TMI Blog2013 (10) TMI 1564X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in Original Petition No. 240 of 1999. 2. The Appellant-doctors are aggrieved by the quantum of compensation awarded by the National Commission and the liability fastened upon them for the negligence on their part and have prayed to set aside the same by allowing their appeals. In so far as the Appellant-AMRI Hospital is concerned, it has also questioned the quantum of compensation awarded and has prayed to reduce the same by awarding just and reasonable compensation by modifying the judgment by allowing its appeal. So far as the claimant is concerned, he is aggrieved by the said judgment and the compensation awarded which, according to him, is inadequate, as the same is contrary to the admitted facts and law laid down by this Court in catena of cases regarding awarding of compensation in relation to the proved medical negligence for the death of his wife Anuradha Saha (hereinafter referred to as the 'deceased'). 3. The brief relevant facts and the grounds urged on behalf of the Appellant-doctors, AMRI Hospital and the claimant in seriatim are adverted to in this common judgment for the purpose of examining the correctness of their respective legal contentions urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel that there is no averment in the petition of the claimant as to on what account the said payment was received by the deceased and whether she has received it as a Child Psychologist as claimed by the claimant or otherwise. 6. It is also the case of the Appellant-doctors and the Hospital that the claimant had not led any oral evidence with regard to the income of the deceased and further he has not explained why just a single document discloses the payment made sometime in the month of June 1988 in support of the income of the deceased when admittedly, the couple came to India in the month of March-April, 1998. Therefore, the learned Counsel for the Appellant-doctors and the Hospital have urged that the said document is a vague document and no reliance could have been placed by the National Commission on the same to come to the conclusion that the deceased in fact had such an income to determine and award the compensation as has been awarded in the impugned judgment and order. From a perusal of the said document, it could be ascertained that it shows just one time payment received for some odd jobs. Therefore, it is contended by the Appellant-doctors and the Hospital that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard nor has he produced the relevant statute from which the percentage of tax deduction can be ascertained. The claimant was last examined by video conferencing conducted under the supervision of Justice Lokeshwar Prasad (retired Judge of Delhi High Court) as local Commissioner. The AMRI Hospital-Appellant's witness Mr. Satyabrata Upadhyay was cross-examined by the claimant. 9. The claimant filed M.A. No. 1327 of 2009 before the National Commission after remand order was passed by this Court in the case of Malay Kumar Ganguly (supra). The claimant now claimed enhancement of compensation at Rs. 78,14,00,000/- under the heads of pecuniary damages and non-pecuniary damages. The prayer made in the application was to admit the claim for compensation along with supporting documents including the opinions of the foreign experts and further prayed for issuing direction to the Appellant-doctors and the Hospital to arrange for cross-examination of the foreign experts, if they wish, through video conferencing at their expenses as directed by this Court in the remand order in Malay Kumar Ganguly's case (supra) and for fixing the matter for a final hearing as soon as po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... band were filing joint return. Q.18. Did Anu have any individual income? A.18. I don't know. Q.19. Did Kunal Saha provide you the earning statement of Anuradha Saha, wherein her gross monthly pay was shown as $ 1060 as on 16.1.1998? A.19. I don't believe that I have that information. ... Q.21. What documents have you taken into consideration of Anu's income for giving your opinion? A.21. None. Q.22. Whether Anu was employed at the time of her death? A.22. I don't think so; I don't believe so. 11. The claimant on the other hand, had placed strong reliance upon the evidence of the Economics Expert Prof. John F. Burke to prove the income of the deceased as on the date of her death and actual income if she would have lived up to the age of 70 years as he had also examined Prof. John Broughton in justification of his claim. The learned Counsel for the Appellant-doctors contended that Prof. John F. Burke, who was examined through video conferencing in the presence of the Local Commissioner, has estimated the life time income of the deceased to be 5 million and 125 thousand US dollars without any supporting material. The said foreign ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 Co. Ltd. v. Jashuben and Ors. (supra) and R.K. Malik v. Kiran Pal (2009) 14 SCC 1, where this Court has not directed assessment of compensation according to American standard. Therefore, the contention of the claimant that compensation has to be assessed according to American standard is wholly untenable in law and the same is liable to be rejected. 16. Further, it is contended by the senior counsel and other counsel for the Appellant-doctors and Hospital that the reliance placed by the claimant upon the decision of this Court reported in Patricia Jean Mahajan's case (supra) clearly shows that the multiplier method applicable to claim cases in India was applied after taking note of contribution by the deceased for his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the National Commission by recording reasons. Therefore, this Court need not examine the claim again. On the use of multiplier method for determining compensation: 20. It is contended by the senior counsel and other counsel for the Appellants that the multiplier method has enabled the courts to bring about consistency in determining the loss of dependency more particularly, in cases of death of victims of negligence, it would be important for the courts to harmoniously construct the aforesaid two principles to determine the amount of compensation under the heads: expenses, special damages, pain and suffering. 