
annum is not substantiated by producing cogent evidence. No
appointment letter of the deceased to show that she was employed in
any organization in whatsoever capacity had been produced nor has
the claimant produced any income certificate/salary sheet. No
evidence is produced by the claimant in support of the fact that
the deceased was engaged on any permanent work. No Income Tax
Return has been produced by the claimant to show that she had been
paying tax or had any income in U.S.A.
8. It is further submitted that even if it is assumed that the annual
income of the deceased was $30,000 per annum, apart from deduction
on account of tax, it is also essential for the National Commission
to ascertain the personal living expenses of the deceased which was
required to be deducted out of the annual income to determine the
compensation payable to the claimant. The National Commission was
required to first ascertain the style of living of the deceased-
whether it was Spartan or Bohemian to arrive the income figure of
$30,000 per annum. In India, on account of style and standard of
living of a person, one–third of the gross income is required to be
deducted out of the annual income as laid down in the decision of
this Court in the case of Oriental Insurance Company Ltd. Vs.
Jashuben & Ors[2].
It is further contended by the learned counsel for the appellant-
doctors and the Hospital that no yardstick is available about the
expenditure of the deceased in the U.S.A. The claimant has not adduced
any evidence in this regard. The evidence given by the so-called
expert, Prof. John F. Burke Jr. also does not say anything on this
score.
Even if it is assumed that the annual income of the deceased was
$30,000 per annum for which there is no evidence, 25% thereof is
required to be deducted towards tax. The deduction of tax is much
more as is apparent from the case reported in United India Insurance
Co. Ltd. & Others Vs. Patricia Jean Mahajan & Ors[3]. In fact, the
claimant has neither adduced any evidence in this regard nor has he
produced the relevant statute from which the percentage of tax
deduction can be ascertained.
The claimant was last examined by video conferencing conducted
under the supervision of Justice Lokeshwar Prasad (retired Judge of
Delhi High Court) as local Commissioner. The AMRI Hospital-
appellant’s witness Mr. Satyabrata Upadhyay was cross-examined by the
claimant.
9. The claimant filed M.A. No.1327 of 2009 before the National
Commission after remand order was passed by this Court in the case of
Malay Kumar Ganguly (supra). The claimant now claimed enhancement of
compensation at Rs.78,14,00,000/- under the heads of pecuniary damages
and non-pecuniary damages.
The prayer made in the application was to admit the claim for
compensation along with supporting documents including the opinions of
the foreign experts and further prayed for issuing direction to the
appellant-doctors and the Hospital to arrange for cross-examination of
the foreign experts, if they wish, through video conferencing at their
expenses as directed by this Court in the remand order in Malay Kumar
Ganguly’s case (supra) and for fixing the matter for a final hearing
as soon as possible on a firm and fixed date as the claimant himself
want to argue his petition as was done before this Court, as he being
the permanent resident of U.S.A.
10. The learned senior counsel appearing for the claimant on 9.2.2010
prayed for withdrawal of the application stating that he would file
another appropriate application. Thereafter, on 22.2.2010 the claimant
filed M.A. No.200 of 2010 seeking direction to the National Commission
to permit him to produce affidavit of four foreign experts and their
reports. The National Commission dismissed the same vide order dated
26.4.2010 against which special leave petition No.15070/2010 was filed
before this Court which was withdrawn later on. Again, the claimant
filed M.A. No.594 of 2010 before the National Commission for
examination of four foreign experts to substantiate his claim through
video conferencing at the expense of the appellant-doctors and the
Hospital. The National Commission vide order dated 6.9.2010 dismissed
the application of the claimant for examining foreign experts. Against
this order, the claimant preferred SLP (C) No.3173 of 2011 before this
Court praying for permission to examine two foreign experts, namely,
Prof. John F. Burke Jr. and Prof. John Broughton through video
conferencing and he undertook to bear the expenses for such
examination. The claimant had given up examination of other two
foreign experts, namely, D. Joe Griffith and Ms. Angela Hill. Prof.
John F. Burke Jr. was examined on 26.4.2011 as an Economics Expert to
prove the loss of income of the deceased and the claimant relied upon
an affidavit dated 21.9.2009 and his report dated 18.12.2009 wherein
he has stated that if the deceased would have been employed through
the age of 70, her net income could have been $3,750,213.00. In
addition, the loss of service from a domestic prospective was an
additional amount of $1,258,421.00. The said witness was cross
examined by the learned counsel for the doctors and AMRI Hospital.
The learned Counsel for the appellant-doctors placed reliance upon the
following questions and answers elicited from the above Economics
Expert witness, which are extracted hereunder:-
“Q.16. Can you tell me what was the wages of Anuradha in 1997?
A.16. May I check my file (permitted). I don’t know.
Q.17. Are you aware whether Anuradha was an income tax payee or
not?
A.17. Anu and her husband were filing joint return.
Q.18. Did Anu have any individual income?
A.18. I don’t know.
Q.19. Did Kunal Saha provide you the earning statement of
Anuradha Saha, wherein her gross monthly pay was shown as $ 1060
as on 16.1.1998?
A.19. I don’t believe that I have that information.
…
Q.21. What documents have you taken into consideration of Anu’s
income for giving your opinion?
A.21. None.
Q.22. Whether Anu was employed at the time of her death?
A.22. I don’t think so; I don’t believe so.”
11. The claimant on the other hand, had placed strong reliance upon
the evidence of the Economics Expert Prof. John F. Burke to prove the
income of the deceased as on the date of her death and actual income
if she would have lived up to the age of 70 years as he had also
examined Prof. John Broughton in justification of his claim.
The learned counsel for the appellant-doctors contended that
Prof. John F. Burke, who was examined through video conferencing in
the presence of the Local Commissioner, has estimated the life time
income of the deceased to be 5 million and 125 thousand US dollars
without any supporting material. The said foreign expert witness did
not know whether the deceased had any individual income. He did not
know about the earning statement of the deceased produced by the
claimant. He has also stated that the deceased was not employed at
the time of her death.
12. The learned counsel for the appellant-doctors also submitted that
the earning statement issued by Catholic Home Bureau stating the
income of the deceased at $1060.72 for the period ending 15th January,
1998 cannot be relied upon for the following reasons :-
a) The earning statement was not proved in accordance with law
since only the affidavit of claimant was exhibited and not
the documents before Justice Lokeshwar Prasad (Retired)
i.e. the Local Commissioner on 5.12.2003 during the cross-
examination.
b) There is nothing to show that Anuradha Saha was under
employment at Catholic Home Bureau.
c) Letter of appointment has not been annexed.
d) Federal Tax record has not been produced. The Economics
expert has stated that Anuradha and the claimant were
filing joint tax return.
e) It does not show weekly income of the deceased as has been
treated by NCDRC.
f) Nature of appointment, even if presumed, has not been
stated, i.e., whether it was temporary or permanent,
contractual or casual and period of employment.
It is further submitted by the learned counsel that the evidence
of Prof. John F. Burke, Jr. has not been relied upon to prove the loss
of income of the deceased as it shows that the deceased was not paying
income tax. Therefore, the National Commission has erred in partly
allowing the claim of the claimant while computing the compensation on
the basis of the earning of the deceased.
On awarding compensation under the head of ‘loss of consortium’:
13. The learned senior counsel and other counsel for the appellant-
doctors submitted that the National Commission has erred in awarding
Rs.10,00,000/- towards loss of consortium. This Court in various
following decisions has awarded Rs.5,000/- to Rs.25,000/- on the
aforesaid account:-
|CASE LAW |AMOUNT |
|1. Santosh Devi v. National Insurance Co. Ltd.,|Rs.10,000 |
|(2012) 6 SCC 421 | |
|2. New India Assurance Company Limited v. |Rs.10,000 |
|Yogesh Devi, (2012) 3 SCC 613 | |
|3. National Insurance Company Limited v. |Rs.5,000 |
|Sinitha, (2012) 2 SCC 356 | |
|4. Sunil Sharma v. Bachitar Singh, (2011) 11 |Rs.25,000 |
|SCC 425 | |
|5. Pushpa v. Shakuntala, (2011) 2 SCC 240 |Rs.10,000 |
|6. Arun Kumar Agrawal v. National Insurance |Rs.15,000 |
|Company Limited, (2010) 9 SCC 218 | |
|7. Shyamwati Sharma v. Karam Singh, (2010) 12 |Rs.5,000 |
|SCC 378 | |
|8. Reshma Kumari v. Madan Mohan, (2009) 13 SCC |Rs.15,000 |
|422 in Sarla Dixit v. Balwant Yadav | |
|9. Raj Rani v. Oriental Insurance Company |Rs.7,000 |
|Limited, (2009) 13 SCC 654 | |
|10. Sarla Verma v. Delhi Transport Corporation,|Rs.10,000 |
|(2009) 6 SCC 121 | |
|11. Rani Gupta v. United India Insurance |Rs.25,000 |
|Company Limited, (2009) 13 SCC 498 | |
|12. National Insurance Company Limited v. |Rs.10,000 |
|Meghji Naran Soratiya, (2009) 12 SCC 796 | |
|13. Oriental Insurance Company Limited v. Angad|Rs.10,000 |
|Kol, (2009) 11 SCC 356 | |
|14. Usha Rajkhowa v. Paramount Industries, |Rs.5,000 |
|(2009) 14 SCC 71 | |
|15. Laxmi Devi v. Mohammad. Tabbar, (2008) 12 |Rs.5,000 |
|SCC 165 | |
|16. Andhra Pradesh State Road Transport |Rs.5,000 |
|Corporation v. M. Ramadevi, (2008) 3 SCC 379 | |
|17. State of Punjab v. Jalour Singh, (2008) 2 |Rs.5,000 |
|SCC 660 | |
|18. Abati Bezbaruah v. Dy. Director General, |Rs.3,000 |
|Geological Survey of India, (2003) 3 SCC 148 | |
|19. Oriental Insurance Co. Ltd. v. Hansrajbhai |Rs.5,000 |
|V. Kodala, (2001) 5 SCC 175 | |
|20. Sarla Dixit v. Balwant Yadav, (1996) 3 SCC |Rs.15,000 |
|179 | |
|21. G.M., Kerala SRTC v. Susamma Thomas, (1994)|Rs.15,000 |
|2 SCC 176 | |
|22. National Insurance Co. Ltd. v. Swaranlata |Rs.7,500 |
|Das, 1993 Supp (2) SCC 743 | |
14. Further, the senior counsel and other counsel for the appellant-
doctors contended that the case of Nizam Institute of Medical Sciences
Vs. Prasanth S. Dhananka & Ors.[4] relied upon by the claimant is
misconceived as that case relates to the continuous pain and suffering
of the victim, who had lost control over his lower limb and required
continuous physiotherapy for rest of his life. It was not the amount
for loss of consortium by the husband or wife. Hence, it is submitted
by them that the National Commission erred in granting Rs.10 lakhs
under the head of ‘loss of consortium’.
On the objective and pattern of payment of compensation cases:
15. It is further contended by the learned counsel for the appellant-
doctors that the compensation awarded by the National Commission should
be meant to restore the claimant to the pre-accidental position and in
judging whether the compensation is adequate, reasonable and just,
monetary compensation is required to be arrived at on the principle of
restitutio-in-integram. The National Commission while calculating the
just monetary compensation, the earnings of the claimant who himself is
a doctor, is also required to be taken into consideration. Regarding
the contention of the claimant that in allowing compensation the
American standard is required to be applied, it has not been disclosed
before the Commission as to what is the American standard. On the
contrary, the National Commission was directed by this Court to
calculate the compensation in the case as referred to in Malay Kumar
Ganguly’s case (supra) and on the basis of the principles laid-down by
this Hon’ble Court in various other judgments. The two judgments which
have been referred to in Malay Kumar Ganguly’s case (supra) are
Oriental Insurance Company Ltd. Vs. Jashuben & Ors. (supra) and R.K.
Malik Vs. Kiran Pal[5], where this Court has not directed assessment of
compensation according to American standard. Therefore, the contention
of the claimant that compensation has to be assessed according to
American standard is wholly untenable in law and the same is liable to
be rejected.
16. Further, it is contended by the senior counsel and other counsel
for the appellant-doctors and Hospital that the reliance placed by the
claimant upon the decision of this Court reported in Patricia Jean
Mahajan’s case (supra) clearly shows that the multiplier method
applicable to claim cases in India was applied after taking note of
contribution by the deceased for his dependants. The said case is a
clear pointer to the fact that even if a foreigner dies in India, the
basis of calculation has to be applied according to Indian Standard and
not the American method as claimed by the claimant.
17. Further, the word ‘reasonable’ implies that the appellant-doctors
and AMRI Hospital cannot be saddled with an exorbitant amount as
damages - which cannot either be treated as an obvious or natural
though not foreseeable consequence of negligence.
18. Further, the learned senior counsel has placed reliance on the
judgment of this Court in Nizam Institute of Medical Sciences (supra)
wherein this Court enhanced the original compensation awarded to the
claimant-victim who had been paralyzed due to medical negligence from
waist down, under the heads: requirement of nursing care; need for
driver-cum-attendant, as he was confined to a wheel chair; and he
needed physiotherapy.
In the present case, the negligence complained of is against
the doctors and the Hospital which had resulted in the death of the
wife of the claimant. In that case, the extent of liability ought to be
restricted to those damages and expenses incurred as a direct
consequence of the facts complained of, while setting apart the amount
to be awarded under the head ‘loss of dependency’. The relevant portion
of the aforesaid judgment of this Court in the Nizam’s Institute of
Medical Sciences is quoted hereunder:
“…………. The adequate compensation that we speak of, must to some
extent, be a rule of thumb measure, and as a balance has to be
struck, it would be difficult to satisfy all the parties
concerned.” (paragraph 88)
19. It is further contended by the learned senior counsel and other
counsel for the appellant-doctors that the claimant failed to produce
any document by taking recourse to Order XLI Rule 27 of Code of Civil
Procedure and Order LVII of Supreme Court Rules to justify his claims
of approximately an additional amount of Rs.20 crores including the
cost of filing of the claim for compensation to the amount of
compensation demanded for medical negligence which is a far-fetched
theory and every negative happening in the claimant’s life post-death
of his wife Anuradha Saha cannot be attributed as the consequence due
to medical negligence. Therefore, the enhancement of compensation as
prayed for by the claimant stood rightly rejected by the National
Commission by recording reasons. Therefore, this Court need not examine
the claim again.
On the use of multiplier method for determining compensation :
20. It is contended by the senior counsel and other counsel for the
appellants that the multiplier method has enabled the courts to bring
about consistency in determining the loss of dependency more
particularly, in cases of death of victims of negligence, it would be
important for the courts to harmoniously construct the aforesaid two
principles to determine the amount of compensation under the heads:
expenses, special damages, pain and suffering.
21. In Sarla Verma’s case (supra), this Court, at Paragraphs 13 to 19,
held that the multiplier method is the proper and best method for
computation of compensation as there will be uniformity and consistency
in the decisions. The said view has been reaffirmed by this Court in
Reshma Kumari & Ors. Vs. Madan Mohan & Anr., Civil Appeal No.4646 of
2009 decided on April 2, 2013.
22. It is further submitted by the learned counsel that in capitalizing
the pecuniary loss, a lesser multiplier is required to be applied
inasmuch as the deceased had no dependants. In support of his
contention, reliance is placed upon the decision of this Court
reported in Patricia Mahajan’s case (supra) in which this Court
having found a person who died as a bachelor, held that a lesser
multiplier is required to be applied to quantify the compensation.
23. It is further contended by the senior counsel and other counsel for
the appellant-doctors that in Susamma Thomas (supra) this Court has
observed that “in fatal accident cases, the measure of damage is
the pecuniary loss suffered and is likely to be suffered by each
dependant as a result of the death”. This means that the court
while awarding damages in a fatal accident case took into account
the pecuniary loss already suffered as a result of the negligence
complained of, and the loss of dependency based on the
contributions made by the deceased to the claimant until her death.
While the former may be easily ascertainable, the latter has been
determined by the National Commission by using the multiplier
method and in respect of the use of the multiplier method for the
purpose of calculating the loss of dependency of the claimant, in
paragraph No. 16 of the aforesaid judgment this Hon’ble Court
observed as follows:
“16. It is necessary to reiterate that the multiplier method is
logically sound and legally well-established. There are some
cases which have proceeded to determine the compensation on the
basis of aggregating the entire future earnings for over the
period the life expectancy was lost, deducted a percentage there
from towards uncertainties of future life and award the
resulting sum as compensation. This is clearly unscientific….”
24. In Sarla Verma’s case (supra) this Court sought to define the
expression ‘just compensation’ and opined as under:
“16.….Just Compensation” is adequate compensation which is fair
and equitable, on the facts and circumstances of the case, to
make good the loss suffered as a result of the wrong, as far as
money can do so, by applying the well-settled principles
relating to award of compensation. It is not intended to be a
bonanza, largesse or source of profit.
17. Assessment of compensation though involving certain
hypothetical considerations should nevertheless be objective.
Justice and justness emanate from equality in treatment,
consistency and thoroughness in adjudication, and fairness and
uniformity in the decision-making process and the decisions.
While it may not be possible to have mathematical precision or
identical awards in assessing compensation, same or similar
facts should lead to awards in the same range. When the
factors/inputs are the same, and the formula/legal principles
are the same, consistency and uniformity, and not divergence and
freakiness, should be the result of adjudication to arrive at
just compensation.”
(Emphasis laid by this Court)
25. It was also contended by the learned counsel for the appellant-
doctors that apart from accident cases under the Motor Vehicles
Act, 1988, the multiplier method was followed in Lata Wadhwa &
Ors. Vs. State of Bihar[6] by a three Judge Bench of this Court,
which is a case where devastating fire took place at Jamshedpur
while celebrating the birth anniversary of Sir Jamshedji Tata.
Even in M.S. Grewal & Anr. Vs. Deep Chand Sood and Ors.[7], the
multiplier method was followed wherein school children were
drowned due to negligence of school teachers. In the Municipal
Corporation of Delhi Vs. Uphaar Tragedy Victims Association &
Ors.[8] the multiplier method was once again followed where death
of 59 persons took place in a cinema hall and 109 persons suffered
injury.
26. Therefore, it is contended by the senior counsel and other counsel
for the appellant-doctors that multiplier method should be used
while awarding compensation to the victims because it leads to
consistency and avoids arbitrariness.
On contributory negligence by the claimant
27. The learned senior counsel and other counsel for the appellant-
doctors submitted that the National Commission in the impugned
judgment should have deducted 25% of the compensation amount
towards contributory negligence of the claimant caused by his
interference in the treatment of the deceased. Instead, the
National Commission has deducted only 10% towards the same.
According to the learned senior counsel and other counsel for the
appellants, the National Commission erred in not adhering to the
tenor set by this Court while remanding the case back to it for
determining the compensation to arrive at an adequate amount which
would also imply an aspect of contributory negligence, individual
role and liability of the Hospital and the doctors held negligent.
Therefore, this Court is required to consider this aspect and
deduct the remaining 15% out of the compensation awarded by the
National Commission towards negligence by the claimant.
On enhancement of compensation claimed by the claimant :
28. The learned senior counsel and other counsel for the appellant-
doctors and the Hospital contended that enhanced claim of the
claimant in his appeal is without any amendment to the pleadings
and therefore, is not maintainable in law. The claimant in his
written submission filed during the course of arguments in July,
2011 before the National Commission, has made his claim of
Rs.97,56,07,000/- which the National Commission has rightly
rejected in the impugned judgment holding that it was legally
impermissible for it to consider that part of the evidence which
is strictly not in conformity with the pleadings in order to award
a higher compensation as claimed by the claimant. In justification
of the said conclusion and finding of the National Commission, the
learned counsel have placed reliance upon the principle analogous
to Order II Rule 2 of C.P.C., 1908 and further contended that the
claimant who had abandoned his claim now cannot make new claims
under different heads. Further, it is submitted by Mr. Vijay
Hansaria, the learned senior counsel on behalf of AMRI Hospital
that though the claimant had filed an application on 9.11.2009 in
M.A. No.1327 of 2009 for additional claim; the said application
was withdrawn by him on 9.2.2010. Therefore, his claim for
enhancing compensation is not tenable in law. In support of the
said contention, he has placed reliance upon the judgment of this
Court in National Textile Corporation Ltd. Vs. Nareshkumar
Badrikumar Jagad[9], wherein it is stated by this Court that the
pleadings and particulars are necessary to enable the court to
decide the rights of the parties in the trial.
In support of the said proposition of law, reliance was also
placed upon other judgment of this Court in Maria Margarida Sequeria
Fernandes Vs. Erasmo Jack de Sequeria[10], wherein this Court, at
paragraph 61, has held that :-
“in civil cases, pleadings are extremely important for
ascertaining title and possession of the property in question.”
The said view of this Court was reiterated in A. Shanmugam Vs. Ariya
Kshatriya Rajakula Vamsathu Madalaya Nandavana Paripalanai Sangam[11],
29. Further, the learned senior counsel for the appellant-doctors and
AMRI Hospital placed reliance upon the provisions of the Consumer
Protection Act, 1986 and the Motor Vehicles Act, 1988 to urge that
though the Consumer Courts have pecuniary jurisdiction for
deciding the matters filed before it whereby the pecuniary
jurisdiction of the District Forum is Rs.20 lakhs, State
Commission is from Rs.20 lakhs to Rs.1 crore, whereas for National
Commission, it is above Rs.1 crore, the Motor Accident Claims
Tribunal have unlimited jurisdiction. In the Consumer Protection
Act, 1986 there is a provision for limitation of 2 years for
filing of complaint under Section 24-A of the Act and there is no
limitation prescribed in the Motor Vehicles Act, 1988.
30. Sections 12 and 13 of the Consumer Protection Act, 1986 provide as
to how the complaint has to be made and the procedure to be
followed by the claimant for filing the complaint. Rule 14(c) of
the Consumer Protection Rules, 1987 and the Consumer Protection
Regulations, 2005 require the complainant to specify the relief
which he claims. The filing of the complaint/appeal/revision is
dealt with Consumer Protection Regulations, 2005. Under the Motor
Vehicles Act, 1988, a victim or deceased’s legal representative
does not have to specify the amount claimed as held by this Court
in the case of Nagappa Vs. Gurudayal Singh[12].
31. Under Section 158(6) of the Motor Vehicles Act, 1988, the report
forwarded to the Claims Tribunal can be treated as an application
for compensation even though no claim is made or specified amount
is claimed whereas under the Consumer Protection Act, a written
complaint specifying the claim to be preferred before the
appropriate forum within the period of limitation prescribed under
the provision of the Act is a must.
32. Under Section 163-A of the Motor Vehicles Act, 1988 a claimant is
entitled to compensation under the structured formula even without
negligence whereas no such provision exists under the Consumer
Protection Act.
33. In this regard, the learned senior counsel and other counsel for
the appellant-doctors and Hospital placed reliance upon the
judgment of this Court in the case of Ibrahim Vs. Raju.[13] and
submitted that the said case does not apply to the fact situation
for two reasons, namely, it was a case under the Motor Vehicles
Act, 1988, whereas this case involves the Consumer Protection Act.
Secondly, this Court in the previous case, enhanced the
compensation observing that due to financial incapacity the
claimant could not avail the services of the competent lawyer,
which is not the case in hand, in as much as the claimant had
hired the services of an advocate who is Bar-at-Law and the
President of the Supreme Court Bar Association.
34. Further, the learned counsel for the appellant-doctors placed
reliance upon the judgment of this Court in the case of Sanjay
Batham Vs. Munnalal Parihar[14], which is a case under the Motor
Vehicles Act, 1988. This Court enhanced the compensation
following the judgment in Nagappa’s case (supra). The learned
counsel also placed reliance upon the judgment of this Court in
Nizam Institute’s case (supra) where the complainant had made a
claim of Rs.7.50 crores. This Court enhanced the compensation
from Rs.15.50 lakhs to Rs.1 crore. But, the Nizam Institute’s
case is not a case for the proposition that a claimant can be
awarded compensation beyond what is claimed by him. On the other
hand, it was a case of peculiar facts and circumstances since the
claimant had permanent disability which required constant medical
attention, medicines, services of attendant and driver for
himself. The cases referred to by the claimant regarding medical
negligence in his written submission are distinguishable from the
present case and in none of these cases upon which reliance has
been placed by the claimant, this Court has awarded compensation
beyond what is claimed. Therefore, the reliance placed upon the
aforesaid judgments by the claimant does not support his claim and
this Court need not accept the same and enhance the compensation
as has been claimed by him since he is not entitled to the same.
Death of the claimant’s wife due to cumulative effect of negligence :
35. This Court vide its judgment in Malay Kumar Ganguly’s case (supra)
has held that:
“186. A patient would feel the deficiency in service having
regard to the cumulative effect of negligence of all
concerned. Negligence on the part of each of the treating
doctors as also the hospital may have been the contributing
factors to the ultimate death of the patient. But, then in a
case of this nature, the court must deal with the
consequences the patient faced, keeping in view the
cumulative effect. In the instant case, negligent action has
been noticed with respect to more than one respondent. A
cumulative incidence, therefore, has led to the death of the
patient.”
The two words “may” and “cumulative incidence” in the abovesaid
observations of this Court is relevant for determining the
quantification of compensation. It is submitted that this Court is
also not sure that the negligence solely has contributed to the death
of the claimant’s wife. At the most, this Court is of the view that
the negligence may have contributed to the death of the claimant’s
wife. The incidences leading to or contributing to the death of the
deceased are:
i) Disease TEN itself is a fatal disease which has very high
mortality rate.
ii) TEN itself produces septicemic shock and deceased Anuradha
died because of such consequence.
iii) No direct treatment or treatment protocol for TEN.
iv) Negligence of many in treating deceased Anuradha.
v) Contributory negligence on the part of Dr.Kunal Saha and
his brother.
Furthermore, it is observed factually that lethal combination of
Cisapride and Fluconazole had been used for a number of days at Breach
Candy Hospital during her stay which leads to cardiac arrest.
Therefore, the National Commission ought to have considered different
incidences as aforesaid leading to the death of the claimant’s wife so
as to correctly apportion the individual liability of the doctors and
the AMRI Hospital in causing the death of the wife of the claimant.
36. Further, with regard to the liability of each of the doctors and
the AMRI Hospital, individual submissions have been made which
are presented hereunder:
Civil Appeal No. 692/2012
37. It is the case of the appellant-AMRI Hospital that the National
Commission should have taken note of the fact that the deceased
was initially examined by Dr. Sukumar Mukherjee and the alleged
medical negligence resulting in the death of the deceased was due
to his wrong medication (overdose of steroid). Therefore, the
Hospital has little or minimal responsibility in this regard,
particularly, when after admission of the deceased in the Hospital
there was correct diagnosis and she was given best possible
treatment. The National Commission erred in apportioning the
liability on the Hospital to the extent of 25% of the total award.
This Court in the earlier round of litigation held that there is
no medical negligence by Dr. Kaushik Nandy, the original
respondent No.6 in the complaint, who was also a doctor in the
appellant-Hospital.
38. Further, the learned senior counsel for the AMRI Hospital
submitted that the arguments advanced on behalf of the appellants-
doctors Dr. Balram Prasad in C.A. No.2867/2012, Dr. Sukumar
Mukherjee in C.A. No.858/2012 and Dr. Baidyanath Haldar in C.A.
731/2012 with regard to percentage, on the basis of costs imposed
in paragraph 196 of the judgment in the earlier round of
litigation is without any basis and further submitted that under
the heading – ‘Individual Liability of Doctors’ findings as to
what was the negligence of the doctors and the appellant AMRI
Hospital is not stated. If the said findings of the National
Commission are considered, then it cannot be argued that the
appellant AMRI Hospital should pay the highest compensation.
Further, the learned senior counsel rebutted the submission of the
claimant contending that since he had himself claimed special
damages against the appellant-doctors, the Hospital and Dr. Abani
Roy Choudhary in the complaint before the National Commission,
therefore, he cannot now contend contrary to the same in the
appeal before this Court.
CIVIL APPEAL NO. 858 OF 2012
39. It is the case of the appellant- Dr. Sukumar Mukherjee that the
National Commission while apportioning the liability of the
appellant, has wrongly observed that :
“Supreme Court has primarily found Dr.Sukumar Mukherjee and
AMRI hospital guilty of negligence and deficient in service
on several counts. Therefore, going by the said findings and
observations of Supreme Court we consider it appropriate to
apportion the liability of Dr. Sukumar Mukherjee and AMRI
hospital in equal proportion, i.e. each should pay 25% i.e.
38,90,000/- of the awarded amount of 1,55,60,000/-.”
40. It is submitted by the learned counsel for the appellant - Dr.
Sukumar Mukherjee that scrutiny of the judgment in Malay Kumar
Ganguly’s case (supra) will show that at no place did the Hon’ble
Supreme Court made any observation or recorded any finding that
the appellant Dr. Mukherjee and the Hospital are primarily
responsible. On the contrary, under the heading “Cumulative Effect
of Negligence” under paras 186 and 187, this Hon’ble Court has
held as under:
“186. A patient would feel the deficiency in service having
regard to the cumulative effect of negligence of all
concerned. Negligence on the part of each of the treating
doctors as also the hospital may have been contributing
factors to the ultimate death of the patient. But, then in a
case of this nature, the court must deal with the
consequences the patient faced keeping in view the cumulative
effect. In the instant case, negligent action has been
noticed with respect to more than one respondent. A
cumulative incidence, therefore, has led to the death of the
patient.
187. It is to be noted that doctrine of cumulative effect is
not available in criminal law. The complexities involved in
the instant case as also differing nature of negligence
exercised by various actors, make it very difficult to distil
individual extent of negligence with respect to each of the
respondent. In such a scenario finding of medical negligence
under Section 304-A cannot be objectively determined.”
41. It is further submitted by the learned counsel for the appellant-
Dr. Sukumar Mukherjee that the wife of the claimant was suffering
from rash/fever from April 1998, she was seen by the appellant-
Dr.Sukumar Mukherjee only on three occasions before his pre-
planned visit to the U.S.A. for attending a medical conference
i.e. on 26.4.1998, 7.5.1998 and on the night of 11.5.1998 and then
the appellant-Dr.Mukherjee left India for USA and returned much
after the demise of the claimant’s wife. On her first examination
on 26.4.1998 the appellant suggested a host of pathological
tests. The patient was requested to visit the Doctor with these
reports. No drugs were prescribed by the appellant-Dr.Mukherjee at
this examination. On 7.5.1998, Anuradha Saha walked into the
clinic of the appellant-Dr.Mukherjee at 9.30 p.m. and reported
that she was uncomfortable because she had consumed food of
Chinese cuisine. The appellant-Dr.Mukherjee noticed that there was
a definite change in the nature of the rash. Based on the
information furnished and the status and condition of the patient,
she was diagnosed to be suffering from allergic vasculitis and the
appellant-Dr.Mukherjee commenced treating the patient with
Depomedrol, which is a drug belonging to the family of steroids.
The appellant-Dr.Mukherjee recommended Depomedrol 80 mg.IM twice
daily for 3 days to be reconsidered after Anuradha Saha was
subject to further review. Depomedrol is very much indicated in
Vasculitis (USPDI 1994): “Depomedrol is anti-inflammatory, anti-
allergic drug. Therefore, it is Doctor’s judgment to use the
drug.” The appellant-Dr.Mukherjee administered one injection of
Depomedrol on the night of 7.5.1998. He did not administer any
other injections to the deceased thereafter. It is further
submitted that much higher dose of Depomedrol have been
recommended in USPDI 1994 and CDRom Harisons Principles of
Medicine 1998 in by pass skin diseases like multiple sclerosis
with a dose of 177.7 mg daily for 1 week and 71 mg on every other
day for one month.
42. On 11.5.1998 when the appellant-Dr.Mukherjee examined Anuradha
Saha at the AMRI Hospital prior to his departure to U.S.A., he
prescribed a whole line of treatment and organized reference to
different specialists/consultants. He recommended further
pathological tests because on examining the patient at the AMRI,
he noticed that she had some blisters which were not peeled off.
There was no detachment of skin at all. He also requested in
writing the treating consultant physician of AMRI Dr. Balram
Prasad, MD to organize all these including referral to all
specialists. The appellant-Dr.Mukherjee suspected continuation of
allergic Vasculitis in aggravated form and prescribed steroids in
a tapering dose on 11.5.1998 and advised other tests to check
infection and any immuno abnormalities. It is stated that the
appellant-Dr.Mukherjee did not examine the patient thereafter and
as aforementioned, he left on a pre-arranged visit to U.S.A. for a
medical conference. No fees were charged by the appellant-
Dr.Mukherjee. It is further submitted that before the appellant-
Dr.Mukherjee started the treatment of the deceased, Dr.Sanjoy
Ghose on 6.5.1998 treated her and during the period of treatment
of the appellant-Dr. Mukherjee from 7.5.1998 to 11.5.1998, on
9.5.1998 Dr.Ashok Ghosal (Dermatologist) treated Anuradha Saha.
These facts were not stated in the complaint petition and
concealed by the claimant. To this aspect, even this Hon’ble Court
has also recorded a finding in the case referred to supra that the
patient was also examined by two consultant dermatologists Dr.A.K.
Ghosal and Dr. S. Ghosh who diagnosed the disease to be a case of
vasculitis.
43. It is further submitted by the learned counsel for the appellant-
Dr. Mukherjee that the cause of death as recorded in the death
certificate of the deceased is “septicemic shock with multi system
organ failure in a case of TEN leading to cardio respiratory
arrest”. Blood culture was negative prior to death. There was no
autopsy to confirm the diagnosis at Breach Candy Hospital, Mumbai.
Dr. Udwadia observed on 27.5.1998 that the patient has developed
SIRS in absence of infection in TEN. The patient expired on
28.5.1998 and the death certificate was written by a junior doctor
without the comments of Dr. Udwadia. It is submitted by the
learned counsel that there is neither any allegation nor any
finding by this Court that the doctors of the AMRI Hospital had
contributed to septicemia. The mere finding that the patient was
not properly dressed at AMRI Hospital where she stayed for only 6
days of early evocation of the disease do not justify contribution
to septicemic shock of the deceased. Further, there is no record
to show that at AMRI Hospital the skin of the patient had peeled
out thereby leading to chance of developing septicemia. On the
other hand, it is a fact borne out from record that the patient
was taken in a chartered flight to Breach Candy Hospital, Bombay
against the advice of the doctors at Kolkata and further nothing
is borne out from the records as what precaution were taken by the
claimant while shifting the patient by Air to Breach Candy
Hospital thereby leading to the conclusion that during the travel
by chartered flight she might have contracted infection of the
skin leading to septicemia. It is further submitted by the learned
counsel for the appellant- Dr. Sukumar Mukherjee that the fact
that the disease TEN requires higher degree of care since there
is no definite treatment, such high degree of care will be
relatable to comfort but not definitely to septicemia that
occurred at Breach Candy Hospital. Hence, negligence has to be
assessed for damages for failure to provide comfort to the patient
and not a contributory to septicemia shock suffered by the
deceased.
44. It is submitted by the learned counsel for appellant-Dr. Sukumar
Mukherjee that there is no finding or allegation that the drug
Depomedrol prescribed by the appellant-Dr.Mukherjee caused the
disease TEN. The appellant advised a number of blood tests on
11.5.98 in AMRI Hospital to detect any infection and immune
abnormality due to steroids and to foresee consequences. It is
further submitted that Breach Candy Hospital records show that the
patient was haemo-dynamically stable. Even Dr.Udwadia of Breach
Candy Hospital on 17.5.1998 doubted with regard to the exact
disease and recorded the disease as TEN or Steven Johnson Syndrom.
Therefore, the National Commission ought to have considered
different incidences as aforesaid leading to the death of the
claimant’s wife and the quantum of damages shall have to be divided
into five parts and only one part shall be attributed to the
negligence of the appellant-Dr.Mukherjee.
Civil Appeal No. 2867 of 2012
45. It is the case of Dr. Balram Prasad-appellant in Civil Appeal No.
2867 of 2012 that on 11.05.1998, Dr. Sukumar Mukherjee, before
leaving for U.S.A., attended the patient at the AMRI Hospital at
2.15 p.m. and after examining the deceased, issued the second and
last prescription on the aforesaid date without prescribing
anything different but re-assured the patient that she would be
fine in a few weeks’ time and most confidently and strongly
advised her to continue with the said injection for at least four
more days. This was also recorded in the aforesaid last
prescription of the said date. Further, it is stated that without
disclosing that he would be out of India from 12.05.1998, he asked
the deceased to consult the named Dermotologist, Dr. B.Haldar @
Baidyanath Haldar, the appellant in Civil Appeal No. 731 of 2012,
and the physician Dr. Abani Roy Chowdhury in his last prescription
on the last visit of the deceased. Most culpably, he did not even
prescribe I.V. Fluid and adequate nutritional support which was
mandatory in that condition. Dr. Haldar took over the treatment
of the deceased as a Dermatologist Head and Dr. Abani Roy
Chowdhury as Head of the Medical Management from 12.05.1998 with
the positive knowledge and treatment background that the patient
by then already had clear intake of 880 mg of Depomedrol injection
as would be evident from AMRI’s treatment sheet dated 11.05.1998.
46. It is further stated by the claimant in the complaint lodged
before National Commission that it contained specific averments of
negligence against the appellant-doctors. The only averment of
alleged negligence was contained in paragraph 44 of the complaint
which reads as under:
“44. That Dr. Balram Prasad as attending physician at AMRI
did do nothing better. He did not take any part in the
treatment of the patient although he stood like a second
fiddle to the main team headed by the opposite party No. 2
and 3. He never suggested even faintly that AMRI is not an
ideal place for treatment of TEN patient; on the converse, he
was full of praise for AMRI as an ideal place for the
treatment of TEN patients knowing nothing how a TEN patient
should be treated.”
47. The claimant has also placed strong reliance upon the answer given
by him to question No. 26 in his cross examination which reads
thus:
“Q.No.26. Dr. Prasad says that Depomedrol dose according to
the treatment sheet of the AMRI Hospital, he made a
specific suggestion that the dose should be limited to that
particular day only. Is it correct?
Ans. It is all matter of record. Yeah, he said one day in
AMRI record.”
48. Though, the appellant-Dr. Balram Prasad was accused in the
criminal complaint lodged by the claimant he was neither proceeded
against as an accused in the criminal complaint nor before the
West Bengal Medical Council but was named as a witness. Further,
it is stated by the claimant that he urged before the National
Commission as well as before this Court in unequivocal terms that
the bulk of the compensation awarded would have to be in the
proportion of 80% on the AMRI Hospital, 15% on Dr. Sukumar
Mukherjee and balance between the rest. Despite the aforesaid
submission before the National Commission, the claimant claims
that it has erred in awarding the proportion of the liability
against each of the appellant-doctors in a manner mentioned in the
table which is provided hereunder:
| NAME OF THE PARTY |AMOUNT TO BE PAID |
|Dr. Sukumar Mukherjee |Compensation:Rs.38,90,000 |
| |Cost of litigation:1,50,000 |
|Dr. Baidyanath Haldar |Compensation:Rs.25,93,000 |
| |Cost of litigation: Rs.1,00,000 |
|Dr. Abani Roy Chowdhury (since|Compensation: 25,00,000 |
|deceased) (claim foregone) | |
|AMRI Hospital |Compensation: Rs.38,90,000 |
| |Cost of litigation: Rs.1,50,000 |
|Dr. Balram Prasad |Compensation: Rs.25,93,000 |
| |Cost of litigation: Rs.1,00,000 |
49. The appellant-Dr. Balram Prasad in Civil Appeal No.2867/2012
contends that he was the junior most attending physician attached
to the Hospital, he was not called upon to prescribe medicines but
was only required to continue and/or monitor the medicines
prescribed by the specialist in the discipline. But realizing the
seriousness of the patient, the appellant had himself referred the
patient to the three specialists and also suggested for
undertaking a skin biopsy. The duty of care ordinarily expected of
a junior doctor had been discharged with diligence by the
appellant. It is further contended that in his cross-examination
before the National Commission in the enquiry proceeding, the
claimant himself has admitted that the basic fallacy was committed
by three physicians, namely, Dr. Mukherjee, Dr. Haldar and Dr. Roy
Chowdhury. The above facts would clearly show that the role played
by the appellant-Doctors in the treatment of the deceased was only
secondary and the same had been discharged with reasonable and due
care expected of an attending physician in the given facts and
circumstances of the instant case.
50. In the light of the above facts and circumstances, the contention
of the claimant that the death of the claimant’s wife was neither
directly nor contributorily relatable to the alleged negligent act
of the appellant- Dr. Balram Prasad, it is most respectfully
submitted that the National Commission was not justified in
apportioning the damages in the manner as has been done by the
National Commission to place the appellant on the same footing as
that of Dr. Baidyanath Haldar, who was a senior doctor in-charge
of the management/treatment of the deceased.
51. The learned senior counsel for the appellant-Dr. Balram Prasad
further urged that the National Commission has also erred in not
taking into account the submissions of the claimant that 80% of
the damages ought to have been levied on the Hospital, 15% on Dr.
Sukumar Mukherjee and the balance between the rest. It is urged
that the proportion of the compensation amount awarded on the
appellant is excessive and unreasonable which is beyond the case
of the claimant himself.
CIVIL APPEAL NO. 731 OF 2012
52. The learned counsel Mr. Ranjan Mukherjee appearing on behalf of
the appellant in this appeal has filed the written submissions on
15.4.2013. He has reiterated his submission in support of his
appeal filed by the said doctor and has also adopted the arguments
made in support of the written submissions filed on behalf of the
other doctors and AMRI Hospital by way of reply to the written
submissions of the claimant. Further, he has submitted that the
appellant Dr. Baidyanath Haldar is about 80 years and is ailing
with heart disease and no more in active practice. Therefore, he
requested to set aside the liability of compensation awarded
against him by allowing his appeal.
All the doctors and the Hospital urged more or less the same
grounds.
Civil Appeal No. 2866 of 2012
53. This appeal has been filed by the claimant. It is the grievance
of the claimant that the National Commission rejected more than
98% of the total original claim of Rs.77.7 crores which was
modified to Rs.97.5 crores later on by adding “special damages”
due to further economic loss, loss of employment, bankruptcy etc.
suffered by the claimant in the course of 15-year long trial in
relation to the proceedings in question before the National
Commission and this Court. The National Commission eventually
awarded compensation of only Rs.1.3 crores after reducing from the
total award of Rs.1.72 crores on the ground that the claimant had
“interfered” in the treatment of his wife and since one of the
guilty doctors had already expired, his share of compensation was
also denied.
