Supreme Court of India
DR. BALRAM PRASADversusDR. KUNAL SAHA & ORS.
- Citation
- 2013 INSC 717
- Decided
- 24 October 2013
- Disposal
- Disposed off
- Bench
- C K PRASAD
Holding
In medical negligence actions under the Consumer Protection Act, compensation must be determined without the multiplier method, taking into account inflation and additional claims, with interest payable from the filing date, the hospital is vicariously liable for its doctors, and no deduction for contributory negligence is warranted.
Summary
Dr. Kunal Saha filed a consumer complaint after his wife died while being treated for toxic epidermal necrolysis at AMRI Hospital. The National Consumer Disputes Redressal Commission held the hospital and four doctors negligent but reduced the claim, deducted 10% for alleged contributory negligence and awarded only Rs.1.55 crore. The hospital, the doctors and the claimant appealed. The Supreme Court examined whether the claimant could seek enhanced compensation, whether additional claims filed by affidavit were permissible, whether the multiplier method could be used to compute loss of dependency, whether interest was due, how liability should be apportioned, and whether contributory negligence applied. The Court held that inflation must be accounted for, additional claims may be entertained, the multiplier method is inappropriate for medical negligence, interest at 6% from the filing date is payable, the hospital is vicariously liable for its doctors, and the claimant is not contributorily negligent. Consequently, the Court awarded Rs.6.08 crore with interest, directed the hospital to pay after deducting the doctors' shares, set aside the contributory‑negligence deduction, and partially allowed the doctors' appeals with specific compensation amounts.
Issues considered
- Whether the claimant is entitled to enhancement of compensation considering inflation and additional claims filed by affidavit.
- Whether the multiplier method under the Motor Vehicles Act can be applied to determine compensation in a medical negligence case under the Consumer Protection Act.
- Whether interest is payable on the compensation from the date of filing of the original complaint.
- How liability for the death should be apportioned between the hospital and the individual doctors.
- Whether the claimant contributed to the negligence of the doctors and hospital, justifying a deduction for contributory negligence.
Legislation cited
- Code of Civil Procedure, 1908s. Order II Rule 2
- Consumer Protection Act, 1986s. 12, s. 13, s. 24-A
- Consumer Protection Rules, 1987s. 14(c)
- Indian Penal Code, 1860s. 304-A
- Interest Act, 1978
- Motor Vehicles Act, 1988s. 163A, s. 166
Subjects
medical negligenceconsumer protectioncompensationmultiplier methodcontributory negligencevicarious liabilityinflationinterestloss of dependencyloss of consortium
Judgment
[2013] 12 S.C.R. 30
A DR. BALRAM PRASAD
v.
DR. KUNAL SAHA & ORS.
(Civil Appeal No. 2867 of 2012 etc.)
OCTOBER 24, 2013
B
[CHANDRAMAULI KR. PRASAD AND
V. GOPALA GOWDA, JJ.]
CONSUMER PROTECTION ACT, 1986:
c
Complaint - Medical negligence - Contributory
negligence - Death of an US f)ased patient in hospital in India
- National Commission holding the hospital and doctors liable
for medical negligence as also the husband of deceased
D liable for contributory negligence and, as such, deducting 10%
towards contributory negligence from compensation, awarding
Rs. 1,55,58,750 to claimant - Held: Appellant-Hospital is
vicariously liable for its doctors and is, therefore, directed to
pay total amount of compensation amounting to
E Rs. 6, 08, 00, 5501-, under various heads as detailed in
judgment, after deducting Rs.25 lakhs payable by appellants-
doctors - National Commission erred in holding that claimant
had contributed to negligence of appellant-doctors and
Hospital which resulted in death of his wife when Supreme
F Court had clearly absolved the claimant of such liability and
remanded the matter back to National Commission only for
determining the quantum of compensation - Finding of
National Commission in this regard is set aside and it is re-
emphasized that claimant did not contribute to negligence of
appellants-doctors and Hospital which resulted in death of his
G wife - Consumer Protection Rules, 1987 - r. ·r4(c).
Enhancement of compensation by complainant
subsequent to filing of claim petition - Claimant making
H 30
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 31
additional claims by way of affidavit before National A
Commission - Held: Claim for enhancement of compensation
by claimant is justified - Claimant is entitled for enhanced
compensation under certain items in additional claim
preferred before National Commission - Further, claim of
claimant having remained pending for 15 years, value of B
money has devalued to a great extent - Therefore, inflation
should be considered while deciding the quantum of
compensation - It is wholly untenable in law for the 'Hospital
and the doctors to plead that without there being an
amendment to the claim petition, the claimant is not entitled c
to seek the additional claims by way of affidavit, and that the
claim is ~arred by limitation -- Supreme Court has got the
power under Art. 136 of the Constitution and the duty to award
just and reasonable compensation to do complete justice to
the affected claimant - Code of Civil Procedure, 1908 - D
Constitution of India, 1950 - Art. 136.
Just and fair compensation - Held: Status, future
prospects and educational qualification of deceased must be
judged for deciding adequate, just and fair compensation -
Principle of just and reasonable compensation is based on E
'restitutio in integrum', i.e., 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 - Court is duty
bound and entitled to award just compensation' irrespective
of the fact whether any plea in that behalf was raised by F
claimant or not.
Future prospects of income - Held, 'Future loss. of
income' is different from 'future prospects of income' in terms
of potential of victim - Jn awarding just and reasonable G
compensation, future prospects of deceased must have been
reasonably judged by the National Commission.
Medical negligence - Compensation - Multiplier method
Held: Just, fair and reasonable compensation has to be
H
32 SUPREME COURT REPORTS [2013] 12 S.C.R.
A determined on the basis of the income of aeceased at the
time of death of the victim and other related claims on
account of the death - Therefore, the plea to apply tile
multiplier method in determination of compensation, does not
inspire confidence.
B
Medical negligence - Death of patient - Compensation
towards loss of income of deceased - Held: While
determining the income of deceased, evidence on record has
to be relied on - Further, 30% added towards future loss of
C income of deceased - 113 of total income is required to be
deducted towards personal expenditure of deceased -
Estimating the life expectancy of a healthy person as 70 years,
compensation to be awarded by multiplying the total loss of
income by 30.
D Medical negligence - Death of patient - Claim by
husband under the heads loss of income for missed work,
travel expenses and legal expenses - Held: Claim towards
missed work cannot be allowed as the same has no direct .
nexus with the negligence of appellant-doctors and hospital -
E - However, claim towards travel expenses and legal expenses,
partly allowed.
Other pecuniary damages - Medical ni9gligence - Death
of patient -- Expenses incurred by claimant towards treatment,
F travel and hotel expenses in this regard, allowed.
Non-pecuniary damages -Medical negligence - Death of
patient -- Compensation under the head )Jain and suffering
of patient during the course of treatment', allowed - Loss of
consortium, allowed -- However, under the head, 'emotional
G distress, pain and suffering for claimant himself', no
compensation can be awarded since this cl;3im bears no direct
link with negligence of hospital and doctors in treating
claimant's wife.
H Medical negligence - Interest on compensation amount
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 33
- Held: Not awarding interest by National Commission on A
compensation amount from the date of filing of original
complaint up to the date of payment is most unreasonable
and is opposed to provisions of Interest Act - Therefore, 6%
interest is awarded on the compensation finally determined
from date of the petition till payment - Interest Act, 1978. B
Medical Negligence -- Liability of nursing homes,
hospitals and doctors - Need of an appropriate legislation -
Held: Doctors, hospitals and nursing homes and other
connected establishments are required to be dealt with strictly C
if they are found to be negligent with patients and do not take
their responsibility seriously - Central and State Governments
may consider enacting laws wherever there is absence of one,
for effective functioning of private hospitals and nursing
homes.
D
The wife of the claimant-respondent no. 1(C.A. No.
692/2012) died while she was undergoing treatment in the .
appellant Hospital. Respondent no. 1 filed a claim
petition. Initially the claim was filed for Rs.77,07,45,000/-
and later the same was amended by claiming a further E
sum of Rs.20,00,00,000/-. After the case of Malay Kumar
Ganguly1 was remanded by Supreme Court, the National
Consumer Disputes Redressal Commission awarded the
compensation holding the hospital and the four doctors
guilty of medical negligence. The four doctors who had F
treated the deceased were directed to pay Rs.25,00,000/
- each besides the cost of litigation. The National
Commission deducted 10% of the compensation towards
the contributory negligence of the claimant holding that
he had interfered with the treatment, and awarded G
Rs.1,55,58,750/- as compensation payable to the claimant.
One of the doctors died· subsequently. The decision of
the National Commission was challenged in the instant
appeals by the Hospital, the doctors as also by the
claimant..·
H
34 SUPREME COURT REPORTS [20'13] 12 S.C.R.
A The rival submissions of the parties were but before
this Court and the following issues were to be considered
by the Court:
"1) Whether the claim of the claimant for
enhancement of compensation in his appeal is justified.
8
If it is so, for what compensation he is entitled to?
2) While making additional claim by way of affidavit
before the National Commission when amending the
claim petition, whether the claimant is entitled for
C 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
0
II Rule 2 of CPC as pleaded by the Hospital?
3(b) Whether the claimant is justified in claiming
additional amount for compensation under different
heads without following the procedure contemplated
E under the provisions of the Consumer Protection Act
and the Rules?
4) Whether the National Commission is justified in
adopting the multiplier method to determine the
F 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.
G 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
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 35
impugned judgment and the apportionment of the A
compensation amount fastened upon the doctors and the
hospital requires interference and whether the claimant
is liable for contributory negligence and deduction of
compensation under this head?
8) To what Order and Award the claimant is entitled B
to in these appeals?"
Disposing of the appeals, the Court
HELD:
c
Answer to Point nos. 1, 2 and 3
1.1 The claim for enhancement of compensation by
the claimant in his appeal is justified for the following
reasons: D
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. E
The value of money that was claimed in 1998 has been
devalued to a great extent. This Court has repeatedly
affirmed that inflation of money should be considered
while deciding the quantum of compensation. [para 81]
[102-E-G] F
Resh ma Kumari v. Madan Mohan 2009 (11) SCR 305
=(2009) 13 SCC 422 Govind Yadav Vs. New India Insurance
Co. Ltd. (2011) 1o sec 683, Ibrahim Vs. Raju (2011) 1o sec
634 - relied on.
G
1.2 Using the C.1.1. 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 !ljati9nal. H
36 SUPREME COURT REPORTS [2013] 12 S.C.R.
A Commission and before this Court is legally justifiable as
this Court is required to determine the just, fair and
reasonable compensation. Therefore, this Court is
required to consider the relevant aspect of the matter,
namely, that there has been steady inflation over the
B period of 15 years and that money has been devalued
greatly. Therefore, the decision of the National
Commission in confining the grant of compensation to
the original claim of Rs.77.7 crores preferred by the
claimant under different heads and awarding meager
C compensation in the impugned judgment, is wholly
unsustainable in law as the same is contrary to the legal
principles laid down by this Court. Therefore, the claim
for enhancement of compensation is allowed. [para 82)
[105-A-B, D-F]
D 2. As regards the claim for additional compensation
of about Rs.20 crores in addition to the initial claim, made
in 2011, the rejection of the additional claims by the
National Commission without consideration on the
assumption that the claims made by the claimant before
E it cannot be changed or modified without pleadings
under any condition is contrary to the decisions of this
Court. The finding of fact on the basis of which the
National Commission rejected the claim is based on
untenable reasons. The claim of the claimant for
F additional compensation is accepted as it is supported
by the decisions of this Court and the same is well
founded in law. It is the duty of Tribunals, Commissions
and Courts to consider relevant facts and evidence in
respect of facts and circumstances of each and every
G case for awarding just and reasonable compensation.
Therefore, this Court is 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. [para 83-84) [105-G;
H 106-F-G; 109-E-H; 110-A]
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 37
Nizam Institute of Medical Sciences Vs. Prasanth S. A
Dhananka & Ors. (2009) 9 SCR 313 = (2009) 6 SCC 1;
Oriental Insurance Company Ltd. Vs. Jashuben & Ors. 2008
(2) SCR 930 = (2008) 4 SCC 162; R.D. Hattangadi Vs. Pest
Control (India) Pvt. Ltd. & Ors. 1995 (1) SCR 75 = (1995) 1
SCC 551; Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee B
(2009) 13 SCR 1 = (2009) 9 SCC 221; Raj Rani & Ors Vs.
Oriental Insurance Company Ltd. & Ors. (2009) 7 SCR 1168
= (2009) 13 sec 654 - relied on.
3.1 Status, future prospects and educational
qualification of the deceased must be judged for deciding C
adequate, just and fair compensation. Further, it is an
undisputed fact that the victim was a graduate in
psychology from a highly prestigious school in New
York. She had a brilliant future. However, the National
Commiss;ion has calculated the entire compensation and D
prospective loss of income solely based on a pay receipt
showing a paltry income of only $30,000 per year which
she was earning <1s a graduate student. Therefore, the
National Commission has committed grave error in taking
that figure to determine compensation under the head of E
loss of olependency and the same is contrary to the
observath>ns made by this Court. [para 84-85] [110-F-H;
111-A]
R.K. Malik Vs. Kiran Pal 2009 (10) SCR 87= (2009) 14
SCC 1; A(\vind Kumar Mishra Vs. New India Assurance Co. F
2010 (11) SCR 857 = (2010) 10 sec 254; G.M.,Kerala SRTC
v. Susamma Thomas, (1994) 2 SCC 176 - relied on.
Govind Yadav Vs. New India Insurance Co. Ltd. (2011)
(10) SCC 6El3, Sri Ramachandrappa Vs. Manager, Royal
Sundaram Alliance Insurance 2011 (9) SCR 922 = (2011) 13 G
SCC 236, L.axman @ Laxman Mourya Vs. Divisional
Manager Vs. Oriental Insurance Co. Ltd. & Anr. (2011) 10
SCC 756; Kaitita Vs. Dipak & Ors. (2012) 8 SCC 604; Ibrahim
Vs. Raju. (20111) 10 SCC 634; Kavita Vs. Dipak & Ors. (2012)
8 SCC 604 - held inapplicable. H
38 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 3.2 'Future loss of income' is different from 'future
prospects of income' in terms of the potential of the
victim. In view of the law laid down by this Court, the
Commission, in awarding just and reasonable
compensation, ought to have taken into consideration
B the future prospects of the deceased even in the absence
of any expert opinion, and reasonably judged the same,
based on the income of the deceased and her future
potential in U.S.A. However, in the instant case, the
calculation of the future prospect of income of the
c deceased has also been scientifically done by ecoromic
expert. The claimant is entitled to enhanced
compensation under the heading of loss of future
prospects of income of the victim. [para 86, 88 and 89)
[111-G-H; 112-F-G; 113-C-D]
D Santosh Devi v. National Insurance Co. Ltd., (2012) 6
sec 421 - relied on.