21. In Sarla Verma's case (supra), this Court, at Paragraphs 13 to 19, held that the multiplier method is the proper and best method for computation of compensation as there will be uniformity and consistency in the decisions. The said view has been reaffirmed by this Court in Reshma Kumari and Ors. v. Madan Mohan and 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision-making process and the decisions. While it may not be possible to have mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. (Emphasis laid by this Court) 25. It was also contended by the learned Counsel for the Appellant-doctors that apart from accident cases under the Motor Vehicles Act, 1988, the multiplier method was followed in Lata Wadhwa and Ors. v. State of Bihar (2001) 8 SCC 197 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 and Anr. v. Deep Chand Sood and Ors. (2001) 8 SCC 151, the multiplier method was followed wherein school children were drowned due to negligence of school teachers. In the Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association and Ors. (2011) 14 SCC 481 the multiplier method was once again follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, it is submitted by Mr. Vijay Hansaria, the learned senior counsel on behalf of AMRI Hospital that though the claimant had filed an application on 9.11.2009 in M.A. No. 1327 of 2009 for additional claim; the said application was withdrawn by him on 9.2.2010. Therefore, his claim for enhancing compensation is not tenable in law. In support of the said contention, he has placed reliance upon the judgment of this Court in National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad (2011) 12 SCC 695, 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 v. Erasmo Jack de Sequeria (2012) 5 SCC 370, wherein this Court, at paragraph 61, has held that: in civil cases, pleadings are extremely important for ascertaining title and possession of the property in question. The said view of this Court was reiterated in A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandavana Paripalanai Sangam (2012) 6 SCC 430, 29. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Munnalal Parihar (2011) 10 SCC 655, which is a case under the Motor Vehicles Act, 1988. This Court enhanced the compensation following the judgment in Nagappa's case (supra). The learned Counsel also placed reliance upon the judgment of this Court in Nizam Institute's case (supra) where the complainant had made a claim of Rs. 7.50 crores. This Court enhanced the compensation from Rs. 15.50 lakhs to Rs. 1 crore. But, the Nizam Institute's case is not a case for the proposition that a claimant can be awarded compensation beyond what is claimed by him. On the other hand, it was a case of peculiar facts and circumstances since the claimant had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hospital during her stay which leads to cardiac arrest. Therefore, the National Commission ought to have considered different incidences as aforesaid leading to the death of the claimant's wife so as to correctly apportion the individual liability of the doctors and the AMRI Hospital in causing the death of the wife of the claimant. 36. Further, with regard to the liability of each of the doctors and the AMRI Hospital, individual submissions have been made which are presented hereunder: Civil Appeal No. 692/2012 37. It is the case of the Appellant-AMRI Hospital that the National Commission should have taken note of the fact that the deceased was initially examined by Dr. Sukumar Mukherjee and the alleged medical negligence resulting in the death of the deceased was due to his wrong medication (overdose of steroid). Therefore, the Hospital has little or minimal responsibility in this regard, particularly, when after admission of the deceased in the Hospital there was correct diagnosis and she was given best possible treatment. The National Commission erred in apportioning the liability on the Hospital to the extent of 25% of the total award. This Court in the earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 304A cannot be objectively determined. 41. It is further submitted by the learned Counsel for the Appellant- Dr. Sukumar Mukherjee that the wife of the claimant was suffering from rash/fever from April 1998, she was seen by the Appellant-Dr. Sukumar Mukhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 immune abnormalities. It is stated that the Appellant-Dr. Mukherjee did not examine the patient thereafter and as aforementioned, he left on a pre-arranged visit to U.S.A. for a medical conference. No fees were charged by the Appellant-Dr. Mukherjee. It is further submitted that before the Appellant-Dr. Mukherjee started the treatment of the deceased, Dr. Sanjoy Ghose on 6.5.1998 treated her and during the period of treatment of the Appellant-Dr. Mukherjee from 7.5.1998 to 11.5.1998, on 9.5.1998 Dr. Ashok Ghosal (Dermatologist) treated Anuradha Saha. These facts were not stated in the complaint petition and concealed by the claimant. To this aspect, even this Hon'ble Court has also recorded a finding in the case referred to supra that the patient was also examined by two consultant dermatologists Dr. A.K. Ghosal and Dr. S. Ghosh who diagnosed the disease to be a case of vasculitis. 43. It is further submitted by the learned Counsel for the Appellant-Dr. Mukh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresee consequences. It is further submitted that Breach Candy Hospital records show that the patient was hemodynamically stable. Even Dr. Udwadia of Breach Candy Hospital on 17.5.1998 doubted with regard to the exact disease and recorded the disease as TEN or Steven Johnson Syndrom. Therefore, the National Commission ought to have considered different incidences as aforesaid leading to the death of the claimant's wife and the quantum of damages shall have to be divided into five parts and only one part shall be attributed to the negligence of the Appellant-Dr. Mukherjee. Civil Appeal No. 2867 of 2012 45. It is the case of Dr. Balram Prasad-Appellant in Civil Appeal No. 2867 of 2012 that on 11.05.1998, Dr. Sukumar Mukherjee, before leaving for U.S.A., attended the patient at the AMRI Hospital at 2.15 p.m. and after examining the deceased, issued the second and last prescription on the aforesaid date without prescribing anything different but re-assured the patient that she would be fine in a few weeks' time and most confidently and strongly advised her to continue with the said injection for at least four more days. This was also recorded in the aforesaid last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore this Court in unequivocal terms that the bulk of the compensation awarded would have to be in the proportion of 80% on the AMRI Hospital, 15% on Dr. Sukumar Mukherjee and balance between the rest. Despite the aforesaid submission before the National Commission, the claimant claims that it has erred in awarding the proportion of the liability against each of the Appellant-doctors in a manner mentioned in the table which is provided hereunder: NAME OF THE PARTY AMOUNT TO BE PAID Dr. Sukumar Mukherjee Compensation : Rs.38,90,000 Cost of litigation:1,50,000 Dr. Baidyanath Haldar Compensation : Rs.25,93,000 Cost of litigation: Rs.1,00,000 Dr. Abani Roy Chowdhury (since 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 contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arguments made in support of the written submissions filed on behalf of the other doctors and AMRI Hospital by way of reply to the written submissions of the claimant. Further, he has submitted that