54. Therefore, the present appeal is filed claiming the just and
reasonable compensation urging the following grounds:
a) The National Commission has failed to consider the pecuniary,
non-pecuniary and special damages as extracted hereinbefore.
b) The National Commission has made blatant errors in
mathematical calculation while awarding compensation using
the multiplier method which is not the correct approach.
c) The National Commission has erroneously used the multiplier
method to determine compensation for the first time in Indian
legal history for the wrongful death caused by medical
negligence of the appellant-doctors and the AMRI Hospital.
d) The National Commission has reinvestigated the entire case
about medical negligence and went beyond the observations
made by this Court in Malay Kumar Ganguly’s case (supra) by
holding that the claimant is also guilty for his wife’s
death.
e) The National Commission has failed to grant any interest on
the compensation though the litigation has taken more than 15
years to determine and award compensation.
f) The National Commission has failed to consider the
devaluation of money as a result of “inflation” for awarding
higher compensation that was sought for in 1998.
g) It is also vehemently contended by the claimant that the
National Commission has made blatant and irresponsible
comment on him stating that he was trying to “make a fortune
out of a misfortune.” The said remark must be expunged.
55. The appellant-doctors and the AMRI Hospital contended that the
compensation claimed by the claimant is an enormously fabulous
amount and should not be granted to the claimant under any
condition. This contention ought to have been noticed by the
National Commission that it is wholly untenable in law in view of
the Constitution Bench decision of this Court in the case of
Indian Medical Association Vs. V.P. Shantha & Ors[15], wherein
this Court has categorically disagreed on this specific point in
another case wherein “medical negligence” was involved. In the
said decision, it has been held at paragraph 53 that to deny a
legitimate claim or to restrict arbitrarily the size of an award
would amount to substantial injustice to the claimant.
56. Further, in a three Judge Bench decision of this Court in Nizam
Institute’s case(supra) it has been held that if a case is made
out by the claimant, the court must not be chary of awarding
adequate compensation. Further, the claimant contends that this
Court has recently refused to quash the defamation claim to the
tune of Rs.100 crores in Times Global Broadcasting Co. Ltd. & Anr.
Vs. Parshuram Babaram Sawant [SLP (Civil) No(s) 29979/2011 decided
on 14-11-2011], suggesting that in appropriate cases, seemingly
large amount of compensation is justified.
57. The claimant further urged that this is the fundamental principle
for awarding “just compensation” and this Court has categorically
stated while remanding the case back to the National Commission
that the principle of just compensation is based on “restitutio in
integrum”, i.e. the claimant must receive the sum of money which
would put him in the same position as he would have been if he had
not sustained the wrong. It is further contended that the
claimant had made a claim referred to supra under specific
headings in great detail with justification for each of the heads.
Unfortunately, despite referring to judicial notice and the said
claim-table in its final judgment, the National Commission has
rejected the entire claim on the sole ground that since the
additional claim was not pleaded earlier, none of the claims made
by the claimant can be considered. Therefore, the National
Commission was wrong in rejecting different claims without any
consideration and in assuming that the claims made by the claimant
before the Tribunal cannot be changed or modified without prior
pleadings under any other condition. The said view of the National
Commission is contrary to the numerous following decisions of this
Court which have opined otherwise:-
Ningamma and Anr. Vs. United India Insurance Company Ltd.[16], Malay
Kumar Ganguly’s case referred to supra, Nizam Institute’s case
(supra), Oriental Insurance Company Ltd. Vs. Jashuben & Ors. (supra),
R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors[17], Raj
Rani & Ors Vs. Oriental Insurance Company Ltd. & Ors[18]., Laxman @
Laxman Mourya Vs. Divisional Manager Vs. Oriental Insurance Co. Ltd.
& Anr.[19] and Ibrahim Vs. Raju & Ors. (supra).
58. The claimant has further argued that the just compensation for
prospective loss of income of a student should be taken into
consideration by the National Commission. In this regard, he has
contended that this Court while remanding the case back to the
National Commission only for determination of quantum of
compensation, has made categorical observations that compensation
for the loss of wife to a husband must depend on her “educational
qualification, her own upbringing, status, husband’s income, etc.”
In this regard, in the case of R.K. Malik & Anr. (supra)
(paragraphs 30-32) this Court has also expressed similar view that
status, future prospects and educational qualification must be
judged for deciding adequate compensation. It is contended by the
claimant that it is an undisputed fact that the claimant’s wife
was a recent graduate in Psychology from a highly prestigious Ivy
League School in New York who had a brilliant future ahead of her.
Unfortunately, the National Commission has calculated the entire
compensation and prospective loss of income solely based on a pay
receipt of the victim showing a paltry income of only $ 30,000
per year, which she was earning as a graduate student. This was
a grave error on the part of the National Commission, especially,
in view of the observations made by this Court in the case of
Arvind Kumar Mishra Vs. New India Assurance Co.[20], wherein this
Court has calculated quantum of compensation based on ‘reasonable’
assumption about prospective loss as to how much an Engineering
student from BIT might have earned in future even in the absence
of any expert’s opinion (paragraphs 13,14). The principles of
this case were followed in many other cases namely, Raj Kumar Vs.
Ajay Kumar & Anr.[21], Govind Yadav Vs. New India Insurance Co.
Ltd.[22], Sri Ramachandrappa Vs. Manager, Royal Sundaram Alliance
Insurance[23], Ibrahim Vs. Raju & Ors. (supra),Laxman @ Laxman
Mourya Vs. Divisional Manager, Oriental Insurance Co. Ltd. (supra)
and Kavita Vs. Dipak & Ors.[24]
59. In view of the above said decisions of this Court, the prospective
loss of income for the wrongful death of claimant’s wife must be
reasonably judged based on her future potential in the U.S.A. that
has also been calculated scientifically by economic expert, Prof.
John F. Burke.
60. It is further the case of the claimant that the National
Commission has completely failed to award “just compensation” due
to non consideration of all the following critical factors:
1) The Guidelines provided by Supreme Court: This Court has
provided guidelines as to how the National Commission
should arrive at an “adequate compensation” after
consideration of the unique nature of the case.
2) Status and qualification of the victim and her husband.
3) Income and standard of living in the U.S.A.: As both the
deceased and the claimant were citizens of U.S.A. and
permanently settled as a “child psychologist” and AIDs
researcher, respectively, the compensation in the instant
case must be calculated in terms of the status and standard
of living in the U.S.A.. In Patricia Mahajan’s case
(supra), where a 48 year old US citizen died in a road
accident in India, this Court has awarded a compensation of
more than Rs. 16 crores after holding that the compensation
in such cases must consider the high status and standard of
living in the country where the victim and the dependent
live.
4) Economic expert from the U.S.A.:
The claimant initially filed a complaint before the National
Commission soon after the wrongful death of his wife in 1998
with a total claim of Rs.77.7 crores against the appellant-
doctors and AMRI Hospital which was rejected and this Court
remanded this matter to the National Commission for
determination of the quantum of compensation with a specific
direction in the final sentence of judgment that “foreign
experts” may be examined through video conferencing.
5) Scientific calculation of loss of income: The National
Commission should have made scientific calculation
regarding the loss of income of the claimant. This
direction has been given by this Court in a number of
cases. Further, he has contended that the claimant moved
this Court for video conferencing. The claimant examined
Prof. John F. Burke, a U.S.A. based Economist of
international repute, in May-June, 2011. Prof John F. Burke
was also cross-examined by the appellant-doctors and the
AMRI Hospital. Prof. Burke scientifically calculated and
testified himself under direct as well as cross-examination
as to how he came to calculate the prospective loss of
income for a similarly situated person in U.S.A. as
Anuradha, the deceased and categorically stated that the
direct loss of income for Anuradha’s premature death would
amount to “5 million and 125 thousand dollars”. This loss
of income was calculated after deduction of 1/3rd of the
amount for her personal expenses. 1/3rd deduction of income
for personal expenses has also been recommended in a
judgment of this Court in the case of Sarla Verma (supra).
Prof. Burke has also explained how he calculated the loss
of income due to the premature death of Anuradha and
further testified that his calculation for loss of
Anuradha’s income was a “very conservative forecast” and
that to some other estimates, the damages for Anuradha’s
death could be “9 to 10 million dollars. While the loss of
income would be multi million dollars as direct loss for
wrongful death of Anuradha, it may appear as a fabulous
amount in the context of India. This is undoubtedly an
average and legitimate claim in the context of the instant
case. And further, it may be noted that far bigger amounts
of compensation are routinely awarded by the courts in
medical negligence cases in the U.S.A. In this regard this
Court also made very clear observation in Indian Medical
Association Vs. V.P. Shanta & Ors.(supra), that to deny a
legitimate claim or to restrict arbitrarily the size of an
award would amount to substantial injustice.
6) Loss of income of claimant:
The National Commission has ignored the loss of income of the
claimant though this Court has categorically stated while
remanding the case to the National Commission that pecuniary and
non-pecuniary losses and future losses “up to the date of trial”
must be considered for the quantum of compensation. The claimant
had incurred a huge amount of expenses in the course of the more
than 15 years long trial in the instant case. These expenses
include the enormous cost for legal expenses as well as expenses
for the numerous trips between India and the U.S.A. over the
past more than 12 years. In addition to that the claimant has
also suffered huge losses during this period, both direct loss
of income from his job in U.S.A. as well as indirect loss for
pain and intense mental agony for tenure denial and termination
of his employment at Ohio State University (OSU) which was a
direct result of the wrongful death of Anuradha in India as
would be evident from the judgment passed by the Court of Claims
in Ohio which was filed by the AMRI Hospital on July 18, 2011.
The claimant also submitted an affidavit as directed by the
National Commission in which the detailed description about the
loss that he suffered in his personal as well as professional
career in U.S.A. over the past 12 years for the wrongful death
of Anuradha, has been mentioned. Needless to say that these
additional damages and financial losses the claimant has
suffered since he filed the original complaint against the
appellant-doctors could not possibly be a part of the original
claim filed by him 15 years ago.
61. In view of the circumstances narrated above, the claimant has
referred a revised quantum of claim which also includes a detailed
break-up of the individual items of the total claim in proper
perspective under separate headings of pecuniary, non-pecuniary,
punitive and special damages. The individual items of claim have
also been justified with appropriate references and supporting
materials as needed. The total quantum of claim for the wrongful
death of the claimant’s wife now stands at Rs.97,56,07,000/-
including pecuniary damages of Rs.34,56,07,000/-, non pecuniary
damages of Rs.31,50,00,000/-, special damages of US $ 1,000,000/-
for loss of job in Ohio and punitive damages of US $ 1,000,000/.
This updated break-up of the total claim has been shown in the
claim-table referred to in the later part of the judgment. The
claimant respectfully submits that the National Commission should
have considered this total claim in conjunction with the affidavit
filed by him during the course of making final arguments. The
National Commission also should have taken into consideration the
legal principles laid down in the case of Nizam Institute (supra)
wherein this Court allowed the claim of compensation which was
substantially higher than the original claim that he initially
filed in the court. Further, the National Commission ought to have
taken into consideration the observations made in the remand order
passed by this Court while determining the quantum of compensation
and the legitimate expectation for the wrongful death of a patient
‘after factoring in the position and stature of the doctors
concerned as also the Hospital’. This Court also held in Malay
Kumar Ganguly’s case (supra) that AMRI is one of the best
Hospitals in Calcutta, and that the doctors were the best doctors
available. Therefore, the compensation in the instant case may be
enhanced in view of the specific observations made by this Court.
62. Appellant-doctors Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar
have attempted to claim in their respective appeals that they
cannot be penalized with compensation because they did not charge
any fee for treatment of the deceased. Such a claim has no legal
basis as in view of the categorical observations made by this
Court in Savita Garg Vs. Director, National Heart Institute[25]
and in Malay Kumar Ganguly’s case (supra) wherein this Court has
categorically stated that the aforesaid principle in Savita Garg’s
case applies to the present case also insofar as it answers the
contentions raised before us that the three senior doctors did not
charge any professional fees.
63. Further, it is contended by the claimant that from a moral and
ethical perspective, a doctor cannot escape liability for causing
death of a patient from medical negligence on the ground that he
did not charge any fee. If that was true, poor patients who are
sometimes treated for free and patients in many charitable
Hospitals would be killed with impunity by errant and reckless
doctors. It is urged that the National Commission ought to have
considered the claim made for prospective loss of income of the
appellant’s wife and has committed error in rejecting the same and
it has also rejected the amount of the pecuniary losses of this
claimant under separate headings which are mentioned in the table
referred to supra including expenses that were paid at the
direction of the National Commission, namely, expenses relating to
video-conferencing or payment for the Court Commissioners. Most
of these direct losses were suffered by the claimant as a result
of the wrongful death of his wife in the long quest for justice
over the past 15 years as a result of the wrongful death of his
wife. The National Commission did not provide any reason as to why
the said claims were denied to him, as per this Court’s decision
in Charan Singh Vs. Healing Touch Hospital[26].
64. It is further urged by the claimant that the National Commission,
in applying the multiplier method as provided in the Second
Schedule under Section 163 A of the Motor Vehicles Act, is
erroneous to calculate compensation in relation to death due to
medical negligence.
65. Further, the claimant has taken support from the following medical
negligence cases decided by this Court. It was contended by the
claimant that out of these cases not a single case was decided by
using the multiplier method, such as, Indian Medical Assn. Vs.
V.P. Shanta & Ors.(supra), Spring Meadows Hospital & Anr Vs.
Harjol Ahluwalia[27], Charan Singh Vs. Healing Touch Hospital and
Ors.(supra), J.J. Merchants & Ors. Vs. Srinath Chaturbedi (supra),
Savita Garg Vs. Director National Heart Institute (supra), State
of Punjab Vs. Shiv Ram & Ors.(supra), Samira Kohli Vs. Dr.
Prabha Manchanda & Anr.(supra), P.G. Institute of Medical Sciences
Vs. Jaspal Singh & Ors., (supra) Nizam Institute Vs. Prasant
Dhananka (supra) Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors.
(supra) and V. Kishan Rao Vs. Nikhil Superspeciality Hospital &
Anr. (supra).
66. In fact, the National Commission or any other consumer court in
India have never used the multiplier system to calculate adequate
compensation for death or injury caused due to medical negligence
except when the National Commission decided the claimant’s case
after it was remanded back by this Court. Reliance was placed
upon Sarla Verma’s case (supra) at paragraph 37, wherein the
principle laid down for determining compensation using multiplier
method does not apply even in accident cases under Section 166 of
the MV Act. In contrast to death from road or other accident, it
is urged that death or permanent injury to a patient caused from
medical negligence is undoubtedly a reprehensible act.
Compensation for death of a patient from medical negligence cannot
and should not be compensated simply by using the multiplier
method. In support of this contention he has placed reliance upon
the Nizam Institute’s case (supra) at paragraph 92, wherein the
Court has rejected the specific claim made by the guilty Hospital
that multiplier should be used to calculate compensation as this
Court has held that such a claim has absolutely no merit.
67. The multiplier method was provided for convenience and speedy
disposal of no fault motor accident cases. Therefore, obviously,
a “no fault” motor vehicle accident should not be compared with
the case of death from medical negligence under any condition. The
aforesaid approach in adopting the multiplier method to determine
the just compensation would be damaging for society for the reason
that the rules for using the multiplier method to the notional
income of only Rs.15,000/- per year would be taken as a
multiplicand. In case, the victim has no income then a multiplier
of 18 is the highest multiplier used under the provision of
Sections 163 A of the Motor Vehicles act read with the Second
Schedule. Therefore, if a child, housewife or other non-working
person fall victim to reckless medical treatment by wayward
doctors, the maximum pecuniary damages that the unfortunate victim
may collect would be only Rs.1.8 lakh. It is stated in view of the
aforesaid reasons that in today’s India, Hospitals, Nursing Homes
and doctors make lakhs and crores of rupees on a regular basis.
Under such scenario, allowing the multiplier method to be used to
determine compensation in medical negligence cases would not have
any deterrent effect on them for their medical negligence but in
contrast, this would encourage more incidents of medical
negligence in India bringing even greater danger for the society
at large.
68. It is further urged by the claimant that the National Commission
has failed to award any compensation for the intense pain and
suffering that the claimant’s wife had to suffer due to the
negligent treatment by doctors and AMRI Hospital but the National
Commission had made a paltry award equivalent to $ 20,000 for the
enormous and life-long pain, suffering, loss of companionship and
amenities that the unfortunate claimant has been put throughout
his life by the negligent act of the doctors and the AMRI
Hospital.
69. The claimant further contended that he is entitled to special
damages for losses that he suffered upto the date of trial as held
by this Court while remanding this matter in Malay Kumar Ganguly’s
case back to the National Commission. Thus, the claimant filed a
legitimate claim for special damages for the losses sustained by
him in the course of 15 years long trial including the loss of his
employment at the Ohio State University and resultant position of
bankruptcy and home foreclosure. The National Commission did not
provide any reason for rejecting the said claim which is in
violation of the observations made in Charan Singh’s case (supra).
70. Further, this Court has affirmed the principle regarding
determination of just compensation in the following cases that
inflation should be considered while deciding quantum of
compensation: Reshma Kumari & Ors. Vs. Madan Mohan & Anr. (supra),
Govind Yadav Vs. New Indian Insurance Co. Ltd. (supra)and Ibrahim
Vs. Raju & Ors. (supra).
71. Using the cost of inflation index (in short C.I.I.) as published
by the Govt. of India, the original claim of Rs.77.7 crores made
by the claimant in 1998 would be equivalent to Rs.188.6 crores
as of 2012-2013. The mathematical calculation in this regard has
been presented in the short note submitted by the claimant. Thus,
the compensation payable for the wrongful death of claimant’s wife
would stand today at Rs.188.6 crores and not Rs.77.7 crores as
originally claimed by him in 1998 without taking into
consideration the various relevant aspects referred to supra and
proper guidance and advice in the matter.
72. Further, it is urged by the claimant that he is entitled to
interest on the compensation at reasonable rate as the National
Commission has awarded interest @ 12% but only in case of default
by the appellant- doctors and the AMRI Hospital to pay the
compensation within 8 weeks after the judgment which was delivered
on October 21, 2011. That means, the National Commission did not
grant any interest for the last 15 years long period on the
compensation awarded in favour of the claimant as this case was
pending before the judicial system in India for which the claimant
is not responsible. The said act is contrary to the decision of
this Court in Thazhathe Purayil Sarabi & Ors. Vs. Union of India &
Anr.[28].
73. He has also placed reliance upon in justification of his claim of
exemplary or punitive damages. A claim of US $ 1,000,000 as
punitive damages has been made against the AMRI Hospital and Dr.
Sukumar Mukherjee as provided in the table. In support of this
contention he placed strong reliance on Landgraf Vs. USI Film
Prods[29] and this Court’s decision in Destruction of Public and
Private Properties Vs. State of A.P.[30], wherein it is held that
punitive or exemplary damages have been justifiably awarded as a
deterrent in the future for outrageous and reprehensible act on
the part of the accused. In fact punitive damages are routinely
awarded in medical negligence cases in western countries for
reckless and reprehensible act by the doctors or Hospitals in
order to send a deterrent message to other members of the medical
community. In a similar case, the Court of Appeals in South
Carolina in Welch Vs. Epstein[31] held that a neurosurgeon is
guilty for reckless therapy after he used a drug in clear
disregard to the warning given by the drug manufacturer causing
the death of a patient. This Court has categorically held that the
injection Depomedrol used at the rate of 80 mg twice daily by Dr.
Sukumar Mukherjee was in clear violation of the manufacturer’s
warning and recommendation and admittedly, the instruction
regarding direction for use of the medicine had not been followed
in the instant case. This Court has also made it clear that the
excessive use of the medicine by the doctor was out of sheer
ignorance of basic hazards relating to the use of steroids as also
lack of judgment. No doctor has the right to use the drug beyond
the maximum recommended dose.
74. The Supreme Court of Ohio in Dardinger Vs. Anthem Blue Cross
Shield et al[32]. had judged that since $ 49 million punitive
damages was excessive it still awarded US $19 million in a case
of medical negligence. The aforesaid judgments from the U.S.A.
clearly show that punitive damages usually are many times bigger
than the compensatory damages. A nominal amount of US $ 1,000,000
has been claimed as punitive damages in the instant case to send a
deterrent message to the reckless doctors in India keeping in view
the major difference in the standard of living between India and
U.S.A. In fact, this Court in a well-known case of Lata Wadhwa
(supra) in which a number of children and women died from an
accidental fire, awarded punitive damages to send a message
against the unsafe condition kept by some greedy organizations or
companies in the common public places in India.
75. It was further contended by the claimant that this Court remanded
the case back to the National Commission for determination of the
quantum of compensation only but the National Commission in clear
disregard to the direction issued by this Court, has re-examined
the issues involved for medical negligence. Further, in Malay
Kumar Ganguly’s case, this Court has rejected the assertion made
by the doctors of the Hospital that the claimant had interfered
with the treatment of his wife or that other doctors and/ or the
Hospital i.e. Breach Candy Hospital in Bombay should also be made
a party in this case.
76. It is further contended by the claimant that the National
Commission has wrongfully apportioned the total amount of
compensation by losing sight of the observations made by this
Court while remanding the case back to it for determination of the
quantum of compensation. This Court did not make any observation
as to how the compensation should be divided, as awarded by the
National Commission. Except for the appellant-Dr. Sukumar
Mukherjee who was imposed with a cost of Rs.5,00,000/- this Court
did not impose cost against any other doctors even though the
Court found other appellant-doctors also guilty for medical
negligence.
77. It is further contended that the National Commission on 31st
March, 2010 in S.P. Aggarwal Vs. Sanjay Gandhi P.G. Institute (FA
No.478/2005) held that “in view of the fact that several doctors
and paramedical staff of the appellant institute were involved, it
is the appellant institute which has to be held vicariously liable
to compensate the complainant to the above extent.”
78. It is further urged that in Nizam Institute’s case (supra) this
Court imposed the entire compensation against the Hospital despite
holding several doctors responsible for causing permanent injury
to the patient. While remanding back the issue of quantifying the
quantum of compensation to the National Commission, this Court has
observed that the standard of medical nursing care at the AMRI
Hospital was abysmal. It is further submitted that 80% of the
total compensation should be imposed against the AMRI Hospital and
20% against Dr. Sukumar Mukherjee. The claimant has claimed the
damages as under :-
|PECUNIARY DAMAGES: |
|A Cost associated with the victim, Anuradha Saha |
|1 |Loss of prospective/future earning upto to|Rs.9,25,00,000/- |
| |70 years | |
|2 |Loss of US Social Security income up to |Rs.1,44,00,000/- |
| |82 years | |
|3 |Paid for treatment at AMRI/Breach Candy |Rs.12,00,000/- |
| |Hospital | |
|4 |Paid for chartered flight to transfer |Rs. 9,00,000/- |
| |Anuradha | |
|5 |Travel/hotel/other expenses during |Rs. 7,00,000/- |
| |Anuradha’s treatment in Mumbai/ Kolkata | |
| |in 1998 | |
|6 |Paid for court proceedings including video|Rs.11,57,000/- |
| |conferencing from U.S.A. | |
|B Cost associated with Anuradha’s husband, Dr. Kunal Saha |
|1 |Loss of income for missed work |Rs.1,12,50,000/- |
|2 |Travel expenses over the past 12 years |Rs.70,00,000/- |
|C Legal expenses |
|1 |Advocate fees |Rs.1,50,00,000/- |
|2 |other legal expenses |Rs.15,00,000/- |
|Total pecuniary damages Rs.34,56,07,000/- |
| Non-Pecuniary Special Damages |
|1 |Loss of companionship and life amenities |Rs.13,50,00,000/- |
|2 |Emotional distress, pain and suffering for|Rs.50,00,000/- |
| |husband | |
|3 |Pain/suffering endured by the victim |Rs.4,50,00,000/- |
| |during therapy | |
|Total non pecuniary damages Rs.31,50,00,000/- |
|D |PUNITIVE/EXEMPLARY DAMAGES |Rs.13,50,00,000/- |
|E |SPECIAL DAMAGES |Rs.18,00,00,000/- |
| Total Rs.97,56,07,000/- |
Therefore, the claimant has prayed for allowing his appeal by awarding
just and reasonable compensation under various heads as claimed by
him.
79. On the basis of the rival legal factual and contentions urged on
behalf of the respective doctor-appellants, Hospital and the
claimant, the following points would arise for consideration of
this Court:-
1) Whether the claim of the claimant for enhancement of
compensation in his appeal is justified. If it is so, for
what compensation he is entitled to?
2) While making additional claim by way of affidavit before
the National Commission when amending the claim petition,
whether the claimant is entitled for compensation on the
enhanced claim preferred before the National Commission?
3(a) Whether the claimant seeking to amend the claim of
compensation under certain heads in the original claim petition
has forfeited his right of claim under Order II Rule 2 of CPC as
pleaded by the AMRI Hospital?
3(b) Whether the claimant is justified in claiming additional
amount for compensation under different heads without following
the procedure contemplated under the provisions of the Consumer
Protection Act and the Rules?
4. Whether the National Commission is justified in adopting
the multiplier method to determine the compensation and to
award the compensation in favour of the claimant?
5. Whether the claimant is entitled to pecuniary damages under
the heads of loss of employment, loss of his property and his
traveling expenses from U.S.A. to India to conduct the
proceedings in his claim petition?
6. Whether the claimant is entitled to the interest on the
compensation that would be awarded?
7. Whether the compensation awarded in the impugned judgment
and the apportionment of the compensation amount fastened upon
the doctors and the hospital requires interference and whether
the claimant is liable for contributory negligence and deduction
of compensation under this head?
8. To what Order and Award the claimant is entitled to in these
appeals?
80. It would be convenient for us to take up first the Civil Appeal
No. 2866 of 2012 filed by Dr. Kunal Saha, the claimant, as he had
sought for enhancement of compensation. If we answer his claim
then the other issues that would arise in the connected appeals
filed by the doctors and the AMRI Hospital can be disposed of
later on. Therefore, the points that would arise for
consideration in these appeals by these Court have been framed in
the composite. The same are taken up in relation to the claimants’
case in-seriatum and are answered by recording the following
reasons:
Answer to Point nos. 1, 2 and 3
81. Point Nos. 1, 2 and 3 are taken up together and answered since
they are inter related.
The claim for enhancement of compensation by the claimant in his
appeal is justified for the following reasons:
The National Commission has rejected the claim of the claimant
for “inflation” made by him without assigning any reason whatsoever.
It is an undisputed fact that the claim of the complainant has been
pending before the National Commission and this Court for the last 15
years. The value of money that was claimed in 1998 has been devalued
to a great extent. This Court in various following cases has
repeatedly affirmed that inflation of money should be considered while
deciding the quantum of compensation:-
In Reshma Kumari and Ors. Vs. Madan Mohan and Anr. (supra), this
Court at para 47 has dealt with this aspect as under:
“47.One of the incidental issues which has also to be taken
into consideration is inflation. Is the practice of taking
inflation into consideration wholly incorrect? Unfortunately,
unlike other developed countries in India there has been no
scientific study. It is expected that with the rising inflation
the rate of interest would go up. In India it does not happen.
It, therefore, may be a relevant factor which may be taken into
consideration for determining the actual ground reality. No
hard-and-fast rule, however, can be laid down therefor.”
In Govind Yadav Vs. New India Insurance Company Ltd.(supra),
this court at para 15 observed as under which got re-iterated at
paragraph 13 of Ibrahim Vs. Raju & Ors. (supra):-
“15. In Reshma Kumari v. Madan Mohan this Court reiterated that
the compensation awarded under the Act should be just and also
identified the factors which should be kept in mind while
determining the amount of compensation. The relevant portions of
the judgment are extracted below: (SCC pp. 431-32 & 440-41,
paras 26-27 & 46-47)
‘26. The compensation which is required to be determined must be
just. While the claimants are required to be compensated for the
loss of their dependency, the same should not be considered to
be a windfall. Unjust enrichment should be discouraged. This
Court cannot also lose sight of the fact that in given cases, as
for example death of the only son to a mother, she can never be
compensated in monetary terms.
27. The question as to the methodology required to be applied
for determination of compensation as regards prospective loss of
future earnings, however, as far as possible should be based on
certain principles. A person may have a bright future prospect;
he might have become eligible to promotion immediately; there
might have been chances of an immediate pay revision, whereas in
another (sic situation) the nature of employment was such that
he might not have continued in service; his chance of promotion,
having regard to the nature of employment may be distant or
remote. It is, therefore, difficult for any court to lay down
rigid tests which should be applied in all situations. There are
divergent views. In some cases it has been suggested that some
sort of hypotheses or guesswork may be inevitable. That may be
so.’
* * *
46. In the Indian context several other factors should be taken
into consideration including education of the dependants and the
nature of job. In the wake of changed societal conditions and
global scenario, future prospects may have to be taken into
consideration not only having regard to the status of the
employee, his educational qualification; his past performance
but also other relevant factors, namely, the higher salaries and
perks which are being offered by the private companies these
days. In fact while determining the multiplicand this Court in
Oriental Insurance Co. Ltd. v. Jashuben held that even dearness
allowance and perks with regard thereto from which the family
would have derived monthly benefit, must be taken into
consideration.
47. One of the incidental issues which has also to be taken into
consideration is inflation. Is the practice of taking inflation
into consideration wholly incorrect? Unfortunately, unlike other
developed countries in India there has been no scientific study.
It is expected that with the rising inflation the rate of
interest would go up. In India it does not happen. It,
therefore, may be a relevant factor which may be taken into
consideration for determining the actual ground reality. No hard-
and-fast rule, however, can be laid down therefor.”
82. The C.I.I. is determined by the Finance Ministry of Union of India
every year in order to appreciate the level of devaluation of
money each year. Using the C.I.I. as published by the Government
of India, the original claim of Rs.77.7 crores preferred by the
claimant in 1998 would be equivalent to Rs.188.6 crores as of 2013
and, therefore the enhanced claim preferred by the claimant before
the National Commission and before this Court is legally
justifiable as this Court is required to determine the just, fair
and reasonable compensation. Therefore, the contention urged by
the appellant-doctors and the AMRI Hospital that in the absence of
pleadings in the claim petition before the National Commission and
also in the light of the incident that the subsequent application
filed by the claimant seeking for amendment to the claim in the
prayer of the complainant being rejected, the additional claim
made by the claimant cannot be examined for grant of compensation
under different heads is wholly unsustainable in law in view of
the decisions rendered by this Court in the aforesaid cases.
Therefore, this Court is required to consider the relevant aspect
of the matter namely, that there has been steady inflation which
should have been considered over period of 15 years and that money
has been devalued greatly. Therefore, the decision of the National
Commission in confining the grant of compensation to the original
claim of Rs.77.7 crores preferred by the claimant under different
heads and awarding meager compensation under the different heads
in the impugned judgment, is wholly unsustainable in law as the
same is contrary to the legal principles laid down by this Court
in catena of cases referred to supra. We, therefore, allow the
claim of the claimant on enhancement of compensation to the extent
to be directed by this Court in the following paragraphs.
83. Besides enhancement of compensation, the claimant has sought for
additional compensation of about Rs.20 crores in addition to his
initial claim made in 2011 to include the economic loss that he
had suffered due to loss of his employment, home foreclosure and
bankruptcy in U.S.A which would have never happened but for the
wrongful death of his wife. The claimant has placed reliance on
the fundamental principle to be followed by the Tribunals,
District Consumer Forum, State Consumer Forum, and the National
Commission and the courts for awarding ‘just compensation’. In
support of this contention, he has also strongly placed reliance
upon the observations made at para 170 in the Malay Kumar
Ganguly’s case referred to supra wherein this Court has made
observations as thus:
“170. Indisputably, grant of compensation involving an accident
is within the realm of law of torts. It is based on the
principle of restitutio in integrum. The said principle provides
that a person entitled to damages should, as nearly as possible,
get that sum of money which would put him in the same position
as he would have been if he had not sustained the wrong. (See
Livingstone v. Rawyards Coal Co.)”
The claimant made a claim under specific heads in great detail in
justification for each one of the claim made by him. The National
Commission, despite taking judicial notice of the claim made by the
claimant in its judgment, has rejected the entire claim solely on the
ground that the additional claim was not pleaded earlier, therefore,
none of the claims made by him can be considered. The rejection of
the additional claims by the National Commission without consideration
on the assumption that the claims made by the claimant before the
National Commission cannot be changed or modified without pleadings
under any condition is contrary to the decisions of this Court
rendered in catena of cases. In support of his additional claim, the
claimant places reliance upon such decisions as mentioned hereunder:
(a) In Ningamma’s case (supra), this Court has observed at para
34 which reads thus:
“34. Undoubtedly, Section 166 of the MVA deals with “just
compensation” and even if in the pleadings no specific claim
was made under Section 166 of the MVA, in our considered
opinion a party should not be deprived from getting “just
compensation” in case the claimant is able to make out a case
under any provision of law. Needless to say, the MVA is
beneficial and welfare legislation. In fact, the court is duty-
bound and entitled to award “just compensation” irrespective of
the fact whether any plea in that behalf was raised by the
claimant or not.
(b) In Malay Kumar Ganguly’s case, this Court by placing reliance
on the decision of this Court in R.D. Hattangadi Vs. Pest Control
(India) (P) Ltd.,(supra) made observation while remanding back the
matter to National Commission solely for the determination of quantum
of compensation, that compensation should include “loss of earning of
profit up to the date of trial” and that it may also include any loss
“already suffered or is likely to be suffered in future”. Rightly,
the claimant has contended that when original complaint was filed soon
after the death of his wife in 1998, it would be impossible for him to
file a claim for “just compensation” for the pain that the claimant
suffered in the course of the 15 years long trial.
c) In Nizam Institute’s case supra, the complainant had sought
a compensation of Rs.4.61 crores before the National Commission but he
enhanced his claim to Rs 7.50 crores when the matter came up before
this Court. In response to the claim, this Court held as under:
“82. The complainant, who has argued his own case, has submitted
written submissions now claiming about Rs 7.50 crores as
compensation under various heads. He has, in addition sought a
direction that a further sum of Rs 2 crores be set aside to be
used by him should some developments beneficial to him in the
medical field take place. Some of the claims are untenable and
we have no hesitation in rejecting them. We, however, find that
the claim with respect to some of the other items need to be
allowed or enhanced in view of the peculiar facts of the case.”
d) In Oriental Insurance Company Ltd. Vs. Jashuben & Ors.
(supra), the initial claim was for Rs.12 lakhs which was subsequently
raised to Rs.25 lakhs. The claim was partly allowed by this Court.
e) In R.D. Hattangadi Vs. Pest Control (India) (supra) the
appellant made an initial compensation claim of Rs.4 lakhs but later
on enhanced the claim to Rs.35 lakhs by this Court.
f) In Raj Rani & Ors. Vs. Oriental Insurance Company Ltd. &
Ors.,(supra) this Court has observed that there is no restriction that
compensation could be awarded only up to the amount claimed by the
claimant. The relevant paragraph reads as under:
“14. In Nagappa v. Gurudayal Singh this Court has held as
under: (SCC p. 279, para 7)
“7. Firstly, under the provisions of the Motor Vehicles Act,
1988, (hereinafter referred to as ‘the MV Act’) there is no
restriction that compensation could be awarded only up to the
amount claimed by the claimant. In an appropriate case, where
from the evidence brought on record if the Tribunal/court
considers that the claimant is entitled to get more
compensation than claimed, the Tribunal may pass such award.
The only embargo is—it should be ‘just’ compensation, that is
to say, it should be neither arbitrary, fanciful nor
unjustifiable from the evidence. This would be clear by
reference to the relevant provisions of the MV Act.”
g) In Laxman @ Laxaman Mourya Vs. Divisional Manager,
Oriental Insurance Co. Ltd. & Anr.,(supra) this Court awarded more
compensation than what was claimed by the claimant after making the
following categorical observations:-
“In the absence of any bar in the Act, the Tribunal and for that
reason, any competent court, is entitled to award higher
compensation to the victim of an accident”
h) In Ibrahim Vs. Raju & Ors.,(supra) this Court awarded
double the compensation sought for by the complainant after discussion
of host of previous judgments.
84. In view of the aforesaid decisions of this Court referred to
supra, wherein this Court has awarded ‘just compensation’ more than
what was claimed by the claimants initially and therefore, the
contention urged by learned senior counsel and other counsel on behalf
of the appellant-doctors and the AMRI Hospital that the additional
claim made by the claimant was rightly not considered by the National
Commission for the reason that the same is not supported by pleadings
by filing an application to amend the same regarding the quantum of
compensation and the same could not have been amended as it is barred
by the limitation provided under Section 23 of the Consumer Protection
Act, 1986 and the claimant is also not entitled to seek enhanced
compensation in view of Order II Rule 2 of the CPC as he had
restricted his claim at Rs.77,07,45,000/-, is not sustainable in law.
The claimant has appropriately placed reliance upon the decisions of
this Court in justification of his additional claim and the finding of
fact on the basis of which the National Commission rejected the claim
is based on untenable reasons. We have to reject the contention urged
by the learned senior counsel and other counsel on behalf of the
appellant-doctors and the AMRI Hospital as it is wholly untenable in
law and is contrary to the aforesaid decisions of this Court referred
to supra. We have to accept the claim of the claimant as it is
supported by the decisions of this Court and the same is well founded
in law. It is the duty of the Tribunals, Commissions and the Courts to
consider relevant facts and evidence in respect of facts and
circumstances of each and every case for awarding just and reasonable
compensation. Therefore, we are of the view that the claimant is
entitled for enhanced compensation under certain items made by the
claimant in additional claim preferred by him before the National
Commission. We have to keep in view the fact that this Court while
remanding the case back to the National Commission only for the
purpose of determination of quantum of compensation also made
categorical observation that:
“172. Loss of wife to a husband may always be truly compensated
by way of mandatory compensation. How one would do it has been
baffling the court for a long time. For compensating a husband
for loss of his wife, therefore, the courts consider the loss of
income to the family. It may not be difficult to do when she had
been earning. Even otherwise a wife’s contribution to the family
in terms of money can always be worked out. Every housewife
makes a contribution to his family. It is capable of being
measured on monetary terms although emotional aspect of it
cannot be. It depends upon her educational qualification, her
own upbringing, status, husband’s income, etc.”
[Emphasis laid by this Court]
In this regard, this Court has also expressed similar view that
status, future prospects and educational qualification of the deceased
must be judged for deciding adequate, just and fair compensation as in
the case of R.K. Malik & Anr. (supra).
85. Further, it is an undisputed fact that the victim was a graduate
in psychology from a highly prestigious Ivy League school in New York.
She had a brilliant future ahead of her. However, the National
Commission has calculated the entire compensation and prospective loss
of income solely based on a pay receipt showing a paltry income of
only $30,000 per year which she was earning as a graduate student.
Therefore, the National Commission has committed grave error in taking
that figure to determine compensation under the head of loss of
dependency and the same is contrary to the observations made by this
Court in the case of Arvind Kumar Mishra Vs. New India Assurance which
reads as under:
“14. On completion of Bachelor of Engineering (Mechanical) from
the prestigious institute like BIT, it can be reasonably assumed
that he would have got a good job. The appellant has stated in
his evidence that in the campus interview he was selected by
Tata as well as Reliance Industries and was offered pay package
of Rs. 3,50,000 per annum. Even if that is not accepted for want
of any evidence in support thereof, there would not have been
any difficulty for him in getting some decent job in the private
sector. Had he decided to join government service and got
selected, he would have been put in the pay scale for Assistant
Engineer and would have at least earned Rs. 60,000 per annum.
Wherever he joined, he had a fair chance of some promotion and
remote chance of some high position. But uncertainties of life
cannot be ignored taking relevant factors into consideration. In
our opinion, it is fair and reasonable to assess his future
earnings at Rs. 60,000 per annum taking the salary and
allowances payable to an Assistant Engineer in public employment
as the basis.”
86. The claimant further placed reliance upon the decisions of this
Court in Govind Yadav Vs. New India Insurance Co. Ltd.(supra), Sri
Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance (supra),
Ibrahim Vs. Raju & Ors., Laxman @ Laxman Mourya Vs. Divisional
Manager, Oriental Insurance Co. Ltd. (supra) and Kavita Vs. Dipak &
Ors (supra) in support of his additional claim on loss of future
prospect of income. However, these decisions do not have any relevance
to the facts and circumstances of the present case. Moreover, these
cases mention about ‘future loss of income’ and not ‘future prospects
of income’ in terms of the potential of the victim and we are inclined
to distinguish between the two.
87. We place reliance upon the decisions of this Court in Arvind Kumar
Mishra’s case (supra) and also in Susamma Thomas (supra), wherein
this Court held thus:
“24. In Susamma Thomas, this Court increased the income by
nearly 100%, in Sarla Dixit the income was increased only by 50%
and in Abati Bezbaruah the income was increased by a mere 7%. In
view of the imponderables and uncertainties, we are in favour of
adopting as a rule of thumb, an addition of 50% of actual salary
to the actual salary income of the deceased towards future
prospects, where the deceased had a permanent job and was below
40 years. (Where the annual income is in the taxable range, the
words “actual salary” should be read as “actual salary less
tax”). The addition should be only 30% if the age of the
deceased was 40 to 50 years. There should be no addition, where
the age of the deceased is more than 50 years. Though the
evidence may indicate a different percentage of increase, it is
necessary to standardise the addition to avoid different
yardsticks being applied or different methods of calculation
being adopted. Where the deceased was self-employed or was on a
fixed salary (without provision for annual increments, etc.),
the courts will usually take only the actual income at the time
of death. A departure therefrom should be made only in rare and
exceptional cases involving special circumstances.”
