Professional Documents
Culture Documents
Appellant
Vs.
Respondents
WITH
Appellant
Vs.
Dr. Kunal Saha & Ors.
Respondents
WITH
Appellant
Vs.
Respondents
Page1
WITH
CIVIL APPEAL No.731 of 2012
Dr. Baidyanath Haldar
Appellant
Respondents
Vs.
Dr. Kunal Saha & Ors.
AND
CIVIL APPEAL No.858 of 2012
Dr. Sukumar Mukherjee
Appellant
Vs.
Respondents
J U D G M E N T
V. Gopala Gowda, J.
Page2
No.
692
of
2012
is
filed
by
the
appellant-AMRI
the
claimant-appellant
(hereinafter
questioning
referred
the
to
Dr.
as
correctness
Kunal
the
of
Saha
claimant),
the
impugned
Consumer
(hereinafter
Disputes
referred
to
Redressal
as
Commission
the
National
appellant-doctors
are
aggrieved
by
the
so
far
as
the
appellant-AMRI
Hospital
is
Page3
down
by
this
Court
in
catena
of
cases
correctness
contentions
urged
of
their
in
their
respective
respective
legal
appeals
Page4
compensation
for
Rs.77,07,45,000/-
and
Rs.20,00,00,000/-.
Kumar
Ganguly
Vs.
After
Dr.
the
case
of
Malay
Mukherjee1
Sukumar
was
claimant
on
Therefore,
this
Commission
to
account
of
which
Court
directed
determine
just
she
the
and
died.
National
reasonable
the
aggrieved
appellant-Hospital
by
the
amount
and
the
doctors
of
compensation
Page5
inadequate
amount
of
compensation,
the
the
proportion
of
liability
ascertained
on
and
the
the
doctors
Court;
we
raised
intend
similar
to
produce
issues
their
is
no
pleading
in
the
petition
of
the
income,
except
in
paragraph
2A
of
the
The
only
certificate
produced
by
the
Page6
Page7
Therefore,
the
learned
appellant-doctors
and
the
counsel
Hospital
for
have
the
urged
perusal
of
the
said
document,
it
could
be
by
the
Therefore, it is
appellant-doctors
and
the
his
in
onus
this
by
regard
adducing
any
positive
before
the
National
Commission.
Page8
the
assertion
of
the
claimant
in
the
per
annum
is
not
substantiated
by
Tax
Return
has
been
produced
by
the
is
further
submitted
that
even
if
it
is
Page9
10
National
living
Commission
expenses
of
to
ascertain
the
the
deceased
personal
which
was
determine
claimant.
the
compensation
payable
to
the
Page10
11
no
evidence,
25%
thereof
is
required
to
be
more
from
as
United
is
apparent
India
Patricia
Insurance
Jean
Mahajan
the
Co.
&
case
Ltd.
Ors3.
reported
in
&
Others
Vs.
In
fact,
the
claimant
conferencing
was
last
conducted
under
examined
the
by
video
supervision
of
Court)
as
local
Commissioner.
The
AMRI
Page11
12
Hospital-appellants
witness
Mr.
Satyabrata
9.
the
Commission
after
remand
order
was
(supra).
enhancement
under
the
of
The
claimant
compensation
heads
of
at
pecuniary
now
claimed
Rs.78,14,00,000/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
wish,
through
video
conferencing
at
their
Page12
13
want
to
this
argue
Court,
his
as
petition
he
being
as
was
the
done
permanent
resident of U.S.A.
10.
stating
that
he
would
file
another
claimant
filed
M.A.
No.200
of
2010
seeking
reports.
The
National
Commission
dismissed
leave
petition
No.15070/2010
was
filed
the
claimant
filed
M.A.
No.594
of
2010
foreign
experts
to
substantiate
his
claim
Page13
14
and
the
Hospital.
The
National
permission
namely,
Prof.
to
John
Broughton
through
undertook
to
examine
F.
Burke
video
bear
two
Jr.
foreign
and
Prof.
conferencing
the
expenses
experts,
and
for
John
he
such
other
two
foreign
experts,
namely,
D.
Joe
was
Expert
examined
on
26.4.2011
as
an
Economics
through
the
age
of
70,
her
net
income
In addition, the
Page14
15
amount
of
$1,258,421.00.
The
said
The learned
hereunder:-
believe
that
have
that
Page15
16
None.
The
claimant
on
the
other
hand,
had
placed
that
Prof.
John
F.
Burke,
who
was
US
dollars
without
any
supporting
Page16
17
material.
know
whether
the
deceased
had
any
individual
He has
Home
deceased
at
January,
1998
Bureau
$1060.72
cannot
stating
for
be
the
the
income
period
relied
of
the
ending
15th
upon
for
the
appointment
has
not
been
Page17
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
for
the
appellant-doctors
submitted
that
the
Page18
19
National
Commission
has
erred
in
awarding
This
to
Rs.25,000/-
on
the
aforesaid
account:CASE LAW
1. Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC
421
2. New India Assurance Company
Limited v. Yogesh Devi, (2012) 3
SCC 613
3. National Insurance Company
Limited v. Sinitha, (2012) 2 SCC
356
4. Sunil Sharma v. Bachitar
Singh, (2011) 11 SCC 425
5. Pushpa v. Shakuntala, (2011)
2 SCC 240
6.
Arun
Kumar
Agrawal
v.
National
Insurance
Company
Limited, (2010) 9 SCC 218
7. Shyamwati Sharma v. Karam
Singh, (2010) 12 SCC 378
8. Reshma Kumari v. Madan Mohan,
(2009) 13 SCC 422 in Sarla Dixit
v. Balwant Yadav
9.
Raj
Rani
v.
Oriental
Insurance
Company
Limited,
(2009) 13 SCC 654
10.
Sarla
Verma
v.
Delhi
Transport Corporation, (2009) 6
SCC 121
AMOUNT
Rs.10,000
Rs.10,000
Rs.5,000
Rs.25,000
Rs.10,000
Rs.15,000
Rs.5,000
Rs.15,000
Rs.7,000
Rs.10,000
Page19
20
Rs.25,000
Rs.10,000
Rs.10,000
Rs.5,000
Rs.5,000
Rs.5,000
Rs.5,000
Rs.3,000
Rs.5,000
Rs.15,000
Rs.15,000
Rs.7,500
Page20
21
Dhananka
&
Ors.4
relied
upon
by
the
claimant
is
and
suffering
of
the
victim,
who
had
lost
for
loss
Hence,
it
of
is
consortium
by
submitted
by
the
them
husband
or
that
the
and
pattern
of
payment
of
15.
for
the
appellant-doctors
that
the
compensation
restore
the
claimant
to
the
pre-accidental
The
National
Commission
(2009) 6 SCC 1
Page21
22
while
the
calculating
earnings
doctor,
the
of
is
the
also
consideration.
just
monetary
claimant
required
Regarding
who
to
the
compensation,
himself
be
is
taken
contention
into
of
the
standard.
