Delhi District Court
Smt Saroj Sharma vs Government Of National Capital ... on 28 May, 2019
THE COURT OF SH. JOGINDER PRAKASH NAHAR, ADDITIONAL
DISTRICT JUDGE-04, CENTRAL, TIS HAZARI COURTS, DELHI
Suit No. 614020/16
1.SMT SAROJ SHARMA
W/O LATE SH. SURINDER PAL SHARMA
2. MS. SHARDA
D/O LATE SHRI SURINDER PAL SHARMA
3. MS. URVASHI
D/O LATE SHRI SURINDER PAL SHARMA
4. MASTER SWAMI
S/O LATE SHRI SURINDER PAL SHARMA
5. MASTER RISHI
S/O LATE SHRI SURINDER PAL SHARMA
(PLAINTIFF NO. 3 TO 5 ARE THE MINORS
AS SUCH BEING REPRESENTED
THROUGH THEIR MOTHER NATURAL
GUARDIAN AND NEXT FRIEND
SMT. SAROJ SHARMA PLAINTIFF NO.1)
ALL R/O QR.NO.663, SECTOR-1
RAMA KRISHNA PURAM
NEW DELHI-110066 ......Plaintiffs
Versus
1. GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI
THROUGH ITS SECRETARY
MEDICAL AND PUBLIC HEALTH DEPARTMENT
OLD SECRETARIAT, DELHI-110054
2. DR. AJAY SHARMA
ASSOCIATE PROFESSOR
DEPARTMENT OF NEURO-SURGERY
G.B. PANT HOSPITAL
NEW DELHI -110002
3. THE DIRECTOR
G.B. PANT HOSPITAL
NEW DELHI-110002
4. UNION OF INDIA
THROUGH ITS SECRETARY
MINISTRY OF HEALTH
GOVERNMENT OF INDIA
NEW DELHI ......Defendants
Date of Institution : 24.04.1996
Date of Judgment reserved on : 28.05.2019
Date of Judgment : 28.05.2019
JUDGMENT
SUIT FOR RECOVERY OF RS.56,93,435.50
1. The present suit is filed by the plaintiffs for the recovery of Rs.56,93,435.50/- against the defendants.
2. Plaintiff no. 3 and 5 are minors who are filing the present suit through their mother as natural guardian. Plaintiff no.1 is widow of Sh. Surinder Pal Sharma. The minors nos. 2 and 3 are the daughters and the plaintiff no.4 and 5 are the sons of late Surinder Pal Sharma.
3. Late Sh. Surinder Pal Sharma was DSP in CBI having CGHS scheme health facility. The medical authority at Safdarjung Hospital referred him to G.B. Pant Hospital for checkup after tests. He was admitted on 06.2.95 at G.B. Pant Hospital under supervision of Dr. Ajay Sharma/ Defendant no. 2 at bed no. 117, Ward No. 16 of Neuro-Surgery department. Various other tests were conducted on him including Myelogram which was conducted on 13.2.95.
4. As per note of Dr. Vidyarthi on 11.02.95 at 11.20 PM the patient was reportedly sleeping comfortably. On 12.2.95, the patient complained in the back graded one plus and difficulty in breathing. On examination the patient was found non-cynotic pulse 80/minute regular BP 140/80 mm HG chest was clear and heart sound was S1 and S2. The medicine provided were syrup Bromhexine one full table spoon three times a day. On 13.2.95 Lumbar Myelogram test was done. Dr. Ajay Shama got conducted the test without his personal presence. He did not examine the patient after the test and even after deterioration in condition of the patient. Dye was flowing upto cervical region. No block was seen at D-4 level (Fourth Thoracic Vertebra). The patient was given injection Avil and injection Peri-norm both one ampule. On 13.2.95 at about 1.00 PM Dr. Vidyarthi had received a phone from Ward No. 16 and found that patient had repeated convulsion. The patient was found in state of epileptical with pulse rate 100 per minute and BP 140/80 mmHg, synosis +. The attending Doctor had asked for injection Dilantin (300 mg.) It was not available in the Ward on which the doctor had asked for Laryngoscope and Endortracheal Tube (No.8) which was not found in working order. A staff nurse was requested to get the following items from another ward:-
a) Working Laryngoscope
b) Oxygen Cylinder
c) Injection Dilantin Intravenous
d) Injection Diazapam
e) Injection Hydrocortisone Ventilation was started with AMBU bag with mask. A relative was sent to purchase the injection Dilantin from chemist shop. During this period the patient was having two more episode of convulsion and attempt to Intubate had failed due to short blade of Laryngoscope and other blade of Laryngoscope was not found in working order. Call was sent to anesthetist in operation theater at 1.30 PM and Dr. Harminder came and intubated the patient with fresh Laryngoscope and ventilation. Injection Adrenaline one ampule was also given. Injection Sodabicarb, injection Calcium Glusconate were also administered. Cardiac massage was done but no cardiac activity was seen. The above injection and massage activity were repeated but cardiac activity did not appear and the patient was declared dead at 2.00 PM.