3.3 With respect to the fundamental principle for
awarding just and reasonable compensation, flis Court
E in Malay Kumar Ganguly's case has categoricaly stated,
while remanding this case back to the National
Commission, that the principle for just and reasonable
compensation is based on 'restitutio in integr~m· that is,
the claimant must receive sum of money which would put
him in the same position as he would have beEll if he had
F
not sustained the wrong. The Court is duty-bound and
entitled to award "just compensation" irrespfctive of the
fact whether any plea in that behalf was raised by the
claimant or· not. [para 91-92) [116-B-DJ
'G Malay Kumar Ganguly Vs. Dr. Sukumir Mukherjee
(2009) 13 SCR 1 = (2009) 9 SCC 221 Ninganma and Anr.
Vs. United India Insurance Company Ltd. 200~ (8) SCR 683
=(2009) 13 sec 710 - relied on.
3.4 While remanding the matter back it the National
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 39
compensation for medical negligence, this Court has A
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 asserted
that when the original .claim petition was filed soon after s
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. [para 93]
[116-G-H; 117-A-B]
Oriental Insurance Company Ltd. Vs. Jashuben & Ors. C
=
(2008) 2 SCR 930 (2008) 4 SCC 1621; R.D. Hattangadi
Vs. Pest Control (India) Pvt. Ltd. & Ors. (1995) 1 SCR 75=
1995 (1) SCC 551; Raj Rani & Ors Vs. Oriental Insurance
Company Ltd. & Ors. (2009) 7 SCR 1168 = (2009) 13 SCC
654, Laxman @ Laxman Mourya Vs. Divisional Manager Vs. D
Oriental Insurance Co. Ltd. & Anr. (2011) 10 SCC 756 Ibrahim
Vs. Raju (2011) 10 SCC 634 - referred to.
3.5 This Court has got the power under Art. 136 of
the Constitution and the duty to award just and E
reasonable compensation to do complete justice to the
affected claimant. It is wholly untenable in law for the
Hospital and the doctors to plead that without there being
an amendment to the claim petition, the claimant is not
entitled to seek the additional claims by way of affidavit,
and that the claim is barred by limitation. The claimant is F
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. [para 93-94] [117-D-E; F-G] G
Answer to point no. 4
4.1 It would not be proper to use a strait jacket
multiplier method for determining the quantum of
H
40 SUPREME COURT REPORTS [201:3] 12 S.C.R.
A compensation in medical negligence claims. On the
contrary, this Court has chosen to deviate from the
standard multiplier method to avoid over-compensation
and also relied upon the quantum of multiplicand to
choose the appropriate multiplier. [para 97] [121-8-C]
B
4.2 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 her death. Accordingly, this Court holds
C that the plea to apply the multiplier method in
determination of compensation does not inspire
confidence and the same cannot be accepted. Point no.
4 is answered in favour of the claimant and against the
appellants-doctors and the Hospital. [para 97] [121-C-D,
D E-G]
Indian Medical Association Vs. V.P. Shantha & Ors. 1995
(5) Suppl. SCR 110 = (1995) 6 SCC 651; Spring Meadows
Hospital & Anr Vs. Harjo/ Ahluwalia (1998) 2 SCR 428 =
(1998) 4 SCC 39;, Charan Singh Vs. Healing Touch Hospital
E and Ors. 2000 (3) Suppl. SCR 337 = (2000) 7 sec 668,
Savita Garg Vs. Director National Heart Institute 2004 (5)
Suppl. SCR 359 = (2004) 8 SCC 56, State of Punjab Vs. Shiv
Ram & Ors. (2005) 2 Suppl. SCR 991 = (2005) 7 SCC 1;
Samira Kohli Vs. Dr. Prabha Manchanda &, Anr. (2008) 1
F SCR 719 = (2008) 2 SCC 1; P. G. Institute of Medical
Sciences Vs. Jaspal Singh & Ors. (2009) 9 SCR 889 = 2009
(7) SCC 330; Nizam Institute Vs. Prasant Dhananka Nizam
Institute of Medical Sciences Vs. Prasanth S. Dhananka &
Ors. (2009) 9 SCR 313 = (2009) 6 SCC 1; Malay Kumar
G Ganguly Vs. Sukumar Mukherjee & Ors. Malay Kumar
Gangu/y Vs. Dr. Sukumar Mukherjee (2009) 13 SCR 1=2009
(9) SCC 221; and V. Kishan Rao Vs. Nikhil Superspeciality
Hospital &Anr. (2010) 5 SCR 1 = (2010) 5 SCC 513 - referred
to.
H Sar/a Verma v. Delhi Transport Corporation, 2009 (5)
•
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 41
=
SCR 1098 (2009) 6 SCC 121 Reshma Kumari v. Madan A
Mohan 2009 (11) SCR 305 =
(2009) 13 SCC 422 - held
inapplicable.
Answer to Point no. 5
5.1 The claim of Rs.1,12,50,000/- made by the claimant 8
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. [para 99] [122-0-E]
5.2 As regards the claim under the head of 'Travel c
expenses over the past 12 years' at Rs.70,00,000/-, the
claimant did not produce any record of plane fare to
prove his travel expenditure from U.S.A. to India to attend
the proceedings. However, it is an undisputed fact that
the claimant is a citizen of U.S.A. and had been living D
there. It cannot be denied that he had to incur travel
expenses to come to India to attend the proceedings.
Therefore, on an average, this Court awards a
compensation of Rs.10 lakhs under the head of 'Travel
expenses over the past twelve years'. [para 99] [122-E-
F] E
5.3 The claim of the claimant that he has spent
Rs.1,65,00,000/- towards litigation over the past 12 years
while seeking compensation under this head, is on the
higher side, considering that the claimant who is a doctor
by profession, appeared in person before this Court to F
argue his case. However, he might have required
rigorous assistance of lawyers to prepare his case and
produce evidence in order. Therefore, a compensation of
Rs.1,50,000/- is granted under the head of 'legal
expenses'. Therefore, a total amount of Rs. 11,50,000/- is G
granted to the claimant under the head of 'cost of
litigation'. [para 99] [122-G-H; 123-A]
Answer to Point no. 6
6. The National Commission did not grant any H
•
42 SUPREME COURT REPORTS [2013] 12 S.C.R.
A interest for the long period of 15 years when the case
remained pending before the National Commission and
this Court. Not awarding interest by the National
Commission on the compensation amount from the date
of filing of the original complaint up to the date of
B payment of entire compensation by the appellant-doctors
and the Hospital to the claimant is most unreasonable
and the same is opposed to the provision of the Interest
Act, 1978. Therefore, interest is awarded on the
compensation determined by this Court at the rate of 6%
c from the date of complaint till the date of payment. [para
100 and 102) [123-C-D. 126-D-F]
Thazhathe Purayil Sarabi & Ors. Vs. Union of India &
=
Anr. 2009 (10) SCR 70 2009 (7) SCC 372 - relied on.
D Kemp and Kemp on Quantum of Damages (Special
Edn., 1986) - referred to.
Answer to point no. 7
7.1 The liability of the doctors in causing the death
E of claimant's wife has already been established by the
Court in Malay Kumar Ganguly's case. The decision in
the instant appeals is confined to determine the extent
to which the appellant-doctors and the Hospital are liable
to pay compensation awarded to the claimant for their
F acts of negligence in giving treatment to the deceased
wife of the claimant. [para 103) [127-A-C]
Liability. of the Hospital:
7.2 This Court in Malay Kumar Ganguly's has stated
G that the bulk of the proportion of compensation is to be
paid by the hospital and the rest by Dr. 'SM'. None of the
other doctors involved were imposed with cost though
'they were found guilty of medical negligence.[para 105]
[128-C-E]
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 43
7.3 It has to oe inferred that the appellant Hospital is A
vicariously liable for its doctors. The appellant-Hospital
is, therefore, directed to pay the total amount of
compensation with interest awarded in the appeal of the
claimant which remains due, after deducting the total
amount of Rs.25 lakhs payable by the appellants-doctors B
as per the Order passed by this Court while answering
the point no. 7. [para 109] [133-E-F]
Liability of Dr. 'SM'
7.4 It is imperative to mention that the quantum of C
compensation to be paid by the appellant-doctors and the
Hospital is not premised on their culpability u/s 304-A of
IPC but on the basis of their act of negligence as doctors
in treating the deceased wife of the claimant. The findings
of this Court regarding the liability of Dr. 'SM' in Malay D
Kumar Ganguly's case are, therefore, reiterated. [para 111]
[134-G-H; 135-A]
7.5 It is also important to highlight in this judgment
that the manner in which Dr. 'SM' attempted to shirk from E
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. He is a senior doctor who was in
charge of the treatment of the deceased, but he has shown F
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. Therefore, in the light of the facts and
circumstances, he is directed to pay a compensation of
Rs.10 lakhs to the claimant in lieu of his negligence and G
it is hoped that he upholds his integrity as a doctor in future
and would not be casual about his patient's lives. [para
112-113] [135-G-H; 136-A-H; 137-A-B]
H
•
44 SUPREME COURT REPORTS [2013] 12 S.C.R.
A Liability of Dr.SH:
7.6 Like appellant Dr. 'SM', appellant Dr. 'BH' is also
a senior doctor of high repute. However, according to the
findings of this Court in Malay Kumar Ganguly's case, he
had conducted himself with utmost callousness in giving
8
treatment to the claimant's wife which led to her
unfortunate demise. He too made every attempt to shift
the blame to the other doctors thereby tainting the
medical profession. This Court directs him to pay Rs.10
lakhs as compensation to the claimant in lieu of his
C negligence in treating the wife of the claimant. [para 115]
[139-A-C]
Liability of Dr 'BP':
0 7.8 This Court in Malay Kumar Ganguly abhorred the
shifting of blames by the senior doctor on the attending
physician appellant 'BP' even though the Court held him
guilty of negligence. He was a junior doctor and might
have acted on the direction of senior doctors who
E undertook the treatment of the claimant's wife in the
Hospital. However, the fact cannot be lost sight of that
the appellant 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
F Ganguly's case found him 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
G a compensation of Rs. 5 lakhs to the claimant. 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. [para 121 &
122] [142-8, E-H; 143-A]
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 45
Liability of the claimant A
7.9 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 had clearly absolved
the claimant of such liability and remanded the matter 8
back to the National Commission only for the purpose of
determining the quantum of compensation. Therefore, the
finding of the National Commission is set aside and the
finding of this Court is re-emphasized that the claimant
did not contribute to the negligence of the appellants- C
doctors and the Hospital which resulted in the death of
his wife. [para 127] [146-A-C]
Answer to point no. 8
8.1 This Court, while remanding the matter back to
the National Commission, has categorically stated that D
the pecuniary and non-pecuniary losses sustained by the
claimant and future losses 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 E
enhancement of compensation on the said heads as he
has incurred huge amount of expenses in the court of
more than 15 years long trial in the instant case. The
updated break-up of the total claim has not been
considered by the National Commission keeping in view
F
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, the claimant is entitled for enhanced
compensation as mentioned under different heads in this
judgment. The National Commission has also not taken G
into consideration the observations made by this Court
while remanding the case for determining the quantum
of compensation with regard to the status of treating
doctors and the Hospital. [para 128-129] [146-D-E, F-H;
147-A-B] H
46 SUPREME COURT REPORTS [2013] 12 S.C.R.
A Loss of income of the deceased:
8.2 The National Commission did not consider the
substantial and iegal evidence adduced on record by the
claimant regarding the income that was being earned by
his wife even though he has examined the U.S.A. based
B economic expert through video conferencing. 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
c his wife. Further, the expert witness testified that the
deceased could have earned much more in future given
her present prospect. But relying upon the principle laid
down by this Court, the estimate of the witness cannot
be taken to be the income of the deceased. However,
$30,000 per annum earned by the deceased during the
D 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,
E the evidence on record has to be relied on for the
purpose of determining the just, fair and reasonable
compensation in favour of the claimant. It would be just
and proper to take her earning at $40,000 per annum on
a regular job, and 30% should be added towards the
F future loss of income of the deceased. However, 1/3rd of
the total income is required to be deducted under the
head of personal expenditure of the deceased to arrive
at the multiplicand. Therefore, estimating the life
expectancy of a healthy person as 70 years,
compensation is to be awarded by multiplying the total
G loss of income by 30. [para 131-133] [148-8-C, 149-B-G;
150-A-B]
8.3 Further, the claimant has rightly pointed out that
the value of Indian currency has gone down since the
time when these legal proceedings have begun in this
H country. Therefore, it will be prudent to hold the current
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 47
value of Indian Rupee at a stable rate of Rs.55/- per 1$. A
Therefore, under the head of 'loss of income of the
deceased' the claimant is entitled to an amount of
Rs.5,72,00,550/-, as calculated in the judgment. [para 134)
[150-B-D]
B
Other Pecuniary Damages:
9.1 The expenditure made by the claimant during the
treatment of the deceased deserves to be duly
compensated for awarding reasonable amount. The
claimant has been able to produce the medical bill only C
to the extent of Rs.2.5 lakhs which he had paid to the
Hospital in 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. This Court still considers this D
amount as insufficient in the light of the fact that the
deceased was treated at the Hospital as an in-patient for
about a week; it would be 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. E
[para 135-136) [150-E-H; 151-A-B]
9.2 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, he has failed to produce any bills to prove his F
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. It
would be fit and proper to enhance the compensation by
Rs.50,000/- more considering that he had also incurred G
some unavoidable expenditure during his travel and stay
In Mumbai at the time of treatment of the deceased.
Therefore, under this head, a compensation of
Rs.1,50,000/- is awarded. However, with respect to the
claim made under the cost of chartered flight, a sum of H
48 SUPREME COURT REPORTS [2013] 12 S.C.R.
A Rs.5,00,0001-has already been awarded by the National
Commission which this Court would not interfere within
the absence of any contrary evidence. [para 137-138)
[157-C-F]
Non pecuniary damages:
8
10.2 It is true that the deceased had gone through
immense pain, mental agony and suffering in course of
her treatment which ultimately could not save her life.
However, more than the conventional amount set by this
c Court cannot be awarded on the basis of the economic
status of the deceased. Therefore, a lumpsum amount of
Rs.10 lakhs is awarded to the claimant under the head
of 'pain and suffering of the claimant's wife during the
course of treatment'. [para 145) [162-A-C]
D Arun Kumar Agarwal Vs. National Insurance Company
(2010) 9 SCC 218; and Rajesh & Ors. Vs. Rajvir Singh and
Ors. 2013 (6) SCALE 563; Nizam Institute of Medical
Sciences Vs. Prasanth S. Dhananka & Ors. 2009 (9) SCR 313
= (2009) 6 sec 1 • referred to.
