Compensation for permanent disability due to medical negligence must reflect the claimant's loss of earning capacity and be calculated according to established legal principles.

JUDGMENT

1. This petition has been filed by the petitioner inter-alia claiming compensation for the injury suffered by him due to negligence in his treatment at the respondent no.3 hospital.

2. This Court, on 27.11.2015, had passed the following order:

"1. The petitioner seeks mandamus to, the respondent no.1 Union of India (UOI), respondent no.2 Government of National Capital Territory of Delhi (GNCTD), respondent no.3 Medical Superintendent, BabuJagjivan Ram Memorial Hospital, respondent no.4 Medical Superintendent, Hindu Rao Hospital and respondent no.5 Medical Superintendent, LokNayak Jai Prakash Narayan (LNJP) Hospital, provide medical assistance and compensation to the petitioner for the loss of use of his right arm caused on account of medical negligence of the doctors/staff of respondent no.3 BabuJagjivan Ram Memorial Hospital.

2. The respondent no.3 BabuJagjivan Ram Memorial Hospital belongs to the respondent no.2 GNCTD.

3. It appears that the respondent no.4 Hindu Rao Hospital and respondent no.5 LNJP Hospital have been impleaded only to provide future medical assistance/treatment to the petitioner.

4. The petition was entertained and a Medical Board was constituted which has given Report dated 22nd March, 2011 (at page 94 of the paper book) inter alia to the effect that the right upper limb of the petitioner is affected from elbow downwards and in the long run the only treatment therefor is amputation of right forearm and hand at the elbow joint.

5. This Court thereafter constituted a Inquiry Committee to enquire into the cause and which Inquiry Committee has submitted Report dated 9th September, 2013 (at page 306 of the paper book) and which has concluded that the injury to the petitioner appears to be because of accidental injection into the artery, and complication arising from which, both staff nurse of respondent no.3 BabuJagjivan Ram Memorial Hospital could not recognise and take remedial measures. The Report attributes the cause of the injury to an error of judgment on the part of junior resident on duty in indentifying the complication of the case. It is further mentioned that even the senior resident of surgery who examined the patient twice failed to recognise the complication and manage the case appropriately.

6. Though the counsel for the respondent no.2 GNCTD has argued that since complicated questions of law and fact are entailed, the petitioner should be relegated to a civil suit but I am of the view that since this Court has entertained the petition and the same has remained pending and this Court has appointed, first a Medical Board and thereafter an Inquiry Committee to assess the injury to the petitioner and the cause thereof respectively, it is too late in the day to now change the course of action adopted in this petition and it would be unfair to now ask the petitioner, after five years, to approach the Civil Court. The same would also nullify all the efforts made by this Court during the pendency of this petition of constituting a Medical Board and Inquiry Committee, of senior doctors from the Government Hospitals.

7. From the Reports aforesaid it is clear that the petitioner has suffered an injury attributable to the respondent no.3 BabuJagjivan Ram Memorial Hospital of the respondent no.2 GNCTD.

8. The petitioner has thus become entitled to compensation from the respondent no.2 GNCTD.

9. The petitioner has however not quantified the compensation due to him. The counsel for the petitioner also is immediately not able to state, to what compensation the petitioner in such a situation would have been entitled to, applying the principles applicable to motor accident claims.

10. In the circumstances, the petitioner to within one week file an affidavit quantifying the compensation, applying the principles applicable to motor accident claim cases, and to furnish advance copy thereof to the coun