the Appellant Dr. Baidyanath Haldar is about 80 years and is ailing with heart disease and no more in active practice. Therefore, he requested to set aside the liability of compensation awarded against him by allowing his appeal. All the doctors and the Hospital urged more or less the same grounds. Civil Appeal No. 2866 of 2012 53. This appeal has been filed by the claimant. It is the grievance of the claimant that the National Commission rejected more than 98% of the total original claim of Rs. 77.7 crores which was modified to Rs. 97.5 crores later on by adding special damages due to further economic loss, loss of employment, bankruptcy etc. suffered by the claimant in the course of 15-year long trial in relation to the proceedings in question before the National Commission and this Court. The National Commission eventually awarded compensation of only Rs. 1.3 crores after reducing from the total award of Rs. 1.72 crores on the ground that the claimant had interfered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, 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. and Anr. v. Parshuram Babaram Sawant [SLP (Civil) No(s) 29979/2011 decided on 14-11-2011], suggesting that in appropriate cases, seemingly large amount of compensation is justified. 57. The claimant further urged that this is the fundamental principle for awarding just compensation and this Court has categorically stated while remanding the case back to the National Commission that the principle of just compensation is based on restitutio in integrum , i.e. the claimant must receive the sum of money which would put him in the same position as he would have been if he had not sustained the wrong. It is further contended that the claimant had made a claim referred to supra under specific headings in great detail with justification for each of the heads. Unfortunately, despite referring to judicial notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the National Commission, especially, in view of the observations made by this Court in the case of Arvind Kumar Mishra v. New India Assurance Co. (2010) 10 SCC 254, wherein this Court has calculated quantum of compensation based on 'reasonable' assumption about prospective loss as to how much an Engineering student from BIT might have earned in future even in the absence of any expert's opinion (paragraphs 13,14). The principles of this case were followed in many other cases namely, Raj Kumar v. Ajay Kumar and Anr. (2011) 1 SCC 343, Govind Yadav v. New India Insurance Co. Ltd.: (2011) 10 SCC 683, Sri Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance (2011) 13 SCC 236, Ibrahim v. Raju and Ors. (supra), Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd. (supra) and Kavita v. Dipak and Ors.: (2012) 8 SCC 604 59. In view of the above said decisions of this Court, the prospective loss of income for the wrongful death of claimant's wife must be reasonably judged based on her future potential in the U.S.A. that has also been calculated scientifically by economic expert, Prof. John F. Burke. 60. It is further the case of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premature death would amount to 5 million and 125 thousand dollars . This loss of income was calculated after deduction of 1/3rd of the amount for her personal expenses. 1/3rd deduction of income for personal expenses has also been recommended in a judgment of this Court in the case of Sarla Verma (supra). Prof. Burke has also explained how he calculated the loss of income due to the premature death of Anuradha and further testified that his calculation for loss of Anuradha's income was a very conservative forecast and that to some other estimates, the damages for Anuradha's death could be 9 to 10 million dollars. While the loss of income would be multi million dollars as direct loss for wrongful death of Anuradha, it may appear as a fabulous amount in the context of India. This is undoubtedly an average and legitimate claim in the context of the instant case. And further, it may be noted that far bigger amounts of compensation are routinely awarded by the courts in medical negligence cases in the U.S.A. In this regard this Court also made very clear observation in Indian Medical Association v. V.P. Shanta and Ors. (supra), that to deny a legitimate claim or to restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... US $ 1,000,000/. This updated breakup of the total claim has been shown in the claim-table referred to in the later part of the judgment. The claimant respectfully submits that the National Commission should have considered this total claim in conjunction with the affidavit filed by him during the course of making final arguments. The National Commission also should have taken into consideration the legal principles laid down in the case of Nizam Institute (supra) wherein this Court allowed the claim of compensation which was substantially higher than the original claim that he initially filed in the court. Further, the National Commission ought to have taken into consideration the observations made in the remand order passed by this Court while determining the quantum of compensation and the legitimate expectation for the wrongful death of a patient 'after factoring in the position and stature of the doctors concerned as also the Hospital'. This Court also held in Malay Kumar Ganguly's case (supra) that AMRI is one of the best Hospitals in Calcutta, and that the doctors were the best doctors available. Therefore, the compensation in the instant case may be enhanced in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. v. V.P. Shanta and Ors. (supra), Spring Meadows Hospital and Anr. v. Harjol Ahluwalia (1998) 4 SCC 39, Charan Singh v. Healing Touch Hospital and Ors. (supra), J.J. Merchants and Ors. v. Srinath Chaturbedi (supra), Savita Garg v. Director National Heart Institute (supra), State of Punjab v. Shiv Ram and Ors. (supra), Samira Kohli v. Dr. Prabha Manchanda and Anr. (supra), P.G. Institute of Medical Sciences v. Jaspal Singh and Ors., (supra) Nizam Institute v. Prasant Dhananka (supra) Malay Kumar Ganguly v. Sukumar Mukherjee and Ors. (supra) and V. Kishan Rao v. Nikhil Superspeciality Hospital and Anr. (supra). 66. In fact, the National Commission or any other consumer court in India have never used the multiplier system to calculate adequate compensation for death or injury caused due to medical negligence except when the National Commission decided the claimant's case after it was remanded back by this Court. Reliance was placed upon Sarla Verma's case (supra) at paragraph 37, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gligent treatment by doctors and AMRI Hospital but the National Commission had made a paltry award equivalent to $ 20,000 for the enormous and life-long pain, suffering, loss of companionship and amenities that the unfortunate claimant has been put throughout his life by the negligent act of the doctors and the AMRI Hospital. 