TaxTMI 
TaxTMI 
2013 (10) TMI 1564
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....tional 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 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-AMRI 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 ....
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....pend 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 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 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 tim....
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....s. v. Patricia Jean Mahajan and Ors. (2002) 6 SCC 281. 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 AMRI Hospital-Appellant's 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 claimant now claimed enhancement of compensation 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 r....
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....ermitted). 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 earning 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. ... 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....
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....India Assurance Company Limited v. Yogesh Devi, (2012) 3 SCC 613 Rs.10,000 3. National Insurance Company Limited v. Sinitha, (2012) 2 SCC 356 Rs.5,000 4. Sunil Sharma v. Bachitar Singh, (2011) 11 SCC 425 Rs.25,000 5. Pushpa v. Shakuntala, (2011) 2 SCC 240 Rs.10,000 6. Arun Kumar Agrawal v. National Insurance Company Limited, (2010) 9 SCC 218 Rs.15,000 7. Shyamwati Sharma v. Karam Singh, (2010) 12 SCC 378 Rs.5,000 8. Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422 in Sarla Dixit v. Balwant Yadav Rs.15,000 9. Raj Rani v. Oriental Insurance Company Limited, (2009) 13 SCC 654 Rs.7,000 10. Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 Rs.10,000 11. Rani Gupta v. United India Insurance Company Limited, (2009) 13 SCC 498 Rs.25,000 12. National Insurance Company Limited v. Meghji Naran Soratiya, (2009) 12 SCC 796 Rs.10,000 13. Oriental Insurance Company Limited v. Angad Kol, (2009) 11 SCC 356 Rs.10,000 14. Usha Rajkhowa v. Paramount Industries, (2009) 14 SCC 71 Rs.5,000 15. Laxmi Devi v. Mohammad. Tabbar, (2008) 12 SCC 165 Rs.5,000 16. Andhra Pradesh State Road Transport Corporation v. M. Ram....
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....v. Kiran Pal (2009) 14 SCC 1, 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 an exorbitant amount as damages - which cannot either be treated as an obvious or natural though not foreseeable consequence of negligence. 18. Further, the learned sen....
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....rinciples to determine the amount of compensation under the heads: expenses, special damages, pain and suffering. 21. In Sarla 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 and Ors. v. Madan Mohan and 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 suffe....
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....he 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 and Ors. v. State of Bihar (2001) 8 SCC 197 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 and Anr. v. Deep Chand Sood and Ors. (2001) 8 SCC 151, the multiplier method was followed wherein school children were drowned due to negligence of school teachers. In the Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association and Ors. (2011) 14 SCC 481 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 the....
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.... 12 SCC 695, 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 Sequeria Fernandes v. Erasmo Jack de Sequeria (2012) 5 SCC 370, 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 v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandavana Paripalanai Sangam (2012) 6 SCC 430, 29. Further, the learned senior counsel for the Appellant-doctors 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 Claim....
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....his Court in the case of Sanjay Batham v. Munnalal Parihar (2011) 10 SCC 655, 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 Institute'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 Institute'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....
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....de which are presented hereunder: Civil Appeal No. 692/2012 37. It is the case of the Appellant-AMRI 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. Balram 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 percen....
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....ct to more than one Respondent. A cumulative incidence, therefore, has led to the death of the patient. 187. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the Respondent. In such a scenario finding of medical negligence under Section 304A cannot be objectively determined. 41. It is further submitted by the learned Counsel for the Appellant- Dr. Sukumar Mukherjee that the wife of the claimant was suffering from rash/fever from April 1998, she was seen by the Appellant-Dr. Sukumar Mukherjee only on three occasions before his pre-planned visit to the U.S.A. for attending a medical conference i.e. on 26.4.1998, 7.5.1998 and on the night of 11.5.1998 and then the Appellant-Dr. Mukherjee left India for USA and returned much after the demise of the claimant's wife. On her first examination on 26.4.1998 the Appellant suggested a host of pathological tests. The patient was requested to visit the Doctor with these reports. No drugs were....
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....t-Dr. Mukherjee. It is further submitted that before the Appellant-Dr. Mukherjee started the treatment of the deceased, Dr. Sanjoy Ghose on 6.5.1998 treated her and during the period of treatment of the Appellant-Dr. Mukherjee from 7.5.1998 to 11.5.1998, on 9.5.1998 Dr. Ashok Ghosal (Dermatologist) treated Anuradha Saha. These facts were not stated in the complaint petition and concealed by the claimant. To this aspect, even this Hon'ble Court has also recorded a finding in the case referred to supra that the patient was also examined by two consultant dermatologists Dr. A.K. Ghosal and Dr. S. Ghosh who diagnosed the disease to be a case of vasculitis. 43. It is further submitted by the learned Counsel for the Appellant-Dr. Mukherjee that the cause of death as recorded in the death certificate of the deceased is "septicemic shock with multi system organ failure in a case of TEN leading to cardio respiratory arrest". Blood culture was negative prior to death. There was no autopsy to confirm the diagnosis at Breach Candy Hospital, Mumbai. Dr. Udwadia observed on 27.5.1998 that the patient has developed SIRS in absence of infection in TEN. The patient expired on 28.5.1998 and t....