88. Further, to hold that the claimant is entitled to enhanced
compensation under the heading of loss of future prospects of income
of the victim, this Court in Santosh Devi Vs. National Insurance
Company and Ors. (supra), held as under:
“18. Therefore, we do not think that while making the
observations in the last three lines of para 24 of Sarla Verma
judgment, the Court had intended to lay down an absolute rule
that there will be no addition in the income of a person who is
self-employed or who is paid fixed wages. Rather, it would be
reasonable to say that a person who is self-employed or is
engaged on fixed wages will also get 30% increase in his total
income over a period of time and if he/she becomes the victim of
an accident then the same formula deserves to be applied for
calculating the amount of compensation.”
89. In view of the aforesaid observations and law laid down by this
Court with regard to the approach by the Commission in awarding just
and reasonable compensation taking into consideration the future
prospects of the deceased even in the absence of any expert’s opinion
must have been reasonably judged based on the income of the deceased
and her future potential in U.S.A. However, in the present case the
calculation of the future prospect of income of the deceased has also
been scientifically done by economic expert Prof. John F. Burke. In
this regard, the learned counsel for the other appellant-doctors and
the Hospital have contended that without amending the claim petition
the enhanced claim filed before the National Commission or an
application filed in the appeal by the claimant cannot be accepted by
this Court. In support of this contention, they have placed reliance
upon the various provisions of the Consumer Protection Act and also
decisions of this Court which have been adverted to in their
submissions recorded in this judgment. The claimant strongly
contended by placing reliance upon the additional claim by way of
affidavit filed before the National Commission which was sought to be
justified with reference to the liberty given by this Court in the
earlier proceedings which arose when the application filed by the
claimant was rejected and this Court has permitted him to file an
affidavit before the National Commission and the same has been done.
The ground urged by the claimant is that the National Commission has
not considered the entire claim including the additional claim made
before it. He has placed strong reliance upon V.P. Shantha’s case
(supra) in support of his contention wherein it was held as under:
“53. Dealing with the present state of medical negligence cases
in the United Kingdom it has been observed:
“The legal system, then, is faced with the classic problem of
doing justice to both parties. The fears of the medical
profession must be taken into account while the legitimate
claims of the patient cannot be ignored.
Medical negligence apart, in practice, the courts are
increasingly reluctant to interfere in clinical matters. What
was once perceived as a legal threat to medicine has disappeared
a decade later. While the court will accept the absolute right
of a patient to refuse treatment, they will, at the same time,
refuse to dictate to doctors what treatment they should give.
Indeed, the fear could be that, if anything, the pendulum has
swung too far in favour of therapeutic immunity. (p. 16)
It would be a mistake to think of doctors and hospitals as easy
targets for the dissatisfied patient. It is still very difficult
to raise an action of medical negligence in Britain; some, such
as the Association of the Victims of Medical Accidents, would
say that it is unacceptably difficult. Not only are there
practical difficulties in linking the plaintiff’s injury to
medical treatment, but the standard of care in medical
negligence cases is still effectively defined by the profession
itself. All these factors, together with the sheer expense of
bringing legal action and the denial of legal aid to all but the
poorest, operate to inhibit medical litigation in a way in which
the American system, with its contingency fees and its
sympathetic juries, does not.
It is difficult to single out any one cause for what increase
there has been in the volume of medical negligence actions in
the United Kingdom. A common explanation is that there are,
quite simply, more medical accidents occurring — whether this be
due to increased pressure on hospital facilities, to falling
standards of professional competence or, more probably, to the
ever-increasing complexity of therapeutic and diagnostic
methods.” (p. 191)
A patient who has been injured by an act of medical negligence
has suffered in a way which is recognised by the law — and by
the public at large — as deserving compensation. This loss may
be continuing and what may seem like an unduly large award may
be little more than that sum which is required to compensate him
for such matters as loss of future earnings and the future cost
of medical or nursing care. To deny a legitimate claim or to
restrict arbitrarily the size of an award would amount to
substantial injustice. After all, there is no difference in
legal theory between the plaintiff injured through medical
negligence and the plaintiff injured in an industrial or motor
accident.” (pp. 192-93)
(Mason’s Law and Medical Ethics, 4th Edn.)”
[Emphasis laid by this
Court]
90. He has also placed reliance upon the Nizam Institute of Medical
Sciences’s case referred to supra in support of his submission that if
a case is made out, then the Court must not be chary of awarding
adequate compensation. The relevant paragraph reads as under:
“88. We must emphasise that the court has to strike a balance
between the inflated and unreasonable demands of a victim and
the equally untenable claim of the opposite party saying that
nothing is payable. Sympathy for the victim does not, and should
not, come in the way of making a correct assessment, but if a
case is made out, the court must not be chary of awarding
adequate compensation. The “adequate compensation” that we speak
of, must to some extent, be a rule of thumb measure, and as a
balance has to be struck, it would be difficult to satisfy all
the parties concerned.”
91. He has further rightly contended that with respect to the
fundamental principle for awarding just and reasonable compensation,
this Court in Malay Kumar Ganguly’s case (supra) has categorically
stated while remanding this case back to the National Commission that
the principle for just and reasonable compensation is based on
‘restitutio in integrum’ that is, the claimant must receive sum of
money which would put him in the same position as he would have been
if he had not sustained the wrong.
92. Further, he has placed reliance upon the judgment of this Court in
the case of Ningamma’s case (supra) in support of the proposition of
law that the Court is duty-bound and entitled to award “just
compensation” irrespective of the fact whether any plea in that behalf
was raised by the claimant or not. The relevant paragraph reads as
under:
“34. Undoubtedly, Section 166 of the MVA deals with “just
compensation” and even if in the pleadings no specific claim was
made under Section 166 of the MVA, in our considered opinion a
party should not be deprived from getting “just compensation” in
case the claimant is able to make out a case under any provision
of law. Needless to say, the MVA is beneficial and welfare
legislation. In fact, the court is duty-bound and entitled to
award “just compensation” irrespective of the fact whether any
plea in that behalf was raised by the claimant or not.”
93. He has also rightly placed reliance upon observations made in
Malay Kumar Ganguly’s case referred to supra wherein this Court
has held the appellant doctors guilty of causing death of
claimant’s wife while remanding the matter back to the National
Commission only for determination of quantum of compensation for
medical negligence. This Court has further observed that
compensation should include “loss of earning of profit up to the
date of trial” and that it may also include any loss “already
suffered or likely to be suffered in future”. The claimant has
also rightly submitted that when the original complaint was filed
soon after the death of his wife in 1998, it would be impossible
to file a claim for “just compensation”. The claimant has suffered
in the course of the 15 years long trial. In support of his
contention he placed reliance on some other cases also where more
compensation was awarded than what was claimed, such as Oriental
Insurance Company Ltd. Vs. Jashuben & Ors., R.D. Hattangadi ,
Raj Rani & Ors, Laxman @ Laxaman Mourya all cases referred to
supra. Therefore, the relevant paragraphs from the said judgments
in-seriatum extracted above show that this Court has got the power
under Article 136 of the Constitution and the duty to award just
and reasonable compensation to do complete justice to the affected
claimant.
In view of the aforesaid reasons stated by us, it is wholly
untenable in law with regard to the legal contentions urged on behalf
of the AMRI Hospital and the doctors that without there being an
amendment to the claim petition, the claimant is not entitled to seek
the additional claims by way of affidavit, the claim is barred by
limitation and the same has not been rightly accepted by the National
Commission.
94. Also, in view of the above reasoning the contention that the
claimant has waived his right to claim more compensation in view
of the Order II Rule 2 of CPC as pleaded by the AMRI Hospital and
the appellant-doctors is also held to be wholly unsustainable in
law. The claimant is justified in claiming additional claim for
determining just and reasonable compensation under different
heads. Accordingly, the point Nos. 1, 2, and 3 are answered in
favour of the claimant and against the appellant-doctors and the
Hospital.
Answer to point no. 4
95. With regard to point no. 4, the National Commission has used the
“multiplier” method under Section 163A read with the second schedule of
the Motor Vehicles Act to determine the quantum of compensation in
favour of the claimant applying the multiplier method as has been laid
down by this Court in Sarla Verma’s case(supra). Consequently, it has
taken up multiplier of 15 in the present case to quantify the
compensation under the loss of dependency of the claimant. It is urged
by the claimant that use of multiplier system for determining
compensation for medical negligence cases involving death of his wife
is grossly erroneous in law. The claimant has rightly placed reliance
upon the cases of this Court such as, Indian Medical Assn. Vs. V.P.
Shanta & Ors.(supra), Spring Meadows Hospital & Anr. Vs. Harjol
Ahluwalia[33], Charan Singh Vs. Healing Touch Hospital and
Ors.(supra), J.J. Merchants & Ors. Vs. Srinath Chaturbedi (supra),
Savita Garg Vs. Director National Heart Institute (supra), State of
Punjab Vs. Shiv Ram & Ors.(supra), Samira Kholi Vs. Dr. Prabha
Manchanda & Anr.(supra), P.G. Institute of Medical Sciences Vs. Jaspal
Singh & Ors., (supra) Nizam Institute Vs. Prasant Dhananka (supra)
Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors. (supra) and V. Kishan
Rao Vs. Nikhil Superspeciality Hospital & Anr. (supra) to contend that
not a single case was decided by using the multiplier method.
In support of this contention, he has further argued that in the
three judge Bench decision in the case of Nizam Institute’s case
(supra), this Court has rejected the use of multiplier system to
calculate the quantum of compensation. The relevant paragraph is
quoted hereunder:
“92. Mr Tandale, the learned counsel for the respondent has,
further submitted that the proper method for determining
compensation would be the multiplier method. We find absolutely
no merit in this plea. The kind of damage that the complainant
has suffered, the expenditure that he has incurred and is likely
to incur in the future and the possibility that his rise in his
chosen field would now be restricted, are matters which cannot
be taken care of under the multiplier method.”
[Emphasis laid by this Court]
He has further urged that the ‘multiplier’ method as provided
in the second Schedule to Section 163-A of the M.V.Act which provision
along with the Second Schedule was inserted to the Act by way of
Amendment in 1994, was meant for speedy disposal of ‘no fault’ motor
accident claim cases. Hence, the present case of gross medical
negligence by the appellant-doctors and the Hospital cannot be
compared with ‘no fault’ motor accident claim cases.
96. The appellant Dr. Balram Prasad on the other hand relied upon
the decision in United India Insurance Co. Ltd. Vs. Patricia Jean
Mahajan (supra) and contended that multiplier method is a standard
method of determining the quantum of compensation in India. The
relevant paragraphs read as under:
“20. The court cannot be totally oblivious to the realities. The
Second Schedule while prescribing the multiplier, had maximum
income of Rs 40,000 p.a. in mind, but it is considered to be a
safe guide for applying the prescribed multiplier in cases of
higher income also but in cases where the gap in income is so
wide as in the present case income is 2,26,297 dollars, in such
a situation, it cannot be said that some deviation in the
multiplier would be impermissible. Therefore, a deviation from
applying the multiplier as provided in the Second Schedule may
have to be made in this case. Apart from factors indicated
earlier the amount of multiplicand also becomes a factor to be
taken into account which in this case comes to 2,26,297 dollars,
that is to say an amount of around Rs 68 lakhs per annum by
converting it at the rate of Rs 30. By Indian standards it is
certainly a high amount. Therefore, for the purposes of fair
compensation, a lesser multiplier can be applied to a heavy
amount of multiplicand. A deviation would be reasonably
permissible in the figure of multiplier even according to the
observations made in the case of Susamma Thomas where a specific
example was given about a person dying at the age of 45 leaving
no heirs being a bachelor except his parents.
XXX XXX XXX
22. We therefore, hold that ordinarily while awarding
compensation, the provisions contained in the Second Schedule
may be taken as a guide including the multiplier, but there may
arise some cases, as the one in hand, which may fall in the
category having special features or facts calling for deviation
from the multiplier usually applicable.”
97. It is further urged by the learned senior counsel Mr. Vijay
Hansaria for the appellant-AMRI Hospital relying on Sarla Verma’s case
(supra) that the multiplier method has enabled the courts to bring
about consistency in determining the ‘loss of dependency’ more
particularly in the death of victims of negligence. The relevant
paragraph reads as under:
“14. The lack of uniformity and consistency in awarding
compensation has been a matter of grave concern. Every district
has one or more Motor Accidents Claims Tribunal(s). If different
Tribunals calculate compensation differently on the same facts,
the claimant, the litigant, the common man will be confused,
perplexed and bewildered. If there is significant divergence
among the Tribunals in determining the quantum of compensation
on similar facts, it will lead to dissatisfaction and distrust
in the system.”
The learned counsel for the appellant-AMRI Hospital further argued
that reliance placed upon the judgment in Nizam Institute’s case
referred to supra by the claimant is misplaced since the victim in
that case suffered from permanent disability which required constant
medical assistance. Therefore, it was urged that Nizam Institute case
cannot be relied upon by this Court to determine the quantum of
compensation by not adopting multiplier method in favour of the
claimant.
A careful reading of the above cases shows that this Court is
skeptical about using a strait jacket multiplier method for
determining the quantum of compensation in medical negligence claims.
On the contrary, this Court mentions various instances where the Court
chose to deviate from the standard multiplier method to avoid over-
compensation and also relied upon the quantum of multiplicand to
choose the appropriate multiplier. Therefore, submission made in this
regard by the claimant is well founded and based on sound logic and is
reasonable as the National Commission or this Court requires to
determine just, fair and reasonable compensation on the basis of the
income that was being earned by the deceased at the time of her death
and other related claims on account of death of the wife of the
claimant which is discussed in the reasoning portion in answer to the
point Nos. 1 to 3 which have been framed by this Court in these
appeals. Accordingly, we answer the point No. 4 in favour of the
claimant holding that the submissions made by the learned counsel for
the appellant-doctors and the AMRI Hospital in determination of
compensation by following the multiplier method which was sought to be
justified by placing reliance upon Sarla Verma and Reshma’s cases
(supra) cannot be accepted by this Court and the same does not inspire
confidence in us in accepting the said submission made by the learned
senior counsel and other counsel to justify the multiplier method
adopted by the National Commission to determine the compensation under
the head of loss of dependency. Accordingly, we answer the point no. 4
in favour of the claimant and against the appellants-doctors and AMRI
Hospital.
Answer to Point no. 5
98. It is the claim of the claimant that he has also suffered huge
losses during this period, both direct loss of income from his job in
U.S.A. as well as indirect loss for pain and intense mental agony for
tenure denial and termination of his employment at Ohio State
University which was a direct result of the wrongful death of deceased
in India as would be evident from the judgment passed by the Court of
Claims in Ohio which was filed by the Hospital on 18th July, 2011. In
lieu of such pain and suffering the claimant made a demand of
Rs.34,56,07,000/- under different heads of ‘loss of income for missed
work’, ‘travelling expenses over the past 12 years’ and ‘legal
expenses including advocate fees’ etc.
99. We have perused through the claims of the claimant under the above
heads and we are inclined to observe the following :-
The claim of Rs.1,12,50,000/- made by the claimant under the head
of loss of income for missed work, cannot be allowed by this Court
since, the same has no direct nexus with the negligence of the
appellant- doctors and the Hospital. The claimant further assessed his
claim under the head of ‘Travel expenses over the past 12 years’ at
Rs.70,00,000/-. It is pertinent to observe that the claimant did not
produce any record of plane fare to prove his travel expenditure from
U.S.A. to India to attend the proceedings. However, it is an
undisputed fact that the claimant is a citizen of U.S.A. and had been
living there. It cannot be denied that he had to incur travel expenses
to come to India to attend the proceedings. Therefore, on an average,
we award a compensation of Rs.10 lakhs under the head of ‘Travel
expenses over the past twelve years’.
Further, the claimant argues that he has spent Rs.1,65,00,000/-
towards litigation over the past 12 years while seeking compensation
under this head. Again, we find the claim to be on the higher side.
Considering that the claimant who is a doctor by profession, appeared
in person before this Court to argue his case. We acknowledge the fact
that he might have required rigorous assistance of lawyers to prepare
his case and produce evidence in order. Therefore, we grant a
compensation of Rs.1,50,000/- under the head of ‘legal expenses’.
Therefore, a total amount of Rs. 11,50,000/- is granted to the
claimant under the head of ‘cost of litigation’.
Answer to Point no. 6
100. A perusal of the operative portion of the impugned judgment of
the National Commission shows that it has awarded interest at the rate
of 12% per annum but only in case of default by the doctors of AMRI
Hospital to pay the compensation within 8 weeks after the judgment was
delivered on October 21, 2011. Therefore, in other words, the National
Commission did not grant any interest for the long period of 15 years
as the case was pending before the National Commission and this Court.
Therefore, the National Commission has committed error in not awarding
interest on the compensation awarded by it and the same is opposed to
various decisions of this Court, such as in the case of Thazhathe
Purayil Sarabi & Ors. Vs. Union of India & Anr. regarding payment of
interest on a decree of payment this Court held as under:
“25. It is, therefore, clear that the court, while making a
decree for payment of money is entitled to grant interest at the
current rate of interest or contractual rate as it deems
reasonable to be paid on the principal sum adjudged to be
payable and/or awarded, from the date of claim or from the date
of the order or decree for recovery of the outstanding dues.
There is also hardly any room for doubt that interest may be
claimed on any amount decreed or awarded for the period during
which the money was due and yet remained unpaid to the
claimants.
26. The courts are consistent in their view that normally when a
money decree is passed, it is most essential that interest be
granted for the period during which the money was due, but could
not be utilised by the person in whose favour an order of
recovery of money was passed.
27. As has been frequently explained by this Court and various
High Courts, interest is essentially a compensation payable on
account of denial of the right to utilise the money due, which
has been, in fact, utilised by the person withholding the same.
Accordingly, payment of interest follows as a matter of course
when a money decree is passed.
28. The only question to be decided is since when is such
interest payable on such a decree. Though, there are two
divergent views, one indicating that interest is payable from
the date when claim for the principal sum is made, namely, the
date of institution of the proceedings in the recovery of the
amount, the other view is that such interest is payable only
when a determination is made and order is passed for recovery of
the dues. However, the more consistent view has been the former
and in rare cases interest has been awarded for periods even
prior to the institution of proceedings for recovery of the
dues, where the same is provided for by the terms of the
agreement entered into between the parties or where the same is
permissible by statute.”
101. Further, in Kemp and Kemp on Quantum of Damages, the objective
behind granting interest is recorded as under:
“The object of a court in awarding interest to a successful
litigant is to compensate him for being kept out of money which
the court has found is properly due to him. That objective is
easy to achieve where it is clear that on a certain date the
defendant ought to have paid to the plaintiff an ascertained
sum, for example by way of repayment of a loan. The problems
which arise in personal injury and fatal accident cases in
relation to awards of interest result from the facts that while,
on the one hand, the cause of action accrues at the time of the
accident, so that compensation is payable as from that time, on
the other hand
a) the appropriate amount of compensation cannot be assessed
in a personal injury case with any pretence of accuracy
until the condition of the plaintiff has stabilised, and
b) subject to the provisions of the Supreme Court Act 1981,
S.32A when that section is brought into force, when damages
are assessed they are assessed once for all in relation to
both actual past and anticipated future loss and damage.
XXX XXX XXX XXX XXX
The necessity for guidelines, and the status of guidelines, were
considered by the House of Lords in Cookson v. Knowles.[34] In
that case Lord Diplock with whom the other members of the House
agreed, said:
The section as amended gives to the judge several options
as to the way in which he may assess the interest element to be
included in the sum awarded by the judgment. He may include
interest on the whole of the damages or on a part of them only
as he thinks appropriate. He may award it for the whole or any
part of the period between the date when the cause of action
arose and the date of judgment and he may award it at different
rates for different part of the period chosen.
The section gives no guidance as to the way in which the judge
should exercise his choice between the various options open to
him. This is all left to his discretion; but like all
discretions vested in judges by statute or at common law, it
must be exercised judicially or, in the Scots phrase used by
Lord Emslie in Smith V. Middleton, 1972 S.C. 30, in a selective
and discriminating manner, not arbitrarily or idiosyncractically-
for otherwise the rights of parties to litigation would become
dependent upon judicial whim.
It is therefore appropriate for an appellate court to lay down
guidelines as to what matters it is proper for the judge to take
into account in deciding how to exercise the discretion confided
in him by the statute. In exercising this appellate function,
the court is not expounding a rule of law from which a judge is
precluded from departing where special circumstances exist in a
particular case; nor indeed, even in cases where there are no
special circumstances, is an appellate court justified in giving
effect to the preference of its members for exercising the
discretion in a different way from that adopted by the judge if
the choice between the alternative ways of exercising it is one
upon which judicial opinion might reasonably differ.”
102. Therefore, the National Commission in not awarding interest on
the compensation amount from the date of filing of the original
complaint up to the date of payment of entire compensation by the
appellant-doctors and the AMRI Hospital to the claimant is most
unreasonable and the same is opposed to the provision of the Interest
Act, 1978. Therefore, we are awarding the interest on the compensation
that is determined by this Court in the appeal filed by the claimant
at the rate of 6% per annum on the compensation awarded in these
appeals from the date of complaint till the date of payment of
compensation awarded by this Court. The justification made by the
learned senior counsel on behalf of the appellant-doctors and the AMRI
Hospital in not awarding interest on the compensation awarded by the
National Commission is contrary to law laid down by this Court and
also the provisions of the Interest Act, 1978. Hence, their
submissions cannot be accepted as the same are wholly untenable in law
and misplaced. Accordingly, the aforesaid point is answered in favour
of the claimant.
Answer to point no. 7
103. Before we answer this point, it is pertinent to mention that we
are not inclined to determine the liability of the doctors in causing
the death of the claimant’s wife since the same has already been done
by the Court in Malay Kumar Ganguly’s case (supra). We will confine
ourselves to determine the extent to which the appellant-doctors and
the Hospital are liable to pay compensation awarded to the claimant
for their acts of negligence in giving treatment to the deceased wife
of the claimant.
Liability of the AMRI Hospital:
104. It is the claim of appellant-AMRI Hospital that the arguments
advanced on behalf of the appellant-doctors that is, Dr. Balram
Prasad, Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar and the
claimant Dr. Kunal Saha, that the appellant AMRI is liable to pay the
highest share of compensation in terms of percentage on the basis of
the cost imposed by this Court in the earlier round of litigation in
Malay Kumar Ganguly’s case, supra are not sustainable in law.
105. The learned senior counsel for the appellant-AMRI Hospital Mr.
Vijay Hansaria argued that the submission made by the claimant Dr.
Kunal Saha is not sustainable both on facts and in law since he
himself had claimed special damages against the appellant-doctors, Dr.
Sukumar Mukherjee, Dr. Baidyanath Haldar and Dr. Abani Roy Choudhury
in his appeal and therefore, he cannot now in these proceedings claim
to the contrary. On the other hand, the claimant Dr. Kunal Saha
argues that though the National Commission claims that this Court did
not make any observation on apportionment of liability while remanding
the matter back to it for determining the quantum of compensation,
this Court had implicitly directed the bulk of compensation to be paid
by the Hospital. Through Paragraph No. 196, the judgment reads as
under:
“196. We, keeping in view the stand taken and conduct of
AMRI and Dr. Mukherjee, direct that costs of Rs 5,00,000 and Rs
1,00,000 would be payable by AMRI and Dr. Mukherjee
respectively. We further direct that if any foreign experts are
to be examined it shall be done only through videoconferencing
and at the cost of the respondents.”
This Court has stated that the bulk of the proportion of
compensation is to be paid by the Hospital and the rest by Dr. Sukumar
Mukherjee. None of the other doctors involved were imposed with cost
though they were found guilty of medical negligence. The claimant
relied upon the decision in Nizam Institute‘s case (supra) in which
this Court directed the Hospital to pay the entire amount of
compensation to the claimant in that case even though the treating
doctors were found to be responsible for the negligence. The claimant
also relied upon the observations made by this Court while remitting
the case back to National Commission for determining the quantum of
compensation, to emphasize upon the negligence on the part of the
Hospital. The findings of this Court in Malay Kumar Ganguly’s case
read as under:
“76. AMRI records demonstrate how abysmal the nursing care was.
We understand that there was no burn unit in AMRI and there was
no burn unit at Breach Candy Hospital either. A patient of TEN
is kept in ICU. All emphasis has been laid on the fact that one
room was virtually made an ICU. Entry restrictions were strictly
adhered to. Hygiene was ensured. But constant nursing and
supervision was required. In the name of preventing infection,
it cannot be accepted that the nurses would not keep a watch on
the patient. They would also not come to see the patients or
administer drugs.
77. No nasogastric tube was given although the condition of
the mouth was such that Anuradha could not have been given any
solid food. She required 7 to 8 litres of water daily. It was
impossible to give so much water by mouth. The doctors on the
very first day found that the condition of the mouth was bad.
78. The ENT specialist in his prescription noticed blisters
around the lips of the patient which led her to difficulty in
swallowing or eating. No blood sample was taken. No other
routine pathological examination was carried out. It is now
beyond any dispute that 25-30% body surface area was affected
(re. Prescription of Dr. Nandy, Plastic Surgeon). The next day,
he examined the patient and he found that more and more body
surface area was affected. Even Dr. Prasad found the same.
79. Supportive therapy or symptomatic therapy, admittedly, was
not administered as needle prick was prohibited. AMRI even did
not maintain its records properly. The nurses reports clearly
show that from 13th May onwards even the routine check-ups were
not done.”
106. The liability of compensation to be apportioned by this Court on
the appellant-AMRI Hospital is mentioned in paragraph 165 of the Malay
Kumar Ganguly’s case which reads as under:
“165. As regards, individual liability of Respondents 4, 5 and 6
is concerned, we may notice the same hereunder. As regards AMRI,
it may be noticed:
(i)Vital parameters of Anuradha were not examined between 11-5-
1998 to 16-5-1998 (body temperature, respiration rate, pulse, BP
and urine input and output).
(ii) IV fluid not administered. (IV fluid administration is
absolutely necessary in the first 48 hours of treating TEN.)”
107. However, this Court in the aforesaid case, also recorded as
under:
“184. In R. V. Yogasakaran the New Zealand Court opined that the
hospital is in a better position to disclose what care was taken
or what medicine was administered to the patient. It is the duty
of the hospital to satisfy that there was no lack of care or
diligence. The hospitals are institutions, people expect better
and efficient service, if the hospital fails to discharge their
duties through their doctors, being employed on job basis or
employed on contract basis, it is the hospital which has to
justify and not impleading a particular doctor will not absolve
the hospital of its responsibilities. (See also Errors, Medicine
and the Law, Alan Merry and Alexander McCall Smith, 2001 Edn.,
Cambridge University Press, p. 12.)”
108. Even in the case of Savita Garg Vs. National Heart Institute
(supra) this Court, while determining the liability of the Hospital,
observed as under:
“15. Therefore, as per the English decisions also the
distinction of “contract of service” and “contract for
service”, in both the contingencies, the courts have taken the
view that the hospital is responsible for the acts of their
permanent staff as well as staff whose services are temporarily
requisitioned for the treatment of the patients. Therefore, the
distinction which is sought to be pressed into service so ably
by learned counsel cannot absolve the hospital or the Institute
as it is responsible for the acts of its treating doctors who
are on the panel and whose services are requisitioned from time
to time by the hospital looking to the nature of the diseases.
The hospital or the Institute is responsible and no distinction
could be made between the two classes of persons i.e. the
treating doctor who was on the staff of the hospital and the
nursing staff and the doctors whose services were temporarily
taken for treatment of the patients............
16. Therefore, the distinction between the “contract of service”
and “contract for service” has been very elaborately discussed
in the above case and this Court has extended the provisions of
the Consumer Protection Act, 1986, to the medical profession
also and included in its ambit the services rendered by private
doctors as well as the government institutions or the non-
governmental institutions, be it free medical services provided
by the government hospitals. In the case of Achutrao Haribhau
Khodwa v. State of Maharashtra their Lordships observed that in
cases where the doctors act carelessly and in a manner which is
not expected of a medical practitioner, then in such a case an
action in tort would be maintainable. Their Lordships further
observed that if the doctor has taken proper precautions and
despite that if the patient does not survive then the court
should be very slow in attributing negligence on the part of the
doctor. It was held as follows: (SCC p. 635)
‘A medical practitioner has various duties towards his
patient and he must act with a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care.
This is the least which a patient expects from a doctor. The
skill of medical practitioners differs from doctor to
doctor. The very nature of the profession is such that there
may be more than one course of treatment which may be
advisable for treating a patient. Courts would indeed be
slow in attributing negligence on the part of a doctor if he
has performed his duties to the best of his ability and with
due care and caution. Medical opinion may differ with regard
to the course of action to be taken by a doctor treating a
patient, but as long as a doctor acts in a manner which is
acceptable to the medical profession and the court finds
that he has attended on the patient with due care, skill and
diligence and if the patient still does not survive or
suffers a permanent ailment, it would be difficult to hold
the doctor to be guilty of negligence. But in cases where
the doctors act carelessly and in a manner which is not
expected of a medical practitioner, then in such a case an
action in torts would be maintainable.’
Similarly, our attention was invited to a decision in the case of
Spring Meadows Hospital v. Harjol Ahluwalia. Their Lordships observed
as follows: (SCC pp. 46-47, para 9)
‘9.…Very often in a claim for compensation arising out of
medical negligence a plea is taken that it is a case of
bona fide mistake which under certain circumstances may be
excusable, but a mistake which would tantamount to
negligence cannot be pardoned. In the former case a court
can accept that ordinary human fallibility precludes the
liability while in the latter the conduct of the defendant
is considered to have gone beyond the bounds of what is
expected of the skill of a reasonably competent doctor…’
Therefore, as a result of our above discussion we are of the
opinion that summary dismissal of the original petition by the
Commission on the question of non-joinder of necessary parties
was not proper. In case the complainant fails to substantiate
the allegations, then the complaint will fail. But not on the
ground of non-joinder of necessary party. But at the same time
the hospital can discharge the burden by producing the treating
doctor in defence that all due care and caution was taken and
despite that the patient died. The hospital/Institute is not
going to suffer on account of non-joinder of necessary parties
and the Commission should have proceeded against the hospital.
Even otherwise also the Institute had to produce the treating
physician concerned and has to produce evidence that all care
and caution was taken by them or their staff to justify that
there was no negligence involved in the matter. Therefore,
nothing turns on not impleading the treating doctor as a party.
Once an allegation is made that the patient was admitted in a
particular hospital and evidence is produced to satisfy that he
died because of lack of proper care and negligence, then the
burden lies on the hospital to justify that there was no
negligence on the part of the treating doctor or hospital.
Therefore, in any case, the hospital is in a better position to
disclose what care was taken or what medicine was administered
to the patient. It is the duty of the hospital to satisfy that
there was no lack of care or diligence. The hospitals are
institutions, people expect better and efficient service, if the
hospital fails to discharge their duties through their doctors,
being employed on job basis or employed on contract basis, it is
the hospital which has to justify and not impleading a
particular doctor will not absolve the hospital of its
responsibilities.”
(Emphasis laid by this Court)
109. Therefore, in the light of the rival legal contentions raised by
the parties and the legal principles laid down by this Court in
plethora of cases referred to supra, particularly, Savita Garg’s case,
we have to infer that the appellant-AMRI Hospital is vicariously
liable for its doctors. It is clearly mentioned in Savita Garg’s case
that a Hospital is responsible for the conduct of its doctors both on
the panel and the visiting doctors. We, therefore, direct the
appellant-AMRI Hospital to pay the total amount of compensation with
interest awarded in the appeal of the claimant which remains due after
deducting the total amount of Rs.25 lakhs payable by the appellants-
doctors as per the Order passed by this Court while answering the
point no. 7.
Liability of Dr. Sukumar Mukherjee:
110. As regards the liability of Dr. Sukumar Mukherjee, it is his case
that nowhere has this Court in Malay Kumar Ganguly’s decision hold the
appellant Dr. Mukherjee and appellant-AMRI Hospital “primarily
responsible” for the death of the claimant’s wife. On the contrary,
referring to paras 186 and 187 of the said judgment, under the heading
of ‘cumulative effect’, the appellant’s counsel has argued that his
liability is not established by the Court. The said paragraphs are
extracted hereunder:
“186. A patient would feel the deficiency in service having
regard to the cumulative effect of negligence of all concerned.
Negligence on the part of each of the treating doctors as also
the hospital may have been the contributing factors to the
ultimate death of the patient. But, then in a case of this
nature, the court must deal with the consequences the patient
faced, keeping in view the cumulative effect. In the instant
case, negligent action has been noticed with respect to more
than one respondent. A cumulative incidence, therefore, has led
to the death of the patient.
187. It is to be noted that the doctrine of cumulative effect is
not available in criminal law. The complexities involved in the
instant case as also the differing nature of negligence
exercised by various actors, make it very difficult to distil
individual extent of negligence with respect to each of the
respondent. In such a scenario finding of medical negligence
under Section 304-A cannot be objectively determined.”
111. In the light of the legal contention raised by the appellant-Dr.
Mukherjee, we are inclined to make the following observation regarding
his liability in the present case. The paragraphs relied upon by Dr.
Mukherjee as have been mentioned above are in relation to the
culpability of the doctors for causing the death of the patient under
Section 304-A of IPC. It is imperative to mention here that the
quantum of compensation to be paid by the appellant-doctors and the
AMRI Hospital is not premised on their culpability under Section 304-A
of IPC but on the basis of their act of negligence as doctors in
treating the deceased wife of the claimant. We are therefore inclined
to reiterate the findings of this Court regarding the liability of Dr.
Mukherjee in Malay Kumar Ganguly’s case which read as under:
“159. When Dr. Mukherjee examined Anuradha, she had rashes all
over her body and this being the case of dermatology, he should
have referred her to a dermatologist. Instead, he prescribed
“depomedrol” for the next 3 days on his assumption that it was a
case of “vasculitis”. The dosage of 120 mg depomedrol per day is
certainly a higher dose in case of a TEN patient or for that
matter any patient suffering from any other bypass or skin
disease and the maximum recommended usage by the drug
manufacturer has also been exceeded by Dr. Mukherjee. On 11-5-
1998, the further prescription of depomedrol without diagnosing
the nature of the disease is a wrongful act on his part.
160. According to general practice, long-acting steroids are not
advisable in any clinical condition, as noticed hereinbefore.
However, instead of prescribing a quick-acting steroid, the
prescription of a long-acting steroid without foreseeing its
implications is certainly an act of negligence on Dr.
Mukherjee’s part without exercising any care or caution. As it
has been already stated by the experts who were cross-examined
and the authorities that have been submitted that the usage of
80-120 mg is not permissible in TEN. Furthermore, after
prescribing a steroid, the effect of immunosuppression caused
due to it, ought to have been foreseen. The effect of
immunosuppression caused due to the use of steroids has affected
the immunity of the patient and Dr. Mukherjee has failed to take
note of the said consequences.”
112. It is also important to highlight in this judgment that the
manner in which Dr. Mukherjee attempted to shirk from his individual
responsibility both in the criminal and civil cases made against him
on the death of the claimant’s wife is very much unbecoming of a
doctor as renowned and revered as he is. The finding of this Court on
this aspect recorded in Malay Kumar Ganguly’s case reads as under:
“182. It is also of some great significance that both in the
criminal as also the civil cases, the doctors concerned took
recourse to the blame game. Some of them tried to shirk their
individual responsibilities. We may in this behalf notice the
following:
(i) In response to the notice of Dr. Kunal, Dr. Mukherjee says
that depomedrol had not been administered at all. When
confronted with his prescription, he suggested that the reply
was not prepared on his instructions, but on the instruction of
AMRI.
(ii) Dr. Mukherjee, thus, sought to disown his prescription at
the first instance. So far as his prescription dated 11-5-1998
is concerned, according to him, because he left Calcutta for
attending an international conference, the prescription issued
by him became non-operative and, thus, he sought to shift the
blame on Dr. Halder.
(iii) Dr. Mukherjee and Dr. Halder have shifted the blame to Dr.
Prasad and other doctors. Whereas Dr. Prasad countercharged the
senior doctors including Respondent 2 stating:
“Prof. B.N. Halder (Respondent 2) was so much attached with the
day-today treatment of patient Anuradha that he never found any
deficiency in the overall management at AMRI so much so that he
had himself given a certificate that her condition was very much
fit enough to travel to Mumbai.…”
113. Therefore, the negligence of Dr. Sukumar Mukherjee in treating
the claimant’s wife had been already established by this Court in
Malay Kumar Ganguly’s case. Since he is a senior doctor who was in
charge of the treatment of the deceased, we are inclined to mention
here that Dr. Mukherjee has shown utmost disrespect to his profession
by being so casual in his approach in treating his patient. Moreover,
on being charged with the liability, he attempted to shift the blame
on other doctors. We, therefore, in the light of the facts and
circumstances, direct him to pay a compensation of Rs.10 lakhs to the
claimant in lieu of his negligence and we sincerely hope that he
upholds his integrity as a doctor in the future and not be casual
about his patient’s lives.
Liability of Dr.Baidyanath Haldar:
114. The case of the appellant Dr. Baidyanath Haldar is that he is a
senior consultant who was called by the attending physician to examine
the patient on 12.5.1998. On examining the patient, he diagnosed the
disease as TEN and prescribed medicines and necessary supportive
therapies. It is his further case that he was not called either to see
or examine the patient post 12.5.1998. The case against Dr. B. Haldar
is his prescription of Steroid Predinosolone at the rate of 40 mg
thrice a day which was excessive in view of the fact that the deceased
was already under high dose of steroid. It is urged by the appellant-
Dr. Haldar that the deceased was under a high dose of steroid at the
rate of 160 mg per day and it was the appellant who tapered it down by
prescribing a quick acting steroid Predinosolone at 120 mg per day.
The appellant-Dr. Haldar further urged that he was called only once to
examine the deceased and he was not called thereafter. Hence, the
National Commission wrongly equated him with Dr. Balram Prasad who was
the attending physician. Though the claimant did not make any counter
statement on apportioning liability to the appellant-Dr. Haldar, it is
pertinent for us to resort to the findings recorded by this Court in
the case while remanding it back to the National Commission for
determining the individual liability of the appellant doctors involved
in the treatment of the deceased. The findings of this Court in Malay
Kumar Ganguly’s case supra, are recorded as under:
“161. After taking over the treatment of the patient and
detecting TEN, Dr. Halder ought to have necessarily verified the
previous prescription that has been given to the patient. On 12-
5-1998 although “depomedrol” was stopped, Dr. Halder did not
take any remedial measures against the excessive amount of
“depomedrol” that was already stuck in the patient’s body and
added more fuel to the fire by prescribing a quick-acting
steroid “prednisolone” at 40 mg three times daily, which is an
excessive dose, considering the fact that a huge amount of
“depomedrol” has been already accumulated in the body.
162. Life saving “supportive therapy” including IV
fluids/electrolyte replacement, dressing of skin wounds and
close monitoring of the infection is mandatory for proper care
of TEN patients. Skin (wound) swap and blood tests also ought to
be performed regularly to detect the degree of infection. Apart
from using the steroids, aggressive supportive therapy that is
considered to be rudimentary for TEN patients was not provided
by Dr. Halder.
163. Further “vital signs” of a patient such as temperature,
pulse, intake-output and blood pressure were not monitored. All
these factors are considered to be the very basic necessary
amenities to be provided to any patient, who is critically ill.
The failure of Dr. Halder to ensure that these factors were
monitored regularly is certainly an act of negligence. Occlusive
dressings were carried out as a result of which the infection
had been increased. Dr. Halder’s prescription was against the
Canadian Treatment Protocol reference to which we have already
made hereinbefore. It is the duty of the doctors to prevent
further spreading of infections. How that is to be done is the
doctors concern. Hospitals or nursing homes where a patient is
taken for better treatment should not be a place for getting
infection.”
115. Similar to the appellant Dr. Sukumar Mukherjee, the appellant Dr.
Baidyanath Haldar is also a senior doctor of high repute. However,
according to the findings of this Court in Malay Kumar Ganguly’s case,
he had conducted with utmost callousness in giving treatment to the
claimant’s wife which led to her unfortunate demise. The appellant Dr.
Baidyanath Haldar too, like Dr. Sukumar Mukherjee, made every attempt
to shift the blame to the other doctors thereby tainting the medical
profession who undertook to serve. This Court thereby directs him to
pay Rs.10 lakhs as compensation to the claimant in lieu of his
negligence in treating the wife of the claimant.
Liability of Dr Baidyanath Prasad:
116. It is the case of the appellant-Dr. Balram Prasad that he was the
junior-most attending physician at AMRI Hospital who saw the deceased
for the first time on 11.5.1998. He was not called upon to prescribe
medicines but was only required to continue and monitor the medicines
to be administered to the deceased as prescribed by the specialists.
The learned senior counsel on behalf of the appellant-Dr. B.Prasad
argues that the complaint made by the claimant had no averments
against him but the one whereby it was stated by the claimant at
paragraph 44 of the complaint which reads thus:
“44. That Dr. Balram Prasad as attending physician at AMRI did
do nothing better. He did not take any part in the treatment of
the patient although he stood like a second fiddle to the main
team headed by the opposite party no. 2 & 3. He never suggested
even faintly that AMRI is not an ideal place for treatment of
TEN patient; on the converse, he was full of praise for AMRI as
an ideal place for the treatment of TEN patients knowing nothing
how a TEN patient should be treated.”
117. To prove his competence as a doctor, the appellant-Dr. Balram
Prasad further produced a portion of the complaint which reads thus:
“33………. that no skin biopsy for histopathology report was ever
recommended by any (except Dr. B.Prasad), which is the basic
starting point in such treatment, the same mistake was also
committed by the opposite party no. 1”
118. The appellant Dr. Balram Prasad further emphasizes upon the cross-
examination of the claimant to prove that he was not negligent while
treating the patient. Question No. 26 of the cross examination reads
as under:
“Q. No. 26: Dr. Prasad says that Depomedrol dose according to
the treatment sheet of the AMRI hospital, he made a specific
suggestion that the dose should be limited to that particular
day only. Is it correct?
Ans: It is all matter of record. Yeah, he said that one day in
AMRI record.”
119. Though the claimant did not make specific claim against the
appellant-Dr. Balram Prasad, appellant Dr. B. Haldar claimed in his
submission that he has been wrongly equated with Dr. Balram Prasad who
was the attending physician and Dr. Anbani Roy Choudhury who was the
physician in charge of the patient.