69. The claimant further contended that he is entitled to special damages for losses that he suffered upto the date of trial as held by this Court while remanding this matter in Malay Kumar Ganguly's case back to the National Commission. Thus, the claimant filed a legitimate claim for special damages for the losses sustained by him in the course of 15 years long trial including the loss of his employment at the Ohio State University and resultant position of bankruptcy and home foreclosure. The National Commission did not provide any reason for rejecting the said claim which is in violation of the observations made in Charan Singh's case (supra). 70. Further, this Court has affirmed the principle regarding determination of just compensation in the following cases that inflation should be considered while deciding quantum of compensation: Reshma K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court of Appeals in South Carolina in Welch v. Epstein 536 S.E. 2d 408 2000 held that a neurosurgeon is guilty for reckless therapy after he used a drug in clear disregard to the warning given by the drug manufacturer causing the death of a patient. This Court has categorically held that the injection Depomedrol used at the rate of 80 mg twice daily by Dr. Sukumar Mukherjee was in clear violation of the manufacturer's warning and recommendation and admittedly, the instruction regarding direction for use of the medicine had not been followed in the instant case. This Court has also made it clear that the excessive use of the medicine by the doctor was out of sheer ignorance of basic hazards relating to the use of steroids as also lack of judgment. No doctor has the right to use the drug beyond the maximum recommended dose. 74. The Supreme Court of Ohio in Dardinger v. Anthem Blue Cross Shield et al 781 N.E. 2d 2002. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tient. While remanding back the issue of quantifying the quantum of compensation to the National Commission, this Court has observed that the standard of medical nursing care at the AMRI Hospital was abysmal. It is further submitted that 80% of the total compensation should be imposed against the AMRI Hospital and 20% against Dr. Sukumar Mukherjee. The claimant has claimed the damages as under: PECUNIARY DAMAGES: A Cost associated with the victim, Anuradha Saha 1 Loss of prospective/future earning upto to 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure as pleaded by the AMRI Hospital? 3(b) Whether the claimant is justified in claiming additional amount for compensation under different heads without following the procedure contemplated under the provisions of the Consumer Protection Act and the Rules? 4. Whether the National Commission is justified in adopting the multiplier method to determine the compensation and to award the compensation in favour of the claimant? 5. Whether the claimant is entitled to pecuniary damages under the heads of loss of employment, loss of his property and his traveling expenses from U.S.A. to India to conduct the proceedings in his claim petition? 6. Whether the claimant is entitled to the interest on the compensation that would be awarded? 7. Whether the compensation awarded in the impugned judgment and the apportionment of the compensation amount fastened upon the doctors and the hospital requires interference and whether the claimant is liable for contributory negligence and deduction of compensation under this head? 8. To what Order and Award the claimant is entitled to in these appeals? 80. It would be convenient for us to take up first the Civil Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C pp. 431-32 440-41, paras 26-27 46-47) 26. The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms. 27. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent heads is wholly unsustainable in law in view of the decisions rendered by this Court in the aforesaid cases. Therefore, this Court is required to consider the relevant aspect of the matter namely, that there has been steady inflation which should have been considered over period of 15 years and that money has been devalued greatly. Therefore, the decision of the National Commission in confining the grant of compensation to the original claim of Rs. 77.7 crores preferred by the claimant under different heads and awarding meager compensation under the different heads in the impugned judgment, is wholly unsustainable in law as the same is contrary to the legal principles laid down by this Court in catena of cases referred to supra. We, therefore, allow the claim of the claimant on enhancement of compensation to the extent to be directed by this Court in the following paragraphs. 83. Besides enhancement of compensation, the claimant has sought for additional compensation of about Rs. 20 crores in addition to his initial claim made in 2011 to include the economic loss that he had suffered due to loss of his employment, home foreclosure and bankruptcy in U.S.A. which would have ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s case, this Court by placing reliance on the decision of this Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd., (supra) made observation while remanding back the matter to National Commission solely for the determination of quantum of compensation, that compensation should include loss of earning of profit up to the date of trial and that it may also include any loss already suffered or is likely to be suffered in future . Rightly, the claimant has contended that when original complaint was filed soon after the death of his wife in 1998, it would be impossible for him to file a claim for just compensation for the pain that the claimant suffered in the course of the 15 years long trial. c) In Nizam Institute's case supra, the complainant had sought a compensation of Rs. 4.61 crores before the National Commission but he enhanced his claim to Rs. 7.50 crores when the matter came up before this Court. In response to the claim, this Court held as under: 82. The complainant, who has argued his own case, has submitted written submissions now claiming about Rs. 7.50 crores as compensation under various heads. He has, in addition sought a direction that a further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;just compensation' more than what was claimed by the claimants initially and therefore, the contention urged by learned senior counsel and other counsel on behalf of the Appellant-doctors and the AMRI Hospital that the additional claim made by the claimant was rightly not considered by the National Commission for the reason that the same is not supported by pleadings by filing an application to amend the same regarding the quantum of compensation and the same could not have been amended as it is barred by the limitation provided under Section 23 of the Consumer Protection Act, 1986 and the claimant is also not entitled to seek enhanced compensation in view of Order II Rule 2 of the Code of Civil Procedure as he had restricted his claim at Rs. 77,07,45,000/-, is not sustainable in law. The claimant has appropriately placed reliance upon the decisions of this Court in justification of his additional claim and the finding of fact on the basis of which the National Commission rejected the claim is based on untenable reasons. We have to reject the contention urged by the learned senior counsel and other counsel on behalf of the Appellant-doctors and the AMRI Hospital as it is wholl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations made by this Court in the case of Arvind Kumar Mishra v. New India Assurance which reads as under: 14. