REPORTABLE

 IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO. 2557   OF 2019      (Arising out of Special Leave Petition (Civil) No. 26789  of 2018)  

SHODA DEVI …..   Appellant(s)

VS.

DDU/RIPON HOSPITAL SHIMLA AND ORS.          …..    Respondent(s)

Dinesh Maheshwari, J.

Leave granted.

2. This appeal by special leave is directed against the judgment and order

dated 23.02.2018, as passed in First Appeal No. 348 of 2009, whereby the

National Consumer Disputes Redressal Commission ('National Commission')

has modified the order dated 03.08.2009, as passed by the Himachal Pradesh

State  Consumer  Disputes  Redressal  Commission  ('State  Commission')  in

Complaint Case No. 11 of 2006; and while holding that the State Commission

had  wrongly  exonerated  the  respondents  for  medical  negligence  and

deficiency in service, has awarded compensation to the complainant-appellant

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in  the  sum  of  Rs.  2,00,000/-  in  addition  to  the  ex  gratia  amount  of  Rs.

2,93,526/-  allowed  by  the  State  Commission.  In  the  present  appeal,  the

complainant-appellant  seeks  enhancement  of  the  amount  of  compensation

with  reference  to  the  disablement  and  loss  suffered  by  her  due  to  the

negligence of the respondents, which led to the amputation of her right arm

above the elbow.

3. We may observe at the outset that the impugned judgment and order

dated 23.02.2018, as passed by the National Commission in First Appeal No.

348 of 2009, holding the respondents liable for compensation on account of

medical  negligence,  was  sought  to  be  questioned  by  the  Medical  Officer

concerned (respondent No. 2 herein) by way of a Petition for Special Leave to

Appeal  (C) No. 15888 of  2018 that  was considered and dismissed by this

Court on 11.07.2018.  

4. Having  regard  to  the  subject  matter  of  this  appeal,  the  background

aspects, so far relevant for the present purpose, could be noticed, in brief, as

follows:

4.1 The  appellant,  who  had  been  suffering  with  abdomen  pain  and

menstrual problems, approached the respondent No.1 Deen Dayal Upadhyay

Hospital - a government hospital at Shimla ('DDU Hospital') where she was

examined by the respondent No. 2 on 10.07.2006 and was diagnosed with

having fibroid and endometrial hyperplasia. On 18.07.2006, after finding that

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she had no relief from medicines, the appellant was advised to undergo a

minor operation viz., Fractional Curettage (D & C).

4.2. On  19.07.2006,  for  the  purpose  of  the  operation  aforesaid,  the

respondent  No.  3,  a  para-medico,  administered  intravenous  injection  of

Phenergan and Fortwin directly by a syringe in the right arm of the appellant.

The  case  of  the  appellant  has  been  that  she  continuously  suffered

excruciating pain during the entire surgical procedure and despite bringing the

fact  to  the  knowledge  of  respondent  Nos.  2  and  3  during  and  after  the

procedure,  no measures were taken to redress and reduce the discomfort

suffered by her.  

4.3. Due to the complications that had arisen in regard to the arm of the

appellant, which could not be handled by the team of doctors at DDU Hospital,

she  was  shifted  to  Indira  Gandhi  Medical  College  and  Hospital,  Shimla

('IGMCH')  in  a  taxi  arranged  by  her  husband.  In  IGMCH,  she  was

administered  Brachial  Plexus  Block  treatment  immediately  and,  on  being

examined by CW-2,  she was diagnosed with “acute arterial  occlusion with

ischemia of limb, caused by intra-arterial injection”, which ultimately resulted in

CW-1 amputating her right arm above the elbow on 22.07.2006.

5. Having thus suffered the loss of limb, the appellant, apart from filing FIR

under  Section  338  IPC  on  27.07.2006  at  Police  Station,  Sadar,  Shimla,

preferred the consumer complaint on 28.09.2006, seeking compensation with

the  submissions,  inter  alia,  that  after  several  hours  of  complaints,  the

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respondent No. 2 attended on her with a team of doctors consisting of general

physician and gynaecologist in a rather casual manner; that no proper service

was provided to her; that she was shifted to IGMCH only in a taxi arranged by

her  husband;  and  that  she  suffered  amputation  only  due  to  the  medical

negligence of the medicos and para-medicos of the respondent No. 1.  

