Anuradha Shaha Medical Negligence Case Judgment by Supreme Court of India.

 

“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’).

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.

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[1] 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,
the  appellant-doctors  and  the  Hospital  found  the  amount  to  be
excessive 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:

. 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 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.

. 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  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.

. 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.

. 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 account 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 & Ors[2].

It is further contended by the learned counsel for the appellant-
doctors and the Hospital that no  yardstick  is  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. Patricia Jean Mahajan & Ors[3].   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 Civil Appeal No. 2866/2012  filed  by  the  claimant-Dr.Kunal
Saha is also partly allowed and the finding on contributory negligence
by the National Commission on the part of the claimant is  set  aside.
The direction of the National Commission to deduct 10% of the  awarded
amount of compensation on account of contributory negligence  is  also
set aside by  enhancing  the  compensation  from  Rs.1,34,66,000/-  to
Rs.6,08,00,550/- with 6% interest per  annum  from  the  date  of  the
complaint to the date of the payment to the claimant.

The AMRI Hospital is directed to comply  with  this  judgment  by
sending demand draft of the compensation awarded in this appeal to the
extent of liability imposed on it after deducting the amount, if  any,
already paid to the  claimant,  within  eight  weeks  and  submit  the
compliance report. ”
———————————————————————————————————–

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2867 OF 2012

Dr. Balram Prasad                             … Appellant

Vs.

Dr. Kunal Saha & Ors.                  … Respondents

WITH

CIVIL APPEAL No.692 of 2012

Advanced Medicare & Research
Institute Ltd.                         … Appellant

Vs.

Dr. Kunal Saha & Ors.                  … Respondents

WITH

CIVIL APPEAL No.2866 of 2012

Dr. Kunal Saha                                  …Appellant

Vs.

Dr. Sukumar Mukherjee & Ors.           … Respondents

WITH

CIVIL APPEAL No.731 of 2012

Dr. Baidyanath Haldar                      …  Appellant

Vs.

Dr. Kunal Saha & Ors.                  …  Respondents

AND

CIVIL APPEAL No.858 of 2012

Dr. Sukumar Mukherjee                   … Appellant

Vs.

Dr. Kunal Saha & Ors.                  … Respondents

J U D G M E N T

V. Gopala Gowda, J.

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-AMRI Hospital and Civil Appeal No. 2866 of 2012 is filed  by
the claimant-appellant – Dr. Kunal Saha (hereinafter  referred  to  as
‘the claimant’), questioning the correctness of the impugned  judgment
and order dated 21.10.2011 passed by the  National  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 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[1] 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,
the  appellant-doctors  and  the  Hospital  found  the  amount  to  be
excessive 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:

. 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 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  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 account 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 & Ors[2].

It is further contended by the learned counsel for the appellant-
doctors and the Hospital that no  yardstick  is  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. Patricia Jean Mahajan & Ors[3].   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 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) No.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  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  in
the presence of the Local Commissioner, has estimated  the  life  time
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  Home  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 law
since only the affidavit of claimant was exhibited and  not
the documents before  Justice  Lokeshwar  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
treated 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:-
|CASE LAW                                       |AMOUNT          |
|1. Santosh Devi v. National Insurance Co. Ltd.,|Rs.10,000       |
|(2012) 6 SCC 421                               |                |
|2. New India Assurance Company Limited v.      |Rs.10,000       |
|Yogesh Devi, (2012) 3 SCC 613                  |                |
|3. National Insurance Company Limited v.       |Rs.5,000        |
|Sinitha, (2012) 2 SCC 356                      |                |
|4. Sunil Sharma v. Bachitar Singh, (2011) 11   |Rs.25,000       |
|SCC 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) 12  |Rs.5,000        |
|SCC 378                                        |                |
|8. Reshma Kumari v. Madan Mohan, (2009) 13 SCC |Rs.15,000       |
|422 in Sarla Dixit v. Balwant Yadav            |                |
|9. Raj Rani v. Oriental Insurance Company      |Rs.7,000        |
|Limited, (2009) 13 SCC 654                     |                |
|10. Sarla Verma v. Delhi Transport Corporation,|Rs.10,000       |
|(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. Angad|Rs.10,000       |
|Kol, (2009) 11 SCC 356                         |                |
|14. Usha Rajkhowa v. Paramount Industries,     |Rs.5,000        |
|(2009) 14 SCC 71                               |                |
|15.  Laxmi Devi v. Mohammad. Tabbar, (2008) 12 |Rs.5,000        |
|SCC 165                                        |                |
|16. Andhra Pradesh State Road Transport        |Rs.5,000        |
|Corporation v. M. Ramadevi, (2008) 3 SCC 379   |                |
|17. State of Punjab v. Jalour Singh, (2008) 2  |Rs.5,000        |
|SCC 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 SCC 175                    |                |
|20. Sarla Dixit v. Balwant Yadav, (1996) 3 SCC |Rs.15,000       |
|179                                            |                |
|21. G.M., Kerala SRTC v. Susamma Thomas, (1994)|Rs.15,000       |
|2 SCC 176                                      |                |
|22. National Insurance Co. Ltd. v. Swaranlata  |Rs.7,500        |
|Das, 1993 Supp (2) SCC 743                     |                |

14.  Further, the senior counsel and other counsel for  the  appellant-
doctors contended that the case of Nizam Institute of Medical  Sciences
Vs. Prasanth S. Dhananka & Ors.[4]  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 counsel for the  appellant-
doctors that the compensation awarded by the National Commission should
be meant to restore the claimant 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[5], 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 senior counsel has  placed  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-cum-attendant, 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 the 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  be
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 LVII 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
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 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 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 & 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 Sarla 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  well-settled  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  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 uniformity, 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 Bihar[6] 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 Chand Sood  and  Ors.[7],  the
multiplier  method  was  followed  wherein  school  children  were
drowned due to negligence of school teachers.   In  the  Municipal
Corporation of Delhi Vs.  Uphaar  Tragedy  Victims  Association  &
Ors.[8]  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  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
tenor 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 counsel 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 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 Jagad[9], 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 Vs. Erasmo Jack de  Sequeria[10],  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 Rajakula Vamsathu Madalaya Nandavana Paripalanai Sangam[11],

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  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 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.  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 Vs. Gurudayal Singh[12].

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 a 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.  Raju.[13]  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
Act, 1988, whereas this case involves the Consumer Protection Act.
Secondly,  this  Court  in  the  previous   case,   enhanced   the
compensation  observing  that  due  to  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  Sanjay
Batham Vs. Munnalal Parihar[14], 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 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:

“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  claimant’s
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 deceased Anuradha.
v) Contributory negligence on the part of  Dr.Kunal  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 have considered  different
incidences as aforesaid leading to the death of the claimant’s 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  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-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 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 appellant-doctors, the Hospital and Dr.  Abani
Roy Choudhary in the complaint  before  the  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. Sukumar  Mukherjee  that  the
National  Commission  while  apportioning  the  liability  of  the
appellant, has wrongly observed that :
“Supreme Court has primarily found 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 Supreme Court we consider it  appropriate  to
apportion the liability of Dr.  Sukumar  Mukherjee  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
Ganguly’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  negligence  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
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 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 304-A 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 prescribed by the appellant-Dr.Mukherjee at
this examination. On  7.5.1998,  Anuradha  Saha  walked  into  the
clinic of the appellant-Dr.Mukherjee at  9.30  p.m.  and  reported
that she was  uncomfortable  because  she  had  consumed  food  of
Chinese cuisine. The appellant-Dr.Mukherjee noticed that there was
a definite change  in  the  nature  of  the  rash.  Based  on  the
information furnished and the status and condition of the patient,
she was diagnosed to be suffering from allergic vasculitis and the
appellant-Dr.Mukherjee  commenced  treating   the   patient   with
Depomedrol, which is a drug belonging to the family  of  steroids.
The appellant-Dr.Mukherjee recommended Depomedrol 80  mg.IM  twice
daily for 3 days  to  be  reconsidered  after  Anuradha  Saha  was
subject to further review. Depomedrol is very  much  indicated  in
Vasculitis (USPDI 1994): “Depomedrol is  anti-inflammatory,  anti-
allergic drug. Therefore, it  is  Doctor’s  judgment  to  use  the
drug.” The appellant-Dr.Mukherjee administered  one  injection  of
Depomedrol on the night of 7.5.1998. He  did  not  administer  any
other  injections  to  the  deceased  thereafter.  It  is  further
submitted  that  much  higher  dose  of   Depomedrol   have   been
recommended  in  USPDI  1994  and  CDRom  Harisons  Principles  of
Medicine 1998 in by pass skin  diseases  like  multiple  sclerosis
with a dose of 177.7 mg daily for 1 week and 71 mg on every  other
day for one month.

42. On 11.5.1998 when  the  appellant-Dr.Mukherjee  examined  Anuradha
Saha at the AMRI Hospital prior to his  departure  to  U.S.A.,  he
prescribed a whole line of treatment and  organized  reference  to
different   specialists/consultants.   He   recommended    further
pathological tests because on examining the patient at  the  AMRI,
he noticed that she had some blisters which were not  peeled  off.
There was no detachment of skin  at  all.  He  also  requested  in
writing the treating  consultant  physician  of  AMRI  Dr.  Balram
Prasad, MD  to  organize  all  these  including  referral  to  all
specialists. The appellant-Dr.Mukherjee suspected continuation  of
allergic Vasculitis in aggravated form and prescribed steroids  in
a tapering dose on 11.5.1998 and  advised  other  tests  to  check
infection and any immuno abnormalities.  It  is  stated  that  the
appellant-Dr.Mukherjee did not examine the patient thereafter  and
as aforementioned, he left on a pre-arranged visit to U.S.A. for a
medical  conference.  No  fees  were  charged  by  the  appellant-
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 the death certificate was written by a junior doctor
without the comments of Dr.  Udwadia.   It  is  submitted  by  the
learned counsel that there  is  neither  any  allegation  nor  any
finding by this Court that the doctors of the  AMRI  Hospital  had
contributed to septicemia.  The mere finding that the patient  was
not properly dressed at AMRI Hospital where she stayed for only  6
days of early evocation of the disease do not justify contribution
to septicemic shock of the deceased.  Further, there is no  record
to show that at AMRI Hospital the skin of the patient  had  peeled
out thereby leading to chance of  developing  septicemia.  On  the
other hand, it is a fact borne out from record  that  the  patient
was taken in a chartered flight to Breach Candy  Hospital,  Bombay
against the advice of the doctors at Kolkata and  further  nothing
is borne out from the records as what precaution were taken by the
claimant while  shifting  the  patient  by  Air  to  Breach  Candy
Hospital thereby leading to the conclusion that during the  travel
by chartered flight she might have  contracted  infection  of  the
skin leading to septicemia. It is further submitted by the learned
counsel for the appellant- Dr. Sukumar  Mukherjee  that  the  fact
that the  disease TEN requires higher degree of care  since  there
is no definite  treatment,  such  high  degree  of  care  will  be
relatable  to  comfort  but  not  definitely  to  septicemia  that
occurred at Breach Candy Hospital. Hence,  negligence  has  to  be
assessed for damages for failure to provide comfort to the patient
and not  a  contributory  to  septicemia  shock  suffered  by  the
deceased.

44. It is submitted by the learned counsel for  appellant-Dr.  Sukumar
Mukherjee that there is no finding or  allegation  that  the  drug
Depomedrol prescribed by  the  appellant-Dr.Mukherjee  caused  the
disease TEN.  The appellant advised a number  of  blood  tests  on
11.5.98 in AMRI  Hospital  to  detect  any  infection  and  immune
abnormality due to steroids and to  foresee  consequences.  It  is
further submitted that Breach Candy Hospital records show that the
patient was haemo-dynamically stable.  Even Dr.Udwadia  of  Breach
Candy Hospital on 17.5.1998  doubted  with  regard  to  the  exact
disease and recorded the disease as TEN or Steven Johnson Syndrom.

Therefore, the National  Commission  ought  to  have  considered
different  incidences  as  aforesaid  leading  to  the  death  of  the
claimant’s wife and the quantum of damages 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 Dermotologist,  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  was
mandatory in that condition.  Dr. Haldar took over  the  treatment
of the  deceased  as  a  Dermatologist  Head  and  Dr.  Abani  Roy
Chowdhury as Head of the Medical Management from  12.05.1998  with
the positive knowledge and treatment background that  the  patient
by then already had clear intake of 880 mg of Depomedrol injection
as would be evident from AMRI’s treatment sheet dated 11.05.1998.

46. It is further stated by  the  claimant  in  the  complaint  lodged
before National Commission that it contained specific averments of
negligence against the appellant-doctors.  The  only  averment  of
alleged negligence was contained in paragraph 44 of the  complaint
which reads as under:

“44. That Dr. Balram Prasad as attending  physician  at  AMRI
did do nothing better.  He did  not  take  any  part  in  the
treatment of the patient although  he  stood  like  a  second
fiddle to the main team headed by the opposite  party  No.  2
and 3.   He never suggested even faintly that AMRI is not  an
ideal 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.”