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....s shall have to be divided into five parts and only one part shall be attributed to the negligence of the Appellant-Dr. Mukherjee. Civil Appeal No. 2867 of 2012 45. It is the case of Dr. Balram Prasad-Appellant in Civil Appeal No. 2867 of 2012 that on 11.05.1998, Dr. Sukumar Mukherjee, before leaving for U.S.A., attended the patient at the AMRI Hospital at 2.15 p.m. and after examining the deceased, issued the second and last prescription on the aforesaid date without prescribing anything different but re-assured the patient that she would be fine in a few weeks' time and most confidently and strongly advised her to continue with the said injection for at least four more days. This was also recorded in the aforesaid last prescription of the said date. Further, it is stated that without disclosing that he would be out of India from 12.05.1998, he asked the deceased to consult the named Dermatologist, Dr. B. Haldar @ Baidyanath Haldar, the Appellant in Civil Appeal No. 731 of 2012, and the physician Dr. Abani Roy Chowdhury in his last prescription on the last visit of the deceased. Most culpably, he did not even prescribe I.V. Fluid and adequate nutritional support which wa....
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....reunder: NAME OF THE PARTY AMOUNT TO BE PAID Dr. Sukumar Mukherjee Compensation : Rs.38,90,000 Cost of litigation:1,50,000 Dr. Baidyanath Haldar Compensation : Rs.25,93,000 Cost of litigation: Rs.1,00,000 Dr. Abani Roy Chowdhury (since deceased) (claim foregone) Compensation : 25,00,000 AMRI Hospital Compensation : Rs.38,90,000 Cost of litigation: Rs.1,50,000 Dr. Balram Prasad Compensation : Rs.25,93,000 Cost of litigation: Rs.1,00,000 49. The Appellant-Dr. Balram Prasad in Civil Appeal No. 2867/2012 contends that he was the junior most attending physician attached to the Hospital, he was not called upon to prescribe medicines but was only required to continue and/or monitor the medicines prescribed by the specialist in the discipline. But realizing the seriousness of the patient, the Appellant had himself referred the patient to the three specialists and also suggested for undertaking a skin biopsy. The duty of care ordinarily expected of a junior doctor had been discharged with diligence by the Appellant. It is further contended that in his cross-examination before the National Commission in the enquiry proceeding, the claimant himself has a....
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.... rejected more than 98% of the total original claim of Rs. 77.7 crores which was modified to Rs. 97.5 crores later on by adding "special damages" due to further economic loss, loss of employment, bankruptcy etc. suffered by the claimant in the course of 15-year long trial in relation to the proceedings in question before the National Commission and this Court. The National Commission eventually awarded compensation of only Rs. 1.3 crores after reducing from the total award of Rs. 1.72 crores on the ground that the claimant had "interfered" in the treatment of his wife and since one of the guilty doctors had already expired, his share of compensation was also denied. 54. Therefore, the present appeal is filed claiming the just and reasonable compensation urging the following grounds: a) The National Commission has failed to consider the pecuniary, non-pecuniary and special damages as extracted hereinbefore. b)The National Commission has made blatant errors in mathematical calculation while awarding compensation using the multiplier method which is not the correct approach. c) The National Commission has erroneously used the multiplier method to determin....
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.... fundamental principle for awarding "just compensation" and this Court has categorically stated while remanding the case back to the National Commission that the principle of just compensation is based on "restitutio in integrum", i.e. the 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. It is further contended that the claimant had made a claim referred to supra under specific headings in great detail with justification for each of the heads. Unfortunately, despite referring to judicial notice and the said claim-table in its final judgment, the National Commission has rejected the entire claim on the sole ground that since the additional claim was not pleaded earlier, none of the claims made by the claimant can be considered. Therefore, the National Commission was wrong in rejecting different claims without any consideration and in assuming that the claims made by the claimant before the Tribunal cannot be changed or modified without prior pleadings under any other condition. The said view of the National Commission is contrary to the numerous following decisions of this Court which have opined....
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....CC 683, Sri Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance (2011) 13 SCC 236, Ibrahim v. Raju and Ors. (supra), Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd. (supra) and Kavita v. Dipak and Ors.: (2012) 8 SCC 604 59. In view of the above said decisions of this Court, the prospective loss of income for the wrongful death of claimant's wife must be reasonably judged based on her future potential in the U.S.A. that has also been calculated scientifically by economic expert, Prof. John F. Burke. 60. It is further the case of the claimant that the National Commission has completely failed to award "just compensation" due to non consideration of all the following critical factors: 1) The Guidelines provided by Supreme Court: This Court has provided guidelines as to how the National Commission should arrive at an "adequate compensation" after consideration of the unique nature of the case. 2) Status and qualification of the victim and her husband. 3) Income and standard of living in the U.S.A.: As both the deceased and the claimant were citizens of U.S.A. and permanently settled as a "child psychologist" and AI....
