2024 INSC 330 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO………………..OF 2024

(Arising out of Special Leave Petition (C) No.242 of 2016)

JYOTI DEVI … APPELLANT(S)

VERSUS

SUKET HOSPITAL & ORS. … RESPONDENT(S)

J U D G M E N T

SANJAY KAROL, J.

Leave granted.

2.In ordinary circumstances, a procedure concerning appendicitis is

considered to be routine. It did not turn out to be so for Jyoti Devi

1

. She was

admitted to Suket Hospital, Sundernagar, Mandi, Himachal Pradesh on 28

th

June

2005 and had her appendicitis removed by Dr. Anil Chauhan, Senior Surgeon,

Suket Hospital. Post surgery, she was discharged on 30

th

June 2005. However,

her ordeal did not end there. She suffered continuous pains near the surgical site,

as such she was admitted again on 26

th

July 2005 but was discharged the next day

with the assurance that no further pain would be suffered by her. She was further

1 Hereafter, ‘claimant-appellant’

1| CA ______ OF 2024 @ SLP(C) 242 OF 2016

treated by one Dr. L.D. Vaidya of Mandav Hospital, Mandi, on the reference of

Dr. Anil Chauhan respondent no.2 herein. Yet again, there was no end to her

suffering. This process continued for a period of four years.

3.The claimant - appellant eventually landed up for treatment at the Post

Graduate Institute of Medical Science, Chandigarh. Upon investigation, it was

found that a 2.5 cm foreign body (needle) “is present below the anterior

abdominal wall in the preveside region just medial to previous abdominal scar

(Appendectomy)” for which a further surgery had to be performed for its removal.

4. Alleging negligence on the part of the respondent - Suket Hospital, a claim

was brought for the “huge pain and spent money on treatment” totalling to

Rs.19,80,000/-.

5.The District Consumer Disputes Redressal Forum, Mandi, H.P.

2

, while

adjudicating Complaint Case No.262 of 2011 vide award dated 18

th

December,

2013 under Section 12 of the Consumer Protection Act, 1986, concluded as

under:-

“15. In the case at hand, the complainant has suffered physical

pain for more than five years due to negligence of opposite parties no.

1 and 2. …we feel that compensation for Rs.5,00,000/- in lump sum is

just and proper to meet out the injury of the complainant. …Opposite

parties no. 3 and 4 have taken plea that they are only liable for bodily

injury as per the contract for death, injury, illness or disease of or any

person. In the present case the complainant was operated by opposite

party no.2 for appendicitis but after operation, the complainant

developed pain and pus started oozing out from stitches and she was

operated at PGI where needle was extracted by the doctor from her

abdomen. Therefore, the case of the complainant is covered under

injury and illness and opposite parties no.3 and 4 are liable to pay

compensation awarded against opposite parties no.1 and 2 being the

insurers”

2 For short, ‘District Forum’

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6.On appeal preferred by the present respondents (First Appeal No.70 of

2014 dated 23

rd

September 2014) the H.P. State Consumer Disputes Redressal

Commission, Shimla

3

observed that:-

“…needle was not left at the site of surgery, at the Hospital of the

appellants, when the complainant was operated for removal of

appendicitis, yet from an overall reading of the pleadings and evidence

on record, it can be said that surgery conducted at the clinic of the

appellants, was the cause of pain, which the complainant had been

having at-least upto December, 2008, when the pus was drained out.”

7.The respondents herein were held liable to compensate the appellant for the

physical pain, mental agony, and expenses incurred by her, to the tune of

Rs.1,00,000/-, thereby partly allowing the respondent’s appeal.

8.The National Consumer Disputes Redressal Commission

4

, in the Revision

Petition 57 of 2015 arising out of the order of the State Commission observed that

the post-operative care provided by the respondents was casual and fell short of

the standard of medical care. They had failed to investigate the non-healing

surgical wound thereby constituting a deficiency in service. The NCDRC refused

to accept the argument that since the appellant had received care at other hospitals

as well it would be difficult to determine who was responsible for the needle in

the abdomen.

9.The egg-skull rule was applied to hold an individual liable for all

consequences of their act. The compensation awarded by the State Commission

was enhanced to Rs.2,00,000/-.