47. The claimant has also placed strong reliance upon the answer given
by him to question No. 26 in his  cross  examination  which  reads
thus:

“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 one day  in
AMRI record.”

48. Though,  the  appellant-Dr.  Balram  Prasad  was  accused  in  the
criminal complaint lodged by the claimant he was neither proceeded
against as an accused in the criminal  complaint  nor  before  the
West Bengal Medical Council but was named as a witness.   Further,
it is stated by the claimant that he  urged  before  the  National
Commission as well as before this Court in unequivocal terms  that
the bulk of the compensation awarded  would  have  to  be  in  the
proportion of 80%  on  the  AMRI  Hospital,  15%  on  Dr.  Sukumar
Mukherjee and balance between  the  rest.  Despite  the  aforesaid
submission before the National  Commission,  the  claimant  claims
that it has erred in awarding  the  proportion  of  the  liability
against each of the appellant-doctors in a manner mentioned in the
table which is provided hereunder:
| 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|Compensation: 25,00,000             |
|deceased) (claim foregone)    |                                    |
|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 admitted that the basic fallacy was committed
by three physicians, namely, Dr. Mukherjee, Dr. Haldar and Dr. Roy
Chowdhury. The above facts would clearly show that the role played
by the appellant-Doctors in the treatment of the deceased was only
secondary and the same had been discharged with reasonable and due
care expected of an attending physician in  the  given  facts  and
circumstances of the instant case.

50. In the light of the above facts and circumstances, the  contention
of the claimant that the death of the claimant’s wife was  neither
directly nor contributorily relatable to the alleged negligent act
of the appellant- Dr.  Balram  Prasad,  it  is  most  respectfully
submitted that  the  National  Commission  was  not  justified  in
apportioning the damages in the manner as has  been  done  by  the
National Commission to place the appellant on the same footing  as
that of Dr. Baidyanath Haldar, who was a senior  doctor  in-charge
of the management/treatment of the deceased.

51. The learned senior counsel for  the  appellant-Dr.  Balram  Prasad
further urged that the National Commission has also erred  in  not
taking into account the submissions of the claimant  that  80%  of
the damages ought to have been levied on the Hospital, 15% on  Dr.
Sukumar Mukherjee and the balance between the rest.  It  is  urged
that the proportion of the  compensation  amount  awarded  on  the
appellant is excessive and unreasonable which is beyond  the  case
of the claimant himself.

CIVIL APPEAL NO. 731 OF 2012

52. The learned counsel Mr. Ranjan Mukherjee appearing  on  behalf  of
the appellant in this appeal has filed the written submissions  on
15.4.2013. He has reiterated his  submission  in  support  of  his
appeal filed by the said doctor and has also adopted the arguments
made in support of the written submissions filed on behalf of  the
other doctors and AMRI Hospital by way of  reply  to  the  written
submissions of the claimant.  Further, he has submitted  that  the
appellant Dr. Baidyanath Haldar is about 80 years  and  is  ailing
with heart disease and no more in active practice.  Therefore,  he
requested to set  aside  the  liability  of  compensation  awarded
against him by allowing his appeal.
All the doctors and the Hospital urged more  or  less  the  same
grounds.

Civil Appeal No. 2866 of 2012

53.  This appeal has been filed by the claimant. It is  the  grievance
of the claimant that the National Commission  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 determine compensation for the first time in Indian
legal history  for  the  wrongful  death  caused  by  medical
negligence of the appellant-doctors and the AMRI Hospital.

d) The National Commission has reinvestigated  the  entire  case
about medical negligence and  went  beyond  the  observations
made by this Court in Malay Kumar Ganguly’s case  (supra)  by
holding that the claimant  is  also  guilty  for  his  wife’s
death.

e) The National Commission has failed to grant any  interest  on
the compensation though the litigation has taken more than 15
years to determine and award compensation.

f)  The  National  Commission  has  failed   to   consider   the
devaluation of money as a result of “inflation” for  awarding
higher compensation that was sought for in 1998.

g) It is also vehemently contended  by  the  claimant  that  the
National  Commission  has  made  blatant  and   irresponsible
comment on him stating that he was trying to “make a  fortune
out of a misfortune.”  The said remark must be expunged.

55. The appellant-doctors and the AMRI  Hospital  contended  that  the
compensation claimed by the claimant  is  an  enormously  fabulous
amount and should  not  be  granted  to  the  claimant  under  any
condition. This contention ought  to  have  been  noticed  by  the
National Commission that it is wholly untenable in law in view  of
the Constitution Bench decision of  this  Court  in  the  case  of
Indian Medical Association Vs. V.P.  Shantha  &  Ors[15],  wherein
this Court has categorically disagreed on this specific  point  in
another case wherein “medical negligence” was  involved.   In  the
said decision, it has been held at paragraph 53  that  to  deny  a
legitimate claim or to restrict arbitrarily the size of  an  award
would amount to substantial injustice to the claimant.

56. Further, in a three Judge Bench decision of this  Court  in  Nizam
Institute’s case(supra) it has been held that if a  case  is  made
out by the claimant, the court  must  not  be  chary  of  awarding
adequate compensation.  Further, the claimant contends  that  this
Court has recently refused to quash the defamation  claim  to  the
tune of Rs.100 crores in Times Global Broadcasting Co. Ltd. & Anr.
Vs. Parshuram Babaram Sawant [SLP (Civil) No(s) 29979/2011 decided
on 14-11-2011], suggesting that in  appropriate  cases,  seemingly
large amount of compensation is justified.

57. The claimant further urged that this is the 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 otherwise:-

Ningamma and Anr. Vs. United India Insurance Company  Ltd.[16],  Malay
Kumar  Ganguly’s  case  referred  to  supra,  Nizam  Institute’s  case
(supra), Oriental Insurance Company Ltd. Vs. Jashuben & Ors.  (supra),
R.D. Hattangadi Vs. Pest Control (India) Pvt.  Ltd.  &  Ors[17],   Raj
Rani & Ors Vs. Oriental Insurance Company Ltd. &  Ors[18].,  Laxman  @
Laxman Mourya Vs. Divisional Manager Vs. Oriental  Insurance Co.  Ltd.
& Anr.[19] and Ibrahim Vs. Raju & Ors. (supra).

58. The claimant has further argued that  the  just  compensation  for
prospective loss of income of  a  student  should  be  taken  into
consideration by the National Commission.  In this regard, he  has
contended that this Court while remanding the  case  back  to  the
National  Commission  only  for  determination   of   quantum   of
compensation, has made categorical observations that  compensation
for the loss of wife to a husband must depend on her  “educational
qualification, her own upbringing, status, husband’s income, etc.”
In this regard,  in  the  case  of  R.K.  Malik  &  Anr.  (supra)
(paragraphs 30-32) this Court has also expressed similar view that
status, future prospects and  educational  qualification  must  be
judged for deciding adequate compensation. It is contended by  the
claimant that it is an undisputed fact that  the  claimant’s  wife
was a recent graduate in Psychology from a highly prestigious  Ivy
League School in New York who had a brilliant future ahead of her.
Unfortunately, the National Commission has calculated the  entire
compensation and prospective loss of income solely based on a  pay
receipt of the victim showing a paltry income of  only   $  30,000
per year, which she was earning as a graduate student.   This  was
a grave error on the part of the National Commission,  especially,
in view of the observations made by this  Court  in  the  case  of
Arvind Kumar Mishra Vs. New India Assurance Co.[20],  wherein this
Court has calculated quantum of compensation based on ‘reasonable’
assumption about  prospective loss as to how much  an  Engineering
student from BIT might have earned in future even in  the  absence
of any expert’s opinion (paragraphs  13,14).   The  principles  of
this case were followed in many other cases namely, Raj Kumar  Vs.
Ajay Kumar & Anr.[21], Govind Yadav Vs. New  India  Insurance  Co.
Ltd.[22], Sri Ramachandrappa Vs. Manager, Royal Sundaram  Alliance
Insurance[23],     Ibrahim Vs. Raju & Ors. (supra),Laxman @ Laxman
Mourya Vs. Divisional Manager, Oriental Insurance Co. Ltd. (supra)
and Kavita Vs. Dipak & Ors.[24]

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  AIDs
researcher, respectively, the compensation in  the  instant
case must be calculated in terms of the status and standard
of  living  in  the  U.S.A..  In  Patricia  Mahajan’s  case
(supra), where a 48 year old US  citizen  died  in  a  road
accident in India, this Court has awarded a compensation of
more than Rs. 16 crores after holding that the compensation
in such cases must consider the high status and standard of
living in the country where the victim  and  the  dependent
live.
4) Economic expert from the U.S.A.:
The claimant initially filed a  complaint  before  the  National
Commission soon after the wrongful death of  his  wife  in  1998
with a total claim of  Rs.77.7  crores  against  the  appellant-
doctors and AMRI Hospital which  was  rejected  and  this  Court
remanded  this   matter   to   the   National   Commission   for
determination of the quantum of  compensation  with  a  specific
direction in  the  final  sentence  of  judgment  that  “foreign
experts” may be examined through video conferencing.
5) Scientific calculation of loss  of  income:   The  National
Commission  should   have   made   scientific   calculation
regarding  the  loss  of  income  of  the  claimant.   This
direction has been given by  this  Court  in  a  number  of
cases.  Further, he has contended that the  claimant  moved
this Court for video conferencing.  The  claimant  examined
Prof.  John  F.  Burke,  a  U.S.A.   based   Economist   of
international repute, in May-June, 2011. Prof John F. Burke
was also cross-examined by the  appellant-doctors  and  the
AMRI Hospital. Prof. Burke  scientifically  calculated  and
testified himself 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
Anuradha, the deceased and categorically  stated  that  the
direct loss of income for Anuradha’s premature death  would
amount to “5 million and 125 thousand dollars”.  This  loss
of income was calculated after deduction of  1/3rd  of  the
amount for her personal expenses. 1/3rd deduction of income
for personal  expenses  has  also  been  recommended  in  a
judgment of this Court in the case of Sarla Verma  (supra).
Prof. Burke has also explained how he calculated  the  loss
of income due  to  the  premature  death  of  Anuradha  and
further  testified  that  his  calculation  for   loss   of
Anuradha’s income was a “very  conservative  forecast”  and
that to some other estimates, the  damages  for  Anuradha’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 Vs. V.P. Shanta & 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 enormous cost for legal expenses as well as expenses
for the numerous trips between India and  the  U.S.A.  over  the
past more than 12 years. In addition to that  the  claimant  has
also suffered huge losses during this period, both  direct  loss
of income from his job in U.S.A. as well as  indirect  loss  for
pain and intense mental agony for tenure denial and  termination
of his employment at Ohio State University  (OSU)  which  was  a
direct result of the wrongful death  of  Anuradha  in  India  as
would be evident from the judgment passed by the Court of Claims
in Ohio which was filed by the AMRI Hospital on July  18,  2011.
The claimant also submitted an  affidavit  as  directed  by  the
National Commission in which the detailed description about  the
loss that he suffered in his personal as  well  as  professional
career in U.S.A. over the past 12 years for the  wrongful  death
of Anuradha, has been mentioned.  Needless  to  say  that  these
additional  damages  and  financial  losses  the  claimant   has
suffered since he  filed  the  original  complaint  against  the
appellant-doctors could not possibly be a part of  the  original
claim filed by him 15 years ago.

61. In view of the circumstances  narrated  above,  the  claimant  has
referred a revised quantum of claim which also includes a detailed
break-up of the individual items of  the  total  claim  in  proper
perspective under separate headings of  pecuniary,  non-pecuniary,
punitive and special damages.  The individual items of claim  have
also been justified with  appropriate  references  and  supporting
materials as needed. The total quantum of claim for  the  wrongful
death of the  claimant’s  wife  now  stands  at  Rs.97,56,07,000/-
including pecuniary damages of  Rs.34,56,07,000/-,  non  pecuniary
damages of Rs.31,50,00,000/-, special damages of US $  1,000,000/-
for loss of job in Ohio and punitive damages of US  $  1,000,000/.
This updated break-up of the total claim has  been  shown  in  the
claim-table referred to in the later part  of  the  judgment.  The
claimant respectfully submits that the National Commission  should
have considered this total claim in conjunction with the affidavit
filed by him during the course  of  making  final  arguments.  The
National Commission also should have taken into consideration  the
legal principles laid down in the case of Nizam Institute  (supra)
wherein this Court allowed the claim  of  compensation  which  was
substantially higher than the original  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 Vs. Director,  National  Heart  Institute[25]
and in Malay Kumar Ganguly’s case (supra) wherein this  Court  has
categorically stated that the aforesaid principle in Savita Garg’s
case  applies to the present case also insofar as it  answers  the
contentions raised before us that the three senior doctors did not
charge any professional fees.

