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TMI Blog2013 (10) TMI 1564X X X X Extracts X X X X X X X X Extracts X X X X ..... n') 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 ..... hat 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 the claima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 possible on a firm and fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 expert witness did not know whether the dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal 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 Rs.10,000 14. Usha Rajkhowa v. Paramount Industries, (2009) 14 SCC 71 Rs.5,000 15. Laxmi Devi v. Mohammad. Tabbar, (2008) 12 SCC 165 Rs.5,000 16. Andhra Pradesh State Road Transport Corporation v. M. Ramadevi, (2008) 3 SCC 379 Rs.5,000 17. State of Punjab v. Jalour Singh, (2008) 2 SCC 660 Rs.5,000 18. Abati Bezbaruah v. Dy. Director General, Geological Survey of India, (2003) 3 SCC 148 Rs.3,000 19. Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, (2001) 5 SCC 175 Rs.5,000 20. Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 Rs.15,000 21. G.M., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors and Hospital that the reliance placed by the claimant upon the decision of this Court reported in Patricia Jean Mahajan's case (supra) clearly shows that the multiplier method applicable to claim cases in India was applied after taking note of contribution by the deceased for his dependants. The said case is a clear pointer to the fact that even if a foreigner dies in India, the basis of calculation has to be applied according to Indian Standard and not the American method as claimed by the claimant. 17. Further, the word 'reasonable' implies that the Appellant-doctors and AMRI Hospital cannot be saddled with an exorbitant amount as damages - which cannot either be treated as an obvious or natural though not foreseeable consequence of negligence. 18. Further, the learned senior counsel has placed reliance on the judgment of this Court in Nizam Institute of Medical Sciences (supra) wherein this Court enhanced the original compensation awarded to the claimant-victim who had been paralyzed due to medical negligence from waist down, under the heads: requirement of nursing care; need for driver-cum-attendant, as he was confined to a wheel chair; and he needed physiothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. In support of his contention, reliance is placed upon the decision of this Court reported in Patricia Mahajan's case (supra) in which this Court having found a person who died as a bachelor, held that a lesser multiplier is required to be applied to quantify the compensation. 23. It is further contended by the senior counsel and other counsel for the Appellant-doctors that in Susamma Thomas (supra) this Court has observed that "in fatal accident cases, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death". This means that the court while awarding damages in a fatal accident case took into account the pecuniary loss already suffered as a result of the negligence complained of, and the loss of dependency based on the contributions made by the deceased to the claimant until her death. While the former may be easily ascertainable, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001) 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 followed where death of 59 persons took place in a cinema hall and 109 persons suffered injury. 26. Therefore, it is contended by the senior counsel and other counsel for the Appellant-doctors that multiplier method should be used while awarding compensation to the victims because it leads to consistency and avoids arbitrariness. On contributory negligence by the claimant 27. The learned senior counsel and other counsel for the Appellant-doctors submitted that the National Commission in the impugned judgment should have deducted 25% of the compensation amount towards contributory negligence of the claimant caused by his interference in the treatment of the deceased. Instead, the National Commission has deducted only 10% towards the same. According to the learned senior counsel and other counsel for the Appellants, the National Commission erred in not adhering to the tenor set by this Court while remanding the case bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remely 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, the learned senior counsel for the Appellant-doctors and AMRI Hospital placed reliance upon the provisions of the Consumer Protection Act, 1986 and the Motor Vehicles Act, 1988 to urge that though the Consumer Courts have pecuniary jurisdiction for deciding the matters filed before it whereby the pecuniary jurisdiction of the District Forum is Rs. 20 lakhs, State Commission is from Rs. 20 lakhs to Rs. 1 crore, whereas for National Commission, it is above Rs. 1 crore, the Motor Accident Claims Tribunal have unlimited jurisdiction. In the Consumer Protection Act, 1986 there is a provision for limitation of 2 years for filing of complaint under Section 24A of the Act and there is no limitation prescribed in the Motor Vehicles Act, 1988. 30. Sections 12 and 13 of the Consumer Protection Act, 1986 provide as to how the complaint has to be made and the procedure to be followed by the claimant for filing the complaint. Rule 14(c) of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But, the Nizam Institute's case is not a case for the proposition that a claimant can be awarded compensation beyond what is claimed by him. On the other hand, it was a case of peculiar facts and circumstances since the claimant had permanent disability which required constant medical attention, medicines, services of attendant and driver for himself. The cases referred to by the claimant regarding medical negligence in his written submission are distinguishable from the present case and in none of these cases upon which reliance has been placed by the claimant, this Court has awarded compensation beyond what is claimed. Therefore, the reliance placed upon the aforesaid judgments by the claimant does not support his claim and this Court need not accept the same and enhance the compensation as has been claimed by him since he is not entitled to the same. Death of the claimant's wife due to cumulative effect of negligence: 35. This Court vide its judgment in Malay Kumar Ganguly's case (supra) has held that: 186. A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned. Negligence on the part of each of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the Hospital there was correct diagnosis and she was given best possible treatment. The National Commission erred in apportioning the liability on the Hospital to the extent of 25% of the total award. This Court in the earlier round of litigation held that there is no medical negligence by Dr. Kaushik Nandy, the original Respondent No. 6 in the complaint, who was also a doctor in the Appellant-Hospital. 