5. An inquiry was conducted and Dr. Vidyarthi was terminated without any fault and negligence. The report had not attributed fault or negligence on any doctor attending and who conducted the test on the deceased. Lack of coordination between the Neuro Surgery and Radiology were pointed out. Lack of emergency facility in the Nursing Home was found and corrective measures were recommended in the Inquiry report and the hence the Enquiry Officer has shielded the negligence of its staff and officers and such deficiency in the hospital. Even the emergency medicine and equipment were not kept in the hospital and equipment were not found in working order. Life saving medicine should be kept before conducting the test on the patient. The patient was not even kept in ICU who was aged 46 years at the time of his death having life expectancy of 80 years and could have been appointed DIG at the time of his retirement among other pay and perks. A huge amount was spent on medical and other connected expenses only part of which is reimbursed. Other than this loss of affection, social and mental agony and suffering of family which cannot be compensated in terms of money and only token amount of Rs. Fifty Lakhs as compensation in joint and several liabilities of the defendants is claimed. Interest at the rate of one percent per month is claimed on the due amount from the date of death till its payment. A petition by the plaintiff with defendant no.1 was lodged reply to which dated 19.12.95 was received and registered. Notice dated 30.1.96 was sent to the defendant on 31.1.96 to which no reply is received. Receipt of the notice is admitted by the defendant no. 1. Hence the plaintiff has prayed for a decree for a sum of Rs.56,93,435.50/- against all the defendants.
6. Written statement is filed by the defendant no. 1 and 3 jointly. It is submitted that the notice under Section 80 CPC was not served on the defendant through a public officer in a official capacity. It is submitted that late husband (hereinafter referred as patient) of the plaintiff was examined by Dr. Ajay Sharma/defendant no.2 on 31.1.1995 who was suffering from pain and weakness in both the lower limbs as a result of suspected Plasmacytoma. The patient was diagnosed as suffering from multiple Myeloma involving Thoracic Fourth Vertebra. It is most commonly found tumor of bones in adult human beings. The patient was extensively treated for backache at GTB Hospital Delhi from 1.8.93 to 29.8.93 thereafter the patient had developed weakness of both lower limbs and confined to bed for over a month. The Safdarjung Hospital and AIIMS had made diagnosis of disease Chemical Arachnoiditis which is a chronic disease resulting from chemical reactions to local injection. The patient could not walk without aid of a walker and unable to perform his daily active duties. The real cause of his weakness was not known to the doctors at Safdarjung Hospital. The patient was earlier suspected to be suffering from Chemical Arachnoiditis and later on from Plasmacytoma.
7. On examination the patient was found with marked weakness of both legs with loss of sensation in lower limbs and trunk. It is submitted that a Repeat Magnetic Resonance Imaging study of the spine could not explain the said symptoms and accordingly Shri S.P. Sharma was advised to undergo a Myelography. Myelography refers to a radiological investigation for visualization of the structures of spinal canal by means of injecting a radiopaque dye and taking X-rays (Skiagrams).