63. Further, it is contended by the claimant that  from  a  moral  and
ethical perspective, a doctor cannot escape liability for  causing
death of a patient from medical negligence on the ground  that  he
did not charge any fee.  If that was true, poor patients  who  are
sometimes  treated  for  free  and  patients  in  many  charitable
Hospitals would be killed with impunity  by  errant  and  reckless
doctors. It is urged that the National Commission  ought  to  have
considered the claim made for prospective loss of  income  of  the
appellant’s wife and has committed error in rejecting the same and
it has also rejected the amount of the pecuniary  losses  of  this
claimant under separate headings which are mentioned in the  table
referred to  supra  including  expenses  that  were  paid  at  the
direction of the National Commission, namely, expenses relating to
video-conferencing or payment for the Court  Commissioners.   Most
of these direct losses were suffered by the claimant as  a  result
of the wrongful death of his wife in the long  quest  for  justice
over the past 15 years as a result of the wrongful  death  of  his
wife. The National Commission did not provide any reason as to why
the said claims were denied to him, as per this  Court’s  decision
in Charan Singh Vs. Healing Touch Hospital[26].

64. It is further urged by the claimant that the National  Commission,
in applying the  multiplier  method  as  provided  in  the  Second
Schedule under Section  163  A  of  the  Motor  Vehicles  Act,  is
erroneous to calculate compensation in relation to  death  due  to
medical negligence.

65. Further, the claimant has taken support from the following medical
negligence cases decided by this Court. It was  contended  by  the
claimant that out of these cases not a single case was decided  by
using the multiplier method, such as,  Indian  Medical  Assn.  Vs.
V.P. Shanta & Ors.(supra),  Spring  Meadows  Hospital  &  Anr  Vs.
Harjol Ahluwalia[27], Charan Singh  Vs. Healing Touch Hospital and
Ors.(supra), J.J. Merchants & Ors. Vs. Srinath Chaturbedi (supra),
Savita Garg Vs. Director National Heart Institute  (supra),  State
of  Punjab Vs. Shiv Ram  &  Ors.(supra),   Samira  Kohli  Vs.  Dr.
Prabha Manchanda & Anr.(supra), P.G. Institute of Medical Sciences
Vs. Jaspal Singh & Ors.,  (supra)  Nizam   Institute  Vs.  Prasant
Dhananka (supra) Malay Kumar Ganguly Vs. Sukumar Mukherjee &  Ors.
(supra) and V. Kishan Rao Vs. Nikhil  Superspeciality  Hospital  &
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  92,  wherein  the
Court has rejected the specific claim made by the guilty  Hospital
that multiplier should be used to calculate compensation  as  this
Court has held  that such a  claim has absolutely no merit.

67. The multiplier method was  provided  for  convenience  and  speedy
disposal of no fault motor accident cases.  Therefore,  obviously,
a “no fault” motor vehicle accident should not  be  compared  with
the case of death from medical negligence under any condition. The
aforesaid approach in adopting the multiplier method to  determine
the just compensation would be damaging for society for the reason
that the rules for using the multiplier  method  to  the  notional
income  of  only  Rs.15,000/-  per  year  would  be  taken  as   a
multiplicand. In case, the victim has no income then a  multiplier
of 18 is the  highest  multiplier  used  under  the  provision  of
Sections 163 A of the Motor Vehicles  act  read  with  the  Second
Schedule. Therefore, if a child, housewife  or  other  non-working
person fall  victim  to  reckless  medical  treatment  by  wayward
doctors, the maximum pecuniary damages that the unfortunate victim
may collect would be only Rs.1.8 lakh. It is stated in view of the
aforesaid reasons that in today’s India, Hospitals, Nursing  Homes
and doctors make lakhs and crores of rupees on  a  regular  basis.
Under such scenario, allowing the multiplier method to be used  to
determine compensation in medical negligence cases would not  have
any deterrent effect on them for their medical negligence  but  in
contrast,  this  would  encourage  more   incidents   of   medical
negligence in India bringing even greater danger for  the  society
at large.

68. It is further urged by the claimant that the  National  Commission
has failed to award any compensation  for  the  intense  pain  and
suffering that the claimant’s  wife  had  to  suffer  due  to  the
negligent treatment by doctors and AMRI Hospital but the  National
Commission had made a paltry award equivalent to $ 20,000 for  the
enormous and life-long pain, suffering, loss of companionship  and
amenities that the unfortunate claimant has  been  put  throughout
his life by  the  negligent  act  of  the  doctors  and  the  AMRI
Hospital.

69. The claimant further contended that  he  is  entitled  to  special
damages for losses that he suffered upto the date of trial as held
by this Court while remanding this matter in Malay Kumar Ganguly’s
case back to the National Commission.  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 & Ors. Vs. Madan Mohan & Anr. (supra),
Govind Yadav Vs. New Indian Insurance Co. Ltd. (supra)and  Ibrahim
Vs. Raju & 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.188.6 crores and  not  Rs.77.7  crores  as
originally  claimed  by  him   in   1998   without   taking   into
consideration the various relevant aspects referred to  supra  and
proper guidance and advice in the matter.

72. Further, it is urged by  the  claimant  that  he  is  entitled  to
interest on the compensation at reasonable rate  as  the  National
Commission has awarded interest @ 12% but only in case of  default
by the appellant-  doctors  and  the  AMRI  Hospital  to  pay  the
compensation within 8 weeks after the judgment which was delivered
on October 21, 2011.  That means, the National Commission did  not
grant any interest for the  last  15  years  long  period  on  the
compensation awarded in favour of the claimant as  this  case  was
pending before the judicial system in India for which the claimant
is not responsible.  The said act is contrary to the  decision  of
this Court in Thazhathe Purayil Sarabi & Ors. Vs. Union of India &
Anr.[28].

73.  He has also placed reliance upon in justification of his claim of
exemplary or punitive damages.  A  claim  of  US  $  1,000,000  as
punitive damages has been made against the AMRI Hospital  and  Dr.
Sukumar Mukherjee as provided in the table.  In  support  of  this
contention he placed strong reliance  on  Landgraf  Vs.  USI  Film
Prods[29] and this Court’s decision in Destruction of  Public  and
Private Properties Vs. State of A.P.[30], wherein it is held  that
punitive or exemplary damages have been justifiably awarded  as  a
deterrent in the future for outrageous and  reprehensible  act  on
the part of the accused. In fact punitive  damages  are  routinely
awarded in medical  negligence  cases  in  western  countries  for
reckless and reprehensible act by  the  doctors  or  Hospitals  in
order to send a deterrent message to other members of the  medical
community. In a similar  case,  the  Court  of  Appeals  in  South
Carolina in Welch Vs. Epstein[31]  held  that  a  neurosurgeon  is
guilty for  reckless  therapy  after  he  used  a  drug  in  clear
disregard to the warning given by the  drug  manufacturer  causing
the death of a patient. This Court has categorically held that the
injection Depomedrol used at the rate of 80 mg twice daily by  Dr.
Sukumar Mukherjee was in clear  violation  of  the  manufacturer’s
warning  and  recommendation  and  admittedly,   the   instruction
regarding direction for use of the medicine had not been  followed
in the instant 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  Vs.  Anthem  Blue  Cross
Shield et al[32]. 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 contended by the claimant that this Court  remanded
the case back to the National Commission for determination of  the
quantum of compensation only but the National Commission in  clear
disregard to the direction issued by this Court,  has  re-examined
the issues involved for medical  negligence.   Further,  in  Malay
Kumar Ganguly’s case, this Court has rejected the  assertion  made
by the doctors of the Hospital that the  claimant  had  interfered
with the treatment of his wife or that other doctors and/  or  the
Hospital i.e. Breach Candy Hospital in Bombay should also be  made
a party in this case.

76. It  is  further  contended  by  the  claimant  that  the  National
Commission  has  wrongfully  apportioned  the  total   amount   of
compensation by losing sight of  the  observations  made  by  this
Court while remanding the case back to it for determination of the
quantum of compensation. This Court did not make  any  observation
as to how the compensation should be divided, as  awarded  by  the
National  Commission.  Except  for   the   appellant-Dr.   Sukumar
Mukherjee who was imposed with a cost of Rs.5,00,000/- this  Court
did not impose cost against  any other  doctors  even  though  the
Court  found  other  appellant-doctors  also  guilty  for  medical
negligence.

77. It is further contended  that  the  National  Commission  on  31st
March, 2010 in S.P. Aggarwal Vs. Sanjay Gandhi P.G. Institute  (FA
No.478/2005) held that “in view of the fact that  several  doctors
and paramedical staff of the appellant institute were involved, it
is the appellant institute which has to be held vicariously liable
to compensate the complainant to the above extent.”

78. It is further urged that in Nizam Institute’s  case  (supra)  this
Court imposed the entire compensation against the Hospital despite
holding several doctors responsible for causing  permanent  injury
to the patient. While remanding back the issue of quantifying  the
quantum of compensation to the National Commission, this Court has
observed that the standard of medical nursing  care  at  the  AMRI
Hospital was abysmal. It is further  submitted  that  80%  of  the
total compensation should be imposed against the AMRI Hospital and
20% against Dr. Sukumar Mukherjee. The claimant  has  claimed  the
damages as under :-

|PECUNIARY DAMAGES:                                                      |
|A  Cost associated  with the victim, Anuradha Saha                      |
|1    |Loss of prospective/future earning upto to|Rs.9,25,00,000/-        |
|     |70 years                                  |                        |
|2    |Loss of US Social Security income up  to  |Rs.1,44,00,000/-        |
|     |82 years                                  |                        |
|3    |Paid for treatment at AMRI/Breach Candy   |Rs.12,00,000/-          |
|     |Hospital                                  |                        |
|4    |Paid for chartered flight to transfer     |Rs. 9,00,000/-          |
|     |Anuradha                                  |                        |
|5    |Travel/hotel/other expenses during        |Rs. 7,00,000/-          |
|     |Anuradha’s  treatment in Mumbai/ Kolkata  |                        |
|     |in 1998                                   |                        |
|6    |Paid for court proceedings including video|Rs.11,57,000/-          |
|     |conferencing from U.S.A.                  |                        |
|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|Rs.50,00,000/-          |
|     |husband                                   |                        |
|3    |Pain/suffering endured by the victim      |Rs.4,50,00,000/-        |
|     |during therapy                            |                        |
|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.97,56,07,000/-                  |

Therefore, the claimant has prayed for allowing his appeal by awarding
just and reasonable compensation under various  heads  as  claimed  by
him.

79. On the basis of the rival legal factual and  contentions urged  on
behalf of  the  respective  doctor-appellants,  Hospital  and  the
claimant, the following points would arise  for  consideration  of
this Court:-
1)   Whether the claim of  the  claimant  for  enhancement  of
compensation in his appeal is justified.  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 II Rule 2 of CPC as
pleaded by the AMRI 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?

80. It would be convenient for us to take up first  the  Civil  Appeal
No. 2866 of 2012 filed by Dr. Kunal Saha, the claimant, as he  had
sought for enhancement of compensation.  If we  answer  his  claim
then the other issues that would arise in  the  connected  appeals
filed by the doctors 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-seriatum 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. Vs. Madan Mohan and Anr. (supra), this
Court at para 47 has dealt with this aspect as under:
“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
hard-and-fast rule, however, can be laid down therefor.”

In Govind Yadav Vs. New  India  Insurance  Company  Ltd.(supra),
this court at para 15 observed  as  under  which  got  re-iterated  at
paragraph 13 of Ibrahim Vs. Raju & Ors. (supra):-
“15. In Reshma Kumari v. Madan Mohan this Court reiterated  that
the compensation awarded under the Act should be just  and  also
identified the factors  which  should  be  kept  in  mind  while
determining the amount of compensation. The relevant portions of
the judgment are extracted below:  (SCC  pp.  431-32  &  440-41,
paras 26-27 & 46-47)
‘26. The compensation which is required to be determined must be
just. While the claimants are required to be compensated for the
loss of their dependency, the same should not be  considered  to
be a windfall. Unjust enrichment  should  be  discouraged.  This
Court cannot also lose sight of the fact that in given cases, as
for example death of the only son to a mother, she can never  be
compensated in monetary terms.
27. The question as to the methodology required  to  be  applied
for determination of compensation as regards prospective loss of
future earnings, however, as far as possible should be based  on
certain principles. A person may have a bright future  prospect;
he might have become eligible to  promotion  immediately;  there
might have been chances of an immediate pay revision, whereas in
another (sic situation) the nature of employment was  such  that
he might not have continued in service; his chance of promotion,
having regard to the nature of  employment  may  be  distant  or
remote. It is, therefore, difficult for any court  to  lay  down
rigid tests which should be applied in all situations. There are
divergent views. In some cases it has been suggested  that  some
sort of hypotheses or guesswork may be inevitable. That  may  be
so.’
*     *     *
46. In the Indian context several other factors should be  taken
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 hard-
and-fast rule, however, can be laid down therefor.”