On
the
contrary,
the
National
laid-down
other
by
judgments.
this
The
Honble
two
Court
judgments
in
which
are
Oriental
Insurance
Company
Ltd.
Vs.
compensation
Therefore,
5
the
according
to
American
contention
of
the
standard.
claimant
that
(2009) 14 SCC 1
Page22
23
compensation
has
to
be
assessed
according
to
and
other
counsel
for
the
appellant-doctors
and
for
his
dependants.
The
said
case
is
appellant-doctors
and
AMRI
Hospital
cannot
be
Page23
24
reliance
on
the
judgment
of
this
Court
in
Nizam
Page24
25
of
the
aforesaid
judgment
Nizams
Institute
of
of
Medical
this
Court
Sciences
in
is
the
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.
amount
of
Rs.20
crores
including
the
of
compensation
demanded
for
medical
happening
of
attributed
his
as
in
wife
the
the
claimants
Anuradha
consequence
Saha
due
life
post-
cannot
to
be
medical
Page25
26
negligence.
Therefore,
the
enhancement
of
rejected
by
the
National
Commission
by
multiplier
method
for
determining
for
has
the
appellants
enabled
the
that
courts
the
to
multiplier
bring
about
expenses,
special
damages,
pain
and
suffering.
21. In Sarla Vermas case (supra), this Court, at
Paragraphs 13 to 19, held that the multiplier method
Page26
27
as
there
will
be
uniformity
and
contention,
decision
of
this
reliance
Court
is
In support of
placed
reported
in
upon
the
Patricia
Page27
28
is
the
likely
to
be
pecuniary
suffered
loss
by
suffered
each
and
dependant
is
as
into
account
the
pecuniary
loss
already
and
the
contributions
loss
of
made
by
dependency
the
based
deceased
on
the
to
the
ascertainable,
the
latter
has
been
the
multiplier
calculating
the
method
loss
of
for
the
purpose
dependency
of
of
the
Page28
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
sought
Sarla
to
Vermas
case
define
the
(supra)
this
expression
Court
just
Page29
30
accident
appellant-doctors
cases
under
the
that
Motor
apart
Vehicles
from
Act,
the
Jamshedji Tata.
birth
anniversary
of
Sir
followed
wherein
school
children
were
Victims
Association
&
Ors.8
the
Page30
31
Therefore,
counsel
and
it
is
other
contended
counsel
by
for
the
the
senior
appellant-
awarding
because
it
compensation
leads
to
to
consistency
the
victims
and
avoids
arbitrariness.
On contributory negligence by the claimant
27.
for
National
appellant-doctors
Commission
should
have
amount
towards
claimant
deducted
caused
in
submitted
the
25%
by
his
impugned
of
contributory
that
the
the
judgment
compensation
negligence
interference
of
the
in
the
has
deducted
only
10%
towards
the
Page31
32
and
other
counsel
for
the
appellants,
the
an
aspect
of
contributory
negligence,
by
the
National
Commission
towards
of
compensation
claimed
by
the
appellant-doctors
and
the
Hospital
appeal
is
without
any
amendment
to
the
Page32
33
law.
claim
of
Rs.97,56,07,000/-
which
the
as
claimed
by
the
claimant.
In
placed
reliance
upon
the
principle
contended
that
the
claimant
who
had
Mr.
Vijay
Further, it is submitted
Hansaria,
the
learned
senior
claimant
had
filed
an
application
on
Page33
34
the
Textile
judgment
of
Corporation
this
Court
Ltd.
Vs.
in
National
Nareshkumar
that
necessary
the
to
pleadings
enable
the
and
court
particulars
to
decide
are
the
support
of
the
said
proposition
of
law,
9
10
Page34
35
Vs.
Ariya
Kshatriya
Rajakula
Vamsathu
appellant-doctors
reliance
upon
and
the
Hospital
provisions
of
the
placed
Consumer
pecuniary
jurisdiction
for
deciding
the
of
the
District
Forum
is
Rs.20
have
unlimited
Protection
jurisdiction.
Act,
1986
there
In
is
the
a
11
(2012)
6 SCC 430
Page35
36
Rule 14(c)
Protection
Regulations,
2005
require
The
filing
of
the
does
not
have
to
specify
the
Page36
37
Protection
Act,
written
complaint
forum
within
the
period
of
Under
Section
163-A
of
the
Motor
Vehicles
the
negligence
structured
whereas
no
formula
such
even
provision
without
exists
Page37
38
this
Protection
previous
case
involves
Act.
Secondly,
case,
enhanced
the
this
Consumer
Court
the
in
the
compensation
as
much
as
the
claimant
had
hired
the
President
of
the
Supreme
Court
Bar
for
the
upon
the
Association.
34.
Further,
the
appellant-doctors
learned
placed
counsel
reliance
This Court
Page38
39
complainant
crores.
had
made
claim
of
Rs.7.50
But, the
that
claimant
can
be
awarded
On
circumstances
permanent
medical
disability
attention,
since
the
which
claimant
required
medicines,
constant
services
had
of
The cases
in
his
distinguishable
from
written
the
submission
present
case
and
are
in
Page39
40
compensation
as
has
been
claimed
by
him
wife
due
to
cumulative
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
Page40
41
relevant
for
determining
the
quantification
of
not
sure
that
the
negligence
solely
has
most,
this
Court
is
of
the
view
that
the
wife.
The
incidences
leading
to
or
it
is
observed
factually
that
Page41
42
doctors
and
the
AMRI
Hospital,
by
medical
of
medication
the
Dr.
the
Sukumar
negligence
deceased
(overdose
Hospital
has
of
was
Mukherjee
resulting
due
to
steroid).
little
and
the
in
the
his
wrong
Therefore,
or
minimal
Page42
43
responsibility
when
after
in
this
admission
regard,
of
the
particularly,
deceased
in
the
best
possible
treatment.
