DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS

Citation: [2013] 12 S.C.R. 30

Court: Supreme Court of India

Bench: C.K. PRASAD, V. GOPALA GOWDA

Case summary

DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS.pdf

Judgment text

[2013] 12 S. C. R. 30 DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. (Civil Appeal No. 2867 of 2012 etc. ) OCTOBER 24, 2013 [CHANDRAMAULI KR. PRASAD AND V. GOPALA GOWDA, JJ. ] CONSUMER PROTECTION ACT, 1986: Complaint - Medical negligence - Contributory negligence - Death of an US f)ased patient in hospital in India - National Commission holding the hospital and doctors liable for medical negligence as also the husband of deceased liable for contributory negligence and, as such, deducting 10% towards contributory negligence from compensation, awarding Rs. 1,55,58,750 to claimant - Held: Appellant-Hospital is vicariously liable for its doctors and is, therefore, directed to pay total amount of compensation amounting to Rs. 6, 08, 00, 5501-, under various heads as detailed in judgment, after deducting Rs.

25 lakhs payable by appellantsdoctors - National Commission erred in holding that claimant had contributed to negligence of appellant-doctors and Hospital which resulted in death of his wife when Supreme Court had clearly absolved the claimant of such liability and remanded the matter back to National Commission only for determining the quantum of compensation - Finding of National Commission in this regard is set aside and it is reemphasized that claimant did not contribute to negligence of appellants-doctors and Hospital which resulted in death of his wife - Consumer Protection Rules, 1987 - r. ·r4(c).

Enhancement of compensation by complainant subsequent to filing of claim petition - Claimant making additional claims by way of affidavit before National Commission - Held: Claim for enhancement of compensation by claimant is justified - Claimant is entitled for enhanced compensation under certain items in additional claim preferred before National Commission - Further, claim of claimant having remained pending for 15 years, value of money has devalued to a great extent - Therefore, inflation should be considered while deciding the quantum of compensation - It is wholly untenable in law for the 'Hospital and the doctors to plead that without there being an amendment to the claim petition, the claimant is not entitled to seek the additional claims by way of affidavit, and that the claim is ~arred by limitation -- Supreme Court has got the power under Art.

136 of the Constitution and the duty to award just and reasonable compensation to do complete justice to the affected claimant - Code of Civil Procedure, 1908 - Constitution of India, 1950 - Art. 136. Just and fair compensation - Held: Status, future prospects and educational qualification of deceased must be judged for deciding adequate, just and fair compensation - Principle of just and reasonable compensation is based on 'restitutio in integrum', i. e. , claimant must receive the sum of money which would put him in the same position as he would have been if he had not sustained the wrong - Court is duty bound and entitled to award just compensation' irrespective of the fact whether any plea in that behalf was raised by claimant or not. Future prospects of income - Held, 'Future loss.

of income' is different from 'future prospects of income' in terms of potential of victim - Jn awarding just and reasonable compensation, future prospects of deceased must have been reasonably judged by the National Commission. Medical negligence - Compensation - Multiplier method Held: Just, fair and reasonable compensation has to be determined on the basis of the income of aeceased at the time of death of the victim and other related claims on account of the death - Therefore, the plea to apply tile multiplier method in determination of compensation, does not inspire confidence.

Medical negligence - Death of patient - Compensation towards loss of income of deceased - Held: While determining the income of deceased, evidence on record has to be relied on - Further, 30% added towards future loss of income of deceased - 113 of total income is required to be deducted towards personal expenditure of deceased - Estimating the life expectancy of a healthy person as 70 years, compensation to be awarded by multiplying the total loss of income by 30. Medical negligence - Death of patient - Claim by husband under the heads loss of income for missed work, travel expenses and legal expenses - Held: Claim towards missed work cannot be allowed as the same has no direct . nexus with the negligence of appellant-doctors and hospital - - However, claim towards travel expenses and legal expenses, partly allowed. Other pecuniary damages - Medical ni9gligence - Death ofpatient -- Expenses incurred by claimant towards treatment, travel and hotel expenses in this regard, allowed.

Non-pecuniary damages -Medical negligence - Death of patient -- Compensation under the head )Jain and suffering of patient during the course of treatment', allowed - Loss of consortium, allowed -- However, under the head, 'emotional distress, pain and suffering for claimant himself', no compensation can be awarded since this cl;3im bears no direct link with negligence of hospital and doctors in treating claimant's wife. Medical negligence - Interest on compensation amount - Held: Not awarding interest by National Commission on compensation amount from the date of filing of original complaint up to the date of payment is most unreasonable and is opposed to provisions of Interest Act - Therefore, 6% interest is awarded on the compensation finally determined from date of the petition till payment - Interest Act, 1978.

Medical Negligence -- Liability of nursing homes, hospitals and doctors - Need of an appropriate legislation - Held: Doctors, hospitals and nursing homes and other connected establishments are required to be dealt with strictly if they are found to be negligent with patients and do not take their responsibility seriously - Central and State Governments may consider enacting laws wherever there is absence of one, for effective functioning of private hospitals and nursing homes. The wife of the claimant-respondent no. 1(C. A. No. 692/2012) died while she was undergoing treatment in the . appellant Hospital. Respondent no. 1 filed a claim petition. Initially the claim was filed for Rs. 77,07,45,000/and later the same was amended by claiming a further sum of Rs. 20,00,00,000/-.

After the case of Malay Kumar 1 Ganguly was remanded by Supreme Court, the National Consumer Disputes Redressal Commission awarded the compensation holding the hospital and the four doctors guilty of medical negligence. The four doctors who had treated the deceased were directed to pay Rs. 25,00,000/ - each besides the cost of litigation. The National Commission deducted 10% of the compensation towards the contributory negligence of the claimant holding that he had interfered with the treatment, and awarded Rs. 1,55,58,750/- as compensation payable to the claimant. One of the doctors died· subsequently. The decision of the National Commission was challenged in the instant appeals by the Hospital, the doctors as also by the claimant.. · The rival submissions of the parties were but before this Court and the following issues were to be considered by the Court: "1) Whether the claim of the claimant for enhancement of compensation in his appeal is justified.

8 If it is so, for what compensation he is entitled to? 2) While making additional claim by way of affidavit before the National Commission when amending the claim petition, whether the claimant is entitled for compensation on the enhanced claim preferred before the National Commission? 3(a) Whether the claimant seeking to amend the claim of compensation under certain heads in the original claim petition has forfeited his right of claim under Order 0 II Rule 2 of CPC as pleaded by the Hospital? 3(b) Whether the claimant is justified in claiming additional amount for compensation under different heads without following the procedure contemplated under the provisions of the Consumer Protection Act and the Rules? 4) Whether the National Commission is justified in adopting the multiplier method to determine the compensation and to award the compensation in favour of the claimant?

5) Whether the claimant is entitled to pecuniary damages under the heads of loss of employment, loss of his property and his traveling expenses from U. S. A. to India to conduct the proceedings in his claim petition? 6) Whether the claimant is entitled to the interest on the compensation that would be awarded? 7) Whether the compensation awarded in the impugned judgment and the apportionment of the compensation amount fastened upon the doctors and the hospital requires interference and whether the claimant is liable for contributory negligence and deduction of compensation under this head? 8) To what Order and Award the claimant is entitled to in these appeals? " Disposing of the appeals, the Court HELD: Answer to Point nos. 1, 2 and 3 1. 1 The claim for enhancement of compensation by the claimant in his appeal is justified for the following reasons: The National Commission has rejected the claim of the claimant for "inflation" made by him without assigning any reason whatsoever.

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. This Court has repeatedly affirmed that inflation of money should be considered while deciding the quantum of compensation. [para 81] [102-E-G] Reshma Kumari v. Madan Mohan 2009 (11) SCR 305 =(2009) 13 SCC 422 Govind Yadav Vs. New India Insurance Co. Ltd. (2011) 1osec 683, Ibrahim Vs. Raju (2011) 1osec 634 - relied on. 1. 2 Using the C. 1. 1. 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 ! ljati9nal. Commission and before this Court is legally justifiable as this Court is required to determine the just, fair and reasonable compensation.

Therefore, this Court is required to consider the relevant aspect of the matter, namely, that there has been steady inflation over the period of 15 years and that money has been devalued greatly. Therefore, the decision of the National Commission in confining the grant of compensation to the original claim of Rs. 77. 7 crores preferred by the claimant under different heads and awarding meager compensation in the impugned judgment, is wholly unsustainable in law as the same is contrary to the legal principles laid down by this Court. Therefore, the claim for enhancement of compensation is allowed. [para 82) [105-A-B, D-F] 2. As regards the claim for additional compensation of about Rs.

