2013 Supreme(SC) 986

SUPREME COURT OF INDIA
CHANDRAMAULI KR. PRASAD And V. GOPALA GOWDA, JJ.
Dr. Balram Prasad - Appellant
Vs.
Dr. Kunal Saha & Ors. - Respondents
CIVIL APPEAL NO.2867 OF 2012
WITH
CIVIL APPEAL No.692 of 2012
Advanced Medicare & Research Institute Ltd. - Appellant
Vs.
Dr. Kunal Saha & Ors.- Respondents
WITH
CIVIL APPEAL No.2866 of 2012
Dr. Kunal Saha - Appellant
Vs.
Dr. Sukumar Mukherjee & Ors. - Respondents
WITH
CIVIL APPEAL No.731 of 2012
Dr. Baidyanath Haldar - Appellant
Vs.
Dr. Kunal Saha & Ors. - Respondents
AND
CIVIL APPEAL No.858 of 2012
Dr. Sukumar Mukherjee - Appellant
Vs.
Dr. Kunal Saha & Ors. - Respondents
Decided On : 24-10-2013

IMPORTANT POINT
The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right. This decision was to act as a deterrent and a reminder to those doctors, Hospitals, the Nursing Homes and other connected establishments who do not take their responsibility seriously.

Headnote:Civil Procedure Code, - Order II Rule 2- Consumer Protection Act, 1986 - Section 23 - 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 Hospital that the additional claim made by the claimant was rightly not considered by the National Commission for the reason that the same is not supported by pleadings by filing an application to amend the same regarding the quantum of compensation and the same could not have been amended as it is barred by the limitation provided under Section 23 of the Consumer Protection Act, 1986 and the claimant is also not entitled to seek enhanced compensation in view of Order II Rule 2 of the CPC as he had restricted his claim at Rs.77,07,45,000/-, is not sustainable in law. (Para 84)

        Also, in view of the above reasoning the contention that the claimant has waived his right to claim more compensation in view of the Order II Rule 2 of CPC as pleaded by the AMRI Hospital and the appellant-doctors is also held to be wholly unsustainable in law. The claimant is justified in claiming additional claim for determining just and reasonable compensation under different heads. (Para 94)

        Medical Negligence- Duty of care towards patients- The doctors, Hospitals, the Nursing Homes and other connected establishments are to be dealt with strictly if they are found to be negligent with the patients who come to them pawning all their money with the hope to live a better life with dignity. The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right. (Para 149)

        Finally, we hope and believe that the institutions and individuals providing medical services to the public at large educate and update themselves about any new medical discipline and rare diseases so as to avoid tragedies such as the instant case where a valuable life could have been saved with a little more awareness and wisdom from the part of the doctors and the Hospital. (Para 150)

        Medical Negligence- Quantum of compensation-Based on the income of the deceased- Onus by adducing any positive evidence of income-Status, future prospects and educational qualification of the deceased must be judged for deciding adequate, just and fair compensation. (Para 84)

        Medical Negligence- Quantum of compensation- Vicarious liability of hospital for the acts of both doctors on the panel and the visiting doctors - The appellant-AMRI Hospital is vicariously liable for its doctors. It is clearly mentioned in Savita Garg's case that a Hospital is responsible for the conduct of its doctors both on the panel and the visiting doctors. We, therefore, direct the appellant-AMRI Hospital to pay the total amount of compensation with interest awarded in the appeal of the claimant which remains due after deducting the total amount of Rs.25 lakhs payable by the appellants- doctors as per the Order passed by this Court while answering the point no. 7. (Para 109)

        Medical Negligence- Quantum of compensation-Objective and pattern of payment of compensation- Principle of restitutio-in-integram- 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. (Para 91)

        Medical Negligence- Quantum of compensation-Multiplier method-This Court is skeptical about using a strait jacket multiplier method for determining the quantum of compensation in medical negligence claims. On the contrary, this Court mentions various instances where the Court chose to deviate from the standard multiplier method to avoid over- compensation and also relied upon the quantum of multiplicand to choose the appropriate multiplier. Therefore, submission made in this regard by the claimant is well founded and based on sound logic and is reasonable as the National Commission or this Court requires to determine just, fair and reasonable compensation on the basis of the income that was being earned by the deceased at the time of her death and other related claims on account of death of the wife of the claimant which is discussed in the reasoning portion in answer to the point Nos. 1 to 3 which have been framed by this Court in these appeals. Accordingly, we answer the point No. 4 in favour of the claimant holding that the submissions made by the learned counsel for the appellant-doctors and the AMRI Hospital in determination of compensation by following the multiplier method which was sought to be justified by placing reliance upon Sarla Verma and Reshma's cases (supra) cannot be accepted by this Court and the same does not inspire confidence in us in accepting the said submission made by the learned senior counsel and other counsel to justify the multiplier method adopted by the National Commission to determine the compensation under the head of loss of dependency. (Para 97)