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....uradha's death could be "9 to 10 million dollars. While the loss of income would be multi million dollars as direct loss for wrongful death of Anuradha, it may appear as a fabulous amount in the context of India. This is undoubtedly an average and legitimate claim in the context of the instant case. And further, it may be noted that far bigger amounts of compensation are routinely awarded by the courts in medical negligence cases in the U.S.A. In this regard this Court also made very clear observation in Indian Medical Association v. V.P. Shanta and Ors. (supra), that to deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. 6) Loss of income of claimant: The National Commission has ignored the loss of income of the claimant though this Court has categorically stated while remanding the case to the National Commission that pecuniary and non-pecuniary losses and future losses "up to the date of trial" must be considered for the quantum of compensation. The claimant had incurred a huge amount of expenses in the course of the more than 15 years long trial in the instant case. These expenses include the enorm....
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....al claim that he initially filed in the court. Further, the National Commission ought to have taken into consideration the observations made in the remand order passed by this Court while determining the quantum of compensation and the legitimate expectation for the wrongful death of a patient 'after factoring in the position and stature of the doctors concerned as also the Hospital'. This Court also held in Malay Kumar Ganguly's case (supra) that AMRI is one of the best Hospitals in Calcutta, and that the doctors were the best doctors available. Therefore, the compensation in the instant case may be enhanced in view of the specific observations made by this Court. 62. Appellant-doctors Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar have attempted to claim in their respective appeals that they cannot be penalized with compensation because they did not charge any fee for treatment of the deceased. Such a claim has no legal basis as in view of the categorical observations made by this Court in Savita Garg v. Director, National Heart Institute (2004) 8 SCC 56 and in Malay Kumar Ganguly's case (supra) wherein this Court has categorically stated that the aforesaid pr....
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..... Institute of Medical Sciences v. Jaspal Singh and Ors., (supra) Nizam Institute v. Prasant Dhananka (supra) Malay Kumar Ganguly v. Sukumar Mukherjee and Ors. (supra) and V. Kishan Rao v. Nikhil Superspeciality Hospital and Anr. (supra). 66. In fact, the National Commission or any other consumer court in India have never used the multiplier system to calculate adequate compensation for death or injury caused due to medical negligence except when the National Commission decided the claimant's case after it was remanded back by this Court. Reliance was placed upon Sarla Verma's case (supra) at paragraph 37, wherein the principle laid down for determining compensation using multiplier method does not apply even in accident cases under Section 166 of the MV Act. In contrast to death from road or other accident, it is urged that death or permanent injury to a patient caused from medical negligence is undoubtedly a reprehensible act. Compensation for death of a patient from medical negligence cannot and should not be compensated simply by using the multiplier method. In support of this contention he has placed reliance upon the Nizam Institute's case (supra) at paragraph ....
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....ion. Thus, the claimant filed a legitimate claim for special damages for the losses sustained by him in the course of 15 years long trial including the loss of his employment at the Ohio State University and resultant position of bankruptcy and home foreclosure. The National Commission did not provide any reason for rejecting the said claim which is in violation of the observations made in Charan Singh's case (supra). 70. Further, this Court has affirmed the principle regarding determination of just compensation in the following cases that inflation should be considered while deciding quantum of compensation: Reshma Kumari and Ors. v. Madan Mohan and Anr. (supra), Govind Yadav v. New Indian Insurance Co. Ltd. (supra) and Ibrahim v. Raju and Ors. (supra). 71. Using the cost of inflation index (in short C.I.I.) as published by the Govt. of India, the original claim of Rs. 77.7 crores made by the claimant in 1998 would be equivalent to Rs. 188.6 crores as of 2012-2013. The mathematical calculation in this regard has been presented in the short note submitted by the claimant. Thus, the compensation payable for the wrongful death of claimant's wife would stand today at Rs.....
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....nt case. This Court has also made it clear that the excessive use of the medicine by the doctor was out of sheer ignorance of basic hazards relating to the use of steroids as also lack of judgment. No doctor has the right to use the drug beyond the maximum recommended dose. 74. The Supreme Court of Ohio in Dardinger v. Anthem Blue Cross Shield et al 781 N.E. 2d 2002. had judged that since $ 49 million punitive damages was excessive it still awarded US $ 19 million in a case of medical negligence. The aforesaid judgments from the U.S.A. clearly show that punitive damages usually are many times bigger than the compensatory damages. A nominal amount of US $ 1,000,000 has been claimed as punitive damages in the instant case to send a deterrent message to the reckless doctors in India keeping in view the major difference in the standard of living between India and U.S.A. In fact, this Court in a well-known case of Lata Wadhwa (supra) in which a number of children and women died from an accidental fire, awarded punitive damages to send a message against the unsafe condition kept by some greedy organizations or companies in the common public places in India. 75. It was further conte....
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....US Social Security income up to 82 years Rs.1,44,00,000/- 3 Paid for treatment at AMRI/Breach Candy Hospital Rs.12,00,000/- 4 Paid for chartered flight to transfer Anuradha Rs. 9,00,000/- 5 Travel/hotel/other expenses during Anuradha's treatment in Mumbai/ Kolkata in 1998 Rs. 7,00,000/- 6 Paid for court proceedings including video conferencing from U.S.A. Rs.11,57,000/- B Cost associated with Anuradha's husband, Dr. Kunal Saha 1 Loss of income for missed work Rs.1,12,50,000/- 2 Travel expenses over the past 12 years Rs.70,00,000/- C Legal expenses 1 Advocate fees Rs.1,50,00,000/- 2 other legal expenses Rs.15,00,000/- Total pecuniary damages Rs.34,56,07,000/- Non-Pecuniary Special Damages 1 Loss of companionship and life amenities Rs.13,50,00,000/- 2 Emotional distress, pain and suffering for husband Rs.50,00,000/- 3 Pain/suffering endured by the victim during therapy Rs.4,50,00,000/- Total non pecuniary damages Rs.31,50,00,000/- D PUNITIVE/EXEMPLARY DAMAGES Rs.13,50,00,000/- E SPECIAL DAMAGES Rs.18,00,00,000/- Total Rs.97,56,07....