The
National
that
there
is
no
medical
AMRI
Hospital
submitted
that
the
arguments
in
C.A.
731/2012
with
regard
to
Page43
44
submitted
that
under
the
heading
findings
of
the
National
Commission
are
Further,
the
learned
senior
that
since
he
had
himself
claimed
before
the
National
Commission,
Page44
45
39.
Mukherjee
that
the
National
Commission
while
scrutiny
of
Gangulys
case
the
Dr.
Sukumar
judgment
(supra)
Mukherjee
in
will
Malay
show
that
that
Kumar
at
no
or
recorded
any
finding
Mukherjee
and
the
appellant
Dr.
primarily
responsible.
the
heading
Cumulative
On
the
Effect
that
the
Hospital
are
contrary,
of
under
Negligence
Page45
46
It
is
further
submitted
by
the
learned
Page46
47
Mukherjee
only
on
three
26.4.1998,
11.5.1998
and
7.5.1998
then
the
and
on
the
night
of
appellant-Dr.Mukherjee
on
suggested
host
26.4.1998
of
On her first
the
pathological
appellant
tests.
The
consumed
food
of
Chinese
cuisine.
The
Page47
48
with
belonging
to
commenced
treating
Depomedrol,
which
the
of
family
is
the
drug
steroids.
The
Anuradha
Saha
Depomedrol
Vasculitis
(USPDI
was
is
subject
very
1994):
much
to
further
indicated
Depomedrol
is
in
anti-
Doctors
judgment
to
use
appellant-Dr.Mukherjee
injection
of
7.5.1998.
He
injections
further
to
on
did
not
the
deceased
that
drug.
administered
Depomedrol
submitted
the
the
administer
one
night
any
thereafter.
much
higher
The
of
other
It
is
dose
of
Page48
49
examined
Anuradha
Saha
at
the
AMRI
Hospital
whole
line
of
treatment
and
organized
recommended
further
pathological
tests
all.
He
also
requested
in
writing
the
MD
referral
to
to
organize
all
all
specialists.
these
including
The
appellant-
in
aggravated
form
and
prescribed
Page49
50
immuno
abnormalities.
It
appellant-Dr.Mukherjee
patient
thereafter
is
did
and
as
stated
not
that
the
examine
the
aforementioned,
he
of
to
the
appellant-Dr.
11.5.1998,
(Dermatologist)
on
Mukherjee
9.5.1998
treated
from
Dr.Ashok
Anuradha
Saha.
even
this
Honble
Court
has
also
the
patient
was
also
examined
by
two
Page50
51
43.
It
is
further
submitted
by
the
learned
of
death
as
recorded
in
the
death
Blood
There was
of
infection
in
TEN.
The
patient
written
by
junior
counsel
that
doctor
without
the
It is submitted by the
there
is
neither
any
septicemia.
patient
was
not
The
mere
finding
that
the
properly
dressed
at
AMRI
Page51
52
to
septicemic
shock
of
the
peeled
out
thereby
leading
to
chance
of
Bombay
against
the
advice
of
the
the
conclusion
chartered
flight
that
she
during
might
the
have
travel
by
contracted
that
the
disease
TEN
requires
higher
Page52
53
degree
of
care
treatment,
such
relatable
to
septicemia
since
high
there
degree
comfort
that
is
no
of
but
not
occurred
at
care
definite
will
be
definitely
to
Breach
Candy
submitted
show
that
that
dynamically stable.
the
Breach
Candy
patient
was
Hospital
haemo-
Page53
54
the
National
Commission
ought
to
Appeal
11.05.1998,
Dr.
No.
2867
Sukumar
of
2012
that
Mukherjee,
on
before
deceased,
prescription
prescribing
on
issued
the
anything
the
second
aforesaid
different
and
date
but
last
without
re-assured
Page54
55
at
least
four
more
days.
This
was
also
said
date.
Further,
it
is
stated
that
12.05.1998,
he
asked
the
deceased
to
prescribe
I.V.
Fluid
and
adequate
Roy
Management
knowledge
Chowdhury
from
and
as
Head
12.05.1998
treatment
of
with
the
the
background
Medical
positive
that
the
Page55
56
contained
specific
averments
of
negligence
Page56
57
47.
15%
on
Dr.
Sukumar
Mukherjee
and
Page57
58
AMOUNT TO BE PAID
Compensation:Rs.38,90,000
Cost of litigation:1,50,000
Compensation:Rs.25,93,000
Cost of litigation: Rs.1,00,000
Dr.
Abani
Roy
Chowdhury Compensation: 25,00,000
(since
deceased)
(claim
foregone)
AMRI Hospital
Compensation: Rs.38,90,000
Cost of litigation: Rs.1,50,000
Compensation: Rs.25,93,000
Cost of litigation: Rs.1,00,000
49.
The
Appeal
appellant-Dr.
No.2867/2012
Balram
contends
Prasad
that
he
in
Civil
was
the
but
was
only
required
to
continue
Page58
59
referred
the
patient
to
the
three
biopsy.
The
duty
of
care
ordinarily
National
proceeding,
Commission
the
claimant
in
himself
the
enquiry
has
admitted
namely,
Dr.
Mukherjee,
Dr.
Haldar
show
that
appellant-Doctors
the
in
role
the
played
treatment
by
the
of
the
discharged
with
reasonable
and
due
care
Page59
60
50.
In
the
light
circumstances,
that
the
of
the
death
the
above
contention
of
the
of
facts
the
claimants
and
claimant
wife
was
of
the
management/treatment
of
the
deceased.
51.
Dr.
Balram
Prasad
further
urged
that
the
account
the
submissions
that
80%
the
damages
levied
on
of
the
Hospital,
of
ought
15%
on
the
to
claimant
have
Dr.
been
Sukumar
Page60
61
It
The
learned
counsel
Mr.
Ranjan
Mukherjee
has
filed
the
written
submissions
on
has
support
also
of
adopted
the
the
written
arguments
submissions
made
in
filed
on
Baidyanath
Haldar
is
about
80
Page61
62
to
set
aside
the
liability
of
compensation
modified
to
Rs.97.5
crores
later
on
by
loss
of
employment,
bankruptcy
etc.
suffered by the claimant in the course of 15year long trial in relation to the proceedings
in question before the National Commission and
this Court.