3 For short, ‘State Commission’

4 For brevity, ‘NCDRC’

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10.Hence, the claimant-appellant prefers the present appeal, seeking

enhancement of compensation. We may state, for ample clarity, that, the present

dispute arose within the contours of the Consumer Protection Act, 1986, the

predecessor legislation to the current Consumer Protection Act, 2019.

11.The factum of negligence on the part of the respondent Hospital as well as

respondent No.2 has not been doubted, across fora. Although the State

Commission had differed with the District Forum on the presence of the needle,

the NCDRC, in para 5 of the impugned judgment and order, found the medical

record to testify to the presence of a needle in the abdomen and also found that

the respondent Hospital was found wanting in terms of post-operative care.

12. The primary ground alleged, in submitting that the finding of medical

negligence is unjustified, was that there has been a recorded gap of time where

the appellant did not suffer from any pain (1½ years). However, we notice the

NCDRC to have observed her period of suffering to be more than 5 years,

implying thereby that the gap in suffering aspect has not been accepted. No

material has been placed before us to take a different view therefrom. The

respondents are not the ones who have approached this Court. As such, we are

only required to examine the sufficiency of compensation as awarded by way

thereof. The same, though, cannot be appositely done without having appreciated

pronouncements of this Court on the scope and purpose of the Consumer

Protection Act; medical negligence; and compensation in such cases as also, the

rule of tort law known as the ‘eggshell skull’ rule.

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12.1 Scope of the Consumer Protection Act

12.1.1 An examination of the decisions of this Court in C. Venkatachalam v.

Ajitkumar C. Shah and others

5

and J.J. Merchant (Dr) v. Shrinath Chaturvedi

6

and Common Cause v. Union of India

7

among a host of other pronouncements,

reveals the following in this regard:-

i.It is a benevolent, socially orientated legislation, the declared aim of which

is aimed at protecting the interests of consumers;

ii.Its goal is to provide inexpensive and prompt remedies for the grievances

of consumers against defective goods and deficient services;

iii. For the above-stated objective, keeping in view the accessibility of these

grievance redressal bodies to all, to all persons, quasi-judicial bodies have

been set up at the district, state, and national levels;

iv.These bodies have been formed to save the aggrieved consumer from the

hassle of filing a civil suit, i.e., provide for a prompt remedy in the nature

of award or where appropriate, compensation, after having duly complied

with the principles of natural justice;

12.2 The Law on Medical Negligence

12.2.1 Three factors required to prove medical negligence, as recently observed

by this Court in M.A Biviji v. Sunita & Ors.

8

, following the landmark

pronouncement in Jacob Matthew v. State of Punjab

9

, are :-

5 (2011) 12 SCC 707

6 (2002) 6 SCC 635

7 (1997) 10 SCC 729

8 (2024) 2 SCC 242

9 (2005) 6 SCC 1

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“36. As can be culled out from above, the three essential ingredients in

determining an act of medical negligence are : (1.) a duty of care

extended to the complainant, (2.) breach of that duty of care, and (3.)

resulting damage, injury or harm caused to the complainant

attributable to the said breach of duty. However, a medical practitioner

will be held liable for negligence only in circumstances when their

conduct falls below the standards of a reasonably competent

practitioner.”

12.2.2 To hold a doctor liable, this Court in Dr. Mrs. Chanda Rani Akhouri v.

Dr. M.A. Methusethupati

10

observed: -

“…. a medical practitioner is not to be held liable simply because

things went wrong from mischance or misadventure or through an

error of judgment in choosing one reasonable course of treatment in

preference to another. In the practice of medicine, there could be

varying approaches of treatment. There could be a genuine difference

of opinion. However, while adopting a course of treatment, the duty

cast upon the medical practitioner is that he must ensure that the

medical protocol being followed by him is to the best of his skill and

with competence at his command. At the given time, medical

practitioner would be liable only where his conduct fell below that of

the standards of a reasonably competent practitioner in his field.”

(Emphasis supplied)

12.2.3 Observations in Harish Kumar Khurana v. Joginder Singh

11

are also

instructive. Bopanna J., writing for the Court held:

“…It is necessary that the hospital and the doctors are required to

exercise sufficient care in treating the patient in all circumstances.