20 crores in addition to the initial claim, made in 2011, the rejection of the additional claims by the National Commission without consideration on the assumption that the claims made by the claimant before it cannot be changed or modified without pleadings under any condition is contrary to the decisions of this Court. The finding of fact on the basis of which the National Commission rejected the claim is based on untenable reasons. The claim of the claimant for additional compensation is accepted as it is supported by the decisions of this Court and the same is well founded in law. It is the duty of Tribunals, Commissions and Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation. Therefore, this Court is of the view that the claimant is entitled for enhanced compensation under certain items made by the claimant in additional claim preferred by him before the National Commission.

[para 83-84) [105-G; 106-F-G; 109-E-H; 110-A] Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors. (2009) 9 SCR 313 = (2009) 6 SCC 1; Oriental Insurance Company Ltd. Vs. Jashuben & Ors. 2008 (2) SCR 930 = (2008) 4 SCC 162; R. D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors. 1995 (1) SCR 75 = (1995) 1 SCC 551; Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee (2009) 13 SCR 1 = (2009) 9 SCC 221; Raj Rani & Ors Vs. Oriental Insurance Company Ltd. & Ors. (2009) 7 SCR 1168 = (2009) 13 sec 654 - relied on. 3. 1 Status, future prospects and educational qualification of the deceased must be judged for deciding adequate, just and fair compensation. Further, it is an undisputed fact that the victim was a graduate in psychology from a highly prestigious school in New York. She had a brilliant future.

However, the National Commiss;ion has calculated the entire compensation and prospective loss of income solely based on a pay receipt showing a paltry income of only $30,000 per year which she was earning <1s a graduate student. Therefore, the National Commission has committed grave error in taking that figure to determine compensation under the head of loss of olependency and the same is contrary to the observath>ns made by this Court. [para 84-85] [110-F-H; 111-A] R. K. Malik Vs. Kiran Pal 2009 (10) SCR 87= (2009) 14 SCC 1; A(\vind Kumar Mishra Vs. New India Assurance Co. 2010 (11) SCR 857 = (2010) 10 sec 254; G. M. ,Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 - relied on. Govind Yadav Vs. New India Insurance Co. Ltd. (2011) (10) SCC 6El3, Sri Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance 2011 (9) SCR 922 = (2011) 13 SCC 236, L. axman @ Laxman Mourya Vs. Divisional Manager Vs. Oriental Insurance Co. Ltd. & Anr. (2011) 10 SCC 756; Kaitita Vs. Dipak &Ors.

(2012) 8 SCC 604; Ibrahim Vs. Raju. (20111) 10 SCC 634; Kavita Vs. Dipak &Ors. (2012) 8 SCC 604 - held inapplicable. 3. 2 'Future loss of income' is different from 'future prospects of income' in terms of the potential of the victim. In view of the law laid down by this Court, the Commission, in awarding just and reasonable compensation, ought to have taken into consideration the future prospects of the deceased even in the absence of any expert opinion, and reasonably judged the same, based on the income of the deceased and her future potential in U. S. A. However, in the instant case, the calculation of the future prospect of income of the deceased has also been scientifically done by ecoromic expert. The claimant is entitled to enhanced compensation under the heading of loss of future prospects of income of the victim. [para 86, 88 and 89) [111-G-H; 112-F-G; 113-C-D] Santosh Devi v. National Insurance Co. Ltd. , (2012) 6 sec 421 - relied on. 3.

3 With respect to the fundamental principle for awarding just and reasonable compensation, flis Court in Malay Kumar Ganguly's case has categoricaly stated, while remanding this case back to the National Commission, that the principle for just and reasonable compensation is based on 'restitutio in integr~m· that is, the claimant must receive sum of money which would put him in the same position as he would have beEll if he had not sustained the wrong. The Court is duty-bound and entitled to award "just compensation" irrespfctive of the fact whether any plea in that behalf was raised by the claimant or· not. [para 91-92) [116-B-DJ 'G Malay Kumar Ganguly Vs. Dr. Sukumir Mukherjee (2009) 13 SCR 1 =(2009) 9 SCC 221 Ninganma and Anr. Vs. United India Insurance Company Ltd. 200~ (8) SCR 683 =(2009) 13 sec 710 - relied on. 3.

4 While remanding the matter back it the National compensation for medical negligence, this Court has observed that compensation should include "loss of earning of profit up to the date of trial" and that it may also include any loss "already suffered or likely to be ,suffered in future". The claimant has also rightly asserted that when the original . claim petition was filed soon after s the death of his wife in 1998, it would be impossible to file a claim for "just compensation". The claimant has suffered in the course of the 15 years long trial. [para 93] [116-G-H; 117-A-B] Oriental Insurance Company Ltd. Vs. Jashuben & Ors. (2008) 2 SCR 930 =(2008) 4 SCC 1621; R. D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors. (1995) 1 SCR 75 = 1995 (1) SCC 551; Raj Rani & Ors Vs. Oriental Insurance Company Ltd. & Ors. (2009) 7 SCR 1168 = (2009) 13 SCC 654, Laxman @ Laxman Mourya Vs. Divisional Manager Vs. Oriental Insurance Co. Ltd. &Anr. (2011) 10 SCC 756 Ibrahim Vs.

Raju (2011) 10 SCC 634 - referred to. 3. 5 This Court has got the power under Art. 136 of the Constitution and the duty to award just and reasonable compensation to do complete justice to the affected claimant. It is wholly untenable in law for the Hospital and the doctors to plead that without there being an amendment to the claim petition, the claimant is not entitled to seek the additional claims by way of affidavit, and that the claim is barred by limitation. The claimant is justified in claiming additional claim for determining just and reasonable compensation under different heads. Accordingly, the point Nos. 1, 2, and 3 are answered in favour of the claimant and against the appellant-doctors and the Hospital. [para 93-94] [117-D-E; F-G] Answer to point no. 4 4. 1 It would not be proper to use a strait jacket multiplier method for determining the quantum of compensation in medical negligence claims.

On the contrary, this Court has chosen to deviate from the standard multiplier method to avoid over-compensation and also relied upon the quantum of multiplicand to choose the appropriate multiplier. [para 97] [121-8-C] 4. 2 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 her death. Accordingly, this Court holds that the plea to apply the multiplier method in determination of compensation does not inspire confidence and the same cannot be accepted. Point no. 4 is answered in favour of the claimant and against the appellants-doctors and the Hospital. [para 97] [121-C-D, E-G] Indian Medical Association Vs. V. P. Shantha &Ors. 1995 (5) Suppl. SCR 110 = (1995) 6 SCC 651; Spring Meadows Hospital & Anr Vs. Harjo/ Ahluwalia (1998) 2 SCR 428 = (1998) 4 SCC 39;, Charan Singh Vs. Healing Touch Hospital and Ors.

2000 (3) Suppl. SCR 337 = (2000) 7 sec 668, Savita Garg Vs. Director National Heart Institute 2004 (5) Suppl. SCR 359 = (2004) 8 SCC 56, State of Punjab Vs. Shiv Ram & Ors. (2005) 2 Suppl. SCR 991 = (2005) 7 SCC 1; Samira Kohli Vs. Dr. Prabha Manchanda &, Anr. (2008) 1 SCR 719 = (2008) 2 SCC 1; P. G. Institute of Medical Sciences Vs. Jaspal Singh & Ors. (2009) 9 SCR 889 = 2009 (7) SCC 330; Nizam Institute Vs. Prasant Dhananka Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors. (2009) 9 SCR 313 = (2009) 6 SCC 1; Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors. Malay Kumar Gangu/y Vs. Dr. Sukumar Mukherjee (2009) 13 SCR 1=2009 (9) SCC 221; and V. Kishan Rao Vs. Nikhil Superspeciality Hospital &Anr. (2010) 5 SCR 1 = (2010) 5 SCC 513 - referred to. Sar/a Verma v. Delhi Transport Corporation, 2009 (5) • SCR 1098 =(2009) 6 SCC 121 Reshma Kumari v. Madan Mohan 2009 (11) SCR 305 =(2009) 13 SCC 422 - held inapplicable. Answer to Point no. 5 5. 1 The claim of Rs.

1,12,50,000/- made by the claimant 8 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 appellantdoctors and the Hospital. [para 99] [122-0-E] 5. 2 As regards the claim under the head of 'Travel expenses over the past 12 years' at Rs. 70,00,000/-, 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, this Court awards compensation of Rs. 10 lakhs under the head of 'Travel expenses over the past twelve years'. [para 99] [122-E- F] 5. 3 The claim of the claimant that he has spent Rs.