120. It is pertinent for us to note the shifting of blames on
individual responsibility by the doctors specially the senior doctor
as recorded by this Court which is a shameful act on the dignity of
medical profession. The observations made by this Court in this regard
in Malay Kumar Ganguly’s case read as under:
“182......(iii) Dr. Mukherjee and Dr. Halder have shifted the
blame to Dr. Prasad and other doctors. Whereas Dr. Prasad
countercharged the senior doctors including Respondent 2
stating:
“Prof. B.N. Halder (Respondent 2) was so much attached with the
day-today treatment of patient Anuradha that he never found any
deficiency in the overall management at AMRI so much so that he
had himself given a certificate that her condition was very much
fit enough to travel to Mumbai.…”
In answer to a question as to whether Dr. Halder had given
specific direction to him for control of day-today medicine to
Anuradha, Dr. Prasad stated:
“… this was done under the guidance of Dr. Sukumar Mukherjee
(Respondent 1), Dr. B.N. Halder (Respondent 2) and Dr. Abani Roy
Chowdhury (Respondent 3).”
He furthermore stated that those three senior doctors primarily
decided the treatment regimen for Anuradha at AMRI.
(iv) Dr. Kaushik Nandy had also stated that three senior doctors
were in charge of Anuradha’s treatment.
(v) AMRI states that the drugs had been administered and nursing
care had been given as per the directions of the doctors.
(vi) Respondents 5 and 6, therefore, did not own any individual
responsibility on themselves although they were independent
physicians with postgraduate medical qualifications.
183. In Errors, Medicine and the Law, Cambridge University
Press, p. 14, the authors, Alan Merry and Alexander McCall
Smith, 2001 Edn., stated:
“Many incidents involve a contribution from more than one
person, and this case is an example. It illustrates the tendency
to blame the last identifiable element in the claim of
causation—the person holding the ‘smoking gun’. A more
comprehensive approach would identify the relative contributions
of the other failures in the system, including failures in the
conduct of other individuals.…”
121. Paragraph 183 of the judgment indicates that the Court abhorred
the shifting of blames by the senior doctor on the attending physician
the appellant Dr. Balram Prasad even though the Court held him guilty
of negligence. This Court found the appellant-Dr. Balram Prasad guilty
as under:
“166. As regards, Dr. Balaram Prasad, Respondent 5, it may be
noticed:
(i) Most doctors refrain from using steroids at the later stage
of the disease due to the fear of sepsis, yet he added more
steroids in the form of quick-acting “prednisolone” at 40 mg
three times a day.
(ii) He stood as a second fiddle to the treatment and failed to
apply his own mind.
(iii) No doctor has the right to use the drug beyond the maximum
recommended dose.”
122. We acknowledge the fact that Dr. Balram Prasad was a junior
doctor who might have acted on the direction of the senior doctors who
undertook the treatment of the claimant’s wife in AMRI-Hospital.
However, we cannot lose sight of the fact that the appellant Dr.
Balram Prasad was an independent medical practitioner with a post
graduate degree. He still stood as a second fiddle and perpetuated the
negligence in giving treatment to the claimant’s wife. This Court in
Malay Kumar Ganguly’s case found him to be negligent in treating the
claimant’s wife in spite of being the attending physician of the
Hospital. But since he is a junior doctor whose contribution to the
negligence is far less than the senior doctors involved, therefore
this Court directs him to pay a compensation of Rs. 5 lakhs to the
claimant. We hope that this compensation acts as a reminder and
deterrent to him against being casual and passive in treating his
patients in his formative years of medical profession.
Liability of the claimant - Dr. Kunal Saha:
123. Finally, we arrive at determining the contribution of the
claimant to the negligence of the appellant- doctors and the AMRI
Hospital in causing the death of his wife due to medical negligence.
The National Commission has determined the compensation to be paid for
medical negligence at Rs.1,72,87,500/-. However, the National
Commission was of the opinion that the interference of the claimant
was also contributed to the death of his wife. The National Commission
relied upon paragraph 123 of the judgment of this Court in Malay Kumar
Ganguly’s case to arrive at the aforesaid conclusion. Paragraph 123 of
the judgment reads thus:
“123. To conclude, it will be pertinent to note that even if we
agree that there was interference by Kunal Saha during the
treatment, it in no way diminishes the primary responsibility
and default in duty on part of the defendants. In spite of a
possibility of him playing an overanxious role during the
medical proceedings, the breach of duty to take basic standard
of medical care on the part of defendants is not diluted. To
that extent, contributory negligence is not pertinent. It may,
however, have some role to play for the purpose of damages.”
Therefore, holding the claimant responsible for contributory
negligence, the National Commission deducted 10% from the total
compensation and an award of Rs.1,55,58,750/- was given to the
claimant.
124. The appellants-doctors and the AMRI Hospital have raised the
issue of contributory negligence all over again in the present case
for determining the quantum of compensation to be deducted for the
interference of the claimant in treatment of the deceased.
125. On the other hand, the claimant in his written statement has
mentioned that this Court has rejected the assertion that the claimant
interfered with the treatment of his wife. The appellant-doctors
raised the same issue in the revision petition which was appropriately
dismissed. He relied upon the observations made by this Court which
read as under:
“117. Interference cannot be taken to be an excuse for
abdicating one’s responsibility especially when an interference
could also have been in the nature of suggestion. Same comments
were said to have been made by Dr. Halder while making his
statement under Section 313 of the Code of Criminal Procedure.
They are admissible in evidence for the said purpose. Similarly,
the statements made by Dr. Mukherjee and Dr. Halder in their
written statements before the National Commission are not backed
by any evidence on record. Even otherwise, keeping in view the
specific defence raised by them individually, interference by
Kunal, so far as they are concerned, would amount to hearsay
evidence and not direct evidence.
122. The respondents also sought to highlight on the number of
antibiotics which are said to have been administered by Kunal to
Anuradha while she was in AMRI contending that the said
antibiotics were necessary. Kunal, however, submitted that the
said antibiotics were prescribed by the doctors at AMRI and he
did not write any prescription. We would, however, assume that
the said antibiotics had been administered by Kunal on his own,
but it now stands admitted that administration of such
antibiotics was necessary.
123. To conclude, it will be pertinent to note that even if we
agree that there was interference by Kunal Saha during the
treatment, it in no way diminishes the primary responsibility
and default in duty on part of the defendants. In spite of a
possibility of him playing an overanxious role during the
medical proceedings, the breach of duty to take basic standard
of medical care on the part of defendants is not diluted. To
that extent, contributory negligence is not pertinent. It may,
however, have some role to play for the purpose of damages.”
(Emphasis laid by this Court)
A careful reading of the above paragraphs together from the decision
of Malay Kumar Ganguly’s case would go to show that the claimant
though over-anxious, did to the patient what was necessary as a part
of the treatment. The National Commission erred in reading in
isolation the statement of this Court that the claimant’s action may
have played some role for the purpose of damage.
126. We further intend to emphasize upon the observation of this Court
in Malay Kumar Ganguly’s case which reads as under:
“194. Further, the statement made by the High Court that the
transfer certificate was forged by the patient party is
absolutely erroneous, as Dr. Anil Kumar Gupta deposed before the
trial court that he saw the transfer certificate at AMRI’s
office and the words “for better treatment” were written by Dr.
Balaram Prasad in his presence and these words were written by
Dr. Prasad, who told it would be easier for them to transport
the patient. In a case of this nature, Kunal would have expected
sympathy and not a spate of irresponsible accusations from the
High Court.”
In the abovementioned paragraph, this Court clearly deterred the High
Court from making irresponsible accusations against the claimant who
has suffered not only due to the loss of his wife but also because his
long drawn battle for justice. Unfortunately, the National Commission
made the same mistake.
127. We, therefore, conclude that the National Commission erred in
holding that the claimant had contributed to the negligence of the
appellant-doctors and the Hospital which resulted in the death of his
wife when this Court clearly absolved the claimant of such liability
and remanded the matter back to the National Commission only for the
purpose of determining the quantum of compensation. Hence, we set
aside the finding of the National Commission and re-emphasize the
finding of this Court that the claimant did not contribute to the
negligence of the appellants-doctors and AMRI Hospital which resulted
in the death of his wife.
Answer to point no. 8
128. This Court, while remanding the matter back to the National
Commission, has categorically stated that the pecuniary and non-
pecuniary losses sustained by the claimant and future losses of him up
to the date of trial must be considered for the quantum of
compensation. That has not been done in the instant case by the
National Commission. Therefore, the claimant is entitled for
enhancement of compensation on the aforesaid heads as he has incurred
huge amount of expenses in the court of more than 15 years long trial
in the instant case. The total claim, original as well as enhanced
claim by way of filing affidavit with supporting documents, is
Rs.97,56,07,000/- that includes pecuniary damages of Rs.34,56,07,000/-
and non pecuniary damages of Rs.31,50,00,000/-, special damages of US
$4,000,000 for loss of job/house in Ohio and punitive damages of US
$1,000,000. The updated break-up of the total claim has been perused
and the same has not been considered by the National Commission
keeping in view the claim and legal evidence and observations made and
directions issued by this Court in Malay Kumar Ganguly’s case to
determine just and reasonable compensation. Therefore, we are of the
view that the claimant is entitled for enhanced compensation that will
be mentioned under different heads which will be noted in the
appropriate paragraphs of this judgment.
129. The National Commission has also not taken into consideration the
observations made by this Court while remanding the case for
determining the quantum of compensation with regard to the status of
treating doctors and the Hospital. Further, the National Commission
has failed to take into consideration the observations made in the
aforesaid judgment wherein in paragraphs 152 and 155 it is held that
AMRI Hospital is one of the best Hospitals in Calcutta and the doctors
were best doctors available. This aspect of the matter has been
completely ignored by the National Commission in awarding just and
reasonable compensation in favour of the claimant.
130. Since, it has already been determined by the Court that the
compensation paid by the National Commission was inadequate and that
it is required to be enhanced substantially given the facts and
evidence on record, it will be prudent to take up the different heads
of compensation separately to provide clarity to the reasoning as
well.
Loss of income of the deceased:
131. The grievance of the claimant is that the National Commission has
failed to take into consideration the legal and substantial evidence
produced on record regarding the income of the deceased wife as she
was a citizen of U.S.A. and permanently settled as a child
psychologist and the claimant was AIDS researcher in the U.S.A.
Therefore, the National Commission ought to have taken the above
relevant factual aspect of the case into consideration regarding the
status and standard of living of the deceased in U.S.A. to determine
just compensation under the head of loss of dependency. The claimant
has rightly relied upon the case involving death of a 47-48 years old
U.S.A. citizen in a road accident in India, in United India Insurance
Co. Ltd. & Others Vs. Patricia Jean Mahajan & Ors. referred to supra
where this Court has awarded compensation of Rs.10.38 crores after
holding that while awarding compensation in such cases the Court must
consider the high status and standard of living of both the victim and
dependents. However, the National Commission did not consider the
substantial and legal evidence adduced on record by the claimant
regarding the income that was being earned by the claimant’s wife even
though he has examined the U.S.A. based Prof. John F. Burke through
video conferencing in May-June, 2011. He was also cross examined by
the counsel of the appellant- doctors and the Hospital and had
scientifically calculated and testified under direct as well as cross
examination as to how he came to calculate the prospective loss of
income for a similarly situated person in U.S.A. as of the deceased.
Prof. John F. Burke has categorically stated that direct loss of
income of the deceased on account of her premature death, would amount
to 5 million and 125 thousand dollars. The loss of income on account
of premature death of the claimant’s wife was calculated by the said
witness who is an Economist in America and he has also deducted one-
third for her personal expenses out of her annual income which is at
par with the law laid down by this Court in number of cases including
Sarla Verma’s case (supra). In the cross examination of the said
expert witness by the learned counsel for the appellant-doctors and
the Hospital, he has also explained how he calculated the loss of
income on the premise of the premature death of the claimant’s wife.
According to Prof. John F. Burke, the above calculation of 5 million
and 125 thousand dollars for loss of income of the deceased was a very
conservative forecast and other estimates the damages for her
premature death could be 9 to 10 million dollars. It is the claim of
the claimant that loss of income of multi-million dollars as direct
loss for the wrongful death of the deceased may appear as a fabulous
amount in the context of India but undoubtedly an average and
legitimate claim in the context of the instant case has to be taken to
award just compensation. He has placed reliance upon the judgment of
this Court in Indian Medical Association’s case (supra) wherein the
Constitution Bench has stated that to deny the legitimate claim or to
restrict arbitrarily the size of an award would amount to substantial
injustice. We have considered the above important aspect of the case
in the decision of this Court for enhancing the compensation in favour
of the claimant.
132. As per the evidence on record, the deceased was earning $ 30,000
per annum at the time of her death. The appellant-doctors and the
Hospital could not produce any evidence to rebut the claims of the
claimant regarding the qualification of her wife. Further, Prof. John
F. Burke, an economic expert testified that the deceased could have
earned much more in future given her present prospect. But relying
upon the principle laid down by this Court, we cannot take the
estimate of Prof. John F. Burke to be the income of the deceased. We
also feel that $30,000 per annum earned by the deceased during the
time of her death was not from a regular source of income and she
would have earned lot more had it been a regular source of income,
having regard to her qualification and the job for which she was
entitled to. Therefore, while determining the income of the deceased,
we rely on the evidence on record for the purpose of determining the
just, fair and reasonable compensation in favour of the claimant. It
would be just and proper for us to take her earning at $40,000 per
annum on a regular job. We further rely upon the paragraphs in the
cases of Sarla Verma and Santosh Devi referred to supra while
answering the point no. 1, to hold that 30% should be added towards
the future loss of income of the deceased. Also, based on the law laid
down by this Court in catena of cases referred to supra, 1/3rd of the
total income is required to be deducted under the head of personal
expenditure of the deceased to arrive at the multiplicand.
133. The multiplier method to be applied has been convincingly argued
by the learned counsel for the appellant-doctors and the Hospital
against by the claimant which we concede with based on the reasoning
mentioned while answering the point no. 4. Therefore, estimating the
life expectancy of a healthy person in the present age as 70 years, we
are inclined to award compensation accordingly by multiplying the
total loss of income by 30.
134. Further, the claimant has rightly pointed that the value of
Indian currency has gone down since the time when these legal
proceedings have begun in this country. This argument of the claimant
has been accepted by us while answering the point nos. 2 and 3.
Therefore, it will be prudent for us to hold the current value of
Indian Rupee at a stable rate of Rs.55/- per 1$.
Therefore, under the head of ‘loss of income of the deceased’
the claimant is entitled to an amount of Rs.5,72,00,550/- which is
calculated as [$40,000+(30/100x40,000$)-(1/3 x 52,000$) x 30 x Rs.55/-
] = Rs.5,72,00,550/-.
Other Pecuniary Damages:
135. The pecuniary damages incurred by the claimant due to the loss
of the deceased have already been granted while answering the point
no. 5. Therefore, we are not inclined to repeat it again in this
portion. However, the expenditure made by the claimant during the
treatment of the deceased both in Kolkata and Mumbai Hospitals
deserves to be duly compensated for awarding reasonable amount under
this head as under:-
(a) For the medical treatment in Kolkata and Mumbai:
136. An amount of Rs.23 lakhs has been claimed by the claimant under
this head. However, he has been able to produce the medical bill only
to the extent of Rs.2.5 lakhs which he had paid to the Breach Candy
Hospital, Mumbai. Assuming that he might have incurred some more
expenditure, the National Commission had quantified the expenses under
this head to the tune of Rs.5 lakhs. We still consider this amount as
insufficient in the light of the fact that the deceased was treated at
AMRI Hospital as an in-patient for about a week; we deem it just and
proper to enhance the compensation under this head by Rs.2 lakhs
thereby awarding a total amount Of Rs.7 lakhs under this head.
(b) Travel and Hotel expenses at Bombay:
137. The claimant has sought for compensation to the tune of Rs.7
lakhs for travel and expenses for 11 days he had to stay in Mumbai for
the treatment of his wife. However, again he has failed to produce any
bills to prove his expenditure. Since, his travel to Mumbai for the
treatment of his wife is on record, the National Commission has
awarded compensation of Re.1 lakh under this head. We find it fit and
proper to enhance the compensation by Rs.50,000/- more considering
that he had also incurred some unavoidable expenditure during his
travel and stay in Mumbai at the time of treatment of the deceased.
Therefore, under this head, we award a compensation of Rs.1,50,000/-.
138. However, with respect to the claim made under the cost of
chartered flight, a sum of Rs.5,00,000/- is already awarded by the
National Commission and we are not inclined to interfere with the same
in absence of any evidence which alters the computation of the cost
incurred in chartered flight. Hence, we uphold the amount awarded by
the National Commission under the head of ‘cost of chartered flight’.
Non pecuniary damages:
139. It is the case of the claimant that the National Commission has
awarded paltry amount equivalent to $20,000 for the enormous and
lifelong pain, suffering, loss of companionship and amenities that he
had been put through due to the negligent act of the appellant-
doctors and the Hospital. The claimant had claimed Rs.50 crores under
this head before the National Commission without giving any break up
figures for the amount. Before this Court however, the claimant has
reduced the claim to Rs.31,50,00,000/- under three different heads. He
has claimed Rs.13,50,00,000/- for loss of companionship and life
amenities, Rs.50,00,000/- for emotional distress, pain and suffering
of the husband- the claimant and Rs.4,50,00,000/- for pain and
suffering endured by the deceased during her treatment.
140. In this regard, we are inclined to make an observation on the
housewife services here. In the case of Arun Kumar Agarwal Vs.
National Insurance Company[35], this Court observed as follows:
22. We may now deal with the question formulated in the opening
paragraph of this judgment. In Kemp and Kemp on Quantum of
Damages, (Special Edn., 1986), the authors have identified
various heads under which the husband can claim compensation on
the death of his wife. These include loss of the wife’s
contribution to the household from her earnings, the additional
expenses incurred or likely to be incurred by having the
household run by a housekeeper or servant, instead of the wife,
the expenses incurred in buying clothes for the children instead
of having them made by the wife, and similarly having his own
clothes mended or stitched elsewhere than by his wife, and the
loss of that element of security provided to the husband where
his employment was insecure or his health was bad and where the
wife could go out and work for a living.
23. In England the courts used to award damages solely on the
basis of pecuniary loss to family due to the demise of the wife.
A departure from this rule came to be made in Berry v. Humm &
Co. where the plaintiff claimed damages for the death of his
wife caused due to the negligence of the defendant’s servants.
After taking cognizance of some precedents, the learned Judge
observed: (KB p. 631)
“… I can see no reason in principle why such pecuniary loss
should be limited to the value of money lost, or the money value
of things lost, as contributions of food or clothing, and why I
should be bound to exclude the monetary loss incurred by
replacing services rendered gratuitously by a relative, if there
was a reasonable prospect of their being rendered freely in the
future but for the death.”
24. In Regan v. Williamson the Court considered the issue
relating to quantum of compensation payable to the dependants of
the woman who was killed in a road accident. The facts of that
case were that on the date of accident, the plaintiff was aged
43 years and his children were aged 14 years, 11 years, 8 years
and 3 years respectively. The deceased wife/mother was aged 37
years. The cost of a housekeeper to carry out services
previously rendered by his wife was 22.5 pounds per week, the
saving to him in not having to clothe and feed his wife was 10
pound per week, leaving a net loss of 12.50 pounds per week or
600 pounds a year. However, the Court took into account the
value of other services previously rendered by the wife for
which no substitute was available and accordingly increased the
dependency to 20 pounds a week. The Court then applied a
multiplier of 11 in reaching a total fatal accidents award of
12,298 pounds. In his judgment, Watkins, J. noted as under: (WLR
pp. 307 H-308 A)
“The weekend care of the plaintiff and the boys remains a
problem which has not been satisfactorily solved. The
plaintiff’s relatives help him to a certain extent, especially
on Saturday afternoons. But I formed the clear impression that
the plaintiff is often, at weekends, sorely tired in trying to
be an effective substitute for the deceased. The problem could,
to some extent, be cured by engaging another woman, possibly to
do duty at the weekend, but finding such a person is no simple
matter. I think the plaintiff has not made extensive enquiries
in this regard. Possibly the expense involved in getting more
help is a factor which has deterred him. Whatever be the reason,
the plain fact is that the deceased’s services at the weekend
have not been replaced. They are lost to the plaintiff and to
the boys.”
He then proceeded to observe: (WLR p. 309
A-D)
“I have been referred to a number of cases in which judges have
felt compelled to look upon the task of assessing damages in
cases involving the death of a wife and mother with strict
disregard to those features of the life of a woman beyond her so-
called services, that is to say, to keep house, to cook the
food, to buy the clothes, to wash them and so forth. In more
than one case, an attempt has been made to calculate the actual
number of hours it would take a woman to perform such services
and to compensate dependants upon that basis at so much an hour
and so relegate the wife or mother, so it seems to me, to the
position of a housekeeper.
(Emphasis laid by this Court)
While I think that the law inhibits me from, much as I should like to,
going all the way along the path to which Lord Edmund-Davies pointed,
I am, with due respect to the other judges to whom I have been
referred, of the view that the word ‘services’ has been too narrowly
construed. It should, at least, include an acknowledgment that a wife
and mother does not work to set hours and, still less, to rule. She is
in constant attendance, save for those hours when she is, if that is
the fact, at work. During some of those hours she may well give the
children instruction on essential matters to do with their upbringing
and, possibly, with such things as their homework. This sort of
attention seems to be as much of a service, and probably more valuable
to them, than the other kinds of service conventionally so regarded.”
25. In Mehmet v. Perry the pecuniary value of a wife’s services were
assessed and granted under the following heads:
(a) Loss to the family of the wife’s housekeeping services.
(b) Loss suffered by the children of the personal attention of their
mother, apart from housekeeping services rendered by her.
(c) Loss of the wife’s personal care and attention, which the husband
had suffered, in addition to the loss of her housekeeping services.
26. In India the courts have 210recognized that the contribution made
by the wife to the house is invaluable and cannot be computed in terms
of money. The gratuitous services rendered by the wife with true love
and affection to the children and her husband and managing the
household affairs cannot be equated with the services rendered by
others. A wife/mother does not work by the clock. She is in the
constant attendance of the family throughout the day and night unless
she is employed and is required to attend the employer’s work for
particular hours. She takes care of all the requirements of the
husband and children including cooking of food, washing of clothes,
etc. She teaches small children and provides invaluable guidance to
them for their future life. A housekeeper or maidservant can do the
household work, such as cooking food, washing clothes and utensils,
keeping the house clean, etc., but she can never be a substitute for a
wife/mother who renders selfless service to her husband and children.
27. It is not possible to quantify any amount in lieu of the services
rendered by the wife/mother to the family i.e. the husband and
children. However, for the purpose of award of compensation to the
dependants, some pecuniary estimate has to be made of the services of
the housewife/mother. In that context, the term “services” is required
to be given a broad meaning and must be construed by taking into
account the loss of personal care and attention given by the deceased
to her children as a mother and to her husband as a wife. They are
entitled to adequate compensation in lieu of the loss of gratuitous
services rendered by the deceased. The amount payable to the
dependants cannot be diminished on the ground that some close relation
like a grandmother may volunteer to render some of the services to the
family which the deceased was giving earlier.
30. In A. Rajam v. M. Manikya Reddy, M. Jagannadha Rao, J. (as he then
was) advocated giving of a wider meaning to the word “services” in
cases relating to award of compensation to the dependants of a
deceased wife/mother. Some of the observations made in that judgment
are extracted below:
‘The loss to the husband and children consequent upon the death of the
housewife or mother has to be computed by estimating the loss of
‘services’ to the family, if there was reasonable prospect of such
services being rendered freely in the future, but for the death. It
must be remembered that any substitute to be so employed is not likely
to be as economical as the housewife. Apart from the value of
obtaining substituted services, the expense of giving accommodation or
food to the substitute must also be computed. From this total must be
deducted the expense the family would have otherwise been spending for
the deceased housewife.
While estimating the ‘services’ of the housewife, a narrow meaning
should not be given to the meaning of the word ‘services’ but it
should be construed broadly and one has to take into account the loss
of ‘personal care and attention’ by the deceased to her children, as a
mother and to her husband, as a wife. The award is not diminished
merely because some close relation like a grandmother is prepared to
render voluntary services.’
XXX XXX XXX
32. In National Insurance Co. Ltd. v. Mahadevan the learned Single
Judge referred to the Second Schedule of the Act and observed that
quantifying the pecuniary loss at the same rate or amount even after
13 years after the amendment, ignoring the escalation in the cost of
living and the inflation, may not be justified.
33. In Chandra Singh v. Gurmeet Singh, Krishna Gupta v. Madan Lal,
Captan Singh v. Oriental Insurance Co. Ltd. and Amar Singh Thukral v.
Sandeep Chhatwal, the Single and Division Benches of the Delhi High
Court declined to apply the judgment of this Court in Lata Wadhwa case
for the purpose of award of compensation under the Act. In Krishna
Gupta v. Madan Lal the Division Bench of the High Court observed as
under: (DLT p. 834, para 24)
“24. … The decision of the Apex Court in Lata Wadhwa in our considered
opinion, cannot be said to have any application in the instant case.
The Motor Vehicles Act, 1939 was the complete code by itself. It not
only provides for the right of a victim and/or his legal heirs to
obtain compensation in case of bodily injury or death arising out of
use of motor vehicle, but the Forum therefor has been provided, as
also the mode and manner in which the compensation to be awarded
therefor. In such a situation, it would be inappropriate to rely upon
a decision of the Apex Court, which had been rendered in an absolutely
different fact situation and in relation whereto there did not exist
any statutory compensation. Lata Wadhwa was decided in a matter where
a fire occurred during a celebration. The liability of Tata Iron &
Steel Co. Ltd. was not disputed. Compensation was awarded having
regard to the peculiar feature obtaining in that case which has got
nothing to do with the statutory compensation payable under the
provisions of the Motor Vehicles Act.”
(Emphasis laid by this Court)
141. Also, in a three judge Bench decision of this Court in the case
of Rajesh & Ors. Vs. Rajvir Singh and Ors.[36], this Court held as
under:
“20. The ratio of a decision of this Court, on a legal issue is
a precedent. But an observation made by this Court, mainly to
achieve uniformity and consistency on a socio-economic issue, as
contrasted from a legal principle, though a precedent, can be,
and in fact ought to be periodically revisited, as observed
in Santhosh Devi (supra). We may therefore, revisit the practice
of awarding compensation under conventional heads: loss of
consortium to the spouse, loss of love, care and guidance to
children and funeral expenses. It may be noted that the sum of
Rs. 2,500/- to Rs. 10,000/- in those heads was fixed several
decades ago and having regard to inflation factor, the same
needs to be increased. In Sarla Verma's case (supra), it was
held that compensation for loss of consortium should be in the
range of Rs. 5,000/- to Rs. 10,000/-, In legal parlance,
'consortium' is the right of the spouse to the company, care,
help, comfort, guidance, society, solace, affection and sexual
relations with his or her mate. That non-pecuniary head of
damages has not been properly understood by our Courts. The loss
of companionship, care and protection, etc., the spouse is
entitled to get, has to be compensated appropriately. The
concept of non-pecuniary damage for loss of consortium is one of
the major heads of award of compensation in other parts of the
world more particularly in the United States of America,
Australia, etc. English Courts have also recognized the right of
a spouse to get compensation even during the period of temporary
disablement. By loss of consortium, the courts have made an
attempt to compensate the loss of spouse's affection, comfort,
solace, companionship, society, assistance, protection, care and
sexual relations during the future years. Unlike the
compensation awarded in other countries and other jurisdictions,
since the legal heirs are otherwise adequately compensated for
the pecuniary loss, it would not be proper to award a major
amount under this head. Hence, we are of the view that it would
only be just and reasonable that the courts award at least
rupees one lakh for loss of consortium.”
(Emphasis laid by this Court)
142. Under the heading of loss due to pain and suffering and loss of
amenities of the wife of the claimant, Kemp and Kemp write as under:
“The award to a plaintiff of damages under the head “pain and
suffering” depends as Lord Scarman said in Lim Poh Choo v.
Camden and Islington Area health Authority, “upon the
claiamant’s personal awareness of pain, her capacity of
suffering. Accordingly, no award is appropriate if and in so far
as the claimant has not suffered and is not likely to suffer
pain, and has not endured and is not likely to endure suffering,
for example, because he was rendered immediately and permanently
unconscious in the accident. By contrast, an award of damages in
respect of loss of amenities is appropriate whenever there is in
fact such a loss regardless of the claimant’s awareness of the
loss.”
……….
Further, it is written that,
“Even though the claimant may die from his injuries shortly
after the accident, the evidence may justify an award under this
head. Shock should also be taken account of as an ingredient of
pain and suffering and the claimant’s particular circumstances
may well be highly relevant to the extent of her suffering.
……….
By considering the nature of amenities lost and the injury and
pain in the particular case, the court must assess the effect
upon the particular claimant. In deciding the appropriate award
of damages, an important consideration show long will he be
deprived of those amenities and how long the pain and suffering
has been and will be endured. If it is for the rest of his life
the court will need to take into account in assessing damages
the claimant’s age and his expectation in life. That applies as
much in the case of an unconscious plaintiff as in the case of
one sentient, at least as regards the loss of amenity.”
The extract from Malay Kumar Ganguly’s case read as under:
“3. Despite administration of the said injection twice daily,
Anuradha’s condition deteriorated rapidly from bad to worse over
the next few days. Accordingly, she was admitted at Advanced
Medicare Research Institute (AMRI) in the morning of 11-5-1998
under Dr. Mukherjee’s supervision. Anuradha was also examined by
Dr. Baidyanath Halder, Respondent 2 herein. Dr. Halder found
that she had been suffering from erythema plus blisters. Her
condition, however, continued to deteriorate further. Dr. Abani
Roy Chowdhury, Consultant, Respondent 3 was also consulted on 12-
5-1998.
4. On or about 17-5-1998 Anuradha was shifted to Breach Candy
Hospital, Mumbai as her condition further deteriorated severely.
She breathed her last on 28-5-1998……”
143. The above extracted portion from the above judgment would show
that the deceased had undergone the ordeal of pain for 18 long days
before she breathed her last. In this course of period, she has
suffered with immense pain and suffering and undergone mental agony
because of the negligence of the appellant-doctors and the Hospital
which has been proved by the claimant and needs no reiteration.
144. Further, in the case of Nizam Institute (supra), the claimant who
was also the surviving victim of a motor vehicle accident was awarded
Rs.10 lakhs for pain and suffering. Further, it was held in R.D.
Hattangadi’s case (supra) as follows:
“14. In Halsbury’s Laws of England, 4th Edn., Vol. 12 regarding
non-pecuniary loss at page 446 it has been said:
Non-pecuniary loss: the pattern.— Damages awarded for pain and
suffering and loss of amenity constitute a conventional sum
which is taken to be the sum which society deems fair, fairness
being interpreted by the courts in the light of previous
decisions. Thus there has been evolved a set of conventional
principles providing a provisional guide to the comparative
severity of different injuries, and indicating a bracket of
damages into which a particular injury will currently fall. The
particular circumstances of the plaintiff, including his age
and any unusual deprivation he may suffer, is reflected in the
actual amount of the award.”|
145. Therefore, the claim of Rs.4,50,00,000/- by the claimant is
excessive since it goes against the amount awarded by this Court under
this head in the earlier cases referred to supra. We acknowledge and
empathise with the fact that the deceased had gone through immense
pain, mental agony and suffering in course of her treatment which
ultimately could not save her life, we are not inclined to award more
than the conventional amount set by this Court on the basis of the
economic status of the deceased. Therefore, a lumpsum amount of Rs.10
lakhs is awarded to the claimant following the Nizam Institute’s case
(supra) and also applying the principles laid in Kemp and Kemp on the
“Quantum of Damages”, under the head of ‘pain and suffering of the
claimant’s wife during the course of treatment’.
146. However, regarding claim of Rs.50,00,000/- by the claimant under
the head of ‘Emotional distress, pain and suffering for the claimant’
himself, we are not inclined to award any compensation since this
claim bears no direct link with the negligence caused by the appellant-
doctors and the Hospital in treating the claimant’s wife.
In summary, the details of compensation under different heads
are presented hereunder:
|Loss of income of the deceased |Rs.5,72,00,550/- |
|For Medical treatment in Kolkata |Rs.7,00,000/- |
|and Mumbai | |
|Travel and Hotel expenses at |Rs.6,50,000/- |
|Mumbai | |
|Loss of consortium |Rs.1,00,000/- |
|Pain and suffering |Rs.10,00,000/- |
|Cost of litigation |Rs.11,50,000/- |
147. Therefore, a total amount of Rs.6,08,00,550/- is the
compensation awarded in this appeal to the claimant Dr. Kunal Saha by
partly modifying the award granted by the National Commission under
different heads with 6% interest per annum from the date of
application till the date of payment.
148. Before parting with the judgment we are inclined to mention that
the number of medical negligence cases against doctors, Hospitals and
Nursing Homes in the consumer forum are increasing day by day. In the
case of Paschim Banga Khet Mazdoor Samity Vs. State of West
Bengal[37], this Court has already pronounced that right to health of
a citizen is a fundamental right guaranteed under Article 21 of the
Constitution of India. It was held in that case that all the
government Hospitals, Nursing Homes and Poly-clinics are liable to
provide treatment to the best of their capacity to all the patients.
149. The doctors, Hospitals, the Nursing Homes and other connected
establishments are to be dealt with strictly if they are found to be
negligent with the patients who come to them pawning all their money
with the hope to live a better life with dignity. The patients
irrespective of their social, cultural and economic background are
entitled to be treated with dignity which not only forms their
fundamental right but also their human right. We, therefore, hope and
trust that this decision acts as a deterrent and a reminder to those
doctors, Hospitals, the Nursing Homes and other connected
establishments who do not take their responsibility seriously.
150. The central and the state governments may consider enacting laws
wherever there is absence of one for effective functioning of the
private Hospitals and Nursing Homes. Since the conduct of doctors is
already regulated by the Medical Council of India, we hope and trust
for impartial and strict scrutiny from the body. Finally, we hope and
believe that the institutions and individuals providing medical
services to the public at large educate and update themselves about
any new medical discipline and rare diseases so as to avoid tragedies
such as the instant case where a valuable life could have been saved
with a little more awareness and wisdom from the part of the doctors
and the Hospital.
151. Accordingly, the Civil Appeal No. 2867/2012 filed by Dr. Balram
Prasad, Civil Appeal No. 858/2012 filed by Dr. Sukumar Mukherjee and
Civil Appeal No. 731/2012 filed by Dr. Baidyanath Haldar are partly
allowed by modifying the judgment and order of the National Commission
in so far as the amount fastened upon them to be paid to the claimant
as mentioned below. Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar
are liable to pay compensation to the tune of Rs.10 lakhs each and Dr.
Balram Prasad is held liable to pay compensation of Rs.5 lakhs to the
claimant. Since, the appellant-doctors have paid compensation in
excess of what they have been made liable to by this judgment, they
are entitled for reimbursement from the appellant-AMRI Hospital and it
is directed to reimburse the same to the above doctors within eight
weeks.
152. The Civil Appeal No. 692/2012 filed by the appellant-AMRI
Hospital is dismissed and it is liable to pay compensation as awarded
in this judgment in favour of the claimant after deducting the amount
fastened upon the doctors in this judgment with interest @ 6% per
annum.
153. The Civil Appeal No. 2866/2012 filed by the claimant-Dr.Kunal
Saha is also partly allowed and the finding on contributory negligence
by the National Commission on the part of the claimant is set aside.
The direction of the National Commission to deduct 10% of the awarded
amount of compensation on account of contributory negligence is also
set aside by enhancing the compensation from Rs.1,34,66,000/- to
Rs.6,08,00,550/- with 6% interest per annum from the date of the
complaint to the date of the payment to the claimant.
154. The AMRI Hospital is directed to comply with this judgment by
sending demand draft of the compensation awarded in this appeal to the
extent of liability imposed on it after deducting the amount, if any,
already paid to the claimant, within eight weeks and submit the
compliance report.
…………………………………………………………J.
[CHANDRAMAULI KR. PRASAD]
…………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
October 24, 2013.
-----------------------
[1] (2009) 9 SCC 221
[2] (2008) 4 SCC 162
[3] (2002) 6 SCC 281
[4] [5] (2009) 6 SCC 1
[6] (2009) 14 SCC 1
[7] (2001) 8 SCC 197
[8] (2001) 8 SCC 151
[9] (2011) 14 SCC 481
[10] (2011)12 SCC 695
[11] (2012) 5 SCC 370
[12] (2012) 6 SCC 430
[13] (2003) 2 SCC 274
[14] (2011) 10 SCC 634
[15] (2011) 10 SCC 655
[16] (1995) 6 SCC 651
[17] (2009) 13 SCC 710
[18] (1995) 1 SCC 551
[19] (2009) 13 SCC 654
[20] (2011) 10 SCC 756
[21] (2010) 10 SCC 254
[22] (2011) 1 SCC 343
[23] (2011) 10 SCC 683
[24] (2011) 13 SCC 236
[25] (2012) 8 SCC 604
[26] (2004) 8 SCC 56
[27] (2002) 7 SCC 668
[28] (1998) 4 SCC 39
[29] (2009) 7 SCC 372
[30] 511 U.S. 244, 1994
[31] (2009) 5 SCC 212
[32] 536 S.E. 2d 408 2000
[33] 781 N.E. 2d, 2002
[34] (1998) 4 SCC 39
[35] [1979] A.C. 556
[36] (2010) 9 SCC 218
[37] 2013 (6) SCALE 563
[38] (1996) 4 SCC 37
-----------------------
210
The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right.
We, therefore, hope and trust that this decision acts as a deterrent and a reminder to those doctors, Hospitals, the Nursing Homes and other connected establishments who do not take their responsibility seriously.=
injection Depomedrol used at the rate of 80 mg twice daily by Dr.Sukumar Mukherjee was in clear violation of the manufacturer’s warning and recommendation and admittedly, the instruction regarding direction for use of the medicine had not been followed in the instant case.
This Court has also made it clear that the
excessive use of the medicine by the doctor was out of sheer
ignorance of basic hazards relating to the use of steroids as also
lack of judgment.
No doctor has the right to use the drug beyond the maximum recommended dose.
compensation in his appeal is justified. If it is so, for
what compensation he is entitled to?
2) While making additional claim by way of affidavit before
the National Commission when amending the claim petition,
whether the claimant is entitled for compensation on the
enhanced claim preferred before the National Commission?
3(a) Whether the claimant seeking to amend the claim of
compensation under certain heads in the original claim petition
has forfeited his right of claim under Order II Rule 2 of CPC as
pleaded by the AMRI Hospital?
3(b) Whether the claimant is justified in claiming additional
amount for compensation under different heads without following
the procedure contemplated under the provisions of the Consumer
Protection Act and the Rules?
4. Whether the National Commission is justified in adopting
the multiplier method to determine the compensation and to
award the compensation in favour of the claimant?
5. Whether the claimant is entitled to pecuniary damages under
the heads of loss of employment, loss of his property and his
traveling expenses from U.S.A. to India to conduct the
proceedings in his claim petition?
6. Whether the claimant is entitled to the interest on the
compensation that would be awarded?
7. Whether the compensation awarded in the impugned judgment
and the apportionment of the compensation amount fastened upon
the doctors and the hospital requires interference and whether
the claimant is liable for contributory negligence and deduction
of compensation under this head?
8. To what Order and Award the claimant is entitled to in these
appeals?
In summary, the details of compensation under different heads
are presented hereunder:
|Loss of income of the deceased |Rs.5,72,00,550/- |
|For Medical treatment in Kolkata |Rs.7,00,000/- |
|and Mumbai | |
|Travel and Hotel expenses at |Rs.6,50,000/- |
|Mumbai | |
|Loss of consortium |Rs.1,00,000/- |
|Pain and suffering |Rs.10,00,000/- |
|Cost of litigation |Rs.11,50,000/- |
147. Therefore, a total amount of Rs.6,08,00,550/- is the
compensation awarded in this appeal to the claimant Dr. Kunal Saha by
partly modifying the award granted by the National Commission under
different heads with 6% interest per annum from the date of
application till the date of payment.
Accordingly, the Civil Appeal No. 2867/2012 filed by Dr. Balram
Prasad, Civil Appeal No. 858/2012 filed by Dr. Sukumar Mukherjee and
Civil Appeal No. 731/2012 filed by Dr. Baidyanath Haldar are partly
allowed by modifying the judgment and order of the National Commission
in so far as the amount fastened upon them to be paid to the claimant
as mentioned below.
Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar
are liable to pay compensation to the tune of Rs.10 lakhs each and Dr.
Balram Prasad is held liable to pay compensation of Rs.5 lakhs to the
claimant.
Since, the appellant-doctors have paid compensation in
excess of what they have been made liable to by this judgment, they
are entitled for reimbursement from the appellant-AMRI Hospital and it
is directed to reimburse the same to the above doctors within eight
weeks.
152. The Civil Appeal No. 692/2012 filed by the appellant-AMRI
Hospital is dismissed and it is liable to pay compensation as awarded
in this judgment in favour of the claimant after deducting the amount
fastened upon the doctors in this judgment with interest @ 6% per
annum.
153. The Civil Appeal No. 2866/2012 filed by the claimant-Dr.Kunal
Saha is also partly allowed and the finding on contributory negligence
by the National Commission on the part of the claimant is set aside.
The direction of the National Commission to deduct 10% of the awarded
amount of compensation on account of contributory negligence is also
set aside by enhancing the compensation from Rs.1,34,66,000/- to Rs.6,08,00,550/- with 6% interest per annum from the date of the complaint to the date of the payment to the claimant.
154. The AMRI Hospital is directed to comply with this judgment by
sending demand draft of the compensation awarded in this appeal to the
extent of liability imposed on it after deducting the amount, if any,
already paid to the claimant, within eight weeks and submit the
compliance report.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2867 OF 2012
Dr. Balram Prasad … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
WITH
CIVIL APPEAL No.692 of 2012
Advanced Medicare & Research
Institute Ltd. … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
WITH
CIVIL APPEAL No.2866 of 2012
Dr. Kunal Saha …Appellant
Vs.