E
Kemp and Kemp on Quantum of Damages - referred
to.
10.2 Regarding claim under the head of 'Emotional
distress, pain and suffering for the claimant' himself, no
F- compensation can be awarded in this regard since this
claim bears no direct link with the negligence caused by
the appellant-doctors and the Hospital in treating the
claimant's wife. [para 146) [162-C-D]
10.3 Further, the claimant is entitled to Rs.1,00,0001-
G under the head 'Loss of consortium'. [para 146) [162-F]
11. Therefore, a total amount of Rs.6,08,00,5501- is
awarded as compensation to the claimant by partly
modifying the award granted by the National Commission
H under different heads, as detailed in the judgment, with
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 49
6% interest per annum from the date of application till the A
date of payment. [para 147] [162-G-H]
12.1 The number of medical negligence cases
against doctors, Hospitals and Nursing Homes in the
consumer forum are increasing day by day. The doctors, 8
Hospitals, the Nursing Homes and other connected
establishments are to be dealt with strictly if they are
found to be negligent with the patients. The patients
irrespective of their social, cultural and economic
background are entitled to be treated with dignity which C
not only forms their fundamental right but also their
human right. It is, therefore, hoped that this decision acts
as a deterrent and a reminder to those doctors, Hospitals,
the Nursing Homes and other connected establishments
who do not take their responsibility seriously. [para 148-
149] [163-A-B, C-E] D
Paschim Banga Khet Mazdoor Samity Vs. State of West
Bengal (1996) 4 SCC 37 - referred to.
12.2 The central and the state governments may E
consider enacting laws wherever there is absence of one
for effective functioning of private Hospitals and Nursing
Homes. Since the conduct of doctors is already
regulated by the Medical Council of India, impartial and
strict scrutiny is expected from the body. Finally, the
institutions and individuals providing medical services to
F
the public at large are required to 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 on the part of the G
doctors and the Hospital. [para 150] [163-F-H]
New India Assurance Company Limited v. Yoges Devi,
(2012) 3 SCC 613; National Insurance Company Limited v.
=
Sinitha, 2011 (16 ) SCR 166 (2012) 2 sec 356 Sunil H
50 SUPREME COURT REPORTS (2013] 12 S.C.R.
A Sharma v. Bachitar Singh, 2011 (2 ) SCR 576 = (2011) 11
SCC 425; Pushpa v. Shakuntala, 2011 (1) SCR 334 = (2011)
2 SCC 240; Shyamwati Sharma v. Karam Singh, 2010 (8 )
SCR 417 = (2010) 12 SCC 378; Rani Gupta v. United India
Insurance Company Limited, 2009 (5) SCR 721= (2009) 13
B SCC 498; National Insurance Company Limited v. Meghji
Naran Soratiya, 2009 (3) SCR 875 = (2009) 12 SCC 796;
Oriental Insurance Company Limited v. Angad Kol 2009 (2)
SCR 695 = (2009) 11 SCC 356; Usha Rajkhowa v.
Paramount Industries, 2009 (2) SCR 520 = (2009) 14 SCC
C 71; Laxmi Devi v. Mohammad. Tabbar, 2008 (5) SCR 436 =
(2008) 12 SCC 165; Andhra Pradesh State Road Transport
Corporation v. M. Ramadevi, 2008 (2) SCR 22 = (2008) 3
SCC 379; State of Punjab v. Jalour Singh 2008 (1) SCR 922
=(2008) 2 SCC 660; Abati Bezbaruah v. Dy. Director General,
Geological Survey of India, 2003 (1) SCR 1229 = (2003) 3
0 SCC 148; Oriental Insurance Co. Ltd. v. Hansrajbhai V.
Koda/a, 2001 (2) SCR 999 = (2001) 5 SCC 175; Sar/a Dixit
v. Ba/want Yadav, 1996 (3) SCR 30 = (1996) 3 SCC 179;
National Insurance Co. Ltd. v. Swaran/ata Das, 1993 Supp
(2) SCC 743; United India Insurance Co. Ltd. & Others Vs.
E Patricia Jean Mahajan & Ors. 2002 (3) SCR 1176 = (2002) 6
SCC 281; Lata Wadhwa & Ors. Vs. State of Bihar (2001) 1
Suppl. SCR 578 = 2001 (8) SCC 197; M.S. Grewal & Anr.
Vs. Deep Chand Sood and Ors. 2001 (2) Suppl. SCR 156=
2001 (8) SCC 151; Municipal Corporation of Delhi Vs.
F Uphaar Tragedy Victims Association & Ors. 2011 (16) SCR
1 = 2011 (14) SCC 48'1; National Textile Corporation Ltd. Vs.
Nareshkumar Badrikumar Jagad 2012 (14) SCR 472 = (2011)
12 SCC 695, Maria Margarida Sequeria Fernandes Vs.
Erasmo Jack de Sequeria 2012 (3) SCR 841 :: (2012) 5 SCC
G 370, A. Shanmugam Vs. Ariya Kshatriya Rajaku/a Vamsathu
Madalaya Nandavana Paripalanai Sangam 2012 (4) SCR 74
=2012 (6) SCC 430; Nagappa Vs. Gurudaya/ Singh 2002
=
(4) Suppl. SCR 499 2003 (2) SCC 274; Sanjay Batham
Vs. Munna/a/ Parihar (2011) 10 SCC 655; Times Global
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 51
Broadcasting Co. Ltd. & Anr. Vs. Parshuram Babaram A
Sawant SLP (Civil) No(s) 2997912011 decided on 14-11-
2011; Raj Kumar Vs. Ajay Kumar & Anr. 2010 (13) SCR 179
= 2011 (1) SCC 343, Sri RamacQandrappa Vs. Manager,
Royal Sundaram Alliance Insurance 2011 (9) SCR 922 =
2011 (13) sec 236, Kavita Vs. Dipak & Ors. 2012 (8) sec B
604; Landgraf Vs. US/ Film Prods 511 U.S. 244, 1994
Destruction of Public and Private Properties Vs. State of A.P.
=
2009 (6) SCR 439 2009 (5) SCC 212; S.P. Aggarwal Vs.
Sanjay Gandhi P.G. Institute (FA No.47812005) decided on
31.3.2010 - cited.
c
Welch Vs. Epstein 536 S.E. 2d 408 2000; Dardinger Vs.
Anthem Blue Cross Shield et al 781 N.E. 2d, 2002 - cited.
Case Law Reference:
2009 (13) SCR 1 relied on para 4 D
2008 (2) SCR 930 relied on para 8
2002 (3) SCR 1176 cited para 8
(2012) 3 sec 613 cited para 13 E
2011 (16) SCR 166 cited para 13
2011 (2) SCR 576 cited para 13
2011 (1) SCR 334 cited para 13
F
2010 (8) SCR 417 cited para 13
2009 (5) SCR 721 cited para 13
2009 (3) SCR 875 cited para 13
G
2009 (2) SCR 695 cited para 13
2009 (2) SCR 520 cited para 13
2008 (5) SCR 436 cited para 13
H
52 SUPREME COURT REPORTS [2013] 12"8.C.R.
A 2008 (2) SCR 22 cited para 13
2008 (1) SCR 922 cited para 13
2003 (1) SCR 1229 cited para 13
2001 (2) SCR 999 cited para 13
8
1996 (3) SCR 30 cited para 13
1993 (2) Suppl. sec 743 cited para 13
2009 (9) SCR 313 relied on para 14
c
2009 (10) SCR 87 relied on para 14
1994) 2 sec 116 relied on para 15
2011 11 O) sec 634 referred to para 21
D 2001 (1) Suppl. SCR 578 cited para 25
2001 (2) Suppl. SCR 156 cited para 25
2011 (16) SCR 1 cited para 25
E 2012 (14) SCR 472 cited para 28
2012 (3) SCR 841 cited para 28
2012 (4) SCR 74 cited para 28
(2011) 10 sec 655 cited para 34
F
SLP (Civil) No(s) 29979/2011
decided on 14-11-2011 cited para 56
2009 (8) SCR 683 relied on para 57
G
1995 (1) SCR 75 relied on para 57
2009 (7) SCR 1168 relied on para 57
2011 (1 O) sec 756 held inapplicable para 57
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 53
2010 (11) SCR 857 relied on para 58 A
2010 (13) SCR 179 cited para 58
2011 (1 O) sec 683 held inapplicable para 58
2011 (9) SCR 922 held inapplicable para 58 B
2012 (8) sec 604 held inapplicable para 58
2004 (5) Suppl. SCR 359 referred tO. Para 62
2009 (10) SCR 70 relied on para 72
c
511 U.S. 244, 1994 cited para 73
2009 (6) SCR 439 cited para 73
536 S.E. 2d 408 2000 cited para 73
781 N.E. 2d, 2002 cited para 74 D
(2012) 6 sec 421 relied on para 88
1995 (5) Suppl. SCR 110 referred to para 95
1998 (2) SCR 428 referred to para 95 E
2000 (3) Suppl. SCR 337 referred to para 95
2004 (5 ) Suppl. SCR 359 referred to para 95
2005 (2) Suppl. SCR 991 referred to para 95
F
2008 (1) SCR 719 referred to para 95
2009 (9) SCR 889 referred to para 95
2010 (5) SCR 1 referred to para 95
G
(1998) 4 sec 39 referred to para 95
2009 (5) SCR 1098 held inapplicable para 97
2009 (11) SCR 305 relied on para 97
H
54 SUPREME COURT REPORTS (2013] 12 S.C.R:
A (2010) 9 sec 218 referred to para 139
2013 (6) SCALE 563 referred to para 141
(1996) 4 sec 37 referred to para 148
B CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2867 of 2012.
From the Judgment and order dated 21.10.2011 of the
National Consumer Disputes Redressal Commission, New
Delhi in W.P. No. 240 of 1999.
c WITH
Civil Appeal No. 692 of 2012.
Civil Appeal No. 2866 of 2012.
D Civil Appeal No. 731 of 20·12.
Civil Appeal No. 858 of 20·12.
Vijay Hansaria, Ramji Srinivasan, Rana Mukherjee, Daisy
E Hannah, Shekhar Kumar, Aseem Mehrotra, Asha Nayar, Amit
Agarwal, Abhijat P. Medh, Sanjoy Kumar Ghosh, Ranjan
Mukherjee, Rupali S. Ghosh, B. Sridhar, T.V. George, Rakesh
Taneja, Maurya Sarkar, Dushyant Kumar for the appearing
parties.
F Dr. Kuna! Saha (in-Person).
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. The Civil Appeal Nos.2867,
731 and 858 of 2012 are filed by the appellant-doctors, Civil
G Appeal No. 692 of 2012 is filed by the appellant-AMR! Hospital
and Civil Appeal No. 2866 of 2012 is filed by the claimant-
appellant - Dr. Kuna! Saha (hereinafter referred to as 'the
claimant'), questioning the correctness of the impugned
judgment and order dated 21.10.2011 passed by the National
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 55
[V. GOPALA GOWDA, J.]
A
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
8
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-AMR! Hospital is concerned, it has
also questioned the quantum of compensation awarded and
has prayed to reduce the same by awarding just and C
reasonable compensation by modifying the judgment by
allowing its appeal.
So far as the claimant is concerned, he is aggrieved by
the said judgment and the compensation awarded which, D
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'). E
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 F
pass common judgment and award.
4. Brief necessary and relevant facts of the case are stated
hereunder:
G
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 H
56 SUPREME COURT REPORTS [2013] 12 S.C.R.
A Mukherjee' 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
B 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
C the manner in which liability was apportioned amongst each of
them. While the claimant was aggrieved by the inadequate
amount of compensation, thei appellant-doctors and the Hospital
found the amount to be exc,essive and too harsh. They further
claimed that the proportion of liability ascertained on each of •
them is unreasonable. Since, the appellant-Hospital and the
D 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:
E
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
F states that the deceased was a Post-Graduate student and she
had submitted her thesis. The only certificate produced by the
claimant shows that she was just a graduate in Arts (English).
Further, it is urged by the learned counsel that the document
produced by the claimant - a computer generated sheet, does
G 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
H 1. (2009) 9 sec 221.
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 57
[V. GOPALA GOWDA, J.]
as to on what account the said payment was received by the A
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 8
regard to the income of the deceased and further he has not
explained why just a single document discloses the payment
made sometime in the month of June 1988 in support of the
income of the deceased when admittedly, the couple came to
India in the month of March-April, 1998. Therefore, the learned C
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 D
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 E
the National Commission.
7. It is further contended by the learned counsel that the
assertion of the claimant in the petition and in his evidence
before the National Commission that the income of the F
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 G
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.
H
58 SUPREME COURT REPORTS (2013] 12 S.C.R.
A 8. It is further submitted that even if it is assumed that the
annual income of the deceased was $30,000 per annum, apart
from deduction on account of tax, it is also essential for the
National Commission to ascertain the personal living expenses
of the deceased which was required to be deducted out of the
B 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 acc1)unt of style and standard of living
c 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 & Ors2.
It is further contended by the learned counsel for the
D appellant-doctors and the Hospital that no yardstick i:s available
about the expenditure of the deceased in the U.S.A. The
claimant has not adduced any evidence in this regard. The
evidence given by the so-called expert, Prof. John F. Burke Jr.
also does not say anything on this score.
E
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
F 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.
G 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
2. c2oos) 4 sec 1s2.
H 3. c2002) s sec 2a 1.
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 59
[V. GOPALA GOWDA, J.]
AMRI Hospital-appellanfs witness Mr. Satyabrata Upadhyay A
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 8
claimant now claimed enhancement of compensatJon 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 C
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) D
and for fixing the matter for a final hearing as soon as possible
on a firm and fixed date as the claimant himself want to argue
his petition as was done before this Court, as he being the
permanent resident of U.S.A.
E
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 F
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 G
substantiate his claim through video conferencing at the
expense of the appellant-doctors and the Hospital. The National
Commission vide order dated 6.9.2010 dismissed the
application of the claimant for examining foreign experts.
H
60 SUPREME COURT REPORTS [2013) 12 S.C.R.
A Against this order, the claimant preferred SLP (C) tJo.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
B 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
c stated that if the deceased would have been employed through
the age of 70, her net income could have been $3, 750,213.00.