82. The C.I.I. is determined by the Finance Ministry of Union of India
every year in order to appreciate  the  level  of  devaluation  of
money each year. Using the C.I.I. 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  National  Commission  and  before  this  Court   is   legally
justifiable as this Court is required to determine the just,  fair
and reasonable compensation. Therefore, the  contention  urged  by
the appellant-doctors and the AMRI Hospital that in the absence of
pleadings in the claim petition before the National Commission and
also in the light of the incident that the subsequent  application
filed by the claimant seeking for amendment to the  claim  in  the
prayer of the complainant being  rejected,  the  additional  claim
made by the claimant cannot be examined for grant of  compensation
under different heads is wholly unsustainable in law  in  view  of
the decisions rendered by  this  Court  in  the  aforesaid  cases.
Therefore, this Court is required to consider the relevant  aspect
of the matter namely, that there has been steady  inflation  which
should have been considered over 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 under the  different  heads
in the impugned judgment, is wholly unsustainable in  law  as  the
same is contrary to the legal principles laid down by  this  Court
in catena of cases referred to supra.  We,  therefore,  allow  the
claim of the claimant on enhancement of compensation to the extent
to be directed by this Court in the following paragraphs.

83. Besides enhancement of compensation, the claimant has  sought  for
additional compensation of about Rs.20 crores in addition  to  his
initial claim made in 2011 to include the economic  loss  that  he
had suffered due to loss of his employment, home  foreclosure  and
bankruptcy in U.S.A which would have never happened  but  for  the
wrongful death of his wife.  The claimant has placed  reliance  on
the  fundamental  principle  to  be  followed  by  the  Tribunals,
District 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 National Commission without consideration
on the assumption that the claims made  by  the  claimant  before  the
National Commission cannot be changed or  modified  without  pleadings
under any condition  is  contrary  to  the  decisions  of  this  Court
rendered in catena of cases. In support of his additional  claim,  the
claimant places reliance upon such decisions as mentioned hereunder:
(a)  In Ningamma’s case (supra), this Court has observed at para
34 which reads thus:
“34. Undoubtedly, Section 166  of  the  MVA  deals  with  “just
compensation” and even if in the pleadings  no  specific  claim
was made under Section  166  of  the  MVA,  in  our  considered
opinion a party should  not  be  deprived  from  getting  “just
compensation” in case the claimant is able to make out  a  case
under any provision  of  law.  Needless  to  say,  the  MVA  is
beneficial and welfare legislation. In fact, the court is duty-
bound and entitled to award “just compensation” irrespective of
the fact whether any plea in that  behalf  was  raised  by  the
claimant or not.

(b) In Malay Kumar Ganguly’s case, this Court by placing reliance
on the decision of this Court in  R.D.  Hattangadi  Vs.  Pest  Control
(India) (P) Ltd.,(supra) made observation  while  remanding  back  the
matter to National Commission solely for the determination of  quantum
of compensation, 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 is likely to be suffered  in  future”.   Rightly,
the claimant has contended that when original complaint was filed soon
after the death of his wife in 1998, it would be impossible for him to
file a claim for  “just compensation” for the pain that  the  claimant
suffered in the course of the 15 years long trial.
c) In Nizam Institute’s case supra, the complainant had  sought
a compensation of Rs.4.61 crores before the National Commission but he
enhanced his claim to Rs 7.50 crores when the matter  came  up  before
this Court. In response to the claim, this Court held as under:

“82. The complainant, who has argued his own case, has submitted
written  submissions  now  claiming  about  Rs  7.50  crores  as
compensation under various heads. He has, in addition  sought  a
direction that a further sum of Rs 2 crores be set aside  to  be
used by him should some developments beneficial to  him  in  the
medical field take 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 Company Ltd. Vs.  Jashuben  &  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 Vs. 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 & Ors. Vs. Oriental Insurance Company  Ltd.  &
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 claimant. In an appropriate  case,  where
from the evidence  brought  on  record  if  the  Tribunal/court
considers  that  the  claimant  is   entitled   to   get   more
compensation than claimed, the Tribunal may  pass  such  award.
The only embargo is—it should be ‘just’ compensation,  that  is
to  say,  it  should  be  neither   arbitrary,   fanciful   nor
unjustifiable  from  the  evidence.  This  would  be  clear  by
reference to the relevant provisions of the MV Act.”

g)     In  Laxman  @  Laxaman  Mourya  Vs.  Divisional  Manager,
Oriental Insurance Co. Ltd. & Anr.,(supra)  this  Court  awarded  more
compensation than what was claimed by the claimant  after  making  the
following categorical observations:-
“In the absence of any bar in the Act, the Tribunal and for that
reason,  any  competent  court,  is  entitled  to  award  higher
compensation to the victim of an accident”

h)    In Ibrahim Vs. Raju  &  Ors.,(supra)  this  Court  awarded
double the compensation sought for by the complainant after discussion
of host of previous judgments.

84. In view of the aforesaid  decisions  of  this  Court  referred  to
supra, wherein this Court has awarded ‘just  compensation’  more  than
what was  claimed  by  the  claimants  initially  and  therefore,  the
contention urged by learned senior counsel and other counsel on behalf
of the appellant-doctors and the AMRI  Hospital  that  the  additional
claim made by the claimant was rightly not considered by the  National
Commission for the reason that the same is not supported by  pleadings
by filing an application to amend the same regarding  the  quantum  of
compensation and the same could not have been amended as it is  barred
by the limitation provided under Section 23 of the Consumer Protection
Act, 1986 and the claimant is  also  not  entitled  to  seek  enhanced
compensation in view of Order  II   Rule  2  of  the  CPC  as  he  had
restricted his claim at Rs.77,07,45,000/-, is not sustainable in  law.
The claimant has appropriately placed reliance upon the  decisions  of
this Court in justification of his additional claim and the finding of
fact on the basis of which the National Commission rejected the  claim
is based on untenable reasons. We have to reject the contention  urged
by the learned senior counsel and  other  counsel  on  behalf  of  the
appellant-doctors and the AMRI Hospital as it is wholly  untenable  in
law and is contrary to the aforesaid decisions of this 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  worked  out.  Every  housewife
makes a contribution to his  family.  It  is  capable  of  being
measured on monetary  terms  although  emotional  aspect  of  it
cannot be. It depends upon her  educational  qualification,  her
own upbringing, status, husband’s income, etc.”
[Emphasis laid by this Court]

In this regard, this Court has also expressed similar view  that
status, future prospects and educational qualification of the deceased
must be judged for deciding adequate, just and fair compensation as in
the case of R.K. Malik & Anr. (supra).

85. Further, it is an undisputed fact that the victim was  a  graduate
in psychology from a highly prestigious Ivy League school in New York.
She had a brilliant  future  ahead  of  her.  However,  the  National
Commission 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  as  a  graduate  student.
Therefore, the National Commission has committed grave error in taking
that figure to determine  compensation  under  the  head  of  loss  of
dependency and the same is contrary to the observations made  by  this
Court in the case of Arvind Kumar Mishra Vs. New India Assurance which
reads as under:
“14. On completion of Bachelor of Engineering (Mechanical)  from
the prestigious institute like BIT, it can be reasonably assumed
that he would have got a good job. The appellant has  stated  in
his evidence that in the campus interview  he  was  selected  by
Tata as well as Reliance Industries and was offered pay  package
of Rs. 3,50,000 per annum. Even if that is not accepted for want
of any evidence in support thereof, there would  not  have  been
any difficulty for him in getting some decent job in the private
sector. Had he  decided  to  join  government  service  and  got
selected, he would have been put in the pay scale for  Assistant
Engineer and would have at least earned Rs.  60,000  per  annum.
Wherever he joined, he had a fair chance of some  promotion  and
remote chance of some high position. But uncertainties  of  life
cannot be ignored taking relevant factors into consideration. In
our opinion, it is fair and  reasonable  to  assess  his  future
earnings  at  Rs.  60,000  per  annum  taking  the  salary   and
allowances payable to an Assistant Engineer in public employment
as the basis.”

86.  The claimant further placed reliance upon the decisions  of  this
Court in Govind Yadav Vs. New India  Insurance  Co.  Ltd.(supra),  Sri
Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance (supra),
Ibrahim Vs. Raju  &  Ors.,  Laxman  @  Laxman  Mourya  Vs.  Divisional
Manager, Oriental Insurance Co. Ltd. (supra) and  Kavita Vs.  Dipak  &
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  deceased  towards  future
prospects, where the deceased had a permanent job and was  below
40 years. (Where the annual income is in the taxable range,  the
words “actual salary” should be  read  as  “actual  salary  less
tax”). The addition should  be  only  30%  if  the  age  of  the
deceased was 40 to 50 years. There should be no addition,  where
the age of the deceased  is  more  than  50  years.  Though  the
evidence may indicate a different percentage of increase, it  is
necessary  to  standardise  the  addition  to  avoid   different
yardsticks being applied or  different  methods  of  calculation
being adopted. Where the deceased was self-employed or was on  a
fixed salary (without provision for  annual  increments,  etc.),
the courts will usually take only the actual income at the  time
of death. A departure therefrom should be made only in rare  and
exceptional cases involving special circumstances.”

88.  Further, to hold  that  the  claimant  is  entitled  to  enhanced
compensation under the heading of loss of future prospects  of  income
of the victim, this Court  in  Santosh  Devi  Vs.  National  Insurance
Company and Ors.  (supra), held as under:

“18.  Therefore,  we  do  not  think  that  while   making   the
observations in the last three lines of para 24 of  Sarla  Verma
judgment, the Court had intended to lay down  an  absolute  rule
that there will be no addition in the income of a person who  is
self-employed or who is paid fixed wages. Rather,  it  would  be
reasonable to say that a  person  who  is  self-employed  or  is
engaged on fixed wages will also get 30% increase in  his  total
income over a period of time and if he/she becomes the victim of
an accident then the same formula deserves  to  be  applied  for
calculating the amount of compensation.”

89.  In view of the aforesaid observations and law laid down  by  this
Court with regard to the approach by the Commission in  awarding  just
and reasonable  compensation  taking  into  consideration  the  future
prospects of the deceased even in the absence of any expert’s  opinion
must have been reasonably judged based on the income of  the  deceased
and her future potential in U.S.A.  However, in the present  case  the
calculation of the future prospect of income of the deceased has  also
been scientifically done by economic expert Prof. John F.  Burke.   In
this regard, the learned counsel for the other  appellant-doctors  and
the Hospital have contended that without amending the  claim  petition
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 legal system, then, is faced with the  classic  problem  of
doing  justice  to  both  parties.  The  fears  of  the  medical
profession must be  taken  into  account  while  the  legitimate
claims of the patient cannot be ignored.
Medical  negligence  apart,  in   practice,   the   courts   are
increasingly reluctant to interfere in  clinical  matters.  What
was once perceived as a legal threat to medicine has disappeared
a decade later. While the court will accept the  absolute  right
of a patient to refuse treatment, they will, at the  same  time,
refuse to dictate to doctors what treatment  they  should  give.
Indeed, the fear could be that, if anything,  the  pendulum  has
swung too far in favour of therapeutic immunity. (p. 16)
It would be a mistake to think of doctors and hospitals as  easy
targets for the dissatisfied patient. It is still very difficult
to raise an action of medical negligence in Britain; some,  such
as the Association of the Victims of  Medical  Accidents,  would
say that it  is  unacceptably  difficult.  Not  only  are  there
practical difficulties in  linking  the  plaintiff’s  injury  to
medical  treatment,  but  the  standard  of  care   in   medical
negligence cases is still effectively defined by the  profession
itself. All these factors, together with the  sheer  expense  of
bringing legal action and the denial of legal aid to all but the
poorest, operate to inhibit medical litigation in a way in which
the  American  system,  with  its  contingency  fees   and   its
sympathetic juries, does not.
It is difficult to single out any one cause  for  what  increase
there has been in the volume of medical  negligence  actions  in
the United Kingdom. A common  explanation  is  that  there  are,
quite simply, more medical accidents occurring — whether this be
due to increased pressure on  hospital  facilities,  to  falling
standards of professional competence or, more probably,  to  the
ever-increasing  complexity  of   therapeutic   and   diagnostic
methods.” (p. 191)
A patient who has been injured by an act of  medical  negligence
has suffered in a way which is recognised by the law  —  and  by
the public at large — as deserving compensation. This  loss  may
be continuing and what may seem like an unduly large  award  may
be little more than that sum which is required to compensate him
for such matters as loss of future earnings and the future  cost
of medical or nursing care. To deny a  legitimate  claim  or  to
restrict 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 parties concerned.”

91. He  has  further  rightly  contended  that  with  respect  to  the
fundamental principle for awarding just and  reasonable  compensation,
this Court in Malay Kumar Ganguly’s  case  (supra)  has  categorically
stated while remanding this case back to the National Commission  that
the principle  for  just  and  reasonable  compensation  is  based  on
‘restitutio in integrum’ that is, the claimant  must  receive  sum  of
money which would put him in the same position as he would  have  been
if he had not sustained the wrong.

92. Further, he has placed reliance upon the judgment of this Court in
the case of Ningamma’s case (supra)   in support of the proposition of
law  that  the  Court  is  duty-bound  and  entitled  to  award  “just
compensation” irrespective of the fact whether any plea in that behalf
was raised by the claimant or not.  The relevant  paragraph  reads  as
under:

“34. Undoubtedly, Section  166  of  the  MVA  deals  with  “just
compensation” and even if in the pleadings no specific claim was
made under Section 166 of the MVA, in our considered  opinion  a
party should not be deprived from getting “just compensation” in
case the claimant is able to make out a case under any provision
of law. Needless to say,  the  MVA  is  beneficial  and  welfare
legislation. In fact, the court is duty-bound  and  entitled  to
award “just compensation” irrespective of the fact  whether  any
plea in that behalf was raised by the claimant or not.”

