V KRISHNAKUMARversusSTATE OF TAMIL NADU & ORS.

                        [2015) 8 S.C.R. 100


A                       V KRISHNAKUMAR
                                  v.
                  STATE OF TAMIL NADU & ORS.
                  (Civil Appeal No. 8065 of 2009)
B
                           JULY01,2015
       [JAG DISH SINGH KHEHAR AND S.A. BOBDE, JJ.)
          Consumer Protection Act, 1986 - Medical negligence
c -  Deficiency in service - Compensation - Enhancement -
  Prematurely born baby girl lost her eye sight - Case of the
  parents that respondents-State of Tamil Nadu, its
   Government hospital and two government doctors negligent
  in not screening the child for Retinopathy ofprematurity-ROP
D as also not advising screening for ROP - National
  Commission holding it to be medical negligence against
  respondents - Award of Rs. 5, 00, 0001- as compensation to
  the father - On appeals, held: National Commission rightly
  held that the respondents were negligent in their duty and
E were deficient in their services in not screening the child
  between 2 to 4 weeks after birth when it is mandatory to do so
  and especially since the child was under their care - In lieu
  of past medical expenses, future medical expenses,
  inflationary fluctuations respondents to pay Rs. 1, 38, 00, 0001
F - (as apportioned) in the form of a Fixed Deposit, in the name
  of the baby girl - Said amount would yield an approximate
  annualinterest of Rs. 12, 00, 0001-.

          Disposing of the appeals, the Court
G
         HELD: 1.1 The unequivocal findings of the
  National Consumer Disputes Redressal Commission-
  NCDRC that at no stage, the appellant was warned or
  told about the possibility of occurrence of Retinopathy
H of Prematurity-ROP by the respondents even though it
                                100
 V. KRISHNAKUMAR v. STATE OF TAMIL NADU & ORS.            101


was their duty to do so, cannot be faulted with. Neither A
did they explain anywhere in their affidavit that they
warned of the possibility of the occurrence of ROP
knowing fully well that the chances of such occurrence
existed and that this constituted a gross deficiency in
service, nor did they refer to a paediatric B
ophthalmologist. Further, respondent Nos. 3 & 4-doctors
did not appeal to this Court against the judgment of the
NCDRC and thus, accepted the finding of medical
negligence against them. [Para 12] [113-C-E]
                                                           c
       1.2 The findings of the NCDRC that the
respondents were negligent in their duty and were
deficient in their services in not screening the child
between 2 to 4 weeks after birth when it is mandatory to
do so and especially since the child was under their care, D
is concurred with. Thus, the negligence began under the
supervision of the Hospital-respondent No.2.
Respondent Nos. 3 and 4, who checked the baby at his
private clinic and at the appellant's home, respectively,
were also negligent in not advising screening for ROP. E
Respondent Nos. 3 and 4 carried on their own private
practice while being in the employment of respondent
No. 2, which was a violation of their terms of service.
[Para 13] [113-F-H; 114-A]
                                                           F
        1.3 The child called 'S' has been rendered blind
for life. The darkness in her life can never be really
compensated for in money terms. Though, 'S' may have
parents now, there is no doubt that she will not have that G-
protection and care forever. The family belongs to the
middle class and it is necessary for the father to attend
to his work. Undoubtedly, the mother would not be able-
to take 'S' out everywhere and is bound to leave the child
alone for reasonable spells of time. During this time, it is H
obvious that she would require help and maybe later on
102       SUPREME COURT REPORTS               [2015] 8 S.C.R.


A in life she would have to totally rely on such help. It is
   therefore, difficult to imagine unhindered marriage
   prospects or even a regular career which she may have
   otherwise pursued with ease. She may also face great
   difficulties in getting education. The parents have already
B incurred heavy expenditure on the treatment of 'S' to no
  .avail. It is, thus, obvious that tl)ere should be adequate
   compensation for the expenses already incurred, the
   pain and suffering, lost wages and the future care that
   would be necessary while accounting for inflationary
C trends. There is no doubt that in the future 'S' would
   require further medical attention and would have to incur
   costs on medicines and possible surgery. It can be
   reasonably said that the blindness has put 'S' at a great
   disadvantage in her pursuit for making a good living to
0
   care for herself. [Para 14, 15] [114-8-G]

         1.4 The amount of Rs. 42,87,921/- (Rs. 41,37,921/-
  expenditure incurred by the father for S's treatment+ Rs.
  1,50,000/- in lieu of the financial hardship undergone by
E parents) would be paid by respondent Nos. 1-4. In
  addition, interest at the rate of 6% p.a. would be paid to
  the appellant from the date of filing-of the petition before
  the NCDRC till the date of payment. [Para 20, 21] [117-A-
F 8, D]
          1.5 Going by the statement of expenditure for the
  period from the final verdict of the NCDRC to December,
  2013, the monthly expenditure is stated to be Rs. 13,554/
  -, resulting in an annual expenditure of Rs. 1,62,648/-. The
G medical costs for 'S's treatment would not remain static,
  but are likely to rise substantially in the future years. 'S's
  present age is about 18 '!.years. If her life expectancy is ·
  taken to be about 70 years, for the next 51 years, the
H amount of expenditure, at the same rate would work out
  to Rs. 82,95,048/-. It is therefore, imperative that inflation
 V. KRISHNAKUMAR v. STATE OF TAMIL NADU & ORS. 103