1,65,00,000/- towards litigation over the past 12 years while seeking compensation under this head, is on the higher side, considering that the claimant who is a doctor by profession, appeared in person before this Court to argue his case. However, he might have required rigorous assistance of lawyers to prepare his case and produce evidence in order. Therefore, a compensation of Rs. 1,50,000/- is granted 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] [122-G-H; 123-A] Answer to Point no. 6 6. The National Commission did not grant any • interest for the long period of 15 years when the case remained pending before the National Commission and this Court.

Not awarding interest by the National Commission 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 Hospital to the claimant is most unreasonable and the same is opposed to the provision of the Interest Act, 1978. Therefore, interest is awarded on the compensation determined by this Court at the rate of 6% from the date of complaint till the date of payment. [para 100 and 102) [123-C-D. 126-D-F] Thazhathe Purayil Sarabi & Ors. Vs. Union of India & Anr. 2009 (10) SCR 70 =2009 (7) SCC 372 - relied on. Kemp and Kemp on Quantum of Damages (Special Edn. , 1986) - referred to. Answer to point no. 7 7. 1 The liability of the doctors in causing the death of claimant's wife has already been established by the Court in Malay Kumar Ganguly's case.

The decision in the instant appeals is confined to determine the extent to which the appellant-doctors and the Hospital are liable to pay compensation awarded to the claimant for their acts of negligence in giving treatment to the deceased wife of the claimant. [para 103) [127-A-C] Liability. of the Hospital: 7. 2 This Court in Malay Kumar Ganguly's has stated that the bulk of the proportion of compensation is to be paid by the hospital and the rest by Dr. 'SM'. None of the other doctors involved were imposed with cost though 'they were found guilty of medical negligence. [para 105] [128-C-E] 7. 3 It has to oe inferred that the appellant Hospital is vicariously liable for its doctors. The appellant-Hospital is, therefore, directed 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] [133-E-F] Liability of Dr. 'SM' 7. 4 It is imperative to mention that the quantum of compensation to be paid by the appellant-doctors and the Hospital is not premised on their culpability u/s 304-A of IPC but on the basis of their act of negligence as doctors in treating the deceased wife of the claimant. The findings of this Court regarding the liability of Dr. 'SM' in Malay Kumar Ganguly's case are, therefore, reiterated. [para 111] [134-G-H; 135-A] 7. 5 It is also important to highlight in this judgment that the manner in which Dr. 'SM' attempted to shirk from his individual responsibility both in the criminal and civil cases made against him on the death of the claimant's wife is very much unbecoming of a doctor as renowned and revered as he is.

He is a senior doctor who was in charge of the treatment of the deceased, but he 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. Therefore, in the light of the facts and circumstances, he is directed to pay a compensation of Rs. 10 lakhs to the claimant in lieu of his negligence and it is hoped that he upholds his integrity as a doctor in future and would not be casual about his patient's lives. [para 112-113] [135-G-H; 136-A-H; 137-A-B] • Liability of Dr. SH: 7. 6 Like appellant Dr. 'SM', appellant Dr. 'BH' 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 himself with utmost callousness in giving 8 treatment to the claimant's wife which led to her unfortunate demise.

He too made every attempt to shift the blame to the other doctors thereby tainting the medical profession. This Court 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] [139-A-C] Liability of Dr 'BP': 7. 8 This Court in Malay Kumar Ganguly abhorred the 0 shifting of blames by the senior doctor on the attending physician appellant 'BP' even though the Court held him guilty of negligence. He was a junior doctor and might have acted on the direction of senior doctors who undertook the treatment of the claimant's wife in the Hospital. However, the fact cannot be lost sight of that the appellant 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 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. This compensation acts as a reminder and deterrent to him against being casual and passive in treating his patients in his formative years of medical profession. [para 121 & 122] [142-8, E-H; 143-A] Liability of the claimant 7. 9 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 had clearly absolved 8 the claimant of such liability and remanded the matter back to the National Commission only for the purpose of determining the quantum of compensation.

Therefore, the finding of the National Commission is set aside and the finding of this Court is re-emphasized that the claimant did not contribute to the negligence of the appellantsdoctors and the Hospital which resulted in the death of his wife. [para 127] [146-A-C] Answer to point no. 8 8. 1 This Court, while remanding the matter back to the National Commission, has categorically stated that the pecuniary and non-pecuniary losses sustained by the claimant and future losses up to the date of trial must be considered for the quantum of compensation. That has not been done in the instant case by the National Commission. Therefore, the claimant is entitled for enhancement of compensation on the said heads as he has incurred huge amount of expenses in the court of more than 15 years long trial in the instant case.

The updated break-up of the total claim has not been considered by the National Commission keeping in view the claim and legal evidence and observations made and directions issued by this Court in Malay Kumar Ganguly's case to determine just and reasonable compensation. Therefore, the claimant is entitled for enhanced compensation as mentioned under different heads in this judgment. The National Commission has also not taken into consideration the observations made by this Court while remanding the case for determining the quantum of compensation with regard to the status of treating doctors and the Hospital. [para 128-129] [146-D-E, F-H; 147-A-B] 46 SUPREME COURT REPORTS [2013] 12 S. C. R. Loss of income of the deceased: 8. 2 The National Commission did not consider the substantial and iegal evidence adduced on record by the claimant regarding the income that was being earned by his wife even though he has examined the U. S. A. based economic expert through video conferencing.

As per the evidence on record, the deceased was earning $ 30,000 per annum at the time of her death. The appellant-doctors and the Hospital could not produce any evidence to rebut the claims of the claimant regarding the qualification of his wife. Further, the expert witness testified that the deceased could have earned much more in future given her present prospect. But relying upon the principle laid down by this Court, the estimate of the witness cannot be taken to be the income of the deceased. However, $30,000 per annum earned by the deceased during the time of her death was not from a regular source of income and she would have earned lot more had it been regular source of income, having regard to her qualification and the job for which she was entitled to. Therefore, while determining the income of the deceased, the evidence on record has to be relied on for the purpose of determining the just, fair and reasonable compensation in favour of the claimant.

It would be just and proper to take her earning at $40,000 per annum on a regular job, and 30% should be added towards the future loss of income of the deceased. However, 1/3rd of the total income is required to be deducted under the head of personal expenditure of the deceased to arrive at the multiplicand. Therefore, estimating the life expectancy of a healthy person as 70 years, compensation is to be awarded by multiplying the total loss of income by 30. [para 131-133] [148-8-C, 149-B-G; 150-A-B] 8. 3 Further, the claimant has rightly pointed out that the value of Indian currency has gone down since the time when these legal proceedings have begun in this country. Therefore, it will be prudent to hold the current value of Indian Rupee at a stable rate of Rs. 55/- per 1$. Therefore, under the head of 'loss of income of the deceased' the claimant is entitled to an amount of Rs. 5,72,00,550/-, as calculated in the judgment. [para 134) [150-B-D] Other Pecuniary Damages: 9.

1 The expenditure made by the claimant during the treatment of the deceased deserves to be duly compensated for awarding reasonable amount. The claimant has been able to produce the medical bill only to the extent of Rs. 2. 5 lakhs which he had paid to the Hospital in 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. This Court still considers this amount as insufficient in the light of the fact that the deceased was treated at the Hospital as an in-patient for about a week; it would be 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 135-136) [150-E-H; 151-A-B] 9. 2 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, 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. It would be 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. Therefore, under this head, a compensation of Rs. 1,50,000/- is awarded. However, with respect to the claim made under the cost of chartered flight, a sum of Rs. 5,00,0001-has already been awarded by the National Commission which this Court would not interfere within the absence of any contrary evidence. [para 137-138) [157-C-F] Non pecuniary damages: 8 10. 2 It is true that the deceased had gone through immense pain, mental agony and suffering in course of her treatment which ultimately could not save her life.

However, more than the conventional amount set by this Court cannot be awarded on the basis of the economic status of the deceased. Therefore, a lumpsum amount of Rs. 10 lakhs is awarded to the claimant under the head of 'pain and suffering of the claimant's wife during the course of treatment'. [para 145) [162-A-C] Arun Kumar Agarwal Vs. National Insurance Company (2010) 9 SCC 218; and Rajesh & Ors. Vs. Rajvir Singh and Ors. 2013 (6) SCALE 563; Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka &Ors. 2009 (9) SCR 313 =(2009) 6 sec 1 • referred to. Kemp and Kemp on Quantum of Damages - referred to. 10. 2 Regarding claim under the head of 'Emotional distress, pain and suffering for the claimant' himself, no F- compensation can be awarded in this regard 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) [162-C-D] 10. 3 Further, the claimant is entitled to Rs.

