REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4619 OF 2019 (@ SLP(C) No. 34834 OF 2015)

NAND KISHORE PRASAD                                   …… APPELLANT

vs.

DR. MOHIB HAMIDI & OTHERS                            …...RESPONDENTS

J U D G M E N T

Hemant Gupta, J.   

The challenge in the present appeal is to an order passed by the National

Consumer Disputes Redressal Commission1 on 02.11.2015 whereby the original

Opposite Party No. 3 (Respondent No. 1 herein) was absolved of the damages of

Rs. 2,00,000/- imposed by State Consumer Disputes Redressal Commission2 vide

order dated 12.11.2014.  

2. Sanjay Kumar aged about 15 years, son of the Appellant complained of

abdominal pain, fever and haemorrhage in both eyes. Initially, the Appellant had

taken his son to a physician Dr. Arun Tiwari on 08.11.1995 who advised some

tests and medicines.  He was advised to consult with the specialist as well.  After

1 NCDRC 2 SCDRC

1

examining the blood report, Dr. Arun Tiwari referred the patient to the Kurji Holy

Family Hospital-original Opposite Party No. 1 on 10.11.1995. He was taken to the

Hospital at about 8.00 PM.  The recorded history of the patient is as under:  

“A 15 years old male patient is admitted in 3A-7 with the complaints of fever, pain abdomen and hemorrhage from both eyes since 5 days.”

3. The patient was operated upon on 11.11.1995 when the platelets count was

35000 per cubic millimeter (cu.mm) at about 11.15 AM.  Before the surgery, the

patient was transfused with two units of blood and after the surgery another two

units of  blood were transfused. Since the patient was bleeding and in spite of

packing of leakages, the relatives of the patient took discharge from the Kurji Holy

Family Hospital at about 2.00 PM on 13.11.1995. On the same date, the patient

was admitted to Patna Medical College and Hospital (PMCH) where the patient

died on 16.11.1995.  

4. In  consumer  complaint  under  the  Consumer  Protection  Act,  19863,  the

Appellant produced an affidavit of Dr. Hare Ram Singh, then posted in Jharkhand

State Assembly at Russian Hostel, Dhurwa, P.S. Jaganathpur, District Ranchi.  Dr.

Hare Ram Singh opined that Bleeding Time (BT) was 3’ 00” against normal value

of 2-4 seconds and Clotting Time (CT) was 5’ 00” against normal value of 3-6

seconds. The affidavit further states that there was a second test which shows that

the platelets decreased excessively and there were very few plasma cells present.

There  was  another  test  conducted  before  surgery,  showing  platelets  count  as

35000 per cu. mm. Dr. Hare Ram Singh was of the opinion that to operate the

patient with excessive low platelets count was the greatest blunder and clear case

of extreme negligence of doctors.  

3 1986 Act

2

5. The surgery was performed on 11.11.1995 at about 11.15 AM. The post-

operative note of the operating team reads as under:   

“Name(s) of Operation(s) : Exp.Lap. & Extraction of R.W.

Operative Findings: Numerous R.W. in the small gut with yellowish collection of fluid in the peritoneal cavity.

Procedure: The abdomen was opened by midline incision above and below the umbilicus.  The peritoneal cavity was found to contain yellowish fluid a small amount of which was collected and sent for c/s & biomedical examination. The small gut was found to contain many round worms. They were collected at  one place and extracted out  by making a nick in the gut.  The wound was closed in layers. A rubber  corrugated drain  was placed in  the peritoneal cavity.  The abdomen was closed in one layer by vieryl. skin was left open.”

6. Learned SCDRC found that the patient was haemophilic and not peritonitis

as diagnosed by the Respondents. However, since the platelets count was 35000

per cu.mm against normal range of 1.5 lakhs to 4 lakhs per cu. mm, the Operating

Surgeon was medically negligent in operating patient when the platelets count was

so low. Thus, the opposite party was found negligent in carrying out surgery. The

SCDRC awarded a sum of Rs. 4,00,000/- as compensation to be paid by the Kurji

Holy  Family  Hospital-Opposite  Party  No.1  and Rs.  2,00,000/-  by  the  Opposite

Party  No.3-Operating  Surgeon  with  6  percent  simple  interest,  apart  from  Rs.

32,000/- as expenditure incurred in medical treatment and the litigation costs of

Rs. 25,000/-.  In appeal by the Operating Surgeon, the amount of compensation

awarded against Operating Surgeon was set aside by NCDRC.  