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like BIT, it can be reasonably assumed that he would have got a good job. The Appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000 per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000 per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000 per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis. 86. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while making the observations in the last three lines of para 24 of Sarla Verma judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes the victim of an accident then the same formula deserves to be applied for calculating the amount of compensation. 89. In view of the aforesaid observations and law laid down by this Court with regard to the approach by the Commission in awarding just and reasonable compensation taking into consideration the future prospects of the deceased even in the absence of any expert's opinion must have been reasonably judged based on the income of the deceased and her future potential in U.S.A. However, in the present case the calculation of the future prospect of income of the deceased has also been scientifically done by economic expert Prof. John F. Burke. In this regard, the learned Counsel for the other Appellant-doctors and the Hospital have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l effectively defined by the profession itself. All these factors, together with the sheer expense of bringing legal action and the denial of legal aid to all but the poorest, operate to inhibit medical litigation in a way in which the American system, with its contingency fees and its sympathetic juries, does not. It is difficult to single out any one cause for what increase there has been in the volume of medical negligence actions in the United Kingdom. A common explanation is that there are, quite simply, more medical accidents occurring - whether this be due to increased pressure on hospital facilities, to falling standards of professional competence or, more probably, to the ever-increasing complexity of therapeutic and diagnostic methods. (p. 191) A patient who has been injured by an act of medical negligence has suffered in a way which is recognised by the law - and by the public at large - as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and the future cost of medical or nursing care. To deny a legitimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award just compensation irrespective of the fact whether any plea in that behalf was raised by the claimant or not. 93. He has also rightly placed reliance upon observations made in Malay Kumar Ganguly's case referred to supra wherein this Court has held the Appellant doctors guilty of causing death of claimant's wife while remanding the matter back to the National Commission only for determination of quantum of compensation for medical negligence. This Court has further observed that compensation should include loss of earning of profit up to the date of trial and that it may also include any loss already suffered or likely to be suffered in future . The claimant has also rightly submitted that when the original complaint was filed soon after the death of his wife in 1998, it would be impossible to file a claim for just compensation . The claimant has suffered in the course of the 15 years long trial. In support of his contention he placed reliance on some other cases also where more compensation was awarded than what was claimed, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Institute (supra), State of Punjab v. Shiv Ram and Ors. (supra), Samira Kholi v. Dr. Prabha Manchanda and Anr.(supra), P.G. Institute of Medical Sciences v. Jaspal Singh and Ors., (supra) Nizam Institute v. Prasant Dhananka (supra) Malay Kumar Ganguly v. Sukumar Mukherjee and Ors. (supra) and V. Kishan Rao v. Nikhil Superspeciality Hospital and Anr. (supra) to contend that not a single case was decided by using the multiplier method. In support of this contention, he has further argued that in the three judge Bench decision in the case of Nizam Institute's case (supra), this Court has rejected the use of multiplier system to calculate the quantum of compensation. The relevant paragraph is quoted hereunder: 92. Mr. Tandale, the learned Counsel for the Respondent has, further submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts calling for deviation from the multiplier usually applicable. 97. It is further urged by the learned senior counsel Mr. Vijay Hansaria for the Appellant-AMRI Hospital relying on Sarla Verma's case (supra) that the multiplier method has enabled the courts to bring about consistency in determining the 'loss of dependency' more particularly in the death of victims of negligence. The relevant paragraph reads as under: 14. The lack of uniformity and consistency in awarding compensation has been a matter of grave concern. Every district has one or more Motor Accidents Claims Tribunal(s). If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed and bewildered. If there is significant divergence among the Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system. The learned Counsel for the Appellant-AMRI Hospital further argued that reliance placed upon the judgment in Nizam Institute's case referred to supra by the claimant is misplaced since the victim in that case suffered from permanent disability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was filed by the Hospital on 18th July, 2011. In lieu of such pain and suffering the claimant made a demand of Rs. 34,56,07,000/- under different heads of 'loss of income for missed work', 'traveling expenses over the past 12 years' and 'legal expenses including advocate fees' etc. 99. We have perused through the claims of the claimant under the above heads and we are inclined to observe the following. The claim of Rs. 1,12,50,000/- made by the claimant under the head of loss of income for missed work, cannot be allowed by this Court since, the same has no direct nexus with the negligence of the Appellant- doctors and the Hospital. The claimant further assessed his claim under the head of 'Travel expenses over the past 12 years' at Rs. 70,00,000/-. It is pertinent to observe that the claimant did not produce any record of plane fare to prove his travel expenditure from U.S.A. to India to attend the proceedings. However, it is an undisputed fact that the claimant is a citizen of U.S.A. and had been living there. It cannot be denied that he had to incur travel expenses to come to India to attend the proceedings. Therefore, on an average, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilised by the person in whose favour an order of recovery of money was passed. 