93. He has also rightly placed  reliance  upon  observations  made  in
Malay Kumar Ganguly’s case referred to supra  wherein  this  Court
has  held  the  appellant  doctors  guilty  of  causing  death  of
claimant’s wife while remanding the matter back  to  the  National
Commission only for determination of quantum of  compensation  for
medical  negligence.   This  Court  has  further   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 submitted that when the original complaint was  filed
soon after 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.   In  support  of  his
contention he placed reliance on some other cases also where  more
compensation was awarded than what was claimed, such  as  Oriental
Insurance Company Ltd. Vs. Jashuben  &  Ors.,  R.D.  Hattangadi  ,
Raj Rani & Ors, Laxman @ Laxaman  Mourya  all  cases  referred  to
supra. Therefore, the relevant paragraphs from the said  judgments
in-seriatum extracted 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 CPC 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  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.

Answer to point no. 4

95. With regard to point no. 4, the National Commission  has  used  the
“multiplier” method under Section 163A read with the second schedule of
the Motor Vehicles Act to determine  the  quantum  of  compensation  in
favour of the claimant applying the multiplier method as has been  laid
down by this Court in Sarla Verma’s case(supra). Consequently,  it  has
taken up  multiplier  of  15  in  the  present  case  to  quantify  the
compensation under the loss of dependency of the claimant. It is  urged
by  the  claimant  that  use  of  multiplier  system  for   determining
compensation for medical negligence cases involving death of  his  wife
is grossly erroneous in law. The claimant has rightly  placed  reliance
upon the cases of this Court such as, Indian  Medical  Assn.  Vs.  V.P.
Shanta &  Ors.(supra),  Spring  Meadows  Hospital  &  Anr.  Vs.  Harjol
Ahluwalia[33],  Charan  Singh    Vs.   Healing   Touch   Hospital   and
Ors.(supra), J.J. Merchants &  Ors.  Vs.  Srinath  Chaturbedi  (supra),
Savita Garg Vs. Director National Heart  Institute  (supra),  State  of
Punjab Vs. Shiv  Ram  &  Ors.(supra),   Samira  Kholi  Vs.  Dr.  Prabha
Manchanda & Anr.(supra), P.G. Institute of Medical Sciences Vs.  Jaspal
Singh & Ors., (supra) Nizam  Institute  Vs.  Prasant  Dhananka  (supra)
Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors. (supra) and V.  Kishan
Rao Vs. Nikhil Superspeciality Hospital & Anr. (supra) to contend  that
not a single case was decided by using the multiplier method.

In support of this contention, he has further argued that in the
three judge Bench decision in  the  case  of  Nizam  Institute’s  case
(supra), this Court has rejected  the  use  of  multiplier  system  to
calculate the quantum  of  compensation.  The  relevant  paragraph  is
quoted hereunder:
“92. Mr Tandale, the learned counsel  for  the  respondent  has,
further  submitted  that  the  proper  method  for   determining
compensation would be the multiplier method. We find  absolutely
no merit in this plea. The kind of damage that  the  complainant
has suffered, the expenditure that he has incurred and is likely
to incur in the future and the possibility that his rise in  his
chosen field would now be restricted, are matters  which  cannot
be taken care of under the multiplier method.”
[Emphasis laid by this Court]

He has further urged that the ‘multiplier’ method  as  provided
in the second Schedule to Section 163-A 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.  Vs.  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  such
a situation, it cannot  be  said  that  some  deviation  in  the
multiplier would be impermissible. Therefore, a  deviation  from
applying the multiplier as provided in the Second  Schedule  may
have to be made in  this  case.  Apart  from  factors  indicated
earlier the amount of multiplicand also becomes a factor  to  be
taken into account which in this case comes to 2,26,297 dollars,
that is to say an amount of around Rs  68  lakhs  per  annum  by
converting it at the rate of Rs 30. By Indian  standards  it  is
certainly a high amount. Therefore, for  the  purposes  of  fair
compensation, a lesser multiplier can  be  applied  to  a  heavy
amount  of  multiplicand.  A  deviation  would   be   reasonably
permissible in the figure of multiplier even  according  to  the
observations made in the case of Susamma Thomas where a specific
example was given about a person dying at the age of 45  leaving
no heirs being a bachelor except his parents.

XXX                  XXX                   XXX

22.  We  therefore,  hold   that   ordinarily   while   awarding
compensation, the provisions contained in  the  Second  Schedule
may be taken as a guide including the multiplier, but there  may
arise some cases, as the one in hand,  which  may  fall  in  the
category having special features or facts calling for  deviation
from the multiplier usually applicable.”

97. It is further urged  by  the  learned  senior  counsel  Mr.  Vijay
Hansaria for the appellant-AMRI Hospital relying on Sarla Verma’s case
(supra) that the multiplier method has enabled  the  courts  to  bring
about  consistency  in  determining  the  ‘loss  of  dependency’  more
particularly in the death of  victims  of  negligence.   The  relevant
paragraph reads as under:

“14.  The  lack  of  uniformity  and  consistency  in   awarding
compensation has been a matter of grave concern. Every  district
has one or more Motor Accidents Claims Tribunal(s). If different
Tribunals calculate compensation differently on the same  facts,
the claimant, the litigant, the common  man  will  be  confused,
perplexed and bewildered. If  there  is  significant  divergence
among the Tribunals in determining the quantum  of  compensation
on similar facts, it will lead to dissatisfaction  and  distrust
in the system.”

The learned counsel for the appellant-AMRI Hospital further argued
that reliance placed upon  the  judgment  in  Nizam  Institute’s  case
referred to supra by the claimant is misplaced  since  the  victim  in
that case suffered from 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
appeals. Accordingly, we answer the point  No.  4  in  favour  of  the
claimant holding that the submissions made by the learned counsel  for
the appellant-doctors  and  the  AMRI  Hospital  in  determination  of
compensation by following the multiplier method which was sought to be
justified by placing reliance upon  Sarla  Verma  and  Reshma’s  cases
(supra) cannot be accepted by this Court and the same does not inspire
confidence in us in accepting the said submission made by the  learned
senior counsel and other counsel  to  justify  the  multiplier  method
adopted by the National Commission to determine the compensation under
the head of loss of dependency. Accordingly, we answer the point no. 4
in favour of the claimant and against the appellants-doctors and  AMRI
Hospital.
Answer to Point no. 5

98. It is the claim of the claimant that he  has  also  suffered  huge
losses during this period, both direct loss of income from his job  in
U.S.A. as well as indirect loss for pain and intense mental agony  for
tenure  denial  and  termination  of  his  employment  at  Ohio  State
University which was a direct result of the wrongful death of deceased
in India as would be evident from the judgment passed by the Court  of
Claims in Ohio which was filed by the Hospital on 18th July, 2011.  In
lieu of such  pain  and  suffering  the  claimant  made  a  demand  of
Rs.34,56,07,000/- under different heads of ‘loss of income for  missed
work’, ‘travelling  expenses  over  the  past  12  years’  and  ‘legal
expenses including advocate fees’ etc.

99. We have perused through the claims of the claimant under the above
heads and we are inclined to observe the following :-
The claim of Rs.1,12,50,000/- made by the claimant 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
appellant- doctors and the Hospital. The claimant further assessed his
claim under the head of ‘Travel expenses over the past  12  years’  at
Rs.70,00,000/-. It is pertinent to observe that 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,
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 any interest for the long period of 15  years
as the case was pending before the National Commission and this Court.
Therefore, the National Commission has committed error in not awarding
interest on the compensation awarded by it and the same is opposed  to
various decisions of this Court, such as  in  the  case  of  Thazhathe
Purayil Sarabi & Ors. Vs. Union of India & Anr. regarding  payment  of
interest on a decree of payment this Court held as under:

“25. It is, therefore, clear that  the  court,  while  making  a
decree for payment of money is entitled to grant interest at the
current rate  of  interest  or  contractual  rate  as  it  deems
reasonable to be paid  on  the  principal  sum  adjudged  to  be
payable and/or awarded, from the date of claim or from the  date
of the order or decree for recovery  of  the  outstanding  dues.
There is also hardly any room for doubt  that  interest  may  be
claimed on any amount decreed or awarded for the  period  during
which  the  money  was  due  and  yet  remained  unpaid  to  the
claimants.
26. The courts are consistent in their view that normally when a
money decree is passed, it is most essential  that  interest  be
granted for the period during which the money was due, but could
not be utilised by the  person  in  whose  favour  an  order  of
recovery of money was passed.

27. As has been frequently explained by this Court  and  various
High Courts, interest is essentially a compensation  payable  on
account of denial of the right to utilise the money  due,  which
has been, in fact, utilised by the person withholding the  same.
Accordingly, payment of interest follows as a matter  of  course
when a money decree is passed.

28. The only question to  be  decided  is  since  when  is  such
interest payable  on  such  a  decree.  Though,  there  are  two
divergent views, one indicating that interest  is  payable  from
the date when claim for the principal sum is made,  namely,  the
date of institution of the proceedings in the  recovery  of  the
amount, the other view is that such  interest  is  payable  only
when a determination is made and order is passed for recovery of
the dues. However, the more consistent view has been the  former
and in rare cases interest has been  awarded  for  periods  even
prior to the institution of  proceedings  for  recovery  of  the
dues, where the same  is  provided  for  by  the  terms  of  the
agreement entered into between the parties or where the same  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,
S.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 anticipated future loss and damage.

XXX       XXX      XXX XXX       XXX

The necessity for guidelines, and the status of guidelines, were
considered by the House of Lords in Cookson v.  Knowles.[34]  In
that case Lord Diplock with whom the other members of the  House
agreed, said:

The section as amended gives to the judge several  options
as to the way in which he may assess the interest element to  be
included in the sum awarded by the   judgment.  He  may  include
interest on the whole of the damages or on a part of  them  only
as he thinks appropriate. He may award it for the whole  or  any
part of the period between the date when  the  cause  of  action
arose and the date of judgment and he may award it at  different
rates for different part of the period chosen.

The section gives no guidance as to the way in which  the  judge
should exercise his choice between the various options  open  to
him.  This  is  all  left  to  his  discretion;  but  like   all
discretions vested in judges by statute or  at  common  law,  it
must be exercised judicially or, in the  Scots  phrase  used  by
Lord Emslie in Smith V. Middleton, 1972 S.C. 30, in a  selective
and discriminating manner, not arbitrarily or idiosyncractically-
for otherwise the rights of parties to litigation would  become
dependent upon judicial whim.

It is therefore appropriate for an appellate court to  lay  down
guidelines as to what matters it is proper for the judge to take
into account in deciding how to exercise the discretion confided
in him by the statute.  In exercising  this appellate  function,
the court is not expounding a rule of law from which a judge  is
precluded from departing where special circumstances  exist in a
particular case; nor indeed, even in cases where  there  are  no
special circumstances, is an appellate court justified in giving
effect to the preference  of  its  members  for  exercising  the
discretion in a different way from that adopted by the judge  if
the choice between the alternative ways of exercising it is  one
upon which judicial opinion might reasonably differ.”

102. Therefore, the National Commission in not  awarding  interest  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  AMRI  Hospital  to  the  claimant  is  most
unreasonable and the same is opposed to the provision of the  Interest
Act, 1978. Therefore, 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 acts of negligence in giving treatment to the deceased  wife
of the claimant.

Liability of the AMRI Hospital:

104. It is the claim of appellant-AMRI  Hospital  that  the  arguments
advanced on behalf  of  the  appellant-doctors  that  is,  Dr.  Balram
Prasad, Dr. Sukumar  Mukherjee  and  Dr.  Baidyanath  Haldar  and  the
claimant Dr. Kunal Saha, that the appellant AMRI is liable to pay  the
highest share of compensation in terms of percentage on the  basis  of
the cost imposed by this Court in the earlier round of  litigation  in
Malay Kumar Ganguly’s case, supra are not sustainable in law.

105. The learned senior counsel for the  appellant-AMRI  Hospital  Mr.
Vijay Hansaria argued that the submission made  by  the  claimant  Dr.
Kunal Saha is not sustainable both  on  facts  and  in  law  since  he
himself had claimed special damages against the appellant-doctors, Dr.
Sukumar Mukherjee, Dr. Baidyanath Haldar and Dr. Abani  Roy  Choudhury
in his appeal and therefore, he cannot now in these proceedings  claim
to the contrary.  On the other  hand,  the  claimant  Dr.  Kunal  Saha
argues that though the National Commission claims that this Court  did
not make any observation on apportionment of liability while remanding
the matter back to it for determining  the  quantum  of  compensation,
this Court had implicitly directed the bulk of compensation to be paid
by the Hospital. Through Paragraph No.  196,  the  judgment  reads  as
under:

“196. We, keeping in view the stand taken  and  conduct  of
AMRI and Dr. Mukherjee, direct that costs of Rs 5,00,000 and  Rs
1,00,000  would  be  payable   by   AMRI   and   Dr.   Mukherjee
respectively. We further direct that if any foreign experts  are
to be examined it shall be done only  through  videoconferencing
and at the cost of the respondents.”