38. Further, the learned senior counsel for the AMRI Hospital submitted that the arguments advanced on behalf of the Appellants-doctors Dr. Balram Prasad in C.A. No. 2867/2012, Dr. Sukumar Mukherjee in C.A. No. 858/2012 and Dr. Baidyanath Haldar in C.A. 731/2012 with regard to percentage, on the basis of costs imposed in paragraph 196 of the judgment in the earlier round of litigation is without any basis and further submitted that under the heading - 'Individual Liability of Doctors' findings as to what was the negligence of the doctors and the Appellant AMRI Hospital is not stated. If the said findings of the National Commission are considered, then it cannot be argued that the Appellant AMRI Hospital should pay the highest compensation. Further, the learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined. 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 Mukherjee only on three occasions before his pre-planned visit to the U.S.A. for attending a medical conference i.e. on 26.4.1998, 7.5.1998 and on the night of 11.5.1998 and then the Appellant-Dr. Mukherjee left India for USA and returned much after the demise of the claimant's wife. On her first examination on 26.4.1998 the Appellant suggested a host of pathological tests. The patient was requested to visit the Doctor with these reports. No drugs were prescribed by the Appellant-Dr. Mukherjee at this examination. On 7.5.1998, Anuradha Saha walked into the clinic of the Appellant-Dr. Mukherjee at 9.30 p.m. and reported that she was uncomfortable because she had consumed food of Chinese cuisine. The Appellant-Dr. Mukherjee noticed that there was a definite change in the nature of the rash. Based on the information furnished and the status and condition of the patient, she was diagnosed to be suffering from allergic vasculitis and the Appellant-Dr. Mukherjee comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. Mukherjee that the cause of death as recorded in the death certificate of the deceased is "septicemic shock with multi system organ failure in a case of TEN leading to cardio respiratory arrest". Blood culture was negative prior to death. There was no autopsy to confirm the diagnosis at Breach Candy Hospital, Mumbai. Dr. Udwadia observed on 27.5.1998 that the patient has developed SIRS in absence of infection in TEN. The patient expired on 28.5.1998 and the death certificate was written by a junior doctor without the comments of Dr. Udwadia. It is submitted by the learned Counsel that there is neither any allegation nor any finding by this Court that the doctors of the AMRI Hospital had contributed to septicemia. The mere finding that the patient was not properly dressed at AMRI Hospital where she stayed for only 6 days of early evocation of the disease do not justify contribution to septicemic shock of the deceased. Further, there is no record to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 prescription of the said date. Further, it is stated that without disclosing that he would be out of India from 12.05.1998, he asked the deceased to consult the named Dermatologist, Dr. B. Haldar @ Baidyanath Haldar, the Appellant in Civil Appeal No. 731 of 2012, and the physician Dr. Abani Roy Chowdhury in his last prescription on the last visit of the deceased. Most culpably, he did not even prescribe I.V. Fluid and adequate nutritional support which was mandatory in that condition. Dr. Haldar took over the treatment of the deceased as a Dermatologist Head and Dr. Abani Roy Chowdhury as Head of the Medical Management from 12.05.1998 with the positive knowledge and treatment background that the patient by then already had clear intake of 880 mg of Depomedrol injection as would be evident from AMRI's treatment sheet dated 11.05.1998. 46. It is further stated by the claimant in the complaint lodged before National Commission that it contained specific a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the junior most attending physician attached to the Hospital, he was not called upon to prescribe medicines but was only required to continue and/or monitor the medicines prescribed by the specialist in the discipline. But realizing the seriousness of the patient, the Appellant had himself referred the patient to the three specialists and also suggested for undertaking a skin biopsy. The duty of care ordinarily expected of a junior doctor had been discharged with diligence by the Appellant. It is further contended that in his cross-examination before the National Commission in the enquiry proceeding, the claimant himself has admitted that the basic fallacy was committed by three physicians, namely, Dr. Mukherjee, Dr. Haldar and Dr. Roy Chowdhury. The above facts would clearly show that the role played by the Appellant-Doctors in the treatment of the deceased was only secondary and the same had been discharged with reasonable and due care expected of an attending physician in the given facts and circumstances of the instant case. 50. In the light of the above facts and circumstances, the contention of the claimant that the death of the claimant's wife was neither directly nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of his wife and since one of the guilty doctors had already expired, his share of compensation was also denied. 54. Therefore, the present appeal is filed claiming the just and reasonable compensation urging the following grounds: a) The National Commission has failed to consider the pecuniary, non-pecuniary and special damages as extracted hereinbefore. b)The National Commission has made blatant errors in mathematical calculation while awarding compensation using the multiplier method which is not the correct approach. c) The National Commission has erroneously used the multiplier method to determine compensation for the first time in Indian legal history for the wrongful death caused by medical negligence of the Appellant-doctors and the AMRI Hospital. d) The National Commission has reinvestigated the entire case about medical negligence and went beyond the observations made by this Court in Malay Kumar Ganguly's case (supra) by holding that the claimant is also guilty for his wife's death. e) The National Commission has failed to grant any interest on the compensation though the litigation has taken more than 15 years to determine and award compensation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to judicial notice and the said claim-table in its final judgment, the National Commission has rejected the entire claim on the sole ground that since the additional claim was not pleaded earlier, none of the claims made by the claimant can be considered. Therefore, the National Commission was wrong in rejecting different claims without any consideration and in assuming that the claims made by the claimant before the Tribunal cannot be changed or modified without prior pleadings under any other condition. The said view of the National Commission is contrary to the numerous following decisions of this Court which have opined otherwise: Ningamma and Anr. v. United India Insurance Co. Ltd. (2009) 13 SCC 710, Malay Kumar Ganguly's case referred to supra, Nizam Institute's case (supra), Oriental Insurance Company Ltd. v. Jashuben and Ors. (supra), R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors. (1995) 1 SCC 551, Raj Rani and Ors. v. Oriental Insurance Co. Ltd. and Ors. (2009) 13 SCC 654, Laxman @ Laxman Mourya v. Divisional Manager v. Oriental Insurance Co. Ltd. and Anr. (2011) 10 SCC 756 and Ibrahim v. Raju and Ors. (supra). 