6.     The respondents filed their separate counter affidavits in opposition to the

complaint so made by the appellant. The sum and substance of such counter

affidavits had been that the respondents had provided services with utmost

caution and care;  that  the appellant  was to  undergo a minor  surgery  viz.,

Fractional Curettage wherefore, the staff nurse administered an intravenous

injection  prior  to  the  surgery;  that  the  entire  procedure  lasted  for  about  5

minutes  and  the  appellant  cooperated  during  the  procedure,  which  was

conclusive of the fact that the intravenous injection was administered properly;

that  after  being shifted to  the ward,  when the appellant  complained about

severe pain in the right forearm, she was attended at immediately but when

onset of limb ischemia was confirmed, she was referred to IGMCH for further

treatment as DDU Hospital was not equipped with CTVS Department; that on

reaching IGMCH, immediate treatment was administered to the appellant but,

despite all possible treatment, her right arm had to be amputated as gangrene

had started to set in. Thus, the respondents asserted that the appellant was

provided  immediate  and  necessary  treatment;  and  that  there  was  no

negligence and/or deficiency in their service.  

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7. The  appellant  examined  Dr.  Rajneesh  Pathania,  Professor  &  Head,

CTVS,  IGMCH,  Shimla  as  CW-1  who  produced  the  case  history  of  the

appellant and pointed out that she had arrived at the hospital in emergency

with a history of severe pain in the right forearm and she was diagnosed with

acute limb ischemia and treatment  was given on these lines;  but  with the

onset of gangrene, the right arm was amputated under his supervision to save

the  life  of  appellant.  CW-1  further  stated  that  the  reaction  to  an  injection

administered could take place irrespective of the route of administration; that

severity of limb ischemia is more if the whole drug is given intra arterially and

occurs one in a million; and that preventive efforts should have been taken

when the complaint of pain was made at the first instance. He further stated

that the treatment administered at DDU hospital was the one accepted as an

initial line of treatment for management of pain in similar situations. Dr. R.G.

Negi CW-2, who was the first doctor to examine the appellant in IGMCH, also

made  the  statement  in  concurrence  with  that  of  CW-1.  The  appellant  got

herself  examined where  she denied all  the suggestions put  to  her  by  the

respondent but admitted that she did not complain about any pain when she

was shifted from the operation theatre. It  was pointed out that the medical

board had assessed her permanent disablement at 80%.  

8.    During the course of hearing of the matter, the State Commission made

an order on 16.09.2008, expecting the Deputy Commissioner, Shimla and the

Secretary  Health  Department  to  explore  the  possibility  of  extending  a

reasonable  ex  gratia  payment  to  the  appellant,  looking  to  the  nature  of

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disablement suffered by her and her poor and rural background. In response

thereto, the Senior Medical Superintendent of DDU Hospital stated by way of

affidavit  that  a  sum of  Rs.  2,93,526/-  was assessed in  this  regard;  and if

accepted by the appellant, the same may be conveyed to the Director Health

Services. Thereafter, the State Commission examined the matter on merits;

and, with reference to the evidence of the doctors as also that of the appellant,

held  that  no  case  of  medical  negligence  was  proved.   Hence,  the  State

Commission  rejected  the  complaint.  But,  in  view  of  the  order  previously

passed on 16.09.2008 and response thereto by the Government, the State

Commission directed the respondent No. 1 to make ex gratia payment to the

tune of Rs. 2,93,526/- to the appellant, if she was willing to accept the same.

9. In  appeal  against  the  order  of  the  State  Commission,  the  appellant

relied on the principle of  res ipsa loquitor  and also contended that the State

Commission overlooked the material facts, the evidence of experts, the delay

caused at each and every stage, and the continuous suffering that she had to

undergo from the time of minor operation, to the amputation of her right arm

and thereafter as well.

10. The  National  Commission  meticulously  examined  the  evidence  on

record and particularly, the evidence of CW-1 Dr. Rajneesh Pathania and CW-

2 Dr. R.J. Negi as regards the cause of onset of gangrene on the appellant’s

right arm as also the preventive measures which could have been, but were

not, taken by the respondents.  While holding it to be a clear case of medical

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negligence, the National Commission allowed the appeal but enhanced the

compensation only to the tune of Rs. 2,00,000/-.  

