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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL No. 8065    OF 2009   

V. KRISHNAKUMAR          .. APPELLANT

VERSUS

STATE OF TAMIL NADU & ORS.          ..RESPONDENTS

With

CIVIL  APPEAL No.  5402   OF 2010

JUDGMENT

S. A. BOBDE, J.

These  two  Civil  Appeals  are  preferred  against  the

judgment of National Consumer Disputes Redressal Commission

(hereinafter referred to as the ‘NCDRC’) rendering a finding of

medical  negligence  against  the  State  of  Tamil  Nadu,  its

Government  Hospital  and  two  Government  Doctors  and

awarding  a  sum of  Rs.5,00,000/-  to  V. Krishnakumar.  Civil

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Appeal No. 8065 of 2009 is preferred by V. Krishnakumar for

enhancement of the amount of compensation.  Civil Appeal No.

5402  of  2010  is  preferred  by  the  State  of  Tamil  Nadu  and

another against the judgment of the NCDRC.  As facts of both

the appeals  are  same,  we are  disposing the appeals  by this

common judgment.

2. On  30.8.1996,  the  appellant  V.  Krishankumar's  wife

Laxmi  was  admitted  in  Government  Hospital  for  Women and

Children,  Egmore,  Chennai  (hereinafter  referred  to  as  the

“Hospital”).  Against  the  normal  gestation  period  of  38  to  40

weeks, she delivered a premature female baby in the 29th week

of pregnancy.  The baby weighed only 1250 grams at birth. The

infant was placed in an incubator in intensive care unit for about

25  days.   The  mother  and  the  baby  were  discharged  on

23.9.1996.  A fact which is relevant to the issue is, that the

baby was administered 90-100% oxygen at the time of birth

and underwent blood exchange transfusion a week after birth.

The baby had apneic spells during the first 10 days of her life.

She was under  the care of  Respondent  No.3 -  Dr. S.Gopaul,

Neo-paediatrician and Chief of Neo Natology Unit of the Hospital

and Respondent  No.4 -  Dr. Duraiswamy of  the  Neo Natology

Unit of the Hospital.  The Respondent No.2 is the Director of the

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Hospital, which is established and run by the Respondent No.1 –

State of Tamil Nadu under the Department of Health.

3. The  baby  and  the  mother  visited  the  hospital  on

30.10.1996  at  the  chronological  age  of  9  weeks.  Follow  up

treatment was administered at the home of the appellant by

Respondent  No.4,  the  Government  Doctor,  Dr.  Duraiswamy

during home visits.  The baby was under his care from 4 weeks

to 13 weeks of chronological age. Apparently, the only advice

given by Respondent No.4 was to keep the baby isolated and

confined to the four walls of the sterile room so that she could

be protected from infection.  What was completely overlooked

was a well known medical phenomenon that a premature baby

who has been administered supplemental oxygen and has been

given blood transfusion is prone to a higher risk of a disease

known as the Retinopathy of Prematurity (hereinafter referred

to as ‘ROP’), which, in the usual course of advancement makes

a child blind. The Respondent No.3, who was also a Government

Doctor,  checked  up  the  baby  at  his  private  clinic  at

Purassaiwakkam, Chennai when the baby was 14-15 weeks of

chronological age also did not suggest a check up for ROP.  

4. One thing is clear about the disease, and this was not

contested by the learned counsel for the respondents, that the

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disease occurs in  infants who are prematurely born and who

have  been  administered  oxygen  and  blood  transfusion  upon

birth  and  further,  that  if  detected  early  enough,  it  can  be

prevented.   It  is  said  that  prematurity  is  one  of  the  most

common  causes  of  blindness  and  is  caused  by  an  initial

constriction and then rapid growth of blood vessels in the retina.

When the blood vessels leak, they cause scarring. These scars

can later shrink and pull on the retina, sometimes detaching it.