However, in unfortunate cases, though death may occur and if it is

alleged to be due to medical negligence and a claim in that regard is

made, it is necessary that sufficient material or medical evidence

should be available before the adjudicating authority to arrive at a

conclusion.”

(emphasis supplied)

These observations, although made in the context of a patient having passed away

in the course of, or as a result of treatment, nonetheless are essential even in cases

where the claimant has suffered an injury.

10 2022 SCC OnLine SC 481

11 (2021) 10 SCC 291

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12.3 Determination of the Quantum of Compensation

12.3.1 This Court has held that in determining compensation in cases of

medical negligence, a balance has to be struck between the demands of the person

claiming compensation, as also the interests of those being made liable to pay. It

was observed in Nizam's Institute of Medical Sciences v. Prasanth S.

Dhananka

12

-

“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.

89. It must also be borne in mind that life has its pitfalls and is not

smooth sailing all along the way (as a claimant would have us believe)

as the hiccups that invariably come about cannot be visualised. Life it

is said is akin to a ride on a roller-coaster where a meteoric rise is

often followed by an equally spectacular fall, and the distance between

the two (as in this very case) is a minute or a yard.”

In the very same judgment, it was further observed, particularly in cases of the

person being injured:-

“90. At the same time we often find that a person injured in an

accident leaves his family in greater distress vis-à-vis a family in a

case of death. In the latter case, the initial shock gives way to a feeling

of resignation and acceptance, and in time, compels the family to

move on. The case of an injured and disabled person is, however,

more pitiable and the feeling of hurt, helplessness, despair and often

destitution enures every day. The support that is needed by a severely

handicapped person comes at an enormous price, physical, financial

and emotional, not only on the victim but even more so on his family

and attendants and the stress saps their energy and destroys their

equanimity.”

12 (2009) 6 SCC 1

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12.3.2 It would also be instructive to refer to the concept of ‘just

compensation’. The idea of compensation is based on restitutio in integrum,

which means, make good the loss suffered, so far as money is able to do so, or, in

other words, take the receiver of such compensation, back to a position, as if the

loss/injury suffered by them hadn’t occurred. In Sarla Verma v. DTC

13

this Court

observed that compensation doesn’t acquire the quality of being just simply

because the Tribunal awarding it believes it to be so. For it to be so, it must be,

(i) adequate; (ii) fair; and (iii) equitable, in the facts and circumstances of each

case. This understanding was reiterated in Balram Prasad v. Kunal Saha and

Ors

14

, V. Krishnakumar v. State of Tamil Nadu & Ors,

15

and Nand Kishore

Prasad v. Mohib Hamidi and Ors

16

.

12.3.3 What qualifies as just compensation, as noticed above, has to be

considered in the facts of each case. In Balram Prasad (supra) it has been

observed that this court has been ‘skeptical about using a straightjacket

multiplier method for determining the quantum of compensation in medical

negligence claims’.

12.4 Eggshell Skull Rule

12.4.1 This rule (applied by the NCDRC) holds the injurer liable for damages

that exceed the amount that would normally be expected to occur. It is a common

law doctrine that makes a defendant liable for the plaintiff's unforeseeable and

13 (2009) 6 SCC 1

14 (2014) 1 SCC 384

15 (2015) 9 SCC 388

16 (2019) 6 SCC 512

8| CA ______ OF 2024 @ SLP(C) 242 OF 2016

uncommon reactions to the defendant's negligent or intentional tort. In simple

terms, a person who has an eggshell skull is one who would be more severely

impacted by an act, which an otherwise “normal person” would be able to

withstand. Hence the term eggshell to denote this as an eggshell is by its very

nature, brittle. It is otherwise termed as “taking the victim as one finds them” and,

therefore, a doer of an act would be liable for the otherwise more severe impact

that such an act may have on the victim.