11. Seeking enhancement over the amount so awarded, learned counsel

for the appellant has relied on the decision in Nizam's Institute of Medical

Sciences v. Prashanth S. Dhananka and Ors. : 2009 (6) SCC 1 where, on

the facts and in the circumstances of the case, this Court had enhanced the

compensation on the ground of  medical  negligence.  Learned counsel  has

strenuously argued that despite coming to the conclusion that the present

one is a case of medical negligence, the National Commission has awarded

a meagre sum of Rs. 2,00,000/- towards compensation without considering

the immense loss suffered by the appellant, a person coming from poor and

rural background, who was 45 years of age at the time of such amputation.

According to the learned counsel, the award of compensation deserves to be

re-evaluated and enhanced to minimum Rs. 16,20,000/- together with interest

@ 6% p.a. from the date of filing of complaint.

12. Per contra,  learned  counsel  for  respondent  No.1  has  attempted  to

submit  that  the  National  Commission  has  awarded  Rs.  2,00,000/-  to  the

appellant  over  and  above  the  ex  gratia  amount  allowed  by  the  State

Commission and in the given circumstances, the appellant is not entitled to

make a claim for any further enhancement of compensation. Learned counsel

has refuted the contentions pertaining to medical negligence and submitted

that there had not been any fault or negligence on part of the hospital staff

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i.e., doctors and nurses; and that the happenings due to unforeseeable and

unpredictable  rarest  of  rare  complications  cannot  be  considered  to  be  of

medical negligence. The learned counsel would submit that the respondents

have  adhered  to  their  medical  duties  in  treating  and  attending  to  the

appellant's needs to the best that could be provided.

13.      Having heard learned counsel for the parties and having examined the

record,  we  are  clearly  of  the  view  of  that  while  the  findings  on  medical

negligence on the part of the respondents do not call for any interference, a

clear case for enhancement of the amount of compensation is made out.

14. On perusing the order of the State Commission, it is but apparent that

the  State  Commission  though  recorded  that  with  the  onset  of  gangrene,

amputation of the right arm of the appellant was carried out with a view to

save her life but dismissed the complaint on rather untenable grounds like

that the surgery would not have been successful if sedation was not complete

and proper; and that the appellant was referred to another hospital for more

effective  treatment  after  all  the  efforts  at  the  respondent  hospital  were

exhausted.  In  appeal,  the  National  Commission  minutely  examined  the

evidence on record and concluded on the medical negligence of respondents

for  several  counts  such as:  not  providing or  making arrangements  for  an

ambulance for proper shifting of the appellant; not attending on the appellant

at the first instance on her complaint about unbearable pain and the delay

having aggravated the ischemic process; and though cannula was not used

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as it was a one-time prick for the procedure, yet it should have been used to

prevent  mishaps.  We  find  no  infirmity  in  the  findings  of  the  National

Commission,  in  so  far  the  issue  of  medical  negligence  is  concerned.

However,  after  having  recorded clear  findings  on medical  negligence and

after taking note of the aforementioned directions of the State Commission

regarding ex gratia payment, the National Commission considered it proper

to  award  to  the  appellant  an  additional  compensation  to  the  tune  of  Rs.

2,00,000/-.  The question is:  as to whether the amount  so awarded to the

appellant is that of just and reasonable compensation?

15.     As regards the quantum of compensation in such cases, it is noticed

that in the case of  Alfred Benddict v. Manipal Hospital:  (2015) 11 SCC

423, where, for the reason of medical negligence, a 2-year-old girl developed

gangrene in right arm which resulted in its amputation, this Court, considering

the age of the child and her life-long suffering, be it her education or marriage

prospects,  awarded  a  lump  sum  of  Rs.  20,00,000/-  as  compensation.

Likewise, in the case of Nizam's Institute of Medical Sciences (supra), where

the complainant had suffered paraplegia as an outcome of the surgery and

was thereafter confined to a wheelchair, this Court pointed out some of the

factors  that  weigh  in  while  quantifying  compensation  in  such cases.  This

Court, inter alia, observed as under:-

“90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and

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disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional,  not  only  on the victim but  even more so on his family and attendants and the stress saps their energy and destroys their equanimity.  