is taken into account to ensure that the present value of A
compensation awarded for future medical costs is not
unduly diluted, for no fault of the victim of negligence.
The inflationary principle must be adopted at a
conservative rate of 1 o/o pa to keep in mind fluctuations
over the next 51 years. Accordingly, the amount arrived B
at with an annual inflation rate of 1 o/o over 51 years is
Rs.1,37, 78, 722.90 rounded to Rs.1,38,00,000/-, which
would be paid, in the form of a Fixed Deposit, in the name
of 'S'. The said amount would yield an approximate
annual interest of Rs. 12,00,000/-. [Para 22, 23, 25] [117- C
E-H; 118-G, D-E; 121-B]

1.6 The compensation awarded by NCDRC was directed
to be paid only by respondent Nos. 1 and 3-State of Tamil
Nadu and Dr. 'SG', Neo-pediatrician, Government D
Hospital. The Forum did not assign any reason by for
relieving respondent Nos.2 and 4. Dr. 'D' Neo Natology
Unit, Government Hospital also treated 'S' during the
course of his visits to the house of the appellant. The
State would be vicariously liable for the damages which E
may become payable on account of negligence Of its
doctors or other employees. By the same measure, it is
not possible to absolve respondent l'io. 1, State of Tamil
Nadu, which establishes and administers such hospitals F
through its Department of Health, from its liability. [Paras
26 and 27] [121-C-D; F-G]

       1.7 Rs. 1,30,00,000/-would be paid by respondent
Nos. 1 and 2 jointly and severally i.e. State of Tamil Nadu
and Director, Government Hospital and Rs. 4,00,000/- G
would be paid by Dr. SG, Neo-pediatrician, Government
Hospital and Rs. 4,00,000/- by respondent no. 4-Dr. D,
Neo Natology Unit, Government Hospital. The said
amount would be paid by respondent within the H
stipulated period else would attract a penal interest at
104        SUPREME COURT REPORTS                 (2015] 8 S.C.R.


A the rate of 18% p.a. [Para 28] [122-A-D]

      · 1.8 As regards, Rs. 42,87,921/-to be paid in lieu of
  past medical expenses, respondent Nos. 1 and 2 would
  pay Rs.40,00,000/- jointly, alongwith interest @ 6% p.a.
B from the date of filing before the NCDRC; and respondent
  Nos. 3 and 4 would pay Rs.2,87,921/- in equal proportion,
  alongwith interest@ 6% p.a. from the date of filing before
  the NCDRC. [Para 29] [122-E-G]

c   Bairam Prasad vs. Kuna/ Saha 2013 (12) SCR 30:
    (2014) 1 SCC 384; Nizam's Institute of Medical
    Sciences vs. Prashant S. Dhananka and Others 2009
    (9) SCR 313 : (2009) 6 SCC 1; Malay Kumar Ganguly
    vs. Sukumar Mukherjee 2009 (13) SCR 1 : (2009) 9
D . SCC 221; Savita Garg vs. National Heart Institute 2004
    (5) Suppl. SCR 359: (2004) 8 SCC 56; Achutrao
    Haribhau Khodwa v. State of Maharashtra 1996 (2)
    SCR 881: (1996) 2 SCC 634; Spring Meadows
    Hospital and Anotherv. Harjo/ Ahluwalia (1998) 4 SCC
E   39 - referred to.

        Jones & Laughlin Steel Corporation v. Pfeifer (1983)
        462 US 523; O'Shea v Riverway Towing Co. (1982) 677
        F.2d 1194; Tay/orv. O'Connor[1971]A.C.115; Simon
F       v. He/mot [2012] UKPC 5; Wells v. Wells (1983) 462
        US 523 - referred to.

                        Case Law Reference
  2013 (12) SCR30                Referred to.         Para 16
G 2009 (9) SCR 313               Referred to.         Para 16
      2009 (13) SCR 1            Referred to.         Para 17
      (1998) 4 sec 39             Referred to.         Para 20
      2004 (5) Suppl. SCR 359     Referred to.         Para 27
H 1996 (2) SCR 881                Referred to.         Para 27
 V. KRISHNAKUMAR v. STATE OF TAMIL NADU & ORS. 105


      CIVILAPPELLATE JURISDICTION: Civil Appeal No.            A
8065 of2009

      From the Judgment cind Order dated 27.05. 2009 in
0.P. No. 57/1998 of the National Consumer Disputes
Redressal Commission, New Delhi.                               B

                              WITH

     Civil Appeal No. 5402 OF 2010

      Nikhil Nayyar, Gautam Narayan,Asmita Singh, T. Harish C
Kumar for the Appellant.                    ·              ·

     Subramonium Prasad, AAG, B. Ba.laji, Rakesh Sharma,
R. Shase, Gautam Narayan, Asmita Singh for the
Respondents.                                             D

       The Judgment of the Court was delivered by

       S. A. BOBDE, J. 1. These two Civil Appeals are
preferred against the judgment of National Consumer Disputes
Redressal Commission (hereinafter referred to as the E
'NCDRC') rendering a finding of medical negligence against
the State of Tamil Nadu, its Government Hospital and two
Government Doctors and awarding a sum of Rs.5,00,000/-to
V. Krishnakumar. Civil Appeal No. 8065 of 2009 is preferred F
by V. Krishnakumar for enhancement of the amount of
compensation. Civil Appeal No. 5402 of2010 is preferred by
the State of Tamil Nadu and another against the judgment of
the NCDRC. As facts of both the appeals are same, we are
disposing the appeals by this common judgment.               G

       2. On 30.8.1996, the appellant V. Krishankumar's wife
Laxmi was admitted in Government Hospital for Women and
Children, Egmore, Chennai (hereinafter referred to as the
"Hospital"). Against the normal gestation period of 38 to 40   H
106       SUPREME COURT REPORTS                  (2015] 8 S.C.R.