7. The NCDRC though held the Opposite Party No. 3 wee bit negligent but, it

found that the amount of compensation awarded by the SCDRC and paid by the

3

Kurji Holy Family Hospital is just a proper compensation. The Operating Surgeon

was warned to be careful in future.

8. The argument of the learned counsel for the Appellant is that it is a case of

sheer medical negligence in operating the son of the Appellant even though he

had low platelet count as 35000 cu.mm as against normal platelet count of 1.5

lakhs cu.mm to 4 lakhs cu. mm.

9. On the other hand, learned counsel for the Respondents argued that when

the patient was admitted on 10.11.1995, there was haemorrhage in both eyes for

the last five days. After admission as per the affidavit of Dr. Hare Ram Singh, the

first BT and CT test were done at about 8.55 pm (pg. 23 of paper book) which was

quite low. The second test which was higher than the normal bleeding and clotting

time was conducted at 7.30 AM on 11.11.1995 (pg. 24 of paper book). Another test

was conducted at 9.00 AM on 11.11.1995 (pg. 25 of paper book). The last test

before the surgery was conducted at 10.30 AM.

10. It  is  thus, contended that  the patient  was in difficult  and critical  medical

condition.  Therefore,  the  option  with  the  Surgeon  was  to  try  to  save  life  by

removing the round worms and transfuse blood to facilitate recovery of the patient.

It was bona fide decision taken by the Operating Surgeon in the situation in which

the patient was. Therefore, performing of surgery on 11.11.1995 at 11.15 AM is not

a case of medical negligence.

11. It  is  contented that the affidavit  of  Dr.  Hare Ram Singh is  in respect  of

reports immediately before the surgery but  there is no report  in respect of  the

medical  condition of  the patient  at  the time of  his  admission to  the Kurji  Holy

Family Hospital. Therefore, the affidavit of Dr. Hare Ram Singh is not the complete

evidence as without reporting about  the condition of  the patient  at  the time of

4

admission,  it  is  not possible for  another  doctor  to report  whether  the action of

Operating Surgeon was negligent or not.

12. At the time of admission, the recorded history of the patient is complaint of

pain in abdomen,  fever  and haemorrhage in both eyes for  the past  five days.

However, there is no evidence of critical condition of the patient to be operated

upon even with low platelet count.  The surgery to remove round worms is not

proved to  be  of  immediate  necessity  to  save life  of  a  patient  who had critical

platelet count. In the absence of any evidence that the surgery was the only life

saving option available at that time, the action to operate upon the patient cannot

be said to be prudent decision. This Court recently in Arun Kumar Manglik v.

Chirayu Medical Health and Medicare Private Ltd.4 held as under:-

“53.   In the practice of medicine, there could be varying approaches  to  treatment.  There  can  be  a  genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not  unreasonable.  The  threshold  to  prove unreasonableness  is  set  with  due  regard  to  the  risks associated  with  medical  treatment  and  the  conditions under  which  medical  professionals  function.  This  is  to avoid  a  situation  where  doctors  resort  to  ‘defensive medicine’  to  avoid  claims  of  negligence,  often  to  the detriment of the patient. Hence, in a specific case where unreasonableness  in  professional  conduct  has  been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.”  

13. In fact, this Court in  Kusum Sharma and Others v. Batra Hospital and

Medical Research Centre and Others5,  held that the “Doctors in complicated

cases have to take chance even if the rate of survival is low. The professional

should be held liable for his act or omission, if negligent; is to make life safer and

to  eliminate  the  possibility  of  recurrence  of  negligence  in  future”.  But,  in  the

4 2019 SCC OnLine SC 197 5 (2010) 3 SCC 480

5

absence of any evidence that the surgery was the only option even with low blood

platelets, the finding of negligence of the operating surgeon cannot be ignored.

14. Thus, we find that it is a case of unreasonable decision of the Operating

Surgeon to operate and not a case of “bit negligent” so as to absolve the surgeon

from the allegation of medical negligence. Consequently, the finding of NCDRC to

that extent is set aside.

15. In  respect  of  amount  of  compensation,  the  NCDRC  held  that  sum  of

Rs.4,00,000/- awarded by the SCDRC against the Hospital is just compensation.

The appellant relies upon judgment of this court reported as V. Krishnakumar v.

