IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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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