8. The patient was advised admission at G.B. Pant Hospital for further investigation on 6.02.95 and the Myelography test was done on 13.2.95. Detailed investigation before the test for six days were conducted on the patient and he was examined. During the said six days after Shri S.P. Sharma's admission to the G.B. Pant Hospital on 06.2.1995 detailed investigation, inter-alia of blood including blood sugar both fasting and after meals, blood electrolyte estimation, blood urea and creatinine estimation, liver function test, kidney function test, blood coagulation time and urine analysis of Shri S. P. Sharma were conducted. As there was a doubtful history of Shri S.P. Sharma suffering from diabetes, Shri S.P. Sharma was regularly and extensively monitored by urine sugar chartings on a daily basis. Further, Shri S.P. Sharma was also evaluated by a Neurologist, on 09.2.1995 and was advised nerve conduction studies and Myelography. Shri S.P. Sharma was also evaluated by a Cardiologist on 10.2.1995 and his Electrocardiogram (ECG) were also done. Shri S.P. Sharma was also examined thoroughly and extensively by a General Physician on 11.2.1995.
9. Dr. Vidyarthi Sr. Resident, Department of Neuro Surgery and Dr. Abha Sr. Resident, Department of Radiology had conducted the Myelography Test on 13.2.95. The Myelography is a radiological procedure conducted by a Radiologist in presence of Sr. Resident Neuro Surgery. On 13.2.95 the defendant no.2 was in the operation theater who was conducting operation as per his duty roster day which is Monday. Defendant no. 2 being the only admitting surgeon is not required to be present during investigation who had also to attend other duties assigned to him by the hospital administration.
10. After going through Myelography the patient complained of nausea and vomiting. About 1.00 PM on 13.2.1995 Dr. Vidyarathi attended upon the deceased Sh. S.P. Sharma for convulsion. The patient complained and for this complaint immediate appropriate standard treatment that is intravenous injunction of Dilantin was given to the deceased Sh. S.P. Sharma, who was thereafter put on the ventilator. Defendant reported that the convulsion complained of by the deceased Shri S.P. Sharma could possibly have been due to the dye which is injected into a patient undergoing Myelography. It is further submitted that another possible cause of the said convulsion could be due to low sugar level in the blood of Shri S.P. Sharma as he might not have had sufficient food prior to the Myelography and as often happens in suspected cases of diabetes. Defendant further submitted that Shri S.P. Sharma was provided with standard and appropriate medical treatment immediately after he complained of convulsion.
11. It is further submitted that in the month of January 1995 Dr. A.K. Sharma a relative of deceased sought appointment from defendant no. 2 for 31.01.1995 for medical check up complaining weakness and pain in both lower limbs. Defendant no. 2 conducted extensive check up of deceased on 31.01.1995 at room no. 527 Academic Block, G.B. Pant Hospital, New Delhi. An MRI was advised. After MRI the defendant no. 2 examined the deceased again and diagnosed as suffering from Arachnoiditis as a reaction to certain local Epidural injections received by the deceased when the deceased was treated at Safdarjung Hospital before referral to G.B. Pant Hospital. In this background Myelography test was conducted under Medical Incharge, the defendant no. 2 at Department of Radiology by a Senior Resident, Department of Neuro-Surgery by Senior Resident. During the entire operation Professor A.K. Singh was also present from Neuro-Surgery department. Dr. Ajay Sharma was in operation theater at the relevant time of conducting of Myelography test. Defendant no. 2 being only an admitting surgeon is not required to be present during investigations he was busy in other duty. Senior Professor Neuro-Surgery Sh. A.K. Singh was Incharge of the investigations. Myelography test was conducted on 13.02.1995. The presence of defendant no. 2 was not necessary at the time of conducting Myelography test which was conducted by Dr. Vidyarthi, Senior Resident, Department of Neurosurgery and Dr. Abha, Senior Resident, Department of Radiology under supervision of Professor A.K. Singh. As per duty roster defendant no. 2/Dr. Ajay Sharma was in operation theater Monday being his operation day and he was only an admitting surgeon not required to be present during medical investigations.