Page62
63
guilty
doctors
had
already
expired,
his
Therefore,
claiming
the
the
just
present
and
appeal
reasonable
is
filed
compensation
National
consider
and
the
special
Commission
has
pecuniary,
damages
failed
to
non-pecuniary
as
extracted
hereinbefore.
b) The National Commission has made blatant
errors in mathematical calculation while
awarding
compensation
using
the
multiplier
method
is
the
which
not
correct approach.
c) The National Commission has erroneously
used the multiplier method to determine
compensation
for
Indian
history
legal
the
first
for
the
time
in
wrongful
Page63
64
death
the
caused
by
medical
appellant-doctors
negligence
and
the
of
AMRI
Hospital.
d) The
National
reinvestigated
the
Commission
entire
has
case
about
National
Commission
has
failed
to
15
the
litigation
years
to
has
taken
more
and
award
determine
compensation.
f) The
National
Commission
has
failed
to
of
inflation
for
awarding
Page64
65
that
made
comment
trying
the
National
blatant
on
to
him
stating
make
misfortune.
and
Commission
irresponsible
that
fortune
he
out
was
of
expunged.
55.
untenable
in
law
in
view
of
the
of
Shantha
15
Indian
&
Medical
Ors15,
Association
wherein
this
Vs.
V.P.
Court
has
Page65
66
Institutes case(supra) it
the
court
adequate
must
not
compensation.
be
chary
of
Further,
the
of
Rs.100
Broadcasting
Co.
Babaram
Sawant
decided
on
crores
Ltd.
[SLP
&
in
Anr.
(Civil)
14-11-2011],
Times
Vs.
No(s)
suggesting
Global
Parshuram
29979/2011
that
in
Page66
67
appropriate
cases,
seemingly
large
amount
of
compensation is justified.
57.
fundamental
principle
for
awarding
just
while
remanding
the
case
back
to
the
is
based
on
restitutio
in
It is further contended
justification
Unfortunately,
for
despite
each
of
referring
the
to
heads.
judicial
Page67
68
consideration
and
in
assuming
that
the
be
changed
or
modified
without
prior
and
Anr.
Vs.
United
India
Insurance
Page68
69
of
of
compensation,
has
educational
qualification,
her
own
In
similar
view
that
status,
future
Page69
70
contended
by
the
claimant
that
it
is
an
graduate
in
Psychology
from
highly
brilliant
Unfortunately,
calculated
future
the
the
ahead
National
entire
of
her.
Commission
compensation
has
and
as a graduate student.
on
the
part
of
the
National
Commission,
New
Court
based
India
has
on
Assurance
calculated
Co.20,
quantum
reasonable
wherein
of
this
compensation
assumption
about
Page70
71
even
in
the
absence
(paragraphs 13,14).
of
any
experts
opinion
India
Ramachandrappa
Insurance
Vs.
Alliance Insurance23,
(supra),Laxman
Manager,
Ibrahim
Laxman
Ltd.22,
Co.
Royal
Vs.
Mourya
Sundaram
Raju
Vs.
Sri
&
Ors.
Divisional
death
of
claimants
wife
must
be
the
U.S.A.
that
has
also
been
calculated
21
22
23
24
Page71
72
60.
just
consideration
compensation
of
all
the
due
to
following
non
critical
factors:
1)
The
Guidelines
Court:
provided
This
guidelines
Court
as
Commission
to
adequate
Supreme
has
provided
the
National
how
should
by
arrive
at
compensation
an
after
3)
permanently
psychologist
settled
and
as
AIDs
child
researcher,
Page72
73
instant
case
must
be
calculated
in
in
Mahajans
the
U.S.A..
case
(supra),
In
Patricia
where
48
in
a
India,
this
compensation
Court
of
more
has
than
in
such
cases
must
living
in
the
country
where
the
wrongful
a
against
death
total
the
of
claim
appellant-
his
of
wife
in
Rs.77.7
doctors
1998
crores
and
AMRI
this
matter
to
the
National
Page73
74
Commission
for
quantum
compensation
of
direction
in
judgment
determination
the
that
with
final
foreign
of
a
the
specific
sentence
experts
of
may
be
Scientific
calculation
income:
The
should
loss
of
National
Commission
made
scientific
have
calculation
of
regarding
the
loss
of
been
number
given
of
by
this
cases.
Court
Further,
he
in
has
for
video
conferencing.
The
U.S.A.
based
international
2011.
Prof
repute,
John
cross-examined
Economist
F.
by
in
Burke
the
of
May-June,
was
also
appellant-
Page74
75
Burke
scientifically
calculated
and
U.S.A.
and
as
Anuradha,
categorically
the
stated
deceased
that
the
death
and
loss
would
125
of
amount
thousand
income
was
to
dollars.
calculated
her
deduction
personal
of
expenses.
income
for
1/3rd
personal
Sarla
Verma
(supra).
Prof.
Burke
loss
premature
of
income
death
of
due
to
the
Anuradha
and
Page75
76
undoubtedly
an
average
and
that
bigger
amounts
of
Page76
77
legitimate
claim
or
to
restrict
The
National
Commission
has
ignored
the
has
remanding
categorically
the
Commission
case
that
to
stated
the
while
National
pecuniary
and
non-
the
enormous
expenses
as
well
numerous
trips
as
cost
for
expenses
between
India
legal
for
the
and
the
Page77
78
India
as
would
be
evident
from
the
July
18,
2011.
The
claimant
also
about
in
professional
his
the
loss
personal
career
in
as
U.S.A.
that
he
well
as
over
the
that
these
additional
damages
and
Page78
79
since
he
against
filed
the
the
original
appellant-doctors
complaint
could
not
individual
proper
items
perspective
of
under
the
total
separate
claim
in
headings
of
pecuniary
damages
Rs.34,56,07,000/-,
non
pecuniary
Rs.31,50,00,000/-,
special
damages
of
damages
of
US
of
$
Page79
80
damages of US $ 1,000,000/.
total
affidavit
claim
filed
by
in
conjunction
with
him
during
course
the
the
of
of
compensation
which
was
substantially
in
the
Commission
consideration
remand
order
court.
ought
the
Further,
to
have
observations
passed
by
this
the
National
taken
made
Court
into
in
the
while
Page80
81
stature
as also the
respective
appeals
that
they
cannot
be
Savita
Institute25
(supra)
Garg
and
wherein
Vs.
in
Director,
Malay
this
Kumar
Court
has
National
Heart
Gangulys
case
categorically
(2004) 8 SCC 56
Page81
82
Gargs case
insofar
as
answers
the
contentions
raised
If that was
free
Hospitals
and
would
patients
be
in
killed
many
with
charitable
impunity
by
Page82
83
or
Commissioners.
suffered
by
payment
for
the
Court
the
claimant
as
result
of
the
decision
in
Charan
Singh
Vs.