The disease advances in severity through five stages - 1, 2, 3, 4

and 5 (5 being terminal stage).  Medical literature suggests that

stage 3 can be treated by Laser or Cryotherapy treatment in

order to eliminate the abnormal vessels.  Even in stage 4, in

some cases, the central retina or macula remains intact thereby

keeping intact the central vision. When the disease is allowed to

progress to stage 5, there is a total detachment and the retina

becomes funnel  shaped leading  to  blindness.  There  is  ample

medical literature on the subject. It is, however, not necessary

to refer all of it. Some material relevant to the need for check

up for ROP for an infant is:  

“All infants with a birth weight less than 1500 gms or gestational age less than 32 weeks are required to be screened for ROP.”1

1 AIIMS Report dated 21.8.2007

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Applying either parameter, whether weight or gestational

age, the child ought to have been screened.  As stated earlier,

the child was 1250 gms at birth and born after  29 weeks of

pregnancy, thus making her a high risk candidate for ROP.

5. It is undisputed that the relationship of birth weight and

gestational age to ROP as reproduced in NCDRC’s order is as

follows:  

“Most ROP is seen in very low-birth weight infants, and the incidence  is  inversely  related  to  birth  weight  and gestational age. About 70-80% of infants with birth weight less than 1000 gms show acute changes, whereas above 1500  gms  birth  weight  the  frequency  falls  to  less  than 10%.”

6. Again, it seems that the child in question was clearly

not in the category where the frequency was less than 10%

since the baby was below 1500 gms. In fact, it is observed by

the NCDRC in its order that the  discipline of medicine reveals

that  all  infants  who  had  undergone  less  than  29  weeks  of

gestation  or  weigh  less  than 1300  gms should  be  examined

regardless of whether they have been administered oxygen or

not.  It  is  further  observed that ROP is  a visually devastative

disease that often can be treated successfully if it is diagnosed

in time.  

7. The  need  for  a  medical  check  up  for  the  infant  in

question was not seriously disputed by the respondents.

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8. The main defence of the respondents to the complaint

of  negligence  against  the  appellant’s  claim for  compensation

was  that  at  the  time  of  delivery  and  management,  no

deformities  were  manifested  and  the  complainant  was  given

proper advice, which was not followed. It was argued on behalf

of  the respondent that they had taken sufficient precautions,

even against ROP by mentioning in the discharge summary as

follows:  

“Mother  confident;  Informed about alarm signs;  1)  to continue breast feeding 2) To attend post natal O.P. on Tuesday."

9. It must, however, be noted that the discharge summary

shows that the above writing was in the nature of a scrawl in

the corner of the discharge summary and we are in agreement

with the finding of the NCDRC that the said remarks are only a

hastily written general warning and nothing more.  After a stay

of 25 days in the hospital, it was for the hospital to give a clear

indication  as  to  what  was  to  be  done  regarding  all  possible

dangers  which  a  baby  in  these  circumstances  faces.   It  is

obvious that it did not occur to the respondents to advise the

appellant that the baby is required to be seen by a paediatric

ophthalmologist since there was a possibility of occurrence of

ROP  to  avert  permanent  blindness.  This  discharge  summary

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neither  discloses  a  warning  to  the  infant’s  parents  that  the

infant  might  develop  ROP  against  which  certain  precautions

must be taken, nor any signs that the Doctors were themselves

cautious of the dangers of development of ROP.  We are not

prepared to infer from ‘Informed about alarms signs’ that the

parents  were  cautioned  about  ROP  in  this  case.   We find  it

unfortunate that the respondents at one stage took a stand that

the appellant did not follow up properly by not attending on a

Tuesday but claiming that the mother attended on a Wednesday

and even contesting the fact that she attended on a Wednesday.

It  appears  like  a  desperate  attempt  to  cover  up  the  gross

negligence  in  not  examining  the  child  for  the  onset  of  ROP,

which is  a standard precaution for a well  known condition in

such a case.  In fact,  it is  not disputed that the Respondent

No.3 attended to and examined the baby at his private clinic

when the baby was 14-15 weeks and even then did not take

any step to investigate into the onset of ROP.  The Respondent

No.4  also  visited  the  appellant  to  check  up  the baby at  the

home of the appellant and there are prescriptions issued by the

said Respondent No.4, which suggests that the baby was indeed

under his care from 4 weeks to 13 weeks.       

