This case involves a series of civil appeals related to the medical negligence claims made by Dr. Kunal Saha following the death of his wife, Anuradha Saha. Dr. Kunal Saha ...
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Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2867 OF 2012
Dr. Balram Prasad … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
WITH
CIVIL APPEAL No.692 of 2012
Advanced Medicare & Research
Institute Ltd. … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
WITH
CIVIL APPEAL No.2866 of 2012
Dr. Kunal Saha …Appellant
Vs.
Dr. Sukumar Mukherjee & Ors. … Respondents
Page 2 WITH
CIVIL APPEAL No.731 of 2012
Dr. Baidyanath Haldar … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
AND
CIVIL APPEAL No.858 of 2012
Dr. Sukumar Mukherjee … Appellant
Vs.
Dr. Kunal Saha & Ors. … Respondents
J U D G M E N T
V. Gopala Gowda, J.
The Civil Appeal Nos.2867, 731 and 858 of 2012
are filed by the appellant-doctors, Civil Appeal
2
Page 3 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.
3
Page 4 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:
4
Page 5 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
1
(2009) 9 SCC 221
5
Page 6 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
6
Page 7 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
7
Page 8 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.
8
Page 9 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
9
Page 10 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
2
(2008) 4 SCC 162
10
Page 11 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
3
(2002) 6 SCC 281
11
Page 12 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
12
Page 13 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
13
Page 14 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
14
Page 15 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.
15
Page 16 …
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
16
Page 17 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 15
th
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.
17
Page 18 (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
18
Page 19 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., (2012) 6 SCC
421
Rs.10,000
2. New India Assurance Company
Limited v. Yogesh Devi, (2012) 3
SCC 613
Rs.10,000
3. National Insurance Company
Limited v. Sinitha, (2012) 2 SCC
356
Rs.5,000
4. Sunil Sharma v. Bachitar
Singh, (2011) 11 SCC 425
Rs.25,000
5. Pushpa v. Shakuntala, (2011)
2 SCC 240
Rs.10,000
6. Arun Kumar Agrawal v.
National Insurance Company
Limited, (2010) 9 SCC 218
Rs.15,000
7. Shyamwati Sharma v. Karam
Singh, (2010) 12 SCC 378
Rs.5,000
8. Reshma Kumari v. Madan Mohan,
(2009) 13 SCC 422 in Sarla Dixit
v. Balwant Yadav
Rs.15,000
9. Raj Rani v. Oriental
Insurance Company Limited,
(2009) 13 SCC 654
Rs.7,000
10. Sarla Verma v. Delhi
Transport Corporation, (2009) 6
SCC 121
Rs.10,000
19
Page 20 11. Rani Gupta v. United India
Insurance Company Limited,
(2009) 13 SCC 498
Rs.25,000
12. National Insurance Company
Limited v. Meghji Naran
Soratiya, (2009) 12 SCC 796
Rs.10,000
13. Oriental Insurance Company
Limited v. Angad Kol, (2009) 11
SCC 356
Rs.10,000
14. Usha Rajkhowa v. Paramount
Industries, (2009) 14 SCC 71
Rs.5,000
15. Laxmi Devi v. Mohammad.
Tabbar, (2008) 12 SCC 165
Rs.5,000
16. Andhra Pradesh State Road
Transport Corporation v. M.
Ramadevi, (2008) 3 SCC 379
Rs.5,000
17. State of Punjab v. Jalour
Singh, (2008) 2 SCC 660
Rs.5,000
18. Abati Bezbaruah v. Dy.
Director General, Geological
Survey of India, (2003) 3 SCC
148
Rs.3,000
19. Oriental Insurance Co. Ltd.
v. Hansrajbhai V. Kodala, (2001)
5 SCC 175
Rs.5,000
20. Sarla Dixit v. Balwant
Yadav, (1996) 3 SCC 179
Rs.15,000
21. G.M., Kerala SRTC v. Susamma
Thomas, (1994) 2 SCC 176
Rs.15,000
22. National Insurance Co. Ltd.
v. Swaranlata Das, 1993 Supp (2)
SCC 743
Rs.7,500
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.