Healing
Touch Hospital26.
64.
163
of
the
Motor
Vehicles
Act,
is
Page83
84
65.
Medical
(supra),
Harjol
Spring
Assn.
Vs.
Meadows
Ahluwalia27,
Charan
V.P.
Shanta
Hospital
&
Singh
Vs.
&
Ors.
Anr
Vs.
Healing
Institute
Sukumar
Mukherjee
&
Ors.
(supra)
and
V.
(1998) 4 SCC 39
Page84
85
66.
consumer
court
multiplier
in
India
system
have
to
never
used
calculate
the
adequate
negligence
Commission decided
except
when
the
upon
Sarla
National
Vermas
Reliance was
case
(supra)
at
determining
compensation
using
multiplier
In contrast to
death
or
permanent
injury
to
patient
from
medical
negligence
cannot
and
Page85
86
he
has
placed
reliance
Institutes
case
wherein
Court
claim
the
made
multiplier
(supra)
by
has
at
the
guilty
be
Nizam
paragraph
rejected
the
should
upon
the
92,
specific
Hospital
used
to
that
calculate
that such a
67.
The
multiplier
convenience
and
method
speedy
was
disposal
provided
of
no
for
fault
Therefore, obviously, a
under
any
condition.
The
aforesaid
the
just
compensation
would
be
income
of
only
Rs.15,000/-
per
year
Page86
87
or
other
non-working
person
fall
victim
lakh.
aforesaid
It
reasons
may
is
collect
stated
that
in
would
in
view
todays
be
of
only
the
India,
used
to
determine
compensation
in
medical
medical
negligence
in
India
bringing
even
Page87
88
68.
National
Commission
has
failed
to
award
any
negligent
treatment
by
doctors
and
AMRI
award
equivalent
to
20,000
for
the
act
of
the
doctors
and
the
AMRI
Hospital.
69.
The
claimant
further
contended
that
he
is
Page88
89
home
foreclosure.
The
National
Commission
claim
observations
which
is
made
in
in
violation
Charan
of
the
Singhs
case
affirmed
the
(supra).
70.
Further,
principle
this
regarding
compensation
inflation
Court
in
should
determination
the
be
has
following
considered
quantum of compensation:
of
just
cases
that
while
deciding
Page89
90
claimant in 1998
would
Rs.188.6
as
crores
be
of
equivalent
2012-2013.
to
The
interest
12%
but
only
in
case
of
the
21,
judgment
2011.
which
That
was
means,
delivered
the
on
National
Page90
91
The
He
has
justification
also
of
punitive damages.
placed
his
claim
reliance
of
upon
in
exemplary
or
A claim of US $ 1,000,000 as
A.P.30,
28
wherein
it
is
held
that
punitive
or
Page91
92
negligence
reckless
doctors
or
deterrent
cases
and
in
western
reprehensible
Hospitals
message
to
in
act
order
other
countries
by
to
the
send
members
of
a
the
Appeals
in
South
Carolina
in
Welch
Vs.
to
manufacturer
This
Court
the
warning
causing
has
the
given
death
categorically
by
of
held
the
a
drug
patient.
that
the
31
twice
daily
by
Dr.
clear
violation
and
recommendation
of
Sukumar
the
Mukherjee
manufacturers
and
was
in
warning
admittedly,
the
Page92
93
excessive
case
of
judgments
49
million
punitive
damages
was
negligence.
the
U.S.A.
The
clearly
aforesaid
show
that
A nominal amount
Page93
94
in
well-known
case
of
Lata
Wadhwa
this
Court
National
remanded
Commission
the
for
case
back
determination
to
the
of
the
Kumar
Gangulys
case,
this
Further, in
Court
has
Page94
95
the
National
Commission
has
wrongfully
of
the
quantum
of
compensation.
the
compensation
should
be
divided,
as
appellant-Dr.
Sukumar
Mukherjee
who
was
though
the
Court
found
appellant-
It
is
further
contended
that
the
National
Page95
96
Vs.
Sanjay
Gandhi
P.G.
Institute
(FA
doctors
appellant
appellant
and
institute
paramedical
were
institute
staff
involved,
which
has
it
to
of
the
is
the
be
held
case
(supra)
compensation
this
Court
against
imposed
the
the
Hospital
entire
despite
to
the
National
Commission,
this
Page96
97
2
other legal expenses
Total pecuniary damages
Rs.34,56,07,000/Non-Pecuniary Special Damages
Rs.1,50,00,000/Rs.15,00,000/-
Page97
98
PUNITIVE/EXEMPLARY DAMAGES
SPECIAL DAMAGES
Total
Rs.13,50,00,000/Rs.18,00,00,000/Rs.97,56,07,000/-
following
Hospital
points
and
would
the
claimant,
arise
for
If it is so, for
Page98
99
2)
affidavit
Commission
petition,
when
before
amending
whether
entitled
for
enhanced
claim
the
the
National
the
claim
claimant
compensation
preferred
on
before
is
the
the
National Commission?
3(a) Whether the claimant seeking to amend
the
claim
of
compensation
under
certain
claiming
additional
amount
for
Page99
100
4.
Whether
the
justified
in
National
adopting
Commission
the
is
multiplier
damages
under
the
heads
of
apportionment
judgment
of
the
and
the
compensation
amount
interference
is
liable
and
whether
the
for
contributory
Page100
101
negligence
and
deduction
of
compensation
If we answer
and
are
answered
by
recording
the
following reasons:
Page101
102
81.
any
reason
whatsoever.
It
is
an
The value of
has
repeatedly
money
should
be
affirmed
considered
that
while
inflation
deciding
of
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:
Page102
103
this
under
got
which
court
at
re-iterated
para
at
15
observed
paragraph
13
as
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 2627 & 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.