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10. The NCDRC has relied on the report dated 21.8.2007 of

the  All  India  Institute  of  Medical  Sciences,  New  Delhi

(hereinafter referred to as ‘AIIMS’).  In pursuance of the order

of  the  NCDRC,  a  medical  board  was  constituted  by  AIIMS

consisting of five members, of which, four are ophthalmological

specialists. The board has given the following opinion:-

"A  premature  infant  is  not  born  with  Retinopathy  of Prematurity (ROP), the retina though immature is normal for this age. The ROP usually starts developing 2-4 weeks after birth when it is mandatory to do the first screening of the child. The current guidelines are to examine and screen  the  babies  with  birth  weight<1500g  and  <32 weeks  gestational  age,  starting  at  31  weeks post-conceptional  age  (PAC)  or  4  weeks  after  birth whichever is later. Around a decade ago, the guidelines in general  were the same and the premature babies were first examined at 31-33 weeks post-conceptional age or 2-6 weeks after birth. There is a general agreement on these above guidelines on  a  national  and  international  level.  The  attached annexure  explains  some  authoritative  resources  and guidelines  published  in  national  and  international literature especially over the last decade. However,  in  spite  of  ongoing  interest  world  over  in screening  and  management  of  ROP  and  advancing knowledge,  it  may  not  be  possible  to  exactly  predict which  premature  baby  will  develop  ROP  and  to  what extent and why."

Review of literature of ROP screening guidelines

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One thing  this  report  reveals  clearly  and  that  is  that  in  the

present case the onset of ROP was reasonably foreseeable.  We

say this  because it  is  well  known that  if  a  particular  danger

9

Year Source First

Screening

Who  to

screen 2006 American

Academy  of

Pediatrics et al.

31 wks PCA or 4

wks  after  birth

whichever later

<1500gms  birth

weight  or  <32

wks  GA  or

higher 2003 Jalali  S  et  al.

Indian  J

Ophthalmology

31  wks  PCA  or

3-4  wks  after

birth  whichever

earlier

<1500g  birth

weight  or  <32

wks  GA  or

higher 2003 Azad et al. JIMA 32  wks  PCA  or

4-5  wks  after

birth-  whichever

earlier

<1500g  birth

weight  or  <32

wks  GA  or

higher 2002 Aggarwal  R  et.

Al  Indian  J.

Pediatrics

32  wks  PCA  or

4-6  wks  after

birth  whichever

earlier

<1500 gm birth

weight  or  <32

wks GA

1997 American

Academy  of

Paediatrics et al.

31-33  wks  PCA

or 4-6 wks after

birth

<1500 gm birth

weight  or  <28

wks  GA  or

higher 1996 Maheshwari R et

al. National Med.

J. India

32 wks PCA or 2

wks  after  birth

whichever  is

earlier

<1500 gm birth

weight  or  <35

wks  GA  or

02>24 hrs 1988 Cryotherapy

ROP Group

4-6  wks  after

birth

<1250 gms birth

weight

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could not reasonably have been anticipated it  cannot be said

that a person has acted negligently, because a reasonable man

does not take precautions against unforeseeable circumstances.

Though it was fairly suggested to the contrary on behalf of the

respondents, there is nothing to indicate that the disease of ROP

and its occurrence was not known to the medical profession in

the  year  1996.   This  is  important  because  whether  the

consequences were foreseeable or not must be measured with

reference to knowledge at the date of the alleged negligence,

not  with  hindsight.   We are  thus  satisfied  that  we  are  not

looking at the 1996 accident with 2007 spectacles.2  

11. It is obvious from the report that ROP starts developing

2 to 4 weeks after birth when it is mandatory to do the first

screening of the child. The baby in question was admitted for a

period of 25 days and there was no reason why the mandatory

screening, which is an accepted practice, was not done.  The

report of the AIIMS (supra) states that ‘it may not be possible

to exactly predict which premature baby will develop ROP and to

what extent and why’.  This in our view underscores the need

for a check up in all such cases.  In fact, the screening was

never done. There is no evidence whatsoever to suggest to the

2  See Roe v. Minister of Health [1954] 2 QB 66 and the discussion in ‘Medical Negligence’, Michael  Jones,  4th Edition,  Sweet  & Maxwell,  London 2008 at page 270.

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contrary.   It  appears  from  the  evidence that  the  ROP  was

discovered when the appellant went to Mumbai for a personal

matter  and  took  his  daughter  to  a  paediatrician,  Dr.  Rajiv

Khamdar for giving DPT shots when she was 4½ months.  That

Doctor, suspected ROP on an examination with naked eye even

without knowing the baby’s history. But, obviously Respondent

Nos.3 and 4 the Doctors entrusted with the care of the child did

not detect any such thing at any time.  The helpless parents,

after detection got the baby’s eyes checked by having the baby

examined by several doctors at several places.  Traumatised and

shocked, they rushed to Puttaparthy for the blessings of Shri

Satya Sai Baba and the baby was anesthetically examined by

Dr. Deepak Khosla, Consultant, Department of Ophthalmology

at Baba Super Specialty Hospital at Puttaparthy. Dr. Khosla did

not take up the case since the ROP had reached stage 5.  After

coming back from Puttaparthy, the baby was examined by Dr.