12. It is submitted by defendant no. 1 and 3 that Dr. Vidyarthi found pulse rate of deceased at 100 per minute, blood pressure at 140/80 mmHg and synosis +. Injection Dilantin 300 mg was administered by Dr. Vidyarthi which was available in the ward. Laryngoscope was in order and suction machine was working. Ventilation was working which was put on deceased using AMBU bag and mask and deceased was intubated by a number 8 Endutracheal tube and ventilation was started. Deceased again complained of convulsion and had cardiac arrest. Cardio-Respiratory Resuscitation was given and Anesthetist Dr. Harminder was called from operation theater no. 2. Injection of Adrenaline 2 AP, Soda Bicarbonate 150 mg and Calcium Glusconate 10 ml were administered. Thereafter intra- cardiac Adrenaline was also given but death could not be prevented. The above information is derived by the hospital record. Inquiry was conducted by Secretary (Medical), Govt. of NCT of Delhi at the instance of plaintiffs and no fault or negligence was attributed to Doctors.
13. The average life of Indian males is 60 years as per statistics compiled by Directorate General of Health Services in the year 1992 and the deceased was drawing basic pay for a sum of Rs.3,300/- per month and not Rs.5,100/- per month and therefore there is no justification for claim of Rs.50 lakhs by the plaintiffs as compensation. It is submitted that there is no negligence of the attending doctors and hospital and the suit of the plaintiff may be dismissed with costs.
14. Written statement is filed by defendant no. 2 separately. It is submitted that defendants no.2 & 3 are Public Officers in employment of Govt. of NCT of Delhi and they cannot be impleaded without service of notice u/Sec. 80 of CPC which is mandatory in nature. The late husband of plaintiff Sh. S.P. Sharma was examined by defendant on 31.01.1995 who was referred to G.B. Pant Hospital from Safdarjung Hospital at New Delhi. The patient was suffering from pain and weakness in both lower limbs as a result of suspected Plasmacytoma. At Safdarjung Hospital the patient was diagnosed suffering from multiple Myeloma involving Thoracic Fourth Vertebra. It is submitted that Plasmacytoma is the most commonly found malignant tumour of bones in adult human being. The patient was extensively treated at GTB Hospital Delhi in June, 1993 for backache and administered local injections on 01.08.1993 and 29.08.1993. Subsequently, the patient was confined to bed for over a month at Safdarjung Hospital and AIIMS. The diagnosis of Chemical Arachnoiditis was made which is a chronic progressive disease resulting from chemical reaction to local injection. The patient could not walk without aid of a walker. In such condition he came to G.B. Pant Hospital. The patient was unable to perform his daily active duties. At the time of his reference to G.B. Pant Hospital the real cause of his backache and weakness was not known. Earlier he was suspected to be suffering from Chemical Arachnoiditis and later from Plasmacytoma. He had marked weakness in both legs with loss of sensation in lower limbs and trunk. Repeat Magnetic Resonance Imaging Study of spine could not explain symptoms due to which the patient was advised Myelography which is a radiological investigation for visualization of structures of spinal canal by means of injecting a radio opaque dye and taking X-rays (Skiagrams). Patient was advised for admission at G.B. Pant Hospital on 06.02.1995 and was prepared for Myelography test for six days which was conducted on 13.02.1995. Detailed investigation of blood, blood sugar both fasting and after meals, blood electrolyte estimation, blood urea and creatinine estimation, liver function test, kidney function test, blood coagulation time and urine analysis were conducted. The patient had doubtful history of diabetes. He was evaluated by Neurologist on 09.02.1995 and was advised nerve conduction and Myelography. He was evaluated by Cardiologist vide ECG dated 10.02.1995. He was examined thoroughly by General Physician on 11.02.1995 hence all care was taken.
