Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 266

SUPREME COURT OF INDIA
Abhay Manohar Sapre, Dinesh Maheshwari, JJ.
SHODA DEVI – Appellant(s)
Versus
DDU/RIPON HOSPITAL SHIMLA AND ORS. – Respndent(s)
Civil Appeal No. 2557 of 2019 (Arising out of Special Leave Petition (Civil) No. 26789 of 2018)
Decided on : 07-03-2019

Advocates Appeared:
For the Appellant :Aftab Ali Khan, M.Z. Chaudhary, Syed Mohammed Aatif, Ms. Heena Khan, Advocates.,
For the Respondent:Abhinav Mukerji, Mrs. Bihu Sharma, Siddharth Garg, Ms. Pratishtha Vij, Advocates.

IMPORTANT POINT
Medical negligence – General damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for human beings.

Headnote:(A) Consumer Protection Act, 1986 – Sections 2(1)(g), 2(1)(o) and 14(1)(d) – Medical services – Medical negligence – Acute arterial occlusion with ischemia of limb, caused by intra-arterial injection – National Commission allowed the appeal but enhanced compensation only to the tune of Rs. 2,00,000/- – Complainant-appellant seeks enhancement of amount of compensation with reference to disablement and loss suffered by her due to negligence of respondents – While findings on medical negligence on part of respondents do not call for any interference, clear case for enhancement of amount of compensation is made out – National Commission minutely examined evidence on record and concluded on medical negligence of respondents for several counts – Requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to t victim, while keeping in view pecuniary damages as also non-pecuniary damages like pain and suffering and loss of amenities of life – Appellant was 45 years of age when she suffered the medical negligence and consequences thereof, leading to amputation of her right arm – Appellant comes from a very poor and rural background and is covered under Integrated Rural Development Programme – Appellant awarded further amount of Rs. 10,00,000/- towards compensation, over and above amount awarded by State Commission and National Commission. (Paras 10, 13, 14, 16, 16.1, 17 and 18)
       (B) Torts – Medical negligence – Quantum of compensation – Ordinarily, general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for human beings – Award of compensation cannot go restrictive when victim is coming from a poor and rural background – Such granting of reasonability higher amount of compensation is necessary to serve dual purposes: one, to provide some succour and support to appellant against hardship and disadvantage due to amputation of right arm; and second, to send message to professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all human beings deserve to be treated with equal respect and sensitivity. (Paras 16.2 and 16.3)
       Facts of Case:
       Present appeal by special leave is directed against judgment and order dated 23.02.2018, as passed in First Appeal No. 348 of 2009, whereby National Consumer Disputes Redressal Commission has modified order dated 03.08.2009, as passed by the Himachal Pradesh State Consumer Disputes Redressal Commission in Complaint Case No. 11 of 2006; and while holding that State Commission had wrongly exonerated respondents for medical negligence and deficiency in service, has awarded compensation to complainant-appellant in sum of Rs. 2,00,000/- in addition to ex gratia amount of Rs. 2,93,526/- allowed by State Commission. In present appeal, complainant-appellant seeks enhancement of amount of compensation with reference to disablement and loss suffered by her due to negligence of respondents which led to the amputation of her right arm above elbow.
       Findings of Court:
       Appellant deserves to be allowed further an amount of Rs. 10,00,000/- towards compensation, over and above the amount awarded by State Commission and National Commission. Having regard to quantum of enhancement being allowed herein, it is also considered proper to grant 3 months’ time to respondents to make requisite payment and else, to bear burden of interest.
       Result : Appeal allowed.

JUDGMENT

Dinesh Maheshwari, J.

Leave granted.

2. This appeal by special leave is directed against the judgment and order dated 23.02.2018, as passed in First Appeal No. 348 of 2009, whereby the National Consumer Disputes Redressal Commission ('National Commission') has modified the order dated 03.08.2009, as passed by the Himachal Pradesh State Consumer Disputes Redressal Commission ('State Commission') in Complaint Case No. 11 of 2006; and while holding that the State Commission had wrongly exonerated the respondents for medical negligence and deficiency in service, has awarded compensation to the complainant-appellant in the sum of Rs. 2,00,000/- in addition to the ex gratia amount of Rs. 2,93,526/- allowed by the State Commission. In the present appeal, the complainant-appellant seeks enhancement of the amount of compensation with reference to the disablement and loss suffered by her due to the negligence of the respondents, which led to the amputation of her right arm above the elbow.