1,00,0001under the head 'Loss of consortium'. [para 146) [162-F] 11. Therefore, a total amount of Rs. 6,08,00,5501- is awarded as compensation to the claimant by partly modifying the award granted by the National Commission under different heads, as detailed in the judgment, with 6% interest per annum from the date of application till the date of payment. [para 147] [162-G-H] 12. 1 The number of medical negligence cases against doctors, Hospitals and Nursing Homes in the consumer forum are increasing day by day. The doctors, 8 Hospitals, the Nursing Homes and other connected establishments are to be dealt with strictly if they are found to be negligent with the patients. 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.

It is, therefore, hoped that this decision acts as a deterrent and a reminder to those doctors, Hospitals, the Nursing Homes and other connected establishments who do not take their responsibility seriously. [para 148- 149] [163-A-B, C-E] Paschim Banga Khet Mazdoor Samity Vs. State of West Bengal (1996) 4 SCC 37 - referred to. 12. 2 The central and the state governments may consider enacting laws wherever there is absence of one for effective functioning of private Hospitals and Nursing Homes. Since the conduct of doctors is already regulated by the Medical Council of India, impartial and strict scrutiny is expected from the body.

Finally, the institutions and individuals providing medical services to the public at large are required to 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 on the part of the doctors and the Hospital. [para 150] [163-F-H] New India Assurance Company Limited v. Yoges Devi, (2012) 3 SCC 613; National Insurance Company Limited v. Sinitha, 2011 (16 ) SCR 166 =(2012) 2 sec 356 Sunil Sharma v. Bachitar Singh, 2011 (2 ) SCR 576 = (2011) 11 SCC 425; Pushpa v. Shakuntala, 2011 (1) SCR 334 = (2011) 2 SCC 240; Shyamwati Sharma v. Karam Singh, 2010 (8 ) SCR 417 = (2010) 12 SCC 378; Rani Gupta v. United India Insurance Company Limited, 2009 (5) SCR 721= (2009) 13 SCC 498; National Insurance Company Limited v. Meghji Naran Soratiya, 2009 (3) SCR 875 = (2009) 12 SCC 796; Oriental Insurance Company Limited v.

Angad Kol 2009 (2) SCR 695 = (2009) 11 SCC 356; Usha Rajkhowa v. Paramount Industries, 2009 (2) SCR 520 = (2009) 14 SCC 71; Laxmi Devi v. Mohammad. Tabbar, 2008 (5) SCR 436 = (2008) 12 SCC 165; Andhra Pradesh State Road Transport Corporation v. M. Ramadevi, 2008 (2) SCR 22 = (2008) 3 SCC 379; State of Punjab v. Jalour Singh 2008 (1) SCR 922 =(2008) 2 SCC 660; Abati Bezbaruah v. Dy. Director General, Geological Survey of India, 2003 (1) SCR 1229 = (2003) 3 0 SCC 148; Oriental Insurance Co. Ltd. v. Hansrajbhai V. Koda/a, 2001 (2) SCR 999 = (2001) 5 SCC 175; Sar/a Dixit v. Ba/want Yadav, 1996 (3) SCR 30 = (1996) 3 SCC 179; National Insurance Co. Ltd. v. Swaran/ata Das, 1993 Supp (2) SCC 743; United India Insurance Co. Ltd. & Others Vs. Patricia Jean Mahajan & Ors. 2002 (3) SCR 1176 = (2002) 6 SCC 281; Lata Wadhwa & Ors. Vs. State of Bihar (2001) 1 Suppl. SCR 578 = 2001 (8) SCC 197; M. S. Grewal & Anr. Vs. Deep Chand Sood and Ors. 2001 (2) Suppl.

SCR 156= 2001 (8) SCC 151; Municipal Corporation of Delhi Vs. Uphaar Tragedy Victims Association & Ors. 2011 (16) SCR 1 = 2011 (14) SCC 48'1; National Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad 2012 (14) SCR 472 = (2011) 12 SCC 695, Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria 2012 (3) SCR 841 :: (2012) 5 SCC 370, A. Shanmugam Vs. Ariya Kshatriya Rajaku/a Vamsathu Madalaya Nandavana Paripalanai Sangam 2012 (4) SCR 74 =2012 (6) SCC 430; Nagappa Vs. Gurudaya/ Singh 2002 (4) Suppl. SCR 499 =2003 (2) SCC 274; Sanjay Batham Vs. Munna/a/ Parihar (2011) 10 SCC 655; Times Global Broadcasting Co. Ltd. & Anr. Vs. Parshuram Babaram Sawant SLP (Civil) No(s) 2997912011 decided on 14-11- 2011; Raj Kumar Vs. Ajay Kumar & Anr. 2010 (13) SCR 179 =2011 (1) SCC 343, Sri RamacQandrappa Vs. Manager, Royal Sundaram Alliance Insurance 2011 (9) SCR 922 = 2011 (13) sec 236, Kavita Vs. Dipak & Ors. 2012 (8) sec 604; Landgraf Vs. US/ Film Prods 511 U. S.

244, 1994 Destruction of Public and Private Properties Vs. State of A. P. 2009 (6) SCR 439 =2009 (5) SCC 212; S. P. Aggarwal Vs. Sanjay Gandhi P. G. Institute (FA No. 47812005) decided on 31. 3. 2010 - cited. Welch Vs. Epstein 536 S. E. 2d 408 2000; Dardinger Vs. Anthem Blue Cross Shield et al 781 N. E. 2d, 2002 - cited. Case Law Reference: 2009 (13) SCR 1 relied on para 4 2008 (2) SCR 930 relied on para 8 2002 (3) SCR 1176 cited para 8 (2012) 3 sec 613 cited para 13 2011 (16) SCR 166 cited para 13 2011 (2) SCR 576 cited para 13 2011 (1) SCR 334 cited para 13 2010 (8) SCR 417 cited para 13 2009 (5) SCR 721 cited para 13 2009 (3) SCR 875 cited para 13 2009 (2) SCR 695 cited para 13 2009 (2) SCR 520 cited para 13 2008 (5) SCR 436 cited para 13 2008 (2) SCR 22 cited para 13 2008 (1) SCR 922 cited para 13 2003 (1) SCR 1229 cited para 13 2001 (2) SCR 999 cited para 13 8 1996 (3) SCR 30 cited para 13 1993 (2) Suppl.

sec 743 cited para 13 2009 (9) SCR 313 relied on para 14 2009 (10) SCR 87 relied on para 14 1994) 2 sec 116 relied on para 15 2011 11 O) sec 634 referred to para 21 2001 (1) Suppl. SCR 578 cited para 25 2001 (2) Suppl. SCR 156 cited para 25 2011 (16) SCR 1 cited para 25 2012 (14) SCR 472 cited para 28 2012 (3) SCR 841 cited para 28 2012 (4) SCR 74 cited para 28 (2011) 10 sec 655 cited para 34 SLP (Civil) No(s) 29979/2011 decided on 14-11-2011 cited para 56 2009 (8) SCR 683 relied on para 57 1995 (1) SCR 75 relied on para 57 2009 (7) SCR 1168 relied on para 57 2011 (1 O) sec 756 held inapplicable para 57 2010 (11) SCR 857 relied on para 58 2010 (13) SCR 179 cited para 58 2011 (1 O) sec 683 held inapplicable para 58 2011 (9) SCR 922 held inapplicable para 58 2012 (8) sec 604 held inapplicable para 58 2004 (5) Suppl. SCR 359 referred tO. Para 62 2009 (10) SCR 70 relied on para 72 511 U. S. 244, 1994 cited para 73 2009 (6) SCR 439 cited para 73 536 S. E. 2d 408 2000 cited para 73 781 N. E.

2d, 2002 cited para 74 (2012) 6 sec 421 relied on para 88 1995 (5) Suppl. SCR 110 referred to para 95 1998 (2) SCR 428 referred to para 95 2000 (3) Suppl. SCR 337 referred to para 95 2004 (5 ) Suppl. SCR 359 referred to para 95 2005 (2) Suppl. SCR 991 referred to para 95 2008 (1) SCR 719 referred to para 95 2009 (9) SCR 889 referred to para 95 2010 (5) SCR 1 referred to para 95 (1998) 4 sec 39 referred to para 95 2009 (5) SCR 1098 held inapplicable para 97 2009 (11) SCR 305 relied on para 97 (2010) 9 sec 218 referred to para 139 2013 (6) SCALE 563 referred to para 141 (1996) 4 sec 37 referred to para 148 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2867 of 2012. From the Judgment and order dated 21. 10. 2011 of the National Consumer Disputes Redressal Commission, New Delhi in W. P. No. 240 of 1999. WITH Civil Appeal No. 692 of 2012. Civil Appeal No. 2866 of 2012. Civil Appeal No. 731 of 20·12. Civil Appeal No. 858 of 20·12.