This  Court  has  stated  that  the  bulk  of  the  proportion  of
compensation is to be paid by the Hospital and the rest by Dr. Sukumar
Mukherjee. None of the other doctors involved were imposed  with  cost
though they were found guilty  of  medical  negligence.  The  claimant
relied upon the decision in Nizam Institute‘s case  (supra)  in  which
this  Court  directed  the  Hospital  to  pay  the  entire  amount  of
compensation to the claimant in that case  even  though  the  treating
doctors were found to be responsible for the negligence. The  claimant
also relied upon the observations made by this Court  while  remitting
the case back to National Commission 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 led her  to  difficulty  in
swallowing or eating.  No  blood  sample  was  taken.  No  other
routine pathological examination was  carried  out.  It  is  now
beyond any dispute that 25-30% body surface  area  was  affected
(re. Prescription of Dr. Nandy, Plastic Surgeon). The next  day,
he examined the patient and he found that  more  and  more  body
surface area was affected. Even Dr. Prasad found the same.
79. Supportive therapy or symptomatic therapy,  admittedly,  was
not administered as needle prick was prohibited. AMRI  even  did
not maintain its records properly. The  nurses  reports  clearly
show that from 13th May onwards even the routine check-ups  were
not done.”

106. The liability of compensation to be apportioned by this Court  on
the appellant-AMRI Hospital is mentioned in paragraph 165 of the Malay
Kumar Ganguly’s case which reads as under:
“165. As regards, individual liability of Respondents 4, 5 and 6
is concerned, we may notice the same hereunder. As regards AMRI,
it may be noticed:
(i)Vital parameters of Anuradha were not examined between  11-5-
1998 to 16-5-1998 (body temperature, respiration rate, pulse, BP
and urine input and output).
(ii) IV fluid not  administered.  (IV  fluid  administration  is
absolutely necessary in the first 48 hours of treating TEN.)”

107. However, this Court in  the  aforesaid  case,  also  recorded  as
under:
“184. In R. V. Yogasakaran the New Zealand Court opined that the
hospital is in a better position to disclose what care was taken
or what medicine was administered to the patient. It is the duty
of the hospital to satisfy that there was no  lack  of  care  or
diligence. The hospitals are institutions, people expect  better
and efficient service, if the hospital fails to discharge  their
duties through their doctors, being employed  on  job  basis  or
employed on contract basis, it is  the  hospital  which  has  to
justify and not impleading a particular doctor will not  absolve
the hospital of its responsibilities. (See also Errors, Medicine
and the Law, Alan Merry and Alexander McCall Smith,  2001  Edn.,
Cambridge University Press, p. 12.)”

108. Even in the case of Savita  Garg  Vs.  National  Heart  Institute
(supra) this Court, while determining the liability of  the  Hospital,
observed as under:

“15. Therefore,  as  per  the  English      decisions  also  the
distinction of “contract  of       service”  and  “contract  for
service”, 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  government  institutions  or  the  non-
governmental institutions, be it free medical services  provided
by the government hospitals. In the case  of  Achutrao  Haribhau
Khodwa v. State of Maharashtra their Lordships observed that  in
cases where the doctors act carelessly and in a manner which  is
not expected of a medical practitioner, then in such a  case  an
action in tort would be maintainable.  Their  Lordships  further
observed that if the doctor has  taken  proper  precautions  and
despite that if the patient does  not  survive  then  the  court
should be very slow in attributing negligence on the part of the
doctor. It was held as follows: (SCC p. 635)

‘A medical  practitioner  has  various  duties  towards  his
patient and he must act with a reasonable  degree  of  skill
and knowledge and must exercise a reasonable degree of care.
This is the least which a patient expects from a doctor. The
skill  of  medical  practitioners  differs  from  doctor  to
doctor. The very nature of the profession is such that there
may be more than  one  course  of  treatment  which  may  be
advisable for treating a patient.  Courts  would  indeed  be
slow in attributing negligence on the part of a doctor if he
has performed his duties to the best of his ability and with
due care and caution. Medical opinion may differ with regard
to the course of action to be taken by a doctor  treating  a
patient, but as long as a doctor acts in a manner  which  is
acceptable to the medical profession  and  the  court  finds
that he has attended on the patient with due care, skill and
diligence and if the  patient  still  does  not  survive  or
suffers a permanent ailment, it would be difficult  to  hold
the doctor to be guilty of negligence. But  in  cases  where
the doctors act carelessly and in  a  manner  which  is  not
expected of a medical practitioner, then in such a  case  an
action in torts would be maintainable.’

Similarly, our attention was invited to a  decision  in  the  case  of
Spring Meadows Hospital v. Harjol Ahluwalia. Their Lordships  observed
as follows: (SCC pp. 46-47, para 9)

‘9.…Very often in a claim for compensation arising  out  of
medical negligence a plea is taken that it  is  a  case  of
bona fide mistake which under certain circumstances may  be
excusable,  but  a  mistake  which  would   tantamount   to
negligence cannot be pardoned. In the former case  a  court
can accept that ordinary human  fallibility  precludes  the
liability while in 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 patient was  admitted  in  a
particular hospital and evidence is produced to satisfy that  he
died because of lack of proper care  and  negligence,  then  the
burden lies on  the  hospital  to  justify  that  there  was  no
negligence on the part  of  the  treating  doctor  or  hospital.
Therefore, in any case, the hospital is in a better position  to
disclose what care was taken or what medicine  was  administered
to the patient. It is the duty of the hospital to  satisfy  that
there was no lack  of  care  or  diligence.  The  hospitals  are
institutions, people expect better and efficient service, if the
hospital fails to discharge their duties through their  doctors,
being employed on job basis or employed on contract basis, it is
the  hospital  which  has  to  justify  and  not  impleading   a
particular  doctor  will  not  absolve  the  hospital   of   its
responsibilities.”
(Emphasis laid by this Court)

109. Therefore, in the light of the rival legal contentions raised  by
the parties and the legal  principles  laid  down  by  this  Court  in
plethora of cases referred to supra, particularly, Savita Garg’s case,
we have to infer  that  the  appellant-AMRI  Hospital  is  vicariously
liable for its doctors. It is clearly mentioned in Savita Garg’s  case
that a Hospital is responsible for the conduct of its doctors both  on
the  panel  and  the  visiting  doctors.  We,  therefore,  direct  the
appellant-AMRI Hospital 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.

Liability of Dr. Sukumar Mukherjee:

110. As regards the liability of Dr. Sukumar Mukherjee, it is his case
that nowhere has this Court in Malay Kumar Ganguly’s decision hold the
appellant  Dr.  Mukherjee  and  appellant-AMRI   Hospital   “primarily
responsible” for the death of the claimant’s wife.  On  the  contrary,
referring to paras 186 and 187 of the said judgment, under the heading
of ‘cumulative effect’, the appellant’s counsel has  argued  that  his
liability is not established by the Court.  The  said  paragraphs  are
extracted hereunder:

“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.
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 304-A 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 304-A of IPC. It  is  imperative  to  mention  here  that  the
quantum of compensation to be paid by the  appellant-doctors  and  the
AMRI Hospital is not premised on their culpability under Section 304-A
of IPC but on the basis of their  act  of  negligence  as  doctors  in
treating the deceased wife of the claimant. We are therefore  inclined
to reiterate the findings of this Court regarding the liability of Dr.
Mukherjee in Malay Kumar Ganguly’s case which read as under:
“159. When Dr. Mukherjee examined Anuradha, she had  rashes  all
over her body and this being the case of dermatology, he  should
have referred her to a  dermatologist.  Instead,  he  prescribed
“depomedrol” for the next 3 days on his assumption that it was a
case of “vasculitis”. The dosage of 120 mg depomedrol per day is
certainly a higher dose in case of a TEN  patient  or  for  that
matter any patient suffering  from  any  other  bypass  or  skin
disease  and  the  maximum  recommended  usage   by   the   drug
manufacturer has also been exceeded by Dr. Mukherjee.  On  11-5-
1998, the further prescription of depomedrol without  diagnosing
the nature of the disease is a wrongful act on his part.

160. According to general practice, long-acting steroids are not
advisable in any clinical condition,  as  noticed  hereinbefore.
However, instead of  prescribing  a  quick-acting  steroid,  the
prescription of a long-acting  steroid  without  foreseeing  its
implications  is  certainly  an  act  of   negligence   on   Dr.
Mukherjee’s part without exercising any care or caution.  As  it
has been already stated by the experts who  were  cross-examined
and the authorities that have been submitted that the  usage  of
80-120  mg  is  not  permissible  in  TEN.  Furthermore,   after
prescribing a steroid, the effect  of  immunosuppression  caused
due  to  it,  ought  to  have  been  foreseen.  The  effect   of
immunosuppression caused due to the use of steroids has affected
the immunity of the patient and Dr. Mukherjee has failed to take
note of the said consequences.”

112. It is also important to  highlight  in  this  judgment  that  the
manner in which Dr. Mukherjee 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. The finding of this Court  on
this aspect recorded in Malay Kumar Ganguly’s case reads as under:
“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 in the overall management at AMRI so much so that  he
had himself given a certificate that her condition was very much
fit enough to travel to Mumbai.…”

113. Therefore, the negligence of Dr. Sukumar  Mukherjee  in  treating
the claimant’s wife had been already  established  by  this  Court  in
Malay Kumar Ganguly’s case. Since he is a senior  doctor  who  was  in
charge of the treatment of the deceased, we are  inclined  to  mention
here that Dr. Mukherjee 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. We,  therefore,  in  the  light  of  the  facts  and
circumstances, direct him to pay a compensation of Rs.10 lakhs to  the
claimant in lieu of his negligence  and  we  sincerely  hope  that  he
upholds his integrity as a doctor in the  future  and  not  be  casual
about his patient’s lives.

Liability of Dr.Baidyanath Haldar:

114. The case of the appellant Dr. Baidyanath Haldar is that he  is  a
senior consultant who was called by the attending physician to examine
the patient on 12.5.1998. On examining the patient, he  diagnosed  the
disease as TEN  and  prescribed  medicines  and  necessary  supportive
therapies. It is his further case that he was not called either to see
or examine the patient post 12.5.1998. The case against Dr. B.  Haldar
is his prescription of Steroid Predinosolone at  the  rate  of  40  mg
thrice a day which was excessive in view of the fact that the deceased
was already under high dose of steroid. It is urged by the  appellant-
Dr. Haldar that the deceased was under a high dose of steroid  at  the
rate of 160 mg per day and it was the appellant who tapered it down by
prescribing a quick acting steroid Predinosolone at 120  mg  per  day.
The appellant-Dr. Haldar further urged that he was called only once to
examine the deceased and he was  not  called  thereafter.  Hence,  the
National Commission wrongly equated him with Dr. Balram Prasad who was
the attending physician. Though the claimant did not make any  counter
statement on apportioning liability to the appellant-Dr. Haldar, it is
pertinent for us to resort to the findings recorded by this  Court  in
the case while remanding  it  back  to  the  National  Commission  for
determining the individual liability of the appellant doctors involved
in the treatment of the deceased. The findings 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  such  as  temperature,
pulse, intake-output and blood pressure were not monitored.  All
these factors are considered to  be  the  very  basic  necessary
amenities to be provided to any patient, who is critically  ill.
The failure of Dr. Halder to  ensure  that  these  factors  were
monitored regularly is certainly an act of negligence. Occlusive
dressings were carried out as a result of  which  the  infection
had been increased. Dr. Halder’s prescription  was  against  the
Canadian Treatment Protocol reference to which we  have  already
made hereinbefore. It is the duty  of  the  doctors  to  prevent
further spreading of infections. How that is to be done  is  the
doctors concern. Hospitals or nursing homes where a  patient  is
taken for better treatment should not be  a  place  for  getting
infection.”

115. Similar to the appellant Dr. Sukumar Mukherjee, the appellant Dr.
Baidyanath Haldar 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 with utmost callousness in giving  treatment  to  the
claimant’s wife which led to her unfortunate demise. The appellant Dr.
Baidyanath Haldar too, like Dr. Sukumar Mukherjee, made every  attempt
to shift the blame to the other doctors thereby tainting  the  medical
profession who undertook to serve. This Court thereby directs  him  to
pay Rs.10 lakhs as  compensation  to  the  claimant  in  lieu  of  his
negligence in treating the wife of the claimant.

Liability of Dr Baidyanath Prasad:

116. It is the case of the appellant-Dr. Balram Prasad that he was the
junior-most attending physician at AMRI Hospital who saw the  deceased
for the first time on 11.5.1998. He was not called upon  to  prescribe
medicines but was only required to continue and monitor the  medicines
to be administered to the deceased as prescribed by  the  specialists.
The learned senior counsel on behalf  of  the  appellant-Dr.  B.Prasad
argues that the complaint  made  by  the  claimant  had  no  averments
against him but the one whereby it  was  stated  by  the  claimant  at
paragraph 44 of the complaint which reads thus:
“44. That Dr. Balram Prasad as attending physician at  AMRI  did
do nothing better. He did not take any part in the treatment  of
the patient although he stood like a second fiddle to  the  main
team headed by the opposite party no. 2 & 3. He never  suggested
even faintly that AMRI is not an ideal 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. Haldar  claimed  in  his
submission that he has been wrongly equated with Dr. Balram Prasad who
was the attending physician and Dr. Anbani Roy Choudhury who  was  the
physician in charge of the patient.