In addition, the loss of service from a domestic prospective was
an additional amount of $1,258,421.00. The said witness was
cross examined by the learned counsel for the doctors and
D AMRI Hospital. The learned Counsel for the appellant-doctors
placed reliance upon the following questions and answers
elicited from the above Economics Expert witness, which are
extracted hereunder:-
"Q.16. Can you tell me what was the wages of Anuradha
E in 1997?
A.16. May I check my file (permitted). I don't know.
Q.17. Are you aware whether Anuradha was an income
tax payee or not?
F
A.17. Anu and her husband were filing joint return.
Q.18. Did Anu have any individual income?
A.18. I don't know.
G
Q.19. Did Kunal Saha provide you the earnin!~ statement
of Anuradha Saha, wherein her gross monthly pay was
shown as$ 1060 as on 16.1.1998?
H A.19. I don't believe that I have that information.
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 61
[V. GOPALA GOWDA, J.]
.A
Q.21. What documents have you taken into consideration
of Anu's income for giving your opinion?
A.21. None.
B
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 C
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.
D
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 lime income of the deceased to be 5 million
and 125 thousand US dollars without any supporting material. E
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. F
12. The learned counsel for the appellant-doctors also
submitted that the earning statement issued by Catholic Horne
Bureau stating the income of the deceased at $1060. 72 for the
period ending 15th January, 1998 cannot be relied upon for the
following reasons:- G
{a) The earning statement was not proved in
accordance with Jaw since only the affidavit of
claimant was exhibited and not the documents
H
62 SUPREME COURT REPORTS [2013] 12 S.C.R.
A before Justice L.okeshwar 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.
B
(c) Letter of appointment has not been annexed.
(d) Federal Tax record has not been produced. The
Economics expert has stated that Anuradha and
c the claimant were filing joint tax return.
(e) It does not show weekly income of the deceased
as has been trieated by NCDRC.
(f) Nature of appointment, even if presumed, has not
D 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
E 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
F 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
G appellant-doctors submitted that the National Commission has
erred in awarding Rs.10,00,000/- towards loss of consortium.
This Court in various following decisions has awarded Rs.
5,000/- to Rs.25,000/- on the aforesaid account:-
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 63
[V. GOPALA GOWDA, J.]
CASE LAW AMOUNT A
1. Santosh Devi v. National Insurance Co. Ltd., Rs.10,000
c2012) 6 sec 421
2. New India Assurance Company Limited v. Rs.10,000
Yogesh Devi, (2012) 3 SCC 613 8
3. National Insurance Company Limited v. Rs.5,000
Sinitha, (2012) 2 sec 356 '
4. Sun ii Sharma v. Bachitar Singh, (2011) Rs.25,000
11 sec 425
c
5. Pushpa v. Shakuntala, (2011) 2 SCC 240 Rs.10,000
6. Arun Kumar Agrawal v. National Insurance Rs.15,000
Company Limited, (2010) 9 SCC 218
7. Shyamwati Sharma v. Karam Singh, (2010) Rs.5,000 D
12 sec 378
8. Reshma Kumari v. Madan Mohan, (2009) Rs.15,000
13 SCC 422 in Sarla Dixit v. Balwant Yadav
9. Raj Rani v. Oriental Insurance Company Rs.7,000
Limited, (2009) 13 sec 654 E
10. Sarla Verma v. Delhi Transport Rs.10,000
Corporation, (2009) 6 SCC 121
11. Rani Gupta v. United India Insurance Rs.25,000
Company Limited, (2009) 13 SCC 498 F
12. National Insurance Company Limited v. Rs.10,000
Meghji Naran Soratiya, (2009) 12 SCC 796
13. Oriental Insurance Company Limited v. Rs.10,000
Angad Kol, (2009) 11 sec 356 G
14. Usha Rajkhowa v. Paramount Industries, Rs.5,000
(2009) 14 sec 11
15. Laxmi Devi v. Mohammad. Tabbar, (2008) Rs.5,000
12 sec 165 H
64 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 16. Andhra Pradesh State Road Transport Rs.5,000
Corporation v. M. Ramadevi, (2008) 3 SCC 37~
17. State of Punjab v. Jalour Singh, (2008) 2 Rs.5,000
sec 660
B 18. Abati Bezbaruah v. Dy. Director General, Rs.3,000
Geological Survey of India, (2003) 3 SCC 148
19. Oriental Insurance Co. Ltd. v. Hansrajbhai Rs.5,000
v. Kodala, (2001) 5 sec 175
c 20. Sarla Dixit v. Balwant Yadav, (1996) 3 Rs.15,000
sec 179
21. G.M .. Kerala SRTC v. Susamma Thomas, Rs.15,000
(1994) 2 sec 176
D
22. National Insurance Co. Ltd. v. Swaranlata Rs.7,500
Das, 1993 Supp (2) sec 743
14. Further, the senior counsel and other counsel for the
appellant-doctors contended that the case of Nizam Institute
E of Medical Sciences Vs. Prasanth S. Dhananka & Ors. 4 relied
upon by the claimant is misconceived as that case relates to
the continuous pain and suffering of the victim, who had lost
control over his lower limb and required continuous
physiotherapy for rest of his life. It was not the amount for loss
F 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
G cases:
15. It is further contended by the learned co Jnsel for the
1
appellant-doctors that the compensation awarded by the
National Commission should be meant to restore the claimant
H 14. (2009) 6 sec 1.
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 65
[V. GOPALA GOWDA, J.]
to the pre-accidental position and in judging whether the· A
compensation is adequate, reasonable and just, monetary
compensation is required to be arrived at on the principle of
restitutio-in-integram. The National Commission while
calculating the just monetary compensation, the earnings of the
claimant who himself is a doctor, is also required to be taken B
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 c
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 D
Company Ltd. Vs. Jashuben & Ors. (supra) and R.K. Malik
Vs. Kiran Pal°, where this Court has not directed assessment
of compensation according to American standard. Therefore,
the contention of the claimant that compensation has to be
assessed according to American standard is wholly untenable E
in law and the same is liable to be rejected.
16. Further, it is contended by the senior counsel and other
counsel for the appellant-doctors and Hospital that the reliance
placed by the claimant upon the decision of this Court reported
in Patricia Jean Mahajan's case (supra) clearly shows that the F
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 G
method as claimed by the claimant.
17. Further, the word 'reasonable' implies that the
appellant-doctors and AMRI Hospital cannot be saddled with
5. c2009) 14 sec 1. H
66 SUPREME COURT REPORTS [2013] 12 S.C.R.
A an exorbitant amount as damages - which cannot either be
treated as an obvious oir natural though not foreseeable
consequence of negligence.
18. Further, the learned senior counsel has plar..ed reliance
B 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-
C 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
D liability ought to be restricted to those damages and expenses
incurred as a direct consequence of the facts complained of,
while setting apart the amount to be awarded under the head
'loss of dependency'. The! relevant portion of th1a aforesaid
judgment of this Court in the Nizam's Institute of Medical
E 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 b1~ struck, it would be difficult to
satisfy all the parties concerned." (paragraph 88)
F
19. It is further contended by the learned senior counsel
and other counsel for the appellant-doctors that the claimant
failed to produce any document by taking recourse to Order XLI
Rule 27 of Code of Civil Procedure and Order LVll of Supreme
G 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
H Anuradha Saha cannot be attributed as the consequence due
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 67
[V. GOPALA GOWDA, J.]
to medical negligence. Therefore, the enhancement of A
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
8
compensation:
20. It is contended by the senior counsel and other counsel
for the appellants that the multiplier method has enabled the
courts to bring about consistency in determining the loss of
dependency more particularly, in cases of death of victims of C
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.
D
21. In Sar/a Verma's case (supra), this Court, at
Paragraphs 13 to 19, held that the multiplier method is the
proper and best method for computation of compensation as
there will be uniformity and consistency in the decisions. The
said view has been reaffirmed by this Court in Reshma Kumari E
& 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. F
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. G
23. It is further contended by the senior counsel and other
counsel for the appellant-doctors that in Susamma Thomas
(supra) this Court has observed that "in fatal accident cases,
the measure of damage is the pecuniary loss suffered and is H
68 SUPREME COURT REPORTS [2013) 12 S.C.R.
A 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
B 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
C claimant, in paragraph No. 16 of the aforesaid judgment this
Hon'ble Court observed as follows:
"16. It is necessary to reiterate that the multiplier method
is logically sound and legally well-established. There are
some cases which have proceeded to determine the
D 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 .... "
E
24. In Sar/a 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
F 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.
G 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,
H
and fairness and uniformity in the decision-making
-•
•
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 69
[V. GOPALA GOWDA, J.]
process and the decisions. While it may not be possible A
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 uniformitv. and not divergence and B
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 C
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 Bihar6 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 D
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 E
method was once again followed where death of 59 persons
took place in a cinema hall and 109 persons suffered injury.
26. Therefore, it is contended by the senior counsel and
other counsel for the appellant-doctors that multiplier method
should be used while awarding compensation to the victims
F
because it leads to consistency and avoids arbitrariness.
On contributory negligence by the claimant
27. The learned senior counsel and other counsel for the G
appellant-doctors submitted that the National Commission in
s. c2001i s sec 197.
1. c2001i s sec 151.
8. (2011)14SCC481. H
70 SUPREME COURT REPORTS [2013) 12 S.C.R.
A 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
B counsel and other counsel for the appellants, the National
Commission erred in not adhering to the tenior 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
c 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.
D 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
E claim of the claimant in his appeal is without any amendment
to the pleadings and therefore, is not maintainable in law. The
claimant in his written submission filed during the course of
arguments in July, 2011 before the National Commission, has
made his claim of Rs.97,56,07,000/- which the National
F 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 •
G of the National Commission, the learned <:ounsel 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 •
••
H
••
•
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 71
[V. GOPALA GOWDA, J.]
though the claimant had filed an application on 9.11.2009 in A
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. B
Nareshkumar Badrikumar Jagad9, 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 C
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 D
question."
The said view of this Court was reiterated in A. Shanmugam
Vs. Ariya Kshatriya Rajaku/a Vamsathu Mada/aya
Nandavana Paripa/anai Sangam 11 ,
E
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 F
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 G
limitation of 2 years for filing of complaint under Section 24-A
e. (2011) 12 .sec 695.
10. (2012) s sec 310.
11.(2012) a sec 430. H
72 SUPREME COURT REPORTS [2013) 12 S.C.R.
A of the Act and there is no limitation prescribed in the Motor
Vehicles Act, 1988.
30. Sections 12 and 13 of the Consumer Protection Act,
1986 provide as to how the complaint has to be made and the
procedure to be followed by the claimant for filing the complaint.
8
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
C or deceased's legal representative does not have to specify the
amount claimed as held by this Court in the case of Nagappa
Vs. Gurudaya/ Singh 12 •
31. Under Section 158(6) of the Motor Vehicles Act, 1988,
D the report forwarded to the Claims Tribunal can be treated as
an application for compensation even though no claim is made
or specified amount is claimed whereas under the Consumer
Protection Act, a written complaint specifying the claim to be
preferred before the appropriate forum within the period of
E 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.
F
33. In this regard, the learned senior counsel and other
counsel for the appellant-doctors and Hospital placed reliance
upon the judgment of this Court in the case of Ibrahim Vs.
Raju 13 and submitted that the said case does not apply to the
G fact situation for two reasons, namely, it was a case under the
Motor Vehicles Aict, 1988, whereas this case involves the
Consumer Protection Act. Secondly, this Court in the previous
case, enhanced the compensation observing that due to
12. (2003) 2 sec 274.
H 13. (2011) 10 sec 634.
--
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 73
[V. GOPALA GOWDA, J.]
financial incapacity the claimant could not avail the services of A
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.
B
34. Further, the learned counsel for the appellant-doctors
placed reliance upon the judgment of this Court in the case of
Sanjay Batham Vs. Munnala/ Parihar14, which is a case under
the Motor Vehicles Act, 1988. This Court enhanced the
compensation following the judgment in Nagappa's case C
(supra). The learned counsel also placed reliance upon the
judgment of this Court in Nizam lnstitute'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 lnstitute's case is not a case for the proposition
that a claimant can be awarded compensation beyond what is D
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 E
submission are distinguishable from the present case and in
none of these cases upon which reliance has been placed by
the claimant, this Court has awarded compensation beyond
what is claimed. Therefore, the reliance placed upon the
aforesaid judgments by the claimant does not support his claim F
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 G
negligence :
35. This Court vide its judgment in Malay Kumar
Ganguly's case (supra) has held that:
14. (2011) 10 sec sss. H
74 SUPREME COURT REPORTS [2013] 12 S.C.R.
A "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,
B 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
c the patient."
The two words "may" and "cumulative incidence" in the
abovesaid observations of this Court is relevant for determining
the quantification of compensation. It is submitted that this Court
is also not sure that the negligence solely has contributed to
D 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 claimanfs wife. The incidences leading to or contributing
to the death of the deceased are:
E (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.
F
(iii) No direct treatment or treatment protocol for TEN.
(iv) Negligence of many in treating de!ceased Anuradha.
(v) Contributory negligence on the part of Dr.Kuna!
G 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
H cardiac arrest. Therefore, the National Commission ought to
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 75
[V. GOPALA GOWDA, J.]
have considered different incidences as aforesaid leading to A
the death of the claimanfs 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
8
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-AMR! Hospital that the c
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 D
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 E
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 F
the appellants-doctors Dr. Bairam Prasad in C.A. No.2867/
2012, Dr. Sukumar Mukherjee in C.A. No.858/2012 and Dr.
Baidyanath Haldar in C.A. 731/2012 with regard to percentage,
on the basis of costs imposed in paragraph 196 of the
judgment in the earlier round of litigation is without any basis G
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 H
76 SUPREME COURT REPORTS [2.013] 12 S.C.R.
A 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 th1e National Commission, therefore, he
B cannot now contend contrary to the same in the appeal before
this Court.
CIVIL APPEAL NO. 858 OF 2012
39. It is the case of the appellant- Dr. Sul<umar Mukherjee
C that the National Commission while apportioning the liability of
the appellant, has wrongly observed that :
"Supreme Court has primarily fourid Dr.Sukumar
Mukherjee and AMRI hospital guilty of negligence and
D deficient in service on several counts. Therefore, going by
the said findings and observations of S:Jpreme Court we
consider it appropriate to apportion the liability of Dr.
Sukumar Muk.herjee and AMRI hospital in equal
proportion, i.e. each should pay 25% i.e. 38,90,000/- of the
E 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 Gangu/y's case (supra} will show that at no place did
the Hon'ble Supreme Court made any observation or recorded
F any finding that the appellant Dr. Mukherjee and the Hospital
are primarily responsible. On the contrary, under the heading
"Cumulative Effect of Negligence" under paras 186 and 187,
this Hon'ble Court has held as under:
G "186. A patient would feel the deficiency in service having
regard to the cumulative effect of iegligence 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
H case of this nature, the court must deal with the
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 77
[V. GOPALA GOWDA, J.]
consequences the patient faced keeping in view the A
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.