A weeks, she delivered a premature female baby in the 291h
  week of pregnancy. The baby weighed only 1250 grams at
  birth. The infant was placed in an incubator in intensive care
  unit for about 25 days. The mother and the baby were
  discharged on 23.9.1996. A fact which is relevant to the issue
B is, that the baby was administered 90-100% oxygen at the
  time of birth and underwent blood exchange transfusion a week
  after birth. The baby had apneic spells during the first 10 days
  of her life. She was under the care of Respondent No.3 - Dr.
  S.Gopaul, Nee-paediatrician and Chief of Nee Natology Unit
C of the Hospital and Respondent No.4 - Dr. Duraiswamy of the
  Nee Natology Unit of the Hospital. The Respondent No.2 is
  the Director of the Hospital, which is established and run by
  the Respondent No.1 - State of 1amil Nadu under the
D Department of Health.

          3. The baby and the mother visited the hospital on
  30.10.1996 at the chronological age of 9 weeks. Follow up
  treatment was administered at the home of the appellant by
  Respondent No.4, the Government Doctor, Dr. Duraiswamy
E during home visits. The baby was under his care from 4 weeks
  to 13 weeks of chronological age. Apparently, the only advice
  given by Respondent No.4 was to keep the baby isolated and
  confined to the four walls of the sterile room so that she could
F be protected from infection. What was completely overlooked
  was a well known medical phenomenon that a premature baby
  who has been administered supplemental oxygen and has
  been given blood transfusion is prone to a higher risk of a
  disease known as the Retinopathy of Prematurity (hereinafter
G referred to as 'ROP'), which, in the usual course of
  advancement makes a child blind. The Respondent No.3, who
  was also a Government Doctor, checked up the baby at his
  private clinic at Purassaiwakkam, Chennai when the baby was
  14-15 weeks of chronological age also did not suggest a check
H upforROP.
  V. KRISHNAKUMAR v. STATE OF TAMIL NADU & ORS. 107
                [S. A. BOBDE, J.]

        4. One thing is clear about the disease, and this was A
 not contested by the learned counsel for the respondents, that
 the disease occurs in infants who are prematurely bom and
 who have been administered oxygen and blood transfusion
 upon birth and further, that if detected early enough, it can be
 prevented. It is said that prematurity is one of the most           B
 common causes of blindness and- is caused by an initial
  constriction and then rapid growth of blood vessels in the retina.
  When the blood vessels leak, they cause scarring. These scars
  can later shrink and pull on the retina, sometimes detaching it.
  The disease advances in severity through five stages - 1, 2, 3, C
  4 and 5 (5 being terminal stage). Medical literature suggests
  that stage 3 can be treated by Laser or Cryotherapy treatment
  in order to eliminate the abnormal vessels. Even in stage 4, in
  some cases, the central retina or macula remains intact thereby
                                                                     0
  keeping intact the central vision. When the disease is allowed
· to progress to stage 5, there is a total detachment and the
  retina becomes funnel shaped leading to blindness. There is
  ample medical literature on the subject. It is, however, not
  necessary to refer all of it. Some material relevant to the need E
  for check up for ROP for an infant is:

    ''All infants with a birth weight less than 1500 gms or
    gestational age less than 32 weeks are required to be
    screened for ROP "1
                                                                     F
    Applying either parameter, whether weight or gestational
    age, the child ought to have been screened. As stated
    earlier, the child was 1250 gms at birth and bom after
    29 weeks of pregnancy, thus making her a high risk
    candidate for ROP                                                G

         5. It is undisputed that the relationship of birth weight
 and gestational age to ROP as reproduced in NCDRC's order
 is as follows:
                                                                     H
  'AllMS Report dated 21.8.2007
108         SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A        "Most ROP is seen in very /ow-birth weight infants, and
         the incidence is inversely related to birth weight and
         gestational age. About 70-80% of infants with birth
         weight less than 1000 gms show acute changes,
         whereas above 1500 gms birth weight the frequency
B        fa/ls to less than 10%."

             6. Again, it seems that the child in question was clearly
  not in the category where the frequency was less than 10%
  since the baby was below 1500 gms. In fact, it is observed by
C the NCDRC in its order that the discipline of medicine reveals
  that all infants who had undergone less than 29 weeks of
  gestation or weigh less than 1300 gms should be examined
  regardless of whether they have been administered oxygen or
  not. It is further observed that ROP is a visually devastative
D disease that often can be treated successfully if it is diagnosed
  in time.