120. It is pertinent  for  us  to  note  the  shifting  of  blames  on
individual responsibility by the doctors specially the  senior  doctor
as recorded by this Court which is a shameful act on  the  dignity  of
medical profession. The observations made by this Court in this regard
in Malay Kumar Ganguly’s case read as under:
“182……(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 in the overall management at AMRI so much so that  he
had himself given a certificate that her condition was very much
fit enough to travel to Mumbai.…”
In answer to a question as  to  whether  Dr.  Halder  had  given
specific direction to him for control of day-today  medicine  to
Anuradha, Dr. Prasad stated:
“… this was done under the guidance  of  Dr.  Sukumar  Mukherjee
(Respondent 1), Dr. B.N. Halder (Respondent 2) and Dr. Abani Roy
Chowdhury (Respondent 3).”
He furthermore stated that those three senior doctors  primarily
decided the treatment regimen for Anuradha at AMRI.
(iv) Dr. Kaushik Nandy had also stated that three senior doctors
were in charge of Anuradha’s treatment.
(v) AMRI states that the drugs had been administered and nursing
care had been given as per the directions of the doctors.
(vi) Respondents 5 and 6, therefore, did not own any  individual
responsibility on  themselves  although  they  were  independent
physicians with postgraduate medical qualifications.

183. In Errors,  Medicine  and  the  Law,  Cambridge  University
Press, p. 14, the  authors,  Alan  Merry  and  Alexander  McCall
Smith, 2001 Edn., stated:
“Many incidents  involve  a  contribution  from  more  than  one
person, and this case is an example. It illustrates the tendency
to  blame  the  last  identifiable  element  in  the  claim   of
causation—the  person  holding  the  ‘smoking   gun’.   A   more
comprehensive approach would identify the relative contributions
of the other failures in the system, including 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 second fiddle and perpetuated the
negligence in giving treatment to the claimant’s wife. This  Court  in
Malay Kumar Ganguly’s case found him to be 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. We hope that  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.

Liability of the claimant – Dr. Kunal Saha:

123. Finally,  we  arrive  at  determining  the  contribution  of  the
claimant to the negligence of the  appellant-  doctors  and  the  AMRI
Hospital in causing the death of his wife due to  medical  negligence.
The National Commission has determined the compensation to be paid for
medical  negligence  at  Rs.1,72,87,500/-.   However,   the   National
Commission was of the opinion that the interference  of  the  claimant
was also contributed to the death of his wife. The National Commission
relied upon paragraph 123 of the judgment of this Court in Malay Kumar
Ganguly’s case to arrive at the aforesaid conclusion. Paragraph 123 of
the judgment reads thus:
“123. To conclude, it will be pertinent to note that even if  we
agree that there was  interference  by  Kunal  Saha  during  the
treatment, it in no way diminishes  the  primary  responsibility
and default in duty on part of the defendants.  In  spite  of  a
possibility of  him  playing  an  overanxious  role  during  the
medical proceedings, the breach of duty to take  basic  standard
of medical care on the part of defendants  is  not  diluted.  To
that extent, contributory negligence is not pertinent.  It  may,
however, have some role to play for the purpose of damages.”

Therefore,  holding  the   claimant   responsible   for   contributory
negligence, the  National  Commission  deducted  10%  from  the  total
compensation and  an  award  of  Rs.1,55,58,750/-  was  given  to  the
claimant.

124. The appellants-doctors and the  AMRI  Hospital  have  raised  the
issue of contributory negligence all over again in  the  present  case
for determining the quantum of compensation to  be  deducted  for  the
interference of the claimant in treatment of the deceased.

125. On the other hand, the claimant  in  his  written  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  AMRI  contending  that  the  said
antibiotics were necessary. Kunal, however, submitted  that  the
said antibiotics were prescribed by the doctors at AMRI  and  he
did not write any prescription. We would, however,  assume  that
the said antibiotics had been administered by Kunal on his  own,
but  it  now  stands  admitted  that  administration   of   such
antibiotics was necessary.

123. To conclude, it will be pertinent to   note that even if we
agree that there was  interference  by  Kunal  Saha  during  the
treatment, it in no way diminishes  the  primary  responsibility
and default in duty on part of the defendants.  In  spite  of  a
possibility of  him  playing  an  overanxious  role  during  the
medical proceedings, the breach of duty to take  basic  standard
of medical care on the part of defendants  is  not  diluted.  To
that extent, contributory negligence is not pertinent.  It  may,
however, have some role to play for the purpose of damages.”
(Emphasis laid by this Court)

A careful reading of the above paragraphs together from  the  decision
of Malay Kumar Ganguly’s case would  go  to  show  that  the  claimant
though over-anxious, did to the patient what was necessary as  a  part
of  the  treatment.  The  National  Commission  erred  in  reading  in
isolation the statement of this Court that the claimant’s  action  may
have played some role for the purpose of damage.

126. We further intend to emphasize upon the observation of this Court
in Malay Kumar Ganguly’s case which reads as under:

“194. Further, the statement made by the  High  Court  that  the
transfer  certificate  was  forged  by  the  patient  party   is
absolutely erroneous, as Dr. Anil Kumar Gupta deposed before the
trial court that he  saw  the  transfer  certificate  at  AMRI’s
office and the words “for better treatment” were written by  Dr.
Balaram Prasad in his presence and these words were  written  by
Dr. Prasad, who told it would be easier for  them  to  transport
the patient. In a case of this nature, Kunal would have expected
sympathy and not a spate of irresponsible accusations  from  the
High Court.”

In the abovementioned paragraph, this Court clearly deterred the  High
Court from making irresponsible accusations against the  claimant  who
has suffered not only due to the loss of his wife but also because his
long drawn battle for justice. Unfortunately, the National  Commission
made the same mistake.

127. We, therefore, conclude that 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, original as  well  as  enhanced
claim by  way  of  filing  affidavit  with  supporting  documents,  is
Rs.97,56,07,000/- that includes pecuniary damages of Rs.34,56,07,000/-
and non pecuniary damages of Rs.31,50,00,000/-, special damages of  US
$4,000,000 for loss of job/house in Ohio and punitive  damages  of  US
$1,000,000.  The updated break-up of the total claim has been  perused
and the same 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, we are  of  the
view that the claimant is entitled for enhanced compensation that will
be mentioned  under  different  heads  which  will  be  noted  in  the
appropriate paragraphs of this judgment.

129. 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.  Further, the  National  Commission
has failed to take into consideration the  observations  made  in  the
aforesaid judgment wherein in paragraphs 152 and 155 it is  held  that
AMRI Hospital is one of the best Hospitals in Calcutta and the doctors
were best doctors available.  This  aspect  of  the  matter  has  been
completely ignored by the National Commission  in  awarding  just  and
reasonable compensation in favour of the claimant.
130.  Since, it has already been determined  by  the  Court  that  the
compensation paid by the National Commission was inadequate  and  that
it is required to  be  enhanced  substantially  given  the  facts  and
evidence on record, it will be prudent to take up the different  heads
of compensation separately to provide  clarity  to  the  reasoning  as
well.

Loss of income of the deceased:

131. The grievance of the claimant is that the National Commission has
failed to take into consideration the legal and  substantial  evidence
produced on record regarding the income of the deceased  wife  as  she
was  a  citizen  of  U.S.A.  and  permanently  settled  as   a   child
psychologist and the  claimant  was  AIDS  researcher  in  the  U.S.A.
Therefore, the National Commission  ought  to  have  taken  the  above
relevant factual aspect of the case into consideration  regarding  the
status and standard of living of the deceased in U.S.A.  to  determine
just compensation 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. & Others Vs. Patricia Jean Mahajan & 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 premature death, would amount
to 5 million and 125 thousand dollars. The loss of income  on  account
of premature death of the claimant’s wife was calculated by  the  said
witness who is an Economist in America and he has also  deducted  one-
third for her personal expenses out of her annual income which  is  at
par with the law laid down by this Court in number of cases  including
Sarla Verma’s case (supra). In  the  cross  examination  of  the  said
expert witness by the learned counsel for  the  appellant-doctors  and
the Hospital, he has also explained how  he  calculated  the  loss  of
income on the premise of the premature death of the  claimant’s  wife.
According to Prof. John F. Burke, the above calculation of  5  million
and 125 thousand dollars for loss of income of the deceased was a very
conservative  forecast  and  other  estimates  the  damages  for   her
premature death could be 9 to 10 million dollars.  It is the claim  of
the claimant that loss of income of multi-million  dollars  as  direct
loss for the wrongful death of the deceased may appear as  a  fabulous
amount in  the  context  of  India  but  undoubtedly  an  average  and
legitimate claim in the context of the instant case has to be taken to
award just compensation. He has placed reliance upon the  judgment  of
this Court in Indian Medical Association’s case  (supra)  wherein  the
Constitution Bench has stated that to deny the legitimate claim or  to
restrict arbitrarily the size of an award would amount to  substantial
injustice. We have considered the above important aspect of  the  case
in the decision of this Court for enhancing the compensation in favour
of the claimant.

132.  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 her wife. Further, Prof.  John
F. Burke, an economic expert 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,  we  cannot  take  the
estimate of Prof. John F. Burke to be the income of the  deceased.  We
also feel that $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 a  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,
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
total loss of income by 30.

134. Further, the claimant has  rightly  pointed  that  the  value  of
Indian currency  has  gone  down  since  the  time  when  these  legal
proceedings have begun in this country. This argument of the  claimant
has been accepted by us while  answering  the  point  nos.  2  and  3.
Therefore, it will be prudent for us 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/-  which  is
calculated as [$40,000+(30/100×40,000$)-(1/3 x 52,000$) x 30 x Rs.55/-
] = Rs.5,72,00,550/-.

Other Pecuniary Damages:

135.  The pecuniary damages incurred by the claimant due to  the  loss
of the deceased have already been granted while  answering  the  point
no. 5. Therefore, we are not inclined  to  repeat  it  again  in  this
portion. However, the expenditure made  by  the  claimant  during  the
treatment of  the  deceased  both  in  Kolkata  and  Mumbai  Hospitals
deserves to be duly compensated for awarding reasonable  amount  under
this head as under:-

(a) For the medical treatment in Kolkata and Mumbai:

136.   An amount of Rs.23 lakhs has been claimed by the claimant under
this head. However, he has been able to produce the medical bill  only
to the extent of Rs.2.5 lakhs which he had paid to  the  Breach  Candy
Hospital, 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. We still consider this amount  as
insufficient in the light of the fact that the deceased was treated at
AMRI Hospital as an in-patient for about a week; we deem it  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.

(b) Travel and Hotel expenses at Bombay:

137. 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, again 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. We find it 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, 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  loss  of  companionship  and  life
amenities, Rs.50,00,000/- for emotional distress, pain  and  suffering
of the  husband-  the  claimant  and  Rs.4,50,00,000/-  for  pain  and
suffering endured by the deceased during her treatment.

140. In this regard, we are inclined to make  an  observation  on  the
housewife services here.  In  the  case  of  Arun  Kumar  Agarwal  Vs.
National Insurance Company[35], this Court observed as follows:
22. We may now deal with the question formulated in the  opening
paragraph of this judgment. In  Kemp  and  Kemp  on  Quantum  of
Damages, (Special  Edn.,  1986),  the  authors  have  identified
various heads under which the husband can claim compensation  on
the death  of  his  wife.  These  include  loss  of  the  wife’s
contribution to the household from her earnings, the  additional
expenses incurred  or  likely  to  be  incurred  by  having  the
household run by a housekeeper or servant, instead of the  wife,
the expenses incurred in buying clothes for the children instead
of having them made by the wife, and similarly  having  his  own
clothes mended or stitched elsewhere than by his wife,  and  the
loss of that element of security provided to the  husband  where
his employment was insecure or his health was bad and where  the
wife could go out and work for a living.

23. In England the courts used to award damages  solely  on  the
basis of pecuniary loss to family due to the demise of the wife.
A departure from this rule came to be made in Berry  v.  Humm  &
Co. where the plaintiff claimed damages for  the  death  of  his
wife caused due to the negligence of the  defendant’s  servants.
After taking cognizance of some precedents,  the  learned  Judge
observed: (KB p. 631)

“… I can see no reason in  principle  why  such  pecuniary  loss
should be limited to the value of money lost, or the money value
of things lost, as contributions of food or clothing, and why  I
should be  bound  to  exclude  the  monetary  loss  incurred  by
replacing services rendered gratuitously by a relative, if there
was a reasonable prospect of their being rendered freely in  the
future but for the death.”