        Medical Negligence- Quantum of compensation-Interest on compensation- Therefore, the National Commission in not awarding interest on the compensation amount from the date of filing of the original complaint up to the date of payment of entire compensation by the appellant-doctors and the AMRI Hospital to the claimant is most unreasonable and the same is opposed to the provision of the Interest Act, 1978. Therefore, we are awarding the interest on the compensation that is determined by this Court in the appeal filed by the claimant at the rate of 6% per annum on the compensation awarded in these appeals from the date of complaint till the date of payment of compensation awarded by this Court. (Para 102)

        Medical Negligence- Quantum of compensation-Contributory negligence by the claimant- The claimant though over-anxious, did to the patient what was necessary as a part of the treatment. The National Commission erred in reading in isolation the statement of this Court that the claimant's action may have played some role for the purpose of damage. (Para 125)

        The National Commission erred in holding that the claimant had contributed to the negligence of the appellant-doctors and the Hospital which resulted in the death of his wife when this Court clearly absolved the claimant of such liability and remanded the matter back to the National Commission only for the purpose of determining the quantum of compensation. Hence, we set aside the finding of the National Commission and re-emphasize the finding of this Court that the claimant did not contribute to the negligence of the appellants-doctors and AMRI Hospital which resulted in the death of his wife. (Para 127)

        Medical Negligence- Quantum of compensation-Cost of litigation- Travel expenses to India by US citizen for court cases- The claim of Rs.1,12,50,000/- made by the claimant under the head of loss of income for missed work, cannot be allowed by this Court since, the same has no direct nexus with the negligence of the appellant- doctors and the Hospital. The claimant further assessed his claim under the head of 'Travel expenses over the past 12 years' at Rs.70,00,000/-. It is pertinent to observe that the claimant did not produce any record of plane fare to prove his travel expenditure from U.S.A. to India to attend the proceedings. However, it is an undisputed fact that the claimant is a citizen of U.S.A. and had been living there. It cannot be denied that he had to incur travel expenses to come to India to attend the proceedings. Therefore, on an average, we award a compensation of Rs.10 lakhs under the head of 'Travel expenses over the past twelve years'.

        Further, the claimant argues that he has spent Rs.1,65,00,000/- towards litigation over the past 12 years while seeking compensation under this head. Again, we find the claim to be on the higher side. Considering that the claimant who is a doctor by profession, appeared in person before this Court to argue his case. We acknowledge the fact that he might have required rigorous assistance of lawyers to prepare his case and produce evidence in order. Therefore, we grant a compensation of Rs.1,50,000/- under the head of 'legal expenses'. Therefore, a total amount of Rs. 11,50,000/- is granted to the claimant under the head of 'cost of litigation'. (Para 99)

        Medical Negligence- Quantum of compensation-Loss of future prospects-. In view of the aforesaid observations and law laid down by this Court with regard to the approach by the Commission in awarding just and reasonable compensation taking into consideration the future prospects of the deceased even in the absence of any expert's opinion must have been reasonably judged based on the income of the deceased and her future potential in U.S.A. (Para 89)

        Medical Negligence- Quantum of compensation-Loss of future prospects of the deceased- While determining the income of the deceased, we rely on the evidence on record for the purpose of determining the just, fair and reasonable compensation in favour of the claimant. It would be just and proper for us to take her earning at $40,000 per annum on a regular job. We further rely upon the paragraphs in the cases of Sarla Verma and Santosh Devi referred to supra while answering the point no. 1, to hold that 30% should be added towards the future loss of income of the deceased. Also, based on the law laid down by this Court in catena of cases referred to 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. (Para 132)

        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. (Para 133)

        Medical Negligence- Quantum of compensation- Non-pecuniary expenses- Therefore, under the head of 'loss of income of the deceased' the claimant is entitled to an amount of Rs.5,72,00,550/- which is calculated as [$40,000+(30/100x40,000$)-(1/3 x 52,000$) x 30 x Rs.55/- ] = Rs.5,72,00,550/-. (Para 134)

        Medical Negligence- Quantum of compensation- Non-pecuniary expenses - Loss due to pain and suffering and loss of amenities- the deceased had undergone the ordeal of pain for 18 long days before she breathed her last. In this course of period, she has suffered with immense pain and suffering and undergone mental agony because of the negligence of the appellant-doctors and the Hospital which has been proved by the claimant and needs no reiteration. (Para 143)

        Therefore, the claim of Rs.4,50,00,000/- by the claimant is excessive since it goes against the amount awarded by this Court under this head in the earlier cases referred to supra. We acknowledge and empathise with the fact that the deceased had gone through immense pain, mental agony and suffering in course of her treatment which ultimately could not save her life, we are not inclined to award more than the conventional amount set by this Court on the basis of the economic status of the deceased. Therefore, a lumpsum amount of Rs.10 lakhs is awarded to the claimant. (Para 145)

        Medical Negligence- Quantum of compensation- Non-pecuniary expenses - Emotional distress, pain and suffering for the claimant of the deceased- However, regarding claim of Rs.50,00,000/- by the claimant under the head of 'Emotional distress, pain and suffering for the claimant' himself, we are not inclined to award any compensation since this claim bears no direct link with the negligence caused by the appellant- doctors and the Hospital in treating the claimant's wife. (Para 146)