58. The claimant has further argued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the case of the claimant that the National Commission has completely failed to award "just compensation" due to non consideration of all the following critical factors: 1) The Guidelines provided by Supreme Court: This Court has provided guidelines as to how the National Commission should arrive at an "adequate compensation" after consideration of the unique nature of the case. 2) Status and qualification of the victim and her husband. 3) Income and standard of living in the U.S.A.: As both the deceased and the claimant were citizens of U.S.A. and permanently settled as a "child psychologist" and AIDs researcher, respectively, the compensation in the instant case must be calculated in terms of the status and standard of living in the U.S.A. In Patricia Mahajan's case (supra), where a 48 year old US citizen died in a road accident in India, this Court has awarded a compensation of more than Rs. 16 crores after holding that the compensation in such cases must consider the high status and standard of living in the country where the victim and the dependent live. 4) Economic expert from the U.S.A.: The claimant initially filed a complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. V.P. Shanta and Ors. (supra), that to deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. 6) Loss of income of claimant: The National Commission has ignored the loss of income of the claimant though this Court has categorically stated while remanding the case to the National Commission that pecuniary and non-pecuniary losses and future losses "up to the date of trial" must be considered for the quantum of compensation. The claimant had incurred a huge amount of expenses in the course of the more than 15 years long trial in the instant case. These expenses include the enormous cost for legal expenses as well as expenses for the numerous trips between India and the U.S.A. over the past more than 12 years. In addition to that the claimant has also suffered huge losses during this period, both direct loss of income from his job in U.S.A. as well as indirect loss for pain and intense mental agony for tenure denial and termination of his employment at Ohio State University (OSU) which was a direct result of the wrongful death of Anuradha in India as would be evident from the judgment passed by the Court of Claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octors available. Therefore, the compensation in the instant case may be enhanced in view of the specific observations made by this Court. 62. Appellant-doctors Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar have attempted to claim in their respective appeals that they cannot be penalized with compensation because they did not charge any fee for treatment of the deceased. Such a claim has no legal basis as in view of the categorical observations made by this Court in Savita Garg v. Director, National Heart Institute (2004) 8 SCC 56 and in Malay Kumar Ganguly's case (supra) wherein this Court has categorically stated that the aforesaid principle in Savita Garg's case applies to the present case also insofar as it answers the contentions raised before us that the three senior doctors did not charge any professional fees. 63. Further, it is contended by the claimant that from a moral and ethical perspective, a doctor cannot escape liability for causing death of a patient from medical negligence on the ground that he did not charge any fee. If that was true, poor patients who are sometimes treated for free and patients in many charitable Hospitals would be killed with impuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was placed upon Sarla Verma's case (supra) at paragraph 37, wherein the principle laid down for determining compensation using multiplier method does not apply even in accident cases under Section 166 of the MV Act. In contrast to death from road or other accident, it is urged that death or permanent injury to a patient caused from medical negligence is undoubtedly a reprehensible act. Compensation for death of a patient from medical negligence cannot and should not be compensated simply by using the multiplier method. In support of this contention he has placed reliance upon the Nizam Institute's case (supra) at paragraph 92, wherein the Court has rejected the specific claim made by the guilty Hospital that multiplier should be used to calculate compensation as this Court has held that such a claim has absolutely no merit. 67. The multiplier method was provided for convenience and speedy disposal of no fault motor accident cases. Therefore, obviously, a "no fault" motor vehicle accident should not be compared with the case of death from medical negligence under any condition. The aforesaid approach in adopting the multiplier method to determine the just comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flation should be considered while deciding quantum of compensation: Reshma Kumari and Ors. v. Madan Mohan and Anr. (supra), Govind Yadav v. New Indian Insurance Co. Ltd. (supra) and Ibrahim v. Raju and Ors. (supra). 71. Using the cost of inflation index (in short C.I.I.) as published by the Govt. of India, the original claim of Rs. 77.7 crores made by the claimant in 1998 would be equivalent to Rs. 188.6 crores as of 2012-2013. The mathematical calculation in this regard has been presented in the short note submitted by the claimant. Thus, the compensation payable for the wrongful death of claimant's wife would stand today at Rs. 188.6 crores and not Rs. 77.7 crores as originally claimed by him in 1998 without taking into consideration the various relevant aspects referred to supra and proper guidance and advice in the matter. 72. Further, it is urged by the claimant that he is entitled to interest on the compensation at reasonable rate as the National Commission has awarded interest @ 12% but only in case of default by the Appellant- doctors and the AMRI Hospital to pay the compensation within 8 weeks after the judgment which was delivered on October 21, 2011. That means, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punitive damages usually are many times bigger than the compensatory damages. A nominal amount of US $ 1,000,000 has been claimed as punitive damages in the instant case to send a deterrent message to the reckless doctors in India keeping in view the major difference in the standard of living between India and U.S.A. In fact, this Court in a well-known case of Lata Wadhwa (supra) in which a number of children and women died from an accidental fire, awarded punitive damages to send a message against the unsafe condition kept by some greedy organizations or companies in the common public places in India. 