Page103
104
Page104
105
The
C.I.I.
is
determined
by
the
Finance
of
India,
the
original
claim
of
Page105
106
urged
the
Hospital
AMRI
pleadings
in
by
the
the
that
claim
appellant-doctors
in
the
petition
and
absence
of
before
the
the
additional
cannot
compensation
be
under
claim
examined
different
made
for
heads
by
grant
is
the
of
wholly
has
been
steady
inflation
which
should
Page106
107
the
decision
confining
the
of
the
grant
National
of
Commission
compensation
to
in
the
claim
of
the
claimant
on
enhancement
of
Besides
enhancement
of
compensation,
the
he
had
suffered
due
to
loss
of
his
Page107
108
The claimant
be
followed
by
the
Tribunals,
District
In
support
of
this
Kumar
wherein
this
Gangulys
Court
case
has
referred
made
to
supra
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
Page108
109
claimant
entire
in
claim
additional
its
solely
claim
judgment,
on
was
has
the
rejected
ground
not
pleaded
that
the
the
earlier,
of
claim,
the
cases.
In
claimant
support
places
of
his
reliance
additional
upon
such
Page109
110
of
quantum
should
of
include
compensation,
loss
of
that
earning
of
include
any
loss
already
suffered
or
is
Rightly, the
Page110
111
before
his
the
claim
National
to
Rs
Commission
7.50
crores
but
when
he
the
Page111
112
e)
(India)
In
R.D.
(supra)
compensation
Hattangadi
the
claim
Vs.
appellant
of
Rs.4
Pest
made
lakhs
Control
an
but
initial
later
on
there
is
no
restriction
that
compensation
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
Page112
113
evidence.
This
would
be
clear
by
reference to the relevant provisions of
the MV Act.
g)
complainant
after
discussion
of
host
of
previous judgments.
84.
In
view
of
the
aforesaid
decisions
of
this
just
compensation
more
than
what
was
Page113
114
the
CPC
as
he
had
restricted
his
Rule 2
claim
at
The
and
other
counsel
on
behalf
of
the
Page114
115
untenable
aforesaid
in
decisions
law
and
of
this
is
contrary
Court
to
referred
the
to
just
and
reasonable
compensation.
for
made
enhanced
by
the
compensation
claimant
in
under
certain
additional
claim
remanding
the
case
back
to
the
National
of
compensation
also
made
categorical
observation that:
Page115
116
view
that
status,
future
prospects
and
for
deciding
adequate,
just
and
fair
Further,
it
is
an
undisputed
fact
that
the
She had
Page116
117
brilliant
National
future
Commission
ahead
has
of
her.
However,
calculated
the
the
entire
student.
Therefore,
the
National
made
by
this
Court
in
the
case
of
Page117
118
Manager,
Royal
Sundaram
Alliance
Insurance
Ltd.
(supra)
and
Kavita
Vs.
Dipak
&
Ors
future
prospect
of
income.
However,
these
Page118
119
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
Page119
120
adopted. Where the deceased was selfemployed 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.
in
Santosh
Devi
Vs.
National
Insurance
Page120
121
89.
experts
opinion
must
have
been
reasonably
the
calculation
of
future
prospect
of
regard,
the
learned
counsel
for
the
In
other
without
amending
the
claim
petition
the
an
application
claimant
cannot
support
of
reliance
be
this
upon
filed
in
accepted
the
contention,
by
the
various
appeal
this
they
by
the
Court.
In
have
provisions
placed
of
the
Page121
122
Court
which
submissions
claimant
have
been
recorded
strongly
adverted
in
this
contended
by
to
in
their
judgment.
The
placing
reliance
the
application
filed
by
the
claimant
was
has
been
done.
The
ground
urged
by
the
the
additional
claim
entire
made
claim
before
it.
including
He
has
the
placed
Page122
123
Page123
124
He
has
also
placed
reliance
upon
the
Nizam
Page124
125
adequate
compensation.
The
relevant
He
has
further
rightly
contended
that
with
and
reasonable
Kumar
compensation,
Gangulys
case
this
Court
(supra)
in
has
and
reasonable
compensation
is
based
on
Page125
126
Further,
he
has
placed
reliance
upon
the
compensation
irrespective
of
the
fact
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 dutybound
and
entitled
to
award
just
compensation irrespective of the fact
Page126
127
has
also
rightly
placed
reliance
upon
the
National
determination
medical
of
Commission
quantum
negligence.
of
This
only
for
compensation
Court
has
for
further
claimant
has
also
rightly
submitted
that
death
impossible
of
to
his
wife
file
in
1998,
claim
it
would
for
be
just
In support
Page127
128
cases
also
where
more
compensation
was
got
the
Constitution
power
and
under
the
duty
Article
to
136
award
of
the
just
and
contentions
urged
on
behalf
of
the
AMRI
Page128
129
the
same
has
not
been
rightly
accepted
by
the
reasoning
the
National Commission.
94.Also,
in
contention
view
that
of
the
the
above
claimant
has
waived
his
The claimant
just
and
reasonable
compensation
With
regard
to
point
no.
4,
the
National
Page129
130
Motor
Vehicles
Act
to
determine
the
quantum
of
method
as
has
been
laid
down
by
this
the
dependency
claimant
of
the
that
determining
cases
compensation
claimant.
use
of
death
It
the
is
urged
multiplier
compensation
involving
under
for
of
of
by
the
system
medical
his
loss
wife
for
negligence
is
grossly
upon
the
cases
of
this
Court
such
as,
Meadows
Hospital
&
Anr.
Vs.
Harjol
(supra),
Savita
Garg
Vs.
Director
Punjab
(1998) 4 SCC 39
Page130
131
V.
Kishan
Rao
Vs.
Nikhil
Superspeciality
Page131
132
cannot
be
taken
care
of
under
the
multiplier method.
[Emphasis laid by this Court]
as
provided
in
the
second
Schedule
to
of
Amendment
in
1994,
was
meant
for
speedy
with
no
fault
motor
accident
claim
cases.
96. The appellant Dr. Balram Prasad on the other
hand
relied
Insurance
upon
Co.
the
Ltd.
decision
Vs.
in
Patricia
United
Jean
India
Mahajan
method
of
determining
the
quantum
of
Page132
133
XXX
therefore,
awarding
XXX
Page133
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
more
victims
negligence.
of
particularly
The
in
the
relevant
death
of
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
Page134
135
dissatisfaction
system.
and
distrust
in
the
that
which
case
suffered
required
from
constant
permanent
medical
disability
assistance.
quantum
of
compensation
by
not
adopting
this
Court
mentions
various
instances
method
to
avoid
over-compensation
and
Page135
136
the
appropriate
multiplier.