20
Page 21 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
4
(2009) 6 SCC 1
21
Page 22 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
5
(2009) 14 SCC 1
22
Page 23 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 s enior 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
23
Page 24 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
24
Page 25 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 s enior
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
25
Page 26 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 s enior 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
26
Page 27 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
27
Page 28 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
28
Page 29 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
29
Page 30 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
6
(2001) 8 SCC 197
7
(2001) 8 SCC 151
8
(2011) 14 SCC 481
30
Page 31 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
31
Page 32 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
32
Page 33 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
33
Page 34 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.”
9
(2011)12 SCC 695
10
(2012) 5 SCC 370
34
Page 35 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
11
(2012) 6 SCC 430
35
Page 36 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
12
(2003) 2 SCC 274
36
Page 37 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
13
(2011) 10 SCC 634
37
Page 38 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
14
(2011) 10 SCC 655
38
Page 39 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
39
Page 40 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
40
Page 41 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
41
Page 42 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
42
Page 43 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
43
Page 44 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
44
Page 45 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”
45
Page 46 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
46
Page 47 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
47
Page 48 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
48
Page 49 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
49
Page 50 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.
50
Page 51 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
51
Page 52 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
52
Page 53 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
53
Page 54 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
54
Page 55 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
55
Page 56 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.”
56
Page 57 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
57
Page 58 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 deceased) (claim
foregone)
Compensation: 25,00,000
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
58
Page 59 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.
59
Page 60 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
60
Page 61 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
61
Page 62 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”
62
Page 63 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
63
Page 64 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
64
Page 65 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
15
(1995) 6 SCC 651
65
Page 66 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
66
Page 67 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
67
Page 68 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.
16
(2009) 13 SCC 710
17
(1995) 1 SCC 551
18
(2009) 13 SCC 654
68
Page 69 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
19
(2011) 10 SCC 756
69
Page 70 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
20
(2010) 10 SCC 254
70
Page 71 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.
21
(2011) 1 SCC 343
22
(2011) 10 SCC 683
23
(2011) 13 SCC 236
24
(2012) 8 SCC 604
71
Page 72 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
72
Page 73 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
73
Page 74 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.
74
Page 75 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 1/3
rd
of the amount
for her personal expenses. 1/3
rd
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
75
Page 76 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
76
Page 77 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
77
Page 78 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
78
Page 79 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
79
Page 80 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
80
Page 81 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
25
(2004) 8 SCC 56
81
Page 82 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
82
Page 83 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.
26
(2002) 7 SCC 668
83
Page 84 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).
27
(1998) 4 SCC 39
84
Page 85 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
85
Page 86 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
86
Page 87 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.
87
Page 88 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
88
Page 89 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
89
Page 90 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
90
Page 91 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
28
(2009) 7 SCC 372
29
511 U.S. 244, 1994
30
(2009) 5 SCC 212
91
Page 92 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
31
536 S.E. 2d 408 2000
92
Page 93 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
32
781 N.E. 2d, 2002
93
Page 94 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
94
Page 95 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 31
st
March, 2010 in S.P. Aggarwal
95
Page 96 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
96
Page 97 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 70 years
Rs.9,25,00,000/-
2 Loss of US Social Security
income up to 82 years
Rs.1,44,00,000/-
3 Paid for treatment at
AMRI/Breach Candy Hospital
Rs.12,00,000/-
4 Paid for chartered flight to
transfer Anuradha
Rs. 9,00,000/-
5 Travel/hotel/other expenses
during Anuradha’s treatment in
Mumbai/ Kolkata in 1998
Rs. 7,00,000/-
6 Paid for court proceedings
including video conferencing
from U.S.A.
Rs.11,57,000/-
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
97
Page 98 1 Loss of companionship and life
amenities
Rs.13,50,00,000/-
2 Emotional distress, pain and
suffering for husband
Rs.50,00,000/-
3 Pain/suffering endured by the
victim during therapy
Rs.4,50,00,000/-
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?
98
Page 99 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?
99
Page 100 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
100
Page 101 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
101
Page 102 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:
102
Page 103 “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.