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....rs and the AMRI Hospital can be disposed of later on. Therefore, the points that would arise for consideration in these appeals by these Court have been framed in the composite. The same are taken up in relation to the claimants' case in-seriatim and are answered by recording the following reasons: Answer to Point Nos. 1, 2 and 3 81. Point Nos. 1, 2 and 3 are taken up together and answered since they are inter related. 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 in various following cases has repeatedly affirmed that inflation of money should be considered while deciding the quantum of compensation. In Reshma Kumari and Ors. v. Madan Mohan and Anr. (supra), this Court at para 47 has dealt with this aspect as under: 4....
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....aken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration. 47. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No ha....
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....ict Consumer Forum, State Consumer Forum, and the National Commission and the courts for awarding 'just compensation'. In support of this contention, he has also strongly placed reliance upon the observations made at para 170 in the Malay Kumar Ganguly's case referred to supra wherein this Court has made observations as thus: 170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co.). The claimant made a claim under specific heads in great detail in justification for each one of the claim made by him. The National Commission, despite taking judicial notice of the claim made by the claimant in its judgment, has rejected the entire claim solely on the ground that the additional claim was not pleaded earlier, therefore, none of the claims made by him can be considered. The rejection of the additional claims by the Nati....
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....ake place. Some of the claims are untenable and we have no hesitation in rejecting them. We, however, find that the claim with respect to some of the other items need to be allowed or enhanced in view of the peculiar facts of the case. d) In Oriental Insurance Co. Ltd. v. Jashuben and Ors. (supra), the initial claim was for Rs. 12 lakhs which was subsequently raised to Rs. 25 lakhs. The claim was partly allowed by this Court. e) In R.D. Hattangadi v. Pest Control (India) (supra) the Appellant made an initial compensation claim of Rs. 4 lakhs but later on enhanced the claim to Rs. 35 lakhs by this Court. f) In Raj Rani and Ors. v. Oriental Insurance Co. Ltd. and Ors., (supra) this Court has observed that there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. The relevant paragraph reads as under: 14. In Nagappa v. Gurudayal Singh this Court has held as under: (SCC p. 279, para 7) 7. Firstly, under the provisions of the Motor Vehicles Act, 1988, (hereinafter referred to as 'the MV Act') there is no restriction that compensation could be awarded only up to the amount claimed by the ....
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.... Court referred to supra. We have to accept the claim of the claimant as it is supported by the decisions of this Court and the same is well founded in law. 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. Therefore, we are 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. We have to keep in view the fact that this Court while remanding the case back to the National Commission only for the purpose of determination of quantum of compensation also made categorical observation that: 172. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, the courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife's contribution to the family in terms of money can always be....
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....s Court in Govind Yadav v. New India Insurance Co. Ltd. (supra), Sri Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance (supra), Ibrahim v. Raju and Ors., Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd. (supra) and Kavita v. Dipak and Ors. (supra) in support of his additional claim on loss of future prospect of income. However, these decisions do not have any relevance to the facts and circumstances of the present case. Moreover, these cases mention about 'future loss of income' and not 'future prospects of income' in terms of the potential of the victim and we are inclined to distinguish between the two. 87. We place reliance upon the decisions of this Court in Arvind Kumar Mishra's case (supra) and also in Susamma Thomas (supra), wherein this Court held thus: 24. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the decease....
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....the enhanced claim filed before the National Commission or an application filed in the appeal by the claimant cannot be accepted by this Court. In support of this contention, they have placed reliance upon the various provisions of the Consumer Protection Act and also decisions of this Court which have been adverted to in their submissions recorded in this judgment. The claimant strongly contended by placing reliance upon the additional claim by way of affidavit filed before the National Commission which was sought to be justified with reference to the liberty given by this Court in the earlier proceedings which arose when the application filed by the claimant was rejected and this Court has permitted him to file an affidavit before the National Commission and the same has been done. The ground urged by the claimant is that the National Commission has not considered the entire claim including the additional claim made before it. He has placed strong reliance upon V.P. Shantha's case (supra) in support of his contention wherein it was held as under: 53. Dealing with the present state of medical negligence cases in the United Kingdom it has been observed: The le....
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....trict arbitrarily the size of an award would amount to substantial injustice. After all, there is no difference in legal theory between the Plaintiff injured through medical negligence and the Plaintiff injured in an industrial or motor accident. (pp. 192-93) (Mason's Law and Medical Ethics, 4th Edn.) (Emphasis laid by this Court) 90. He has also placed reliance upon the Nizam Institute of Medical Sciences's case referred to supra in support of his submission that if a case is made out, then the Court must not be chary of awarding adequate compensation. The relevant paragraph reads as under: 88. We must emphasise 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 parti....