Dr. Sukumar Mukherjee & Ors. … Respondents
WITH
CIVIL APPEAL No.731 of 2012
Dr. Baidyanath Haldar … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
AND
CIVIL APPEAL No.858 of 2012
Dr. Sukumar Mukherjee … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
J U D G M E N T
V. Gopala Gowda, J.
The Civil Appeal Nos.2867, 731 and 858 of 2012 are filed by the
appellant-doctors, Civil Appeal No. 692 of 2012 is filed by the
appellant-AMRI Hospital and Civil Appeal No. 2866 of 2012 is filed by
the claimant-appellant – Dr. Kunal Saha (hereinafter referred to as
‘the claimant’), questioning the correctness of the impugned judgment
and order dated 21.10.2011 passed by the National Consumer Disputes
Redressal Commission (hereinafter referred to as the ‘National
Commission’) in Original Petition No.240 of 1999.
2. The appellant-doctors are aggrieved by the quantum of compensation
awarded by the National Commission and the liability fastened upon
them for the negligence on their part and have prayed to set aside
the same by allowing their appeals. In so far as the appellant-AMRI
Hospital is concerned, it has also questioned the quantum of
compensation awarded and has prayed to reduce the same by awarding
just and reasonable compensation by modifying the judgment by
allowing its appeal.
So far as the claimant is concerned, he is aggrieved by the said
judgment and the compensation awarded which, according to him, is
inadequate, as the same is contrary to the admitted facts and law laid
down by this Court in catena of cases regarding awarding of
compensation in relation to the proved medical negligence for the
death of his wife Anuradha Saha (hereinafter referred to as the
‘deceased’).
3. The brief relevant facts and the grounds urged on behalf of the
appellant-doctors, AMRI Hospital and the claimant in seriatim are
adverted to in this common judgment for the purpose of examining
the correctness of their respective legal contentions urged in
their respective appeals with a view to pass common judgment and
award.
4. Brief necessary and relevant facts of the case are stated
hereunder:
The claimant filed Original Petition No. 240 of 1999 on
09.03.1999 before the National Commission claiming compensation for
Rs.77,07,45,000/- and later the same was amended by claiming another
sum of Rs.20,00,00,000/-. After the case of Malay Kumar Ganguly Vs.
Dr. Sukumar Mukherjee[1] was remanded by this Court to the National
Commission to award just and reasonable compensation to the claimant
by answering the points framed in the said case, the National
Commission held the doctors and the AMRI Hospital negligent in
treating the wife of the claimant on account of which she died.
Therefore, this Court directed the National Commission to determine
just and reasonable compensation payable to the claimant. However, the
claimant, the appellant-Hospital and the doctors were aggrieved by the
amount of compensation awarded by the National Commission and also the
manner in which liability was apportioned amongst each of them. While
the claimant was aggrieved by the inadequate amount of compensation,
the appellant-doctors and the Hospital found the amount to be
excessive and too harsh. They further claimed that the proportion of
liability ascertained on each of them is unreasonable. Since, the
appellant-Hospital and the doctors raised similar issues before the
Court; we intend to produce their contentions in brief as under:
On granting the quantum of compensation based on the income of the
deceased:
5. It is the claim of the learned counsel on behalf of the appellant-
doctors and the Hospital that there is no pleading in the petition
of the claimant that the deceased had a stable job or a stable
income, except in paragraph 2A of the petition which states that
the deceased was a Post-Graduate student and she had submitted her
thesis. The only certificate produced by the claimant shows that
she was just a graduate in Arts (English). Further, it is urged by
the learned counsel that the document produced by the claimant - a
computer generated sheet, does not explain for what work the
remuneration, if at all was received by the deceased. Also, whether
the same was a onetime payment of stipend or payment towards
voluntary work, is not explained by the claimant. Further, it is
stated by the learned counsel that there is no averment in the
petition of the claimant as to on what account the said payment was
received by the deceased and whether she has received it as a Child
Psychologist as claimed by the claimant or otherwise.
6. It is also the case of the appellant-doctors and the Hospital that
the claimant had not led any oral evidence with regard to the
income of the deceased and further he has not explained why just a
single document discloses the payment made sometime in the month of
June 1988 in support of the income of the deceased when admittedly,
the couple came to India in the month of March-April, 1998.
Therefore, the learned counsel for the appellant-doctors and the
Hospital have urged that the said document is a vague document and
no reliance could have been placed by the National Commission on
the same to come to the conclusion that the deceased in fact had
such an income to determine and award the compensation as has been
awarded in the impugned judgment and order. From a perusal of the
said document, it could be ascertained that it shows just one time
payment received for some odd jobs. Therefore, it is contended by
the appellant-doctors and the Hospital that the claimant has not
been able to discharge his onus by adducing any positive evidence
in this regard before the National Commission.
7. It is further contended by the learned counsel that the assertion
of the claimant in the petition and in his evidence before the
National Commission that the income of the deceased was $30,000 per
annum is not substantiated by producing cogent evidence. No
appointment letter of the deceased to show that she was employed in
any organization in whatsoever capacity had been produced nor has
the claimant produced any income certificate/salary sheet. No
evidence is produced by the claimant in support of the fact that
the deceased was engaged on any permanent work. No Income Tax
Return has been produced by the claimant to show that she had been
paying tax or had any income in U.S.A.
8. It is further submitted that even if it is assumed that the annual
income of the deceased was $30,000 per annum, apart from deduction
on account of tax, it is also essential for the National Commission
to ascertain the personal living expenses of the deceased which was
required to be deducted out of the annual income to determine the
compensation payable to the claimant. The National Commission was
required to first ascertain the style of living of the deceased-
whether it was Spartan or Bohemian to arrive the income figure of
$30,000 per annum. In India, on account of style and standard of
living of a person, one–third of the gross income is required to be
deducted out of the annual income as laid down in the decision of
this Court in the case of Oriental Insurance Company Ltd. Vs.
Jashuben & Ors[2].
It is further contended by the learned counsel for the appellant-
doctors and the Hospital that no yardstick is available about the
expenditure of the deceased in the U.S.A. The claimant has not adduced
any evidence in this regard. The evidence given by the so-called
expert, Prof. John F. Burke Jr. also does not say anything on this
score.
Even if it is assumed that the annual income of the deceased was
$30,000 per annum for which there is no evidence, 25% thereof is
required to be deducted towards tax. The deduction of tax is much
more as is apparent from the case reported in United India Insurance
Co. Ltd. & Others Vs. Patricia Jean Mahajan & Ors[3]. In fact, the
claimant has neither adduced any evidence in this regard nor has he
produced the relevant statute from which the percentage of tax
deduction can be ascertained.
The claimant was last examined by video conferencing conducted
under the supervision of Justice Lokeshwar Prasad (retired Judge of
Delhi High Court) as local Commissioner. The AMRI Hospital-
appellant’s witness Mr. Satyabrata Upadhyay was cross-examined by the
claimant.
9. The claimant filed M.A. No.1327 of 2009 before the National
Commission after remand order was passed by this Court in the case of
Malay Kumar Ganguly (supra). The claimant now claimed enhancement of
compensation at Rs.78,14,00,000/- under the heads of pecuniary damages
and non-pecuniary damages.
The prayer made in the application was to admit the claim for
compensation along with supporting documents including the opinions of
the foreign experts and further prayed for issuing direction to the
appellant-doctors and the Hospital to arrange for cross-examination of
the foreign experts, if they wish, through video conferencing at their
expenses as directed by this Court in the remand order in Malay Kumar
Ganguly’s case (supra) and for fixing the matter for a final hearing
as soon as possible on a firm and fixed date as the claimant himself
want to argue his petition as was done before this Court, as he being
the permanent resident of U.S.A.
10. The learned senior counsel appearing for the claimant on 9.2.2010
prayed for withdrawal of the application stating that he would file
another appropriate application. Thereafter, on 22.2.2010 the claimant
filed M.A. No.200 of 2010 seeking direction to the National Commission
to permit him to produce affidavit of four foreign experts and their
reports. The National Commission dismissed the same vide order dated
26.4.2010 against which special leave petition No.15070/2010 was filed
before this Court which was withdrawn later on. Again, the claimant
filed M.A. No.594 of 2010 before the National Commission for
examination of four foreign experts to substantiate his claim through
video conferencing at the expense of the appellant-doctors and the
Hospital. The National Commission vide order dated 6.9.2010 dismissed
the application of the claimant for examining foreign experts. Against
this order, the claimant preferred SLP (C) No.3173 of 2011 before this
Court praying for permission to examine two foreign experts, namely,
Prof. John F. Burke Jr. and Prof. John Broughton through video
conferencing and he undertook to bear the expenses for such
examination. The claimant had given up examination of other two
foreign experts, namely, D. Joe Griffith and Ms. Angela Hill. Prof.
John F. Burke Jr. was examined on 26.4.2011 as an Economics Expert to
prove the loss of income of the deceased and the claimant relied upon
an affidavit dated 21.9.2009 and his report dated 18.12.2009 wherein
he has stated that if the deceased would have been employed through
the age of 70, her net income could have been $3,750,213.00. In
addition, the loss of service from a domestic prospective was an
additional amount of $1,258,421.00. The said witness was cross
examined by the learned counsel for the doctors and AMRI Hospital.
The learned Counsel for the appellant-doctors placed reliance upon the
following questions and answers elicited from the above Economics
Expert witness, which are extracted hereunder:-
“Q.16. Can you tell me what was the wages of Anuradha in 1997?
A.16. May I check my file (permitted). I don’t know.
Q.17. Are you aware whether Anuradha was an income tax payee or
not?
A.17. Anu and her husband were filing joint return.
Q.18. Did Anu have any individual income?
A.18. I don’t know.
Q.19. Did Kunal Saha provide you the earning statement of
Anuradha Saha, wherein her gross monthly pay was shown as $ 1060
as on 16.1.1998?
A.19. I don’t believe that I have that information.
…
Q.21. What documents have you taken into consideration of Anu’s
income for giving your opinion?
A.21. None.
Q.22. Whether Anu was employed at the time of her death?
A.22. I don’t think so; I don’t believe so.”
11. The claimant on the other hand, had placed strong reliance upon
the evidence of the Economics Expert Prof. John F. Burke to prove the
income of the deceased as on the date of her death and actual income
if she would have lived up to the age of 70 years as he had also
examined Prof. John Broughton in justification of his claim.
The learned counsel for the appellant-doctors contended that
Prof. John F. Burke, who was examined through video conferencing in
the presence of the Local Commissioner, has estimated the life time
income of the deceased to be 5 million and 125 thousand US dollars
without any supporting material. The said foreign expert witness did
not know whether the deceased had any individual income. He did not
know about the earning statement of the deceased produced by the
claimant. He has also stated that the deceased was not employed at
the time of her death.
12. The learned counsel for the appellant-doctors also submitted that
the earning statement issued by Catholic Home Bureau stating the
income of the deceased at $1060.72 for the period ending 15th January,
1998 cannot be relied upon for the following reasons :-
a) The earning statement was not proved in accordance with law
since only the affidavit of claimant was exhibited and not
the documents before Justice Lokeshwar Prasad (Retired)
i.e. the Local Commissioner on 5.12.2003 during the cross-
examination.
b) There is nothing to show that Anuradha Saha was under
employment at Catholic Home Bureau.
c) Letter of appointment has not been annexed.
d) Federal Tax record has not been produced. The Economics
expert has stated that Anuradha and the claimant were
filing joint tax return.
e) It does not show weekly income of the deceased as has been
treated by NCDRC.
f) Nature of appointment, even if presumed, has not been
stated, i.e., whether it was temporary or permanent,
contractual or casual and period of employment.
It is further submitted by the learned counsel that the evidence
of Prof. John F. Burke, Jr. has not been relied upon to prove the loss
of income of the deceased as it shows that the deceased was not paying
income tax. Therefore, the National Commission has erred in partly
allowing the claim of the claimant while computing the compensation on
the basis of the earning of the deceased.
On awarding compensation under the head of ‘loss of consortium’:
13. The learned senior counsel and other counsel for the appellant-
doctors submitted that the National Commission has erred in awarding
Rs.10,00,000/- towards loss of consortium. This Court in various
following decisions has awarded Rs.5,000/- to Rs.25,000/- on the
aforesaid account:-
|CASE LAW |AMOUNT |
|1. Santosh Devi v. National Insurance Co. Ltd.,|Rs.10,000 |
|(2012) 6 SCC 421 | |
|2. New India Assurance Company Limited v. |Rs.10,000 |
|Yogesh Devi, (2012) 3 SCC 613 | |
|3. National Insurance Company Limited v. |Rs.5,000 |
|Sinitha, (2012) 2 SCC 356 | |
|4. Sunil Sharma v. Bachitar Singh, (2011) 11 |Rs.25,000 |
|SCC 425 | |
|5. Pushpa v. Shakuntala, (2011) 2 SCC 240 |Rs.10,000 |
|6. Arun Kumar Agrawal v. National Insurance |Rs.15,000 |
|Company Limited, (2010) 9 SCC 218 | |
|7. Shyamwati Sharma v. Karam Singh, (2010) 12 |Rs.5,000 |
|SCC 378 | |
|8. Reshma Kumari v. Madan Mohan, (2009) 13 SCC |Rs.15,000 |
|422 in Sarla Dixit v. Balwant Yadav | |
|9. Raj Rani v. Oriental Insurance Company |Rs.7,000 |
|Limited, (2009) 13 SCC 654 | |
|10. Sarla Verma v. Delhi Transport Corporation,|Rs.10,000 |
|(2009) 6 SCC 121 | |
|11. Rani Gupta v. United India Insurance |Rs.25,000 |
|Company Limited, (2009) 13 SCC 498 | |
|12. National Insurance Company Limited v. |Rs.10,000 |
|Meghji Naran Soratiya, (2009) 12 SCC 796 | |
|13. Oriental Insurance Company Limited v. Angad|Rs.10,000 |
|Kol, (2009) 11 SCC 356 | |
|14. Usha Rajkhowa v. Paramount Industries, |Rs.5,000 |
|(2009) 14 SCC 71 | |
|15. Laxmi Devi v. Mohammad. Tabbar, (2008) 12 |Rs.5,000 |
|SCC 165 | |
|16. Andhra Pradesh State Road Transport |Rs.5,000 |
|Corporation v. M. Ramadevi, (2008) 3 SCC 379 | |
|17. State of Punjab v. Jalour Singh, (2008) 2 |Rs.5,000 |
|SCC 660 | |
|18. Abati Bezbaruah v. Dy. Director General, |Rs.3,000 |
|Geological Survey of India, (2003) 3 SCC 148 | |
|19. Oriental Insurance Co. Ltd. v. Hansrajbhai |Rs.5,000 |
|V. Kodala, (2001) 5 SCC 175 | |
|20. Sarla Dixit v. Balwant Yadav, (1996) 3 SCC |Rs.15,000 |
|179 | |
|21. G.M., Kerala SRTC v. Susamma Thomas, (1994)|Rs.15,000 |
|2 SCC 176 | |
|22. National Insurance Co. Ltd. v. Swaranlata |Rs.7,500 |
|Das, 1993 Supp (2) SCC 743 | |
14. Further, the senior counsel and other counsel for the appellant-
doctors contended that the case of Nizam Institute of Medical Sciences
Vs. Prasanth S. Dhananka & Ors.[4] relied upon by the claimant is
misconceived as that case relates to the continuous pain and suffering
of the victim, who had lost control over his lower limb and required
continuous physiotherapy for rest of his life. It was not the amount
for loss of consortium by the husband or wife. Hence, it is submitted
by them that the National Commission erred in granting Rs.10 lakhs
under the head of ‘loss of consortium’.
On the objective and pattern of payment of compensation cases:
15. It is further contended by the learned counsel for the appellant-
doctors that the compensation awarded by the National Commission should
be meant to restore the claimant to the pre-accidental position and in
judging whether the compensation is adequate, reasonable and just,
monetary compensation is required to be arrived at on the principle of
restitutio-in-integram. The National Commission while calculating the
just monetary compensation, the earnings of the claimant who himself is
a doctor, is also required to be taken into consideration. Regarding
the contention of the claimant that in allowing compensation the
American standard is required to be applied, it has not been disclosed
before the Commission as to what is the American standard. On the
contrary, the National Commission was directed by this Court to
calculate the compensation in the case as referred to in Malay Kumar
Ganguly’s case (supra) and on the basis of the principles laid-down by
this Hon’ble Court in various other judgments. The two judgments which
have been referred to in Malay Kumar Ganguly’s case (supra) are
Oriental Insurance Company Ltd. Vs. Jashuben & Ors. (supra) and R.K.
Malik Vs. Kiran Pal[5], where this Court has not directed assessment of
compensation according to American standard. Therefore, the contention
of the claimant that compensation has to be assessed according to
American standard is wholly untenable in law and the same is liable to
be rejected.
16. Further, it is contended by the senior counsel and other counsel
for the appellant-doctors and Hospital that the reliance placed by the
claimant upon the decision of this Court reported in Patricia Jean
Mahajan’s case (supra) clearly shows that the multiplier method
applicable to claim cases in India was applied after taking note of
contribution by the deceased for his dependants. The said case is a
clear pointer to the fact that even if a foreigner dies in India, the
basis of calculation has to be applied according to Indian Standard and
not the American method as claimed by the claimant.
17. Further, the word ‘reasonable’ implies that the appellant-doctors
and AMRI Hospital cannot be saddled with an exorbitant amount as
damages - which cannot either be treated as an obvious or natural
though not foreseeable consequence of negligence.
18. Further, the learned senior counsel has placed reliance on the
judgment of this Court in Nizam Institute of Medical Sciences (supra)
wherein this Court enhanced the original compensation awarded to the
claimant-victim who had been paralyzed due to medical negligence from
waist down, under the heads: requirement of nursing care; need for
driver-cum-attendant, as he was confined to a wheel chair; and he
needed physiotherapy.
In the present case, the negligence complained of is against
the doctors and the Hospital which had resulted in the death of the
wife of the claimant. In that case, the extent of liability ought to be
restricted to those damages and expenses incurred as a direct
consequence of the facts complained of, while setting apart the amount
to be awarded under the head ‘loss of dependency’. The relevant portion
of the aforesaid judgment of this Court in the Nizam’s Institute of
Medical Sciences is quoted hereunder:
“…………. The adequate compensation that we speak of, must to some
extent, be a rule of thumb measure, and as a balance has to be
struck, it would be difficult to satisfy all the parties
concerned.” (paragraph 88)
19. It is further contended by the learned senior counsel and other
counsel for the appellant-doctors that the claimant failed to produce
any document by taking recourse to Order XLI Rule 27 of Code of Civil
Procedure and Order LVII of Supreme Court Rules to justify his claims
of approximately an additional amount of Rs.20 crores including the
cost of filing of the claim for compensation to the amount of
compensation demanded for medical negligence which is a far-fetched
theory and every negative happening in the claimant’s life post-death
of his wife Anuradha Saha cannot be attributed as the consequence due
to medical negligence. Therefore, the enhancement of compensation as
prayed for by the claimant stood rightly rejected by the National
Commission by recording reasons. Therefore, this Court need not examine
the claim again.
On the use of multiplier method for determining compensation :
20. It is contended by the senior counsel and other counsel for the
appellants that the multiplier method has enabled the courts to bring
about consistency in determining the loss of dependency more
particularly, in cases of death of victims of negligence, it would be
important for the courts to harmoniously construct the aforesaid two
principles to determine the amount of compensation under the heads:
expenses, special damages, pain and suffering.
21. In Sarla Verma’s case (supra), this Court, at Paragraphs 13 to 19,
held that the multiplier method is the proper and best method for
computation of compensation as there will be uniformity and consistency
in the decisions. The said view has been reaffirmed by this Court in
Reshma Kumari & Ors. Vs. Madan Mohan & Anr., Civil Appeal No.4646 of
2009 decided on April 2, 2013.
22. It is further submitted by the learned counsel that in capitalizing
the pecuniary loss, a lesser multiplier is required to be applied
inasmuch as the deceased had no dependants. In support of his
contention, reliance is placed upon the decision of this Court
reported in Patricia Mahajan’s case (supra) in which this Court
having found a person who died as a bachelor, held that a lesser
multiplier is required to be applied to quantify the compensation.
23. It is further contended by the senior counsel and other counsel for
the appellant-doctors that in Susamma Thomas (supra) this Court has
observed that “in fatal accident cases, the measure of damage is
the pecuniary loss suffered and is likely to be suffered by each
dependant as a result of the death”. This means that the court
while awarding damages in a fatal accident case took into account
the pecuniary loss already suffered as a result of the negligence
complained of, and the loss of dependency based on the
contributions made by the deceased to the claimant until her death.
While the former may be easily ascertainable, the latter has been
determined by the National Commission by using the multiplier
method and in respect of the use of the multiplier method for the
purpose of calculating the loss of dependency of the claimant, in
paragraph No. 16 of the aforesaid judgment this Hon’ble Court
observed as follows:
“16. It is necessary to reiterate that the multiplier method is
logically sound and legally well-established. There are some
cases which have proceeded to determine the compensation on the
basis of aggregating the entire future earnings for over the
period the life expectancy was lost, deducted a percentage there
from towards uncertainties of future life and award the
resulting sum as compensation. This is clearly unscientific….”
24. In Sarla Verma’s case (supra) this Court sought to define the
expression ‘just compensation’ and opined as under:
“16.….Just Compensation” is adequate compensation which is fair
and equitable, on the facts and circumstances of the case, to
make good the loss suffered as a result of the wrong, as far as
money can do so, by applying the well-settled principles
relating to award of compensation. It is not intended to be a
bonanza, largesse or source of profit.
17. Assessment of compensation though involving certain
hypothetical considerations should nevertheless be objective.
Justice and justness emanate from equality in treatment,
consistency and thoroughness in adjudication, and fairness and
uniformity in the decision-making process and the decisions.
While it may not be possible to have mathematical precision or
identical awards in assessing compensation, same or similar
facts should lead to awards in the same range. When the
factors/inputs are the same, and the formula/legal principles
are the same, consistency and uniformity, and not divergence and
freakiness, should be the result of adjudication to arrive at
just compensation.”
(Emphasis laid by this Court)
25. It was also contended by the learned counsel for the appellant-
doctors that apart from accident cases under the Motor Vehicles
Act, 1988, the multiplier method was followed in Lata Wadhwa &
Ors. Vs. State of Bihar[6] by a three Judge Bench of this Court,
which is a case where devastating fire took place at Jamshedpur
while celebrating the birth anniversary of Sir Jamshedji Tata.
Even in M.S. Grewal & Anr. Vs. Deep Chand Sood and Ors.[7], the
multiplier method was followed wherein school children were
drowned due to negligence of school teachers. In the Municipal
Corporation of Delhi Vs. Uphaar Tragedy Victims Association &
Ors.[8] the multiplier method was once again followed where death
of 59 persons took place in a cinema hall and 109 persons suffered
injury.
26. Therefore, it is contended by the senior counsel and other counsel
for the appellant-doctors that multiplier method should be used
while awarding compensation to the victims because it leads to
consistency and avoids arbitrariness.
On contributory negligence by the claimant
27. The learned senior counsel and other counsel for the appellant-
doctors submitted that the National Commission in the impugned
judgment should have deducted 25% of the compensation amount
towards contributory negligence of the claimant caused by his
interference in the treatment of the deceased. Instead, the
National Commission has deducted only 10% towards the same.
According to the learned senior counsel and other counsel for the
appellants, the National Commission erred in not adhering to the
tenor set by this Court while remanding the case back to it for
determining the compensation to arrive at an adequate amount which
would also imply an aspect of contributory negligence, individual
role and liability of the Hospital and the doctors held negligent.
Therefore, this Court is required to consider this aspect and
deduct the remaining 15% out of the compensation awarded by the
National Commission towards negligence by the claimant.
On enhancement of compensation claimed by the claimant :
28. The learned senior counsel and other counsel for the appellant-
doctors and the Hospital contended that enhanced claim of the
claimant in his appeal is without any amendment to the pleadings
and therefore, is not maintainable in law. The claimant in his
written submission filed during the course of arguments in July,
2011 before the National Commission, has made his claim of
Rs.97,56,07,000/- which the National Commission has rightly
rejected in the impugned judgment holding that it was legally
impermissible for it to consider that part of the evidence which
is strictly not in conformity with the pleadings in order to award
a higher compensation as claimed by the claimant. In justification
of the said conclusion and finding of the National Commission, the
learned counsel have placed reliance upon the principle analogous
to Order II Rule 2 of C.P.C., 1908 and further contended that the
claimant who had abandoned his claim now cannot make new claims
under different heads. Further, it is submitted by Mr. Vijay
Hansaria, the learned senior counsel on behalf of AMRI Hospital
that though the claimant had filed an application on 9.11.2009 in
M.A. No.1327 of 2009 for additional claim; the said application
was withdrawn by him on 9.2.2010. Therefore, his claim for
enhancing compensation is not tenable in law. In support of the
said contention, he has placed reliance upon the judgment of this
Court in National Textile Corporation Ltd. Vs. Nareshkumar
Badrikumar Jagad[9], wherein it is stated by this Court that the
pleadings and particulars are necessary to enable the court to
decide the rights of the parties in the trial.
In support of the said proposition of law, reliance was also
placed upon other judgment of this Court in Maria Margarida Sequeria
Fernandes Vs. Erasmo Jack de Sequeria[10], wherein this Court, at
paragraph 61, has held that :-
“in civil cases, pleadings are extremely important for
ascertaining title and possession of the property in question.”
The said view of this Court was reiterated in A. Shanmugam Vs. Ariya
Kshatriya Rajakula Vamsathu Madalaya Nandavana Paripalanai Sangam[11],
29. Further, the learned senior counsel for the appellant-doctors and
AMRI Hospital placed reliance upon the provisions of the Consumer
Protection Act, 1986 and the Motor Vehicles Act, 1988 to urge that
though the Consumer Courts have pecuniary jurisdiction for
deciding the matters filed before it whereby the pecuniary
jurisdiction of the District Forum is Rs.20 lakhs, State
Commission is from Rs.20 lakhs to Rs.1 crore, whereas for National
Commission, it is above Rs.1 crore, the Motor Accident Claims
Tribunal have unlimited jurisdiction. In the Consumer Protection
Act, 1986 there is a provision for limitation of 2 years for
filing of complaint under Section 24-A of the Act and there is no
limitation prescribed in the Motor Vehicles Act, 1988.
30. Sections 12 and 13 of the Consumer Protection Act, 1986 provide as
to how the complaint has to be made and the procedure to be
followed by the claimant for filing the complaint. Rule 14(c) of
the Consumer Protection Rules, 1987 and the Consumer Protection
Regulations, 2005 require the complainant to specify the relief
which he claims. The filing of the complaint/appeal/revision is
dealt with Consumer Protection Regulations, 2005. Under the Motor
Vehicles Act, 1988, a victim or deceased’s legal representative
does not have to specify the amount claimed as held by this Court
in the case of Nagappa Vs. Gurudayal Singh[12].
31. Under Section 158(6) of the Motor Vehicles Act, 1988, the report
forwarded to the Claims Tribunal can be treated as an application
for compensation even though no claim is made or specified amount
is claimed whereas under the Consumer Protection Act, a written
complaint specifying the claim to be preferred before the
appropriate forum within the period of limitation prescribed under
the provision of the Act is a must.
32. Under Section 163-A of the Motor Vehicles Act, 1988 a claimant is
entitled to compensation under the structured formula even without
negligence whereas no such provision exists under the Consumer
Protection Act.
33. In this regard, the learned senior counsel and other counsel for
the appellant-doctors and Hospital placed reliance upon the
judgment of this Court in the case of Ibrahim Vs. Raju.[13] and
submitted that the said case does not apply to the fact situation
for two reasons, namely, it was a case under the Motor Vehicles
Act, 1988, whereas this case involves the Consumer Protection Act.
Secondly, this Court in the previous case, enhanced the
compensation observing that due to financial incapacity the
claimant could not avail the services of the competent lawyer,
which is not the case in hand, in as much as the claimant had
hired the services of an advocate who is Bar-at-Law and the
President of the Supreme Court Bar Association.
34. Further, the learned counsel for the appellant-doctors placed
reliance upon the judgment of this Court in the case of Sanjay
Batham Vs. Munnalal Parihar[14], which is a case under the Motor
Vehicles Act, 1988. This Court enhanced the compensation
following the judgment in Nagappa’s case (supra). The learned
counsel also placed reliance upon the judgment of this Court in
Nizam Institute’s case (supra) where the complainant had made a
claim of Rs.7.50 crores. This Court enhanced the compensation
from Rs.15.50 lakhs to Rs.1 crore. But, the Nizam Institute’s
case is not a case for the proposition that a claimant can be
awarded compensation beyond what is claimed by him. On the other
hand, it was a case of peculiar facts and circumstances since the
claimant had permanent disability which required constant medical
attention, medicines, services of attendant and driver for
himself. The cases referred to by the claimant regarding medical
negligence in his written submission are distinguishable from the
present case and in none of these cases upon which reliance has
been placed by the claimant, this Court has awarded compensation
beyond what is claimed. Therefore, the reliance placed upon the
aforesaid judgments by the claimant does not support his claim and
this Court need not accept the same and enhance the compensation
as has been claimed by him since he is not entitled to the same.
Death of the claimant’s wife due to cumulative effect of negligence :
35. This Court vide its judgment in Malay Kumar Ganguly’s case (supra)
has held that:
“186. A patient would feel the deficiency in service having
regard to the cumulative effect of negligence of all
concerned. Negligence on the part of each of the treating
doctors as also the hospital may have been the contributing
factors to the ultimate death of the patient. But, then in a
case of this nature, the court must deal with the
consequences the patient faced, keeping in view the
cumulative effect. In the instant case, negligent action has
been noticed with respect to more than one respondent. A
cumulative incidence, therefore, has led to the death of the
patient.”
The two words “may” and “cumulative incidence” in the abovesaid
observations of this Court is relevant for determining the
quantification of compensation. It is submitted that this Court is
also not sure that the negligence solely has contributed to the death
of the claimant’s wife. At the most, this Court is of the view that
the negligence may have contributed to the death of the claimant’s
wife. The incidences leading to or contributing to the death of the
deceased are:
i) Disease TEN itself is a fatal disease which has very high
mortality rate.
ii) TEN itself produces septicemic shock and deceased Anuradha
died because of such consequence.
iii) No direct treatment or treatment protocol for TEN.
iv) Negligence of many in treating deceased Anuradha.
v) Contributory negligence on the part of Dr.Kunal Saha and
his brother.
Furthermore, it is observed factually that lethal combination of
Cisapride and Fluconazole had been used for a number of days at Breach
Candy Hospital during her stay which leads to cardiac arrest.
Therefore, the National Commission ought to have considered different
incidences as aforesaid leading to the death of the claimant’s wife so
as to correctly apportion the individual liability of the doctors and
the AMRI Hospital in causing the death of the wife of the claimant.
36. Further, with regard to the liability of each of the doctors and
the AMRI Hospital, individual submissions have been made which
are presented hereunder:
Civil Appeal No. 692/2012
37. It is the case of the appellant-AMRI Hospital that the National
Commission should have taken note of the fact that the deceased
was initially examined by Dr. Sukumar Mukherjee and the alleged
medical negligence resulting in the death of the deceased was due
to his wrong medication (overdose of steroid). Therefore, the
Hospital has little or minimal responsibility in this regard,
particularly, when after admission of the deceased in the Hospital
there was correct diagnosis and she was given best possible
treatment. The National Commission erred in apportioning the
liability on the Hospital to the extent of 25% of the total award.
This Court in the earlier round of litigation held that there is
no medical negligence by Dr. Kaushik Nandy, the original
respondent No.6 in the complaint, who was also a doctor in the
appellant-Hospital.
38. Further, the learned senior counsel for the AMRI Hospital
submitted that the arguments advanced on behalf of the appellants-
doctors Dr. Balram Prasad in C.A. No.2867/2012, Dr. Sukumar
Mukherjee in C.A. No.858/2012 and Dr. Baidyanath Haldar in C.A.
731/2012 with regard to percentage, on the basis of costs imposed
in paragraph 196 of the judgment in the earlier round of
litigation is without any basis and further submitted that under
the heading – ‘Individual Liability of Doctors’ findings as to
what was the negligence of the doctors and the appellant AMRI
Hospital is not stated. If the said findings of the National
Commission are considered, then it cannot be argued that the
appellant AMRI Hospital should pay the highest compensation.
Further, the learned senior counsel rebutted the submission of the
claimant contending that since he had himself claimed special
damages against the appellant-doctors, the Hospital and Dr. Abani
Roy Choudhary in the complaint before the National Commission,
therefore, he cannot now contend contrary to the same in the
appeal before this Court.
CIVIL APPEAL NO. 858 OF 2012
39. It is the case of the appellant- Dr. Sukumar Mukherjee that the
National Commission while apportioning the liability of the
appellant, has wrongly observed that :
“Supreme Court has primarily found Dr.Sukumar Mukherjee and
AMRI hospital guilty of negligence and deficient in service
on several counts. Therefore, going by the said findings and
observations of Supreme Court we consider it appropriate to
apportion the liability of Dr. Sukumar Mukherjee and AMRI
hospital in equal proportion, i.e. each should pay 25% i.e.
38,90,000/- of the awarded amount of 1,55,60,000/-.”
40. It is submitted by the learned counsel for the appellant - Dr.
Sukumar Mukherjee that scrutiny of the judgment in Malay Kumar
Ganguly’s case (supra) will show that at no place did the Hon’ble
Supreme Court made any observation or recorded any finding that
the appellant Dr. Mukherjee and the Hospital are primarily
responsible. On the contrary, under the heading “Cumulative Effect
of Negligence” under paras 186 and 187, this Hon’ble Court has
held as under:
“186. A patient would feel the deficiency in service having
regard to the cumulative effect of negligence of all
concerned. Negligence on the part of each of the treating
doctors as also the hospital may have been contributing
factors to the ultimate death of the patient. But, then in a
case of this nature, the court must deal with the
consequences the patient faced keeping in view the cumulative
effect. In the instant case, negligent action has been
noticed with respect to more than one respondent. A
cumulative incidence, therefore, has led to the death of the
patient.
187. It is to be noted that doctrine of cumulative effect is
not available in criminal law. The complexities involved in
the instant case as also differing nature of negligence
exercised by various actors, make it very difficult to distil
individual extent of negligence with respect to each of the
respondent. In such a scenario finding of medical negligence
under Section 304-A cannot be objectively determined.”
41. It is further submitted by the learned counsel for the appellant-
Dr. Sukumar Mukherjee that the wife of the claimant was suffering
from rash/fever from April 1998, she was seen by the appellant-
Dr.Sukumar Mukherjee only on three occasions before his pre-
planned visit to the U.S.A. for attending a medical conference
i.e. on 26.4.1998, 7.5.1998 and on the night of 11.5.1998 and then
the appellant-Dr.Mukherjee left India for USA and returned much
after the demise of the claimant’s wife. On her first examination
on 26.4.1998 the appellant suggested a host of pathological
tests. The patient was requested to visit the Doctor with these
reports. No drugs were prescribed by the appellant-Dr.Mukherjee at
this examination. On 7.5.1998, Anuradha Saha walked into the
clinic of the appellant-Dr.Mukherjee at 9.30 p.m. and reported
that she was uncomfortable because she had consumed food of
Chinese cuisine. The appellant-Dr.Mukherjee noticed that there was
a definite change in the nature of the rash. Based on the
information furnished and the status and condition of the patient,
she was diagnosed to be suffering from allergic vasculitis and the
appellant-Dr.Mukherjee commenced treating the patient with
Depomedrol, which is a drug belonging to the family of steroids.
The appellant-Dr.Mukherjee recommended Depomedrol 80 mg.IM twice
daily for 3 days to be reconsidered after Anuradha Saha was
subject to further review. Depomedrol is very much indicated in
Vasculitis (USPDI 1994): “Depomedrol is anti-inflammatory, anti-
allergic drug. Therefore, it is Doctor’s judgment to use the
drug.” The appellant-Dr.Mukherjee administered one injection of
Depomedrol on the night of 7.5.1998. He did not administer any
other injections to the deceased thereafter. It is further
submitted that much higher dose of Depomedrol have been
recommended in USPDI 1994 and CDRom Harisons Principles of
Medicine 1998 in by pass skin diseases like multiple sclerosis
with a dose of 177.7 mg daily for 1 week and 71 mg on every other
day for one month.
42. On 11.5.1998 when the appellant-Dr.Mukherjee examined Anuradha
Saha at the AMRI Hospital prior to his departure to U.S.A., he
prescribed a whole line of treatment and organized reference to
different specialists/consultants. He recommended further
pathological tests because on examining the patient at the AMRI,
he noticed that she had some blisters which were not peeled off.
There was no detachment of skin at all. He also requested in
writing the treating consultant physician of AMRI Dr. Balram
Prasad, MD to organize all these including referral to all
specialists. The appellant-Dr.Mukherjee suspected continuation of
allergic Vasculitis in aggravated form and prescribed steroids in
a tapering dose on 11.5.1998 and advised other tests to check
infection and any immuno abnormalities. It is stated that the
appellant-Dr.Mukherjee did not examine the patient thereafter and
as aforementioned, he left on a pre-arranged visit to U.S.A. for a
medical conference. No fees were charged by the appellant-
Dr.Mukherjee. It is further submitted that before the appellant-
Dr.Mukherjee started the treatment of the deceased, Dr.Sanjoy
Ghose on 6.5.1998 treated her and during the period of treatment
of the appellant-Dr. Mukherjee from 7.5.1998 to 11.5.1998, on
9.5.1998 Dr.Ashok Ghosal (Dermatologist) treated Anuradha Saha.
These facts were not stated in the complaint petition and
concealed by the claimant. To this aspect, even this Hon’ble Court
has also recorded a finding in the case referred to supra that the
patient was also examined by two consultant dermatologists Dr.A.K.
Ghosal and Dr. S. Ghosh who diagnosed the disease to be a case of
vasculitis.
43. It is further submitted by the learned counsel for the appellant-
Dr. Mukherjee that the cause of death as recorded in the death
certificate of the deceased is “septicemic shock with multi system
organ failure in a case of TEN leading to cardio respiratory
arrest”. Blood culture was negative prior to death. There was no
autopsy to confirm the diagnosis at Breach Candy Hospital, Mumbai.
Dr. Udwadia observed on 27.5.1998 that the patient has developed
SIRS in absence of infection in TEN. The patient expired on
28.5.1998 and the death certificate was written by a junior doctor
without the comments of Dr. Udwadia. It is submitted by the
learned counsel that there is neither any allegation nor any
finding by this Court that the doctors of the AMRI Hospital had
contributed to septicemia. The mere finding that the patient was
not properly dressed at AMRI Hospital where she stayed for only 6
days of early evocation of the disease do not justify contribution
to septicemic shock of the deceased. Further, there is no record
to show that at AMRI Hospital the skin of the patient had peeled
out thereby leading to chance of developing septicemia. On the
other hand, it is a fact borne out from record that the patient
was taken in a chartered flight to Breach Candy Hospital, Bombay
against the advice of the doctors at Kolkata and further nothing
is borne out from the records as what precaution were taken by the
claimant while shifting the patient by Air to Breach Candy
Hospital thereby leading to the conclusion that during the travel
by chartered flight she might have contracted infection of the
skin leading to septicemia. It is further submitted by the learned
counsel for the appellant- Dr. Sukumar Mukherjee that the fact
that the disease TEN requires higher degree of care since there
is no definite treatment, such high degree of care will be
relatable to comfort but not definitely to septicemia that
occurred at Breach Candy Hospital. Hence, negligence has to be
assessed for damages for failure to provide comfort to the patient
and not a contributory to septicemia shock suffered by the
deceased.
44. It is submitted by the learned counsel for appellant-Dr. Sukumar
Mukherjee that there is no finding or allegation that the drug
Depomedrol prescribed by the appellant-Dr.Mukherjee caused the
disease TEN. The appellant advised a number of blood tests on
11.5.98 in AMRI Hospital to detect any infection and immune
abnormality due to steroids and to foresee consequences. It is
further submitted that Breach Candy Hospital records show that the
patient was haemo-dynamically stable. Even Dr.Udwadia of Breach
Candy Hospital on 17.5.1998 doubted with regard to the exact
disease and recorded the disease as TEN or Steven Johnson Syndrom.
Therefore, the National Commission ought to have considered
different incidences as aforesaid leading to the death of the
claimant’s wife and the quantum of damages shall have to be divided
into five parts and only one part shall be attributed to the
negligence of the appellant-Dr.Mukherjee.
Civil Appeal No. 2867 of 2012
45. It is the case of Dr. Balram Prasad-appellant in Civil Appeal No.
2867 of 2012 that on 11.05.1998, Dr. Sukumar Mukherjee, before
leaving for U.S.A., attended the patient at the AMRI Hospital at
2.15 p.m. and after examining the deceased, issued the second and
last prescription on the aforesaid date without prescribing
anything different but re-assured the patient that she would be
fine in a few weeks’ time and most confidently and strongly
advised her to continue with the said injection for at least four
more days. This was also recorded in the aforesaid last
prescription of the said date. Further, it is stated that without
disclosing that he would be out of India from 12.05.1998, he asked
the deceased to consult the named Dermotologist, Dr. B.Haldar @
Baidyanath Haldar, the appellant in Civil Appeal No. 731 of 2012,
and the physician Dr. Abani Roy Chowdhury in his last prescription
on the last visit of the deceased. Most culpably, he did not even
prescribe I.V. Fluid and adequate nutritional support which was
mandatory in that condition. Dr. Haldar took over the treatment
of the deceased as a Dermatologist Head and Dr. Abani Roy
Chowdhury as Head of the Medical Management from 12.05.1998 with
the positive knowledge and treatment background that the patient
by then already had clear intake of 880 mg of Depomedrol injection
as would be evident from AMRI’s treatment sheet dated 11.05.1998.
46. It is further stated by the claimant in the complaint lodged
before National Commission that it contained specific averments of
negligence against the appellant-doctors. The only averment of
alleged negligence was contained in paragraph 44 of the complaint
which reads as under:
“44. That Dr. Balram Prasad as attending physician at AMRI
did do nothing better. He did not take any part in the
treatment of the patient although he stood like a second
fiddle to the main team headed by the opposite party No. 2
and 3. He never suggested even faintly that AMRI is not an
ideal place for treatment of TEN patient; on the converse, he
was full of praise for AMRI as an ideal place for the
treatment of TEN patients knowing nothing how a TEN patient
should be treated.”