B
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 C
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 D
was suffering from rash/feverfrom 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 E
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 F
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 G
on the information furnished and the status and condition of the
patient, she was diagnosed to be suffering from allergic
vasculitis and the appellant-Dr.Mukherjee commenced treating
the patient with Depomedrol, which is a drug belonging to the
family of steroids. The appellant-Dr.Mukherjee recommended H
78 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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-
s 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
c skin diseases like multiple sclerosis with a dose of 177.7 mg
daily for 1 week and 71 mg on every other day for one month.
42. On 11.5.1998 when the appellant-Dr.Mukherjee
examined Anuradha Saha at the AMRI Hospital prior to his
departure to U.S.A., he prescribed a whole line of treatment
D 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
E physician of AMRI Dr. Bairam Prasad, MD to organize all these
including referral to all specialists. The appe,llant-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 immune
F 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.
G
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 treatmemt 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
H concealed by the •claimant. To this aspect, even this Hon'ble
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 79
[V. GOPALA GOWDA, J.]
Court has also recorded a finding in the case referred to supra A
that the patient was also examined by two consultant
dermatologists Dr.A.K. Ghosal and Dr. S. Ghosh who
diagnosed the disease to be a case of vasculitis.
43. It is further submitted by the !earned counsel for the B
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 C
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 D
this Court that the doctors of the AMRI Hospital had contributed ·
to septicemia. The mere finding that the patient was not properly
dressed at AMRI Hospital where she stayed for only 6 days of
early evocation of the disease do not justify contribution to
septicemic shock of the deceased. Further, there is no record E
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 F
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 G
learned counsel for the appellant- Dr. Sukumar Mukherjee that
the fact that the disease TEN requires higher degree of care
since there is no definite treatment, such high degree of care
will be relatable to comfort but not definitely to septicemia that
occurred at Breach Candy Hospital. Hence, negligence has to H
80 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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 couns1~I for appellant-Dr.
B 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
C Hospital records show that the patient was haemo-dynamically
stable. Even Dr.Udwadia of Breach Candy Hospital on
17 .5.1998 doubted with regard to the exact disease and
recorded the disease as TEN or Steven Johnson Syndrom.
D 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.
E
Civil Appeal No. 2867 of 2012
45. It is the case of Dr. Bairam 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
F 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 anythin~g different but re-
assured the patient that she would be fine in a few weeks' time
and most confidently and strongly advised her to continue with
G the said injection for at least four more days. This was also
recorded in the aforesaid last prescription of the said date.
F,urther, 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@ Elaidyanath Haldar,
H the appellant in Civil Appeal No. 731 of 2012, and the physician
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 81
[V. GOPALA GOWDA, J.)
Dr. Abani Roy Chowdhury in his last prescription on the last visit A
of the deceased. Most culpably, he did not even prescribe l.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 B
12.05.1998 with the positive knowledge and treatment
background that the patient by then already had clear intake of
880 mg of Depomedrol injection as would be evident from
AMRl's treatment sheet dated 11.05.1998.
46. It is further stated by the claimant in the complaint
c
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:
D
"44. That Dr. Bairam 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 AMR! is not E
an ideal place for treatment of TEN patient; on the
converse, he was full of praise for AMR! as an ideal place
for the treatment of TEN patients knowing nothing how a
TEN patient should be treated."
47. The claimant has also placed strong reliance upon the F
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 AMR! Hospital, he G
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
AMR! record." H
82 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 48. Though, the appellant-Dr. Bairam Prasad was accused
in the criminal complaint lodged by the claimant he was neither
proceeded against as an accused in the cril'1inal 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
B the National Commission as well as before this Court in
unequivocal terms that the bulk of the compensation awarded
would have to be in the proportion of 80% on the AMRI Hospital,
15% on Dr. Sukumar Mukherjee and balance between the rest.
Despite the aforesaid submission before the National
c 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
D
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
E
Dr. Abani Roy Chowdhury Compensation: 25,00,000
(since deceased)
(claim foregone)
F AMRI Hospital Compensation: Rs.38,90,000
Cost of litigation: Rs.1,50,000
Dr. Bairam Pra!;ad Compensation: Rs.25,93,000
Cost of litigation: Rs.1,00,000
G 49. The appellant-Dr. Bairam Prasad in Civil Appeal
No.2867/2012 contends that he was the junior most attending
physician attached to the Hospital, he was not called upon to
prescribe medicines but was only required to continue and/or
monitor the medicines prescribed by the specialist in the
H discipline. But realizing the seriousness of the patient, the
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 83
[V. GOPALA GOWDA, J.]
appellant had himself referred the patient to the three A
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 B
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 c
discharged with reasonable and due care expected of an
attending physician in the given facts and circumstances of the
instant case.
50. In the light of the above facts and circumstances, the
contention of the claimant that the death of the claimant's wife D
was neither directly nor contributorily relatable to the alleged
negligent act of the appellant- Dr. Bairam 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 E
on the same footing as that of Dr. Baidyanath Haldar, who was
a senior doctor in-charge of the managemenUtreatment of the
deceased.
51. The learned senior counsel for the appellant-Dr. F
Bairam Prasad further urged that the National Commission has
also erred in not taking into account the submissions of the
claimant that 80% of the damages ought to have been levied
on the Hospital, 15% on Dr. Sukumar Mukherjee and the
balance between the rest. It is urged that the proportion of the G-
compensation amount awarded on the appellant is excessive
and unreasonable which is beyond the case of the claimant
himself.
H
84 SUPREME COURT REPORTS [2013) 12 S.C.R.
A CIVIL APPEAL NO. 731 OF 2012
52. The learned c:ounsel 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
8
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
C disease and no more in active practice. Therefore, he
requested to set aside the liability of compensation awarded
against him by allowing his appeal.
All the doctors and the Hospital urged more or less the
D 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
E 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
F question before the National Commission and this Court. The
National Commission eventually awarded compensation of only
Rs.1.3 crores after reducing from the total award of Rs.1.72
crores on the ground that the claimant had "interfered" in the
treatment of his wife and since one of the guilty doctors had
G 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
H the pecuniary, non-pecuniary and special damages
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 85
[V. GOPALA GOWDA, J.]
as extracted hereinbefore. A
b) The National Commission has made blatant errors
in mathematical calculation while awarding
compensation using the multiplier method which is
not the correct approach.
B
c) The National Commission has erroneously used the
multiplier method to determine compensation for
the first time in Indian legal history for the wrongful
death caused by medical negligence of the
appellant-doctors and the AMRI Hospital. c
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
D
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. E
f) The National Commission has failed to consider
the devaluation of money as a result of "inflation"
for awarding higher compensation that was sought
for in 1998. F
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. G
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 H
86 SUPREME COURT REPORTS [2013) 12 S.C.R.
A been noticed by the National Commission that it is wholly
untenable in law in view of the Constitution Bench decision of
this Court in the case' of Indian Medical Association Vs. V.P.
Shantha & Ors. 15, wherein this Court has categorically
disagreed on this specific point in another case wherein
B "medical negligence" was involved. In the said decision, it has
been held at paragraph 53 that to deny a le!litimate 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
C in Nizam lnstitute'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. Furthe1r, the claimant
contends that this Court has recently refused to quash the
defamation claim to the tune of Rs.100 crores in Times Global
D Broadcasting Co. Ltd. & Anr. Vs. Parshuram Babaram Sawant
[SLP (Civil) No(s) 2997912011 decided cin 14-11-2011], .
suggesting that in appropriate cases, seemingly large amount
of compensation is justified.
E 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
F 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
G Commission has rejected the entire claim on the sole ground
that since the additional claim was not pleaded earlier, none
of the claims made by the claimant can be considered.
Therefore, the National Commission was wrong in rejecting
H 15. (1995) e sec 651
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 87
[V. GOPALA GOWDA, J.]
different claims without any consideration and in assuming that A
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:- B
Ningamma and Anr. Vs. United India Insurance
Company Ltd. 16, Malay Kumar Ganguly's case referred to
supra, Nizam lnstitute'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. C
Oriental Insurance Company Ltd. & Ors. 18 , Laxman @
Laxman Mourya Vs. Divisional Manager Vs. Oriental
Insurance Co. Ltd. & Anr. ' 9 and Ibrahim Vs. Raju & Ors.
(supra).
D
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 E
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 F
30-32) this Court has also expressed similar view that status,
future prospects and educational qualification must be judged
for deciding adequate compensation. It is contended by the
claimant that it is an undisputed fact that the claimant's wife
was a recent graduate in Psychology from a highly prestigious G
Ivy League School in New York who had a brilliant future ahead
16. c2009) 13 sec 710.
17. (1995) 1 sec 551.
1a. (2009) 13 sec 654.
19. c2011) 10 sec 756. H
88 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B Commission, especially, in view of the observations made by
this Court in the cas'e 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
c BIT might have earned in future even in the absence of any
expert's opinion (paragraphs 13, 14). The principles of this case
were followed in many other cases namely, Raj Kumar Vs. Ajay
Kumar & Anr. 21 , Govind Yadav Vs. New India Insurance Co.
Ltd. 22 , Sri Ramachandrappa Vs. Manager, Royal Sundaram
Alliance lnsurance 23 , Ibrahim Vs. Raju & Ors. (supra), Laxman
0
@ 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
E wife must be reasonably judged based on her future potential
in the U.S.A. that has also been calculated scientifically by
economic expert, Prof. John F. Burke.
60. It is further the case of the claimant that the National
F 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
G
20. (2010) 10 sec 254.
21. c2011 > 1 sec 343.
22. c2011) 10 sec 683.
23. c2011) 13 sec 236.
H 24. c2012) a sec 604.
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 89
[V. GOPALA GOWDA, J.]
Commission should arrive at an "adequate compensation" A
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 B
the deceased and the claimant were citizens of U.S.A. and
permanently settled as a "child psychologist" and AIDs
researcher, respectively, the compensation in the instant
case must be calculated in terms of the status and
standard of living in the U.S.A.. In Patricia Mahajan's case C
(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 D
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 E
1998 with a total claim of Rs. 77. 7 crores against the
appellant- doctors and AMRI Hospital which was rejected
and this Court remanded this matter to the National
Commission for determination of the quantum of
compensation with a specific direction in the final sentence F
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 G
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, H
90 SUPREME COURT REPORTS [2013) 12 S.C.R.
A in May-June, 2011. Prof John F. Burke was also cross-
examined by the appellant-doctors and the AMRI Hospital.
Prof. Burke scientifically calculated and testified himself
under direct as well as cross-examination as to how he
came to calculate the prospective loss of income for a
B similarly situated person in U.S.A. as Anuradha, the
deceased and categorically stated that the direct loss of
income for Anuradha's premature death would amount to
"5 million and 125 thousand dollars". This loss of income
was calculated after deduction of 1/3rd of the amount for
c her personal expenses. 1/3rd deduction of income for
personal expenses has also been recommended in a
judgment of this Court in the case of Sar/a Verma (supra).
Prof. Burke has also explained how he calculated the loss
of income due to the premature death of Anuradha and
further testified that his calculation for loss of Anuradha's
D
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
E 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
F Court also made very clear observation in Indian Medical
Association Vs. V.P. Shanta & Ors.(supra), that to deny
a legitimate claim or to restrict arbitrarily the size of an
award would amount to substantial injustice.
G 6) Loss of income of claimant:
The National Ccimmission 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
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 91
[V. GOPALA GOWDA, J.]
to the date of trial" must be considered for the quantum A
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 B
U.S.A. over the past more than 12 years. In addition to
that the claimant has also suffered huge losses during this
period, both direct loss of income from his job in U.S.A.
as well as indirect loss for pain and intense mental agony
for tenure denial and termination of his employment at C
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 D
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 E
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 F
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 G
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 $ H
92 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 1,000,000/- for loss of job in Ohio and punitive' damages of US
$ 1,000,000/. This updated break-up of the total claim has been
shown in the claim-table referred to in the later part of the
judgment. The claimant respectfully submits that the National
Commission should have considered this total claim in
B 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
c the original claim thalt 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
D factoring in the position and stature of the doctors concerned
as also the Hospital'. This Court also held in Malay Kumar
Ganguly's case (supra) that AMRI is one of the best Hospitals
in Calcutta, and that the doctors were the best doctors
available. Therefore, the compensation in the instant case may
be enhanced in view of the specific observations made by this
E 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
F 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 lnstitute 25 and in Malay Kumar
Ganguly's case (supra) wherein this Court has categorically
G stated that the aforesaid principle in Savita Garg's case applies
to the present case also insofar as it answers the contentions
raised before us that the three senior doctors did not charge
any professional fees.
H 25. (2004) a sec 56.
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 93
[V. GOPALA GOWDA, J.]
63. Further, it is contended by the claimant that from a 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 B
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 c
which are mentioned in the table referred to supra including
expenses that were paid at the direction of the National
Commission, namely, expenses relating to video-conferencing
or payment for the Court Commissioners. Most of these direct
losses were suffered by the claimant as a result of the wrongful D
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 Hospita/26 •
E
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. F
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 G
as, Indian Medical Assn. Vs. V.P. Shanta & Ors. (supra),
Spring Meadows Hospital & Anr Vs. Harjo/ Ahluwalia 27,
Charan Singh Vs. Healing Touch Hospital and Ors.(supra),
26. c2002) 1 sec 668.
21. (1998) 4 sec 39. H
94 SUPREME COURT REPORTS [2.013) 12 S.C.R.
A 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) Nlzam Institute Vs.
B Prasant Dhananka (supra) Malay Kumar Gangu/y Vs.
Sukumar Mukherjee & Ors. (supra) and V. Kishan Rao Vs.
Nikhil Superspeciality Hospital & Anr. (supra).
66. In fact, the National Commission or any other consumer
C 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 Sar/a Verma's case (supra)
at paragraph 37, wherein the principle laid down for determining
D 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
E a patient from medical negligence cannot and should not be
compensated simply by using the multiplier method. In support
of this contention he has placed reliance upon the Nizam
lnstitute's case (supra) at paragraph 92, wherein the Court has
rejected the specific claim made by the guilty Hospital that
F multiplier should be used to calculate compensation as this
Court has held that such a claim has absolutely no merit.
6i The multiplier method was provided for convenience
and speedy disposal of no fault motor accident cases.