24. In Regan  v.  Williamson  the  Court  considered  the  issue
relating to quantum of compensation payable to the dependants of
the woman who was killed in a road accident. The facts  of  that
case were that on the date of accident, the plaintiff  was  aged
43 years and his children were aged 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 a person is  no  simple
matter. I think the plaintiff has not made  extensive  enquiries
in this regard. Possibly the expense involved  in  getting  more
help is a factor which has deterred him. Whatever be the reason,
the plain fact is that the deceased’s services  at  the  weekend
have not been replaced. They are lost to the  plaintiff  and  to
the boys.”

He then proceeded to observe: (WLR p. 309
A-D)
“I have been referred to a number of cases in which judges  have
felt compelled to look upon the task  of  assessing  damages  in
cases involving the death of  a  wife  and  mother  with  strict
disregard to those features of the life of a woman beyond her so-
called services, that is to say, to  keep  house,  to  cook  the
food, to buy the clothes, to wash them and  so  forth.  In  more
than one case, an attempt has been made to calculate the  actual
number of hours it would take a woman to perform  such  services
and to compensate dependants upon that basis at so much an  hour
and so relegate the wife or mother, so it seems to  me,  to  the
position of a housekeeper.
(Emphasis laid by this Court)

While I think that the law inhibits me from, much as I should like to,
going all the way along the path to which Lord Edmund-Davies  pointed,
I am, with due respect to  the  other  judges  to  whom  I  have  been
referred, of the view that the word ‘services’ has been  too  narrowly
construed. It should, at least, include an acknowledgment that a  wife
and mother does not work to set hours and, still less, to rule. She is
in constant attendance, save for those hours when she is, if  that  is
the fact, at work. During some of those hours she may  well  give  the
children instruction on essential matters to do with their  upbringing
and, possibly, with such  things  as  their  homework.  This  sort  of
attention seems to be as much of a service, and probably more valuable
to them, than the other kinds of service conventionally so regarded.”

25. In Mehmet v. Perry the pecuniary value of a wife’s  services  were
assessed and granted under the following heads:
(a) Loss to the family of the wife’s housekeeping services.
(b) Loss suffered by the children of the personal attention  of  their
mother, apart from housekeeping services rendered by her.
(c) Loss of the wife’s personal care and attention, which the  husband
had suffered, in addition to the loss of her housekeeping services.

26. In India the courts have 210recognized 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  and
children. However, for the purpose of award  of  compensation  to  the
dependants, some pecuniary estimate has to be made of the services  of
the housewife/mother. In that context, the term “services” is required
to be given a broad meaning and  must  be  construed  by  taking  into
account the loss of personal care and attention given by the  deceased
to her children as a mother and to her husband as  a  wife.  They  are
entitled to adequate compensation in lieu of the  loss  of  gratuitous
services  rendered  by  the  deceased.  The  amount  payable  to   the
dependants cannot be diminished on the ground that some close relation
like a grandmother may volunteer to render some of the services to the
family which the deceased was giving earlier.

30. In A. Rajam v. M. Manikya Reddy, M. Jagannadha Rao, J. (as he then
was) advocated giving of a wider meaning to  the  word  “services”  in
cases relating to  award  of  compensation  to  the  dependants  of  a
deceased wife/mother. Some of the observations made in  that  judgment
are extracted below:
‘The loss to the husband and children consequent upon the death of the
housewife or mother has to be  computed  by  estimating  the  loss  of
‘services’ to the family, if there was  reasonable  prospect  of  such
services being rendered freely in the future, but for  the  death.  It
must be remembered that any substitute to be so employed is not likely
to be as  economical  as  the  housewife.  Apart  from  the  value  of
obtaining substituted services, the expense of giving accommodation or
food to the substitute must also be computed. From this total must  be
deducted the expense the family would have otherwise been spending for
the deceased housewife.
While estimating the ‘services’ of the  housewife,  a  narrow  meaning
should not be given to the meaning  of  the  word  ‘services’  but  it
should be construed broadly and one has to take into account the  loss
of ‘personal care and attention’ by the deceased to her children, as a
mother and to her husband, as a wife.  The  award  is  not  diminished
merely because some close relation like a grandmother is  prepared  to
render voluntary services.’

XXX                     XXX             XXX

32. In National Insurance Co. Ltd. v.  Mahadevan  the  learned  Single
Judge referred to the Second Schedule of the  Act  and  observed  that
quantifying the pecuniary loss at the same rate or amount  even  after
13 years after the amendment, 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 in relation whereto there did  not  exist
any statutory compensation. Lata Wadhwa was decided in a matter  where
a fire occurred during a celebration. The liability  of  Tata  Iron  &
Steel Co. Ltd. was  not  disputed.  Compensation  was  awarded  having
regard to the peculiar feature obtaining in that case  which  has  got
nothing to do  with  the  statutory  compensation  payable  under  the
provisions of the Motor Vehicles Act.”
(Emphasis laid by this Court)

141.  Also, in a three judge Bench decision of this Court in the  case
of Rajesh & Ors. Vs. Rajvir Singh and Ors.[36],  this  Court  held  as
under:
“20. The ratio of a decision of this Court, on a legal issue  is
a precedent. But an observation made by this  Court,  mainly  to
achieve uniformity and consistency on a socio-economic issue, as
contrasted from a legal principle, though a precedent,  can  be,
and in fact ought to  be  periodically  revisited,  as  observed
in Santhosh Devi (supra). We may therefore, revisit the practice
of awarding  compensation  under  conventional  heads:  loss  of
consortium to the spouse, loss of love,  care  and  guidance  to
children and funeral expenses. It may be noted that the  sum  of
Rs. 2,500/- to Rs. 10,000/- in those  heads  was  fixed  several
decades ago and having regard  to  inflation  factor,  the  same
needs to be increased. In Sarla  Verma’s  case (supra),  it  was
held that compensation for loss of consortium should be  in  the
range of  Rs.  5,000/-  to  Rs.  10,000/-,  In  legal  parlance,
‘consortium’ is the right of the spouse to  the  company,  care,
help, comfort, guidance, society, solace, affection  and  sexual
relations with his or  her  mate.  That  non-pecuniary  head  of
damages has not been properly understood by our Courts. The loss
of companionship, care  and  protection,  etc.,  the  spouse  is
entitled to  get,  has  to  be  compensated  appropriately.  The
concept of non-pecuniary damage for loss of consortium is one of
the major heads of award of compensation in other parts  of  the
world  more  particularly  in  the  United  States  of  America,
Australia, etc. English Courts have also recognized the right of
a spouse to get compensation even during the period of temporary
disablement. By loss of consortium,  the  courts  have  made  an
attempt to compensate the loss of spouse’s  affection,  comfort,
solace, companionship, society, assistance, protection, care and
sexual  relations  during   the   future   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
claiamant’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 of the claimant’s awareness  of  the
loss.”
……….
Further, it is written that,

“Even though the claimant may  die  from  his  injuries  shortly
after the accident, the evidence may justify an award under this
head. Shock should also be taken account of as an ingredient  of
pain and suffering and the claimant’s  particular  circumstances
may well be highly relevant to the extent of her suffering.

……….

By considering the nature of amenities lost and the  injury  and
pain in the particular case, the court must  assess  the  effect
upon the particular claimant. In deciding the appropriate  award
of damages, an important consideration  show  long  will  he  be
deprived of those amenities and how long the pain and  suffering
has been and will be endured. If it is for the rest of his  life
the court will need to take into account  in  assessing  damages
the claimant’s age and his expectation in life. That applies  as
much in the case of an unconscious plaintiff as in the  case  of
one sentient, at least as regards the loss of amenity.”

The extract from Malay Kumar Ganguly’s case read as under:

“3. Despite administration of the said  injection  twice  daily,
Anuradha’s condition deteriorated rapidly from bad to worse over
the next few days. Accordingly, she  was  admitted  at  Advanced
Medicare Research Institute (AMRI) in the morning  of  11-5-1998
under Dr. Mukherjee’s supervision. Anuradha was also examined by
Dr. Baidyanath Halder, Respondent 2  herein.  Dr.  Halder  found
that she had been suffering from  erythema  plus  blisters.  Her
condition, however, continued to deteriorate further. Dr.  Abani
Roy Chowdhury, Consultant, Respondent 3 was also consulted on 12-
5-1998.

4. On or about 17-5-1998 Anuradha was shifted  to  Breach  Candy
Hospital, Mumbai as her condition further deteriorated severely.
She breathed her last on 28-5-1998……”

143. The above extracted portion from the above  judgment  would  show
that the deceased had undergone the ordeal of pain for  18  long  days
before she breathed her last.  In  this  course  of  period,  she  has
suffered with immense pain and suffering and  undergone  mental  agony
because of the negligence of the appellant-doctors  and  the  Hospital
which has been proved by the claimant and needs no reiteration.

144. Further, in the case of Nizam Institute (supra), the claimant who
was also the surviving victim of 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
pain, mental agony and suffering in  course  of  her  treatment  which
ultimately could not save her life, we are not inclined to award  more
than the conventional amount set by this Court on  the  basis  of  the
economic status of the deceased. Therefore, a lumpsum amount of  Rs.10
lakhs is awarded to the claimant following the Nizam Institute’s  case
(supra) and also applying the principles laid in Kemp and Kemp on  the
“Quantum of Damages”, under the head of ‘pain  and  suffering  of  the
claimant’s wife during the course of treatment’.

146. However, regarding claim of Rs.50,00,000/- by the claimant  under
the head of ‘Emotional distress, pain and suffering for the  claimant’
himself, we are not inclined to  award  any  compensation  since  this
claim bears no direct link with the negligence caused by the appellant-
doctors and the Hospital in treating the claimant’s wife.

In summary, the details of compensation  under  different  heads
are presented hereunder:

|Loss of income of the deceased   |Rs.5,72,00,550/-              |
|For Medical treatment in Kolkata |Rs.7,00,000/-                 |
|and Mumbai                       |                              |
|Travel and Hotel expenses at     |Rs.6,50,000/-                 |
|Mumbai                           |                              |
|Loss of consortium               |Rs.1,00,000/-                 |
|Pain and suffering               |Rs.10,00,000/-                |
|Cost of litigation               |Rs.11,50,000/-                |

147.   Therefore,  a  total  amount  of   Rs.6,08,00,550/-    is   the
compensation awarded in this appeal to the claimant Dr. Kunal Saha  by
partly modifying the award granted by the  National  Commission  under
different  heads  with  6%  interest  per  annum  from  the  date   of
application till the date of payment.

148. Before parting with the judgment we are inclined to mention  that
the number of medical negligence cases against doctors, Hospitals  and
Nursing Homes in the consumer forum are increasing day by day. In  the
case  of  Paschim  Banga  Khet  Mazdoor  Samity  Vs.  State  of   West
Bengal[37], this Court has already pronounced that right to health  of
a citizen is a fundamental right guaranteed under Article  21  of  the
Constitution of  India.  It  was  held  in  that  case  that  all  the
government Hospitals, Nursing Homes and  Poly-clinics  are  liable  to
provide treatment to the best of their capacity to all the patients.

149. The doctors, Hospitals, the Nursing  Homes  and  other  connected
establishments are to be dealt with strictly if they are found  to  be
negligent with the patients who come to them pawning all  their  money
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. 2867/2012 filed by  Dr.  Balram
Prasad, Civil Appeal No. 858/2012 filed by Dr. Sukumar  Mukherjee  and
Civil Appeal No. 731/2012 filed by Dr. Baidyanath  Haldar  are  partly
allowed by modifying the judgment and order of the National Commission
in so far as the amount fastened upon them to be paid to the  claimant
as mentioned below. Dr. Sukumar Mukherjee and  Dr.  Baidyanath  Haldar
are liable to pay compensation to the tune of Rs.10 lakhs each and Dr.
Balram Prasad is held liable to pay compensation of Rs.5 lakhs to  the
claimant. Since,  the  appellant-doctors  have  paid  compensation  in
excess of what they have been made liable to by  this  judgment,  they
are entitled for reimbursement from the appellant-AMRI Hospital and it
is directed to reimburse the same to the above  doctors  within  eight
weeks.

152. The  Civil  Appeal  No.  692/2012  filed  by  the  appellant-AMRI
Hospital is dismissed and it is liable to pay compensation as  awarded
in this judgment in favour of the claimant after deducting the  amount
fastened upon the doctors in this judgment  with  interest  @  6%  per
annum.

153. The Civil Appeal No. 2866/2012  filed  by  the  claimant-Dr.Kunal
Saha is also partly allowed and the finding on contributory negligence
by the National Commission on the part of the claimant is  set  aside.
The direction of the National Commission to deduct 10% of the  awarded
amount of compensation on account of contributory negligence  is  also
set aside by  enhancing  the  compensation  from  Rs.1,34,66,000/-  to
Rs.6,08,00,550/- with 6% interest per  annum  from  the  date  of  the
complaint to the date of the payment to the claimant.

154. The AMRI Hospital is directed to comply  with  this  judgment  by
sending demand draft of the compensation awarded in this appeal to the
extent of liability imposed on it after deducting the amount, if  any,
already paid to the  claimant,  within  eight  weeks  and  submit  the
compliance report.

…………………………………………………………J.
[CHANDRAMAULI KR. PRASAD]

…………………………………………………………J.