47. The claimant has also placed strong reliance upon the answer given
by him to question No. 26 in his cross examination which reads
thus:
“Q.No.26. Dr. Prasad says that Depomedrol dose according to
the treatment sheet of the AMRI Hospital, he made a
specific suggestion that the dose should be limited to that
particular day only. Is it correct?
Ans. It is all matter of record. Yeah, he said one day in
AMRI record.”
48. Though, the appellant-Dr. Balram Prasad was accused in the
criminal complaint lodged by the claimant he was neither proceeded
against as an accused in the criminal complaint nor before the
West Bengal Medical Council but was named as a witness. Further,
it is stated by the claimant that he urged before the National
Commission as well as before this Court in unequivocal terms that
the bulk of the compensation awarded would have to be in the
proportion of 80% on the AMRI Hospital, 15% on Dr. Sukumar
Mukherjee and balance between the rest. Despite the aforesaid
submission before the National Commission, the claimant claims
that it has erred in awarding the proportion of the liability
against each of the appellant-doctors in a manner mentioned in the
table which is provided hereunder:
| NAME OF THE PARTY |AMOUNT TO BE PAID |
|Dr. Sukumar Mukherjee |Compensation:Rs.38,90,000 |
| |Cost of litigation:1,50,000 |
|Dr. Baidyanath Haldar |Compensation:Rs.25,93,000 |
| |Cost of litigation: Rs.1,00,000 |
|Dr. Abani Roy Chowdhury (since|Compensation: 25,00,000 |
|deceased) (claim foregone) | |
|AMRI Hospital |Compensation: Rs.38,90,000 |
| |Cost of litigation: Rs.1,50,000 |
|Dr. Balram Prasad |Compensation: Rs.25,93,000 |
| |Cost of litigation: Rs.1,00,000 |
49. The appellant-Dr. Balram Prasad in Civil Appeal No.2867/2012
contends that he was the junior most attending physician attached
to the Hospital, he was not called upon to prescribe medicines but
was only required to continue and/or monitor the medicines
prescribed by the specialist in the discipline. But realizing the
seriousness of the patient, the appellant had himself referred the
patient to the three specialists and also suggested for
undertaking a skin biopsy. The duty of care ordinarily expected of
a junior doctor had been discharged with diligence by the
appellant. It is further contended that in his cross-examination
before the National Commission in the enquiry proceeding, the
claimant himself has admitted that the basic fallacy was committed
by three physicians, namely, Dr. Mukherjee, Dr. Haldar and Dr. Roy
Chowdhury. The above facts would clearly show that the role played
by the appellant-Doctors in the treatment of the deceased was only
secondary and the same had been discharged with reasonable and due
care expected of an attending physician in the given facts and
circumstances of the instant case.
50. In the light of the above facts and circumstances, the contention
of the claimant that the death of the claimant’s wife was neither
directly nor contributorily relatable to the alleged negligent act
of the appellant- Dr. Balram Prasad, it is most respectfully
submitted that the National Commission was not justified in
apportioning the damages in the manner as has been done by the
National Commission to place the appellant on the same footing as
that of Dr. Baidyanath Haldar, who was a senior doctor in-charge
of the management/treatment of the deceased.
51. The learned senior counsel for the appellant-Dr. Balram Prasad
further urged that the National Commission has also erred in not
taking into account the submissions of the claimant that 80% of
the damages ought to have been levied on the Hospital, 15% on Dr.
Sukumar Mukherjee and the balance between the rest. It is urged
that the proportion of the compensation amount awarded on the
appellant is excessive and unreasonable which is beyond the case
of the claimant himself.
CIVIL APPEAL NO. 731 OF 2012
52. The learned counsel Mr. Ranjan Mukherjee appearing on behalf of
the appellant in this appeal has filed the written submissions on
15.4.2013. He has reiterated his submission in support of his
appeal filed by the said doctor and has also adopted the arguments
made in support of the written submissions filed on behalf of the
other doctors and AMRI Hospital by way of reply to the written
submissions of the claimant. Further, he has submitted that the
appellant Dr. Baidyanath Haldar is about 80 years and is ailing
with heart disease and no more in active practice. Therefore, he
requested to set aside the liability of compensation awarded
against him by allowing his appeal.
All the doctors and the Hospital urged more or less the same
grounds.
Civil Appeal No. 2866 of 2012
53. This appeal has been filed by the claimant. It is the grievance
of the claimant that the National Commission rejected more than
98% of the total original claim of Rs.77.7 crores which was
modified to Rs.97.5 crores later on by adding “special damages”
due to further economic loss, loss of employment, bankruptcy etc.
suffered by the claimant in the course of 15-year long trial in
relation to the proceedings in question before the National
Commission and this Court. The National Commission eventually
awarded compensation of only Rs.1.3 crores after reducing from the
total award of Rs.1.72 crores on the ground that the claimant had
“interfered” in the treatment of his wife and since one of the
guilty doctors had already expired, his share of compensation was
also denied.
54. Therefore, the present appeal is filed claiming the just and
reasonable compensation urging the following grounds:
a) The National Commission has failed to consider the pecuniary,
non-pecuniary and special damages as extracted hereinbefore.
b) The National Commission has made blatant errors in
mathematical calculation while awarding compensation using
the multiplier method which is not the correct approach.
c) The National Commission has erroneously used the multiplier
method to determine compensation for the first time in Indian
legal history for the wrongful death caused by medical
negligence of the appellant-doctors and the AMRI Hospital.
d) The National Commission has reinvestigated the entire case
about medical negligence and went beyond the observations
made by this Court in Malay Kumar Ganguly’s case (supra) by
holding that the claimant is also guilty for his wife’s
death.
e) The National Commission has failed to grant any interest on
the compensation though the litigation has taken more than 15
years to determine and award compensation.
f) The National Commission has failed to consider the
devaluation of money as a result of “inflation” for awarding
higher compensation that was sought for in 1998.
g) It is also vehemently contended by the claimant that the
National Commission has made blatant and irresponsible
comment on him stating that he was trying to “make a fortune
out of a misfortune.” The said remark must be expunged.
55. The appellant-doctors and the AMRI Hospital contended that the
compensation claimed by the claimant is an enormously fabulous
amount and should not be granted to the claimant under any
condition. This contention ought to have been noticed by the
National Commission that it is wholly untenable in law in view of
the Constitution Bench decision of this Court in the case of
Indian Medical Association Vs. V.P. Shantha & Ors[15], wherein
this Court has categorically disagreed on this specific point in
another case wherein “medical negligence” was involved. In the
said decision, it has been held at paragraph 53 that to deny a
legitimate claim or to restrict arbitrarily the size of an award
would amount to substantial injustice to the claimant.
56. Further, in a three Judge Bench decision of this Court in Nizam
Institute’s case(supra) it has been held that if a case is made
out by the claimant, the court must not be chary of awarding
adequate compensation. Further, the claimant contends that this
Court has recently refused to quash the defamation claim to the
tune of Rs.100 crores in Times Global Broadcasting Co. Ltd. & Anr.
Vs. Parshuram Babaram Sawant [SLP (Civil) No(s) 29979/2011 decided
on 14-11-2011], suggesting that in appropriate cases, seemingly
large amount of compensation is justified.
57. The claimant further urged that this is the fundamental principle
for awarding “just compensation” and this Court has categorically
stated while remanding the case back to the National Commission
that the principle of just compensation is based on “restitutio in
integrum”, i.e. the claimant must receive the sum of money which
would put him in the same position as he would have been if he had
not sustained the wrong. It is further contended that the
claimant had made a claim referred to supra under specific
headings in great detail with justification for each of the heads.
Unfortunately, despite referring to judicial notice and the said
claim-table in its final judgment, the National Commission has
rejected the entire claim on the sole ground that since the
additional claim was not pleaded earlier, none of the claims made
by the claimant can be considered. Therefore, the National
Commission was wrong in rejecting different claims without any
consideration and in assuming that the claims made by the claimant
before the Tribunal cannot be changed or modified without prior
pleadings under any other condition. The said view of the National
Commission is contrary to the numerous following decisions of this
Court which have opined otherwise:-
Ningamma and Anr. Vs. United India Insurance Company Ltd.[16], Malay
Kumar Ganguly’s case referred to supra, Nizam Institute’s case
(supra), Oriental Insurance Company Ltd. Vs. Jashuben & Ors. (supra),
R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors[17], Raj
Rani & Ors Vs. Oriental Insurance Company Ltd. & Ors[18]., Laxman @
Laxman Mourya Vs. Divisional Manager Vs. Oriental Insurance Co. Ltd.
& Anr.[19] and Ibrahim Vs. Raju & Ors. (supra).
58. The claimant has further argued that the just compensation for
prospective loss of income of a student should be taken into
consideration by the National Commission. In this regard, he has
contended that this Court while remanding the case back to the
National Commission only for determination of quantum of
compensation, has made categorical observations that compensation
for the loss of wife to a husband must depend on her “educational
qualification, her own upbringing, status, husband’s income, etc.”
In this regard, in the case of R.K. Malik & Anr. (supra)
(paragraphs 30-32) this Court has also expressed similar view that
status, future prospects and educational qualification must be
judged for deciding adequate compensation. It is contended by the
claimant that it is an undisputed fact that the claimant’s wife
was a recent graduate in Psychology from a highly prestigious Ivy
League School in New York who had a brilliant future ahead of her.
Unfortunately, the National Commission has calculated the entire
compensation and prospective loss of income solely based on a pay
receipt of the victim showing a paltry income of only $ 30,000
per year, which she was earning as a graduate student. This was
a grave error on the part of the National Commission, especially,
in view of the observations made by this Court in the case of
Arvind Kumar Mishra Vs. New India Assurance Co.[20], wherein this
Court has calculated quantum of compensation based on ‘reasonable’
assumption about prospective loss as to how much an Engineering
student from BIT might have earned in future even in the absence
of any expert’s opinion (paragraphs 13,14). The principles of
this case were followed in many other cases namely, Raj Kumar Vs.
Ajay Kumar & Anr.[21], Govind Yadav Vs. New India Insurance Co.
Ltd.[22], Sri Ramachandrappa Vs. Manager, Royal Sundaram Alliance
Insurance[23], Ibrahim Vs. Raju & Ors. (supra),Laxman @ Laxman
Mourya Vs. Divisional Manager, Oriental Insurance Co. Ltd. (supra)
and Kavita Vs. Dipak & Ors.[24]
59. In view of the above said decisions of this Court, the prospective
loss of income for the wrongful death of claimant’s wife must be
reasonably judged based on her future potential in the U.S.A. that
has also been calculated scientifically by economic expert, Prof.
John F. Burke.
60. It is further the case of the claimant that the National
Commission has completely failed to award “just compensation” due
to non consideration of all the following critical factors:
1) The Guidelines provided by Supreme Court: This Court has
provided guidelines as to how the National Commission
should arrive at an “adequate compensation” after
consideration of the unique nature of the case.
2) Status and qualification of the victim and her husband.
3) Income and standard of living in the U.S.A.: As both the
deceased and the claimant were citizens of U.S.A. and
permanently settled as a “child psychologist” and AIDs
researcher, respectively, the compensation in the instant
case must be calculated in terms of the status and standard
of living in the U.S.A.. In Patricia Mahajan’s case
(supra), where a 48 year old US citizen died in a road
accident in India, this Court has awarded a compensation of
more than Rs. 16 crores after holding that the compensation
in such cases must consider the high status and standard of
living in the country where the victim and the dependent
live.
4) Economic expert from the U.S.A.:
The claimant initially filed a complaint before the National
Commission soon after the wrongful death of his wife in 1998
with a total claim of Rs.77.7 crores against the appellant-
doctors and AMRI Hospital which was rejected and this Court
remanded this matter to the National Commission for
determination of the quantum of compensation with a specific
direction in the final sentence of judgment that “foreign
experts” may be examined through video conferencing.
5) Scientific calculation of loss of income: The National
Commission should have made scientific calculation
regarding the loss of income of the claimant. This
direction has been given by this Court in a number of
cases. Further, he has contended that the claimant moved
this Court for video conferencing. The claimant examined
Prof. John F. Burke, a U.S.A. based Economist of
international repute, in May-June, 2011. Prof John F. Burke
was also cross-examined by the appellant-doctors and the
AMRI Hospital. Prof. Burke scientifically calculated and
testified himself under direct as well as cross-examination
as to how he came to calculate the prospective loss of
income for a similarly situated person in U.S.A. as
Anuradha, the deceased and categorically stated that the
direct loss of income for Anuradha’s premature death would
amount to “5 million and 125 thousand dollars”. This loss
of income was calculated after deduction of 1/3rd of the
amount for her personal expenses. 1/3rd deduction of income
for personal expenses has also been recommended in a
judgment of this Court in the case of Sarla Verma (supra).
Prof. Burke has also explained how he calculated the loss
of income due to the premature death of Anuradha and
further testified that his calculation for loss of
Anuradha’s income was a “very conservative forecast” and
that to some other estimates, the damages for Anuradha’s
death could be “9 to 10 million dollars. While the loss of
income would be multi million dollars as direct loss for
wrongful death of Anuradha, it may appear as a fabulous
amount in the context of India. This is undoubtedly an
average and legitimate claim in the context of the instant
case. And further, it may be noted that far bigger amounts
of compensation are routinely awarded by the courts in
medical negligence cases in the U.S.A. In this regard this
Court also made very clear observation in Indian Medical
Association Vs. V.P. Shanta & Ors.(supra), that to deny a
legitimate claim or to restrict arbitrarily the size of an
award would amount to substantial injustice.
6) Loss of income of claimant:
The National Commission has ignored the loss of income of the
claimant though this Court has categorically stated while
remanding the case to the National Commission that pecuniary and
non-pecuniary losses and future losses “up to the date of trial”
must be considered for the quantum of compensation. The claimant
had incurred a huge amount of expenses in the course of the more
than 15 years long trial in the instant case. These expenses
include the enormous cost for legal expenses as well as expenses
for the numerous trips between India and the U.S.A. over the
past more than 12 years. In addition to that the claimant has
also suffered huge losses during this period, both direct loss
of income from his job in U.S.A. as well as indirect loss for
pain and intense mental agony for tenure denial and termination
of his employment at Ohio State University (OSU) which was a
direct result of the wrongful death of Anuradha in India as
would be evident from the judgment passed by the Court of Claims
in Ohio which was filed by the AMRI Hospital on July 18, 2011.
The claimant also submitted an affidavit as directed by the
National Commission in which the detailed description about the
loss that he suffered in his personal as well as professional
career in U.S.A. over the past 12 years for the wrongful death
of Anuradha, has been mentioned. Needless to say that these
additional damages and financial losses the claimant has
suffered since he filed the original complaint against the
appellant-doctors could not possibly be a part of the original
claim filed by him 15 years ago.
61. In view of the circumstances narrated above, the claimant has
referred a revised quantum of claim which also includes a detailed
break-up of the individual items of the total claim in proper
perspective under separate headings of pecuniary, non-pecuniary,
punitive and special damages. The individual items of claim have
also been justified with appropriate references and supporting
materials as needed. The total quantum of claim for the wrongful
death of the claimant’s wife now stands at Rs.97,56,07,000/-
including pecuniary damages of Rs.34,56,07,000/-, non pecuniary
damages of Rs.31,50,00,000/-, special damages of US $ 1,000,000/-
for loss of job in Ohio and punitive damages of US $ 1,000,000/.
This updated break-up of the total claim has been shown in the
claim-table referred to in the later part of the judgment. The
claimant respectfully submits that the National Commission should
have considered this total claim in conjunction with the affidavit
filed by him during the course of making final arguments. The
National Commission also should have taken into consideration the
legal principles laid down in the case of Nizam Institute (supra)
wherein this Court allowed the claim of compensation which was
substantially higher than the original claim that he initially
filed in the court. Further, the National Commission ought to have
taken into consideration the observations made in the remand order
passed by this Court while determining the quantum of compensation
and the legitimate expectation for the wrongful death of a patient
‘after factoring in the position and stature of the doctors
concerned as also the Hospital’. This Court also held in Malay
Kumar Ganguly’s case (supra) that AMRI is one of the best
Hospitals in Calcutta, and that the doctors were the best doctors
available. Therefore, the compensation in the instant case may be
enhanced in view of the specific observations made by this Court.
62. Appellant-doctors Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar
have attempted to claim in their respective appeals that they
cannot be penalized with compensation because they did not charge
any fee for treatment of the deceased. Such a claim has no legal
basis as in view of the categorical observations made by this
Court in Savita Garg Vs. Director, National Heart Institute[25]
and in Malay Kumar Ganguly’s case (supra) wherein this Court has
categorically stated that the aforesaid principle in Savita Garg’s
case applies to the present case also insofar as it answers the
contentions raised before us that the three senior doctors did not
charge any professional fees.
63. Further, it is contended by the claimant that from a moral and
ethical perspective, a doctor cannot escape liability for causing
death of a patient from medical negligence on the ground that he
did not charge any fee. If that was true, poor patients who are
sometimes treated for free and patients in many charitable
Hospitals would be killed with impunity by errant and reckless
doctors. It is urged that the National Commission ought to have
considered the claim made for prospective loss of income of the
appellant’s wife and has committed error in rejecting the same and
it has also rejected the amount of the pecuniary losses of this
claimant under separate headings which are mentioned in the table
referred to supra including expenses that were paid at the
direction of the National Commission, namely, expenses relating to
video-conferencing or payment for the Court Commissioners. Most
of these direct losses were suffered by the claimant as a result
of the wrongful death of his wife in the long quest for justice
over the past 15 years as a result of the wrongful death of his
wife. The National Commission did not provide any reason as to why
the said claims were denied to him, as per this Court’s decision
in Charan Singh Vs. Healing Touch Hospital[26].
64. It is further urged by the claimant that the National Commission,
in applying the multiplier method as provided in the Second
Schedule under Section 163 A of the Motor Vehicles Act, is
erroneous to calculate compensation in relation to death due to
medical negligence.
65. Further, the claimant has taken support from the following medical
negligence cases decided by this Court. It was contended by the
claimant that out of these cases not a single case was decided by
using the multiplier method, such as, Indian Medical Assn. Vs.
V.P. Shanta & Ors.(supra), Spring Meadows Hospital & Anr Vs.
Harjol Ahluwalia[27], Charan Singh Vs. Healing Touch Hospital and
Ors.(supra), J.J. Merchants & Ors. Vs. Srinath Chaturbedi (supra),
Savita Garg Vs. Director National Heart Institute (supra), State
of Punjab Vs. Shiv Ram & Ors.(supra), Samira Kohli Vs. Dr.
Prabha Manchanda & Anr.(supra), P.G. Institute of Medical Sciences
Vs. Jaspal Singh & Ors., (supra) Nizam Institute Vs. Prasant
Dhananka (supra) Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors.
(supra) and V. Kishan Rao Vs. Nikhil Superspeciality Hospital &
Anr. (supra).
66. In fact, the National Commission or any other consumer court in
India have never used the multiplier system to calculate adequate
compensation for death or injury caused due to medical negligence
except when the National Commission decided the claimant’s case
after it was remanded back by this Court. Reliance was placed
upon Sarla Verma’s case (supra) at paragraph 37, wherein the
principle laid down for determining compensation using multiplier
method does not apply even in accident cases under Section 166 of
the MV Act. In contrast to death from road or other accident, it
is urged that death or permanent injury to a patient caused from
medical negligence is undoubtedly a reprehensible act.
Compensation for death of a patient from medical negligence cannot
and should not be compensated simply by using the multiplier
method. In support of this contention he has placed reliance upon
the Nizam Institute’s case (supra) at paragraph 92, wherein the
Court has rejected the specific claim made by the guilty Hospital
that multiplier should be used to calculate compensation as this
Court has held that such a claim has absolutely no merit.
67. The multiplier method was provided for convenience and speedy
disposal of no fault motor accident cases. Therefore, obviously,
a “no fault” motor vehicle accident should not be compared with
the case of death from medical negligence under any condition. The
aforesaid approach in adopting the multiplier method to determine
the just compensation would be damaging for society for the reason
that the rules for using the multiplier method to the notional
income of only Rs.15,000/- per year would be taken as a
multiplicand. In case, the victim has no income then a multiplier
of 18 is the highest multiplier used under the provision of
Sections 163 A of the Motor Vehicles act read with the Second
Schedule. Therefore, if a child, housewife or other non-working
person fall victim to reckless medical treatment by wayward
doctors, the maximum pecuniary damages that the unfortunate victim
may collect would be only Rs.1.8 lakh. It is stated in view of the
aforesaid reasons that in today’s India, Hospitals, Nursing Homes
and doctors make lakhs and crores of rupees on a regular basis.
Under such scenario, allowing the multiplier method to be used to
determine compensation in medical negligence cases would not have
any deterrent effect on them for their medical negligence but in
contrast, this would encourage more incidents of medical
negligence in India bringing even greater danger for the society
at large.
68. It is further urged by the claimant that the National Commission
has failed to award any compensation for the intense pain and
suffering that the claimant’s wife had to suffer due to the
negligent treatment by doctors and AMRI Hospital but the National
Commission had made a paltry award equivalent to $ 20,000 for the
enormous and life-long pain, suffering, loss of companionship and
amenities that the unfortunate claimant has been put throughout
his life by the negligent act of the doctors and the AMRI
Hospital.
69. The claimant further contended that he is entitled to special
damages for losses that he suffered upto the date of trial as held
by this Court while remanding this matter in Malay Kumar Ganguly’s
case back to the National Commission. Thus, the claimant filed a
legitimate claim for special damages for the losses sustained by
him in the course of 15 years long trial including the loss of his
employment at the Ohio State University and resultant position of
bankruptcy and home foreclosure. The National Commission did not
provide any reason for rejecting the said claim which is in
violation of the observations made in Charan Singh’s case (supra).
70. Further, this Court has affirmed the principle regarding
determination of just compensation in the following cases that
inflation should be considered while deciding quantum of
compensation: Reshma Kumari & Ors. Vs. Madan Mohan & Anr. (supra),
Govind Yadav Vs. New Indian Insurance Co. Ltd. (supra)and Ibrahim
Vs. Raju & Ors. (supra).
71. Using the cost of inflation index (in short C.I.I.) as published
by the Govt. of India, the original claim of Rs.77.7 crores made
by the claimant in 1998 would be equivalent to Rs.188.6 crores
as of 2012-2013. The mathematical calculation in this regard has
been presented in the short note submitted by the claimant. Thus,
the compensation payable for the wrongful death of claimant’s wife
would stand today at Rs.188.6 crores and not Rs.77.7 crores as
originally claimed by him in 1998 without taking into
consideration the various relevant aspects referred to supra and
proper guidance and advice in the matter.
72. Further, it is urged by the claimant that he is entitled to
interest on the compensation at reasonable rate as the National
Commission has awarded interest @ 12% but only in case of default
by the appellant- doctors and the AMRI Hospital to pay the
compensation within 8 weeks after the judgment which was delivered
on October 21, 2011. That means, the National Commission did not
grant any interest for the last 15 years long period on the
compensation awarded in favour of the claimant as this case was
pending before the judicial system in India for which the claimant
is not responsible. The said act is contrary to the decision of
this Court in Thazhathe Purayil Sarabi & Ors. Vs. Union of India &
Anr.[28].
73. He has also placed reliance upon in justification of his claim of
exemplary or punitive damages. A claim of US $ 1,000,000 as
punitive damages has been made against the AMRI Hospital and Dr.
Sukumar Mukherjee as provided in the table. In support of this
contention he placed strong reliance on Landgraf Vs. USI Film
Prods[29] and this Court’s decision in Destruction of Public and
Private Properties Vs. State of A.P.[30], wherein it is held that
punitive or exemplary damages have been justifiably awarded as a
deterrent in the future for outrageous and reprehensible act on
the part of the accused. In fact punitive damages are routinely
awarded in medical negligence cases in western countries for
reckless and reprehensible act by the doctors or Hospitals in
order to send a deterrent message to other members of the medical
community. In a similar case, the Court of Appeals in South
Carolina in Welch Vs. Epstein[31] held that a neurosurgeon is
guilty for reckless therapy after he used a drug in clear
disregard to the warning given by the drug manufacturer causing
the death of a patient. This Court has categorically held that the
injection Depomedrol used at the rate of 80 mg twice daily by Dr.
Sukumar Mukherjee was in clear violation of the manufacturer’s
warning and recommendation and admittedly, the instruction
regarding direction for use of the medicine had not been followed
in the instant case. This Court has also made it clear that the
excessive use of the medicine by the doctor was out of sheer
ignorance of basic hazards relating to the use of steroids as also
lack of judgment. No doctor has the right to use the drug beyond
the maximum recommended dose.
74. The Supreme Court of Ohio in Dardinger Vs. Anthem Blue Cross
Shield et al[32]. had judged that since $ 49 million punitive
damages was excessive it still awarded US $19 million in a case
of medical negligence. The aforesaid judgments from the U.S.A.
clearly show that punitive damages usually are many times bigger
than the compensatory damages. A nominal amount of US $ 1,000,000
has been claimed as punitive damages in the instant case to send a
deterrent message to the reckless doctors in India keeping in view
the major difference in the standard of living between India and
U.S.A. In fact, this Court in a well-known case of Lata Wadhwa
(supra) in which a number of children and women died from an
accidental fire, awarded punitive damages to send a message
against the unsafe condition kept by some greedy organizations or
companies in the common public places in India.
75. It was further contended by the claimant that this Court remanded
the case back to the National Commission for determination of the
quantum of compensation only but the National Commission in clear
disregard to the direction issued by this Court, has re-examined
the issues involved for medical negligence. Further, in Malay
Kumar Ganguly’s case, this Court has rejected the assertion made
by the doctors of the Hospital that the claimant had interfered
with the treatment of his wife or that other doctors and/ or the
Hospital i.e. Breach Candy Hospital in Bombay should also be made
a party in this case.
76. It is further contended by the claimant that the National
Commission has wrongfully apportioned the total amount of
compensation by losing sight of the observations made by this
Court while remanding the case back to it for determination of the
quantum of compensation. This Court did not make any observation
as to how the compensation should be divided, as awarded by the
National Commission. Except for the appellant-Dr. Sukumar
Mukherjee who was imposed with a cost of Rs.5,00,000/- this Court
did not impose cost against any other doctors even though the
Court found other appellant-doctors also guilty for medical
negligence.
77. It is further contended that the National Commission on 31st
March, 2010 in S.P. Aggarwal Vs. Sanjay Gandhi P.G. Institute (FA
No.478/2005) held that “in view of the fact that several doctors
and paramedical staff of the appellant institute were involved, it
is the appellant institute which has to be held vicariously liable
to compensate the complainant to the above extent.”
78. It is further urged that in Nizam Institute’s case (supra) this
Court imposed the entire compensation against the Hospital despite
holding several doctors responsible for causing permanent injury
to the patient. While remanding back the issue of quantifying the
quantum of compensation to the National Commission, this Court has
observed that the standard of medical nursing care at the AMRI
Hospital was abysmal. It is further submitted that 80% of the
total compensation should be imposed against the AMRI Hospital and
20% against Dr. Sukumar Mukherjee. The claimant has claimed the
damages as under :-
|PECUNIARY DAMAGES: |
|A Cost associated with the victim, Anuradha Saha |
|1 |Loss of prospective/future earning upto to|Rs.9,25,00,000/- |
| |70 years | |
|2 |Loss of US Social Security income up to |Rs.1,44,00,000/- |
| |82 years | |
|3 |Paid for treatment at AMRI/Breach Candy |Rs.12,00,000/- |
| |Hospital | |
|4 |Paid for chartered flight to transfer |Rs. 9,00,000/- |
| |Anuradha | |
|5 |Travel/hotel/other expenses during |Rs. 7,00,000/- |
| |Anuradha’s treatment in Mumbai/ Kolkata | |
| |in 1998 | |
|6 |Paid for court proceedings including video|Rs.11,57,000/- |
| |conferencing from U.S.A. | |
|B Cost associated with Anuradha’s husband, Dr. Kunal Saha |
|1 |Loss of income for missed work |Rs.1,12,50,000/- |
|2 |Travel expenses over the past 12 years |Rs.70,00,000/- |
|C Legal expenses |
|1 |Advocate fees |Rs.1,50,00,000/- |
|2 |other legal expenses |Rs.15,00,000/- |
|Total pecuniary damages Rs.34,56,07,000/- |
| Non-Pecuniary Special Damages |
|1 |Loss of companionship and life amenities |Rs.13,50,00,000/- |
|2 |Emotional distress, pain and suffering for|Rs.50,00,000/- |
| |husband | |
|3 |Pain/suffering endured by the victim |Rs.4,50,00,000/- |
| |during therapy | |
|Total non pecuniary damages Rs.31,50,00,000/- |
|D |PUNITIVE/EXEMPLARY DAMAGES |Rs.13,50,00,000/- |
|E |SPECIAL DAMAGES |Rs.18,00,00,000/- |
| Total Rs.97,56,07,000/- |
Therefore, the claimant has prayed for allowing his appeal by awarding
just and reasonable compensation under various heads as claimed by
him.
79. On the basis of the rival legal factual and contentions urged on
behalf of the respective doctor-appellants, Hospital and the
claimant, the following points would arise for consideration of
this Court:-
1) Whether the claim of the claimant for enhancement of
compensation in his appeal is justified. If it is so, for
what compensation he is entitled to?
2) While making additional claim by way of affidavit before
the National Commission when amending the claim petition,
whether the claimant is entitled for compensation on the
enhanced claim preferred before the National Commission?
3(a) Whether the claimant seeking to amend the claim of
compensation under certain heads in the original claim petition
has forfeited his right of claim under Order II Rule 2 of CPC as
pleaded by the AMRI Hospital?
3(b) Whether the claimant is justified in claiming additional
amount for compensation under different heads without following
the procedure contemplated under the provisions of the Consumer
Protection Act and the Rules?
4. Whether the National Commission is justified in adopting
the multiplier method to determine the compensation and to
award the compensation in favour of the claimant?
5. Whether the claimant is entitled to pecuniary damages under
the heads of loss of employment, loss of his property and his
traveling expenses from U.S.A. to India to conduct the
proceedings in his claim petition?
6. Whether the claimant is entitled to the interest on the
compensation that would be awarded?
7. Whether the compensation awarded in the impugned judgment
and the apportionment of the compensation amount fastened upon
the doctors and the hospital requires interference and whether
the claimant is liable for contributory negligence and deduction
of compensation under this head?
8. To what Order and Award the claimant is entitled to in these
appeals?
80. It would be convenient for us to take up first the Civil Appeal
No. 2866 of 2012 filed by Dr. Kunal Saha, the claimant, as he had
sought for enhancement of compensation. If we answer his claim
then the other issues that would arise in the connected appeals
filed by the doctors and the AMRI Hospital can be disposed of
later on. Therefore, the points that would arise for
consideration in these appeals by these Court have been framed in
the composite. The same are taken up in relation to the claimants’
case in-seriatum and are answered by recording the following
reasons:
Answer to Point nos. 1, 2 and 3
81. Point Nos. 1, 2 and 3 are taken up together and answered since
they are inter related.
The claim for enhancement of compensation by the claimant in his
appeal is justified for the following reasons:
The National Commission has rejected the claim of the claimant
for “inflation” made by him without assigning any reason whatsoever.
It is an undisputed fact that the claim of the complainant has been
pending before the National Commission and this Court for the last 15
years. The value of money that was claimed in 1998 has been devalued
to a great extent. This Court in various following cases has
repeatedly affirmed that inflation of money should be considered while
deciding the quantum of compensation:-
In Reshma Kumari and Ors. Vs. Madan Mohan and Anr. (supra), this
Court at para 47 has dealt with this aspect as under:
“47.One of the incidental issues which has also to be taken
into consideration is inflation. Is the practice of taking
inflation into consideration wholly incorrect? Unfortunately,
unlike other developed countries in India there has been no
scientific study. It is expected that with the rising inflation
the rate of interest would go up. In India it does not happen.
It, therefore, may be a relevant factor which may be taken into
consideration for determining the actual ground reality. No
hard-and-fast rule, however, can be laid down therefor.”
In Govind Yadav Vs. New India Insurance Company Ltd.(supra),
this court at para 15 observed as under which got re-iterated at
paragraph 13 of Ibrahim Vs. Raju & Ors. (supra):-
“15. In Reshma Kumari v. Madan Mohan this Court reiterated that
the compensation awarded under the Act should be just and also
identified the factors which should be kept in mind while
determining the amount of compensation. The relevant portions of
the judgment are extracted below: (SCC pp. 431-32 & 440-41,
paras 26-27 & 46-47)
‘26. The compensation which is required to be determined must be
just. While the claimants are required to be compensated for the
loss of their dependency, the same should not be considered to
be a windfall. Unjust enrichment should be discouraged. This
Court cannot also lose sight of the fact that in given cases, as
for example death of the only son to a mother, she can never be
compensated in monetary terms.
27. The question as to the methodology required to be applied
for determination of compensation as regards prospective loss of
future earnings, however, as far as possible should be based on
certain principles. A person may have a bright future prospect;
he might have become eligible to promotion immediately; there
might have been chances of an immediate pay revision, whereas in
another (sic situation) the nature of employment was such that
he might not have continued in service; his chance of promotion,
having regard to the nature of employment may be distant or
remote. It is, therefore, difficult for any court to lay down
rigid tests which should be applied in all situations. There are
divergent views. In some cases it has been suggested that some
sort of hypotheses or guesswork may be inevitable. That may be
so.’
* * *
46. In the Indian context several other factors should be taken
into consideration including education of the dependants and the
nature of job. In the wake of changed societal conditions and
global scenario, future prospects may have to be taken into
consideration not only having regard to the status of the
employee, his educational qualification; his past performance
but also other relevant factors, namely, the higher salaries and
perks which are being offered by the private companies these
days. In fact while determining the multiplicand this Court in
Oriental Insurance Co. Ltd. v. Jashuben held that even dearness
allowance and perks with regard thereto from which the family
would have derived monthly benefit, must be taken into
consideration.
47. One of the incidental issues which has also to be taken into
consideration is inflation. Is the practice of taking inflation
into consideration wholly incorrect? Unfortunately, unlike other
developed countries in India there has been no scientific study.
It is expected that with the rising inflation the rate of
interest would go up. In India it does not happen. It,
therefore, may be a relevant factor which may be taken into
consideration for determining the actual ground reality. No hard-
and-fast rule, however, can be laid down therefor.”
82. The C.I.I. is determined by the Finance Ministry of Union of India
every year in order to appreciate the level of devaluation of
money each year. Using the C.I.I. as published by the Government
of India, the original claim of Rs.77.7 crores preferred by the
claimant in 1998 would be equivalent to Rs.188.6 crores as of 2013
and, therefore the enhanced claim preferred by the claimant before
the National Commission and before this Court is legally
justifiable as this Court is required to determine the just, fair
and reasonable compensation. Therefore, the contention urged by
the appellant-doctors and the AMRI Hospital that in the absence of
pleadings in the claim petition before the National Commission and
also in the light of the incident that the subsequent application
filed by the claimant seeking for amendment to the claim in the
prayer of the complainant being rejected, the additional claim
made by the claimant cannot be examined for grant of compensation
under different heads is wholly unsustainable in law in view of
the decisions rendered by this Court in the aforesaid cases.
Therefore, this Court is required to consider the relevant aspect
of the matter namely, that there has been steady inflation which
should have been considered over period of 15 years and that money
has been devalued greatly. Therefore, the decision of the National
Commission in confining the grant of compensation to the original
claim of Rs.77.7 crores preferred by the claimant under different
heads and awarding meager compensation under the different heads
in the impugned judgment, is wholly unsustainable in law as the
same is contrary to the legal principles laid down by this Court
in catena of cases referred to supra. We, therefore, allow the
claim of the claimant on enhancement of compensation to the extent
to be directed by this Court in the following paragraphs.
83. Besides enhancement of compensation, the claimant has sought for
additional compensation of about Rs.20 crores in addition to his
initial claim made in 2011 to include the economic loss that he
had suffered due to loss of his employment, home foreclosure and
bankruptcy in U.S.A which would have never happened but for the
wrongful death of his wife. The claimant has placed reliance on
the fundamental principle to be followed by the Tribunals,
District Consumer Forum, State Consumer Forum, and the National
Commission and the courts for awarding ‘just compensation’. In
support of this contention, he has also strongly placed reliance
upon the observations made at para 170 in the Malay Kumar
Ganguly’s case referred to supra wherein this Court has made
observations as thus:
“170. Indisputably, grant of compensation involving an accident
is within the realm of law of torts. It is based on the
principle of restitutio in integrum. The said principle provides
that a person entitled to damages should, as nearly as possible,
get that sum of money which would put him in the same position
as he would have been if he had not sustained the wrong. (See
Livingstone v. Rawyards Coal Co.)”
The claimant made a claim under specific heads in great detail in
justification for each one of the claim made by him. The National
Commission, despite taking judicial notice of the claim made by the
claimant in its judgment, has rejected the entire claim solely on the
ground that the additional claim was not pleaded earlier, therefore,
none of the claims made by him can be considered. The rejection of
the additional claims by the National Commission without consideration
on the assumption that the claims made by the claimant before the
National Commission cannot be changed or modified without pleadings
under any condition is contrary to the decisions of this Court
rendered in catena of cases. In support of his additional claim, the
claimant places reliance upon such decisions as mentioned hereunder:
(a) In Ningamma’s case (supra), this Court has observed at para
34 which reads thus:
“34. Undoubtedly, Section 166 of the MVA deals with “just
compensation” and even if in the pleadings no specific claim
was made under Section 166 of the MVA, in our considered
opinion a party should not be deprived from getting “just
compensation” in case the claimant is able to make out a case
under any provision of law. Needless to say, the MVA is
beneficial and welfare legislation. In fact, the court is duty-
bound and entitled to award “just compensation” irrespective of
the fact whether any plea in that behalf was raised by the
claimant or not.
(b) In Malay Kumar Ganguly’s case, this Court by placing reliance
on the decision of this Court in R.D. Hattangadi Vs. Pest Control
(India) (P) Ltd.,(supra) made observation while remanding back the
matter to National Commission solely for the determination of quantum
of compensation, that compensation should include “loss of earning of
profit up to the date of trial” and that it may also include any loss
“already suffered or is likely to be suffered in future”. Rightly,
the claimant has contended that when original complaint was filed soon
after the death of his wife in 1998, it would be impossible for him to
file a claim for “just compensation” for the pain that the claimant
suffered in the course of the 15 years long trial.
c) In Nizam Institute’s case supra, the complainant had sought
a compensation of Rs.4.61 crores before the National Commission but he
enhanced his claim to Rs 7.50 crores when the matter came up before
this Court. In response to the claim, this Court held as under:
“82. The complainant, who has argued his own case, has submitted
written submissions now claiming about Rs 7.50 crores as
compensation under various heads. He has, in addition sought a
direction that a further sum of Rs 2 crores be set aside to be
used by him should some developments beneficial to him in the
medical field take place. Some of the claims are untenable and
we have no hesitation in rejecting them. We, however, find that
the claim with respect to some of the other items need to be
allowed or enhanced in view of the peculiar facts of the case.”
d) In Oriental Insurance Company Ltd. Vs. Jashuben & Ors.
(supra), the initial claim was for Rs.12 lakhs which was subsequently
raised to Rs.25 lakhs. The claim was partly allowed by this Court.
e) In R.D. Hattangadi Vs. Pest Control (India) (supra) the
appellant made an initial compensation claim of Rs.4 lakhs but later
on enhanced the claim to Rs.35 lakhs by this Court.
f) In Raj Rani & Ors. Vs. Oriental Insurance Company Ltd. &
Ors.,(supra) this Court has observed that there is no restriction that
compensation could be awarded only up to the amount claimed by the
claimant. The relevant paragraph reads as under:
“14. In Nagappa v. Gurudayal Singh this Court has held as
under: (SCC p. 279, para 7)
“7. Firstly, under the provisions of the Motor Vehicles Act,
1988, (hereinafter referred to as ‘the MV Act’) there is no
restriction that compensation could be awarded only up to the
amount claimed by the claimant. In an appropriate case, where
from the evidence brought on record if the Tribunal/court
considers that the claimant is entitled to get more
compensation than claimed, the Tribunal may pass such award.
The only embargo is—it should be ‘just’ compensation, that is
to say, it should be neither arbitrary, fanciful nor
unjustifiable from the evidence. This would be clear by
reference to the relevant provisions of the MV Act.”
g) In Laxman @ Laxaman Mourya Vs. Divisional Manager,
Oriental Insurance Co. Ltd. & Anr.,(supra) this Court awarded more
compensation than what was claimed by the claimant after making the
following categorical observations:-
“In the absence of any bar in the Act, the Tribunal and for that
reason, any competent court, is entitled to award higher
compensation to the victim of an accident”
h) In Ibrahim Vs. Raju & Ors.,(supra) this Court awarded
double the compensation sought for by the complainant after discussion
of host of previous judgments.
84. In view of the aforesaid decisions of this Court referred to
supra, wherein this Court has awarded ‘just compensation’ more than
what was claimed by the claimants initially and therefore, the
contention urged by learned senior counsel and other counsel on behalf
of the appellant-doctors and the AMRI Hospital that the additional
claim made by the claimant was rightly not considered by the National
Commission for the reason that the same is not supported by pleadings
by filing an application to amend the same regarding the quantum of
compensation and the same could not have been amended as it is barred
by the limitation provided under Section 23 of the Consumer Protection
Act, 1986 and the claimant is also not entitled to seek enhanced
compensation in view of Order II Rule 2 of the CPC as he had
restricted his claim at Rs.77,07,45,000/-, is not sustainable in law.
