IMPORTANT POINTS
1. Negligence – Duty of Public law - Negligence per se, however, assumes the duty because of public policy or law. “Negligence per se” is defined by the legal field as “negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence.
2. Negligence – Breach of Duty - In negligence cases, one must prove that there was a duty, that duty was breached, and the breach of that duty caused damages.
3. Negligence – Cause of Action - Negligence per se is not a separate cause of action from negligence suits. Negligence per se, however, assumes the duty because of public policy or law.
4. NABH - SOP - As per the NABH standard operating procedure (SOP), it is the responsibility of operating surgeon to send the surgical specimen for HPE.

ORDER

Dr. S.M. Kantikar, Presiding Member.—The instant Appeal filed against the Order of the State Commission dated 25.10.2018 in Consumer Complaint No. 246/2007, wherein the State Commission granted Rs. 20 lakh without any interest, which was much less than reasonable and just compensation.

2. There was delay of 84 days in filing the instant appeal. For the reasons stated in the application the delay is condoned.

3. The Appellants filed the present Appeal on three grounds:

(A) Enhancement of the compensation from Rs. 20,00,000/- to Rs. 50,00,000/-.

(B) The interest to be awarded on the amount of compensation either from the date of surgery(06.02.2006) or from filing of the complaint before the State Commission, New Delhi(2007)

(C) To Hold the doctor guilty and impose fine/penalty upon him.

4. We have heard the learned Counsel for the Parties.

5. Succinctly put the chronology of proceedings of the case, we note initially, vide Order dated 14.06.2013 the State Commission held the Opposite Parties Nos. 1 and 2 guilty of medical negligence and awarded the sum of Rs. 50 lakh along with interest @ 9% p.a. from the date of surgery (06.02.2006) along with Rs. 2 lakh as litigation cost.

6. Both the parties appealed the impugned order before this Commission; which by its Order dated 21.02.2018 remitted back the matter to the State Commission. The relevant observations of this Commission in both the appeals - F.A. No. 931 of 2016 and F.A. No. 1324 of 2016 are reproduced as below:

5. In that view of the matter, in our opinion, the order impugned in both the Appeals is unsustainable. In the instant case, admittedly, final arguments in the Complaint were heard by two Members – Judicial and Administrative but due to the retirement of the Administrative Member, probably to avoid fresh hearing in the case, the Judicial Member thought it advisable to pronounce the final order himself. It needs little emphasis that the order has to be pronounced by the “Bench” as constituted by the President of the Commission to hear the case and not by a “Bench” or a Single Member, if in either of the situations, final arguments have not been heard by that Bench or the Single Member, as the case may be. As noted above, in the present case, the final arguments in the Complaint were heard by two Members and, therefore, only those two Members were competent to pronounce the order, and not by the Member sitting singly. This is the fundamental rule, which cannot be sacrificed at the altar of administrative convenience.

6. Consequently, without going into the merits of the order challenged in these two Appeals, we set aside the same as being illegal on the afore-stated ground and restore the Complaint to the Board of the State Commission for fresh adjudication on merits.

7. After the remand, matter was heard and the State Commission awarded Rs. 20 lakh compensation with Rs.1 lakh as cost of litigation to the Complainants vide its Order dated 25.10.2018. The relevant operative paragraph is reproduced as below:

36. Keeping the principles detailed above and the facts and circumstances of the case, the age of the deceased, and other necessary and essential factors, we are of the considered view that it would be just and reasonable to award compensation of Rs. 20 Lakhs (Rupees Twenty Lakhs) to the complainants for the suffering, mental pain and agony caused. This may serve the purpose of bringing about a qualitative change in the attitude of the hospitals for providing service to the human beings as human beings. Human touch is necessary; that is their code of conduct; that is their duty and that is what is required to be implemented. Additionally an amount of Rs. One Lakh is awarded as litigation expenses and other miscellaneous charges.

8. The learned Senior Counsel for the Respondent (G.M. Modi Hospital) clarified that the hospital has not filed any Appeal and in compliance of the Order of State Commission, they have offered Rs. 20 lakh to the Complainant. However