75. It was further contended by the claimant that this Court remanded the case back to the National Commission for determination of the quantum of compensation only but the National Commission in clear disregard to the direction issued by this Court, has re-examined the issues involved for medical negligence. Further, in Malay Kumar Ganguly's case, this Court has rejected the assertion made by the doctors of the Hospital that the claimant had interfered with the treatment of his wife or that other doctors and/ or the Hospital i.e. Breach Candy Hospital in Bombay should also be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 1 Advocate fees Rs.1,50,00,000/- 2 other legal expenses Rs.15,00,000/- Total pecuniary damages Rs.34,56,07,000/- Non-Pecuniary Special Damages 1 Loss of companionship and life amenities Rs.13,50,00,000/- 2 Emotional distress, pain and suffering for husband Rs.50,00,000/- 3 Pain/suffering endured by the victim during therapy Rs.4,50,00,000/- Total non pecuniary damages Rs.31,50,00,000/- D PUNITIVE/EXEMPLARY DAMAGES Rs.13,50,00,000/- E SPECIAL DAMAGES Rs.18,00,00,000/- Total Rs.97,56,07,000/- Therefore, the claimant has prayed for allowing his appeal by awarding just and reasonable compensation under various heads as claimed by him. 79. On the basis of the rival legal factual and contentions urged on behalf of the respective doctor-Appellants, Hospital and the claimant, the following points would arise for consideration of this Court: 1) Whether the claim of the claimant for enhancement of compensation in his appeal is justified. If it is so, for what compensation he is entitled to? 2) While making additional claim by way of affidavit before the National Commission when amending the claim petition, whether the claimant is entitled for compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been pending before the National Commission and this Court for the last 15 years. The value of money that was claimed in 1998 has been devalued to a great extent. This Court in various following cases has repeatedly affirmed that inflation of money should be considered while deciding the quantum of compensation. In Reshma Kumari and Ors. v. Madan Mohan and Anr. (supra), this Court at para 47 has dealt with this aspect as under: 47. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor. In Govind Yadav v. New India Insurance Co. Ltd. (supra), this Court at para 15 observed as under which got re-iterated at paragraph 13 of Ibrahim v. Raju and Ors. (supra). 15. In Reshma Kumari v. Madan Mohan t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor. 82. The C.I.I. is determined by the Finance Ministry of Union of India every year in order to appreciate the level of devaluation of money each year. Using the C.I.I. as published by the Government of India, the original claim of Rs. 77.7 crores preferred by the claimant in 1998 would be equivalent to Rs. 188.6 crores as of 2013 and, therefore the enhanced claim preferred by the claimant before the National Commission and before this Court is legally justifiable as this Court is required to determine the just, fair and reasonable compensation. Therefore, the contention urged by the Appellant-doctors and the AMRI Hospital that in the absence of pleadings in the claim petition before the National Commission and also in the light of the inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail in justification for each one of the claim made by him. The National Commission, despite taking judicial notice of the claim made by the claimant in its judgment, has rejected the entire claim solely on the ground that the additional claim was not pleaded earlier, therefore, none of the claims made by him can be considered. The rejection of the additional claims by the National Commission without consideration on the assumption that the claims made by the claimant before the National Commission cannot be changed or modified without pleadings under any condition is contrary to the decisions of this Court rendered in catena of cases. In support of his additional claim, the claimant places reliance upon such decisions as mentioned hereunder: (a) In Ningamma's case (supra), this Court has observed at para 34 which reads thus: 34. Undoubtedly, Section 166 of the MVA deals with "just compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "just compensation" in case the claimant is able to make out a case under any provision of law. Needles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount claimed by the claimant. The relevant paragraph reads as under: 14. In Nagappa v. Gurudayal Singh this Court has held as under: (SCC p. 279, para 7) 7. Firstly, under the provisions of the Motor Vehicles Act, 1988, (hereinafter referred to as 'the MV Act') there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is- it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act. g) In Laxman @ Laxaman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd. and Anr., (supra) this Court awarded more compensation than what was claimed by the claimant after making the following categorical observations. In the absence of any bar in the Act, the Tribunal and for that reason, any competent court, is entitled to award higher compensation to the victim of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, the courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife's contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband's income, etc. (Emphasis laid by this Court) In this regard, this Court has also expressed similar view that status, future prospects and educational qualification of the deceased must be judged for deciding adequate, just and fair compensation as in the case of R.K. Malik and Anr. (supra). 85. Further, it is an undisputed fact that the victim was a graduate in psychology from a highly prestigious Ivy League school in New York. She had a brilliant future ahead of her. However, the National Commission has calculated the entire compensation and prospective loss of income solely based on a pay receipt sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the entire claim including the additional claim made before it. He has placed strong reliance upon V.P. Shantha's case (supra) in support of his contention wherein it was held as under: 53. Dealing with the present state of medical negligence cases in the United Kingdom it has been observed: The legal system, then, is faced with the classic problem of doing justice to both parties. The fears of the medical profession must be taken into account while the legitimate claims of the patient cannot be ignored. Medical negligence apart, in practice, the courts are increasingly reluctant to interfere in clinical matters. What was once perceived as a legal threat to medicine has disappeared a decade later. While the court will accept the absolute right of a patient to refuse treatment, they will, at the same time, refuse to dictate to doctors what treatment they should give. Indeed, the fear could be that, if anything, the pendulum has swung too far in favour of therapeutic immunity. (p. 16) It would be a mistake to think of doctors and hospitals as easy targets for the dissatisfied patient. It is still very difficult to raise an action of medical negligence in Britain; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. 