12.4.2 This rule is well recognized and has often formed the basis of which

compensation has been awarded in countries such as the United States of

America. So much so, that a famous treatise records as follows “Extensive

research has failed to identify a single United States case disavowing the rule”

17

Its origins, if not by that name, have been traced back to 1891 in a decision of the

Washington State Supreme Court- Vasburg v. Putney

18

. In this case, arising out of

a common childhood altercation, Putney, a twelve-year-old child had kicked the

fourteen-year-old Vasburg, which aggravated a previous injury (of which Putney

was not aware), leading to his permanent incapacitation. Putney was held liable.

The Court opined “the wrongdoer is liable for all the injuries resulting directly

from the wrongful act, whether they could or could not have been foreseen by

him”.

17 Mark A. Geistfeld, Proximate Cause Untangled, 80 Md L. Rev. 420 (2021)

18 50 N.W 403 (Wis 1891)

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12.4.3 The jurisprudence of the application of this rule, as has developed,

(needless to add, in countries other than India) has fit into four categories

19

- first,

when a latent condition of the plaintiff has been unearthed; second, when the

negligence on the part of the wrongdoer re-activates a plaintiff’s pre-existing

condition that had subsided due to treatment; third, wrongdoer’s actions

aggravate known, pre-existing conditions, that have not yet received medical

attention; and fourth, when the wrongdoer’s actions accelerate an inevitable

disability or loss of life due to a condition possessed by the plaintiff, even when

the eventuality would have occurred with time, in the absence of the wrongdoer’s

actions. As these categories and, the name of the rule itself suggest, the persons to

whose

20

cases this rule can be applied, are persons who have pre-existing

conditions.

21

Therefore, for this rule to be appropriately invoked and applied, the

person in whose case an adjudicatory authority applies must have a pre-existing

condition falling into either of the four categories described above.

12.4.4 It would be opportune to refer to a few judgments across jurisdictions

to better discern the application of this rule.

 The King’s Bench in Dulieu v. While & Sons

22

while speaking in reference

to American cases cited at that Bar where the New York Court had refused to pay

compensation for ‘fright’ to a woman who while waiting for a tram, was nearly

19 Steve P. Calandrillo & Dustin E. Buelher, Eggshell Economics: A Revolutionary Approach to the Eggshell

Plaintiff Rule, 74 Ohio St. L.J 375 (2013)

20 Restatement (Third) of Torts: Liability For Physical and Emotional Harm, American Law Institute, 2010.

21 Geistfeld, 2021 (supra)

22 (1901) 2 KB 669

10| CA ______ OF 2024 @ SLP(C) 242 OF 2016

run-over by a horse-drawn cart, and as result of the same fainted, suffer a

miscarriage and subsequent illness; observed:

“It may be admitted that the plaintiff in this American case would not

have suffered exactly as she did, and probably not to the same extent

as she did, if she had not been pregnant at the time; and no doubt the

defendants’ horses could not anticipate that she was in this condition.

But what does that fact matter? If a man is negligently run over or

otherwise negligently injured in his body, it is no answer to the

sufferer’s claim for damages that he would have suffered less injury ,

or no injury at all, if he had not had an unusually thin skull or an

unusually weak heart.

 Griffiths LJ, in White and Others v. Chief Constable of South Yorkshire

and Others observed in regards to this rule, as follows-

“…The law expects reasonable fortitude and robustness of its citizens

and will not impose liability for the exceptional frailty of certain

individuals. This is not to be confused with the "eggshell skull"

situation, where as a result of a breach of duty the damage inflicted

proves to be more serious than expected. It is a threshold test of

breach of duty; before a defendant will be held in breach of duty to a

bystander he must have exposed them to a situation in which it is

reasonably foreseeable that a person of reasonable robustness and

fortitude would be likely to suffer psychiatric injury…”

 The Supreme Court of Canada, in an appeal arising out of the Court of

Appeal for British Colombia, Athey v. Leonati

23

observed that this case in its own

words, is one of “straightforward application of the thin skull rule.” The

application of the rule as made herein, underscores the existence of pre-existing

conditions. The relevant paragraphs are as follows:-

43 The findings of the trial judge indicate that it was necessary to

have both the pre-existing condition and the injuries from the

accidents to cause the disc herniation in this case. She made a positive

finding that the accidents contributed to the injury, but that the injuries

suffered in the two accidents were “not the sole cause” of the

23 [1996] 3 S.C.R. 458

11| CA ______ OF 2024 @ SLP(C) 242 OF 2016

herniation. She expressly found that “the herniation was not unrelated

to the accidents” and that the accidents “contributed to some degree”

to the subsequent herniation. She concluded that the injuries in the

accidents “played some causative role, albeit a minor one”. These

findings indicate that it was the combination of the pre-existing

condition and the injuries sustained in the accidents which caused the

herniation. Although the accidents played a lesser role than the pre-

existing problems, the accidents were nevertheless a necessary

ingredient in bringing about the herniation.