Tarun Sharma alongwith the retinal team of Shankar Netralaya,

who were also of the same opinion. The parents apparently took

the  baby  to  Dr.  Namperumal  Swamy  of  Arvind  Hospital,

Madurai, who advised against surgery, stating that the baby’s

condition  was  unfavourable  for  surgery.  The  appellant  then

learnt of Dr. Michael Tresse, a renowned expert in Retinopathy

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treatment  for  babies  in the  United  States.  He  obtained  a

reference from Dr. Badrinath, chief  of Shankar Netralaya and

took his only child to the United States hoping for some ray of

light.  The appellant incurred enormous expenses for surgery in

the United States but to no avail.  

12. Having given our anxious consideration to the matter,

we  find  that  no  fault  can  be  found with  the  findings  of  the

NCDRC which has given an unequivocal finding that at no stage,

the  appellant  was  warned  or  told  about  the  possibility  of

occurrence of ROP by the respondents even though it was their

duty  to  do  so.  Neither  did  they  explain  anywhere  in  their

affidavit that they warned of the possibility of the occurrence of

ROP  knowing  fully  well  that  the  chances  of  such  occurrence

existed and that this constituted a gross deficiency in service,

nor did they refer to a paediatric ophthalmologist.  Further it

may be noted that Respondent Nos. 3 & 4 have not appealed to

this Court against the judgment of the NCDRC and have thus

accepted the finding of medical negligence against them.

Deficiency in Service

13. In the circumstances, we agree with the findings of the

NCDRC that the respondents were negligent in their duty and

were  deficient  in  their  services  in  not  screening  the  child

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between 2 to 4 weeks after birth when it is mandatory to do so

and especially since the child was under their care. Thus, the

negligence  began  under  the  supervision  of  the  Hospital  i.e.

Respondent No.2. The Respondent Nos. 3 and 4, who checked

the  baby  at  his  private  clinic  and  at  the  appellant’s  home,

respectively, were also negligent in not advising screening for

ROP. It  is  pertinent  to  note  that  Respondent  Nos.  3  and  4

carried  on  their  own  private  practice  while  being  in  the

employment of Respondent No. 2, which was a violation of their

terms of service.

Compensation  

14. The  next  question  that  falls  for  consideration  is  the

compensation which the respondents are liable to pay for their

negligence and deficiency in service.  The child called Sharanya

has been rendered blind for life.  The darkness in her life can

never be really compensated for in money terms. Blindness can

have  terrible  consequences.  Though,  Sharanya  may  have

parents  now,  there  is  no  doubt  that  she  will  not  have  that

protection and care forever.  The family belongs to the middle

class and it is necessary for the father to attend to his work.

Undoubtedly, the mother would not be able to take Sharanya

out  everywhere  and  is  bound  to  leave  the  child  alone  for

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reasonable spells of time. During this time, it is obvious that she

would require help and maybe later on in life she would have to

totally  rely  on  such  help.  It  is  therefore  difficult  to  imagine

unhindered marriage prospects or even a regular career which

she may have otherwise pursued with ease.  She may also face

great difficulties in getting education. The parents have already

incurred heavy expenditure on the treatment of Sharanya to no

avail.   It  is,  thus,  obvious  that  there  should  be  adequate

compensation for the expenses already incurred, the pain and

suffering,  lost  wages  and  the  future  care  that  would  be

necessary while accounting for inflationary trends.

15. There is  no doubt that in the future Sharanya would

require further medical attention and would have to incur costs

on medicines and possible surgery.  It can be reasonably said

that the blindness has put Sharanya at a great disadvantage in

her pursuit for making a good living to care for herself.  

16. At the outset, it may be noted that in such cases, this

court has ruled out the computation of compensation according

to the multiplier method. (See  Balram Prasad vs.  Kunal Saha,

(2014) 1 SCC 384 and Nizam’s Institute of Medical Sciences vs.