91. He has further rightly contended that with respect to the fundamental principle for awarding just and reasonable compensation, this Court in Malay Kumar Ganguly's case (supra) has categorically stated while remanding this case back to the National Commission that the principle for just and reasonable compensation is based on 'restitutio in integrum' that is, the claimant must receive sum of money which would put him in the same position as he would have been if he had not sustained the wrong. 92. Further, he has placed reliance upon the judgment of this Court in the case of Ningamma's case (supra) in support of the proposition of law that the Court is duty-bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not. The relevant paragraph reads as under: 34. Undoubtedly, Section 166 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that the claimant has waived his right to claim more compensation in view of the Order II Rule 2 of Code of Civil Procedure as pleaded by the AMRI Hospital and the Appellant-doctors is also held to be wholly unsustainable in law. The claimant is justified in claiming additional claim for determining just and reasonable compensation under different heads. Accordingly, the point Nos. 1, 2, and 3 are answered in favour of the claimant and against the Appellant-doctors and the Hospital. Answer to point No. 4 95. With regard to point No. 4, the National Commission has used the "multiplier" method under Section 163A read with the second schedule of the Motor Vehicles Act to determine the quantum of compensation in favour of the claimant applying the multiplier method as has been laid down by this Court in Sarla Verma's case(supra). Consequently, it has taken up multiplier of 15 in the present case to quantify the compensation under the loss of dependency of the claimant. It is urged by the claimant that use of multiplier system for determining compensation for medical negligence cases involving death of his wife is grossly erroneous in law. The claimant has ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Second Schedule while prescribing the multiplier, had maximum income of Rs. 40,000 p.a. in mind, but it is considered to be a safe guide for applying the prescribed multiplier in cases of higher income also but in cases where the gap in income is so wide as in the present case income is 2,26,297 dollars, in such a situation, it cannot be said that some deviation in the multiplier would be impermissible. Therefore, a deviation from applying the multiplier as provided in the Second Schedule may have to be made in this case. Apart from factors indicated earlier the amount of multiplicand also becomes a factor to be taken into account which in this case comes to 2,26,297 dollars, that is to say an amount of around Rs. 68 lakhs per annum by converting it at the rate of Rs. 30. By Indian standards it is certainly a high amount. Therefore, for the purposes of fair compensation, a lesser multiplier can be applied to a heavy amount of multiplicand. A deviation would be reasonably permissible in the figure of multiplier even according to the observations made in the case of Susamma Thomas where a specific example was given about a person dying at the age of 45 leaving no heirs being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the income that was being earned by the deceased at the time of her death and other related claims on account of death of the wife of the claimant which is discussed in the reasoning portion in answer to the point Nos. 1 to 3 which have been framed by this Court in these appeals. Accordingly, we answer the point No. 4 in favour of the claimant holding that the submissions made by the learned Counsel for the Appellant-doctors and the AMRI Hospital in determination of compensation by following the multiplier method which was sought to be justified by placing reliance upon Sarla Verma and Reshma's cases (supra) cannot be accepted by this Court and the same does not inspire confidence in us in accepting the said submission made by the learned senior counsel and other counsel to justify the multiplier method adopted by the National Commission to determine the compensation under the head of loss of dependency. Accordingly, we answer the point No. 4 in favour of the claimant and against the Appellants-doctors and AMRI Hospital. Answer to Point No. 5 98. It is the claim of the claimant that he has also suffered huge losses during this period, both direct loss of income fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it has awarded interest at the rate of 12% per annum but only in case of default by the doctors of AMRI Hospital to pay the compensation within 8 weeks after the judgment was delivered on October 21, 2011. Therefore, in other words, the National Commission did not grant any interest for the long period of 15 years as the case was pending before the National Commission and this Court. Therefore, the National Commission has committed error in not awarding interest on the compensation awarded by it and the same is opposed to various decisions of this Court, such as in the case of Thazhathe Purayil Sarabi and Ors. v. Union of India and Anr. regarding payment of interest on a decree of payment this Court held as under: 25. It is, therefore, clear that the court, while making a decree for payment of money is entitled to grant interest at the current rate of interest or contractual rate as it deems reasonable to be paid on the principal sum adjudged to be payable and/or awarded, from the date of claim or from the date of the order or decree for recovery of the outstanding dues. There is also hardly any room for doubt that interest may be claimed on any amount decreed or awarded for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and (b) subject to the provisions of the Supreme Court Act 1981, Section 32A when that section is brought into force, when damages are assessed they are assessed once for all in relation to both actual past and anticipated future loss and damage. XXX The necessity for guidelines, and the status of guidelines, were considered by the House of Lords in Cookson v. Knowles (1979) A.C. 556. In that case Lord Diplock with whom the other members of the House agreed, said: The section as amended gives to the judge several options as to the way in which he may assess the interest element to be included in the sum awarded by the judgment. He may include interest on the whole of the damages or on a part of them only as he thinks appropriate. He may award it for the whole or any part of the period between the date when the cause of action arose and the date of judgment and he may award it at different rates for different part of the period chosen. The section gives no guidance as to the way in which the judge should exercise his choice between the various options open to him. This is all left to his discretion; but like all discretions vested in judges by statute or at common law, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's case (supra). We will confine ourselves to determine the extent to which the Appellant-doctors and the Hospital are liable to pay compensation awarded to the claimant for their acts of negligence in giving treatment to the deceased wife of the claimant. Liability of the AMRI Hospital: 104. It is the claim of Appellant-AMRI Hospital that the arguments advanced on behalf