44 The trial judge’s conclusion on the evidence was that “[i]n my

view, the plaintiff has proven, on a balance of probabilities, that the

injuries suffered in the two earlier accidents contributed to some

degree to the subsequent disc herniation”. She assessed this

contribution at 25 percent. This falls outside the de minimis range and

is therefore a material contribution: Bonnington Castings, Ltd. v.

Wardlaw, supra. This finding of material contribution was sufficient

to render the defendant fully liable for the damages flowing from the

disc herniation.

45 The finding of material contribution was not unreasonable.

Although the plaintiff had experienced back problems before the

accidents, there was no evidence of herniation or insult to the disc and

no history of complaints of sciatica. When a plaintiff

has two accidents which both cause serious back injuries, and shortly

thereafter suffers a disc herniation during a mild exercise which he

frequently performed prior to the accidents, it seems reasonable to

infer a causal connection.

46 The trial judge found that the plaintiff’s condition was

improving when the herniation occurred, but this also means that the

plaintiff was still to some extent suffering from the back injuries from

the accidents. The inference of causal link was supported by medical

evidence and was reasonable.

47 This appeal involves a straightforward application of the thin

skull rule. The pre-existing disposition may have aggravated the

injuries, but the defendant must take the plaintiff as he finds him. If

the defendant’s negligence exacerbated the existing condition and

caused it to manifest in a disc herniation, then the defendant is a cause

of the disc herniation and is fully liable.

 Let us now turn to, illustratively, the application of this rule in the USA.

Richard Posner J., speaking for the 7th Circuit Court of Appeals in James E.

Niehus and Denise Niehus v. Vince Liberio and Frank Vittorio

24

, noted as

hereinbelow:

24 973 F.2d 526 (7th Cir. 1992)

12| CA ______ OF 2024 @ SLP(C) 242 OF 2016

“Niehus was sufficiently drunk when his car was struck that he

mightn't have felt the pain of a broken cheekbone. But at least

according to the defendants' lawyer he had (though this seems

improbable) sobered up a lot by the time the altercation in the station

house began several hours later, yet still he said nothing about a pain

in his cheek until after the fight. The doctors testified as we said that

the break was consistent with a kick though it could of course have

been caused by Niehus's striking his head against the door of the car in

the accident. If the jury believed, as it had every right to do, that

Niehus was kicked in the left side of his face by the defendants, the

fact that the cheekbone might have been broken already would not

help the defendants. If you kick a person's freshly broken cheekbone

you are likely to aggravate the injury substantially, and the "eggshell

skull" or "thin skull" rule, would make the officers liable for the full

consequences of their kicks even if, had it not been for a preexisting

injury, the consequences would have been much less injurious. Oddly,

the leading "eggshell skull" case also involved a kick.”

 We may also refer to another instance, from the same Court. In Lancaster

v. Norfolk and Western Ry. Co.

25

, this rule was applied thus:-

“All that really matters, moreover, is that Tynan's misconduct be

attributable to the railroad, as is easily done under a thoroughly

conventional interpretation of respondent superior. It was he (the jury

could have found) who pushed Lancaster over the edge. That

Lancaster may have been made especially susceptible to such

misconduct by earlier acts for which the railroad might or might not

be liable would be no defense. Under the "thin skull," or more

colorfully the "eggshell skull," rule, the railroad would be fully liable

for the consequences of Tynan's assault. See, e.g., Vosburg v. Putney,

80 Wis. 523, 50 N.W. 403 (1891); Stoleson v. United States, 708 F.2d

1217, 1221 (7th Cir. 1983).”)