Vijay Hansaria, Ramji Srinivasan, Rana Mukherjee, Daisy Hannah, Shekhar Kumar, Aseem Mehrotra, Asha Nayar, Amit Agarwal, Abhijat P. Medh, Sanjoy Kumar Ghosh, Ranjan Mukherjee, Rupali S. Ghosh, B. Sridhar, T. V. George, Rakesh Taneja, Maurya Sarkar, Dushyant Kumar for the appearing parties. Dr. Kuna! Saha (in-Person). The Judgment of the Court was delivered by V. GOPALA GOWDA, J. 1. The Civil Appeal Nos. 2867, 731 and 858 of 2012 are filed by the appellant-doctors, Civil Appeal No. 692 of 2012 is filed by the appellant-AMR! Hospital and Civil Appeal No. 2866 of 2012 is filed by the claimantappellant - Dr. Kuna! Saha (hereinafter referred to as 'the claimant'), questioning the correctness of the impugned judgment and order dated 21. 10. 2011 passed by the National [V. GOPALA GOWDA, J. ] Consumer Disputes Redressal Commission (hereinafter referred to as the 'National Commission') in Original Petition No. 240 of 1999. 2.

The appellant-doctors are aggrieved by the quantum of 8 compensation awarded by the National Commission and the liability fastened upon them for the negligence on their part and have prayed to set aside the same by allowing their appeals. In so far as the appellant-AMR! Hospital is concerned, it has also questioned the quantum of compensation awarded and has prayed to reduce the same by awarding just and reasonable compensation by modifying the judgment by allowing its appeal. So far as the claimant is concerned, he is aggrieved by the said judgment and the compensation awarded which, according to him, is inadequate, as the same is contrary to the admitted facts and law laid down by this Court in catena of cases regarding awarding of compensation in relation to the proved medical negligence for the death of his wife Anuradha Saha (hereinafter referred to as the 'deceased'). 3.

The brief relevant facts and the grounds urged on behalf of the appellant-doctors, AMRI Hospital and the claimant in seriatim are adverted to in this common judgment for the purpose of examining the correctness of their respective legal contentions urged in their respective appeals with a view to pass common judgment and award. 4. Brief necessary and relevant facts of the case are stated hereunder: The claimant filed Original Petition No. 240 of 1999 on 09. 03. 1999 before the National Commission claiming compensation for Rs. 77,07,45,000/- and later the same was amended by claiming another sum of Rs. 20,00,00,000/-. After / the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee' was remanded by this Court to the National Commission to award just and reasonable compensation to the claimant by answering the points framed in the said case, the National Commission held the doctors and the AMRI Hospital negligent in treating the wife of the claimant on account of which she died.

Therefore, this Court directed the National Commission to determine just and reasonable compensation payable to the claimant. However, the claimant, the appellant- Hospital and the doctors were aggrieved by the amount of compensation awarded by the National Commission and also the manner in which liability was apportioned amongst each of them. While the claimant was aggrieved by the inadequate amount of compensation, thei appellant-doctors and the Hospital found the amount to be exc,essive and too harsh. They further claimed that the proportion of liability ascertained on each of • them is unreasonable. Since, the appellant-Hospital and the doctors raised similar issues before the Court; we intend to produce their contentions in brief as under: On granting the quantum of compensation based on the income of the deceased: 5.

It is the claim of the learned counsel on behalf of the appellant-doctors and the Hospital that there is no pleading in the petition of the claimant that the deceased had a stable job or a stable income, except in paragraph 2A of the petition which states that the deceased was a Post-Graduate student and she had submitted her thesis. The only certificate produced by the claimant shows that she was just a graduate in Arts (English). Further, it is urged by the learned counsel that the document produced by the claimant - a computer generated sheet, does not explain for what work the remuneration, if at all was received by the deceased. Also, whether the same was a onetime payment of stipend or payment towards voluntary work, is not explained by the claimant. Further, it is stated by the learned counsel that there is no averment in the petition of the claimant 1. (2009) 9 sec 221. [V. GOPALA GOWDA, J.

] as to on what account the said payment was received by the deceased and whether she has received it as a Child Psychologist as claimed by the claimant or otherwise. 6. It is also the case of the appellant-doctors and the Hospital that the claimant had not led any oral evidence with 8 regard to the income of the deceased and further he has not explained why just a single document discloses the payment made sometime in the month of June 1988 in support of the income of the deceased when admittedly, the couple came to India in the month of March-April, 1998. Therefore, the learned counsel for the appellant-doctors and the Hospital have urged that the said document is a vague document and no reliance could have been placed by the National Commission on the same to come to the conclusion that the deceased in fact had such an income to determine and award the compensation as has been awarded in the impugned judgment and order.

From a perusal of the said document, it could be ascertained that it shows just one time payment received for some odd jobs. Therefore, it is contended by the appellant-doctors and the Hospital that the claimant has not been able to discharge his onus by adducing any positive evidence in this regard before the National Commission. 7. It is further contended by the learned counsel that the assertion of the claimant in the petition and in his evidence before the National Commission that the income of the deceased was $30,000 per annum is not substantiated by producing cogent evidence. No appointment letter of the deceased to show that she was employed in any organization in whatsoever capacity had been produced nor has the claimant produced any income certificate/salary sheet. No evidence is produced by the claimant in support of the fact that the deceased was engaged on any permanent work.

No Income Tax Return has been produced by the claimant to show that she had been paying tax or had any income in U. S. A. 8. It is further submitted that even if it is assumed that the annual income of the deceased was $30,000 per annum, apart from deduction on account of tax, it is also essential for the National Commission to ascertain the personal living expenses of the deceased which was required to be deducted out of the annual income to determine the compensation payable to the claimant. The National Commission was required to first ascertain the style of living of the deceased- whether it was Spartan or Bohemian to arrive the income figure of $30,000 per annum. In India, on acc1)unt of style and standard of living of a person, one-third of the gross income is required to be deducted out of the annual income as laid down in the decision of this Court in the case of Oriental Insurance Company Ltd. Vs. Jashuben & Ors2.

It is further contended by the learned counsel for the appellant-doctors and the Hospital that no yardstick i:s available about the expenditure of the deceased in the U. S. A. The claimant has not adduced any evidence in this regard. The evidence given by the so-called expert, Prof. John F. Burke Jr. also does not say anything on this score. Even if it is assumed that the annual income of the deceased was $30,000 per annum for which there is no evidence, 25% thereof is required to be deducted towards tax. The deduction of tax is much more as is apparent from the case reported in United India Insurance Co. Ltd. & Others Vs. 3 Patricia Jean Mahajan &Ors. In fact, the claimant has neither adduced any evidence in this regard nor has he produced the relevant statute from which the percentage of tax deduction can be ascertained.

The claimant was last examined by video conferencing conducted under the supervision of Justice Lokeshwar Prasad (retired Judge of Delhi High Court) as local Commissioner. The 2. c2oos) 4 sec 1s2. 3. c2002) s sec 2a1. [V. GOPALA GOWDA, J. ] AMRI Hospital-appellanfs witness Mr. Satyabrata Upadhyay was cross-examined by the claimant. 9. The claimant filed M. A. No. 1327 of 2009 before the National Commission after remand order was passed by this Court in the case of Malay Kumar Ganguly (supra). The 8 claimant now claimed enhancement of compensatJon at Rs. 78,14,00,000/- under the heads of pecuniary damages and non-pecuniary damages.

The prayer made in the application was to admit the claim for compensation along with supporting documents including the opinions of the foreign experts and further prayed for issuing direction to the appellant-doctors and the Hospital to arrange for cross-examination of the foreign experts, if they wish, through video conferencing at their expenses as directed by this Court in the remand order in Malay Kumar Ganguly's case (supra) and for fixing the matter for a final hearing as soon as possible on a firm and fixed date as the claimant himself want to argue his petition as was done before this Court, as he being the permanent resident of U. S. A. 10. The learned senior counsel appearing for the claimant on 9. 2. 2010 prayed for withdrawal of the application stating that he would file another appropriate application. Thereafter, on 22. 2. 2010 the claimant filed M. A. No.