of the Appellant-doctors that is, Dr. Balram Prasad, Dr. Sukumar Mukherjee and Dr. Baidyanath Haldar and the claimant Dr. Kunal Saha, that the Appellant AMRI is liable to pay the highest share of compensation in terms of percentage on the basis of the cost imposed by this Court in the earlier round of litigation in Malay Kumar Ganguly's case, supra are not sustainable in law. 105. The learned senior counsel for the Appellant-AMRI Hospital Mr. Vijay Hansaria argued that the submission made by the claimant Dr. Kunal Saha is not sustainable both on facts and in law since he himself had claimed special damages against the Appellant-doctors, Dr. Sukumar Mukherjee, Dr. Baidyanath Haldar and Dr. Abani Roy Choudhury in his appeal and therefore, he cannot now in these proceedings claim to the contrary. On the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the condition of the mouth was bad. 78. The ENT specialist in his prescription noticed blisters around the lips of the patient which led her to difficulty in swallowing or eating. No blood sample was taken. No other routine pathological examination was carried out. It is now beyond any dispute that 25-30% body surface area was affected (re. Prescription of Dr. Nandy, Plastic Surgeon). The next day, he examined the patient and he found that more and more body surface area was affected. Even Dr. Prasad found the same. 79. Supportive therapy or symptomatic therapy, admittedly, was not administered as needle prick was prohibited. AMRI even did not maintain its records properly. The nurses reports clearly show that from 13th May onwards even the routine check-ups were not done. 106. The liability of compensation to be apportioned by this Court on the Appellant-AMRI Hospital is mentioned in paragraph 165 of the Malay Kumar Ganguly's case which reads as under: 165. As regards, individual liability of Respondents 4, 5 and 6 is concerned, we may notice the same hereunder. As regards AMRI, it may be noticed: (i) Vital parameters of Anuradha were not examined between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act, 1986, to the medical profession also and included in its ambit the services rendered by private doctors as well as the government institutions or the non-governmental institutions, be it free medical services provided by the government hospitals. In the case of Achutrao Haribhau Khodwa v. State of Maharashtra their Lordships observed that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in tort would be maintainable. Their Lordships further observed that if the doctor has taken proper precautions and despite that if the patient does not survive then the court should be very slow in attributing negligence on the part of the doctor. It was held as follows: (SCC p. 635) A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing turns on not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities. (Emphasis laid by this Court) 109. Therefore, in the light of the rival legal contentions raised by the parties and the legal principles laid down by this Court in plethora of cases referred to supra, particularly, Savita Garg's case, we have to infer that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the doctors for causing the death of the patient under Section 304A of Indian Penal Code. It is imperative to mention here that the quantum of compensation to be paid by the Appellant-doctors and the AMRI Hospital is not premised on their culpability under Section 304A of Indian Penal Code but on the basis of their act of negligence as doctors in treating the deceased wife of the claimant. We are therefore inclined to reiterate the findings of this Court regarding the liability of Dr. Mukherjee in Malay Kumar Ganguly's case which read as under: 159. When Dr. Mukherjee examined Anuradha, she had rashes all over her body and this being the case of dermatology, he should have referred her to a dermatologist. Instead, he prescribed "depomedrol" for the next 3 days on his assumption that it was a case of "vasculitis". The dosage of 120 mg depomedrol per day is certainly a higher dose in case of a TEN patient or for that matter any patient suffering from any other bypass or skin disease and the maximum recommended usage by the drug manufacturer has also been exceeded by Dr. Mukherjee. On 11-5-1998, the further prescription of depomedrol without diagnosing the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of patient Anuradha that he never found any deficiency in the overall management at AMRI so much so that he had himself given a certificate that her condition was very much fit enough to travel to Mumbai.... 113. Therefore, the negligence of Dr. Sukumar Mukherjee in treating the claimant's wife had been already established by this Court in Malay Kumar Ganguly's case. Since he is a senior doctor who was in charge of the treatment of the deceased, we are inclined to mention here that Dr. Mukherjee has shown utmost disrespect to his profession by being so casual in his approach in treating his patient. Moreover, on being charged with the liability, he attempted to shift the blame on other doctors. We, therefore, in the light of the facts and circumstances, direct him to pay a compensation of Rs. 10 lakhs to the claimant in lieu of his negligence and we sincerely hope that he upholds his integrity as a doctor in the future and not be casual about his patient's lives. Liability of Dr. Baidyanath Haldar: 114. The case of the Appellant Dr. Baidyanath Haldar is that he is a senior consultant who was called by the attending physician to examine the patient on 12.5.1998. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patients was not provided by Dr. Halder. 163. Further "vital signs" of a patient such as temperature, pulse, intake-output and blood pressure were not monitored. All these factors are considered to be the very basic necessary amenities to be provided to any patient, who is critically ill. The failure of Dr. Halder to ensure that these factors were monitored regularly is certainly an act of negligence. Occlusive dressings were carried out as a result of which the infection had been increased. Dr. Halder's prescription was against the Canadian Treatment Protocol reference to which we have already made hereinbefore. It is the duty of the doctors to prevent further spreading of infections. How that is to be done is the doctors concern. Hospitals or nursing homes where a patient is taken for better treatment should not be a place for getting infection. 115. Similar to the Appellant Dr. Sukumar Mukherjee, the Appellant Dr. Baidyanath Haldar is also a senior doctor of high repute. However, according to the findings of this Court in Malay Kumar Ganguly's case, he had conducted with utmost callousness in giving treatment to the claimant's wife which led to her unfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant-Dr. Balram Prasad, Appellant Dr. B. Haldar claimed in his submission that he has been wrongly equated with Dr. Balram Prasad who was the attending physician and Dr. Anbani Roy Choudhury who was the physician in charge of the patient. 