103
Page 104 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
104
Page 105 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
105
Page 106 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,
106
Page 107 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
107
Page 108 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
108
Page 109 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
109
Page 110 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.
110
Page 111 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.
111
Page 112 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
112
Page 113 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
113
Page 114 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
114
Page 115 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:
115
Page 116 “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
116
Page 117 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
117
Page 118 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’
118
Page 119 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
119
Page 120 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.”
120
Page 121 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
121
Page 122 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:
122
Page 123 “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.
123
Page 124 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
124
Page 125 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
125
Page 126 ‘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
126
Page 127 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
127
Page 128 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
128
Page 129 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
129
Page 130 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.
33
(1998) 4 SCC 39
130
Page 131 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
131
Page 132 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:
132
Page 133 “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
133
Page 134 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
134
Page 135 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
135
Page 136 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
136
Page 137 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 18
th
July, 2011. In lieu of such
137
Page 138 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
138
Page 139 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
139
Page 140 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.
140
Page 141 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
141
Page 142 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
142
Page 143 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
34
[1979] A.C. 556
143
Page 144 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.”
144
Page 145 102. 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,
145
Page 146 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 :
146
Page 147 104. 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
147
Page 148 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
148
Page 149 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.
149
Page 150 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 13
th
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:
150
Page 151 “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.)”
151
Page 152 108. 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
152
Page 153 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
153
Page 154 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
154
Page 155 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
155
Page 156 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
156
Page 157 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
157
Page 158 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
158
Page 159 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
159
Page 160 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
160
Page 161 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.
…”
161
Page 162 113. 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
162
Page 163 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
163
Page 164 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.
164
Page 165 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
165
Page 166 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
166
Page 167 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”
167
Page 168 118. 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.
168
Page 169 120. 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.
169
Page 170 (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
170
Page 171 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
171
Page 172 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
172
Page 173 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
173
Page 174 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
174
Page 175 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
175
Page 176 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
176
Page 177 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
177
Page 178 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
178
Page 179 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
179
Page 180 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 :
180
Page 181 131. 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
181
Page 182 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
182
Page 183 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
183
Page 184 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
184
Page 185 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 $40,000 per annum on a regular
job. We further rely upon the paragraphs in the
cases of Sarla Verma and Santosh Devi referred to
supra while answering the point no. 1, to hold that
30% should be added towards the future loss of
income of the deceased. Also, based on the law laid
down by this Court in catena of cases referred to
185
Page 186 supra, 1/3
rd
of the total income is required to be
deducted under the head of personal expenditure of
the deceased to arrive at the multiplicand.
133. The multiplier method to be applied has been
convincingly argued by the learned counsel for the
appellant-doctors and the Hospital against by the
claimant which we concede with based on the
reasoning mentioned while answering the point no.
4. Therefore, estimating the life expectancy of a
healthy person in the present age as 70 years, we
are inclined to award compensation accordingly by
multiplying the total loss of income by 30.
134. Further, the claimant has rightly pointed that
the value of Indian currency has gone down since
the time when these legal proceedings have begun in
this country. This argument of the claimant has
been accepted by us while answering the point nos.
2 and 3. Therefore, it will be prudent for us to
186
Page 187 hold the current value of Indian Rupee at a stable
rate of Rs.55/- per 1$.
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:-
187
Page 188
(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:
188
Page 189 137. 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
189
Page 190 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,
190
Page 191 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
35
(2010) 9 SCC 218
191
Page 192 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
192
Page 193 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)
193
Page 194 “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.”
194
Page 195 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 195 recognized
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.
195
Page 196 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
196
Page 197 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
197
Page 198 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
36
2013 (6) SCALE 563
198
Page 199 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
199
Page 200 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,
200
Page 201 “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
201
Page 202 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
202
Page 203 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
203
Page 204 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.
204
Page 205
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 and Mumbai
Rs.7,00,000/-
Travel and Hotel
expenses at Mumbai
Rs.6,50,000/-
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
205
Page 206 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,
37
(1996) 4 SCC 37
206
Page 207 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.
207
Page 208 151. 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.
208
Page 209 152. 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
209
Page 210 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.
210
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