Prashant S. Dhananka and Others, (2009) 6 SCC 1.

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The court rightly warned against the straightjacket approach of

using the multiplier method for calculating damages in medical

negligence cases.

Quantification of Compensation

17. The  principle  of  awarding  compensation  that  can  be

safely relied on is restitutio in integrum.  This principle has been

recognized and relied on in Malay Kumar Ganguly vs. Sukumar

Mukherjee,  (2009)  9  SCC  221  and  in  Balram  Prasad’s case

(supra), in the following passage from the latter:

“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.).”

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 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.  

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Past Medical Expenses

18. It  is,  therefore,  necessary to  consider  the loss which

Sharanya and her  parents  had to suffer  and also to make a

suitable provision for Sharanya’s future.  

19. The appellant -  V. Krishnakumar, Sharanya’s father is

the sole earning member of a middle class family.  His wife is

said  to  be  a  qualified  accountant,  who  had  to  sacrifice  her

career to attend to the constant needs of Sharanya.  Sharanya’s

treatment and the litigation that ensued for almost two decades

has  been  very  burdensome  on  account  of  the  prolonged

physical, mental and financial hardships, which her parents had

to undergo.  It appears that the total expenditure incurred by

the appellant from the date of the final verdict of the NCDRC

(27.5.2009)  until  December,  2013  is  Rs.8,13,240/-.   The

aforesaid amount is taken from the uncontroverted statement of

expenditure  submitted  by  the  appellant.  The  appellant  has

stated  that  he  had  incurred  the  following  expenditure  for

Sharanya’s treatment, for which there is no effective counter, till

December, 2013:

Medical Expenses  

Amount Supporting Document

a)Till  December 2003  

28,63,771/- Exhibit P1-P4

b)January  2004- 2,57,600/- Annexure A-8

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October   2007 c)27.5.2009  to December 2013

8,13,240/- I.A. No.2 of 2014 in Civil  Appeal  No.  8065 of 2009

d)January 2014 – March 2015  

2,03,310/- Based  on  I.A.  No.2  of 2014  in  Civil  Appeal No. 8065 of 2009  

Total  (a)+(b)+(c) +(d)       

41,37,921/-

20. Since there is no reason to assume that there has been

any  change  in  the  expenditure,  we  have  calculated  the

expenditure from January 2014 to March 2015 at the same rate

as the preceding period.  In addition, we also deem it fit  to

award a sum of Rs. 1,50,000/- in lieu of the financial hardship

undergone particularly by Sharanya’s mother, who became her

primary caregiver and was thus prevented from pursuing her

own career. In  Spring Meadows Hospital and Another  v. Harjol

Ahluwalia [1998  4  SCC  39]  this  court  acknowledged  the

importance of granting compensation to the parents of a victim

of medical negligence in lieu of their acute mental agony and

the lifelong care and attention they would have to give to the

child. This being so, the financial hardship faced by the parents,

in terms of lost wages and time must also be recognized. Thus,

the above expenditure must be allowed.

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21. We  accordingly  direct  that  the  above  amount  i.e.

Rs.42,87,921/- shall be paid by the Respondent Nos.1 to 4.  In

addition, interest at the rate of 6% p.a. shall  be paid to the

appellant  from  the  date  of  filing  of  the  petition  before  the

NCDRC till the date of payment.

Future Medical Expenses   

22. Going by the uncontroverted statement of expenditure

for the period from the final verdict of the NCDRC to December,

2013,  the monthly  expenditure is  stated to be Rs.  13,554/-,

resulting in an annual  expenditure of  Rs.  1,62,648/-.  Having

perused  the  various  heads  of  expenditure  very  carefully, we

observe that the medical costs for Sharanya’s treatment will not

remain static, but are likely to rise substantially in the future

years. Sharanya’s present age is about 18 ½ years.  If her life

expectancy is taken to be about 70 years, for the next 51 years,

the amount of expenditure, at the same rate will work out to Rs.