The claimant has appropriately placed reliance upon the decisions of
this Court in justification of his additional claim and the finding of
fact on the basis of which the National Commission rejected the claim
is based on untenable reasons. We have to reject the contention urged
by the learned senior counsel and other counsel on behalf of the
appellant-doctors and the AMRI Hospital as it is wholly untenable in
law and is contrary to the aforesaid decisions of this Court referred
to supra. We have to accept the claim of the claimant as it is
supported by the decisions of this Court and the same is well founded
in law. It is the duty of the Tribunals, Commissions and the Courts to
consider relevant facts and evidence in respect of facts and
circumstances of each and every case for awarding just and reasonable
compensation. Therefore, we are of the view that the claimant is
entitled for enhanced compensation under certain items made by the
claimant in additional claim preferred by him before the National
Commission. We have to keep in view the fact that this Court while
remanding the case back to the National Commission only for the
purpose of determination of quantum of compensation also made
categorical observation that:
“172. Loss of wife to a husband may always be truly compensated
by way of mandatory compensation. How one would do it has been
baffling the court for a long time. For compensating a husband
for loss of his wife, therefore, the courts consider the loss of
income to the family. It may not be difficult to do when she had
been earning. Even otherwise a wife’s contribution to the family
in terms of money can always be worked out. Every housewife
makes a contribution to his family. It is capable of being
measured on monetary terms although emotional aspect of it
cannot be. It depends upon her educational qualification, her
own upbringing, status, husband’s income, etc.”
[Emphasis laid by this Court]
In this regard, this Court has also expressed similar view that
status, future prospects and educational qualification of the deceased
must be judged for deciding adequate, just and fair compensation as in
the case of R.K. Malik & Anr. (supra).
85. Further, it is an undisputed fact that the victim was a graduate
in psychology from a highly prestigious Ivy League school in New York.
She had a brilliant future ahead of her. However, the National
Commission has calculated the entire compensation and prospective loss
of income solely based on a pay receipt showing a paltry income of
only $30,000 per year which she was earning as a graduate student.
Therefore, the National Commission has committed grave error in taking
that figure to determine compensation under the head of loss of
dependency and the same is contrary to the observations made by this
Court in the case of Arvind Kumar Mishra Vs. New India Assurance which
reads as under:
“14. On completion of Bachelor of Engineering (Mechanical) from
the prestigious institute like BIT, it can be reasonably assumed
that he would have got a good job. The appellant has stated in
his evidence that in the campus interview he was selected by
Tata as well as Reliance Industries and was offered pay package
of Rs. 3,50,000 per annum. Even if that is not accepted for want
of any evidence in support thereof, there would not have been
any difficulty for him in getting some decent job in the private
sector. Had he decided to join government service and got
selected, he would have been put in the pay scale for Assistant
Engineer and would have at least earned Rs. 60,000 per annum.
Wherever he joined, he had a fair chance of some promotion and
remote chance of some high position. But uncertainties of life
cannot be ignored taking relevant factors into consideration. In
our opinion, it is fair and reasonable to assess his future
earnings at Rs. 60,000 per annum taking the salary and
allowances payable to an Assistant Engineer in public employment
as the basis.”
86. The claimant further placed reliance upon the decisions of this
Court in Govind Yadav Vs. New India Insurance Co. Ltd.(supra), Sri
Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance (supra),
Ibrahim Vs. Raju & Ors., Laxman @ Laxman Mourya Vs. Divisional
Manager, Oriental Insurance Co. Ltd. (supra) and Kavita Vs. Dipak &
Ors (supra) in support of his additional claim on loss of future
prospect of income. However, these decisions do not have any relevance
to the facts and circumstances of the present case. Moreover, these
cases mention about ‘future loss of income’ and not ‘future prospects
of income’ in terms of the potential of the victim and we are inclined
to distinguish between the two.
87. We place reliance upon the decisions of this Court in Arvind Kumar
Mishra’s case (supra) and also in Susamma Thomas (supra), wherein
this Court held thus:
“24. In Susamma Thomas, this Court increased the income by
nearly 100%, in Sarla Dixit the income was increased only by 50%
and in Abati Bezbaruah the income was increased by a mere 7%. In
view of the imponderables and uncertainties, we are in favour of
adopting as a rule of thumb, an addition of 50% of actual salary
to the actual salary income of the deceased towards future
prospects, where the deceased had a permanent job and was below
40 years. (Where the annual income is in the taxable range, the
words “actual salary” should be read as “actual salary less
tax”). The addition should be only 30% if the age of the
deceased was 40 to 50 years. There should be no addition, where
the age of the deceased is more than 50 years. Though the
evidence may indicate a different percentage of increase, it is
necessary to standardise the addition to avoid different
yardsticks being applied or different methods of calculation
being adopted. Where the deceased was self-employed or was on a
fixed salary (without provision for annual increments, etc.),
the courts will usually take only the actual income at the time
of death. A departure therefrom should be made only in rare and
exceptional cases involving special circumstances.”
88. Further, to hold that the claimant is entitled to enhanced
compensation under the heading of loss of future prospects of income
of the victim, this Court in Santosh Devi Vs. National Insurance
Company and Ors. (supra), held as under:
“18. Therefore, we do not think that while making the
observations in the last three lines of para 24 of Sarla Verma
judgment, the Court had intended to lay down an absolute rule
that there will be no addition in the income of a person who is
self-employed or who is paid fixed wages. Rather, it would be
reasonable to say that a person who is self-employed or is
engaged on fixed wages will also get 30% increase in his total
income over a period of time and if he/she becomes the victim of
an accident then the same formula deserves to be applied for
calculating the amount of compensation.”
89. In view of the aforesaid observations and law laid down by this
Court with regard to the approach by the Commission in awarding just
and reasonable compensation taking into consideration the future
prospects of the deceased even in the absence of any expert’s opinion
must have been reasonably judged based on the income of the deceased
and her future potential in U.S.A. However, in the present case the
calculation of the future prospect of income of the deceased has also
been scientifically done by economic expert Prof. John F. Burke. In
this regard, the learned counsel for the other appellant-doctors and
the Hospital have contended that without amending the claim petition
the enhanced claim filed before the National Commission or an
application filed in the appeal by the claimant cannot be accepted by
this Court. In support of this contention, they have placed reliance
upon the various provisions of the Consumer Protection Act and also
decisions of this Court which have been adverted to in their
submissions recorded in this judgment. The claimant strongly
contended by placing reliance upon the additional claim by way of
affidavit filed before the National Commission which was sought to be
justified with reference to the liberty given by this Court in the
earlier proceedings which arose when the application filed by the
claimant was rejected and this Court has permitted him to file an
affidavit before the National Commission and the same has been done.
The ground urged by the claimant is that the National Commission has
not considered the entire claim including the additional claim made
before it. He has placed strong reliance upon V.P. Shantha’s case
(supra) in support of his contention wherein it was held as under:
“53. Dealing with the present state of medical negligence cases
in the United Kingdom it has been observed:
“The legal system, then, is faced with the classic problem of
doing justice to both parties. The fears of the medical
profession must be taken into account while the legitimate
claims of the patient cannot be ignored.
Medical negligence apart, in practice, the courts are
increasingly reluctant to interfere in clinical matters. What
was once perceived as a legal threat to medicine has disappeared
a decade later. While the court will accept the absolute right
of a patient to refuse treatment, they will, at the same time,
refuse to dictate to doctors what treatment they should give.
Indeed, the fear could be that, if anything, the pendulum has
swung too far in favour of therapeutic immunity. (p. 16)
It would be a mistake to think of doctors and hospitals as easy
targets for the dissatisfied patient. It is still very difficult
to raise an action of medical negligence in Britain; some, such
as the Association of the Victims of Medical Accidents, would
say that it is unacceptably difficult. Not only are there
practical difficulties in linking the plaintiff’s injury to
medical treatment, but the standard of care in medical
negligence cases is still effectively defined by the profession
itself. All these factors, together with the sheer expense of
bringing legal action and the denial of legal aid to all but the
poorest, operate to inhibit medical litigation in a way in which
the American system, with its contingency fees and its
sympathetic juries, does not.
It is difficult to single out any one cause for what increase
there has been in the volume of medical negligence actions in
the United Kingdom. A common explanation is that there are,
quite simply, more medical accidents occurring — whether this be
due to increased pressure on hospital facilities, to falling
standards of professional competence or, more probably, to the
ever-increasing complexity of therapeutic and diagnostic
methods.” (p. 191)
A patient who has been injured by an act of medical negligence
has suffered in a way which is recognised by the law — and by
the public at large — as deserving compensation. This loss may
be continuing and what may seem like an unduly large award may
be little more than that sum which is required to compensate him
for such matters as loss of future earnings and the future cost
of medical or nursing care. To deny a legitimate claim or to
restrict arbitrarily the size of an award would amount to
substantial injustice. After all, there is no difference in
legal theory between the plaintiff injured through medical
negligence and the plaintiff injured in an industrial or motor
accident.” (pp. 192-93)
(Mason’s Law and Medical Ethics, 4th Edn.)”
[Emphasis laid by this
Court]
90. He has also placed reliance upon the Nizam Institute of Medical
Sciences’s case referred to supra in support of his submission that if
a case is made out, then the Court must not be chary of awarding
adequate compensation. The relevant paragraph reads as under:
“88. We must emphasise that the court has to strike a balance
between the inflated and unreasonable demands of a victim and
the equally untenable claim of the opposite party saying that
nothing is payable. Sympathy for the victim does not, and should
not, come in the way of making a correct assessment, but if a
case is made out, the court must not be chary of awarding
adequate compensation. The “adequate compensation” that we speak
of, must to some extent, be a rule of thumb measure, and as a
balance has to be struck, it would be difficult to satisfy all
the parties concerned.”
91. He has further rightly contended that with respect to the
fundamental principle for awarding just and reasonable compensation,
this Court in Malay Kumar Ganguly’s case (supra) has categorically
stated while remanding this case back to the National Commission that
the principle for just and reasonable compensation is based on
‘restitutio in integrum’ that is, the claimant must receive sum of
money which would put him in the same position as he would have been
if he had not sustained the wrong.
92. Further, he has placed reliance upon the judgment of this Court in
the case of Ningamma’s case (supra) in support of the proposition of
law that the Court is duty-bound and entitled to award “just
compensation” irrespective of the fact whether any plea in that behalf
was raised by the claimant or not. The relevant paragraph reads as
under:
“34. Undoubtedly, Section 166 of the MVA deals with “just
compensation” and even if in the pleadings no specific claim was
made under Section 166 of the MVA, in our considered opinion a
party should not be deprived from getting “just compensation” in
case the claimant is able to make out a case under any provision
of law. Needless to say, the MVA is beneficial and welfare
legislation. In fact, the court is duty-bound and entitled to
award “just compensation” irrespective of the fact whether any
plea in that behalf was raised by the claimant or not.”
93. He has also rightly placed reliance upon observations made in
Malay Kumar Ganguly’s case referred to supra wherein this Court
has held the appellant doctors guilty of causing death of
claimant’s wife while remanding the matter back to the National
Commission only for determination of quantum of compensation for
medical negligence. This Court has further observed that
compensation should include “loss of earning of profit up to the
date of trial” and that it may also include any loss “already
suffered or likely to be suffered in future”. The claimant has
also rightly submitted that when the original complaint was filed
soon after the death of his wife in 1998, it would be impossible
to file a claim for “just compensation”. The claimant has suffered
in the course of the 15 years long trial. In support of his
contention he placed reliance on some other cases also where more
compensation was awarded than what was claimed, such as Oriental
Insurance Company Ltd. Vs. Jashuben & Ors., R.D. Hattangadi ,
Raj Rani & Ors, Laxman @ Laxaman Mourya all cases referred to
supra. Therefore, the relevant paragraphs from the said judgments
in-seriatum extracted above show that this Court has got the power
under Article 136 of the Constitution and the duty to award just
and reasonable compensation to do complete justice to the affected
claimant.
In view of the aforesaid reasons stated by us, it is wholly
untenable in law with regard to the legal contentions urged on behalf
of the AMRI Hospital and the doctors that without there being an
amendment to the claim petition, the claimant is not entitled to seek
the additional claims by way of affidavit, the claim is barred by
limitation and the same has not been rightly accepted by the National
Commission.
94. Also, in view of the above reasoning the contention that the
claimant has waived his right to claim more compensation in view
of the Order II Rule 2 of CPC as pleaded by the AMRI Hospital and
the appellant-doctors is also held to be wholly unsustainable in
law. The claimant is justified in claiming additional claim for
determining just and reasonable compensation under different
heads. Accordingly, the point Nos. 1, 2, and 3 are answered in
favour of the claimant and against the appellant-doctors and the
Hospital.
Answer to point no. 4
95. With regard to point no. 4, the National Commission has used the
“multiplier” method under Section 163A read with the second schedule of
the Motor Vehicles Act to determine the quantum of compensation in
favour of the claimant applying the multiplier method as has been laid
down by this Court in Sarla Verma’s case(supra). Consequently, it has
taken up multiplier of 15 in the present case to quantify the
compensation under the loss of dependency of the claimant. It is urged
by the claimant that use of multiplier system for determining
compensation for medical negligence cases involving death of his wife
is grossly erroneous in law. The claimant has rightly placed reliance
upon the cases of this Court such as, Indian Medical Assn. Vs. V.P.
Shanta & Ors.(supra), Spring Meadows Hospital & Anr. Vs. Harjol
Ahluwalia[33], Charan Singh Vs. Healing Touch Hospital and
Ors.(supra), J.J. Merchants & Ors. Vs. Srinath Chaturbedi (supra),
Savita Garg Vs. Director National Heart Institute (supra), State of
Punjab Vs. Shiv Ram & Ors.(supra), Samira Kholi Vs. Dr. Prabha
Manchanda & Anr.(supra), P.G. Institute of Medical Sciences Vs. Jaspal
Singh & Ors., (supra) Nizam Institute Vs. Prasant Dhananka (supra)
Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors. (supra) and V. Kishan
Rao Vs. Nikhil Superspeciality Hospital & Anr. (supra) to contend that
not a single case was decided by using the multiplier method.
In support of this contention, he has further argued that in the
three judge Bench decision in the case of Nizam Institute’s case
(supra), this Court has rejected the use of multiplier system to
calculate the quantum of compensation. The relevant paragraph is
quoted hereunder:
“92. Mr Tandale, the learned counsel for the respondent has,
further submitted that the proper method for determining
compensation would be the multiplier method. We find absolutely
no merit in this plea. The kind of damage that the complainant
has suffered, the expenditure that he has incurred and is likely
to incur in the future and the possibility that his rise in his
chosen field would now be restricted, are matters which cannot
be taken care of under the multiplier method.”
[Emphasis laid by this Court]
He has further urged that the ‘multiplier’ method as provided
in the second Schedule to Section 163-A of the M.V.Act which provision
along with the Second Schedule was inserted to the Act by way of
Amendment in 1994, was meant for speedy disposal of ‘no fault’ motor
accident claim cases. Hence, the present case of gross medical
negligence by the appellant-doctors and the Hospital cannot be
compared with ‘no fault’ motor accident claim cases.
96. The appellant Dr. Balram Prasad on the other hand relied upon
the decision in United India Insurance Co. Ltd. Vs. Patricia Jean
Mahajan (supra) and contended that multiplier method is a standard
method of determining the quantum of compensation in India. The
relevant paragraphs read as under:
“20. The court cannot be totally oblivious to the realities. The
Second Schedule while prescribing the multiplier, had maximum
income of Rs 40,000 p.a. in mind, but it is considered to be a
safe guide for applying the prescribed multiplier in cases of
higher income also but in cases where the gap in income is so
wide as in the present case income is 2,26,297 dollars, in such
a situation, it cannot be said that some deviation in the
multiplier would be impermissible. Therefore, a deviation from
applying the multiplier as provided in the Second Schedule may
have to be made in this case. Apart from factors indicated
earlier the amount of multiplicand also becomes a factor to be
taken into account which in this case comes to 2,26,297 dollars,
that is to say an amount of around Rs 68 lakhs per annum by
converting it at the rate of Rs 30. By Indian standards it is
certainly a high amount. Therefore, for the purposes of fair
compensation, a lesser multiplier can be applied to a heavy
amount of multiplicand. A deviation would be reasonably
permissible in the figure of multiplier even according to the
observations made in the case of Susamma Thomas where a specific
example was given about a person dying at the age of 45 leaving
no heirs being a bachelor except his parents.
XXX XXX XXX
22. We therefore, hold that ordinarily while awarding
compensation, the provisions contained in the Second Schedule
may be taken as a guide including the multiplier, but there may
arise some cases, as the one in hand, which may fall in the
category having special features or facts calling for deviation
from the multiplier usually applicable.”
97. It is further urged by the learned senior counsel Mr. Vijay
Hansaria for the appellant-AMRI Hospital relying on Sarla Verma’s case
(supra) that the multiplier method has enabled the courts to bring
about consistency in determining the ‘loss of dependency’ more
particularly in the death of victims of negligence. The relevant
paragraph reads as under:
“14. The lack of uniformity and consistency in awarding
compensation has been a matter of grave concern. Every district
has one or more Motor Accidents Claims Tribunal(s). If different
Tribunals calculate compensation differently on the same facts,
the claimant, the litigant, the common man will be confused,
perplexed and bewildered. If there is significant divergence
among the Tribunals in determining the quantum of compensation
on similar facts, it will lead to dissatisfaction and distrust
in the system.”
The learned counsel for the appellant-AMRI Hospital further argued
that reliance placed upon the judgment in Nizam Institute’s case
referred to supra by the claimant is misplaced since the victim in
that case suffered from permanent disability which required constant
medical assistance. Therefore, it was urged that Nizam Institute case
cannot be relied upon by this Court to determine the quantum of
compensation by not adopting multiplier method in favour of the
claimant.
A careful reading of the above cases shows that this Court is
skeptical about using a strait jacket multiplier method for
determining the quantum of compensation in medical negligence claims.
On the contrary, this Court mentions various instances where the Court
chose to deviate from the standard multiplier method to avoid over-
compensation and also relied upon the quantum of multiplicand to
choose the appropriate multiplier. Therefore, submission made in this
regard by the claimant is well founded and based on sound logic and is
reasonable as the National Commission or this Court requires to
determine just, fair and reasonable compensation on the basis of the
income that was being earned by the deceased at the time of her death
and other related claims on account of death of the wife of the
claimant which is discussed in the reasoning portion in answer to the
point Nos. 1 to 3 which have been framed by this Court in these
appeals. Accordingly, we answer the point No. 4 in favour of the
claimant holding that the submissions made by the learned counsel for
the appellant-doctors and the AMRI Hospital in determination of
compensation by following the multiplier method which was sought to be
justified by placing reliance upon Sarla Verma and Reshma’s cases
(supra) cannot be accepted by this Court and the same does not inspire
confidence in us in accepting the said submission made by the learned
senior counsel and other counsel to justify the multiplier method
adopted by the National Commission to determine the compensation under
the head of loss of dependency. Accordingly, we answer the point no. 4
in favour of the claimant and against the appellants-doctors and AMRI
Hospital.
Answer to Point no. 5
98. It is the claim of the claimant that he has also suffered huge
losses during this period, both direct loss of income from his job in
U.S.A. as well as indirect loss for pain and intense mental agony for
tenure denial and termination of his employment at Ohio State
University which was a direct result of the wrongful death of deceased
in India as would be evident from the judgment passed by the Court of
Claims in Ohio which was filed by the Hospital on 18th July, 2011. In
lieu of such pain and suffering the claimant made a demand of
Rs.34,56,07,000/- under different heads of ‘loss of income for missed
work’, ‘travelling expenses over the past 12 years’ and ‘legal
expenses including advocate fees’ etc.
99. We have perused through the claims of the claimant under the above
heads and we are inclined to observe the following :-
The claim of Rs.1,12,50,000/- made by the claimant under the head
of loss of income for missed work, cannot be allowed by this Court
since, the same has no direct nexus with the negligence of the
appellant- doctors and the Hospital. The claimant further assessed his
claim under the head of ‘Travel expenses over the past 12 years’ at
Rs.70,00,000/-. It is pertinent to observe that the claimant did not
produce any record of plane fare to prove his travel expenditure from
U.S.A. to India to attend the proceedings. However, it is an
undisputed fact that the claimant is a citizen of U.S.A. and had been
living there. It cannot be denied that he had to incur travel expenses
to come to India to attend the proceedings. Therefore, on an average,
we award a compensation of Rs.10 lakhs under the head of ‘Travel
expenses over the past twelve years’.
Further, the claimant argues that he has spent Rs.1,65,00,000/-
towards litigation over the past 12 years while seeking compensation
under this head. Again, we find the claim to be on the higher side.
Considering that the claimant who is a doctor by profession, appeared
in person before this Court to argue his case. We acknowledge the fact
that he might have required rigorous assistance of lawyers to prepare
his case and produce evidence in order. Therefore, we grant a
compensation of Rs.1,50,000/- under the head of ‘legal expenses’.
Therefore, a total amount of Rs. 11,50,000/- is granted to the
claimant under the head of ‘cost of litigation’.
Answer to Point no. 6
100. A perusal of the operative portion of the impugned judgment of
the National Commission shows that it has awarded interest at the rate
of 12% per annum but only in case of default by the doctors of AMRI
Hospital to pay the compensation within 8 weeks after the judgment was
delivered on October 21, 2011. Therefore, in other words, the National
Commission did not grant any interest for the long period of 15 years
as the case was pending before the National Commission and this Court.
Therefore, the National Commission has committed error in not awarding
interest on the compensation awarded by it and the same is opposed to
various decisions of this Court, such as in the case of Thazhathe
Purayil Sarabi & Ors. Vs. Union of India & Anr. regarding payment of
interest on a decree of payment this Court held as under:
“25. It is, therefore, clear that the court, while making a
decree for payment of money is entitled to grant interest at the
current rate of interest or contractual rate as it deems
reasonable to be paid on the principal sum adjudged to be
payable and/or awarded, from the date of claim or from the date
of the order or decree for recovery of the outstanding dues.
There is also hardly any room for doubt that interest may be
claimed on any amount decreed or awarded for the period during
which the money was due and yet remained unpaid to the
claimants.
26. The courts are consistent in their view that normally when a
money decree is passed, it is most essential that interest be
granted for the period during which the money was due, but could
not be utilised by the person in whose favour an order of
recovery of money was passed.
27. As has been frequently explained by this Court and various
High Courts, interest is essentially a compensation payable on
account of denial of the right to utilise the money due, which
has been, in fact, utilised by the person withholding the same.
Accordingly, payment of interest follows as a matter of course
when a money decree is passed.
28. The only question to be decided is since when is such
interest payable on such a decree. Though, there are two
divergent views, one indicating that interest is payable from
the date when claim for the principal sum is made, namely, the
date of institution of the proceedings in the recovery of the
amount, the other view is that such interest is payable only
when a determination is made and order is passed for recovery of
the dues. However, the more consistent view has been the former
and in rare cases interest has been awarded for periods even
prior to the institution of proceedings for recovery of the
dues, where the same is provided for by the terms of the
agreement entered into between the parties or where the same is
permissible by statute.”
101. Further, in Kemp and Kemp on Quantum of Damages, the objective
behind granting interest is recorded as under:
“The object of a court in awarding interest to a successful
litigant is to compensate him for being kept out of money which
the court has found is properly due to him. That objective is
easy to achieve where it is clear that on a certain date the
defendant ought to have paid to the plaintiff an ascertained
sum, for example by way of repayment of a loan. The problems
which arise in personal injury and fatal accident cases in
relation to awards of interest result from the facts that while,
on the one hand, the cause of action accrues at the time of the
accident, so that compensation is payable as from that time, on
the other hand
a) the appropriate amount of compensation cannot be assessed
in a personal injury case with any pretence of accuracy
until the condition of the plaintiff has stabilised, and
b) subject to the provisions of the Supreme Court Act 1981,
S.32A when that section is brought into force, when damages
are assessed they are assessed once for all in relation to
both actual past and anticipated future loss and damage.
XXX XXX XXX XXX XXX
The necessity for guidelines, and the status of guidelines, were
considered by the House of Lords in Cookson v. Knowles.[34] In
that case Lord Diplock with whom the other members of the House
agreed, said:
The section as amended gives to the judge several options
as to the way in which he may assess the interest element to be
included in the sum awarded by the judgment. He may include
interest on the whole of the damages or on a part of them only
as he thinks appropriate. He may award it for the whole or any
part of the period between the date when the cause of action
arose and the date of judgment and he may award it at different
rates for different part of the period chosen.
The section gives no guidance as to the way in which the judge
should exercise his choice between the various options open to
him. This is all left to his discretion; but like all
discretions vested in judges by statute or at common law, it
must be exercised judicially or, in the Scots phrase used by
Lord Emslie in Smith V. Middleton, 1972 S.C. 30, in a selective
and discriminating manner, not arbitrarily or idiosyncractically-
for otherwise the rights of parties to litigation would become
dependent upon judicial whim.
It is therefore appropriate for an appellate court to lay down
guidelines as to what matters it is proper for the judge to take
into account in deciding how to exercise the discretion confided
in him by the statute. In exercising this appellate function,
the court is not expounding a rule of law from which a judge is
precluded from departing where special circumstances exist in a
particular case; nor indeed, even in cases where there are no
special circumstances, is an appellate court justified in giving
effect to the preference of its members for exercising the
discretion in a different way from that adopted by the judge if
the choice between the alternative ways of exercising it is one
upon which judicial opinion might reasonably differ.”
102. Therefore, the National Commission in not awarding interest on
the compensation amount from the date of filing of the original
complaint up to the date of payment of entire compensation by the
appellant-doctors and the AMRI Hospital to the claimant is most
unreasonable and the same is opposed to the provision of the Interest
Act, 1978. Therefore, we are awarding the interest on the compensation
that is determined by this Court in the appeal filed by the claimant
at the rate of 6% per annum on the compensation awarded in these
appeals from the date of complaint till the date of payment of
compensation awarded by this Court. The justification made by the
learned senior counsel on behalf of the appellant-doctors and the AMRI
Hospital in not awarding interest on the compensation awarded by the
National Commission is contrary to law laid down by this Court and
also the provisions of the Interest Act, 1978. Hence, their
submissions cannot be accepted as the same are wholly untenable in law
and misplaced. Accordingly, the aforesaid point is answered in favour
of the claimant.
Answer to point no. 7
103. Before we answer this point, it is pertinent to mention that we
are not inclined to determine the liability of the doctors in causing
the death of the claimant’s wife since the same has already been done
by the Court in Malay Kumar Ganguly’s case (supra). We will confine
ourselves to determine the extent to which the appellant-doctors and
the Hospital are liable to pay compensation awarded to the claimant
for their acts of negligence in giving treatment to the deceased wife
of the claimant.
Liability of the AMRI Hospital:
104. It is the claim of appellant-AMRI Hospital that the arguments
advanced on behalf of the appellant-doctors that is, Dr. Balram
Prasad, Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar and the
claimant Dr. Kunal Saha, that the appellant AMRI is liable to pay the
highest share of compensation in terms of percentage on the basis of
the cost imposed by this Court in the earlier round of litigation in
Malay Kumar Ganguly’s case, supra are not sustainable in law.
105. The learned senior counsel for the appellant-AMRI Hospital Mr.
Vijay Hansaria argued that the submission made by the claimant Dr.
Kunal Saha is not sustainable both on facts and in law since he
himself had claimed special damages against the appellant-doctors, Dr.
Sukumar Mukherjee, Dr. Baidyanath Haldar and Dr. Abani Roy Choudhury
in his appeal and therefore, he cannot now in these proceedings claim
to the contrary. On the other hand, the claimant Dr. Kunal Saha
argues that though the National Commission claims that this Court did
not make any observation on apportionment of liability while remanding
the matter back to it for determining the quantum of compensation,
this Court had implicitly directed the bulk of compensation to be paid
by the Hospital. Through Paragraph No. 196, the judgment reads as
under:
“196. We, keeping in view the stand taken and conduct of
AMRI and Dr. Mukherjee, direct that costs of Rs 5,00,000 and Rs
1,00,000 would be payable by AMRI and Dr. Mukherjee
respectively. We further direct that if any foreign experts are
to be examined it shall be done only through videoconferencing
and at the cost of the respondents.”
This Court has stated that the bulk of the proportion of
compensation is to be paid by the Hospital and the rest by Dr. Sukumar
Mukherjee. None of the other doctors involved were imposed with cost
though they were found guilty of medical negligence. The claimant
relied upon the decision in Nizam Institute‘s case (supra) in which
this Court directed the Hospital to pay the entire amount of
compensation to the claimant in that case even though the treating
doctors were found to be responsible for the negligence. The claimant
also relied upon the observations made by this Court while remitting
the case back to National Commission for determining the quantum of
compensation, to emphasize upon the negligence on the part of the
Hospital. The findings of this Court in Malay Kumar Ganguly’s case
read as under:
“76. AMRI records demonstrate how abysmal the nursing care was.
We understand that there was no burn unit in AMRI and there was
no burn unit at Breach Candy Hospital either. A patient of TEN
is kept in ICU. All emphasis has been laid on the fact that one
room was virtually made an ICU. Entry restrictions were strictly
adhered to. Hygiene was ensured. But constant nursing and
supervision was required. In the name of preventing infection,
it cannot be accepted that the nurses would not keep a watch on
the patient. They would also not come to see the patients or
administer drugs.
77. No nasogastric tube was given although the condition of
the mouth was such that Anuradha could not have been given any
solid food. She required 7 to 8 litres of water daily. It was
impossible to give so much water by mouth. The doctors on the
very first day found that the condition of the mouth was bad.
78. The ENT specialist in his prescription noticed blisters
around the lips of the patient which led her to difficulty in
swallowing or eating. No blood sample was taken. No other
routine pathological examination was carried out. It is now
beyond any dispute that 25-30% body surface area was affected
(re. Prescription of Dr. Nandy, Plastic Surgeon). The next day,
he examined the patient and he found that more and more body
surface area was affected. Even Dr. Prasad found the same.
79. Supportive therapy or symptomatic therapy, admittedly, was
not administered as needle prick was prohibited. AMRI even did
not maintain its records properly. The nurses reports clearly
show that from 13th May onwards even the routine check-ups were
not done.”
106. The liability of compensation to be apportioned by this Court on
the appellant-AMRI Hospital is mentioned in paragraph 165 of the Malay
Kumar Ganguly’s case which reads as under:
“165. As regards, individual liability of Respondents 4, 5 and 6
is concerned, we may notice the same hereunder. As regards AMRI,
it may be noticed:
(i)Vital parameters of Anuradha were not examined between 11-5-
1998 to 16-5-1998 (body temperature, respiration rate, pulse, BP
and urine input and output).
(ii) IV fluid not administered. (IV fluid administration is
absolutely necessary in the first 48 hours of treating TEN.)”
107. However, this Court in the aforesaid case, also recorded as
under:
“184. In R. V. Yogasakaran the New Zealand Court opined that the
hospital is in a better position to disclose what care was taken
or what medicine was administered to the patient. It is the duty
of the hospital to satisfy that there was no lack of care or
diligence. The hospitals are institutions, people expect better
and efficient service, if the hospital fails to discharge their
duties through their doctors, being employed on job basis or
employed on contract basis, it is the hospital which has to
justify and not impleading a particular doctor will not absolve
the hospital of its responsibilities. (See also Errors, Medicine
and the Law, Alan Merry and Alexander McCall Smith, 2001 Edn.,
Cambridge University Press, p. 12.)”
108. Even in the case of Savita Garg Vs. National Heart Institute
(supra) this Court, while determining the liability of the Hospital,
observed as under:
“15. Therefore, as per the English decisions also the
distinction of “contract of service” and “contract for
service”, in both the contingencies, the courts have taken the
view that the hospital is responsible for the acts of their
permanent staff as well as staff whose services are temporarily
requisitioned for the treatment of the patients. Therefore, the
distinction which is sought to be pressed into service so ably
by learned counsel cannot absolve the hospital or the Institute
as it is responsible for the acts of its treating doctors who
are on the panel and whose services are requisitioned from time
to time by the hospital looking to the nature of the diseases.
The hospital or the Institute is responsible and no distinction
could be made between the two classes of persons i.e. the
treating doctor who was on the staff of the hospital and the
nursing staff and the doctors whose services were temporarily
taken for treatment of the patients............
16. Therefore, the distinction between the “contract of service”
and “contract for service” has been very elaborately discussed
in the above case and this Court has extended the provisions of
the Consumer Protection Act, 1986, to the medical profession
also and included in its ambit the services rendered by private
doctors as well as the government institutions or the non-
governmental institutions, be it free medical services provided
by the government hospitals. In the case of Achutrao Haribhau
Khodwa v. State of Maharashtra their Lordships observed that in
cases where the doctors act carelessly and in a manner which is
not expected of a medical practitioner, then in such a case an
action in tort would be maintainable. Their Lordships further
observed that if the doctor has taken proper precautions and
despite that if the patient does not survive then the court
should be very slow in attributing negligence on the part of the
doctor. It was held as follows: (SCC p. 635)
‘A medical practitioner has various duties towards his
patient and he must act with a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care.
This is the least which a patient expects from a doctor. The
skill of medical practitioners differs from doctor to
doctor. The very nature of the profession is such that there
may be more than one course of treatment which may be
advisable for treating a patient. Courts would indeed be
slow in attributing negligence on the part of a doctor if he
has performed his duties to the best of his ability and with
due care and caution. Medical opinion may differ with regard
to the course of action to be taken by a doctor treating a
patient, but as long as a doctor acts in a manner which is
acceptable to the medical profession and the court finds
that he has attended on the patient with due care, skill and
diligence and if the patient still does not survive or
suffers a permanent ailment, it would be difficult to hold
the doctor to be guilty of negligence. But in cases where
the doctors act carelessly and in a manner which is not
expected of a medical practitioner, then in such a case an
action in torts would be maintainable.’
Similarly, our attention was invited to a decision in the case of
Spring Meadows Hospital v. Harjol Ahluwalia. Their Lordships observed
as follows: (SCC pp. 46-47, para 9)
‘9.…Very often in a claim for compensation arising out of
medical negligence a plea is taken that it is a case of
bona fide mistake which under certain circumstances may be
excusable, but a mistake which would tantamount to
negligence cannot be pardoned. In the former case a court
can accept that ordinary human fallibility precludes the
liability while in the latter the conduct of the defendant
is considered to have gone beyond the bounds of what is
expected of the skill of a reasonably competent doctor…’
Therefore, as a result of our above discussion we are of the
opinion that summary dismissal of the original petition by the
Commission on the question of non-joinder of necessary parties
was not proper. In case the complainant fails to substantiate
the allegations, then the complaint will fail. But not on the
ground of non-joinder of necessary party. But at the same time
the hospital can discharge the burden by producing the treating
doctor in defence that all due care and caution was taken and
despite that the patient died. The hospital/Institute is not
going to suffer on account of non-joinder of necessary parties
and the Commission should have proceeded against the hospital.
Even otherwise also the Institute had to produce the treating
physician concerned and has to produce evidence that all care
and caution was taken by them or their staff to justify that
there was no negligence involved in the matter. Therefore,
nothing turns on not impleading the treating doctor as a party.
Once an allegation is made that the patient was admitted in a
particular hospital and evidence is produced to satisfy that he
died because of lack of proper care and negligence, then the
burden lies on the hospital to justify that there was no
negligence on the part of the treating doctor or hospital.
Therefore, in any case, the hospital is in a better position to
disclose what care was taken or what medicine was administered
to the patient. It is the duty of the hospital to satisfy that
there was no lack of care or diligence. The hospitals are
institutions, people expect better and efficient service, if the
hospital fails to discharge their duties through their doctors,
being employed on job basis or employed on contract basis, it is
the hospital which has to justify and not impleading a
particular doctor will not absolve the hospital of its
responsibilities.”
(Emphasis laid by this Court)
109. Therefore, in the light of the rival legal contentions raised by
the parties and the legal principles laid down by this Court in
plethora of cases referred to supra, particularly, Savita Garg’s case,
we have to infer that the appellant-AMRI Hospital is vicariously
liable for its doctors. It is clearly mentioned in Savita Garg’s case
that a Hospital is responsible for the conduct of its doctors both on
the panel and the visiting doctors. We, therefore, direct the
appellant-AMRI Hospital to pay the total amount of compensation with
interest awarded in the appeal of the claimant which remains due after
deducting the total amount of Rs.25 lakhs payable by the appellants-
doctors as per the Order passed by this Court while answering the
point no. 7.
Liability of Dr. Sukumar Mukherjee:
110. As regards the liability of Dr. Sukumar Mukherjee, it is his case
that nowhere has this Court in Malay Kumar Ganguly’s decision hold the
appellant Dr. Mukherjee and appellant-AMRI Hospital “primarily
responsible” for the death of the claimant’s wife. On the contrary,
referring to paras 186 and 187 of the said judgment, under the heading
of ‘cumulative effect’, the appellant’s counsel has argued that his
liability is not established by the Court. The said paragraphs are
extracted hereunder:
“186. A patient would feel the deficiency in service having
regard to the cumulative effect of negligence of all concerned.
Negligence on the part of each of the treating doctors as also
the hospital may have been the contributing factors to the
ultimate death of the patient. But, then in a case of this
nature, the court must deal with the consequences the patient
faced, keeping in view the cumulative effect. In the instant
case, negligent action has been noticed with respect to more
than one respondent. A cumulative incidence, therefore, has led
to the death of the patient.
187. It is to be noted that the doctrine of cumulative effect is
not available in criminal law. The complexities involved in the
instant case as also the differing nature of negligence
exercised by various actors, make it very difficult to distil
individual extent of negligence with respect to each of the
respondent. In such a scenario finding of medical negligence
under Section 304-A cannot be objectively determined.”
111. In the light of the legal contention raised by the appellant-Dr.
Mukherjee, we are inclined to make the following observation regarding
his liability in the present case. The paragraphs relied upon by Dr.
Mukherjee as have been mentioned above are in relation to the
culpability of the doctors for causing the death of the patient under
Section 304-A of IPC. It is imperative to mention here that the
quantum of compensation to be paid by the appellant-doctors and the
AMRI Hospital is not premised on their culpability under Section 304-A
of IPC but on the basis of their act of negligence as doctors in
treating the deceased wife of the claimant. We are therefore inclined
to reiterate the findings of this Court regarding the liability of Dr.
Mukherjee in Malay Kumar Ganguly’s case which read as under:
“159. When Dr. Mukherjee examined Anuradha, she had rashes all
over her body and this being the case of dermatology, he should
have referred her to a dermatologist. Instead, he prescribed
“depomedrol” for the next 3 days on his assumption that it was a
case of “vasculitis”. The dosage of 120 mg depomedrol per day is
certainly a higher dose in case of a TEN patient or for that
matter any patient suffering from any other bypass or skin
disease and the maximum recommended usage by the drug
manufacturer has also been exceeded by Dr. Mukherjee. On 11-5-
1998, the further prescription of depomedrol without diagnosing
the nature of the disease is a wrongful act on his part.
160. According to general practice, long-acting steroids are not
advisable in any clinical condition, as noticed hereinbefore.
However, instead of prescribing a quick-acting steroid, the
prescription of a long-acting steroid without foreseeing its
implications is certainly an act of negligence on Dr.
Mukherjee’s part without exercising any care or caution. As it
has been already stated by the experts who were cross-examined
and the authorities that have been submitted that the usage of
80-120 mg is not permissible in TEN. Furthermore, after
prescribing a steroid, the effect of immunosuppression caused
due to it, ought to have been foreseen. The effect of
immunosuppression caused due to the use of steroids has affected
the immunity of the patient and Dr. Mukherjee has failed to take
note of the said consequences.”
112. It is also important to highlight in this judgment that the
manner in which Dr. Mukherjee attempted to shirk from his individual
responsibility both in the criminal and civil cases made against him
on the death of the claimant’s wife is very much unbecoming of a
doctor as renowned and revered as he is. The finding of this Court on
this aspect recorded in Malay Kumar Ganguly’s case reads as under:
“182. It is also of some great significance that both in the
criminal as also the civil cases, the doctors concerned took
recourse to the blame game. Some of them tried to shirk their
individual responsibilities. We may in this behalf notice the
following:
(i) In response to the notice of Dr. Kunal, Dr. Mukherjee says
that depomedrol had not been administered at all. When
confronted with his prescription, he suggested that the reply
was not prepared on his instructions, but on the instruction of
AMRI.
(ii) Dr. Mukherjee, thus, sought to disown his prescription at
the first instance. So far as his prescription dated 11-5-1998
is concerned, according to him, because he left Calcutta for
attending an international conference, the prescription issued
by him became non-operative and, thus, he sought to shift the
blame on Dr. Halder.
(iii) Dr. Mukherjee and Dr. Halder have shifted the blame to Dr.
Prasad and other doctors. Whereas Dr. Prasad countercharged the
senior doctors including Respondent 2 stating:
“Prof. B.N. Halder (Respondent 2) was so much attached with the
day-today treatment of patient Anuradha that he never found any
deficiency in the overall management at AMRI so much so that he
had himself given a certificate that her condition was very much
fit enough to travel to Mumbai.…”
113. Therefore, the negligence of Dr. Sukumar Mukherjee in treating
the claimant’s wife had been already established by this Court in
Malay Kumar Ganguly’s case. Since he is a senior doctor who was in
charge of the treatment of the deceased, we are inclined to mention
here that Dr. Mukherjee has shown utmost disrespect to his profession
by being so casual in his approach in treating his patient. Moreover,
on being charged with the liability, he attempted to shift the blame
on other doctors. We, therefore, in the light of the facts and
circumstances, direct him to pay a compensation of Rs.10 lakhs to the
claimant in lieu of his negligence and we sincerely hope that he
upholds his integrity as a doctor in the future and not be casual
about his patient’s lives.
Liability of Dr.Baidyanath Haldar:
114. The case of the appellant Dr. Baidyanath Haldar is that he is a
senior consultant who was called by the attending physician to examine
the patient on 12.5.1998. On examining the patient, he diagnosed the
disease as TEN and prescribed medicines and necessary supportive
therapies. It is his further case that he was not called either to see
or examine the patient post 12.5.1998. The case against Dr. B. Haldar
is his prescription of Steroid Predinosolone at the rate of 40 mg
thrice a day which was excessive in view of the fact that the deceased
was already under high dose of steroid. It is urged by the appellant-
Dr. Haldar that the deceased was under a high dose of steroid at the
rate of 160 mg per day and it was the appellant who tapered it down by
prescribing a quick acting steroid Predinosolone at 120 mg per day.
