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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

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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  

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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.

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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:

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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  Mukherjee1 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  

1 (2009) 9 SCC 221

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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:

5.It is the claim of the learned counsel on behalf  

of the appellant-doctors and the Hospital that  

there  is  no  pleading  in  the  petition  of  the  

claimant that the deceased had a stable job or a  

stable  income,  except  in  paragraph  2A  of  the  

petition  which states  that the  deceased was  a  

Post-Graduate student and she had submitted her  

thesis.  The  only  certificate  produced  by  the  

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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  

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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.

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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  

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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 & Ors2.

 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  2 (2008) 4 SCC 162

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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  &  Ors3.   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  

3 (2002) 6 SCC 281

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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  

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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  

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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  

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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.

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… 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  

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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.

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(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  

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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., (2012) 6 SCC  421

Rs.10,000

2.  New  India  Assurance  Company  Limited v. Yogesh Devi, (2012) 3  SCC 613

Rs.10,000

3.  National  Insurance  Company  Limited v. Sinitha, (2012) 2 SCC  356

Rs.5,000

4.  Sunil  Sharma  v.  Bachitar  Singh, (2011) 11 SCC 425

Rs.25,000

5. Pushpa v. Shakuntala, (2011)  2 SCC 240

Rs.10,000

6.  Arun  Kumar  Agrawal  v.  National  Insurance  Company  Limited, (2010) 9 SCC 218

Rs.15,000

7.  Shyamwati  Sharma  v.  Karam  Singh, (2010) 12 SCC 378

Rs.5,000

8. Reshma Kumari v. Madan Mohan,  (2009) 13 SCC 422 in Sarla Dixit  v. Balwant Yadav

Rs.15,000

9.  Raj  Rani  v.  Oriental  Insurance  Company  Limited,  (2009) 13 SCC 654

Rs.7,000

10.  Sarla  Verma  v.  Delhi  Transport  Corporation,  (2009)  6  SCC 121

Rs.10,000

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11. Rani Gupta v. United India  Insurance  Company  Limited,  (2009) 13 SCC 498

Rs.25,000

12.  National  Insurance  Company  Limited  v.  Meghji  Naran  Soratiya, (2009) 12 SCC 796

Rs.10,000

13.  Oriental  Insurance  Company  Limited v. Angad Kol, (2009) 11  SCC 356

Rs.10,000

14.  Usha  Rajkhowa  v.  Paramount  Industries, (2009) 14 SCC 71

Rs.5,000

15.   Laxmi  Devi  v.  Mohammad.  Tabbar, (2008) 12 SCC 165

Rs.5,000

16.  Andhra  Pradesh  State  Road  Transport  Corporation  v.  M.  Ramadevi, (2008) 3 SCC 379

Rs.5,000

17.  State  of  Punjab  v.  Jalour  Singh, (2008) 2 SCC 660

Rs.5,000

18.  Abati  Bezbaruah  v.  Dy.  Director  General,  Geological  Survey  of  India,  (2003)  3  SCC  148

Rs.3,000

19. Oriental Insurance Co. Ltd.  v. Hansrajbhai V. Kodala, (2001)  5 SCC 175

Rs.5,000

20.  Sarla  Dixit  v.  Balwant  Yadav, (1996) 3 SCC 179

Rs.15,000

21. G.M., Kerala SRTC v. Susamma  Thomas, (1994) 2 SCC 176

Rs.15,000

22. National Insurance Co. Ltd.  v. Swaranlata Das, 1993 Supp (2)  SCC 743

Rs.7,500

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.  

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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  4              (2009) 6 SCC 1

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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  Pal5,  where this Court has not directed assessment  of  compensation  according  to  American  standard.  

Therefore,  the  contention  of  the  claimant  that  

5 (2009) 14 SCC 1

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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divergence and freakiness, should be the  result of adjudication to arrive at just  compensation.”