G 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 --
H
---
-
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 95
[V. GOPALA GOWDA, J.]
income of only Rs.15,000/- per year would be taken as a A
multiplicand. In case, the victim has no income then a multiplier
of 18 is the highest multiplier used under the provision of
Sections 163 A of the Motor Vehicles act read with the Second
Schedule. Therefore, if a child, housewife or other non-working
person fall victim to reckless medical treatment by wayward B
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 c
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.
D
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 AMR! Hospital
but the National Commission had made a paltry award E
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 AMR! Hospital.
F
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 G
the losses sustained by him in the course of 15 years long trial
including the loss of his employment at the Ohio State University
and resultant position of bankruptcy and home foreclosure. The
National Commission did not provide any reason for rejecting
the said claim which is in violation of the observations made
H
96 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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 &
8
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.1.1.) as
published by the Govt. of India, the original claim of Rs. 77. 7
C crores made by the claimant in 1998 would be equivalent to
Rs.188.6 crores as of 2012-2013. The mathematical calculation
in this regard has been presented in the short note submitted
by the claimant. Thus, the compensation payable for the
wrongful death of claimant's wife would stand today at Rs.188.6
D crores and not Rs.7'7.7 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.
E 72. Further, it ii~ 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
F National Commission did not grant any interest for the last 15
years long period on the compensation awarded in favour of
the claimant as this case was pending before the judicial
system in India for which the claimant is not responsible. The
said act is contrary to the decision of this Court in Thazhathe
G Purayil Sarabi & Ors. Vs. Union of India & Anr. 26 •
73. He has also placed reliance upon in justification of his
claim of exemplary or punitive damages. A claim of US $
H 2s. (2009) 1 sec 372.
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 97
[V. GOPALA GOWDA, J.)
1,000,000 as punitive damages has been made against the A
AMRI Hospital and Dr. Sukumar Mukherjee as provided in the
table. In support of this contention he placed strong reliance on
Landgraf Vs. US/ Film Prods 2• and this Court's decision in
Destruction of Public and Private Properties Vs. State of
A.P. 30 , wherein it is held that punitive or exemplary damages B
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 c
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 ;:t drug in clear disregard
to the warning given by the drug manufacturer causing the death D
of a patient. This Court has categorically held that the injection
Depomedrol used at the rate of 80 mg twice daily by Dr.
Sukumar Mukherjee was in clear violation of the manufacturer's
warning and recommendation and admittedly, the instruction
regarding direction for use of the medicine had not been
followed in the instant case. This Court has also made it clear E
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.
F
74. The Supreme Court of Ohio in Dardinger Vs. Anthem
Blue Cross Shield et a/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 G
29. 511 U.S. 244, 1994.
30. (2009) 5 sec 212.
31. 536 S.E. 2d 408 2000.
32. 781 N.E. 2d, 2002 H
98 SUPREME COURT REPORTS [2013] 12 S.C.R.
A times bigger than the compensatory da'.Tlages. A nominal
amount of US $ 1,000,000 has been claimed as punitive
damages in the instant case to send a deterrent message to
the reckless doctors in India keeping in view the major
difference in the standard of living between India and U.S.A. In
B 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 placeis in India.
c 75. It was further contended by the cla1imant 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
D negligence. Further, in Malay Kumar Ganguly's case, this
Court has rejected the assertion made by the doctors of the
Hospital that the claimant had interfered with the treatment of
his wife or that other doctors and/ or the Hospital i.e. Breach
Candy Hospital in Bombay should also be made a party in this
E 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 obseNations made by this
F Court while remanding the case back to it for determination of
the quantum of compensation. This Court did not make any
obseNation 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
G Rs.5,00,000/- this Court did not impose cost against any other
doctors even though the Court found other appellant-doctors •
also guilty for medical negligence. •
•
77. It is further contended that the National Commission
on 31st March, 2010 in S.P. Aggarwal Vs. Sanjay Gandhi P.G.
•
•
H Institute (FA No.4 78/2005) held that "i11 view of the fact that •
•
•
•
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 99
[V. GOPALA GOWDA, J.]
several doctors and paramedical staff of the appellant institute A
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 /nstitute's case (supra)
8
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 C
of medical nursing care at the AMRI Hospital was abysmal. It
is further submitted that 80% of the total compensation should
be imposed against the AMRI Hospital and 20% against Dr.
Sukumar Mukherjee. The claimant has claimed the damages
as under:-
D
PECUNIARY DAMAGES:
A Cost associated with the victim, Anuradha Saha
1 Loss of prospective/future earning Rs.9,25,00,000/-
upto to 70 years E
2 Loss of US Social Security income Rs.1,44,00,000/-
up to 82 years
3 Paid for treatment at AMRl/Breach Rs.12,00,000/-
Candy Hospital F
4 Paid for chartered flight to transfer Rs. 9,00,000/-
Anuradha
5 Travel/hotel/other expenses during Rs. 7,00,000/-
G
Anuradha's treatment in Mumbai/
Kolkata in 1998
6 Paid for court proceedings including Rs.11,57,000/-
video conferencing from U.S.A.
H
100 SUPREME COURT REPORTS [2013] 12 S.C.R.
A B Cost associated with Anuradha's husband. Dr. Kunal
Saha
1 Loss of income for missed work Rs.1,12,50,000/-
2 Travel expenses over the past Rs. 70,00,000/-
B
12 years
C Legal exQenses
1 Advocate fees Rs.1,50,00,000/-
c
2 other legal expenses Rs.15,00,000/-
Total pecuniary damages Rs.34,56,07,000/-
Non-Pecuniary Special Damages
o.
1 Loss of companionship and Rs.13,50,00,000/-
life amenities
2 Emotional distress, pain and suffering Rs.50,00,000/-
for husband
E
3 Pain/suffering endured by the victim Rs.4,50,00,000/-
during therapy
Total non pecuniary damages Rs.31,50,00,000/-
F
D PUNITIVE/EXEMPLARY DAMACjES Rs.13,50,00,000/-
E SPECIAL DAMAGES Rs.18,00,00,000/
Total Rs.97,56,07,000/-
G
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
H urged on behalf of the respective doctor-appellants, Hospital
DR. BALRAM PRASAD v'"'. DR. KUNAL SAHA & ORS. 101
[V. GOPALA GOWDA, J.]
and the claimant, the following points would arise for A
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?
B
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? c
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?
D
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?
E
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
F
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 G
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 H
102 SUPREME COURT REPORTS (2013] 12 S.C.R.
A requires interference and whether the claimant is liable for
contributory negligence and deduction of compensation
under this head?
8. To what Order and Award the claimant is entitled to in
these appeals?
B
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
c 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 sarie are taken up in
relation to the claimants' case in-seriatum and are answered
D by recording the following reasons:
Answer to Point nos. 1. 2 and 3
81. Point Nos. 1, 2 and 3 are taken up together and
answered since they are inter related.
E
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 "i:iflation" made by him without assigning any
F 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
I
was claimed in 1998 has been devalued t1J a great extent. This
I
Court in various following cases has repeatedly affirmed that
G inflation of money should be considered while deciding the
I
quantum of compensation:-
I
In Reshma Kumari and Ors. Vs. Madan Mohan and Anr. I
(supra), this Court at para 47 has dealt with this aspect as
I
H under:
I
I
•
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 103
[V. GOPALA GOWDA, J.]
"47.0ne of the incidental issues which has also to be taken A
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. B
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- C
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 D
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)
E
'26. The compensation which is required to be determined
must be just. While the claimants are required to be
compensated for the loss of their dependency, the same
should not be considered to be a windfall. Unjust
enrichment should be discouraged. This Court cannot also
lose sight of the fact that in given cases, as for example
F
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 G
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 H
j
104 SUPREME COURT REPORTS (2013] 12 S.C.R.
A (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
B 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.'
* * *
c 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
D regard to the status of the employee, his educational
qualification; his past performance but also other relevant
factors, namely, the higher salaries and perks which are
being offered by the private companies these days. In fact
while determining the multiplicand this Court in Oriental
E 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
F 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.
G 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.1.1. is determined by the Finance Ministry of
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 105
[V. GOPALA GOWDA, J.]
Union of India every year in order to appreciate the level of A
devaluation of money each year. Using the C.1.1. as published
by the Government of India, the original claim of Rs.77.7 crores
preferred by the claimant in 1998 would be equivalent to
Rs.188.6 crores as of 2013 and, therefore the enhanced claim
preferred by the claimant before the National Commission and B
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 c
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
th~ claimant cannot be examined for grant 1of compensation
under different heads is wholly unsustainable in law in view of D
the decisions rendered by this Court in the aforesaid cases.
Therefore, this Court is required to consider the relevant aspect
of the matter namely, that there has been steady inflation which
should have been considered over period of 15 years and that
money has been devalued greatly. Therefore, the decision of E
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 F
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 G
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
H
106 SUPREME COURT REPORTS [2013) 12 S.C.R.
A would have never happened but for the wrongful death of his
wife. The claimant has placed reliance on the fundamental
principle to be followed by the Tribunals, District Consumer
Forum, State Consumer Forum, and the National Commission
and the courts for awarding 'just compensation'. In support of
B 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
c 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
D not sustained the wrong. (See Livingstone v. Rawyards
Coal Co.)"
The claimant made a claim under specific heads in great
detail in justification for each one of the claim made by him.
E 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
F 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·
G additional claim, the claimant places reliance upon such
decisions as mentioned hereunder:
•
(a) In Ningamma's case (supra), this Court has observed II
at para 34 which reads thus: I
I
H "34. Undoubtedly, Section 166 of the MVA deals with "just ••
I
I
•
!
DR. BALRAM .PRASAD v. DR. KUNAL SAHA & ORS. 107
[V. GOPALA GOWDA, J.]
compensation" and even if in the pleadings no specific A
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, 8
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 Gangu/y's case, this Court by placing
reliance on the decision of this Court in R.O. Hattangadi Vs. C
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 D
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. E
c) In Nizam /nstitute'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,
F
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 G
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 H
108 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
8 allowed by this Court.
e) In R.O. 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.
c
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:
0
"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,
E 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
F
award. The only embargo is-it should be 'just'
compensation, that is to say, it should be neither arbitrary,
fanciful nor unjustifiable from the evidence. This would be
clear by reference to the relevant provisions of the MV Act."
G 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
H
claimant after making the following categorical observations:-
"In the absence of any bar in the Act, the Tribunal and for
--...
'
~
,.
•
•
-
-
I
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 109
[V. GOPALA GOWDA, J.]
that reason, any competent court, is entitled to award A
higher compensation to the victim of an accidenf'
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. B
84. In view of the aforesaid decisions of this Court referred
to supra, wherein this Court has awarded 'just compensation'
more than what was claimed by the claimants initially and
therefore, the contention urged by learned senior counsel and
other counsel on behalf of the appellant-doctors and the AMRI C
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 D
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 E
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 F
of the appellant-doctors and the AMRI Hospital as it is wholly
untenable in law and is contrary to the aforesaid decisions of
this Court referred to supra. We have to accept the claim of
the claimant as it is supported by the decisions of this Court
and the same is well founded in law. It is the duty of the G
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
H
110 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B that:
"172. Loss of wife to a husband may always be truly
compensated by way of mandatory compensation. How
one would do it has been baffling the court for a long time.
For compensating a husband for loss of his wife, therefore,
c 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
D 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]
E
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).
F 85. Further, it is an undisputed fact that the victim was a
graduate in psychology from a highly prestigious Ivy League
school in New York. She had a brilliant future ahead of her.
However, the National Commission has calculated the entire
compensation and prospective loss of income solely based on
G 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
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 111
[V. GOPALA GOWDA, J.]
by this Court in the case of ANind Kumar Mishra Vs. New A
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 B
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 C
the private sector. Had he decided to join government
service and got selected, he would have been put in the
pay scale for Assistant Engineer and would have at least
earned Rs. 60,000 per annum. Wherever he joined, he
had a fair chance of some promotion and remote chance D
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 E
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,
F
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 G
have any relevance to the facts and circumstances of the
present case. Moreover, these cases mention about 'future loss
of income' and not 'future prospects of income' in terms of the
potential of the victim and we are inclined to distinguish
between the two.
H
112 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B 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,
c 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
D be no addition, where the age of the deceased is more
than 50 years. Though the evidence may indicate a
different percentage of increase, it is necessary to
standardise the addition to avoid different yardsticks being
applied or different methods of calculation being adopted.
E 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
F 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
G 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
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 113
[V. GOPALA GOWDA, J.]
of a person who is self-employed or who is paid fixed A
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 B
calculating the amount of compensation."
89. In view of the aforesaid observations and law laid down
by this Court with regard to the approach by the Commission
in awarding just and reasonable compensation taking into C
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. D
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 E
of this contention, they have placed reliance upon the various
provisions of the Consumer Protection Act and also decisions
of this Court which have been adverted to in their submissions
recorded in this judgment. The claimant strongly contended by
placing reliance upon the additional claim by way of affidavit F
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 G
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: H
114 SUPREME COURT REPORTS [2013] 12 S.C.R.
A "53. Dealing with the present state of medical negligence
cases in the United Kingdom it has been observed:
"The legal system, then, is faced with the classic problem
of doing justice to both parties. The fears of the medical
profession must be taken into account while the legitimate
B
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
c 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
D 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
E
Accidents. would say that it is unacceptably difficult. Not
only are there practical difficulties in linking the plaintiffs
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
F 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.
G 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
H hospital facilities, to falling standards of professional
,..
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 115
[V. GOPALA GOWDA, J.]
competence or, more probably, to the ever-increasing A
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 B
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 C
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) D
(Mason's Law and Medical Ethics, 4th Edn.)"
[Emphasis laid by this Court]
90. He has als.o placed reliance upon the Nizam Institute E
of Medical Sciences's case referred to supra in support of his
submission that if a case is made out, then the Court must not
be chary of awarding adequate compensation. The relevant
paragraph reads as under:
F
"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 G
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 H
116 SUPREME COURT REPORTS [2013) 12 S.C.R.
A 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
B (supra) has categorically stated while remanding this case back
to the National Commission that the principle for just and
reasonable compensation is based on 'restitutio in integrum'
that is, the claimant must receive sum of money which would
put him in the same position as he would have been if he had
not sustained the wrong.
c
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
D 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
E
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
F compensation" irrespective of the fact whether any plea in
that behalf was raised by the claimant or not."