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....s Oriental Insurance Co. Ltd. v. Jashuben and Ors., R.D. Hattangadi, Raj Rani & Ors, Laxman @ Laxaman Mourya all cases referred to supra. Therefore, the relevant paragraphs from the said judgments in-seriatimextracted above show that this Court has got the power under Article 136 of the Constitution and the duty to award just and reasonable compensation to do complete justice to the affected claimant. In view of the aforesaid reasons stated by us, it is wholly untenable in law with regard to the legal contentions urged on behalf of the AMRI Hospital and the doctors that without there being an amendment to the claim petition, the claimant is not entitled to seek the additional claims by way of affidavit, the claim is barred by limitation and the same has not been rightly accepted by the National Commission. 94. Also, in view of the above reasoning the contention that the claimant has waived his right to claim more compensation in view of the Order II Rule 2 of Code of Civil Procedure as pleaded by the AMRI Hospital and the Appellant-doctors is also held to be wholly unsustainable in law. The claimant is justified in claiming additional claim for determining just and reasonable....
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....ier method. (Emphasis laid by this Court) He has further urged that the 'multiplier' method as provided in the second Schedule to Section 163A of the M.V. Act which provision along with the Second Schedule was inserted to the Act by way of Amendment in 1994, was meant for speedy disposal of 'no fault' motor accident claim cases. Hence, the present case of gross medical negligence by the Appellant-doctors and the Hospital cannot be compared with 'no fault' motor accident claim cases. 96. The Appellant Dr. Balram Prasad on the other hand relied upon the decision in United India Insurance Co. Ltd. v. Patricia Jean Mahajan (supra) and contended that multiplier method is a standard method of determining the quantum of compensation in India. The relevant paragraphs read as under: 20. The court cannot be totally oblivious to the realities. The Second Schedule while prescribing the multiplier, had maximum income of Rs. 40,000 p.a. in mind, but it is considered to be a safe guide for applying the prescribed multiplier in cases of higher income also but in cases where the gap in income is so wide as in the present case income is 2,26,297 dollars, in ....
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.... permanent disability which required constant medical assistance. Therefore, it was urged that Nizam Institute case cannot be relied upon by this Court to determine the quantum of compensation by not adopting multiplier method in favour of the claimant. A careful reading of the above cases shows that this Court is skeptical about using a strait jacket multiplier method for determining the quantum of compensation in medical negligence claims. On the contrary, this Court mentions various instances where the Court chose to deviate from the standard multiplier method to avoid over-compensation and also relied upon the quantum of multiplicand to choose the appropriate multiplier. Therefore, submission made in this regard by the claimant is well founded and based on sound logic and is reasonable as 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 death of the wife of the claimant which is discussed in the reasoning portion in answer to the point Nos. 1 to 3 which have been framed by this Court in these appeal....
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....n an average, we award a compensation of Rs. 10 lakhs under the head of 'Travel expenses over the past twelve years'. Further, the claimant argues that he has spent Rs. 1,65,00,000/- towards litigation over the past 12 years while seeking compensation under this head. Again, we find the claim to be on the higher side. Considering that the claimant who is a doctor by profession, appeared in person before this Court to argue his case. We acknowledge the fact that he might have required rigorous assistance of lawyers to prepare his case and produce evidence in order. Therefore, we grant a compensation of Rs. 1,50,000/- 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'. Answer to Point No. 6 100. A perusal of the operative portion of the impugned judgment of the National Commission shows that it has awarded interest at the rate of 12% per annum but only in case of default by the doctors of AMRI Hospital to pay the compensation within 8 weeks after the judgment was delivered on October 21, 2011. Therefore, in other words, the National Commission did not grant....
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....e is permissible by statute. 101. Further, in Kemp and Kemp on Quantum of Damages, the objective behind granting interest is recorded as under: The object of a court in awarding interest to a successful litigant is to compensate him for being kept out of money which the court has found is properly due to him. That objective is easy to achieve where it is clear that on a certain date the Defendant ought to have paid to the Plaintiff an ascertained sum, for example by way of repayment of a loan. The problems which arise in personal injury and fatal accident cases in relation to awards of interest result from the facts that while, on the one hand, the cause of action accrues at the time of the accident, so that compensation is payable as from that time, on the other hand (a) the appropriate amount of compensation cannot be assessed in a personal injury case with any pretence of accuracy until the condition of the Plaintiff has stabilised, and (b) subject to the provisions of the Supreme Court Act 1981, Section 32A when that section is brought into force, when damages are assessed they are assessed once for all in relation to both actual past and anticipat....