             7. The need for a medical check up for the infant in
      question was not seriously disputed by the respondents.
E
              8. The main cjefence of the respondents to the complaint
      of negligence against the appellant's claim for compensation
      was that at the time of delivery and management, no deformities
      were manifested and the complainant was given proper advice,
F     which was not followed. It was argued on behalf of the
      respondent that they had taken sufficient precautions, even
      against ROP by mentioning in the discharge summary as
      follows:

        "Mother confident; Informed about alarm signs; 1) to
G
        continue breast feeding 2) To attend post natal O.P on
        Tuesday."

       9. It must, however, be noted that the discharge
H summary shows that the above writing was in the nature of a
     V. KRISHNAKUMAR v. STATE OF TAMIL NADU & ORS.                    109
                   [S. A. BOBDE, J.]

    scrawl in the corner of the discharge· summary and we are in A
    agreement with the finding of the NCDRC that the said remarks
    are only a hastily written general warning and nothing more.
    After a stay of 25 days in the hospital, it was for the hospital to
    give a clear indication as to what was to be done regarding all
    possible dangers which a baby in these circumstances faces. B
    It is obvious that it did not occur to the respondents to advise
    the appellant that the baby is required to be seen by a
    paediatric ophthalmologist since there was a possibility of
    occurrence of ROP to avert permanent blindness. This
    discharge summary neither discloses a warning to the infant's C
    parents that the infant might develop ROP against which certain
    precautions must be taken, nor any signs that the Doctors were
    themselves cautious of the dangers of development of ROP.
    We are not prepared to infer from 'Informed about alarms signs' D
    that the parents were cautioned about ROP in this case. We
    find it unfortunate that the respondents at one stage took a
    stand that the appellant did not follow up properly by not
    attending on a Tuesday but claiming that.the mother attended
    on a Wednesday and even contesting the fact that she attended E
    on a Wednesday. It appears like a desperate attempt to cover
    up the gross negligence in not examining the child forthe onset
    of ROP, which is a standard precaution for a well known
    condition in such a case. In fact, it is notdisputed that the
    Respondent No.3 attended to and examined the baby at his F
    private clinic when the baby was 14-15 weeks and even then
    did not take any step to investigate into the onset of ROP. The
    Respondent No.4 also visited the appellant to check up the
    baby at the home of the appellant and there are prescriptions
    issued by the said Respondent No.4, which suggests that the G
    baby was indeed under his care from 4 weeks to 13 weeks.

           10. The NCDRC has relied on the report dated
    21.8.2007 of the All India Institute of Medical Sciences, New
4   Delhi (hereinafter referred to as 'AllMS'). In pursuance of the    H
4
•
I
110       SUPREME COURT REPORTS                 [2015) 8 S.C.R.

A order of the NCDRC, a medical board was constituted by AllMS
  consisting offive members, of which, four are ophthalmological
  specialists. The board has given the following opinion:-

      "A premature infant is not born with Retinopathy of
B     Prematurity (ROP), the retina though immature is
      normal for this age. The ROP u.sually starts
      developing 2-4 weeks after birth when it is
      mandatory to do the first screening of the child. The
      current guidelines are to examine and screen the
c     babies with birth weight<1500g and <32 weeks
      gestational age, starting at 31 weeks post-
      conceptional age (PAC) or 4 weeks after birth
      whichever is later. Around a decade ago, the
      guidelines in general were the same and the
D     premature babies were first examined at 31-33
      weeks post-conceptional age or 2-6 weeks after
      birth.

      There is a general agreement on these above
E     guidelines on a national and international level. The
      attached annexure explains some authoritative
      resources and guidelines published in national and
      international literature especially over the last
      decade.
F
      However, in spite of ongoing interest world over in
      screening and management of ROP anct advancing
      knowledge, it may not be possible to exactly predict
      which premature baby will develop ROP and to what
G     extent and why."

       Review of literature of ROP screening guidelines

        Year     Source     Fir:st          Who to screen
H                           Screening
 V. KRISHNAKUMAR v. STATE OF TAMIL NADU & ORS. 111
                        [S.A. BOBDE, J.]

                                                                        A
 2(00    jM-ericai          31 W<s PCA. or 4 <150Qlrrs birth
                         of W<s after tirth v.eight a <32
      l=a
      I
                         a. Wiictever lctEJ  W<s GL\or higher

 2003   s a
         Jalai           a. 31 Vlks PCA. or 34 <150Ql           birth
   .,    ln:liai           J W<s after orth v.eight cr <32              B
         (
               ...
             llU             Wiict-ever ea1iEJ    vJ<s GL\or hQher
 2003    l\zad et al. JIM\ 32 V>A<S PCA. or 45 · <150Ql         birth
                             vJ<s after tirth- v.eight cr <32
                             WiicteVer earlier    vJ<s GI\ or higher
 2002    Jlgg3rwa R et Al 32 Vlks PCA. or 40 <1500 gn birth             c
         ln:liai          J. vJ<s after orth W;)ight cr <32
         Fediatrics          Wiictever ea1iEJ     VlksGL\
 1g:)7   M-ericai            31-33 v.Aci FCA. or <1500 gn birth
     '   'kmm/            of 4-6 vJ<s after birth v.eight . cr <28
          Paedatrics et a.                        W<s GI\ or higher     D