     (Emphasis laid by this Court)

25. It was also contended by the learned counsel  

for  the  appellant-doctors  that  apart  from  

accident  cases  under  the  Motor  Vehicles  Act,  

1988, the multiplier method was followed in Lata  Wadhwa & Ors.  Vs. State of Bihar6 by a three  Judge Bench of this Court, which is a case where  

devastating fire took place at Jamshedpur while  

celebrating  the  birth  anniversary  of  Sir  

Jamshedji Tata.  Even in M.S. Grewal & Anr. Vs.  Deep 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  

6 (2001) 8 SCC 197 7 (2001)  8 SCC 151 8 (2011) 14 SCC 481

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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  

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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  

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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  

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9.11.2009 in M.A. No.1327 of 2009 for additional  

claim; the said application was withdrawn by him  

on 9.2.2010.  Therefore, his claim for enhancing  

compensation is not tenable in law. In support  

of the said contention, he has placed reliance  

upon  the  judgment  of  this  Court  in  National  Textile  Corporation  Ltd. Vs.  Nareshkumar  Badrikumar Jagad9, wherein it is stated by this  Court  that  the  pleadings  and  particulars  are  

necessary  to  enable  the  court  to  decide  the  

rights of the parties in the trial.

  In  support  of  the  said  proposition  of  law,  

reliance  was  also  placed  upon  other  judgment  of  

this Court in  Maria Margarida Sequeria Fernandes  Vs.  Erasmo Jack de Sequeria10,  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.”   

9  (2011)12 SCC 695 10  (2012) 5 SCC 370

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The said view of this Court was reiterated in  A.  Shanmugam Vs.  Ariya  Kshatriya  Rajakula  Vamsathu  Madalaya Nandavana Paripalanai Sangam11,

 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  

11  (2012)     6 SCC 430

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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 Singh12.

31. Under Section 158(6) of the Motor Vehicles  

Act, 1988, the report forwarded to the Claims  

12  (2003) 2 SCC 274

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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  

13  (2011) 10 SCC 634

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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 Parihar14, 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  14  (2011) 10 SCC 655

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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  

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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  

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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  

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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  

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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  

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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  

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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”  

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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  

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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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  

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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  

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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.”

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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  

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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  deceased)  (claim  foregone)

Compensation: 25,00,000  

AMRI Hospital Compensation: Rs.38,90,000 Cost of litigation: Rs.1,50,000

Dr. Balram Prasad Compensation: Rs.25,93,000 Cost of litigation: Rs.1,00,000

49. The  appellant-Dr.  Balram  Prasad  in  Civil  

Appeal  No.2867/2012  contends  that  he  was  the  

junior most attending physician attached to the  

Hospital, he was not called upon to prescribe  

medicines  but  was  only  required  to  continue  

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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.

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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  

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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  

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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”  

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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  

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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  

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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  &  Ors15,  wherein  this  Court  has  

15 (1995) 6 SCC 651

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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  

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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  

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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.  & Ors17,  Raj Rani & Ors  Vs. Oriental Insurance  Company Ltd. & Ors18., Laxman @ Laxman Mourya  Vs.  16  (2009) 13 SCC 710 17  (1995) 1 SCC 551 18  (2009) 13 SCC 654

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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  

19 (2011) 10 SCC 756

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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  

20  (2010) 10 SCC 254

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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 Insurance23, 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.

21   (2011) 1 SCC 343 22    (2011)   10 SCC 683 23    (2011)  13 SCC 236 24    (2012)   8 SCC 604

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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  

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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  

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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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  Institute25 and  in  Malay  Kumar  Ganguly’s  case  (supra)  wherein  this  Court  has  categorically  

stated that the aforesaid principle in  Savita  25 (2004) 8 SCC 56

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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  

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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 Hospital26.

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. 26 (2002) 7 SCC 668

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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  Ahluwalia27,  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).

27 (1998) 4 SCC 39

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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  

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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  

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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.