120. It is pertinent for us to note the shifting of blames on individual responsibility by the doctors specially the senior doctor as recorded by this Court which is a shameful act on the dignity of medical profession. The observations made by this Court in this regard in Malay Kumar Ganguly's case read as under: 182(iii) Dr. Mukherjee and Dr. Halder have shifted the blame to Dr. Prasad and other doctors. Whereas Dr. Prasad countercharged the senior doctors including Respondent 2 stating: Prof. B.N. Halder (Respondent 2) was so much attached with the day-today treatment of patient Anuradha that he never found any deficiency in the overall management at AMRI so much so that he had himself given a certificate that her condition was very much fit enough to travel to Mumbai.... In answer to a question as to whether Dr. Halder had given specific direction to him for control of day-today medicine to Anuradha, Dr. Prasad stated: ... t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in giving treatment to the claimant's wife. This Court in Malay Kumar Ganguly's case found him to be negligent in treating the claimant's wife in spite of being the attending physician of the Hospital. But since he is a junior doctor whose contribution to the negligence is far less than the senior doctors involved, therefore this Court directs him to pay a compensation of Rs. 5 lakhs to the claimant. We hope that this compensation acts as a reminder and deterrent to him against being casual and passive in treating his patients in his formative years of medical profession. Liability of the claimant - Dr. Kunal Saha: 123. Finally, we arrive at determining the contribution of the claimant to the negligence of the Appellant- doctors and the AMRI Hospital in causing the death of his wife due to medical negligence. The National Commission has determined the compensation to be paid for medical negligence at Rs. 1,72,87,500/-. However, the National Commission was of the opinion that the interference of the claimant was also contributed to the death of his wife. The National Commission relied upon paragraph 123 of the judgment of this Court in Malay Kumar Ganguly's case to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the said antibiotics were prescribed by the doctors at AMRI and he did not write any prescription. We would, however, assume that the said antibiotics had been administered by Kunal on his own, but it now stands admitted that administration of such antibiotics was necessary. 123. To conclude, it will be pertinent to note that even if we agree that there was interference by Kunal Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on part of the Defendants. In spite of a possibility of him playing an overanxious role during the medical proceedings, the breach of duty to take basic standard of medical care on the part of Defendants is not diluted. To that extent, contributory negligence is not pertinent. It may, however, have some role to play for the purpose of damages. (Emphasis laid by this Court) A careful reading of the above paragraphs together from the decision of Malay Kumar Ganguly's case would go to show that the claimant though overanxious, did to the patient what was necessary as a part of the treatment. The National Commission erred in reading in isolation the statement of this Court that the claimant&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97,56,07,000/- that includes pecuniary damages of Rs. 34,56,07,000/- and non pecuniary damages of Rs. 31,50,00,000/-, special damages of US $ 4,000,000 for loss of job/house in Ohio and punitive damages of US $ 1,000,000. The updated break-up of the total claim has been perused and the same has not been considered by the National Commission keeping in view the claim and legal evidence and observations made and directions issued by this Court in Malay Kumar Ganguly's case to determine just and reasonable compensation. Therefore, we are of the view that the claimant is entitled for enhanced compensation that will be mentioned under different heads which will be noted in the appropriate paragraphs of this judgment. 129. The National Commission has also not taken into consideration the observations made by this Court while remanding the case for determining the quantum of compensation with regard to the status of treating doctors and the Hospital. Further, the National Commission has failed to take into consideration the observations made in the aforesaid judgment wherein in paragraphs 152 and 155 it is held that AMRI Hospital is one of the best Hospitals in Calcutta and the doct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f premature death of the claimant's wife was calculated by the said witness who is an Economist in America and he has also deducted one-third for her personal expenses out of her annual income which is at par with the law laid down by this Court in number of cases including Sarla Verma's case (supra). In the cross examination of the said expert witness by the learned Counsel for the Appellant-doctors and the Hospital, he has also explained how he calculated the loss of income on the premise of the premature death of the claimant's wife. According to Prof. John F. Burke, the above calculation of 5 million and 125 thousand dollars for loss of income of the deceased was a very conservative forecast and other estimates the damages for her premature death could be 9 to 10 million dollars. It is the claim of the claimant that loss of income of multi-million dollars as direct loss for the wrongful death of the deceased may appear as a fabulous amount in the context of India but undoubtedly an average and legitimate claim in the context of the instant case has to be taken to award just compensation. He has placed reliance upon the judgment of this Court in Indian Medical Associ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy has gone down since the time when these legal proceedings have begun in this country. This argument of the claimant has been accepted by us while answering the point Nos. 2 and 3. Therefore, it will be prudent for us to hold the current value of Indian Rupee at a stable rate of Rs. 55/- per 1$. Therefore, under the head of 'loss of income of the deceased' the claimant is entitled to an amount of Rs. 5,72,00,550/- which is calculated as [$ 40,000+(30/100x40,000$)-(1/3 x 52,000$) x 30 x Rs. 55/-] = Rs. 5,72,00,550/-. Other Pecuniary Damages: 135. The pecuniary damages incurred by the claimant due to the loss of the deceased have already been granted while answering the point No. 5. Therefore, we are not inclined to repeat it again in this portion. However, the expenditure made by the claimant during the treatment of the deceased both in Kolkata and Mumbai Hospitals deserves to be duly compensated for awarding reasonable amount under this head as under: (a) For the medical treatment in Kolkata and Mumbai: 136. An amount of Rs. 23 lakhs has been claimed by the claimant under this head. However, he has been able to produce the medical bill only to the extent of Rs. 2.5 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mant and Rs. 4,50,00,000/- for pain and suffering endured by the deceased during her treatment. 