 1006    l'v'ahestMari R et 32 vJ<s PCA. or 2 <1500 gn birth
         al. l\Btioral l\fe:j_ vJ<s after orth v.eight cr <Ii
         J. India·             Wiicrever is ea1ia- vJ<s GL\or 02>24
                                                   ITs                  E
 1008    Cryciherapy RCP 4-6 W<s after birth       <1250 grs birth
         Gra.ip                                    Wliaht

        One thing this report reveals clearly and t~at is that in
the present case the onset of ROP was reasonab1y                        F
foreseeable. We say this because it is well known that if a
particular danger could not reasonably have been anticipated
it cannot be said that a person has acted negligently, because
a reasonable man does not take precautions against
unforeseeable circumstances. Though it was fairly suggested             G
to the contrary on behalf of the respondents, there is nothing to
indicate that the disease of ROP and its occurrence was no'
known to the medical profession in the year 1996. This is
important because whether the consequences were
foreseeable or not must be~measured with reference to                   H
112           SUPREME COURT REPORTS                               [2015] 8 S.C.R


A     knowledge at the date of the alleged negligence, not with
      hindsight. We are thus satisfied that we are not looking at the
      1996 accident with 2007 spectacles. 2

              11. It is obvious from the report that ROP starts
B     developing 2 to 4 weeks after birth when it is mandatory to do
      the first screening of the child. The baby in question was
      admitted for a period of 25 days and there was no reason why
      the mandatory screening, which is an accepted practice, was
      not done. The report of the AllMS (supra) states that 'it may
C     not be possible to exactly predict which premature baby will
      develop ROP and to what extent and why'. This in our view
      underscores the need for a check up in all such cases. In fact,
      the screening was never done. There is no evidence
      whatsoever to suggest to the contrary. It appears from the
D     evidence that the ROP was discovered when the appellant
      went to Mumbai for a personal matter and took his daughter to
      a paediatrician, Dr. Raj iv Khamdar for giving DPT shots when
      she was 4% months. That Doctor, suspected ROP on an
      examination with naked eye even without knowing the baby's
E     history. But, obviously Respondent Nos.3 and 4 the Doctors
      entrusted with the care of the child did not detect any such
      thing at any time. The helpless parents, after detection got the
      baby's eye~ checked by having the baby examined by several
F     doctors at several places. Traumatised and shocked, they
      rushed to Puttaparthy for the blessings of Shri Satya Sai Baba
      and the baby was anesthetically examined by Dr. Deepak
      Khosla, Consultant, Department of Ophthalmology at Baba
      Super Specialty Hospital at Puttaparthy. Dr. Khosla did not take
G     up the case since the ROP had reachet. stage 5. After coming·
      back from Puttaparthy, the baby was examined by Dr. Tarun
      Sharma alongwith the retinal team of Shankar Netralaya, who
      were also of the same opinion. The parents apparently took
      the baby to Dr. Namperumal Swamy of Arvind Hospital,
H     2 See Roe v. Minister of Health [1954] 2 QB 66 and the discussion in 'Medical
      Negligence', Michael Jones, 4t~ Edition. Sweet & Maxwell, London 2008 at page 270.
 V.KRISHNAKUMAR v. STATEOFTAMILNADU&ORS.                            113
              [S. A. BOBDE, J.]

Madurai, who advised against surgery, stating that the baby's        A
condition was unfavourable for surgery. The appellant then learnt
of Dr. Michael Tresse, a renowned expert in Retinopathy
treatment for babies in the United States. He obtained a
reference from Dr. Badrinath, chief of Shankar Netralaya and
took his only child to the United States hoping for some ray of     B
light. The appellant incurred enormous expenses for surgery
in the United States but to no avail.

        12. Having given our anxious consideration to the
matter, we find that no fault can be found with the findings of C
the NCDRC which has given an unequivocal finding that at no
stage, the appellant was warned or told about the possibility
of occurrence of ROP by the respondents even though it was
their duty to do so. Neither did they explain anywhere in their
affidavit that they warned of the possibility of the occurrence of D
ROP knowing fully well that the chances of such occurrence
existed and that this constituted a gross deficiency in service,
nor did they refer to a paediatric ophthalmologist. Further it
may be noted that Respondent Nos. 3 & 4 have not appealed
to this Court against the judgment of the NCDRC and have E
thus accepted the finding of medical negligence against them.

       Deficiency in Service

        13. In the circumstances, we agree with the findings of F
the NCDRC that the respondents were negligent in their duty
and were deficient in their services in not screening the child
between 2 to 4 weeks after birth when it is mandatory to do so
and especially since the child was under their care. Thus, the
negligence began under the supervision of the Hospital i.e. G
Respondent No.2. The Respondent Nos. 3 and 4, who checked
the baby at his private clinic and at the appellant's home,
respectively, were also negligent in not advising sc' •ening for
ROP. It is pertinent to note that Respondent Nos. 3 and 4 carried
on their own private practice while being in the employment of H
114        SUPREME COURT REPORTS                      (2015) 8 S.C.R.


A     Respondent No. 2, which was a violation of their terms of
      service.