27. As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of the right to utilise the money due, which has been, in fact, utilised by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed. 28. The only question to be decided is since when is such interest payable on such a decree. Though, there are two divergent views, one indicating that interest is payable from the date when claim for the principal sum is made, namely, the date of institution of the proceedings in the recovery of the amount, the other view is that such interest is payable only when a determination is made and order is passed for recovery of the dues. However, the more consistent view has been the former and in rare cases interest has been awarded for periods even prior to the institution of proceedings for recovery of the dues, where the same is provided for by the terms of the agreement entered into between the parties or where the same is permissible by statute. 101. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al whim. It is therefore appropriate for an appellate court to lay down guidelines as to what matters it is proper for the judge to take into account in deciding how to exercise the discretion confided in him by the statute. In exercising this appellate function, the court is not expounding a rule of law from which a judge is precluded from departing where special circumstances exist in a particular case; nor indeed, even in cases where there are no special circumstances, is an appellate court justified in giving effect to the preference of its members for exercising the discretion in a different way from that adopted by the judge if the choice between the alternative ways of exercising it is one upon which judicial opinion might reasonably differ. 102. Therefore, the National Commission in not awarding interest on the compensation amount from the date of filing of the original complaint up to the date of payment of entire compensation by the Appellant-doctors and the AMRI Hospital to the claimant is most unreasonable and the same is opposed to the provision of the Interest Act, 1978. Therefore, we are awarding the interest on the compensation that is determined by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad implicitly directed the bulk of compensation to be paid by the Hospital. Through Paragraph No. 196, the judgment reads as under: 196. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs. 5,00,000 and Rs. 1,00,000 would be payable by AMRI and Dr. Mukherjee respectively. We further direct that if any foreign experts are to be examined it shall be done only through videoconferencing and at the cost of the Respondents. This Court has stated that the bulk of the proportion of compensation is to be paid by the Hospital and the rest by Dr. Sukumar Mukherjee. None of the other doctors involved were imposed with cost though they were found guilty of medical negligence. The claimant relied upon the decision in Nizam Institute's case (supra) in which this Court directed the Hospital to pay the entire amount of compensation to the claimant in that case even though the treating doctors were found to be responsible for the negligence. The claimant also relied upon the observations made by this Court while remitting the case back to National Commission for determining the quantum of compensation, to emphasize upon the negligence on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the aforesaid case, also recorded as under: 184. In R. v. Yogasakaran the New Zealand Court opined that the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities. (See also Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 Edn., Cambridge University Press, p. 12.) 108. Even in the case of Savita Garg v. 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 wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. Similarly, our attention was invited to a decision in the case of Spring Meadows Hospital v. Harjol Ahluwalia. Their Lordships observed as follows: (SCC pp. 46-47, para 9) 9...Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the Defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor.... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -AMRI Hospital to pay the total amount of compensation with interest awarded in the appeal of the claimant which remains due after deducting the total amount of Rs. 25 lakhs payable by the Appellants-doctors as per the Order passed by this Court while answering the point No. 7. Liability of Dr. Sukumar Mukherjee: 110. As regards the liability of Dr. Sukumar Mukherjee, it is his case that nowhere has this Court in Malay Kumar Ganguly's decision hold the Appellant Dr. Mukherjee and Appellant-AMRI Hospital primarily responsible for the death of the claimant's wife. On the contrary, referring to paras 186 and 187 of the said judgment, under the heading of 'cumulative effect', the Appellant's counsel has argued that his liability is not established by the Court. The said paragraphs are extracted hereunder: 186. A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned. Negligence on the part of each of the treating doctors as also the hospital may have been the contributing factors to the ultimate death of the patient. But, then in a case of this nature, the court must deal with the consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id without foreseeing its implications is certainly an act of negligence on Dr. Mukherjee's part without exercising any care or caution. As it has been already stated by the experts who were cross-examined and the authorities that have been submitted that the usage of 80-120 mg is not permissible in TEN. Furthermore, after prescribing a steroid, the effect of immunosuppression caused due to it, ought to have been foreseen. The effect of immunosuppression caused due to the use of steroids has affected the immunity of the patient and Dr. Mukherjee has failed to take note of the said consequences. 