200 of 2010 seeking direction to the National Commission to permit him to produce affidavit of four foreign experts and their reports. The National Commission dismissed the same vide order dated 26. 4. 2010 against which special leave petition No. 15070/2010 was filed before this Court which was withdrawn later on. Again, the claimant filed M. A. No. 594 of 2010 before the National Commission for examination of four foreign experts to substantiate his claim through video conferencing at the expense of the appellant-doctors and the Hospital. The National Commission vide order dated 6. 9. 2010 dismissed the application of the claimant for examining foreign experts. Against this order, the claimant preferred SLP (C) tJo. 3173 of 2011 before this Court praying for permission to examine two foreign experts, namely, Prof. John F. Burke Jr. and Prof. John Broughton through video conferencing and he undertook to bear the expenses for such examination.

The claimant had given up examination of other two foreign experts, namely, D. Joe Griffith and Ms. Angela Hill. Prof. John F. Burke Jr. was examined on 26. 4. 2011 as an Economics Expert to prove the loss of income of the deceased and the claimant relied upon an affidavit dated 21. 9. 2009 and his report dated 18. 12. 2009 wherein he has stated that if the deceased would have been employed through the age of 70, her net income could have been $3,750,213. 00. In addition, the loss of service from a domestic prospective was an additional amount of $1,258,421. 00. The said witness was cross examined by the learned counsel for the doctors and AMRI Hospital. The learned Counsel for the appellant-doctors placed reliance upon the following questions and answers elicited from the above Economics Expert witness, which are extracted hereunder:- "Q. 16. Can you tell me what was the wages of Anuradha in 1997? A. 16. May I check my file (permitted). I don't know. Q. 17.

Are you aware whether Anuradha was an income tax payee or not? A. 17. Anu and her husband were filing joint return. Q. 18. Did Anu have any individual income? A. 18. I don't know. Q. 19. Did Kunal Saha provide you the earnin! ~ statement of Anuradha Saha, wherein her gross monthly pay was shown as$ 1060 as on 16. 1. 1998? A. 19. I don't believe that I have that information. [V. GOPALA GOWDA, J. ] . A Q. 21. What documents have you taken into consideration of Anu's income for giving your opinion? A. 21. None. Q. 22. Whether Anu was employed at the time of her death? A. 22. I don't think so; I don't believe so. " 11. The claimant on the other hand, had placed strong reliance upon the evidence of the Economics Expert Prof. John F. Burke to prove the income of the deceased as on the date of her death and actual income if she would have lived up to the age of 70 years as he had also examined Prof. John Broughton in justification of his claim.

The learned counsel for the appellant-doctors contended that Prof. John F. Burke, who was examined through video conferencing in the presence of the Local Commissioner, has estimated the life lime income of the deceased to be 5 million and 125 thousand US dollars without any supporting material. The said foreign expert witness did not know whether the deceased had any individual income. He did not know about the earning statement of the deceased produced by the claimant. He has also stated that the deceased was not employed at the time of her death. 12. The learned counsel for the appellant-doctors also submitted that the earning statement issued by Catholic Horne Bureau stating the income of the deceased at $1060. 72 for the period ending 15th January, 1998 cannot be relied upon for the following reasons:- {a) The earning statement was not proved in accordance with Jaw since only the affidavit of claimant was exhibited and not the documents before Justice L.

okeshwar Prasad (Retired) i. e. the Local Commissioner on 5. 12. 2003 during the cross-examination. (b) There is nothing to show that Anuradha Saha was under employment at Catholic Home Bureau. (c) Letter of appointment has not been annexed. (d) Federal Tax record has not been produced. The Economics expert has stated that Anuradha and the claimant were filing joint tax return. (e) It does not show weekly income of the deceased as has been trieated by NCDRC. (f) Nature of appointment, even if presumed, has not been stated, i. e. , whether it was temporary or permanent, contractual or casual and period of employment. It is further submitted by the learned counsel that the evidence of Prof. John F. Burke, Jr. has not been relied upon to prove the loss of income of the deceased as it shows that the deceased was not paying income tax.

Therefore, the National Commission has erred in partly allowing the claim of the claimant while computing the compensation on the basis of the earning of the deceased. On awarding compensation under the head of 'loss of consortium': 13. The learned senior counsel and other counsel for the appellant-doctors submitted that the National Commission has erred in awarding Rs. 10,00,000/- towards loss of consortium. This Court in various following decisions has awarded Rs. 5,000/- to Rs. 25,000/- on the aforesaid account:- [V. GOPALA GOWDA, J. ] CASE LAW AMOUNT 1. Santosh Devi v. National Insurance Co. Ltd. , Rs. 10,000 c2012) 6 sec 421 2. New India Assurance Company Limited v. Rs. 10,000 Yogesh Devi, (2012) 3 SCC 613 8 3. National Insurance Company Limited v. Rs. 5,000 Sinitha, (2012) 2 sec 356 ' 4. Sunii Sharma v. Bachitar Singh, (2011) Rs. 25,000 11 sec 425 5. Pushpa v. Shakuntala, (2011) 2 SCC 240 Rs. 10,000 6. Arun Kumar Agrawal v. National Insurance Rs.

15,000 Company Limited, (2010) 9 SCC 218 7. Shyamwati Sharma v. Karam Singh, (2010) Rs. 5,000 12 sec 378 8. Reshma Kumari v. Madan Mohan, (2009) Rs. 15,000 13 SCC 422 in Sarla Dixit v. Balwant Yadav 9. Raj Rani v. Oriental Insurance Company Rs. 7,000 Limited, (2009) 13 sec 654 10. Sarla Verma v. Delhi Transport Rs. 10,000 Corporation, (2009) 6 SCC 121 11. Rani Gupta v. United India Insurance Rs. 25,000 Company Limited, (2009) 13 SCC 498 12. National Insurance Company Limited v. Rs. 10,000 Meghji Naran Soratiya, (2009) 12 SCC 796 13. Oriental Insurance Company Limited v. Rs. 10,000 Angad Kol, (2009) 11 sec 356 14. Usha Rajkhowa v. Paramount Industries, Rs. 5,000 (2009) 14 sec 11 15. Laxmi Devi v. Mohammad. Tabbar, (2008) Rs. 5,000 12 sec 165 16. Andhra Pradesh State Road Transport Rs. 5,000 Corporation v. M. Ramadevi, (2008) 3 SCC 37~ 17. State of Punjab v. Jalour Singh, (2008) 2 Rs. 5,000 sec 660 18. Abati Bezbaruah v. Dy. Director General, Rs.

3,000 Geological Survey of India, (2003) 3 SCC 148 19. Oriental Insurance Co. Ltd. v. Hansrajbhai Rs. 5,000 v. Kodala, (2001) 5 sec 175 20. Sarla Dixit v. Balwant Yadav, (1996) 3 Rs. 15,000 sec 179 21. G. M.. Kerala SRTC v. Susamma Thomas, Rs. 15,000 (1994) 2 sec 176 22. National Insurance Co. Ltd. v. Swaranlata Rs. 7,500 Das, 1993 Supp (2) sec 743 14. Further, the senior counsel and other counsel for the appellant-doctors contended that the case of Nizam Institute 4 of Medical Sciences Vs. Prasanth S. Dhananka & Ors. relied upon by the claimant is misconceived as that case relates to the continuous pain and suffering of the victim, who had lost control over his lower limb and required continuous physiotherapy for rest of his life. It was not the amount for loss of consortium by the husband or wife. Hence, it is submitted by them that the National Commission erred in granting Rs. 10 lakhs under the head of 'loss of consortium'.

On the objective and pattern of payment of compensation cases: 15. It is further contended by the learned co1Jnsel for the appellant-doctors that the compensation awarded by the National Commission should be meant to restore the claimant 14. (2009) 6 sec 1. [V. GOPALA GOWDA, J. ] to the pre-accidental position and in judging whether the· compensation is adequate, reasonable and just, monetary compensation is required to be arrived at on the principle of restitutio-in-integram. The National Commission while calculating the just monetary compensation, the earnings of the claimant who himself is a doctor, is also required to be taken into consideration. Regarding the contention of the claimant that in allowing compensation the American standard is required to be applied, it has not been disclosed before the Commission as to what is the American standard.