            Compensation

            14. The next question that falls for consideration is the
8
  compensation which the respondents are liable to pay for their
  negligence and deficiency in service. The child called
  Sharanya has been render~ blind for life. The darkness in
  her life can never be really compensated for in money terms.
c Blindness can have terrible consequences. Though, Sharanya
  may have parents now, there is no doubt that she will not have
  that protection and care forever. The family belongs to the
  middle class and it is necessary for the father to attend to his
  work. Undoubtedly, the mother would not be able to take
D Sharanya out everywhere and is bound to leave the child alone
  for reasonable spells of time. During this time, it is obvious
  that she would require help and maybe later on in life she would
  have to totally rely on such help. It is therefore difficult to imagine
  unhindered marriage prospects or even a regular career which
E she may have otherwise pursued with ease. She may also
  face great difficulties in getting education. The parents have
  already incurred heavy expenditure on the treatment of
  Sharanya to no avail. It is, thus, obvious that there should be
  adequate compensation for the expenses already incurred,
F the pain and suffering, lost wages and the future care that would
  be necessary while accounting for inflationary trends.

          15. There is no doubt that in the future Sharanya would
  require further medical attention and would have to incur costs
G on medicines and possible surgery. It can be reasonably said
  that the blindness has put Sharanya at a great disadvantage
  in her pursuit for making a good living to care for herself.

            16. At the outset, it may be noted that in such cases,
H this court has ruled out the computation of compensation
 V.KRISHNAKUMAR v. STATEOFTAMILNADU&ORS.                        115
              [S. A. BOBDE, J.] .

according to the multiplier method. (See Bairam Prasad vs. A
Kuna/ Saha, (2014) 1 SCC 384 and Nizam's Institute of
Medical Sciences vs. Prashant S. Ohananka and Others,
       e
(2009) sec 1.

      The court rightly warned against the straightjacket        B
approach of using the multiplier method for calculating
damages in medical negligence cases.

       Quantification of Compensation

       17.     The principle of awarding compensation that can C
be safely relied on is restitutio in integrum. This principle has
been recognized and relied on in Malay Kumar Ganguly vs.
Sukumar Mukherjee, (2009) 9 SCC 221 and in Bairam
Prasad's case (supra), in the following passage from the latter:
                                                                  0
   "170. Indisputably, grant of compensation involving an
  accident is within the realm of law of torts. It is based on
   the principle of restitutio in integrum. The said principle
  provides that a person entitled to damages should, as
   nearly as possible, get that sum of money which would          E
  put him in the same position as he would have been if
  he had not sustained the wrong. (See Livingstone v.
  Rawyards Coal Co.)."

  An application of this principle is that the aggrieved         F
  person should get that sum of money, which would put
  him in the same position if he had not sustained the wrong.
  It must necessarily result in compensating the aggrieved
  person for the financial loss suffered due to the event,
  the pain and suffering undergone and the liability that he/    G
  she would have to incur due to the disability caused by
  the event.
       Past Medical Expenses
       18. It is, therefore, necessary to consider the loss which H
116         SUPREME COURT REPORTS                [2015) 8 S.C.R.


A     Sharanya and her parents had to suffer and also to make a
      suitable provision for Sharanya's future.

          19. The appellant- V. Krishnakumar, Sharanya's father
  is the sole earning member of a middle class family. His wife
B is said to be a qualified accountant, who had to sacrifice her
  career to attend to the constant needs of Sharanya. Sharanya's
  treatment and the litigation that ensued for almost two decades
  has been very burdensome on account of the prolonged
  physical, mental and financial hardships, which her parents
C had to undergo. It appears that the total expenditure incurred
  by the appellant from the date of the final verdict of the NCDRC
  (27.5.2009) until December, 2013 is Rs.8, 13,240/-. The
  aforesaid amount is taken from the uncontroverted statement
  of expenditure submitted by the appeUant. The appellant has
D stated that he had incurred the following expenditure for
  Sharanya's treatment, for which there is no effective counter,
  till December, 2013:

        Medea/ Expenses Amount          Supporting Docl.ITlent
E
        a) lill Decanber 28,63, 771/-   Exhibit P1-P4
        2003
        b) Januay 2004- 2,57,600'-      Annexure A-8
        October 2007
        c)   27.5.2009 to 8, 13,240'-   I.A. No.2 ct 2014 in Ovil
F       December 2013                   Appeal No. 8065 of 2009

        d) Januay 2014 - 2,03,310'-     Based on I.A. No.2 of
        March2015                       2014 in Civil Appeal No.
                                        8065of 2009
G       Total             41,37,921/-
        (a)+(b)+(c)+(d)

       20. Since there is no reason to assume that there has
  been any change in the expenditure, we have calculated the
H expenditure from January 2014 to March 2015 at the same
 V. KRISHNAKUMAR v. STATE OFTAMILNADU &ORS. 117
               [S. A. BOBDE, J.) .

rate as the preceding period. In addition, we also deem it fit A
to award a sum of Rs. 1,50,000/-in lieu offhe financial hardship
undergone particularly by Sharanya's mother, who became her
primary caregiver and was thus prevented from pursuing her
own career. In Spring Meadows Hospital and Anotherv. Harjo/
Ahluwalia [1998 4 SCC 39) this court acknowledged the B
 importance of granting compensation to the parents of a victim
of medical negligence in lieu of their acute mental agony and
the lifelong care and attention they would have to give to the
child. This being so, the financial hardship faced by the parents,
in terms of lost wages and time must also be recognized. Thus, C
the above expenditure must be allowed.