82,95,048/-.  It  is  therefore  imperative  that  we  account  for

inflation  to  ensure  that  the  present  value  of  compensation

awarded for future medical costs is not unduly diluted, for no

fault of the victim of negligence. The impact of inflation affects

us all. The value of today’s rupee should be determined in the

future. For instance, a sum of  Rs. 100 today, in fifteen years,

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given  a  modest  3%  inflation  rate,  would  be  worth  only

Rs.64.13. In  Wells  v. Wells3 the House of Lords observed that

the purpose of awarding a lump sum for damages for the costs

of future care and loss of future earnings was to put the plaintiff

in the same financial position as if the injury had not occurred,

and consequently the courts had the difficult task of ensuring

that the award maintained its value in real terms, despite the

effect of inflation.  

Apportioning For Inflation

23. Inflation over time certainly erodes the value of money.

The rate of inflation (Wholesale Price Index-Annual Variation) in

India presently is 2 percent4 as per the Reserve Bank of India.

The average inflationary rate between 1990-91 and 2014-15 is

6.76 percent as per data from the RBI. In the present case we

are of the view that this inflationary principle must be adopted

at a conservative rate of 1 percent per annum to keep in mind

fluctuations over the next 51 years.  

The  formula  to  compute  the  required  future  amount  is

calculated using the standard future value formula:-  

FV = PV x (1+r)n

PV = Present Value r = rate of return

3 [1999] 1 A.C. 345. 4 Handbook of Statistics, Reserve Bank of India

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n = time period

Accordingly, the amount arrived at with an annual inflation rate

of  1  percent  over  51  years  is  Rs.1,37,78,722.90  rounded to

Rs.1,38,00,000/-.  

Comparative law

24. This Court has referred to case law from a number of

other  major  common  law  jurisdictions  on  the  question  of

accounting for inflation in the computation of awards in medical

negligence cases. It is unnecessary to discuss it in detail. It is

sufficient  to  note  that  the  principle  of  apportioning  for

inflationary  fluctuations  in  the  final  lump  sum  award  for

damages  has  been  upheld  and  applied  in  numerous  cases

pertaining  to  medical  negligence.  In  the  United  States  of

America, most states, as in Ireland and the United Kingdom,

require awards for future medical costs to be reduced to their

present value so that the damages can be awarded in the form

of a one-time lump sum. The leading case in the United States,

which  acknowledges  the  impact  of  inflation  while  calculating

damages  for  medical  negligence  was Jones  & Laughlin  Steel

Corporation  v. Pfeifer5,  wherein  that  court  recognized  the

propriety of taking into account the factors of present value and

inflation  in  damage  awards.  Similarly, in  O'Shea  v  Riverway 5 (1983) 462 US 523

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Towing Co.6,  Posner J.,  acknowledged the problem of personal

injury victims being severely undercompensated as a result of

persistently high inflation.  

In  Taylor  v. O’ Connor7, Lord Reid accepted the importance of

apportioning for inflation:

“It  will  be  observed  that  I  have  more  than once taken note of present day conditions - in particular rising prices, rising remuneration and high rates of interest. I am well aware that there is a school of thought which holds that the law should refuse to have any  regard  to  inflation but  that  calculations should be based on stable prices, steady or slowly increasing rates of remuneration and low rates of interest. That must, I think, be based either on an expectation of an early return to a period of stability or on a nostalgic reluctance to recognise change. It appears to me that some people fear that inflation will get worse, some think that it will go on much as at present, some hope that it will be slowed down, but comparatively few believe that a return to the old  financial  stability  is  likely  in  the  foreseeable future.  To take any account of future inflation will no doubt cause complications and make estimates even  more  uncertain.  No  doubt  we     should  not assume the worst  but  it  would,  I  think,  be  quite unrealistic to refuse to take it into account at all.”

In the same case Lord Morris of Borth-y-Gest also upheld the

principle  of  taking  into  account  future  uncertainties.  He

observed:

“It  is  to  be  remembered  that  the  sum  which  is awarded will be a once-for-all or final amount which

6 (1982) 677 F.2d 1194, at 1199 (7th Cir) 7 [1971] A.C. 115

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the  widow  must  deploy  so  that  to  the  extent reasonably possible she gets the equivalent of what she has lost. A learned judge cannot be expected to prophesy as to future monetary trends or rates of interest  but he need not be unmindful of matters which  are  common  knowledge,  such  as  the uncertainties  as  to  future  rates  of  interest  and future levels of taxation. Taking a reasonable and realistic  and common-sense view of all  aspects of the  matter  he  must  try  to  fix  a  figure  which  is neither unfair to the recipient nor to the one who has to  pay.  A  learned  judge might  well  take  the view  that  a  recipient  would  be  ill-advised  if  he entirely  ignored  all  inflationary  trends  and  if  he applied  the  entire  sum  awarded  to  him  in  the purchase of an annuity which over a period of years would  give  him  a  fixed  and  predetermined  sum without any provision which protected him against inflationary trends if they developed.”