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....re, we are awarding the interest on the compensation that is determined by this Court in the appeal filed by the claimant at the rate of 6% per annum on the compensation awarded in these appeals from the date of complaint till the date of payment of compensation awarded by this Court. The justification made by the learned senior counsel on behalf of the Appellant-doctors and the AMRI Hospital in not awarding interest on the compensation awarded by the National Commission is contrary to law laid down by this Court and also the provisions of the Interest Act, 1978. Hence, their submissions cannot be accepted as the same are wholly untenable in law and misplaced. Accordingly, the aforesaid point is answered in favour of the claimant. Answer to point No. 7 103. Before we answer this point, it is pertinent to mention that we are not inclined to determine the liability of the doctors in causing the death of the claimant's wife since the same has already been done by the Court in Malay Kumar Ganguly's case (supra). We will confine ourselves to determine the extent to which the Appellant-doctors and the Hospital are liable to pay compensation awarded to the claimant for their....
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.... for determining the quantum of compensation, to emphasize upon the negligence on the part of the Hospital. The findings of this Court in Malay Kumar Ganguly's case read as under: 76. AMRI records demonstrate how abysmal the nursing care was. We understand that there was no burn unit in AMRI and there was no burn unit at Breach Candy Hospital either. A patient of TEN is kept in ICU. All emphasis has been laid on the fact that one room was virtually made an ICU. Entry restrictions were strictly adhered to. Hygiene was ensured. But constant nursing and supervision was required. In the name of preventing infection, it cannot be accepted that the nurses would not keep a watch on the patient. They would also not come to see the patients or administer drugs. 77. No nasogastric tube was given although the condition of the mouth was such that Anuradha could not have been given any solid food. She required 7 to 8 litres of water daily. It was impossible to give so much water by mouth. The doctors on the very first day found that the condition of the mouth was bad. 78. The ENT specialist in his prescription noticed blisters around the lips of the patient which ....
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....e", in both the contingencies, the courts have taken the view that the hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction which is sought to be pressed into service so ably by learned Counsel cannot absolve the hospital or the Institute as it is responsible for the acts of its treating doctors who are on the panel and whose services are requisitioned from time to time by the hospital looking to the nature of the diseases. The hospital or the Institute is responsible and no distinction could be made between the two classes of persons i.e. the treating doctor who was on the staff of the hospital and the nursing staff and the doctors whose services were temporarily taken for treatment of the patients.... 16. Therefore, the distinction between the "contract of service" and "contract for service" has been very elaborately discussed in the above case and this Court has extended the provisions of the Consumer Protection Act, 1986, to the medical profession also and included in its ambit the services rendered by private doctors as well as the gover....
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....n the latter the conduct of the Defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor.... Therefore, as a result of our above discussion we are of the opinion that summary dismissal of the original petition by the Commission on the question of non-joinder of necessary parties was not proper. In case the complainant fails to substantiate the allegations, then the complaint will fail. But not on the ground of non-joinder of necessary party. But at the same time the hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that the patient died. The hospital/Institute is not going to suffer on account of non-joinder of necessary parties and the Commission should have proceeded against the hospital. Even otherwise also the Institute had to produce the treating physician concerned and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Therefore, nothing turns on not impleading the treating doctor as a party. Once an allegation is made that the pat....
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....ospital 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. 187. It is to be noted that the doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also the differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the Respondent. In such a scenario finding of medical negligence under Section 304A cannot be objectively determined. 111. In the light of the legal contention raised by the Appellant-Dr. Mukherjee, we are inclined to make the following observation regarding his liability in the present case. The paragraphs relied upon by Dr. Mukherjee as have been mentioned above are in relation to the culpability of the doctors for causing the death of the patient under Section 304A of Indian Penal Code. ....
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.... 182. It is also of some great significance that both in the criminal as also the civil cases, the doctors concerned took recourse to the blame game. Some of them tried to shirk their individual responsibilities. We may in this behalf notice the following: (i) In response to the notice of Dr. Kunal, Dr. Mukherjee says that depomedrol had not been administered at all. When confronted with his prescription, he suggested that the reply was not prepared on his instructions, but on the instruction of AMRI. (ii) Dr. Mukherjee, thus, sought to disown his prescription at the first instance. So far as his prescription dated 11-5-1998 is concerned, according to him, because he left Calcutta for attending an international conference, the prescription issued by him became non-operative and, thus, he sought to shift the blame on Dr. Halder. (iii) Dr. Mukherjee and Dr. Halder have shifted the blame to Dr. Prasad and other doctors. Whereas Dr. Prasad countercharged the senior doctors including Respondent 2 stating: Prof. B.N. Halder (Respondent 2) was so much attached with the day-today treatment of patient Anuradha that he never found any deficiency i....
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....dings of this Court in Malay Kumar Ganguly's case supra, are recorded as under: 161. After taking over the treatment of the patient and detecting TEN, Dr. Halder ought to have necessarily verified the previous prescription that has been given to the patient. On 12-5-1998 although "depomedrol" was stopped, Dr. Halder did not take any remedial measures against the excessive amount of "depomedrol" that was already stuck in the patient's body and added more fuel to the fire by prescribing a quick-acting steroid "prednisolone" at 40 mg three times daily, which is an excessive dose, considering the fact that a huge amount of "depomedrol" has been already accumulated in the body. 162. Life saving "supportive therapy" including IV fluids/electrolyte replacement, dressing of skin wounds and close monitoring of the infection is mandatory for proper care of TEN patients. Skin (wound) swap and blood tests also ought to be performed regularly to detect the degree of infection. Apart from using the steroids, aggressive supportive therapy that is considered to be rudimentary for TEN patients was not provided by Dr. Halder. 163. Further "vital signs" of a patient....