       21. We accordingly direct that the above amount i.e.
Rs.42,87,921/-shall be paid by the Respondent Nos.1 to4. In
addition, interest at the rate of 6% p.a .. shall be paid to the D
appellant from the date of filing of the petition before the
NCDRC till the date of payment.

       Future Medical Expenses
                                                                    E
       22. ·Going by the uncontroverted statement of
expenditure for the period from the final verdict of the NCDRC
to December, 2013, the monthly expenditure is stated to be
 Rs 13,554/-, resulting in an annual expenditure of Rs 1,62,648/
-. Having perused· the various heads of expenditure very . F
carefully, we observe that the medical costs for Sharanya's
treatment will not remain static, but ?re likely to rise substantially
in the future years. Sharanya's present age is about 18 %years.
If ~er life expect~ncy is taken to be about 70 years, for the next
51 years, the amount of expenditure, at the same rate will work G
outto Rs. 82,95,048/-. It is therefore imperative that we account
for inflation to ensure that the present value of compensation
awarded for future medical costs is not unduly diluted, for no
fault of the victim of negligence. The impact of inflation affects
us al!. The value of today's rupee should be determined in the H
118          SUPREME COURT REPORTS                      [2015) 8 $.C.R.


A future. For instance, a sum of Rs. 100 today, in fifteen years,
  given a modest 3% inflation rate, would be worth only Rs.64.13.
  In WeHsv. Wells3 the House of Lords observed thatthe purpose
  of awarding a lump sum for damages for the costs of future
  care and loss of future earnings was to put the plaintiff in the
B same financial position as if the injury had not occurred, and
  consequently the courts had the difficult task of ensuring that
  the award maintained its value in real terms, despite the effect
  of inflation.
C             Apportioning For Inflation
              23. Inflation over time certainly erodes the value of
      money. The rate of inflation (Wholesale Price Index-Annual
      Variation) in India presently is 2 percent' as per the Reserve
o     Bank of India. The average inflationary rate between 1990-91
      and 2014-15 is 6. 76 percent as per data from the RBI. In the
      present case we are of the view that this inflationary principle
      must be adopted at a'conservative rate· of 1 percent per annum
      to keep in mind fluctuations over the next 51 years.
E
      The formula to compute the required future amount is
      calculated using the standard future value formula:-
                                      =
                                 FV PV x (1+r)"
                                 PV =Present Value
 F
                                 r = rate of return
                                 n   =time period
  Accordingly, the amount arrived at with an annual inflation rate
  of 1 percent over 51 years is Rs.1,37,78,722.90 rounded to
G Rs.1,38,00,000/-.

              Comparative law
              24. This Court has referred to case law from a number
H     •11~11 A.C 345.
      • Handbook of Statistics, Reserve Bank of India
     (.   ~--~:~f_'•,                 -• . . . . . . -.   •'
    V. KRISHNAKUMAR v. STATE OF TAM1LNADU & ORS. 119
                  [S. A. BOBDE, J.]· . ,
,   " .      .   ..
                 -    ~.   " ~   ·,
 of other major common law jurisdictions on the question of               A
 aceounting for inflation in the computation of awards in medical
 negligence cases. It is unnecessary to discuss it in detail. It is
 sufficient to note that the principle of apportioning for inflationary
fh.1ctuations in the final lump sum award for damages has been
1Jpheld and applied in numerous cases pertaining to medical               B
 negligence. In the United States of America, most states, as in
 Ireland and the United Kingdom, require awards for future
 medical costs to be reduced to their present value so that the
 damages can be awarded in the form of a one-time lump sum.
 The leading case in the United States, which acknowledges                C
r
 the impact of inflation while calculating damages for medical
 negligence was Jones & Laughlin Steel Corporation v.
 Pfeifer°, wherein that court recognized the propriety of taking
 into account the factors of present value and inflation in damage
                                                                          0
 awards. Similarly, in O'Shea v Riveiway Towing Co. 6, Posner
 J., acknowledged the problem of personal injury victims being
 severely undercompensated as a result of persistently high
 inflation.

       In Taylor v. O' Connor7 , Lord Reid accepted the                   E
       importance of apportioning for inflation:

      "It will be observed that I have more than once taken
      note of present day conditions - in particular rising
      prices, rising remuneration and high rates of interest. I           F
      am we// aware that there is a school of thought which
      holds that the law should refuse to have any regard to
      inflation but that calculations should be based on stable
      prices, steady or slowly increasing rates of
      remuneration and low rates of interest. That must, I think,
      be based either on an expectation of an early return to
      a period of stability or on a no§talgic reluctance to
      recognise change. It appears to me that some people
    5 (1983) 462 us 523
    6 (1982) 677 F.2d 1194, at 1199 (7th Cir)                             H
    7 [1971) A.C. 115
120          SUPREME COURT REPORTS                     [2015] 8 S.C.R.