More recently the Judicial Committee of the UK Privy Council in

Simon v. Helmot8 has unequivocally acknowledged the principle,

that the lump sum awarded in medical negligence cases should

be adjusted so as to reflect the predicted rate of inflation.   

25. Accordingly,  we  direct  that  the  said  amount  i.e.

Rs.1,38,00,000/- shall be paid, in the form of a Fixed Deposit,

in the name of Sharanya. We are informed that the said amount

would yield an approximate annual interest of Rs. 12,00,000/-.  

26. We find from the impugned order of the NCDRC that the

compensation awarded by that Forum is directed to be paid only

by Respondent Nos. 1 and 3 i.e. the State of Tamil Nadu and Dr.

S. Gopaul, Neo-pediatrician, Government Hospital for Women & 8 [2012] UKPC 5

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Children, Egmore, Chennai.  No reason has been assigned by

the  Forum  for  relieving  Respondent  Nos.2  and  4.   Dr.

Duraiswami,  Neo  Natology  Unit,  Government  Hospital  for

Women  &  Children,  Egmore,  Chennai,  who  also  treated

Sharanya during the course of  his  visits  to the house of  the

appellant.  

27.  It is settled law that the hospital is vicariously liable for

the  acts  of  its  doctors  vide  Savita  Garg vs.  National  Heart

Institute,  (2004) 8 SCC 56,  also followed in  Balram Prasad’s

case (supra).  Similarly in  Achutrao Haribhau Khodwa v. State

of Maharashtra, (1996) 2 SCC 634 this court unequivocally held

that the state would be vicariously liable for the damages which

may become payable on account of negligence of its doctors or

other employees.  By the same measure, it  is  not possible to

absolve  Respondent  No.  1,  the  State  of  Tamil  Nadu,  which

establishes  and  administers  such  hospitals  through  its

Department of Health, from its liability.   

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Apportionment of Liability

28. In  the  circumstances,  we  consider  it  appropriate  to

apportion  the  liability  of  Rs.  1,38,00,000/-  among  the

respondents, as follows:

a)    Rs.  1,30,00,000/- shall be paid by Respondent Nos.

1 and 2 jointly and severally i.e. The State of Tamil Nadu and

the  Director,  Government  Hospital  for  Women  &  Children,

Egmore, Chennai; and

b)    Rs. 8,00,000/- shall be paid by Respondent Nos. 3

and  4  equally  i.e.  Rs.  4,00,000/-  by  Dr.  S.  Gopaul,  Neo-

pediatrician,  Government  Hospital  for  Women  &  Children,

Egmore, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e.

Dr. Duraisamy, Neo  Natology  Unit,   Government  Hospital  for

Women & Children, Egmore, Chennai.

The above mentioned amount of Rs. 1,38,00,000/- shall be paid

by Respondent Nos. 1 to 4 within three months from the date of

this  Judgment  otherwise  the  said  sum would  attract  a  penal

interest at the rate of  18% p.a.  

29. Further, we direct that the amount of Rs. 42,87,921/- in

lieu  of  past  medical  expenses,  shall  be  apportioned  in  the

following manner:

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a) Respondent  Nos.  1  and  2  are  directed  to  pay

Rs. 40,00,000/- jointly, alongwith interest @ 6% p.a. from the

date of filing before the NCDRC; and

b) Respondent  Nos.  3  and  4  are  directed  to  pay

Rs.  2,87,921/-  in  equal  proportion,  alongwith  interest  @ 6%

p.a. from the date of filing before the NCDRC.

30. In the event the Respondent Nos. 1 and 3 have made

any payment in accordance with the award of the NCDRC, the

same may be adjusted.

31. Accordingly, Civil Appeal No. 8065 of 2009 is allowed in

the  above  terms  and  Civil  Appeal  No.  5402  of  2010  is

dismissed. No costs.

..………………………….…..........…..J.                                                 [JAGDISH SINGH KHEHAR]

…...................................………J.                                          [S.A. BOBDE]

NEW DELHI,    JULY 1, 2015

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