93. He has also rightly placed reliance upon observations
made in Malay Kumar Ganguly's case referred to supra
.. G wherein this Court has held the appellant doct<lrs 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
H earning of profit up to the date of trial" and that it may also
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 117
[V. GOPALA GOWDA, J.)
include any loss "already suffered or likely to be suffered in A
future". The claimant has also rightly submitted that when the
original complaint was filed soon after the death of his wife in
1998, it would be impossible to file a claim for "just
compensation". The claimant has suffered in the course of the
15 years long trial. In support of his contention he placed B
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 c
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 D
· untenable in law with regard to the legal contentions urged on
behalf of the AMRI Hospital and the doctors that without there
being an amendment to the claim petition, the claimant is not
entitled to seek the additional claims by way of affidavit, the
claim is barred by limitation and the same has not been rightly E
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 F
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 G
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 H
118 SUPREME COURT REPORTS (2013] 12 S.C.R.
A the second schedule of the Motor Vehicles Act to determine
the quantum of compensation in favour of the claimant applying
the multiplier method as has been laid down by this Court in
Sarla Verma's case(supra). Consequently, it has taken up
multiplier of 15 in the present case to quantify the compensation
B 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
c Medical Assn. Vs. V.P. Shanta & Ors.(supra), Spring
Meadows Hospital & Anr. Vs. Harjo/ Ah/uwalia 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
D Vs. Shiv Ram & Ors.(supra), Samira Kho/1 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
E 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 lnstitute's
case (supra), this Court has rejected the use of multiplier system
F 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.
G
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
H 33. (1998) 4 sec 39.
-
--...
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 119
[V. GOPALA GOWDA, J.]
the possibility that his rise in his chosen field would now A
be restricted, are matters which cannot be taken care of
under the multiplier method."
[Emphasis laid by this Court]
He has further urged that the 'multiplier' method as B
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 C
appellant-doctors and the Hospital cannot be compared with
'no fault' motor accident claim cases.
96. The appellant Dr. Bairam Prasad on the other hand
relied upon the decision in United India Insurance Co. Ltd. Vs. D
Patricia Jean Mahajan (supra) and contended that multiplier
method is a standard method of determining the quantum of
compensation in India. The relevant paragraphs read as under:
"20. The court cannot be totally oblivious to the realities.
The Second Schedule while prescribing the multiplier, had E
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 F
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 G
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 H
120 SUPREME COURT REPORTS (2013] 12 S.C.R.
A 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
B being a bachelor except his parents.
xxx xxx xxx
22. We therefore, hold that ordinarily while awarding
compensation, the provisions contained in the Second
C 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."
0 97. It is further urged by the learned senior counsel Mr. Vijay
Hansaria for the appellant-AMR! Hospital relying on Sar/a
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
E 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
F differently on the same facts, the claimant, the litigant, the
common man will be confused, perplexed and bewildered.
If there is significant divergence among the Tribunals in
determining the quantum of compensation on similar facts,
it will lead to dissatisfaction and distrust in the system."
G
The learned counsel for the appellant-AMR! Hospital further
argued that reliance placed upon the judgment in Nizam
lnstitute's case referred to supra by the claimant is misplaced
since the victim in that case suffered from permanent disability
H which required constant medical assistance. Therefore, it was
OR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 121
[V. GOPALA GOWDA, J.]
urged that Nizam Institute case cannot be relied upon by this A
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 8
determining the quantum of compensation in medical
negligence claims. On the contrary, this Court mentions various
instances where the Court chose to deviate from the standard
multiplier method to avoid over-compensation and also relied
upon the quantum of multiplicand to choose the appropriate C
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 D
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- E
doctors and the AMRI Hospital in determination of
compensation by following the multiplier method which was
sought to be justified by placing reliance upon Sar/a Verma
and Reshma's cases (supra) cannot be accepted by this Court
and the same does not inspire confidence in us in accepting F
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- G
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 H
122 SUPREME COURT REPORTS (2013] 12 S.C.R.
A 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
B was filed by the Hospital on 1Bth July, 2011. In lieu of such pain
and suffering the claimant made a demand of Rs.34,56,07,000/
- under different heads of 'loss of income for missed work',
'travelling expenses over the past 12 years' and 'legal expenses
including advocate fees' etc.
c 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
D 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
E pertinent to observe that the claimant did not produce any
record of plane fare to prove his travel expenditure from U.S.A.
to India to attend the proceedings. However, it is an undisputed
fact that the claimant is a citizen of U.S.A. and had been living
there. It cannot be denied that he had to incur travel expenses
F 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
G 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
H case and produce evidence in order. Therefore, we grant a
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 123
[V. GOPALA GOWDA, J.]
compensation of Rs.1,50,000/- under the head of 'legal A
expenses'. Therefore, a total amount of Rs. 11,50,000/- is
granted to the claimant under the head of 'cost of litigation'.
Answer to Point no. 6
100. A perusal of the operative portion of the impugned B
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 C
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 D
various decisions of this Court, such as in the case of
Thazhathe Purayi/ Sarabi & Ors. Vs. Union of India & Anr.
regarding payment of interest on a decree of payment this
Court held as under:
E
"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 F
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.
G
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. H
124 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B follows as a matter of course when a money decree is
passed.
28. The only question to be decided is since when is such
interest payable on such a decree. Though, there are two
divergent views, one indicating that interest is payable from
c the date when claim for the principal sum is made, namely,
the date of institution of the proceedings in the recovery o
f 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
D 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
E 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
F 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
G repayment of a loan. The problems whic:h arise in personal
injury and fatal accident cases in relation to awards of
interest result from the facts that while, on the one hand,
the cause of action accrues at the time of the accident, so
that compensation is payable as from that time, on the
H other hand
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 125
[V. GOPALA GOWDA, J.]
(a) the appropriate amount of compensation cannot be A
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
8
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 c
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: D
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 E
appropriate. He may award it for the whole or any part of
the period between the date when the cause of action
arose and the date of judgment and he may award it at
different rates for different part of the period chosen.
F
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 G
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
34. [1979] A.. c. 556. H
126 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B
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
c 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."
D
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
E 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
F 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
G to law laid down by this Court and also the provisions of the
Interest Act, 1978. Hence, their submissions cannot be
accepted as the same are wholly untenable in law and
misplaced. Accordingly, the aforesaid point is answered in
favour of the claimant.
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 127
[V. GOPALA GOWDA, J.]
Answer to point no. 7 A
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 B
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.
c
Liability of the AMRI Hospital:
104. It is the claim of appellant-AMR I Hospital that the
arguments advanced on behalf of the appellant-doctors that is,
Dr. Bairam Prasad, Dr. Sukumar Mukherjee and Dr. Baidyanath D
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. E
105. The learned senior counsel for the appellant-AMR!
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. F
Baidyanath Haldar and Dr. Abani Roy Choudhury in his appeal
and therefore, he cannot now in these proceedings claim to the
contrary. On the other hand, the claimant Dr. Kunal Saha argues
that though the National Commission claims that this Court did
not make any observation on apportionment of liability while G
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:
H
128 SUPREME COURT REPORTS (2013] 12 S.C.R.
A "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
B 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
C imposed with cost though they were found guilty of medical
negligence. The claimant relied upon the decision in Nizam
lnstitute'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
D 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
E Gangu/y'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
F 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
G
patient. They would also not come to see the patients or
administer drugs.
77. No nasogastric tube was given although the condition
of the mouth was such that Anuradha could not have been
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 129
[V. GOPALA GOWDA, J.]
given any solid food. She required 7 to 8 litres of water A
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
8
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 C
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. D
AMRI even did not maintain its records properly. The
nurses reports clearly show that from 13th May onwards
even the routine check-ups were not done."
106. The liability of compensation to be apportioned by this E
Court on the appellant-AMR! Hospital is mentione:l in
paragraph 165 of the Malay Kumar Gangu/y's case which
reads as under:
"165. As regards, individual liability of Respondents 4, 5
and 6 is concerned, we may notice the same hereunder. F
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). G
(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: H
130 SUPREME COURT REPORTS [2013] 12 S.C.R.
A "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,
B 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
c responsibiiities. (See also Errors, Medicine and the Law,
Alan Merry and Alexander McCall Smith, 2001 Edn.,
Cambridge University Press, p. 12.)"
108. Even in the case of Savita Garg Vs. National Heart
Institute (supra) this Court, while determining the liability of the
D 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
E 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
F 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
G
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
H service" and "contract for service" has been very
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 131
[V. GOPALA GOWDA, J.]
elaborately discussed in the above case and this Court has A
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 B
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 c
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)
D
'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 E
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 F
ability and with due care and caution. Medical opinion may
differ with regard to the course of action to be taken by a
doctor treating a patient, but as long as a doctor acts in a
manner which is acceptable to the medical profession and
the court finds that he has attended on the patient with due G
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 H
132 SUPREME COURT REPORTS (2013) 12 S.C.R
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. Harjo/ Ahluwalia. Their Lordships
observed as follows: (SCC pp. 46-47, para 9)
B '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
c pardoned. In the former case a court can accept
that ordinary human fallibility precludes the liability
while in the latter the conduct of the defendant is
considered to have gone beyond the bounds of what
is expected of the skill of a reasonably competent
D 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
E
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
F 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
G 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
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 133
[V. GOPALA GOWDA, J.]
evidence is produced to satisfy that he died because of A
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 take·n or what medicine was administered to the B
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 c
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)
D
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-AMR I Hospital
is vicariously liable for its doctors. It is clearly mentioned in E
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-AMR! Hospital to pay the total
amount of compensation with interest awarded in the appeal
of the claimant which remains due after deducting the total F
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:
G
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-AMR! Hospital "primarily responsible" for the death
of the claimant's wife. On the contrary, referring to paras 186 H
134 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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:
8 "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
c 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.
D
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
E 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
F 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.
G It is imperative to mention here that the quantum of
compensation to be paid by the appellant-doctors and the AMRI
Hospital is not premised on their culpability under Section 304-
A of IPC but on the basis of their act of negligence as doctors
in treating the deceased wife of the claimant. We are therefore
H inclined to reiterate the findings of this Court regarding the
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 135
[V. GOPALA GOWDA, J.)
liability of Dr. Mukherjee in Malay Kumar Ganguly's case A
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 B
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 C
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.
D
160. According to general practice, long-acting steroids
are not advisable in any clinical condition, as noticed
hereinbefore. However, instead of prescribing a quick-
acting steroid, the prescription of a long-acting steroid
without foreseeing its implications is certainly an act of E
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 F
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." G
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
H
136 SUPREME COURT REPORTS [2013] 12 S.C.R.
A much unbecoming of a doctor as renowned and revered as he
is. The finding of this Court on this aspect recorded in Malay
Kumar Ganguly's case reads as under:
"182. It is also of some great significance that both in the
criminal as also the civil cases, the doctors concerned took
B
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
c 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.
D (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.
E
(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:
F
"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
G
Mumbai. ... "
113. Therefore, the negligence of Dr. Sukumar Mukherjee
· in treating the claimant's wife had been already established by
this Court in Malay Kumar Gangu/y's case. Since he is a
H senior doctor who was in charge of the treatment of the
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 137
[V. GOPALA GOWDA, J.]
deceased, we are inclined to mention here that Dr. Mukherjee A
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 B
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:
c
114. The case of the appellant Dr. Baidyanath Haldar is
that he is a senior consultant who was called by the attending
physician to examine the patient on 12.5.1998. On examining
the patient, he diagnosed the disease as TEN and prescribed
medicines and necessary supportive therapies. It is his further D
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 E
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 F
the deceased and he was not called thereafter. Hence, the
National Commission wrongly equated him with Dr. Bairam
Prasad who was the attending physician. Though the claimant
did not make any counter statement on apportioning liability to
the appellant-Dr. Haldar, it is pertinent for us to resort to the G
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
Gangu/y's case supra, are recorded as under:
H
138 SUPREME COURT REPORTS [2013] 12 S.C.R.
A "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
B 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
c 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
D TEN patients. Skin (wound) swap and blood tests also
ought to be performed regularly to detect the degree of
infection. Apart from using the steroids, aggressive
supportive therapy that is considered to be rudimentary for
TEN patients was not provided by Dr. Halder.
E
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,
F 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
G
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 'lot be a place
for getting infection."
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 139
[V. GOPALA GOWDA, J.)
115. Similar to the appellant Dr. Sukumar Mukherjee, the A
appellant Dr. Baidyanath Haldar is also a senior doctor of high
repute. However, according to the findings of this Court in
Malay Kumar Ganguly's case, he had conducted with utmost
callousness in giving treatment to the claimant's wife which led
to her unfortunate demise. The appellant Dr. Baidyanath Haldar B
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. c
Liability of Dr Baidyanath Prasad:
116. It is the case of the appellant-Dr. Bairam 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 D
not called upon to prescribe medicines but was only required
to continue and monitor the medicines to be administered to
the deceased as prescribed by the specialists. The learned
senior counsel on behalf of the appellant-Dr. B.Prasad argues
that the complaint made by the claimant had no averments E
against him but the one whereby it was stated by the claimant
at paragraph 44 of the complaint which reads thus:
"44. That Dr. Bairam 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 F
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 G
TEN patient should be treated."
117. To prove his competence as a doctor, the appellant-
Dr. Bairam Prasad further produced a portion of the complaint
which reads thus: H
140 SUPREME COURT REPORTS [2013) 12 S.C.R.
A "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"
B
118. The appellant Dr. Bairam 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:
c "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
D
in AMRI record."
119. Though the claimant did not make specific claim
against the appellant-Dr. Bairam Prasad, appellant Dr. B.
Haldar claimed in his submission that he has been wrongly
E equated with Dr. Bairam Prasad who was the attending
physician and Dr. Anbani Roy Choudhury who was the
physician in charge of the patient.
120. It is pertinent for us to note the shifting of blames on
F 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 Gangu/y's case read
as under:
G "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:
H "Prof. B.N. Halder (Respondent 2) was so much attached
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 141
[V. GOPALA GOWDA, J.)
with the day-today treatment of patient Anuradha that he A
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.. .. "
B
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 C
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. D
(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 beenadministered and
nursing care had been given as per the directions of the E
doctors.
(vi) Respondents 5 and 6, therefore, did not own any
individual responsibility on themselves although they were
independent physicians with postgraduate medical
F
qualifications.
183. In Errors, Medicine and the Law, Cambridge
University Press, p. 14, the authors, Alan Merry and
Alexander McCall Smith, 2001, Edn., stated:
G
"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 H
142 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B the attending physician the appellant Dr. Bairam Prasad even
though the Court held him guilty of negligence. This Court found
the appellant-Dr. Bairam Prasad guilty as under:
"166. As regards, Dr. Balaram Prasad, RE!spondent 5, it
may be noticed:
c
(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.
D (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."