        Medical Negligence- Quantum of compensation-Pecuniary damages- Medical expenses- An amount of Rs.23 lakhs has been claimed by the claimant under this head. However, he has been able to produce the medical bill only to the extent of Rs.2.5 lakhs which he had paid to the Breach Candy Hospital, Mumbai. Assuming that he might have incurred some more expenditure, the National Commission had quantified the expenses under this head to the tune of Rs.5 lakhs. We still consider this amount as insufficient in the light of the fact that the deceased was treated at AMRI Hospital as an in-patient for about a week; we deem it just and proper to enhance the compensation under this head by Rs.2 lakhs thereby awarding a total amount Of Rs.7 lakhs under this head. (Para 136)

        Medical Negligence- Quantum of compensation-Pecuniary damages-Travel and hotel expenses- The claimant has sought for compensation to the tune of Rs.7 lakhs for travel and expenses for 11 days he had to stay in Mumbai for the treatment of his wife. However, again he has failed to produce any bills to prove his expenditure. Since, his travel to Mumbai for the treatment of his wife is on record, the National Commission has awarded compensation of Re.1 lakh under this head. We find it fit and proper to enhance the compensation by Rs.50,000/- more considering that he had also incurred some unavoidable expenditure during his travel and stay in Mumbai at the time of treatment of the deceased. (Para 137)

        However, with respect to the claim made under the cost of chartered flight, a sum of Rs.5,00,000/- is already awarded by the National Commission and we are not inclined to interfere with the same in absence of any evidence which 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'. (Para 138)

        Medical Negligence- Individual liability of doctor of a hospital- 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. (Para 111)

        Therefore, the negligence of Dr. Sukumar Mukherjee in treating the claimant's wife had been already established by this Court in Malay Kumar Ganguly's case. Since he is a senior doctor who was in charge of the treatment of the deceased, we are inclined to mention here that Dr. Mukherjee has shown utmost disrespect to his profession by being so casual in his approach in treating his patient. Moreover, on being charged with the liability, he attempted to shift the blame on other doctors. We, therefore, in the light of the facts and circumstances, direct him to pay a compensation of Rs.10 lakhs to the claimant in lieu of his negligence and we sincerely hope that he upholds his integrity as a doctor in the future and not be casual about his patient's lives. (Para 113)

        Similar to the appellant Dr. Sukumar Mukherjee, the appellant Dr. Baidyanath Haldar is also a senior doctor of high repute. However, according to the findings of this Court in Malay Kumar Ganguly's case, he had conducted with utmost callousness in giving treatment to the claimant's wife which led to her unfortunate demise. The appellant Dr. Baidyanath Haldar too, like Dr. Sukumar Mukherjee, made every attempt to shift the blame to the other doctors thereby tainting the medical profession who undertook to serve. This Court thereby directs him to pay Rs.10 lakhs as compensation to the claimant in lieu of his negligence in treating the wife of the claimant. (Para 115)

        It is pertinent for us to note the shifting of blames on individual responsibility by the doctors specially the senior doctor as recorded by this Court which is a shameful act on the dignity of medical profession. (Para 120)

        We acknowledge the fact that Dr. Balram Prasad was a junior doctor who might have acted on the direction of the senior doctors who undertook the treatment of the claimant's wife in AMRI-Hospital. However, we cannot lose sight of the fact that the appellant Dr. Balram Prasad was an independent medical practitioner with a post graduate degree. He still stood as a second fiddle and perpetuated the negligence in giving treatment to the claimant's wife. This Court in Malay Kumar Ganguly's case found him to be negligent in treating the claimant's wife in spite of being the attending physician of the Hospital. But since he is a junior doctor whose contribution to the negligence is far less than the senior doctors involved, therefore this Court directs him to pay a compensation of Rs. 5 lakhs to the claimant. (Para 122)

        Medical Negligence- Quantum of compensation-Enhancement of compensation- Effect of inflation- It is an undisputed fact that the claim of the complainant has been pending before the National Commission and this Court for the last 15 years. The value of money that was claimed in 1998 has been devalued to a great extent. (Para 80)

        Using the C.I.I. as published by the Government of India, the original claim of Rs.77.7 crores preferred by the claimant in 1998 would be equivalent to Rs.188.6 crores as of 2013 and, therefore the enhanced claim preferred by the claimant before the National Commission and before this Court is legally justifiable as this Court is required to determine the just, fair and reasonable compensation. (Para 82)

       Facts of the case :

        The claimant, the appellant-Hospital and the doctors were aggrieved by the amount of compensation awarded by the National Commission for the death of the wife of the claimant caused due to medical negligence of doctors and hospital and also the manner in which liability was apportioned amongst each of them. While the claimant was aggrieved by the inadequate amount of compensation, the appellant-doctors and the Hospital found the amount to be excessive and too harsh.

       Findings of the Court :

        The claimant is entitled for enhanced compensation.

       Result : Award modified. A total amount of Rs.6,08,00,550/- is the compensation awarded.