14.1 It is submitted by defendant no.2 that on 13.02.1995 the Myelography test was conducted by Dr. Vidyarthi, Sr. Resident, Department of Neurosurgery and Dr. Abha, Sr. Resident, Department of Radiology. During the entire test, Prof. A.K. Singh was also present. The defendant no.2 was in operation theater on 13.02.1995 as per his duty roster which was Monday the day of operation for the surgeon. The defendant no.2 was surgeon for admitting patient and not required to be present during investigation. A Senior Professor of Neuro-Surgery was Incharge of investigation.
14.2 After undergoing myelography test the patient complained of nausea and vomiting on which he received 1 mg. Phenergan, 1 ap intramuscular injection, 1 mg. Avil, 1 ap Intravenous injection as standard treatment prescribed for said complaint. At 9.30 A.M., the patient was shifted to room on 13.02.1995. At 1.00 P.M., Dr. Vidyarthi attended the patient for some convulsion on which standard treatment of intravenous injection of Dilantin was given and thereafter the patient was put on ventilator. The convulsions could be due to the dye injected before conducting the test of Myelography. Another possible cause of convulsion is low sugar level in the blood which is due to not having sufficient food prior to Myelography test. This happens in suspected case of diabetes.
14.3 The defendant no.2 had conducted extensive check up of deceased on 31.01.1995 on his such approach through Dr. A.K. Sharma/relative of deceased for weakness and pain in both the lower limbs. MRI study was advised which was conducted. He was diagnosed suffering from Arachnoiditis which was reaction to certain local epidural injections received during his treatment at Safdarjung Hospital. Myelography is a radiological procedure undertaken in the Department of Radiology by the Radiologist in the presence of Senior Resident doctors of Department of Neuro-Surgery. During investigation the presence of defendant no.2 was not required being admitting Surgeon. It is submitted that an enquiry was conducted by Secretary (Medical), Govt. of NCT of Delhi at the instance of plaintiffs in which no fault or negligence was attributed to any doctor.
14.4 It is submitted by defendant no.2 that average life expectancy of Indian males is 60 years. At the time of admission at G.B. Pant Hospital the basic pay of deceased was Rs.3,300/- per month. It is submitted that inspite of all care life of patient cannot be saved in all cases. It is submitted that the suit of the plaintiff may be dismissed with costs as defendant is not negligent.
15. Defendant no.4 is ex-parte vide order dated 28.04.1998 who is Union of India through Secretary. Vide order dated 10.07.2000 the defence of all the defendants was struck off on non-appearance of the defendants and not filing reply to application of plaintiff under Rule 15 of Order XI CPC under IA no.7759/99 for producing documents mentioned in the application. The plaintiff had also moved an application under Rule 14 of Order XI CPC vide IA no. 3394/98 praying that defendant be directed to produce documents mentioned therein which defendant did not produce.
16. The documents of plaintiff were exhibited as Ex.PA/1 to Ex.PA/5, Ex.PW6/6A, P-7/8 and PA-9/9A, 10 to 71 to 71A on 22.02.2005. The matter was listed for plaintiff's ex-parte evidence vide order dated 20.02.2007 therefore the defendants are deemed to be ex-parte on 20.02.2007. Plaintiff has led ex-parte evidence and PE was closed on 22.09.2016 vide order of the Court.
16.1 Ex-parte final arguments are heard in the matter and record is perused.
16.2 Ld. Counsel for plaintiff has relied on citation titled Banganga Co-operative Housing Society Ltd. Mumbai v. Vasanti Gajanan Nerurkar AIR 2015 (NOC) 1132 (BOM.) wherein it is held at para no. 7 and 8 that once an evidence by way of affidavit is filed, and since there is no absolute requirement of it being required to be reaffirmed by deponent from witness box before that affidavit forms part of evidentiary record, it follows that it is examination in chief as soon as it is affirmed and filed and it is not thereafter possible to withdraw an evidence affidavit. It may be permissible to file a further affidavit u/R. 4 of Order XVIII CPC as there is no impeadment for taking additional examination in chief. There cannot be withdrawal of evidence affidavit which cannot be for examination in chief. When the witness after such filing of evidence by way of affidavit not willing to undergo cross-examination or was withheld and not offered for cross- examination then adverse inference is drawn against such witness or party. However evidence in such affidavit against opposite party is to be ignored and evidence in favour of opposite party can be relied upon as admission u/Sec. 114 of Indian Evidence Act, 1872. It was so laid down at para no. 12 and 22. Ld. Counsel for plaintiff has also relied on citation State of Rajasthan v. Darshan Singh @ Darshan Lal IV (2012) SLT 179 wherein at para no. 16 it is laid down that omission of administration of oath or affirmation does not invalid to any evidence though it is desirable. The case titled Rameshwar v. State of Rajasthan AIR 1952 SC 54 is relied upon in that the main purpose of administering of oath is to render persons who give false evidence liable to prosecution and further to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, further such matters only touch credibility and not admissibility. Hence the plaintiff in the present case has relied on evidence tendered by her.