The appellant-Dr. Haldar further urged that he was called only once to
examine the deceased and he was not called thereafter. Hence, the
National Commission wrongly equated him with Dr. Balram Prasad who was
the attending physician. Though the claimant did not make any counter
statement on apportioning liability to the appellant-Dr. Haldar, it is
pertinent for us to resort to the findings recorded by this Court in
the case while remanding it back to the National Commission for
determining the individual liability of the appellant doctors involved
in the treatment of the deceased. The findings of this Court in Malay
Kumar Ganguly’s case supra, are recorded as under:
“161. After taking over the treatment of the patient and
detecting TEN, Dr. Halder ought to have necessarily verified the
previous prescription that has been given to the patient. On 12-
5-1998 although “depomedrol” was stopped, Dr. Halder did not
take any remedial measures against the excessive amount of
“depomedrol” that was already stuck in the patient’s body and
added more fuel to the fire by prescribing a quick-acting
steroid “prednisolone” at 40 mg three times daily, which is an
excessive dose, considering the fact that a huge amount of
“depomedrol” has been already accumulated in the body.
162. Life saving “supportive therapy” including IV
fluids/electrolyte replacement, dressing of skin wounds and
close monitoring of the infection is mandatory for proper care
of TEN patients. Skin (wound) swap and blood tests also ought to
be performed regularly to detect the degree of infection. Apart
from using the steroids, aggressive supportive therapy that is
considered to be rudimentary for TEN patients was not provided
by Dr. Halder.
163. Further “vital signs” of a patient such as temperature,
pulse, intake-output and blood pressure were not monitored. All
these factors are considered to be the very basic necessary
amenities to be provided to any patient, who is critically ill.
The failure of Dr. Halder to ensure that these factors were
monitored regularly is certainly an act of negligence. Occlusive
dressings were carried out as a result of which the infection
had been increased. Dr. Halder’s prescription was against the
Canadian Treatment Protocol reference to which we have already
made hereinbefore. It is the duty of the doctors to prevent
further spreading of infections. How that is to be done is the
doctors concern. Hospitals or nursing homes where a patient is
taken for better treatment should not be a place for getting
infection.”
115. Similar to the appellant Dr. Sukumar Mukherjee, the appellant Dr.
Baidyanath Haldar is also a senior doctor of high repute. However,
according to the findings of this Court in Malay Kumar Ganguly’s case,
he had conducted with utmost callousness in giving treatment to the
claimant’s wife which led to her unfortunate demise. The appellant Dr.
Baidyanath Haldar too, like Dr. Sukumar Mukherjee, made every attempt
to shift the blame to the other doctors thereby tainting the medical
profession who undertook to serve. This Court thereby directs him to
pay Rs.10 lakhs as compensation to the claimant in lieu of his
negligence in treating the wife of the claimant.
Liability of Dr Baidyanath Prasad:
116. It is the case of the appellant-Dr. Balram Prasad that he was the
junior-most attending physician at AMRI Hospital who saw the deceased
for the first time on 11.5.1998. He was not called upon to prescribe
medicines but was only required to continue and monitor the medicines
to be administered to the deceased as prescribed by the specialists.
The learned senior counsel on behalf of the appellant-Dr. B.Prasad
argues that the complaint made by the claimant had no averments
against him but the one whereby it was stated by the claimant at
paragraph 44 of the complaint which reads thus:
“44. That Dr. Balram Prasad as attending physician at AMRI did
do nothing better. He did not take any part in the treatment of
the patient although he stood like a second fiddle to the main
team headed by the opposite party no. 2 & 3. He never suggested
even faintly that AMRI is not an ideal place for treatment of
TEN patient; on the converse, he was full of praise for AMRI as
an ideal place for the treatment of TEN patients knowing nothing
how a TEN patient should be treated.”
117. To prove his competence as a doctor, the appellant-Dr. Balram
Prasad further produced a portion of the complaint which reads thus:
“33………. that no skin biopsy for histopathology report was ever
recommended by any (except Dr. B.Prasad), which is the basic
starting point in such treatment, the same mistake was also
committed by the opposite party no. 1”
118. The appellant Dr. Balram Prasad further emphasizes upon the cross-
examination of the claimant to prove that he was not negligent while
treating the patient. Question No. 26 of the cross examination reads
as under:
“Q. No. 26: Dr. Prasad says that Depomedrol dose according to
the treatment sheet of the AMRI hospital, he made a specific
suggestion that the dose should be limited to that particular
day only. Is it correct?
Ans: It is all matter of record. Yeah, he said that one day in
AMRI record.”
119. Though the claimant did not make specific claim against the
appellant-Dr. Balram Prasad, appellant Dr. B. Haldar claimed in his
submission that he has been wrongly equated with Dr. Balram Prasad who
was the attending physician and Dr. Anbani Roy Choudhury who was the
physician in charge of the patient.
120. It is pertinent for us to note the shifting of blames on
individual responsibility by the doctors specially the senior doctor
as recorded by this Court which is a shameful act on the dignity of
medical profession. The observations made by this Court in this regard
in Malay Kumar Ganguly’s case read as under:
“182......(iii) Dr. Mukherjee and Dr. Halder have shifted the
blame to Dr. Prasad and other doctors. Whereas Dr. Prasad
countercharged the senior doctors including Respondent 2
stating:
“Prof. B.N. Halder (Respondent 2) was so much attached with the
day-today treatment of patient Anuradha that he never found any
deficiency in the overall management at AMRI so much so that he
had himself given a certificate that her condition was very much
fit enough to travel to Mumbai.…”
In answer to a question as to whether Dr. Halder had given
specific direction to him for control of day-today medicine to
Anuradha, Dr. Prasad stated:
“… this was done under the guidance of Dr. Sukumar Mukherjee
(Respondent 1), Dr. B.N. Halder (Respondent 2) and Dr. Abani Roy
Chowdhury (Respondent 3).”
He furthermore stated that those three senior doctors primarily
decided the treatment regimen for Anuradha at AMRI.
(iv) Dr. Kaushik Nandy had also stated that three senior doctors
were in charge of Anuradha’s treatment.
(v) AMRI states that the drugs had been administered and nursing
care had been given as per the directions of the doctors.
(vi) Respondents 5 and 6, therefore, did not own any individual
responsibility on themselves although they were independent
physicians with postgraduate medical qualifications.
183. In Errors, Medicine and the Law, Cambridge University
Press, p. 14, the authors, Alan Merry and Alexander McCall
Smith, 2001 Edn., stated:
“Many incidents involve a contribution from more than one
person, and this case is an example. It illustrates the tendency
to blame the last identifiable element in the claim of
causation—the person holding the ‘smoking gun’. A more
comprehensive approach would identify the relative contributions
of the other failures in the system, including failures in the
conduct of other individuals.…”
121. Paragraph 183 of the judgment indicates that the Court abhorred
the shifting of blames by the senior doctor on the attending physician
the appellant Dr. Balram Prasad even though the Court held him guilty
of negligence. This Court found the appellant-Dr. Balram Prasad guilty
as under:
“166. As regards, Dr. Balaram Prasad, Respondent 5, it may be
noticed:
(i) Most doctors refrain from using steroids at the later stage
of the disease due to the fear of sepsis, yet he added more
steroids in the form of quick-acting “prednisolone” at 40 mg
three times a day.
(ii) He stood as a second fiddle to the treatment and failed to
apply his own mind.
(iii) No doctor has the right to use the drug beyond the maximum
recommended dose.”
122. We acknowledge the fact that Dr. Balram Prasad was a junior
doctor who might have acted on the direction of the senior doctors who
undertook the treatment of the claimant’s wife in AMRI-Hospital.
However, we cannot lose sight of the fact that the appellant Dr.
Balram Prasad was an independent medical practitioner with a post
graduate degree. He still stood as a second fiddle and perpetuated the
negligence in giving treatment to the claimant’s wife. This Court in
Malay Kumar Ganguly’s case found him to be negligent in treating the
claimant’s wife in spite of being the attending physician of the
Hospital. But since he is a junior doctor whose contribution to the
negligence is far less than the senior doctors involved, therefore
this Court directs him to pay a compensation of Rs. 5 lakhs to the
claimant. We hope that this compensation acts as a reminder and
deterrent to him against being casual and passive in treating his
patients in his formative years of medical profession.
Liability of the claimant - Dr. Kunal Saha:
123. Finally, we arrive at determining the contribution of the
claimant to the negligence of the appellant- doctors and the AMRI
Hospital in causing the death of his wife due to medical negligence.
The National Commission has determined the compensation to be paid for
medical negligence at Rs.1,72,87,500/-. However, the National
Commission was of the opinion that the interference of the claimant
was also contributed to the death of his wife. The National Commission
relied upon paragraph 123 of the judgment of this Court in Malay Kumar
Ganguly’s case to arrive at the aforesaid conclusion. Paragraph 123 of
the judgment reads thus:
“123. To conclude, it will be pertinent to note that even if we
agree that there was interference by Kunal Saha during the
treatment, it in no way diminishes the primary responsibility
and default in duty on part of the defendants. In spite of a
possibility of him playing an overanxious role during the
medical proceedings, the breach of duty to take basic standard
of medical care on the part of defendants is not diluted. To
that extent, contributory negligence is not pertinent. It may,
however, have some role to play for the purpose of damages.”
Therefore, holding the claimant responsible for contributory
negligence, the National Commission deducted 10% from the total
compensation and an award of Rs.1,55,58,750/- was given to the
claimant.
124. The appellants-doctors and the AMRI Hospital have raised the
issue of contributory negligence all over again in the present case
for determining the quantum of compensation to be deducted for the
interference of the claimant in treatment of the deceased.
125. On the other hand, the claimant in his written statement has
mentioned that this Court has rejected the assertion that the claimant
interfered with the treatment of his wife. The appellant-doctors
raised the same issue in the revision petition which was appropriately
dismissed. He relied upon the observations made by this Court which
read as under:
“117. Interference cannot be taken to be an excuse for
abdicating one’s responsibility especially when an interference
could also have been in the nature of suggestion. Same comments
were said to have been made by Dr. Halder while making his
statement under Section 313 of the Code of Criminal Procedure.
They are admissible in evidence for the said purpose. Similarly,
the statements made by Dr. Mukherjee and Dr. Halder in their
written statements before the National Commission are not backed
by any evidence on record. Even otherwise, keeping in view the
specific defence raised by them individually, interference by
Kunal, so far as they are concerned, would amount to hearsay
evidence and not direct evidence.
122. The respondents also sought to highlight on the number of
antibiotics which are said to have been administered by Kunal to
Anuradha while she was in AMRI contending that the said
antibiotics were necessary. Kunal, however, submitted that the
said antibiotics were prescribed by the doctors at AMRI and he
did not write any prescription. We would, however, assume that
the said antibiotics had been administered by Kunal on his own,
but it now stands admitted that administration of such
antibiotics was necessary.
123. To conclude, it will be pertinent to note that even if we
agree that there was interference by Kunal Saha during the
treatment, it in no way diminishes the primary responsibility
and default in duty on part of the defendants. In spite of a
possibility of him playing an overanxious role during the
medical proceedings, the breach of duty to take basic standard
of medical care on the part of defendants is not diluted. To
that extent, contributory negligence is not pertinent. It may,
however, have some role to play for the purpose of damages.”
(Emphasis laid by this Court)
A careful reading of the above paragraphs together from the decision
of Malay Kumar Ganguly’s case would go to show that the claimant
though over-anxious, did to the patient what was necessary as a part
of the treatment. The National Commission erred in reading in
isolation the statement of this Court that the claimant’s action may
have played some role for the purpose of damage.
126. We further intend to emphasize upon the observation of this Court
in Malay Kumar Ganguly’s case which reads as under:
“194. Further, the statement made by the High Court that the
transfer certificate was forged by the patient party is
absolutely erroneous, as Dr. Anil Kumar Gupta deposed before the
trial court that he saw the transfer certificate at AMRI’s
office and the words “for better treatment” were written by Dr.
Balaram Prasad in his presence and these words were written by
Dr. Prasad, who told it would be easier for them to transport
the patient. In a case of this nature, Kunal would have expected
sympathy and not a spate of irresponsible accusations from the
High Court.”
In the abovementioned paragraph, this Court clearly deterred the High
Court from making irresponsible accusations against the claimant who
has suffered not only due to the loss of his wife but also because his
long drawn battle for justice. Unfortunately, the National Commission
made the same mistake.
127. We, therefore, conclude that the National Commission erred in
holding that the claimant had contributed to the negligence of the
appellant-doctors and the Hospital which resulted in the death of his
wife when this Court clearly absolved the claimant of such liability
and remanded the matter back to the National Commission only for the
purpose of determining the quantum of compensation. Hence, we set
aside the finding of the National Commission and re-emphasize the
finding of this Court that the claimant did not contribute to the
negligence of the appellants-doctors and AMRI Hospital which resulted
in the death of his wife.
Answer to point no. 8
128. This Court, while remanding the matter back to the National
Commission, has categorically stated that the pecuniary and non-
pecuniary losses sustained by the claimant and future losses of him up
to the date of trial must be considered for the quantum of
compensation. That has not been done in the instant case by the
National Commission. Therefore, the claimant is entitled for
enhancement of compensation on the aforesaid heads as he has incurred
huge amount of expenses in the court of more than 15 years long trial
in the instant case. The total claim, original as well as enhanced
claim by way of filing affidavit with supporting documents, is
Rs.97,56,07,000/- that includes pecuniary damages of Rs.34,56,07,000/-
and non pecuniary damages of Rs.31,50,00,000/-, special damages of US
$4,000,000 for loss of job/house in Ohio and punitive damages of US
$1,000,000. The updated break-up of the total claim has been perused
and the same has not been considered by the National Commission
keeping in view the claim and legal evidence and observations made and
directions issued by this Court in Malay Kumar Ganguly’s case to
determine just and reasonable compensation. Therefore, we are of the
view that the claimant is entitled for enhanced compensation that will
be mentioned under different heads which will be noted in the
appropriate paragraphs of this judgment.
129. The National Commission has also not taken into consideration the
observations made by this Court while remanding the case for
determining the quantum of compensation with regard to the status of
treating doctors and the Hospital. Further, the National Commission
has failed to take into consideration the observations made in the
aforesaid judgment wherein in paragraphs 152 and 155 it is held that
AMRI Hospital is one of the best Hospitals in Calcutta and the doctors
were best doctors available. This aspect of the matter has been
completely ignored by the National Commission in awarding just and
reasonable compensation in favour of the claimant.
130. Since, it has already been determined by the Court that the
compensation paid by the National Commission was inadequate and that
it is required to be enhanced substantially given the facts and
evidence on record, it will be prudent to take up the different heads
of compensation separately to provide clarity to the reasoning as
well.
Loss of income of the deceased:
131. The grievance of the claimant is that the National Commission has
failed to take into consideration the legal and substantial evidence
produced on record regarding the income of the deceased wife as she
was a citizen of U.S.A. and permanently settled as a child
psychologist and the claimant was AIDS researcher in the U.S.A.
Therefore, the National Commission ought to have taken the above
relevant factual aspect of the case into consideration regarding the
status and standard of living of the deceased in U.S.A. to determine
just compensation under the head of loss of dependency. The claimant
has rightly relied upon the case involving death of a 47-48 years old
U.S.A. citizen in a road accident in India, in United India Insurance
Co. Ltd. & Others Vs. Patricia Jean Mahajan & Ors. referred to supra
where this Court has awarded compensation of Rs.10.38 crores after
holding that while awarding compensation in such cases the Court must
consider the high status and standard of living of both the victim and
dependents. However, the National Commission did not consider the
substantial and legal evidence adduced on record by the claimant
regarding the income that was being earned by the claimant’s wife even
though he has examined the U.S.A. based Prof. John F. Burke through
video conferencing in May-June, 2011. He was also cross examined by
the counsel of the appellant- doctors and the Hospital and had
scientifically calculated and testified under direct as well as cross
examination as to how he came to calculate the prospective loss of
income for a similarly situated person in U.S.A. as of the deceased.
Prof. John F. Burke has categorically stated that direct loss of
income of the deceased on account of her premature death, would amount
to 5 million and 125 thousand dollars. The loss of income on account
of premature death of the claimant’s wife was calculated by the said
witness who is an Economist in America and he has also deducted one-
third for her personal expenses out of her annual income which is at
par with the law laid down by this Court in number of cases including
Sarla Verma’s case (supra). In the cross examination of the said
expert witness by the learned counsel for the appellant-doctors and
the Hospital, he has also explained how he calculated the loss of
income on the premise of the premature death of the claimant’s wife.
According to Prof. John F. Burke, the above calculation of 5 million
and 125 thousand dollars for loss of income of the deceased was a very
conservative forecast and other estimates the damages for her
premature death could be 9 to 10 million dollars. It is the claim of
the claimant that loss of income of multi-million dollars as direct
loss for the wrongful death of the deceased may appear as a fabulous
amount in the context of India but undoubtedly an average and
legitimate claim in the context of the instant case has to be taken to
award just compensation. He has placed reliance upon the judgment of
this Court in Indian Medical Association’s case (supra) wherein the
Constitution Bench has stated that to deny the legitimate claim or to
restrict arbitrarily the size of an award would amount to substantial
injustice. We have considered the above important aspect of the case
in the decision of this Court for enhancing the compensation in favour
of the claimant.
132. As per the evidence on record, the deceased was earning $ 30,000
per annum at the time of her death. The appellant-doctors and the
Hospital could not produce any evidence to rebut the claims of the
claimant regarding the qualification of her wife. Further, Prof. John
F. Burke, an economic expert testified that the deceased could have
earned much more in future given her present prospect. But relying
upon the principle laid down by this Court, we cannot take the
estimate of Prof. John F. Burke to be the income of the deceased. We
also feel that $30,000 per annum earned by the deceased during the
time of her death was not from a regular source of income and she
would have earned lot more had it been a regular source of income,
having regard to her qualification and the job for which she was
entitled to. Therefore, while determining the income of the deceased,
we rely on the evidence on record for the purpose of determining the
just, fair and reasonable compensation in favour of the claimant. It
would be just and proper for us to take her earning at $40,000 per
annum on a regular job. We further rely upon the paragraphs in the
cases of Sarla Verma and Santosh Devi referred to supra while
answering the point no. 1, to hold that 30% should be added towards
the future loss of income of the deceased. Also, based on the law laid
down by this Court in catena of cases referred to supra, 1/3rd of the
total income is required to be deducted under the head of personal
expenditure of the deceased to arrive at the multiplicand.
133. The multiplier method to be applied has been convincingly argued
by the learned counsel for the appellant-doctors and the Hospital
against by the claimant which we concede with based on the reasoning
mentioned while answering the point no. 4. Therefore, estimating the
life expectancy of a healthy person in the present age as 70 years, we
are inclined to award compensation accordingly by multiplying the
total loss of income by 30.
134. Further, the claimant has rightly pointed that the value of
Indian currency has gone down since the time when these legal
proceedings have begun in this country. This argument of the claimant
has been accepted by us while answering the point nos. 2 and 3.
Therefore, it will be prudent for us to hold the current value of
Indian Rupee at a stable rate of Rs.55/- per 1$.
Therefore, under the head of ‘loss of income of the deceased’
the claimant is entitled to an amount of Rs.5,72,00,550/- which is
calculated as [$40,000+(30/100x40,000$)-(1/3 x 52,000$) x 30 x Rs.55/-
] = Rs.5,72,00,550/-.
Other Pecuniary Damages:
135. The pecuniary damages incurred by the claimant due to the loss
of the deceased have already been granted while answering the point
no. 5. Therefore, we are not inclined to repeat it again in this
portion. However, the expenditure made by the claimant during the
treatment of the deceased both in Kolkata and Mumbai Hospitals
deserves to be duly compensated for awarding reasonable amount under
this head as under:-
(a) For the medical treatment in Kolkata and Mumbai:
136. An amount of Rs.23 lakhs has been claimed by the claimant under
this head. However, he has been able to produce the medical bill only
to the extent of Rs.2.5 lakhs which he had paid to the Breach Candy
Hospital, Mumbai. Assuming that he might have incurred some more
expenditure, the National Commission had quantified the expenses under
this head to the tune of Rs.5 lakhs. We still consider this amount as
insufficient in the light of the fact that the deceased was treated at
AMRI Hospital as an in-patient for about a week; we deem it just and
proper to enhance the compensation under this head by Rs.2 lakhs
thereby awarding a total amount Of Rs.7 lakhs under this head.
(b) Travel and Hotel expenses at Bombay:
137. The claimant has sought for compensation to the tune of Rs.7
lakhs for travel and expenses for 11 days he had to stay in Mumbai for
the treatment of his wife. However, again he has failed to produce any
bills to prove his expenditure. Since, his travel to Mumbai for the
treatment of his wife is on record, the National Commission has
awarded compensation of Re.1 lakh under this head. We find it fit and
proper to enhance the compensation by Rs.50,000/- more considering
that he had also incurred some unavoidable expenditure during his
travel and stay in Mumbai at the time of treatment of the deceased.
Therefore, under this head, we award a compensation of Rs.1,50,000/-.
138. However, with respect to the claim made under the cost of
chartered flight, a sum of Rs.5,00,000/- is already awarded by the
National Commission and we are not inclined to interfere with the same
in absence of any evidence which alters the computation of the cost
incurred in chartered flight. Hence, we uphold the amount awarded by
the National Commission under the head of ‘cost of chartered flight’.
Non pecuniary damages:
139. It is the case of the claimant that the National Commission has
awarded paltry amount equivalent to $20,000 for the enormous and
lifelong pain, suffering, loss of companionship and amenities that he
had been put through due to the negligent act of the appellant-
doctors and the Hospital. The claimant had claimed Rs.50 crores under
this head before the National Commission without giving any break up
figures for the amount. Before this Court however, the claimant has
reduced the claim to Rs.31,50,00,000/- under three different heads. He
has claimed Rs.13,50,00,000/- for loss of companionship and life
amenities, Rs.50,00,000/- for emotional distress, pain and suffering
of the husband- the claimant and Rs.4,50,00,000/- for pain and
suffering endured by the deceased during her treatment.
140. In this regard, we are inclined to make an observation on the
housewife services here. In the case of Arun Kumar Agarwal Vs.
National Insurance Company[35], this Court observed as follows:
22. We may now deal with the question formulated in the opening
paragraph of this judgment. In Kemp and Kemp on Quantum of
Damages, (Special Edn., 1986), the authors have identified
various heads under which the husband can claim compensation on
the death of his wife. These include loss of the wife’s
contribution to the household from her earnings, the additional
expenses incurred or likely to be incurred by having the
household run by a housekeeper or servant, instead of the wife,
the expenses incurred in buying clothes for the children instead
of having them made by the wife, and similarly having his own
clothes mended or stitched elsewhere than by his wife, and the
loss of that element of security provided to the husband where
his employment was insecure or his health was bad and where the
wife could go out and work for a living.
23. In England the courts used to award damages solely on the
basis of pecuniary loss to family due to the demise of the wife.
A departure from this rule came to be made in Berry v. Humm &
Co. where the plaintiff claimed damages for the death of his
wife caused due to the negligence of the defendant’s servants.
After taking cognizance of some precedents, the learned Judge
observed: (KB p. 631)
“… I can see no reason in principle why such pecuniary loss
should be limited to the value of money lost, or the money value
of things lost, as contributions of food or clothing, and why I
should be bound to exclude the monetary loss incurred by
replacing services rendered gratuitously by a relative, if there
was a reasonable prospect of their being rendered freely in the
future but for the death.”
24. In Regan v. Williamson the Court considered the issue
relating to quantum of compensation payable to the dependants of
the woman who was killed in a road accident. The facts of that
case were that on the date of accident, the plaintiff was aged
43 years and his children were aged 14 years, 11 years, 8 years
and 3 years respectively. The deceased wife/mother was aged 37
years. The cost of a housekeeper to carry out services
previously rendered by his wife was 22.5 pounds per week, the
saving to him in not having to clothe and feed his wife was 10
pound per week, leaving a net loss of 12.50 pounds per week or
600 pounds a year. However, the Court took into account the
value of other services previously rendered by the wife for
which no substitute was available and accordingly increased the
dependency to 20 pounds a week. The Court then applied a
multiplier of 11 in reaching a total fatal accidents award of
12,298 pounds. In his judgment, Watkins, J. noted as under: (WLR
pp. 307 H-308 A)
“The weekend care of the plaintiff and the boys remains a
problem which has not been satisfactorily solved. The
plaintiff’s relatives help him to a certain extent, especially
on Saturday afternoons. But I formed the clear impression that
the plaintiff is often, at weekends, sorely tired in trying to
be an effective substitute for the deceased. The problem could,
to some extent, be cured by engaging another woman, possibly to
do duty at the weekend, but finding such a person is no simple
matter. I think the plaintiff has not made extensive enquiries
in this regard. Possibly the expense involved in getting more
help is a factor which has deterred him. Whatever be the reason,
the plain fact is that the deceased’s services at the weekend
have not been replaced. They are lost to the plaintiff and to
the boys.”
He then proceeded to observe: (WLR p. 309
A-D)
“I have been referred to a number of cases in which judges have
felt compelled to look upon the task of assessing damages in
cases involving the death of a wife and mother with strict
disregard to those features of the life of a woman beyond her so-
called services, that is to say, to keep house, to cook the
food, to buy the clothes, to wash them and so forth. In more
than one case, an attempt has been made to calculate the actual
number of hours it would take a woman to perform such services
and to compensate dependants upon that basis at so much an hour
and so relegate the wife or mother, so it seems to me, to the
position of a housekeeper.
(Emphasis laid by this Court)
While I think that the law inhibits me from, much as I should like to,
going all the way along the path to which Lord Edmund-Davies pointed,
I am, with due respect to the other judges to whom I have been
referred, of the view that the word ‘services’ has been too narrowly
construed. It should, at least, include an acknowledgment that a wife
and mother does not work to set hours and, still less, to rule. She is
in constant attendance, save for those hours when she is, if that is
the fact, at work. During some of those hours she may well give the
children instruction on essential matters to do with their upbringing
and, possibly, with such things as their homework. This sort of
attention seems to be as much of a service, and probably more valuable
to them, than the other kinds of service conventionally so regarded.”
25. In Mehmet v. Perry the pecuniary value of a wife’s services were
assessed and granted under the following heads:
(a) Loss to the family of the wife’s housekeeping services.
(b) Loss suffered by the children of the personal attention of their
mother, apart from housekeeping services rendered by her.
(c) Loss of the wife’s personal care and attention, which the husband
had suffered, in addition to the loss of her housekeeping services.
26. In India the courts have 210recognized that the contribution made
by the wife to the house is invaluable and cannot be computed in terms
of money. The gratuitous services rendered by the wife with true love
and affection to the children and her husband and managing the
household affairs cannot be equated with the services rendered by
others. A wife/mother does not work by the clock. She is in the
constant attendance of the family throughout the day and night unless
she is employed and is required to attend the employer’s work for
particular hours. She takes care of all the requirements of the
husband and children including cooking of food, washing of clothes,
etc. She teaches small children and provides invaluable guidance to
them for their future life. A housekeeper or maidservant can do the
household work, such as cooking food, washing clothes and utensils,
keeping the house clean, etc., but she can never be a substitute for a
wife/mother who renders selfless service to her husband and children.
27. It is not possible to quantify any amount in lieu of the services
rendered by the wife/mother to the family i.e. the husband and
children. However, for the purpose of award of compensation to the
dependants, some pecuniary estimate has to be made of the services of
the housewife/mother. In that context, the term “services” is required
to be given a broad meaning and must be construed by taking into
account the loss of personal care and attention given by the deceased
to her children as a mother and to her husband as a wife. They are
entitled to adequate compensation in lieu of the loss of gratuitous
services rendered by the deceased. The amount payable to the
dependants cannot be diminished on the ground that some close relation
like a grandmother may volunteer to render some of the services to the
family which the deceased was giving earlier.
30. In A. Rajam v. M. Manikya Reddy, M. Jagannadha Rao, J. (as he then
was) advocated giving of a wider meaning to the word “services” in
cases relating to award of compensation to the dependants of a
deceased wife/mother. Some of the observations made in that judgment
are extracted below:
‘The loss to the husband and children consequent upon the death of the
housewife or mother has to be computed by estimating the loss of
‘services’ to the family, if there was reasonable prospect of such
services being rendered freely in the future, but for the death. It
must be remembered that any substitute to be so employed is not likely
to be as economical as the housewife. Apart from the value of
obtaining substituted services, the expense of giving accommodation or
food to the substitute must also be computed. From this total must be
deducted the expense the family would have otherwise been spending for
the deceased housewife.
While estimating the ‘services’ of the housewife, a narrow meaning
should not be given to the meaning of the word ‘services’ but it
should be construed broadly and one has to take into account the loss
of ‘personal care and attention’ by the deceased to her children, as a
mother and to her husband, as a wife. The award is not diminished
merely because some close relation like a grandmother is prepared to
render voluntary services.’
XXX XXX XXX
32. In National Insurance Co. Ltd. v. Mahadevan the learned Single
Judge referred to the Second Schedule of the Act and observed that
quantifying the pecuniary loss at the same rate or amount even after
13 years after the amendment, ignoring the escalation in the cost of
living and the inflation, may not be justified.
33. In Chandra Singh v. Gurmeet Singh, Krishna Gupta v. Madan Lal,
Captan Singh v. Oriental Insurance Co. Ltd. and Amar Singh Thukral v.
Sandeep Chhatwal, the Single and Division Benches of the Delhi High
Court declined to apply the judgment of this Court in Lata Wadhwa case
for the purpose of award of compensation under the Act. In Krishna
Gupta v. Madan Lal the Division Bench of the High Court observed as
under: (DLT p. 834, para 24)
“24. … The decision of the Apex Court in Lata Wadhwa in our considered
opinion, cannot be said to have any application in the instant case.
The Motor Vehicles Act, 1939 was the complete code by itself. It not
only provides for the right of a victim and/or his legal heirs to
obtain compensation in case of bodily injury or death arising out of
use of motor vehicle, but the Forum therefor has been provided, as
also the mode and manner in which the compensation to be awarded
therefor. In such a situation, it would be inappropriate to rely upon
a decision of the Apex Court, which had been rendered in an absolutely
different fact situation and in relation whereto there did not exist
any statutory compensation. Lata Wadhwa was decided in a matter where
a fire occurred during a celebration. The liability of Tata Iron &
Steel Co. Ltd. was not disputed. Compensation was awarded having
regard to the peculiar feature obtaining in that case which has got
nothing to do with the statutory compensation payable under the
provisions of the Motor Vehicles Act.”
(Emphasis laid by this Court)
141. Also, in a three judge Bench decision of this Court in the case
of Rajesh & Ors. Vs. Rajvir Singh and Ors.[36], this Court held as
under:
“20. The ratio of a decision of this Court, on a legal issue is
a precedent. But an observation made by this Court, mainly to
achieve uniformity and consistency on a socio-economic issue, as
contrasted from a legal principle, though a precedent, can be,
and in fact ought to be periodically revisited, as observed
in Santhosh Devi (supra). We may therefore, revisit the practice
of awarding compensation under conventional heads: loss of
consortium to the spouse, loss of love, care and guidance to
children and funeral expenses. It may be noted that the sum of
Rs. 2,500/- to Rs. 10,000/- in those heads was fixed several
decades ago and having regard to inflation factor, the same
needs to be increased. In Sarla Verma's case (supra), it was
held that compensation for loss of consortium should be in the
range of Rs. 5,000/- to Rs. 10,000/-, In legal parlance,
'consortium' is the right of the spouse to the company, care,
help, comfort, guidance, society, solace, affection and sexual
relations with his or her mate. That non-pecuniary head of
damages has not been properly understood by our Courts. The loss
of companionship, care and protection, etc., the spouse is
entitled to get, has to be compensated appropriately. The
concept of non-pecuniary damage for loss of consortium is one of
the major heads of award of compensation in other parts of the
world more particularly in the United States of America,
Australia, etc. English Courts have also recognized the right of
a spouse to get compensation even during the period of temporary
disablement. By loss of consortium, the courts have made an
attempt to compensate the loss of spouse's affection, comfort,
solace, companionship, society, assistance, protection, care and
sexual relations during the future years. Unlike the
compensation awarded in other countries and other jurisdictions,
since the legal heirs are otherwise adequately compensated for
the pecuniary loss, it would not be proper to award a major
amount under this head. Hence, we are of the view that it would
only be just and reasonable that the courts award at least
rupees one lakh for loss of consortium.”
(Emphasis laid by this Court)
142. Under the heading of loss due to pain and suffering and loss of
amenities of the wife of the claimant, Kemp and Kemp write as under:
“The award to a plaintiff of damages under the head “pain and
suffering” depends as Lord Scarman said in Lim Poh Choo v.
Camden and Islington Area health Authority, “upon the
claiamant’s personal awareness of pain, her capacity of
suffering. Accordingly, no award is appropriate if and in so far
as the claimant has not suffered and is not likely to suffer
pain, and has not endured and is not likely to endure suffering,
for example, because he was rendered immediately and permanently
unconscious in the accident. By contrast, an award of damages in
respect of loss of amenities is appropriate whenever there is in
fact such a loss regardless of the claimant’s awareness of the
loss.”
……….
Further, it is written that,
“Even though the claimant may die from his injuries shortly
after the accident, the evidence may justify an award under this
head. Shock should also be taken account of as an ingredient of
pain and suffering and the claimant’s particular circumstances
may well be highly relevant to the extent of her suffering.
……….
By considering the nature of amenities lost and the injury and
pain in the particular case, the court must assess the effect
upon the particular claimant. In deciding the appropriate award
of damages, an important consideration show long will he be
deprived of those amenities and how long the pain and suffering
has been and will be endured. If it is for the rest of his life
the court will need to take into account in assessing damages
the claimant’s age and his expectation in life. That applies as
much in the case of an unconscious plaintiff as in the case of
one sentient, at least as regards the loss of amenity.”
The extract from Malay Kumar Ganguly’s case read as under:
“3. Despite administration of the said injection twice daily,
Anuradha’s condition deteriorated rapidly from bad to worse over
the next few days. Accordingly, she was admitted at Advanced
Medicare Research Institute (AMRI) in the morning of 11-5-1998
under Dr. Mukherjee’s supervision. Anuradha was also examined by
Dr. Baidyanath Halder, Respondent 2 herein. Dr. Halder found
that she had been suffering from erythema plus blisters. Her
condition, however, continued to deteriorate further. Dr. Abani
Roy Chowdhury, Consultant, Respondent 3 was also consulted on 12-
5-1998.
4. On or about 17-5-1998 Anuradha was shifted to Breach Candy
Hospital, Mumbai as her condition further deteriorated severely.
She breathed her last on 28-5-1998……”
143. The above extracted portion from the above judgment would show
that the deceased had undergone the ordeal of pain for 18 long days
before she breathed her last. In this course of period, she has
suffered with immense pain and suffering and undergone mental agony
because of the negligence of the appellant-doctors and the Hospital
which has been proved by the claimant and needs no reiteration.
144. Further, in the case of Nizam Institute (supra), the claimant who
was also the surviving victim of a motor vehicle accident was awarded
Rs.10 lakhs for pain and suffering. Further, it was held in R.D.
Hattangadi’s case (supra) as follows:
“14. In Halsbury’s Laws of England, 4th Edn., Vol. 12 regarding
non-pecuniary loss at page 446 it has been said:
Non-pecuniary loss: the pattern.— Damages awarded for pain and
suffering and loss of amenity constitute a conventional sum
which is taken to be the sum which society deems fair, fairness
being interpreted by the courts in the light of previous
decisions. Thus there has been evolved a set of conventional
principles providing a provisional guide to the comparative
severity of different injuries, and indicating a bracket of
damages into which a particular injury will currently fall. The
particular circumstances of the plaintiff, including his age
and any unusual deprivation he may suffer, is reflected in the
actual amount of the award.”|
145. Therefore, the claim of Rs.4,50,00,000/- by the claimant is
excessive since it goes against the amount awarded by this Court under
this head in the earlier cases referred to supra. We acknowledge and
empathise with the fact that the deceased had gone through immense
pain, mental agony and suffering in course of her treatment which
ultimately could not save her life, we are not inclined to award more
than the conventional amount set by this Court on the basis of the
economic status of the deceased. Therefore, a lumpsum amount of Rs.10
lakhs is awarded to the claimant following the Nizam Institute’s case
(supra) and also applying the principles laid in Kemp and Kemp on the
“Quantum of Damages”, under the head of ‘pain and suffering of the
claimant’s wife during the course of treatment’.
146. However, regarding claim of Rs.50,00,000/- by the claimant under
the head of ‘Emotional distress, pain and suffering for the claimant’
himself, we are not inclined to award any compensation since this
claim bears no direct link with the negligence caused by the appellant-
doctors and the Hospital in treating the claimant’s wife.
In summary, the details of compensation under different heads
are presented hereunder:
|Loss of income of the deceased |Rs.5,72,00,550/- |
|For Medical treatment in Kolkata |Rs.7,00,000/- |
|and Mumbai | |
|Travel and Hotel expenses at |Rs.6,50,000/- |
|Mumbai | |
|Loss of consortium |Rs.1,00,000/- |
|Pain and suffering |Rs.10,00,000/- |
|Cost of litigation |Rs.11,50,000/- |
147. Therefore, a total amount of Rs.6,08,00,550/- is the
compensation awarded in this appeal to the claimant Dr. Kunal Saha by
partly modifying the award granted by the National Commission under
different heads with 6% interest per annum from the date of
application till the date of payment.
148. Before parting with the judgment we are inclined to mention that
the number of medical negligence cases against doctors, Hospitals and
Nursing Homes in the consumer forum are increasing day by day. In the
case of Paschim Banga Khet Mazdoor Samity Vs. State of West
Bengal[37], this Court has already pronounced that right to health of
a citizen is a fundamental right guaranteed under Article 21 of the
Constitution of India. It was held in that case that all the
government Hospitals, Nursing Homes and Poly-clinics are liable to
provide treatment to the best of their capacity to all the patients.
149. The doctors, Hospitals, the Nursing Homes and other connected
establishments are to be dealt with strictly if they are found to be
negligent with the patients who come to them pawning all their money
with the hope to live a better life with dignity. The patients
irrespective of their social, cultural and economic background are
entitled to be treated with dignity which not only forms their
fundamental right but also their human right. We, therefore, hope and
trust that this decision acts as a deterrent and a reminder to those
doctors, Hospitals, the Nursing Homes and other connected
establishments who do not take their responsibility seriously.
150. The central and the state governments may consider enacting laws
wherever there is absence of one for effective functioning of the
private Hospitals and Nursing Homes. Since the conduct of doctors is
already regulated by the Medical Council of India, we hope and trust
for impartial and strict scrutiny from the body. Finally, we hope and
believe that the institutions and individuals providing medical
services to the public at large educate and update themselves about
any new medical discipline and rare diseases so as to avoid tragedies
such as the instant case where a valuable life could have been saved
with a little more awareness and wisdom from the part of the doctors
and the Hospital.
151. Accordingly, the Civil Appeal No. 2867/2012 filed by Dr. Balram
Prasad, Civil Appeal No. 858/2012 filed by Dr. Sukumar Mukherjee and
Civil Appeal No. 731/2012 filed by Dr. Baidyanath Haldar are partly
allowed by modifying the judgment and order of the National Commission
in so far as the amount fastened upon them to be paid to the claimant
as mentioned below. Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar
are liable to pay compensation to the tune of Rs.10 lakhs each and Dr.
Balram Prasad is held liable to pay compensation of Rs.5 lakhs to the
claimant. Since, the appellant-doctors have paid compensation in
excess of what they have been made liable to by this judgment, they
are entitled for reimbursement from the appellant-AMRI Hospital and it
is directed to reimburse the same to the above doctors within eight
weeks.
152. The Civil Appeal No. 692/2012 filed by the appellant-AMRI
Hospital is dismissed and it is liable to pay compensation as awarded
in this judgment in favour of the claimant after deducting the amount
fastened upon the doctors in this judgment with interest @ 6% per
annum.
153. The Civil Appeal No. 2866/2012 filed by the claimant-Dr.Kunal
Saha is also partly allowed and the finding on contributory negligence
by the National Commission on the part of the claimant is set aside.
The direction of the National Commission to deduct 10% of the awarded
amount of compensation on account of contributory negligence is also
set aside by enhancing the compensation from Rs.1,34,66,000/- to
Rs.6,08,00,550/- with 6% interest per annum from the date of the
complaint to the date of the payment to the claimant.
154. The AMRI Hospital is directed to comply with this judgment by
sending demand draft of the compensation awarded in this appeal to the
extent of liability imposed on it after deducting the amount, if any,
already paid to the claimant, within eight weeks and submit the
compliance report.
…………………………………………………………J.
[CHANDRAMAULI KR. PRASAD]
…………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
October 24, 2013.
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[1] (2009) 9 SCC 221
[2] (2008) 4 SCC 162
[3] (2002) 6 SCC 281
[4] [5] (2009) 6 SCC 1
[6] (2009) 14 SCC 1
[7] (2001) 8 SCC 197
[8] (2001) 8 SCC 151
[9] (2011) 14 SCC 481
[10] (2011)12 SCC 695
[11] (2012) 5 SCC 370
[12] (2012) 6 SCC 430
[13] (2003) 2 SCC 274
[14] (2011) 10 SCC 634
[15] (2011) 10 SCC 655
[16] (1995) 6 SCC 651
[17] (2009) 13 SCC 710
[18] (1995) 1 SCC 551
[19] (2009) 13 SCC 654
[20] (2011) 10 SCC 756
[21] (2010) 10 SCC 254
[22] (2011) 1 SCC 343
[23] (2011) 10 SCC 683
[24] (2011) 13 SCC 236
[25] (2012) 8 SCC 604
[26] (2004) 8 SCC 56
[27] (2002) 7 SCC 668
[28] (1998) 4 SCC 39
[29] (2009) 7 SCC 372
[30] 511 U.S. 244, 1994
[31] (2009) 5 SCC 212
[32] 536 S.E. 2d 408 2000
[33] 781 N.E. 2d, 2002
[34] (1998) 4 SCC 39
[35] [1979] A.C. 556
[36] (2010) 9 SCC 218
[37] 2013 (6) SCALE 563
[38] (1996) 4 SCC 37
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