Therefore,
founded
and
based
on
sound
logic
and
is
and reasonable
in
favour
of
the
claimant
holding
that
the
of
and
the
compensation
AMRI
Hospital
in
by
following
the
Page136
137
the
same
does
not
inspire
confidence
in
us
in
method
adopted
by
the
National
point
no.
in
favour
of
the
claimant
and
for
tenure
denial
and
termination
of
his
Page137
138
We
have
perused
through
the
claims
of
the
under
the
head
of
loss
of
income
for
appellant-
doctors
and
the
Hospital.
The
Travel
expenses
over
the
past
12
years
at
prove
his
travel
expenditure
from
U.S.A.
to
Page138
139
and
had
been
living
there.
It
cannot
be
years
while
seeking
compensation
under
this
Page139
140
perusal
of
the
operative
portion
of
the
Hospital
to
pay
the
compensation
within
Court,
such
as
in
the
case
of
Thazhathe
Page140
141
regarding
payment
of
interest
on
decree
of
is
on
Page141
142
Further,
in
Kemp
and
Kemp
on
Quantum
of
Page142
143
XXX
XXX
XXX
XXX
Page143
144
Page144
145
102.
Therefore,
the
National
Commission
in
not
is
and
most
the
AMRI
unreasonable
Hospital
and
the
to
the
same
is
we
are
awarding
the
interest
on
the
annum
on
the
compensation
awarded
in
these
of
the
in
appellant-doctors
not
awarding
and
interest
the
AMRI
on
the
Page145
146
wholly
Accordingly,
untenable
the
in
aforesaid
law
and
point
is
misplaced.
answered
in
(supra).
We
will
confine
ourselves
to
to
the
claimant
for
their
acts
of
Page146
147
the
arguments
advanced
on
behalf
of
the
of
imposed
percentage
by
this
on
Court
the
in
basis
the
of
earlier
the
cost
round
of
105. The learned senior counsel for the appellantAMRI 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
appellant-doctors,
special
Dr.
damages
Sukumar
against
Mukherjee,
the
Dr.
On the other
Page147
148
hand,
the
though
the
claimant
National
Dr.
Kunal
Commission
Saha
argues
claims
that
that
this
had
implicitly
directed
the
bulk
of
Page148
149
directed
the
Hospital
to
pay
the
entire
remitting
Commission
for
the
case
back
determining
the
to
National
quantum
of
part
of
the
Hospital.
The
findings
of
this
Page149
150
The
apportioned
liability
by
this
of
Court
compensation
on
the
to
be
appellant-AMRI
Page150
151
Page151
152
Institute
(supra)
this
Court,
while
Page152
153
Page153
154
Page154
155
skill of
doctor
reasonably
competent
Page155
156
referred
to
supra,
particularly,
Savita
Hospital
is
vicariously
liable
for
its
Page156
157
As
regards
the
liability
of
Dr.
Sukumar
responsible
claimants
wife.
On
for
the
the
death
contrary,
of
referring
the
to
of
counsel
has
cumulative
argued
effect,
that
his
the
appellants
liability
is
not
Page157
158
appellant-Dr.
the
liability
Mukherjee,
following
in
the
we
observation
present
case.
are
inclined
regarding
The
to
his
paragraphs
Page158
159
Dr.
Mukherjee
in
Malay
Kumar
Gangulys
case
Page159
160
It
is
also
important
to
highlight
in
this
to
shirk
from
his
individual
is
very
much
unbecoming
of
doctor
as
on
this
aspect
recorded
in
Malay
Kumar
Page160
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.
Page161
162
113.
Therefore,
the
negligence
of
Dr.
Sukumar
in
the
light
of
the
facts
and
lakhs
to
the
claimant
in
lieu
of
his
The
case
of
the
appellant
Dr.
Baidyanath
Page162
163
the
disease
as
TEN
and
prescribed
Dr.
B.
Haldar
is
his
prescription
of
deceased
was
already
under
high
dose
of
the rate
appellant
who
of 160
mg per
tapered
it
day and
down
by
it was
the
prescribing
not
called
Commission
thereafter.
wrongly
equated
Hence,
him
the
with
National
Dr.
Balram
Page163
164
claimant
did
not
make
any
counter
statement
on
in
the
treatment
of
the
deceased.
The
Page164
165
115.
Similar
to
the
appellant
Dr.
Sukumar
senior
doctor
of
high
repute.
However,
Page165
166
which
appellant
led
Dr.
to
her
unfortunate
Baidyanath
Haldar
demise.
too,
The
like
Dr.
profession
who
undertook
to
serve.
This
to
the
claimant
in
lieu
of
his
that
he
was
the
junior-most
attending
and
monitor
the
medicines
to
be
Page166
167
the
appellant-Dr.
B.Prasad
argues
that
the
117.
To
prove
appellant-Dr.
his
competence
Balram
Prasad
as
further
doctor,
produced
the
a
Page167
168
118.
The
appellant
emphasizes
upon
Dr.
the
Balram
Prasad
cross-examination
further
of
the
119.
Though
claim
the
against
claimant
the
did
not
appellant-Dr.
make
specific
Balram
Prasad,
who
was
the
Anbani
Roy
Choudhury
attending
who
was
physician
the
and
physician
Dr.
in
Page168
169
Page169
170
doctor
on
the
attending
physician
the
Page170
171
122.
We
acknowledge
the
fact
that
Dr.
Balram
treatment
of
the
claimants
wife
in
AMRI-
the
independent
appellant
medical
Dr.
Balram
practitioner
Prasad
with
was
a
an
post
Page171
172
Gangulys
case
found
him
to
be
negligent
in
junior
negligence
doctor
is
far
whose
less
contribution
than
the
senior
to
the
doctors
Finally,
we
arrive
at
determining
the
the
death
of
his
wife
due
to
medical
Page172
173
at
Rs.1,72,87,500/-.
However,
the
National
123
Kumar
of
the
judgment
Gangulys
case
of
to
this
Court
arrive
at
in
the
Therefore,
holding
contributory
the
negligence,
claimant
the
responsible
National
for
Commission
Page173
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
the
doctors
petition
treatment
raised
the
which
was
of
his
same
wife.
issue
in
appropriately
The
appellant-
the
revision
dismissed.
He
Page174
175
Page175
176
of
the
treatment.
The
National
Commission
We
further
intend
to
emphasize
upon
the
Page176
177
his
long
Unfortunately,
the
drawn
battle
National
for
justice.
Commission
made
the
same mistake.
127.