3. We may observe at the outset that the impugned judgment and order dated 23.02.2018, as passed by the National Commission in First Appeal No. 348 of 2009, holding the respondents liable for compensation on account of medical negligence, was sought to be questioned by the Medical Officer concerned (respondent No. 2 herein) by way of a Petition for Special Leave to Appeal (C) No. 15888 of 2018 that was considered and dismissed by this Court on 11.07.2018.

4. Having regard to the subject matter of this appeal, the background aspects, so far relevant for the present purpose, could be noticed, in brief, as follows:

4.1 The appellant, who had been suffering with abdomen pain and menstrual problems, approached the respondent No.1 Deen Dayal Upadhyay Hospital - a government hospital at Shimla ('DDU Hospital') where she was examined by the respondent No. 2 on 10.07.2006 and was diagnosed with having fibroid and endometrial hyperplasia. On 18.07.2006, after finding that she had no relief from medicines, the appellant was advised to undergo a minor operation viz., Fractional Curettage (D & C).

4.2. On 19.07.2006, for the purpose of the operation aforesaid, the respondent No. 3, a para-medico, administered intravenous injection of Phenergan and Fortwin directly by a syringe in the right arm of the appellant. The case of the appellant has been that she continuously suffered excruciating pain during the entire surgical procedure and despite bringing the fact to the knowledge of respondent Nos. 2 and 3 during and after the procedure, no measures were taken to redress and reduce the discomfort suffered by her.

4.3. Due to the complications that had arisen in regard to the arm of the appellant, which could not be handled by the team of doctors at DDU Hospital, she was shifted to Indira Gandhi Medical College and Hospital, Shimla ('IGMCH') in a taxi arranged by her husband. In IGMCH, she was administered Brachial Plexus Block treatment immediately and, on being examined by CW-2, she was diagnosed with "acute arterial occlusion with ischemia of limb, caused by intra-arterial injection", which ultimately resulted in CW-1 amputating her right arm above the elbow on 22.07.2006.

5. Having thus suffered the loss of limb, the appellant, apart from filing FIR under Section 338 IPC on 27.07.2006 at Police Station, Sadar, Shimla, preferred the consumer complaint on 28.09.2006, seeking compensation with the submissions, inter alia, that after several hours of complaints, the respondent No. 2 attended on her with a team of doctors consisting of general physician and gynecologist in a rather casual manner; that no proper service was provided to her; that she was shifted to IGMCH only in a taxi arranged by her husband; and that she suffered amputation only due to the medical negligence of the medicos and para-medicos of the respondent No. 1.

6. The respondents filed their separate counter affidavits in opposition to the complaint so made by the appellant. The sum and substance of s

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2019 Supreme(SC) 266

SUPREME COURT OF INDIAAbhay Manohar Sapre, Dinesh Maheshwari, JJ.SHODA DEVI – Appellant(s)VersusDDU/RIPON HOSPITAL SHIMLA AND ORS. – Respndent(s)Civil Appeal No. 2557 of 2019 (Arising out of Special Leave Petition (Civil) No. 26789 of 2018)Decided on : 07-03-2019

IMPORTANT POINTMedical negligence – General damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for human beings.

Cases Referred (2)

SUPREME COURT OF INDIA
Abhay Manohar Sapre, Dinesh Maheshwari, JJ.
SHODA DEVI – Appellant(s)
Versus
DDU/RIPON HOSPITAL SHIMLA AND ORS. – Respndent(s)
Civil Appeal No. 2557 of 2019 (Arising out of Special Leave Petition (Civil) No. 26789 of 2018)
Decided on : 07-03-2019

IMPORTANT POINT
Medical negligence – General damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for human beings.