140. In this regard, we are inclined to make an observation on the housewife services here. In the case of Arun Kumar Agarwal v. National Insurance Co. (2010) 9 SCC 218, this Court observed as follows: 22. We may now deal with the question formulated in the opening paragraph of this judgment. In Kemp and Kemp on Quantum of Damages, (Special Edn., 1986), the authors have identified various heads under which the husband can claim compensation on the death of his wife. These include loss of the wife's contribution to the household from her earnings, the additional expenses incurred or likely to be incurred by having the household run by a housekeeper or servant, instead of the wife, the expenses incurred in buying clothes for the children instead of having them made by the wife, and similarly having his own clothes mended or stitched elsewhere than by his wife, and the loss of that element of security provided to the husband where his employment was insecure or his health was bad and where the wife could go out and work for a living. 23. In England the courts used to award damages ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which has deterred him. Whatever be the reason, the plain fact is that the deceased's services at the weekend have not been replaced. They are lost to the Plaintiff and to the boys. He then proceeded to observe: (WLR p. 309 A-D) I have been referred to a number of cases in which judges have felt compelled to look upon the task of assessing damages in cases involving the death of a wife and mother with strict disregard to those features of the life of a woman beyond her so-called services, that is to say, to keep house, to cook the food, to buy the clothes, to wash them and so forth. In more than one case, an attempt has been made to calculate the actual number of hours it would take a woman to perform such services and to compensate dependants upon that basis at so much an hour and so relegate the wife or mother, so it seems to me, to the position of a housekeeper. (Emphasis laid by this Court) While I think that the law inhibits me from, much as I should like to, going all the way along the path to which Lord Edmund-Davies pointed, I am, with due respect to the other judges to whom I have been referred, of the view that the word 'services' has been too narrow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier. 30. In A. Rajam v. M. Manikya Reddy, M. Jagannadha Rao, J. (as he then was) advocated giving of a wider meaning to the word "services" in cases relating to award of compensation to the dependants of a deceased wife/mother. Some of the observations made in that judgment are extracted below: The loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of 'services' to the family, if there was reasonable prospect of such services being rendered freely in the future, but for the death. It must be remembered that any substitute to be so employed is not likely to be as economical as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the peculiar feature obtaining in that case which has got nothing to do with the statutory compensation payable under the provisions of the Motor Vehicles Act. (Emphasis laid by this Court) 141. Also, in a three judge Bench decision of this Court in the case of Rajesh and Ors. v. Rajvir Singh and Ors. 2013 (6) SCALE 563, this Court held as under: 20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2,500/- to Rs. 10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/- to Rs. 10,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngredient of pain and suffering and the claimant's particular circumstances may well be highly relevant to the extent of her suffering. ... By considering the nature of amenities lost and the injury and pain in the particular case, the court must assess the effect upon the particular claimant. In deciding the appropriate award of damages, an important consideration show long will he be deprived of those amenities and how long the pain and suffering has been and will be endured. If it is for the rest of his life the court will need to take into account in assessing damages the claimant's age and his expectation in life. That applies as much in the case of an unconscious Plaintiff as in the case of one sentient, at least as regards the loss of amenity. The extract from Malay Kumar Ganguly's case read as under: 3. Despite administration of the said injection twice daily, Anuradha's condition deteriorated rapidly from bad to worse over the next few days. Accordingly, she was admitted at Advanced Medicare Research Institute (AMRI) in the morning of 11-5-1998 under Dr. Mukherjee's supervision. Anuradha was also examined by Dr. Baidyanath Halder, Respondent 2 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izam Institute's case (supra) and also applying the principles laid in Kemp and Kemp on the "Quantum of Damages", under the head of 'pain and suffering of the claimant's wife during the course of treatment'. 146. However, regarding claim of Rs. 50,00,000/- by the claimant under the head of 'Emotional distress, pain and suffering for the claimant' himself, we are not inclined to award any compensation since this claim bears no direct link with the negligence caused by the Appellant-doctors and the Hospital in treating the claimant's wife. In summary, the details of compensation under different heads are presented hereunder: Loss of income of the deceased Rs.5,72,00,550/- For Medical treatment in Kolkata and Mumbai Rs.7,00,000/- Travel and Hotel expenses at Mumbai Rs.6,50,000/- Loss of consortium Rs.1,00,000/- Pain and suffering Rs.10,00,000/- Cost of litigation Rs.11,50,000/- 147. Therefore, a total amount of Rs. 6,08,00,550/- is the compensation awarded in this appeal to the claimant Dr. Kunal Saha by partly modifying the award granted by the National Commission under different heads with 6% interest per annum from the date of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rjee and Dr. Baidyanath Haldar are liable to pay compensation to the tune of Rs. 10 lakhs each and Dr. Balram Prasad is held liable to pay compensation of Rs. 5 lakhs to the claimant. Since, the Appellant-doctors have paid compensation in excess of what they have been made liable to by this judgment, they are entitled for reimbursement from the Appellant-AMRI Hospital and it is directed to reimburse the same to the above doctors within eight weeks. 152. The Civil Appeal No. 692/2012 filed by the Appellant-AMRI Hospital is dismissed and it is liable to pay compensation as awarded in this judgment in favour of the claimant after deducting the amount fastened upon the doctors in this judgment with interest @ 6% per annum. 153. The Civil Appeal No. 2866/2012 filed by the claimant-Dr. Kunal Saha is also partly allowed and the finding on contributory negligence by the National Commission on the part of the claimant is set aside. The direction of the National Commission to deduct 10% of the awarded amount of compensation on account of contributory negligence is also set aside by enhancing the compensation from Rs. 1,34,66,000/- to Rs. 6,08,00,550/- with 6% interest per annum from the da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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