91. We can also visualize the anxiety of the complainant and his parents for the future after the latter,  as must all  of  us, inevitably  fade  away.  We,  have,  therefore  computed  the compensation  keeping  in  mind  that  his  brilliant  career  has been  cut  short  and  there  is,  as  of  now,  no  possibility  of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.  

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.”

16. In the ultimate analysis, the requirement in such cases of disablement

due to medical negligence is of awarding just and reasonable compensation

to the victim, while keeping in view the pecuniary damages as also the non-

pecuniary damages like pain and suffering and loss of amenities of life.

16.1 On the facts that have come on record, it appears that the appellant

was  45  years  of  age  when  she  suffered  the  medical  negligence  and

consequences  thereof,  leading  to  amputation  of  her  right  arm.   It  is  also

apparent that the appellant comes from a very poor and rural background

and  is  covered  under  Integrated  Rural  Development  Programme.  The

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National  Commission, even after finding this one to be a case of  medical

negligence  leading  to  amputation  of  right  arm,  quantified  the  amount  of

compensation only at Rs. 2,00,000/-.  Even if the ex gratia proposed before

the State Commission and the amount awarded by the National Commission

are taken together,  the total  compensation to the appellant  comes to  Rs.

4,93,526/- only.  

16.2 We are constrained to observe that  the National  Commission,  even

after  appreciating  the  troubles  and  trauma  as  also  disablement  and

disadvantage suffered by the appellant, had been too restrictive in award of

compensation.  Ordinarily, the general damages towards pain and suffering

as also loss of amenities of life deserve to be considered uniformly for the

human beings and the award of compensation cannot go restrictive when the

victim is coming from a poor and rural background; rather, in a given case like

that  of  the  appellant,  such  a  background  of  the  victim  may  guide  the

adjudicatory process towards reasonably higher amount of compensation (of

course, after having regard to all the attending circumstances).  

16.3 Such granting of reasonability higher amount of compensation in the

present  case appears  necessary  to  serve dual  purposes:  one,  to  provide

some  succour  and  support  to  the  appellant  against  the  hardship  and

disadvantage  due  to  amputation  of  right  arm;  and  second,  to  send  the

message to the professionals that their responsiveness and diligence has to

be equi-balanced for all their consumers and all the human beings deserve to

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be treated with equal respect and sensitivity. We are impelled to make these

observations in the context of an uncomfortable fact indicated on record that

when the appellant was writhing in pain, she was not immediately attended at

and  was  snubbed  with  the  retort  that  ‘the  people  from hilly  areas  make

unnecessary noise’. Such remarks, obviously, added insult to the injury and

were least expected of the professionals on public duties.

16.4. Apart from the above, when the appellant is shown to be a poor lady

from rural background, her contribution in ensuring the family meeting both

ends also deserves due consideration.  With her disablement and reduced

contribution,  the amount of  compensation ought to be of  such level  as to

provide relief in reasonable monetary terms to the appellant and to her family.

17. For what has been discussed and observed hereinabove and in the

given set of facts and circumstances, we are of the view that the appellant

deserves  to  be  allowed  further  an  amount  of  Rs.  10,00,000/-  towards

compensation,  over  and  above  the  amount  awarded  by  the  State

Commission and the National Commission. Having regard to the quantum of

enhancement being allowed herein, it is also considered proper to grant 3

months’ time to the respondents to make the requisite payment and else, to

bear the burden of interest.

18. Accordingly, this appeal is allowed. The appellant is awarded further an

amount of Rs. 10,00,000/- (Rupees ten lakhs) towards compensation, over

and above the amount awarded by the State Commission and the National

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Commission.  The  respondents  shall  make the  requisite  payment  within  3

months from today failing which, the enhanced amount of compensation shall

carry interest @ 6% p.a. from the date of filing of the complaint before the

State Commission.

     .......…..........…………………J.        (ABHAY MANOHAR SAPRE)

        ........….……………………J.          (DINESH MAHESHWARI)

New Delhi, Dated:  7th March, 2019.  

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