State of Tamil Nadu and Others6 to claim enhanced amount of compensation. In

the said case of medical negligence at the time of delivery of a baby girl born to

middle class family, this Court held as under:-

“19. The principle of awarding compensation that can be safely relied on is restitutio in integrum. This principle has been recognised and relied on in Malay Kumar Ganguly v. Sukumar Mukherjee 7 and in Balram Prasad case8, in the following passage from the latter: (Malay Kumar Ganguly case, SCC p. 282, para 170)

“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 Co9)”

An  application  of  this  principle  is  that  the  aggrieved person should get that sum of money, which would put him  in  the  same  position  if  he  had  not  sustained  the wrong.  It  must  necessarily  result  in  compensating  the

6 (2015) 9 SCC 388 7 (2009) 9 SCC 221 8 (2014) 1 SCC 384 9 (1880) LR 5 AC 25 (HL)

6

aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that  he/she  would  have  to  incur  due  to  the  disability caused by the event.”

16. In  a Judgment of  this  Court  reported as National  Insurance Company

Limited  v.  Pranay  Sethi  and Others10,  a  Constitution  Bench   has  laid  down

parameters for the grant of compensation in respect of claims arising out of Motor

Vehicular accidents as just compensation has to be determined on the foundation

of fairness, reasonableness and equitability on acceptable legal standard because

such determination can never be in  arithmetical  exactitude.  The Court  held as

under:-

“55. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable  legal  standard  because  such  determination can never be in arithmetical exactitude. It  can never be perfect.  The aim is to achieve an acceptable degree of proximity  to  arithmetical  precision  on  the  basis  of materials  brought  on  record  in  an  individual  case.  The conception  of  "just  compensation"  has  to  be  viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology  for  compensation.  It  cannot  be  a  pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by  the  expression,  that  is,  "just  compensation".  The determination  has to  be on the foundation  of  evidence brought on record as regards the age and income of the deceased  and  thereafter  the  apposite  multiplier  to  be applied. The formula relating to multiplier has been clearly stated  in  Sarla  Verma11 and  it  has  been  approved  in Reshma Kumari12. The age and income, as stated earlier, have  to  be  established  by  adducing  evidence.  The tribunal and the courts have to bear in mind that the basic principle  lies  in  pragmatic  computation  which  is  in

10 (2017) 16 SCC 680 11 (2009) 6 SCC 121 12 (2013) 9 SCC 65

7

proximity to reality. It is a well-accepted norm that money cannot substitute a life lost but an effort has to be made for  grant  of  just  compensation  having  uniformity  of approach.  There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal  and  the  courts  is  difficult  and  hence,  an endeavour  has  been  made  by  this  Court  for standardisation  which  in  its  ambit  includes  addition  of future prospects on the proven income at present. As far as  future  prospects  are  concerned,  there  has  been standardisation keeping in view the principle of certainty, stability  and  consistency.  We  approve  the  principle  of "standardisation"  so  that  a  specific  and  certain multiplicand is  determined for  applying the multiplier  on the basis of age.”

17. Thus, the compensation has to be calculated on the basis of twin criteria of

age and income. But in the absence of income of the father or family, there is no

legally acceptable norm available on record for the enhancement of compensation.

18. The SCDRC has awarded a sum Rs.4,00,000/- as compensation payable

by the Hospital and Rs.2,00,000/- by the Operating Surgeon. The NCDRC found a

sum of Rs. 4,00,000/- as just compensation and absolved the Operating Surgeon

from any liability.   When the SCDRC has awarded a sum of Rs. 6,00,000/- as

compensation,  the  NCDRC  should  not  have  interfered  with  the  amount  of

compensation but could apportion the amount of  compensation payable by the

Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of

compensation  is  vicarious  as  the  death  has  occurred  during  the  course  of

employment of Operating Surgeon with the said Hospital.

19. Therefore, we find that the entire amount of Rs.6,00,000/- is payable by the

Hospital which would be just compensation in the facts and circumstances of the

present case. The enhanced amount of compensation of Rs.2,00,000/- shall be

8

paid by the Hospital along with interest at the rate of 6% per annum from the date

of the order passed by SCDRC on 12.11.2014.  

20. Thus, the appeal is partly allowed in the manner mentioned above.  

...……………………………….…….J.      (Dr. Dhananjaya Y. Chandrachud.)

……………………………………….J. (Hemant Gupta)

New Delhi May 10, 2019.

9