E
122. We acknowledge the fact that Dr. Bairam 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 AM RI-Hospital. However, we cannot lose sight of the fact
F that the appellant Dr. Bairam Prasad was an independent
medical practitioner with a post graduate degree. He still stood
as a second fiddle and perpetuated the negligence in giving
treatment to the claimant's wife. This Court in Malay Kumar
Ganguly's case found him to be negligent in treating the
claimant's wife in spite of being the attending phys.ician of the
G 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
H passive in treating his patients in his formative years of medical
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 143
[V. GOPALA GOWDA, J.]
profession. A
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 B
negligence. The National Commission has determined the
compensati.on to be paid for medical negligence at
Rs.1, 72,87 ,500/-. However, the National Commission was of
the opinion that the interference of the claimant was also
contributed to the death of his wife. The National Commission C
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 D
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 E
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 F
negligence, the National Commission deducted 10% from the
total compensation and an award of Rs.1,55,58,750/- was
given to the claimant.
124. The appellants-doctors and the AMRI Hospital have G
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.
H
144 SUPREME COURT REPORTS (20'13] 12 S.C.R.
A 125. On the other hand, the claimant 1n 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
B upon the observations made by this Court which read as under:
"117. Interference cannot be taken to be an excuse for
abdicating one's responsibility especially when an
interference could also have been in the nature of
suggestion. Same comments were said to have been
c 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 byDr. Mukherjee and Dr. Halder in their
written statements before the National Commission are not
D backed by any evidence on record. Even otherwise,
keeping in view the specific defence raised by them
individually, interference by Kuna!, so far as they are
concerned, would amount to hearsay evidence and not
direct evidence.
E
122. The respondents also sought to highlight on the
number of antibiotics which are said to have been
administered by Kuna! to Anuradha while she was in AMRI
contending that the said antibiotics were necessary. Kuna!,
F 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 Kuna! on his own,
but it now stands admitted that administration of such
antibiotics was necessary.
G
123. To conclude, it will be pertinent to note that even if
we agree that there was interference by Kuna! Saha during
the treatment, it in no way diminishes the primary
responsibility and default in duty on part of the defendants.
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 145
[V. GOPALA GOWDA, J.]
In spite of a possibility of him playing an overanxious role A
during the medical proceedings. the breach of dutv to take
basic standard of medical care on the part of defendants
is not diluted. To that extent. contributorv negligence is not
pertinent. It may. however. have some role to play for the
purpose of damages." B
(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 C
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.
D
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 E
. absolutely erroneous, as Dr. Anil Kumar Gupta deposed
before the trial court that he saw the transfer certificate at
AMRl's office and the words "for better treatment" were
written by Dr. Balaram Prasad in his presence and these
· words were written by Dr. Prasad, who told it would be F
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 G
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.
H
146 SUPREME COURT REPORTS (2013] 12 S.C.R.
A 127. We, therefore, conclude that the Natio'lal 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 Glearly absolved
the claimant of such liability and remanded the matter back to
s the National Commission only for the purpose of determining
the quantum of compensation. Hence, we set aside the finding
of the National Commission and re-emphasize the finding of
this Court that the claimant did not contribute to the negligence
of the appellants-doctors and AMRI Hospital which resulted in
c 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
D 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 enrancement of
E compensation on the aforesaid heads as he has incurred huge
amount of expenses in the court of more than 15 years long
trial in the instant case. The total claim, original as well as
enhanced claim by way of filing affidavit with supporting
documents, is Rs.97,56,07,000/- that includes pecuniary
F 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
G 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
H under different heads which will be noted in the appropriate
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 147
[V. GOPALA GOWDA, J.]
paragraphs of this judgment. A
129. The National Commission has also not taken into
consideration the observations made by this Court while
remanding the case for determining the quantum of
compensation with regard to the status of treating doctors and B
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 C
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 D
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.
E
Loss of income of the deceased:
131. The grievance of the claimant is that the National
Commission has failed to take into consideration the legal and
substantial evidence produced on record regarding the income
of the deceased wife as she was a citizen of U.S.A. and F
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 G
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 H
148 SUPREME COURT REPORTS [2013] 12 S,C.R.
A awarded compensation of Rs.10.38 crores after holding that
while awarding compensation in such cases the Court must
consider the high status and standard of living of both the victim
and dependents. However, the National Commission did not
consider the substantial and legal evidence adduced on record
B by the claimant regarding the income that was being earned
by the claimanfs 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
c 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
0
dollars. The loss of income on account of premature death of
the claimant's wife was calculated by the said witness who is
an Economist in America and he has also deducted one-third
for her personal expenses out of her annual income which is
at par with the law laid down by this Court in number of cases
E including Sarfa 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 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
G direct loss for the wrongful death of the deceased may appear
as a fabulous amount in the context of India but undoubtedly
an average and legitimate claim in the context of the instant
case has to be taken to award just compensation. He has
placed reliance upon the judgment of this Court in Indian
H Medical Association's case (supra) wherein the Constitution
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 149
[V. GOPALA GOWDA, J.]
Bench has stated that to deny the legitimate claim or to restrict A
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.
B
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 C
economic expert testified that the deceased could have earned
much more in future given her present prospect. But relying
upon the principle laid down by this Court, we cannot take the
estimate of Prof. John F. Burke to be the income of the
deceased. We also feel that $30,000 per annum earned by the
deceased during the time of her death was not from a regular D
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 E
and reasonable compensation in favour of the claimant. It would
be just and proper for us to take her earning at $40,000 per
annum on a regular job. We further rely upon the paragraphs
in the cases of Sar/a Verma and Santosh Devi referred to
supra while answering the point no. 1, to hold that 30% should F
be added towards the future loss of income of the deceased.
Also, based on the law laid down by this Court in catena of
cases referred to supra, 1/3rd of the total income is required
to be deducted under the head of personal expenditure of the
deceased to arrive at the multiplicand. G
133. The multiplier method to be applied has been
convincingly argued by the learned counsel for the appellant-
doctors and the Hospital against by the claimant which we
concede with based on the reasoning mentioned while H
150 SUPREME COURT REPORTS [2013) 12 S.C.R.
A answering the point no. 4. Therefore, estimating the life
expectancy of a healthy person in the present age as 70 years,
we are inclined to award compensation accordingly by
multiplying the total loss of income by 30.
134. Further, the claimant has rightly pointed that the value
8
of Indian currency has gone down since the time when these
legal proceedings have begun in this country. This argument
of the claimant has been accepted by us while answering the
point nos. 2 and 3. Therefore, it will be prudent for us to hold
C the current value of Indian Rupee at a stable rate of Rs.55/- per
1$.
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 [$40,000+(30/
D 100x40,000$)-(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
E 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
F compensated for awarding reasonable amount under this head
as under:-
(al For the medical treatment in Kolkata and Mumbai:
136. An amount of Rs.23 lakhs has been claimed by the
G 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 expem1es under this
H head to the tune of Rs.5 lakhs. We still consider this amount
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 151
[V. GOPALA GOWDA, J.]
as insufficient in the light of the fact that the deceased was A
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
(bl Travel and Hotel expenses at Bombay:
137. The claimant has sought for compensation to the tune
of Rs. 7 lakhs for travel and expenses for 11 days he had to stay
in Mumbai for the treatment of his wife. However, again he has
failed to produce any bills to prove his expenditure. Since, his C
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 D
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 E
cost of chartered flight, a sum of Rs.5,00,000/- is already
awarded by the National Commission and we are not inclined
to interfere with the same in absence of any evidence which
alters the computation of the cost incurred in chartered flight.
Hence, we uphold the amount awarded by the National
Commission under the head of 'cost of chartered flight'. F
Non pecuniary damages:
139. It is the case of the claimant that the National
Commission has awarded paltry amount equivalent to $20,000 G
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 H
152 SUPREME COURT REPORTS [2013) 12 S.C.R.
A for the amount. Before this Court however, the claimant has
reduced the claim to Rs.31,50,00,000/- under three different
heads. He has claimed Rs.13,50,00,000/- for loss of
companionship and life amenities, Rs.50,00,000/- for emotional
distress, pain and suffering of the husband- the claimant and
B 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 Company35, this Court
C 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
D 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
E 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
F
was bad and where the wife could go out and work for a
living.
23. In England the courts used to award damages solely
on the basis of pecuniary loss to family due to the demise
G 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 tci the negligence of
the defendant's servants. After taking cognizance of some
H 35. c201 O) 9 sec 21 a.
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 153
[V. GOPALA GOWDA, J.]
precedents, the learned Judge observed: (KB p. 631) A
" ... 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 B
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 C
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 D
respectively. The deceased wife/mother was aged 37
years. The cost of a housekeeper to carry out services
previously rendered by his wife was 22.5 pounds per
week, the saving to him in not having to clothe and feed
his wife was 10 pound per week, leaving a net loss of E
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 F
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 G
plaintiffs 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
H
154 SUPREME COURT REPORTS [2013) 12 S.C.R.
A 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
B 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-0)
c
"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
D 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
E 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)
F 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
G 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,
H with such things as their homework. This sort of attention seems
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 155
[V. GOPALA GOWDA, J.]
to be as much of a service, and probably more valuable to them, A
than the other kinds of service conventionally so regarded."
25. In Mehmet v. Perry the pecuniary value of a wife's
services were assessed and granted under the following
heads:
B
(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
(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 recognized that the contribution D
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 E
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 · F
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 G
can never be a substitute for a wife/mother who renders
selfless service to her husband and children.
27. It is not possible to quantify any amount in lieu of the
services rendered by the wife/mother to the family i.e. the
husband and children. However, for the purpose of award H
156 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B 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 gratL1itous 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
c some of the ser.iices 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
D 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
E
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 ser.iices 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
F economical as the housewife. Apart from the value of
obtaining substituted services, the expense of giving
accommodation or food to the substitute must also be
computed. From this total must be deducted the expense
the family would have otherwise been spending for the
G 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
H to take into account the loss of 'personal care and
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 157
[V. GOPALA GOWDA, J.]
attention' by the deceased to her children, as a mother and A
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 B
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 C
the inflation, may not be justified.
33. In Chandra Singh v. Gurmeet Singh, Krishna Gupta v.
Madan Lal, Caplan Singh v. Oriental Insurance Co. Ltd.
and Amar Singh Thukral v. Sandeep Chhatwal, the Single D
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)
E
"24 .... The decision of the Apex Court in Lata Wadhwa
in our considered opinion, cannot be said to have any
application in the instant case. The Motor Vehicles Act,
1939 was the complete code by itself. It not only provides
for the right of a victim and/or his legal heirs to obtain F
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 G
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 H
158 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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)
B
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:
c "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 so~io
economic issue, as contrasted from a legal principle,
though a precedent, can be, and in fact ought to be
D 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
E
several decades ago and having regard to inflation factor.
the same needs to be increased. In Sar/a 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
F 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
G 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
H 36. 2013 (6) SCALE 563.
--
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 159
[V. GOPALA GOWDA, J.]
States of America. Australia, etc. English Courts have also A
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, B
care and sexual relations during the future years. Unlike
the compensation awarded in other countries and other
jurisdictions. since the legal heirs are otherwise adequately
compensated for the pecuniary loss. it would not be proper
to award a major amount under this head. Hence. we are C
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)
D
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
E
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 F
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." G
Further, it is written that,
H
160 SUPREME COURT REPORTS [2013] 12 S.C.R.
A "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
B 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
c 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
D will need to take into account in assessing damages the
claimant's age and his expectation in '.ife. That applies as
much in the case of an unconscious plaintiff as in the case
of one sentient, at least as regards tl".e loss of amenity."
The extract from Malay Kumar Ganguly's case read as
E 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
F admitted at Advanced Medicare Research Institute (AMRI)
in the morning of 11-5-1998 under Dr. Mukherjee's
supervision. Anuradha was also examined by Dr.
Baidyanath Halder, Respondent 2 herein. Dr. Halder found
that she had been suffering from erythema plus blisters.
G Her condition, however, continued to deteriorate further. Dr.
Abani Roy Chowdhury, Consultant, Hespondent 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 flirther
•
H '
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 161
[V. GOPALA GOWDA, J.]
deteriorated severely. She breathed her last on 28-5- A
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 B
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 C
claimant who was also the surviving victim of a motor vehicle
accident was awarded Rs.10 lakhs for pain and suffering.
Further, it was held in R.D. Hattangadi's case (supra) as
follows:
D
"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 E
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 F
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."I G
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 H
162 SUPREME COURT REPORTS [2013) 12 S.C.R.
A that the deceased had gone through immense pain, mental
agony and suffering in course of her treatment which ultimately
could not save her life, we are not inclined to award more than
the conventional amount set by this Court on the basis of the
economic status of the deceased. Therefore, a lumpsum
B amount of Rs.10 lakhs is awarded to the claimant following the
Nizam lnstitute'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'.
c 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
D in treating the claimant's wife.
In summary, the details of compensation under different
heads are presented hereunder:
Loss of income of the deceased Rs.5, 72,00,550/-
E
For Medical treatment in Kolkata Rs.7,00,000/-
and Mumbai
Travel and Hotel expenses at Mumbai Rs.6,50,000/-
F
Loss of consortium Rs.1,00,000/-
Pain and suffering Rs.10,00,000/-
Cost of litigation Rs.11,50,000/-
G
147. Therefore, a total amount of Rs.6,08,00,550/- is the
compensation awarded in this appeal to the claimant Dr. Kuna!
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.
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 163
[V. GOPALA GOWDA, J.]
148. Before parting with the judgment we are inclined to A
mention that the number of medical negligence cases against
doctors, Hospitals and Nursing Homes in the consumer forum
are increasing day by day. In the case of Paschim Banga Khet
Mazdoor Samity Vs. State of West Bengaf37, this Court has
already pronounced that right to health of a citizen is a B
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. c
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 D
economic background are entitled to be treated with dignity
which not only forms their fundamental right but also their human
right. We, therefore, hope and trust that this decision acts as a
deterrent and a reminder to those doctors, Hospitals, the
Nursing Homes and other connected establishments who do E
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 F
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 G
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.
37. (1996) 4 sec 37. H
164 SUPREME COURT REPORTS (2013] 12 S.C.R.
A 151. Accordingly, the Civil Appeal No. 2867/2012 filed by
Dr. Bairam 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
B 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. Bairam Prasad is held liable to pay compensation of Rs.5
lakhs to the claimant. Since, the appellant-doctors have paid
c compensation in excess of what they have been made liable
to by this judgment, they are entitled for reimbursement from
the appellant-AMR! Hospital and it is directed to reimburse the
same to the above doctors within eight weeks.
152. The Civil Appeal No. 692/2012 filed by the appellant-
D 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.
E 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
F 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
G judgment by sending demand draft of the compensation
awarded in this appeal to the extent of liability imposed on it
after deducting the amount, if any, already paid to the claimant,
within eight weeks and submit the compliance report.
H R.P. Appeals disposed of.
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