A        fear that inflation will get worse, some think that it will go
         on much as at present, some hope that it will be slowed
         down, but comparatively few believe that a return to the
         old financial stability is likely in the foreseeable future.
         To take any account of future inflation will no doubt
B        cause complications and make estimates even more
         uncertain. No doubt we should not assume the worst
         but it would. I think. be quite unrealistic to refuse to take
         it into account at all."

C            In the same case Lord Morris of Borth-y-Gest also
      upheld the principle of taking into account future uncertainties.
      He observed:

         "It is to be remembered that the sum which is awarded
D        will be a once-for-a// or final amount which the widow
        must deploy so that to the extent reasonably possible
        she gets the equivalent of what she has lost. A learned
        ;udge cannot be expected to prophesy as to future
         monetary trends or rates of interest but he need not be
E       unmindful of matters which are common knowledge,
        such as the uncertainties as to future rates of interest
        and future levels of taxation. Taking a reasonable and
        realistic and common-sense view of all aspects of the
        matter he must try to fix a figure which is neither unfair
F       to the recipient nor to the one who has to pay. A learned
        judge might well take the view that a recipient would be
        ill-advised if he entirely ignored all inflationary trends
        and if he applied the entire sum awarded to him in the
        purchase of an annuity which over a period of years
G       would give him a fixed and predetermined sum without
        any provision which protected him against inflationary
         trends if they developed."
        More recently the Judicial Committee of the UK Privy
H       Council in Simon v. Helmot 8 l)as unequivocally
      8 (2012] UKPC 5
 V.KRISHNAKUMAR v. STATECFTAMILNADU&ORS.                           121
              [S. A. BOBDE, J.]

   acknowledged the principle, that the lump sum awarded            A
   in medical negligence cases should be adjusted so as
   to reflect the predicted rate of inflation.

        25. Accordingly, we direct that the said amount i.e.
Rs.1,38,00,000/- shall be paid, in the form of a Fixed Deposit,     B
in the name of Sharanya. We are informed that the said amount
would yield an approximate annual interest of Rs. 12,00,000/-

          26. We find from the impugned order of the NCDRC
 that the compensation awarded by that Forum is directed to c
  be paid only by Respondent Nos. 1 and 3 i.e. the State of Tamil
  Nadu and Dr. S. Gopaul, Neo-pediatrician, Government
  Hospital for Women & Children, Egmore, Chennai. No reason
  has been assigned by the Forum for relieving Respondent
  Nos.2 and 4. Dr. Duraiswami, Neo Natology Unit, Government D
  Hospital for Women & Children, Egmore, Chennai, who also
. treated Sharanya during the course. of his visits to the house
  of the appellant.

       27. It is settled law that the hospital is vicariously liable E
for the acts of its doctors vide Sa vita Garg vs. National Heart
Institute, (2004) 8 SCC 56, also followed in Bairam Prasad's
case (supra). Similarly in Achutrao Haribhau Khodwa v. State
of Maharashtra, (1996) 2 SCC 634 this court unequivocally
held that the state would be vicariously liable for the damages F
which may become payable on account of negligence of its
doctors or other employees. By the same measure, it is not
possible to absolve Respondent No. 1, the State of Tamil Nadu,
which establishes and administers such hospitals through its
Department of Health, from its liability.                        G ,

       Apportionment of Liability

       28. In the circumstances, we consider it appropriate to
apportion the liability of Rs. 1,38,00,000/- among the              H
122          SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A     respondents, as follows:

        a)   Rs. 1,30,00,000/- shall be paid by Respondent
             Nos. 1 and 2 jointly and severally i.e. The State of
             Tamil Nadu and the Director, Government Hospital
B            for Women &Children, Egmore, Chennai; and

        b) Rs. 8,00,000/- shall be paid by Respondent Nos.
            3 and 4 equally i.e. Rs. 4.0~,000/- by Or. S.
            Gopaul, Neo- pediatrician, Government Hospital
           for Women &Children, Egmore, Chennai and Rs.
c          4,00,000/- by respondent no. 4 i.e. Dr. Duraisamy,
            Neo Natology Unit, Government Hospital for
            Women & Children, Egmore, Chennai.

         The above mentioned amount of Rs. 1,38,00,000/-shall
D be paid by Respondent Nos. 1 to 4 within three months from
  the date .of this Judgment otherwise the said sum would attract
  a penal interest at the rate of 18% p.a.

           29. Further, we directthatthe amount of Rs. 42,87,921/-
E     in lieu of past medical expenses, shall be apportioned in the
      following manner:

        a) Respondent Nos. 1 and 2 are directed to pay Rs.
           40,00,000/- jointly, alongwith interest@6% p.a.
F          from the date of filing before the NCDRC; and

        b) Respondent Nos. 3 and 4 are directed to pay Rs.
            2,87,921/- in equal proportion, alongwith interest
            @ 6% p.a. from the date of filing before the
G           NCDRC.

           30. In the event the Respondent Nos. 1 and 3 have
      made any payment in accordance with the award of the
      NCDRC, the same may be adjusted.

H
 V. KRISHNAKUMAR v. STATE OF TAMIL NADU &ORS. 123
               [S.A. BOBDE, J.]

       31. Accordingly, Civil Appeal No. 8065 of 2009 is A
allowed in the above terms and Civil Appeal No. 5402 of2010
is dismissed. No costs.
Nidhi Jain                              Appeals disposed of.
                                                               8