112. It is also important to highlight in this judgment that the manner in which Dr. Mukherjee attempted to shirk from his individual responsibility both in the criminal and civil cases made against him on the death of the claimant's wife is very much unbecoming of a doctor as renowned and revered as he is. The finding of this Court on this aspect recorded in Malay Kumar Ganguly's case reads as under: 182. It is also of some great significance that both in the criminal as also the civil cases, the doctors concerned took recourse to the blame game. Some of them tried to shir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cription of Steroid Prednisolone 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 Prednisolone at 120 mg per day. The Appellant-Dr. Haldar further urged that he was called only once to examine the deceased and he was not called thereafter. Hence, the National Commission wrongly equated him with Dr. Balram Prasad who was the attending physician. Though the claimant did not make any counter statement on apportioning liability to the Appellant-Dr. Haldar, it is pertinent for us to resort to the findings recorded by this Court in the case while remanding it back to the National Commission for determining the individual liability of the Appellant doctors involved in the treatment of the deceased. The findings of this Court in Malay Kumar Ganguly's case supra, are recorded as under: 161. After taking over the treatment of the patient and detecting TEN, Dr. Halder ought to have necessarily verified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in treating the wife of the claimant. Liability of Dr Baidyanath Prasad: 116. It is the case of the Appellant-Dr. Balram Prasad that he was the junior-most attending physician at AMRI Hospital who saw the deceased for the first time on 11.5.1998. He was not called upon to prescribe medicines but was only required to continue and monitor the medicines to be administered to the deceased as prescribed by the specialists. The learned senior counsel on behalf of the Appellant-Dr. B. Prasad argues that the complaint made by the claimant had no averments against him but the one whereby it was stated by the claimant at paragraph 44 of the complaint which reads thus: 44. That Dr. Balram Prasad as attending physician at AMRI did do nothing better. He did not take any part in the treatment of the patient although he stood like a second fiddle to the main team headed by the opposite party No. 2 3. He never suggested even faintly that AMRI is not an ideal place for treatment of TEN patient; on the converse, he was full of praise for AMRI as an ideal place for the treatment of TEN patients knowing nothing how a TEN patient should be treated. 117. To prove his competence as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndy had also stated that three senior doctors were in charge of Anuradha's treatment. (v) AMRI states that the drugs had been administered and nursing care had been given as per the directions of the doctors. (vi) Respondents 5 and 6, therefore, did not own any individual responsibility on themselves although they were independent physicians with postgraduate medical qualifications. 183. In Errors, Medicine and the Law, Cambridge University Press, p. 14, the authors, Alan Merry and Alexander McCall Smith, 2001 Edn., stated: Many incidents involve a contribution from more than one person, and this case is an example. It illustrates the tendency to blame the last identifiable element in the claim of causation-the person holding the 'smoking gun'. A more comprehensive approach would identify the relative contributions of the other failures in the system, including failures in the conduct of other individuals.... 121. Paragraph 183 of the judgment indicates that the Court abhorred the shifting of blames by the senior doctor on the attending physician the Appellant Dr. Balram Prasad even though the Court held him guilty of negligence. This Court found the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in duty on part of the Defendants. In spite of a possibility of him playing an overanxious role during the medical proceedings, the breach of duty to take basic standard of medical care on the part of Defendants is not diluted. To that extent, contributory negligence is not pertinent. It may, however, have some role to play for the purpose of damages. Therefore, holding the claimant responsible for contributory negligence, the National Commission deducted 10% from the total compensation and an award of Rs. 1,55,58,750/- was given to the claimant. 124. The Appellants-doctors and the AMRI Hospital have raised the issue of contributory negligence all over again in the present case for determining the quantum of compensation to be deducted for the interference of the claimant in treatment of the deceased. 125. On the other hand, the claimant in his written statement has mentioned that this Court has rejected the assertion that the claimant interfered with the treatment of his wife. The Appellant-doctors raised the same issue in the revision petition which was appropriately dismissed. He relied upon the observations made by this Court which read as under: 117. Interference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transfer certificate was forged by the patient party is absolutely erroneous, as Dr. Anil Kumar Gupta deposed before the trial court that he saw the transfer certificate at AMRI's office and the words for better treatment were written by Dr. Balaram Prasad in his presence and these words were written by Dr. Prasad, who told it would be easier for them to transport the patient. In a case of this nature, Kunal would have expected sympathy and not a spate of irresponsible accusations from the High Court. In the abovementioned paragraph, this Court clearly deterred the High Court from making irresponsible accusations against the claimant who has suffered not only due to the loss of his wife but also because his long drawn battle for justice. Unfortunately, the National Commission made the same mistake. 127. We, therefore, conclude that the National Commission erred in holding that the claimant had contributed to the negligence of the Appellant-doctors and the Hospital which resulted in the death of his wife when this Court clearly absolved the claimant of such liability and remanded the matter back to the National Commission only for the purpose of determining the quantu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the compensation paid by the National Commission was inadequate and that it is required to be enhanced substantially given the facts and evidence on record, it will be prudent to take up the different heads of compensation separately to provide clarity to the reasoning as well. Loss of income of the deceased: 131. The grievance of the claimant is that the National Commission has failed to take into consideration the legal and substantial evidence produced on record regarding the income of the deceased wife as she was a citizen of U.S.A. and permanently settled as a child psychologist and the claimant was AIDS researcher in the U.S.A. Therefore, the National Commission ought to have taken the above relevant factual aspect of the case into consideration regarding the status and standard of living of the deceased in U.S.A. to determine just compensation under the head of loss of dependency. The claimant has rightly relied upon the case involving death of a 47-48 years old U.S.A. citizen in a road accident in India, in United India Insurance Co. Ltd. and Ors. v. Patricia Jean Mahajan and Ors. referred to supra where this Court has awarded compensation of Rs. 10.38 crores af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case in the decision of this Court for enhancing the compensation in favour of the claimant. 