On the contrary, the National Commission was directed by this Court to calculate the compensation in the case as referred to in Malay Kumar Ganguly's case (supra) and on the basis of the principles laid-down by this Hon'ble Court in various other judgments. The two judgments which have been referred to in Malay Kumar Ganguly's case (supra) are Oriental Insurance Company Ltd. Vs. Jashuben & Ors. (supra) and R. K. Malik Vs. Kiran Pal°, where this Court has not directed assessment of compensation according to American standard. Therefore, the contention of the claimant that compensation has to be assessed according to American standard is wholly untenable in law and the same is liable to be rejected. 16.

Further, it is contended by the senior counsel and other counsel for the appellant-doctors and Hospital that the reliance placed by the claimant upon the decision of this Court reported in Patricia Jean Mahajan's case (supra) clearly shows that the multiplier method applicable to claim cases in India was applied after taking note of contribution by the deceased for his dependants. The said case is a clear pointer to the fact that even if a foreigner dies in India, the basis of calculation has to be applied according to Indian Standard and not the American method as claimed by the claimant. 17. Further, the word 'reasonable' implies that the appellant-doctors and AMRI Hospital cannot be saddled with 5. c2009) 14 sec 1. an exorbitant amount as damages - which cannot either be treated as an obvious oir natural though not foreseeable consequence of negligence. 18. Further, the learned senior counsel has plar..

ed reliance on the judgment of this Court in Nizam Institute of Medical Sciences (supra) wherein this Court enhanced the original compensation awarded to the claimant-victim who had been paralyzed due to medical negligence from waist down, under the heads: requirement of nursing care; need for driver-cumattendant, as he was confined to a wheel chair; and he needed physiotherapy. In the present case, the negligence complained of is against the doctors and the Hospital which had resulted in the death of the wife of the claimant. In that case, the extent of liability ought to be restricted to those damages and expenses incurred as a direct consequence of the facts complained of, while setting apart the amount to be awarded under the head 'loss of dependency'. The! relevant portion of th1a aforesaid judgment of this Court in the Nizam's Institute of Medical Sciences is quoted hereunder: ".............

The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to b1~ struck, it would be difficult to satisfy all the parties concerned. " (paragraph 88) 19. It is further contended by the learned senior counsel and other counsel for the appellant-doctors that the claimant failed to produce any document by taking recourse to Order XLI Rule 27 of Code of Civil Procedure and Order LVll of Supreme Court Rules to justify his claims of approximately an additional amount of Rs. 20 crores including the cost of filing of the claim for compensation to the amount of compensation demanded for medical negligence which is a far-fetched theory and every negative happening in the claimant's life post-death of his wife Anuradha Saha cannot be attributed as the consequence due [V. GOPALA GOWDA, J. ] to medical negligence.

Therefore, the enhancement of compensation as prayed for by the claimant stood rightly rejected by the National Commission by recording reasons. Therefore, this Court need not examine the claim again. On the use of multiplier method for determining 8 compensation: 20. It is contended by the senior counsel and other counsel for the appellants that the multiplier method has enabled the courts to bring about consistency in determining the loss of dependency more particularly, in cases of death of victims of negligence, it would be important for the courts to harmoniously construct the aforesaid two principles to determine the amount of compensation under the heads: expenses, special damages, pain and suffering. 21. In Sar/a Verma's case (supra), this Court, at Paragraphs 13 to 19, held that the multiplier method is the proper and best method for computation of compensation as there will be uniformity and consistency in the decisions.

The said view has been reaffirmed by this Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr. , Civil Appeal No. 4646 of 2009 decided on April 2, 2013. 22. It is further submitted by the learned counsel that in capitalizing the pecuniary loss, a lesser multiplier is required to be applied inasmuch as the deceased had no dependants. In support of his contention, reliance is placed upon the decision of this Court reported in Patricia Mahajan's case (supra) in which this Court having found a person who died as a bachelor, held that a lesser multiplier is required to be applied to quantify the compensation. 23. It is further contended by the senior counsel and other counsel for the appellant-doctors that in Susamma Thomas (supra) this Court has observed that "in fatal accident cases, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death".

This means that the court while awarding damages in a fatal accident case took into account the pecuniary loss already suffered as a result of the negligence complained of, and the loss of dependency based on the contributions made by the deceased to the claimant until her death. While the former may be easily ascertainable, the latter has been determined by the National Commission by using the multiplier method and in respect of the use of the multiplier method for the purpose of calculating the loss of dependency of the claimant, in paragraph No. 16 of the aforesaid judgment this Hon'ble Court observed as follows: "16. It is necessary to reiterate that the multiplier method is logically sound and legally well-established.

There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage there from towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific.... " 24. In Sar/a Verma's case (supra) this Court sought to define the expression 'just compensation' and opined as under: "16..... Just Compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the wellsettled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. 17. Assessment of compensation though involving certain hypothetical considerations should nevertheless be objective.

Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision-making - • • [V. GOPALA GOWDA, J. ] process and the decisions. While it may not be possible to have mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same. and the formula/legal principles are the same. consistency and uniformitv. and not divergence and freakiness. should be the result of adjudication to arrive at just compensation. " (Emphasis laid by this Court) 25. It was also contended by the learned counsel for the appellant-doctors that apart from accident cases under the Motor Vehicles Act, 1988, the multiplier method was followed in Lata Wadhwa & Ors. Vs.

State of Bihar6 by a three Judge Bench of this Court, which is a case where devastating fire took place at Jamshedpur while celebrating the birth anniversary of Sir Jamshedji Tata. Even in M. S. Grewal & Anr. Vs. Deep 7 Chand Sood and Ors. , the multiplier method was followed wherein school children were drowned due to negligence of school teachers. In the Municipal Corporation of Delhi Vs. 8 Uphaar Tragedy Victims Association & Ors. the multiplier method was once again followed where death of 59 persons took place in a cinema hall and 109 persons suffered injury. 26. Therefore, it is contended by the senior counsel and other counsel for the appellant-doctors that multiplier method should be used while awarding compensation to the victims because it leads to consistency and avoids arbitrariness. On contributory negligence by the claimant 27. The learned senior counsel and other counsel for the appellant-doctors submitted that the National Commission in s. c2001i s sec 197. 1.

c2001i s sec 151. 8. (2011)14SCC481. the impugned judgment should have deducted 25% of the compensation amount towards contributory negligence of the claimant caused by his interference in the treatment of the deceased. Instead, the National Commission has deducted only 10% towards the same. According to the learned senior counsel and other counsel for the appellants, the National Commission erred in not adhering to the tenior set by this Court while remanding the case back to it for determining the compensation to arrive at an adequate amount which would also imply an aspect of contributory negligence, individual role and liability of the Hospital and the doctors held negligent. Therefore, this Court is required to consider this aspect and deduct the remaining 15% out of the compensation awarded by the National Commission towards negligence by the claimant. On enhancement of compensation claimed by the claimant : 28.

The learned senior counsel and other counsel for the appellant-doctors and the Hospital contended that enhanced claim of the claimant in his appeal is without any amendment to the pleadings and therefore, is not maintainable in law. The claimant in his written submission filed during the course of arguments in July, 2011 before the National Commission, has made his claim of Rs. 97,56,07,000/- which the National Commission has rightly rejected in the impugned judgment holding that it was legally impermissible for it to consider that part of the evidence which is strictly not in conformity with the pleadings in order to award a higher compensation as claimed • by the claimant. In justification of the said conclusion and finding • of the National Commission, the learned <:ounsel have placed • reliance upon the principle analogous to Order II Rule 2 of • • C. P. C.

, 1908 and further contended that the claimant who had • abandoned his claim now cannot make new claims under • different heads. Further, it is submitted by Mr. Vijay Hansaria, • the learned senior counsel on behalf of AMRI Hospital that • • • • • • [V. GOPALA GOWDA, J. ] though the claimant had filed an application on 9. 11. 2009 in M. A. No. 1327 of 2009 for additional claim; the said application was withdrawn by him on 9. 2. 2010. Therefore, his claim for enhancing compensation is not tenable in law. In support of the said contention, he has placed reliance upon the judgment of this Court in National textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad9, wherein it is stated by this Court that the pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. In support of the said proposition of law, reliance was also placed upon other judgment of this Court in Maria Margarida 10 Sequeria Fernandes Vs.