XXXX

The fact that the railroad had weakened Lancaster by earlier

misconduct for which it could not be held liable would be irrelevant to

its liability for Tynan's assault and to the amount of damages it would

have to pay. The tortfeasor takes his victim as he finds him

(emphatically so if the victim's weakened condition is due to earlier,

albeit time-barred, torts of the same tortfeasor); that is the eggshell-

skull rule. The single act of Tynan made the railroad fully liable for all

the damages that Lancaster sought and the jury awarded.”

13.Let us now turn our attention back to the facts in presenti. Keeping in view

the afore-noted position of law in regard to the benevolent purpose of the

25 773 F.2d 807, 820 (7th Cir. 1985)

13| CA ______ OF 2024 @ SLP(C) 242 OF 2016

Consumer Protection Act, the aspects required to be established to allege medical

negligence, the determination of compensation in a case where a person is

injured, we find the manner in which compensation stood reduced by the State

Commission as also the NCDRC, vis-à-vis the District Forum to be based on

questionable reasoning.

14.The State Commission has recognized that the appellant herein had not

been treated “with the care expected at a medical clinic”; she had been suffering

from persistent pain right from 2005 until December, 2008; and that post-surgical

care was deficient which undoubtedly constitutes a deficiency in service and yet

found it appropriate to reduce the compensation to a mere Rs.1 lakh. This clearly

is not in line with the balance of interests required to be borne in mind while

determining compensation.

15.The NCDRC observed that the claimant-appellant’s treatment at the

respondent-Hospital was ‘casual’; that the excuse of having sought treatment at

other hospitals was not available to the respondents and that she had suffered pain

for more than 5 years apart from the case having been dragged on for more than a

decade, and yet lumpsum compensation was only Rs.2 lakhs.

16.How could such compensation be justified, after observations having been

made regarding the service rendered by the Hospital, being deficient, and the

continuous pain and suffering on the part of the claimant-appellant, is something

we fail to comprehend. Compensation by its very nature, has to be just. For

14| CA ______ OF 2024 @ SLP(C) 242 OF 2016

suffering, no part of which was the claimant-appellant’s own fault, she has been

awarded a sum which can, at best, be described as ‘paltry’.

17. In regard to the application of the Eggshell-Skull Rule, we may observe

that the impugned judgment is silent as to how this rule applies to the present

case. Nowhere is it mentioned, as to what criteria had been examined, and then,

upon analysis, found to be met by the claimant-appellant for it to be termed that

she had an eggshell skull, or for that matter, what sort of pre-existing condition

was she afflicted by, making her more susceptible to such a reaction brought on

because of surgery for appendicitis. All that has been stated is,

“9. Therefore, OP cannot take a plea that; patient took treatment from

few other hospitals which might have caused the retention of needle in

the abdominal wall. In this context we apply the “Egg Skull Rule” in

this case, wherein liability exists for damages stemming from

aggravation of prior injuries or conditions. It holds an individual liable

for all consequences resulting from their activities leading to an injury,

even if the victim suffers unusual damage due to pre-existing

vulnerability or medical condition”

If we take the rule as exposited by the NCDRC, even then it stands to reason that

the record ought to have been speaking of a pre-existing vulnerability or medical

condition, because of which the victim may have suffered ‘unusual damage’.

However, none of the orders - be it District, State Commission or the NCDRC

refer to any such condition.

18.Considering the discussion as aforesaid, we deem it fit to set aside the

Awards of the NCDRC as also the State Commission and restore the Award as

passed by the District Forum, meaning thereby that a sum of Rs.5 lakhs ought to

be paid expeditiously by the respondents to the appellant for being medically

15| CA ______ OF 2024 @ SLP(C) 242 OF 2016

negligent and providing services deficient in nature. The sum of Rs.5 lakhs

shall be accompanied by interest simple in nature @ 9% from the date of the

award passed by the District Forum. The same be paid within a period of four

weeks from the date of this judgment. Additionally, a cost of Rs.50,000/- be paid

in terms of the cost of litigation. The appeal is accordingly allowed.

…………….…….…..J.

(SANJAY KAROL)

………………..……..J.

(ARAVIND KUMAR)

New Delhi;

April 23, 2024.

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