Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Medical services—Medical negligence—Oncology— Radiotherapy—Death of patient due to lack of proper monitoring and excessive heat on affected portion of body—Lump sum compensation of Rs.5,00,000/- awarded by State Commission—Once a patient is admitted in a hospital it is responsibility of Hospital to provide best service and if it does not, then hospital cannot take shelter under technical ground that surgeon concerned or nursing staff was not impleaded and claim should be rejected on the basis of non-joinder of necessary parties—Deceased was employed as an Assistant Engineer in a private company at the time of his death he was the sole bread earner in family consisting of four members; loss of dependency on his death at the young age of about 46 years; loss on account of future prospects; level of devaluation of money each year, restoration of amount of compensation of Rs.8,00,000/-, awarded by District Forum as far back as in year 2007, would be just and adequate compensation—Balance amount of compensation shall be paid by Government of NCT.

       Held: It is clear from the afore-extracted pleadings that while strongly denying the allegation of negligence on the part of Dr. Deepali and Mrs. Suman Gupta, on the plea that the former had joined the department as Junior Resident Doctor only two days before the treatment had started and the latter was a trained technician in Radiotherapy, having an experience in the field for over 26 years, it was stated that treatment in the cobalt room is given as per the prescription of the treating doctors and it was the duty of the treating doctor (Dr. Manoj Sharma) to supervise the treatment. Certain doubts on the propriety etc. of remarks of Dr. Manoj Sharma, on the orders dated 10.11.1998 were also raised. A bare reading of the said paragraphs, coupled with Hospital’s specific stand in its Appeal before the State Commission, extracted in paragraph 13 (supra), clearly shows that, according to the Hospital itself, there was not only lack of proper supervision on the part of the treating doctor when the deceased was being subjected to Radiotherapy, even the dose prescribed for radiation was excessive, which was the cause of the death of late Shri Ramveer Singh. In other words, on Hospital’s own showing its doctor was negligent in treating the deceased and, therefore, in the light of the legal position, as noted above, LNJP Hospital, who had Dr. Manoj Sharma on its pay rolls, is liable for the negligence of the said doctor, notwithstanding the fact that the Complainants had not alleged any kind of medical negligence on his part. As noted supra, LNJP Hospital owed a duty to give proper treatment to the deceased – be it in prescription or in therapy, and as, according to it, the treatment given by its doctor, was improper, liability to pay compensation can be fastened on it alone. We hold accordingly.

       Time to advert to the third question, viz, the adequacy of compensation. As stated above, in their Complaint, the Complainants had claimed a total compensation of Rs.19,25,726/- under various heads. As against this, the District Forum awarded a lump sum compensation of Rs.8,00,000/- . The Complainants seemed to have resiled to their fate and accepted the said compensation, inasmuch as they did not approach the next Forum for enhancement. However, the said award having been challenged by the Opposite Parties, the State Commission reduced the compensation to a lump sum amount of Rs.5,00,000/-, which order is under challenge by both the parties.

        In Reshma Kumar and Ors. Vs. Madan Mohan and Anr. – (2009) 13 SCC 422, the Hon’ble Supreme Court, reiterated that the compensation awarded under the Act should be just. The Court also identified the factors which should be kept in mind while determining the amount of compensation.

       In this regard the following observations of the Supreme Court in Nizam’s Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors. – (2009) 6 SCC 1 may also be noticed:-

        “We must emphasize 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 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 the parties concerned.”

        Recently in Balram Prasad Vs. Kunal Shah and Ors. – (2014) 1 SCC 384, the Hon’ble Supreme Court has again emphasized that it is the duty of the 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.

       In the instant case, in addition to the loss of salary, Provident Fund, Family Pension etc. which the deceased would have been entitled to, the Complainants had also claimed compensation under several other specific heads viz. medical expenses, loss of earning of the elder son, harassment and mental agony etc. However, unfortunately hardly any evidence/material was brought on record by the Complainants in support of their claims under different heads. No documents worth its name, indicating the present earnings of the deceased, his future prospects, pay scales, pensionary benefits etc. were filed by the Complainants. Only bald assertions regarding average monthly expenditure of Rs.800/- and his elder son leaving studies in order to support the family on the demise of his father were made in the complaint. Under the circumstances, exercise to determine adequate compensation becomes difficult and leaves hardly any option but to apply a rule of thumb measure. Precisely, for this reason, the District Forum awarded a lump sum compensation of Rs.8,00,000/-, which included the medical expenses and by the same standard the State Commission reduced it to Rs.5,00,000/-. Under the given circumstances, bearing in mind the fact that: the deceased was employed as an Assistant Engineer in a private company; at the time of his death he was the sole bread earner in the family consisting of four members; the loss of dependency on his death at the young age of about 46 years; loss on account of future prospects; the level of devaluation of money each year, we are of the view that restoration of the amount of compensation of Rs.8,00,000/-, awarded by the District Forum as far back as in the year 2007, would be just and adequate compensation. We order accordingly.

       Resultantly, Revision Petition No. 4191/2008 by the Complainants is allowed and Revision Petition No. 191/2009 by the Government of NCT of Delhi is dismissed. Vide order dated 07.08.09, passed by this Commission in M.A. No.555 of 2009 in R.P.No.191/09, the Respondents/Complainants were granted liberty to withdraw the 50% of the total decretal amount awarded by the State Commission which was deposited with the District Forum in terms of our order dated 02.02.09. We direct that the balance amount of compensation shall be paid by the Government of NCT, Delhi by means of a demand draft in favour of Smt. Himanchal Kumari, wife of the deceased, within four weeks from the date of receipt of a copy of this order, failing which it would attract interest @ 9% p.a. from the date of the complaint till realization. The Complainants shall also be entitled to costs, quantified at Rs.25,000/-. (Paras 20 to 26)

       Result: Revision Petitions Partly allowed.