Erasmo Jack de Sequeria , wherein this Court, at paragraph 61, has held that :- "in civil cases, pleadings are extremely important for ascertaining title and possession of the property in question. " The said view of this Court was reiterated in A. Shanmugam Vs. Ariya Kshatriya Rajaku/a Vamsathu Mada/aya 11 Nandavana Paripa/anai Sangam , 29. Further, the learned senior counsel for the appellantdoctors and AMRI Hospital placed reliance upon the provisions of the Consumer Protection Act, 1986 and the Motor Vehicles Act, 1988 to urge that though the Consumer Courts have pecuniary jurisdiction for deciding the matters filed before it whereby the pecuniary jurisdiction of the District Forum is Rs. 20 lakhs, State Commission is from Rs. 20 lakhs to Rs. 1 crore, whereas for National Commission, it is above Rs. 1 crore, the Motor Accident Claims Tribunal have unlimited jurisdiction.

In the Consumer Protection Act, 1986 there is a provision for limitation of 2 years for filing of complaint under Section 24-A e. (2011) 12 . sec 695. 10. (2012) s sec 310. 11. (2012) a sec 430. of the Act and there is no limitation prescribed in the Motor Vehicles Act, 1988. 30. Sections 12 and 13 of the Consumer Protection Act, 1986 provide as to how the complaint has to be made and the procedure to be followed by the claimant for filing the complaint. 8 Rule 14(c) of the Consumer Protection Rules, 1987 and the Consumer Protection Regulations, 2005 require the complainant to specify the relief which he claims. The filing of the complaint/appeal/revision is dealt with Consumer Protection Regulations, 2005. Under the Motor Vehicles Act, 1988, a victim or deceased's legal representative does not have to specify the amount claimed as held by this Court in the case of Nagappa 12 Vs. Gurudaya/ Singh • 31.

Under Section 158(6) of the Motor Vehicles Act, 1988, the report forwarded to the Claims Tribunal can be treated as an application for compensation even though no claim is made or specified amount is claimed whereas under the Consumer Protection Act, a written complaint specifying the claim to be preferred before the appropriate forum within the period of limitation prescribed under the provision of the Act is a must. 32. Under Section 163-A of the Motor Vehicles Act, 1988 claimant is entitled to compensation under the structured formula even without negligence whereas no such provision exists under the Consumer Protection Act. 33. In this regard, the learned senior counsel and other counsel for the appellant-doctors and Hospital placed reliance upon the judgment of this Court in the case of Ibrahim Vs.

13 Raju and submitted that the said case does not apply to the fact situation for two reasons, namely, it was a case under the Motor Vehicles Aict, 1988, whereas this case involves the Consumer Protection Act. Secondly, this Court in the previous case, enhanced the compensation observing that due to 12. (2003) 2 sec 274. 13. (2011) 10 sec 634. - - [V. GOPALA GOWDA, J. ] financial incapacity the claimant could not avail the services of the competent lawyer, which is not the case in hand, in as much as the claimant had hired the services of an advocate who is Bar-at-Law and the President of the Supreme Court Bar Association. 34. Further, the learned counsel for the appellant-doctors placed reliance upon the judgment of this Court in the case of 14 Sanjay Batham Vs. Munnala/ Parihar , which is a case under the Motor Vehicles Act, 1988. This Court enhanced the compensation following the judgment in Nagappa's case (supra).

The learned counsel also placed reliance upon the judgment of this Court in Nizam lnstitute's case (supra) where the complainant had made a claim of Rs. 7. 50 crores. This Court enhanced the compensation from Rs. 15. 50 lakhs to Rs. 1 crore. But, the Nizam lnstitute's case is not a case for the proposition that a claimant can be awarded compensation beyond what is claimed by him. On the other hand, it was a case of peculiar facts and circumstances since the claimant had permanent disability which required constant medical attention, medicines, services of attendant and driver for himself. The cases referred to by the claimant regarding medical negligence in his written submission are distinguishable from the present case and in none of these cases upon which reliance has been placed by the claimant, this Court has awarded compensation beyond what is claimed.

Therefore, the reliance placed upon the aforesaid judgments by the claimant does not support his claim and this Court need not accept the same and enhance the compensation as has been claimed by him since he is not entitled to the same. Death of the claimant's wife due to cumulative effect of negligence : 35. This Court vide its judgment in Malay Kumar Ganguly's case (supra) has held that: 14. (2011) 10 sec sss. "186. A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned. Negligence on the part of each of the treating doctors as also the hospital may have been the contributing factors to the ultimate death of the patient. But, then in a case of this nature, the court must deal with the consequences the patient faced, keeping in view the cumulative effect. In the instant case, negligent action has been noticed with respect to more than one respondent A cumulative incidence, therefore, has led to the death of the patient.

" The two words "may" and "cumulative incidence" in the abovesaid observations of this Court is relevant for determining the quantification of compensation. It is submitted that this Court is also not sure that the negligence solely has contributed to the death of the claimant's wife. At the most, this Court is of the view that the negligence may have contributed to the death of the claimanfs wife. The incidences leading to or contributing to the death of the deceased are: (i) Disease TEN itself is a fatal disease which has very high mortality rate. (ii) TEN itself produces septicemic shock and deceased Anuradha died because of such consequence. (iii) No direct treatment or treatment protocol for TEN. (iv) Negligence of many in treating de! ceased Anuradha. (v) Contributory negligence on the part of Dr. Kuna! Saha and his brother.

Furthermore, it is observed factually that lethal combination of Cisapride and Fluconazole had been used for a number of days at Breach Candy Hospital during her stay which leads to cardiac arrest. Therefore, the National Commission ought to [V. GOPALA GOWDA, J. ] have considered different incidences as aforesaid leading to the death of the claimanfs wife so as to correctly apportion the individual liability of the doctors and the AMRI Hospital in causing the death of the wife of the claimant. 36. Further, with regard to the liability of each of the 8 doctors and the AMRI Hospital, individual submissions have been made which are presented hereunder: Civil Appeal No. 692/2012 37. It is the case of the appellant-AMR! Hospital that the National Commission should have taken note of the fact that the deceased was initially examined by Dr. Sukumar Mukherjee and the alleged medical negligence resulting in the death of the deceased was due to his wrong medication (overdose of steroid).

Therefore, the Hospital has little or minimal responsibility in this regard, particularly, when after admission of the deceased in the Hospital there was correct diagnosis and she was given best possible treatment. The National Commission erred in apportioning the liability on the Hospital to the extent of 25% of the total award. This Court in the earlier round of litigation held that there is no medical negligence by Dr. Kaushik Nandy, the original respondent No. 6 in the complaint, who was also a doctor in the appellant-Hospital. 38. Further, the learned senior counsel for the AMRI Hospital submitted that the arguments advanced on behalf of the appellants-doctors Dr. Bairam Prasad in C. A. No. 2867/ 2012, Dr. Sukumar Mukherjee in C. A. No. 858/2012 and Dr. Baidyanath Haldar in C. A.

731/2012 with regard to percentage, on the basis of costs imposed in paragraph 196 of the judgment in the earlier round of litigation is without any basis and further submitted that under the heading - 'Individual Liability of Doctors' findings as to what was the negligence of the doctors and the appellant AMRI Hospital is not stated. If the said findings of the National Commission are considered, then it cannot be argued that the appellant AMRI Hospital should pay the highest compensation. Further, the learned senior counsel rebutted the submission of the claimant contending that since he had himself claimed special damages against the appellantdoctors, the Hospital and Dr. Abani Roy Choudhary in the complaint before th1e National Commission, therefore, he cannot now contend contrary to the same in the appeal before this Court. CIVIL APPEAL NO. 858 OF 2012 39. It is the case of the appellant- Dr.

Sul<umar Mukherjee that the National Commission while apportioning the liability of the appellant, has wrongly observed that : "Supreme Court has primarily fourid Dr. Sukumar Mukherjee and AMRI hospital guilty of negligence and deficient in service on several counts. Therefore, going by the said findings and observations of S:Jpreme Court we consider it appropriate to apportion the liability of Dr. Sukumar Muk. herjee and AMRI hospital in equal proportion, i. e. each should pay 25% i. e. 38,90,000/- of the awarded amount of 1,55,60,000/-. " 40. It is submitted by the learned counsel for the appellant - Dr. Sukumar Mukherjee that scrutiny of the Judgment in Malay Kumar Gangu/y's case (supra} will show that at no place did the Hon'ble Supreme Court made any observation or recorded any finding that the appellant Dr. Mukherjee and the Hospital are primarily responsible.

On the contrary, under the heading "Cumulative Effect of Negligence" under paras 186 and 187, this Hon'ble Court has held as under: "186. A patient would feel the deficiency in service having regard to the cumulative effect of iegligence of all concerned. Negligence on the part of each of the treating doctors as also the hospital may have been contributing factors to the ultimate death of the patient. But, then in a case of this nature, the court must deal with the [V. GOPALA GOWDA, J. ] consequences the patient faced keeping in v