We,
therefore,
conclude
that
the
National
and
to
the
the
negligence
Hospital
of
which
the
appellant-
resulted
in
the
Page177
178
Commission
and
re-emphasize
the
finding
of
this
of
the
appellants-doctors
and
AMRI
the
pecuniary
and
non-pecuniary
losses
instant
case
by
National
Commission.
way
of
filing
affidavit
with
supporting
Page178
179
documents,
is
Rs.97,56,07,000/-
that
includes
pecuniary
damages
of
Rs.34,56,07,000/-
and
pecuniary
damages
of
Rs.31,50,00,000/-,
non
special
break-up
of
the
total
claim
has
The
been
legal
evidence
by
and
this
observations
Court
in
made
Malay
and
directions
issued
Kumar
Gangulys
Page179
180
Commission
consideration
the
has
failed
Further, the
to
observations
made
take
in
into
the
been
Commission
completely
in
awarding
just
by
the
and
National
reasonable
Page180
181
131. The
grievance
National
Commission
consideration
produced
on
the
of
the
has
legal
record
claimant
failed
and
is
to
that
take
substantial
regarding
the
the
into
evidence
income
of
the
was
AIDS
researcher
in
the
U.S.A.
consideration
regarding
the
status
and
case
involving
U.S.A.
citizen
United
India
Patricia
where
road
Insurance
Jean
this
in
death
Mahajan
Court
has
of
47-48
accident
Co.
&
Ors.
Ltd.
years
in
&
India,
Others
referred
awarded
to
old
in
Vs.
supra
compensation
of
Page181
182
and
Commission
dependents.
did
not
However,
consider
the
the
National
substantial
and
based
Prof.
John
F.
Burke
through
video
testified
examination
as
under
to
how
direct
he
as
came
well
to
as
cross
calculate
the
as of the deceased.
Prof. John
income
of
the
deceased
on
account
of
her
death
of
the
claimants
wife
was
Page182
183
personal
expenses
out
of
her
annual
income
witness
by
appellant-doctors
the
and
learned
the
counsel
Hospital,
he
for
has
the
also
premise
of
claimants wife.
the
premature
death
of
the
but
undoubtedly
an
average
and
legitimate
Page183
184
Associations
Constitution
legitimate
size
of
Bench
claim
an
or
award
case
has
(supra)
stated
to
the
to
deny
the
arbitrarily
the
that
restrict
would
wherein
amount
to
substantial
in
future
given
her
present
prospect.
But
Page184
185
to.
Therefore,
while
determining
the
should
be
added
towards
the
future
loss
of
Page185
186
which
we
concede
with
based
on
the
Page186
187
Rs.5,72,00,550/-
which
[$40,000+(30/100x40,000$)-(1/3
is
x
calculated
52,000$)
as
30
Rs.55/-] = Rs.5,72,00,550/-.
However,
the
expenditure
made
by
the
for
awarding
reasonable
amount
under
Page187
188
(a) For
Mumbai:
136.
the
medical
treatment
in
Kolkata
and
some
more
expenditure,
the
National
Page188
189
his
wife.
However,
again
he
has
failed
to
more
some
considering
unavoidable
that
he
expenditure
had
also
during
his
cost
of
chartered
flight,
sum
of
the
same
in
absence
of
any
evidence
which
Page189
190
alters
the
chartered
computation
flight.
of
the
Hence,
we
cost
incurred
uphold
the
in
amount
139. It
is
National
the
case
Commission
of
has
the
claimant
awarded
that
paltry
the
amount
suffering,
loss
of
companionship
and
The
this
claimant
head
before
had
the
claimed
Rs.50
National
crores
Commission
claim
to
Rs.31,50,00,000/-
under
three
loss
of
companionship
and
life
amenities,
Page190
191
Rs.50,00,000/-
for
emotional
suffering
the
husband-
of
distress,
the
pain
claimant
and
and
Page191
192
Page192
193
Page193
194
Page194
195
Page195
196
Page196
197
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
Page197
198
Page198
199
Page199
200
Page200
201
extract
from
Malay
Kumar
Gangulys
case
read as under:
Page201
202
of
11-5-1998
under
Dr.
Mukherjees
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 28-51998
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
the
case
and
needs
no
reiteration.
144.
Further,
in
of
Nizam
Institute
Page202
203
victim
of
motor
vehicle
accident
was
awarded
Page203
204
lumpsum
to
the
Institutes
case
amount
claimant
(supra)
of
Rs.10
following
and
also
lakhs
the
is
Nizam
applying
the
claimants
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 claimants wife.
Page204
205
Rs.5,72,00,550/Rs.7,00,000/Rs.6,50,000/Rs.1,00,000/Rs.10,00,000/Rs.11,50,000/-
granted
by
the
National
Commission
under
Before
inclined
to
negligence
parting
mention
cases
with
that
against
the
the
judgment
number
doctors,
of
we
are
medical
Hospitals
and
by
day.
In
the
case
of
Paschim
Banga
Khet
Page205
206
Mazdoor
Samity
Vs.
State
of
West
Bengal37,
this
citizen
is
fundamental
right
guaranteed
held
in
that
case
that
all
the
government
Poly-clinics
are
and
deterrent
37
trust
and
that
a
this
reminder
decision
to
acts
those
as
doctors,
(1996) 4 SCC 37
Page206
207
The
central
and
the
state
governments
may
for
effective
functioning
of
the
private
India,
we
hope
and
trust
for
impartial
and
that
the
institutions
and
individuals
and
rare
diseases
so
as
to
avoid
could
have
been
saved
with
little
more
Page207
208
by
Dr.
Balram
Prasad,
Civil
Appeal
No.
fastened
upon
them
to
be
paid
to
the
Dr.
Baidyanath
Haldar
are
liable
to
pay
Balram
Prasad
is
held
liable
to
pay
appellant-doctors
have
paid
compensation
in
Page208
209
to
Hospital
pay
is
dismissed
compensation
as
and
awarded
it
in
is
this
amount
fastened
upon
the
doctors
in
this
finding
on
contributory
negligence
by
the
by
enhancing
Rs.1,34,66,000/-
to
the
compensation
Rs.6,08,00,550/-
from
with
6%
judgment
by
sending
demand
draft
of
the
Page209
210
liability
amount,
within
if
imposed
any,
eight
on
already
weeks
and
it
after
paid
to
submit
deducting
the
the
the
claimant,
compliance
report.
J.
[CHANDRAMAULI KR. PRASAD]
J.
[V. GOPALA GOWDA]
New Delhi,
October 24, 2013.
Page210