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....place for treatment of TEN patient; on the converse, he was full of praise for AMRI as an ideal place for the treatment of TEN patients knowing nothing how a TEN patient should be treated. 117. To prove his competence as a doctor, the Appellant-Dr. Balram Prasad further produced a portion of the complaint which reads thus: 33...that no skin biopsy for histopathology report was ever recommended by any (except Dr. B. Prasad), which is the basic starting point in such treatment, the same mistake was also committed by the opposite party No. 1 118. The Appellant Dr. Balram Prasad further emphasizes upon the cross-examination of the claimant to prove that he was not negligent while treating the patient. Question No. 26 of the cross examination reads as under: Q. No. 26: Dr. Prasad says that Depomedrol dose according to the treatment sheet of the AMRI hospital, he made a specific suggestion that the dose should be limited to that particular day only. Is it correct? Ans: It is all matter of record. Yeah, he said that one day in AMRI record. 119. Though the claimant did not make specific claim against the Appellant-Dr. Balram Prasad, Appellant Dr. B. Hald....
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.... failures in the conduct of other individuals.... 121. Paragraph 183 of the judgment indicates that the Court abhorred the shifting of blames by the senior doctor on the attending physician the Appellant Dr. Balram Prasad even though the Court held him guilty of negligence. This Court found the Appellant-Dr. Balram Prasad guilty as under: 166. As regards, Dr. Balaram Prasad, Respondent 5, it may be noticed: (i) Most doctors refrain from using steroids at the later stage of the disease due to the fear of sepsis, yet he added more steroids in the form of quick-acting "prednisolone" at 40 mg three times a day. (ii) He stood as a second fiddle to the treatment and failed to apply his own mind. (iii) No doctor has the right to use the drug beyond the maximum recommended dose. 122. We acknowledge the fact that Dr. Balram Prasad was a junior doctor who might have acted on the direction of the senior doctors who undertook the treatment of the claimant's wife in AMRI-Hospital. However, we cannot lose sight of the fact that the Appellant Dr. Balram Prasad was an independent medical practitioner with a post graduate degree. He still stood as a sec....
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....ten statement has mentioned that this Court has rejected the assertion that the claimant interfered with the treatment of his wife. The Appellant-doctors raised the same issue in the revision petition which was appropriately dismissed. He relied upon the observations made by this Court which read as under: 117. Interference cannot be taken to be an excuse for abdicating one's responsibility especially when an interference could also have been in the nature of suggestion. Same comments were said to have been made by Dr. Halder while making his statement under Section 313 of the Code of Criminal Procedure. They are admissible in evidence for the said purpose. Similarly, the statements made by Dr. Mukherjee and Dr. Halder in their written statements before the National Commission are not backed by any evidence on record. Even otherwise, keeping in view the specific defence raised by them individually, interference by Kunal, so far as they are concerned, would amount to hearsay evidence and not direct evidence. 122. The Respondents also sought to highlight on the number of antibiotics which are said to have been administered by Kunal to Anuradha while she was in A....
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....hat 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 clearly absolved the claimant of such liability and remanded the matter back to the National Commission only for the purpose of determining the quantum of compensation. Hence, we set aside the finding of the National Commission and re-emphasize the finding of this Court that the claimant did not contribute to the negligence of the Appellants-doctors and AMRI Hospital which resulted in the death of his wife. Answer to point No. 8 128. 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 of him 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 aforesaid heads as he has incurred huge amount of expenses in the court of more than 15 years long trial in the instant case. The total claim, orig....
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....ompensation under the head of loss of dependency. The claimant has rightly relied upon the case involving death of a 47-48 years old U.S.A. citizen in a road accident in India, in United India Insurance Co. Ltd. and Ors. v. Patricia Jean Mahajan and Ors. referred to supra where this Court has awarded compensation of Rs. 10.38 crores after holding that while awarding compensation in such cases the Court must consider the high status and standard of living of both the victim and dependents. However, the National Commission did not consider the substantial and legal evidence adduced on record by the claimant regarding the income that was being earned by the claimant's wife even though he has examined the U.S.A. based Prof. John F. Burke through video conferencing in May-June, 2011. He was also cross examined by the counsel of the Appellant- doctors and the Hospital and had scientifically calculated and testified under direct as well as cross examination as to how he came to calculate the prospective loss of income for a similarly situated person in U.S.A. as of the deceased. Prof. John F. Burke has categorically stated that direct loss of income of the deceased on account of her p....
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....alification and the job for which she was entitled to. Therefore, while determining the income of the deceased, we rely on the evidence on record for the purpose of determining the just, fair and reasonable compensation in favour of the claimant. It would be just and proper for us to take her earning at $ 40,000 per annum on a regular job. We further rely upon the paragraphs in the cases of Sarla Verma and Santosh Devi referred to supra while answering the point No. 1, to hold that 30% should be added towards the future loss of income of the deceased. Also, based on the law laid down by this Court in catena of cases referred to supra, 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. 133. The multiplier method to be applied has been convincingly argued by the learned Counsel for the Appellant-doctors and the Hospital against by the claimant which we concede with based on the reasoning mentioned while answering the point No. 4. Therefore, estimating the life expectancy of a healthy person in the present age as 70 years, we are inclined to award compensation accordingly by multiplying the tota....