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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  

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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  

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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  

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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  Prods29 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  

28  (2009)  7 SCC 372 29 511 U.S. 244, 1994 30  (2009)  5 SCC 212

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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.  Epstein31 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  

31 536 S.E. 2d 408 2000

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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 al32. 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  32 781 N.E. 2d, 2002

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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  

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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  

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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  

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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 70 years     Rs.9,25,00,000/-

2 Loss  of  US  Social  Security  income up  to 82 years

Rs.1,44,00,000/-

3 Paid  for  treatment  at  AMRI/Breach Candy Hospital      

Rs.12,00,000/-

4 Paid  for  chartered  flight  to  transfer Anuradha

Rs. 9,00,000/-

5 Travel/hotel/other  expenses  during Anuradha’s  treatment in  Mumbai/ Kolkata in 1998

Rs. 7,00,000/-

6 Paid  for  court  proceedings  including video conferencing  from U.S.A.

Rs.11,57,000/-

B  Cost associated with Anuradha’s husband, Dr. Kunal  Saha 1 Loss of  income for missed work Rs.1,12,50,000/-

2 Travel expenses over the past  12 years

Rs.70,00,000/-

C  Legal expenses      

1 Advocate fees Rs.1,50,00,000/-

2 other legal expenses Rs.15,00,000/- Total pecuniary damages   Rs.34,56,07,000/-  Non-Pecuniary Special Damages

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1 Loss of companionship and life  amenities

Rs.13,50,00,000/-

2 Emotional  distress,  pain  and  suffering for husband

Rs.50,00,000/-

3 Pain/suffering  endured  by  the  victim during therapy

Rs.4,50,00,000/-

Total non pecuniary damages          Rs.31,50,00,000/-

D PUNITIVE/EXEMPLARY DAMAGES Rs.13,50,00,000/- E SPECIAL DAMAGES Rs.18,00,00,000/-   Total                              Rs.97,56,07,000/-

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?

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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?  

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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  

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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

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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:

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“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.  

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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  

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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  

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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,  

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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  

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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  

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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  

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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.  

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      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.

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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  

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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  

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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  

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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:

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“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  

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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  

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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’  

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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  

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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.”

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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  

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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:

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“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.

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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  

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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  

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‘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  

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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  

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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  

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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  

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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  Ahluwalia33, 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.  

33 (1998) 4 SCC 39

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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  

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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:

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“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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.  

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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  

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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  

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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  

34 [1979] A.C. 556

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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.”

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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,  

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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:

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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  

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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  

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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.

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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:  

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“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.)”

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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. …”

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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  

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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  

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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.  

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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  

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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  

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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”

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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.

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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.

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(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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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:

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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  

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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  

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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  

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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  

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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  

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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  

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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  

[$40,000+(30/100x40,000$)-(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:-

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 (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:

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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  

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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,  

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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  Company35, 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  

35 (2010) 9 SCC 218

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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  

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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)

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“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.”

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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    195  recognized    that the contribution made by the wife to the  house is invaluable and cannot be computed in  terms  of  money.  The  gratuitous  services  rendered  by  the  wife  with  true  love  and  affection to the children and her husband and  managing  the  household  affairs  cannot  be  equated with the services rendered by others. A  wife/mother does not work by the clock. She is  in  the  constant  attendance  of  the  family  throughout  the  day  and  night  unless  she  is  employed  and  is  required  to  attend  the  employer’s work for particular hours. She takes  care of all the requirements of the husband and  children including cooking of food, washing of  clothes, etc. She teaches small children and  provides invaluable guidance to them for their  future life. A housekeeper or maidservant can  do the household work, such as cooking food,  washing clothes and utensils, keeping the house  clean, etc., but she can never be a substitute  for a wife/mother who renders selfless service  to her husband and children.

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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  

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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  

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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  

36 2013 (6) SCALE 563

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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  

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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,

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“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  

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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  

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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  

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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.

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 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 and Mumbai

Rs.7,00,000/-

Travel  and  Hotel  expenses at Mumbai

Rs.6,50,000/-

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  

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Mazdoor  Samity  Vs. State  of  West  Bengal37, 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,  37  (1996) 4 SCC 37

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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.

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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.

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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  

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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.                          [V. GOPALA GOWDA]

New Delhi, October 24, 2013.   

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