132. As per the evidence on record, the deceased was earning $ 30,000 per annum at the time of her death. The Appellant-doctors and the Hospital could not produce any evidence to rebut the claims of the claimant regarding the qualification of her wife. Further, Prof. John F. Burke, an economic expert testified that the deceased could have earned much more in future given her present prospect. But relying upon the principle laid down by this Court, we cannot take the estimate of Prof. John F. Burke to be the income of the deceased. We also feel that $ 30,000 per annum earned by the deceased during the time of her death was not from a regular source of income and she would have earned lot more had it been a regular source of income, having regard to her qualification and the job for which she was entitled to. Therefore, while determining the income of the deceased, we rely on the evidence on record for the purpose of determining the just, fair and reasonable compensation in favour of the claimant. It would be just and proper for us to take her earning at $ 40,000 per annum on a regular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. We still consider this amount as insufficient in the light of the fact that the deceased was treated at AMRI Hospital as an in-patient for about a week; we deem it just and proper to enhance the compensation under this head by Rs. 2 lakhs thereby awarding a total amount of Rs. 7 lakhs under this head. (b) Travel and Hotel expenses at Bombay: 137. The claimant has sought for compensation to the tune of Rs. 7 lakhs for travel and expenses for 11 days he had to stay in Mumbai for the treatment of his wife. However, again he has failed to produce any bills to prove his expenditure. Since, his travel to Mumbai for the treatment of his wife is on record, the National Commission has awarded compensation of Re. 1 lakh under this head. We find it fit and proper to enhance the compensation by Rs. 50,000/- more considering that he had also incurred some unavoidable expenditure during his travel and stay in Mumbai at the time of treatment of the deceased. Therefore, under this head, we award a compensation of Rs. 1,50,000/-. 138. However, with respect to the claim made under the cost of chartered flight, a sum of Rs. 5,00,000/- is already awarded by the National Commission and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eath of his wife caused due to the negligence of the Defendant's servants. After taking cognizance of some precedents, the learned Judge observed: (KB p. 631) ...I can see no reason in principle why such pecuniary loss should be limited to the value of money lost, or the money value of things lost, as contributions of food or clothing, and why I should be bound to exclude the monetary loss incurred by replacing services rendered gratuitously by a relative, if there was a reasonable prospect of their being rendered freely in the future but for the death. 24. In Regan v. Williamson the Court considered the issue relating to quantum of compensation payable to the dependants of the woman who was killed in a road accident. The facts of that case were that on the date of accident, the Plaintiff was aged 43 years and his children were aged 14 years, 11 years, 8 years and 3 years respectively. The deceased wife/mother was aged 37 years. The cost of a housekeeper to carry out services previously rendered by his wife was 22.5 pounds per week, the saving to him in not having to clothe and feed his wife was 10 pound per week, leaving a net loss of 12.50 pounds per week or 600 pounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se hours when she is, if that is the fact, at work. During some of those hours she may well give the children instruction on essential matters to do with their upbringing and, possibly, with such things as their homework. This sort of attention seems to be as much of a service, and probably more valuable to them, than the other kinds of service conventionally so regarded. 25. In Mehmet v. Perry the pecuniary value of a wife's services were assessed and granted under the following heads: (a) Loss to the family of the wife's housekeeping services. (b) Loss suffered by the children of the personal attention of their mother, apart from housekeeping services rendered by her. (c) Loss of the wife's personal care and attention, which the husband had suffered, in addition to the loss of her housekeeping services. 26. In India the courts have 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium. (Emphasis laid by this Court) 142. Under the heading of loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Respondent 3 was also consulted on 12-5-1998. 4. On or about 17-5-1998 Anuradha was shifted to Breach Candy Hospital, Mumbai as her condition further deteriorated severely. She breathed her last on 28-5-1998.... 143. The above extracted portion from the above judgment would show that the deceased had undergone the ordeal of pain for 18 long days before she breathed her last. In this course of period, she has suffered with immense pain and suffering and undergone mental agony because of the negligence of the Appellant-doctors and the Hospital which has been proved by the claimant and needs no reiteration. 144. Further, in the case of Nizam Institute (supra), the claimant who was also the surviving victim of a motor vehicle accident was awarded Rs. 10 lakhs for pain and suffering. Further, it was held in R.D. Hattangadi's case (supra) as follows: 14. In Halsbury's Laws of England, 4th Edn., Vol. 12 regarding non-pecuniary loss at page 446 it has been said: Non-pecuniary loss: the pattern.- Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent heads with 6% interest per annum from the date of application till the date of payment. 148. Before parting with the judgment we are inclined to mention that the number of medical negligence cases against doctors, Hospitals and Nursing Homes in the consumer forum are increasing day by day. In the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996) 4 SCC 37, this Court has already pronounced that right to health of a citizen is a fundamental right guaranteed under Article 21 of the Constitution of India. It was held in that case that all the government Hospitals, Nursing Homes and Poly-clinics are liable to provide treatment to the best of their capacity to all the patients. 149. The doctors, Hospitals, the Nursing Homes and other connected establishments are to be dealt with strictly if they are found to be negligent with the patients who come to them pawning all their money with the hope to live a better life with dignity. The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right. We, therefore, hope and trust that this d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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