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....able expenditure during his travel and stay in Mumbai at the time of treatment of the deceased. Therefore, under this head, we award a compensation of Rs. 1,50,000/-. 138. However, with respect to the claim made under the cost of chartered flight, a sum of Rs. 5,00,000/- is already awarded by the National Commission and we are not inclined to interfere with the same in absence of any evidence which alters the computation of the cost incurred in chartered flight. Hence, we uphold the amount awarded by the National Commission under the head of 'cost of chartered flight'. Non pecuniary damages: 139. It is the case of the claimant that the National Commission has awarded paltry amount equivalent to $ 20,000 for the enormous and lifelong pain, suffering, loss of companionship and amenities that he had been put through due to the negligent act of the Appellant- doctors and the Hospital. The claimant had claimed Rs. 50 crores under this head before the National Commission without giving any break up figures for the amount. Before this Court however, the claimant has reduced the claim to Rs. 31,50,00,000/- under three different heads. He has claimed Rs. 13,50,00,000/- for ....
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....14 years, 11 years, 8 years and 3 years respectively. The deceased wife/mother was aged 37 years. The cost of a housekeeper to carry out services previously rendered by his wife was 22.5 pounds per week, the saving to him in not having to clothe and feed his wife was 10 pound per week, leaving a net loss of 12.50 pounds per week or 600 pounds a year. However, the Court took into account the value of other services previously rendered by the wife for which no substitute was available and accordingly increased the dependency to 20 pounds a week. The Court then applied a multiplier of 11 in reaching a total fatal accidents award of 12,298 pounds. In his judgment, Watkins, J. noted as under: (WLR pp. 307 H-308 A) The weekend care of the Plaintiff and the boys remains a problem which has not been satisfactorily solved. The Plaintiff's relatives help him to a certain extent, especially on Saturday afternoons. But I formed the clear impression that the Plaintiff is often, at weekends, sorely tired in trying to be an effective substitute for the deceased. The problem could, to some extent, be cured by engaging another woman, possibly to do duty at the weekend, but finding such....
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.... of her housekeeping services. 26. In India the courts have 195 recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children. 27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband ....
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....mendment, ignoring the escalation in the cost of living and the inflation, may not be justified. 33. In Chandra Singh v. Gurmeet Singh, Krishna Gupta v. Madan Lal, Captan Singh v. Oriental Insurance Co. Ltd. and Amar Singh Thukral v. Sandeep Chhatwal, the Single and Division Benches of the Delhi High Court declined to apply the judgment of this Court in Lata Wadhwa case for the purpose of award of compensation under the Act. In Krishna Gupta v. Madan Lal the Division Bench of the High Court observed as under: (DLT p. 834, para 24) 24...The decision of the Apex Court in Lata Wadhwa in our considered opinion, cannot be said to have any application in the instant case. The Motor Vehicles Act, 1939 was the complete code by itself. It not only provides for the right of a victim and/or his legal heirs to obtain compensation in case of bodily injury or death arising out of use of motor vehicle, but the Forum therefor has been provided, as also the mode and manner in which the compensation to be awarded therefor. In such a situation, it would be inappropriate to rely upon a decision of the Apex Court, which had been rendered in an absolutely different fact situation and i....
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....e years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium. (Emphasis laid by this Court) 142. Under the heading of loss due to pain and suffering and loss of amenities of the wife of the claimant, Kemp and Kemp write as under: The award to a Plaintiff of damages under the head "pain and suffering" depends as Lord Scarman said in Lim Poh Choo v. Camden and Islington Area health Authority, "upon the claimant's personal awareness of pain, her capacity of suffering. Accordingly, no award is appropriate if and in so far as the claimant has not suffered and is not likely to suffer pain, and has not endured and is not likely to endure suffering, for example, because he was rendered immediately and permanently unconscious in the accident. By contrast, an award of damages in respect of loss of amenities is appropriate whenever there is in fact such a loss regardless....
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.... a motor vehicle accident was awarded Rs. 10 lakhs for pain and suffering. Further, it was held in R.D. Hattangadi's case (supra) as follows: 14. In Halsbury's Laws of England, 4th Edn., Vol. 12 regarding non-pecuniary loss at page 446 it has been said: Non-pecuniary loss: the pattern.- Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the Plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. 145. Therefore, the claim of Rs. 4,50,00,000/- by the claimant is excessive since it goes against the amount awarded by this Court under this head in the earlier cases referred to supra. We acknowledge and empathise with the fact that the deceased had gone through immense pai....
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....y with the hope to live a better life with dignity. 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. We, therefore, hope and trust 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. 150. The central and the state governments may consider enacting laws wherever there is absence of one for effective functioning of the private Hospitals and Nursing Homes. Since the conduct of doctors is already regulated by the Medical Council of India, we hope and trust for impartial and strict scrutiny from the body. Finally, we hope and believe that the institutions and individuals providing medical services to the public at large 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 from the part of the doctors and the Hospital. 151. Accordingly, the Civil Appeal No....