17. Parties are heard and record perused.
17.1 Ld. Counsel for plaintiff has relied on following citations:
1) Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128
2) Vishwanath Shivling Birajdar v. Gangadhar Sangram Mitkari & ors. II (2014) CPJ 184 (NC)
3) Baidya Nath Chakraborty (Dr.) & Ors. v. Chandi Bhattacharjee & Ors. II (2014) CPJ 601 (NC)
4) Nizam Institute of Medical Sciences v. Prasanth S. Dhananka & Ors. III (2010) SLT 734
5) M.P. Jain & S.N. Jain Principles of Administrative Law
6) Banganga Co-operative Housing Society Ltd. Mumbai v. Vasanti Gajanan Nerurkar AIR 2015 (NOC) 1132 (BOM.)
7) State of Rajasthan v. Darshan Singh @ Darshan Lal IV (2012) SLT 179
8) North East Karnataka Road Transport Corporation v. Sujatha AIR 2018 SC 5593
9) Archer Trading House Pvt. Ltd. & Anr. v. Eurobond Industries Ltd. AIR 2015 (NOC) 1131 (BOM.)
10) State of Rajasthan v. Darshan Singh @ Darshan Lal IV (2012) SLT 179
11) Sebastiani Lakra v. National Insurance Company Ltd. AIR 2018 SC 5034
18. The negligence and duty owes to patient is well laid down in citation titled Kusum Sharma & Ors. v. Batra Hospital & Medical Research, wherein Hon'ble Supreme Court of India in Civil Appeal No. 1385 of 2001 dated 10.02.2010 has laid down the Law at relevant para as under:-
The appellants attributed death of Shri Sharma because of negligence of the doctors and the hospital. The appellants alleged that the informed consent was completely lacking in this case. The appellants also alleged that the only tests done before operation to establish the nature of tumor were ultrasound and C.T. scan which clearly showed a well capsulated tumor of the size 4.5 x 5 cm. in the left adrenal and the right adrenal was normal.
The appellants alleged that the deceased Shri Sharma had no access whatsoever to any of the hospitals records before filing the complaint.
The appellants also alleged that there was nothing on record to conclusively establish malignancy of the tumor before the operation was undertaken. The appellants also had the grievance that they were not told about the possible complications of the operation. They were told that it was a small and specific surgery, whereas, the operation lasted for six hours. The appellants alleged that pancreatic abscess was evident as a result of pancreatic injury during surgery. The appellants further alleged that there was nothing on record to show that Dr. Kapil Kumar, respondent no. 3 possessed any kind of experience and skill required to undertake such a complicated operation.
15. The appellants also had the grievance that they were not informed in time of the damage caused to the body of pancreas and the removal of the spleen.
16. According to the appellants, the `anterior' approach adopted at the time of first surgery was not the correct approach. Surgery should have been done by adopting `posterior' approach for removal of left adrenal tumor. Dr. Kapil Kumar, respondent no. 3 after the first operation on 2.4.1990 told the appellants that the operation was successful and the tumor was completely removed which was in one piece, well defined and no spreading was there.
After the surgery, blood was coming out in a tube which was inserted on the left side of the abdomen. On specific query made by the deceased and appellant no.1, respondent nos. 2 and 3 told them that the pancreas was perfectly normal but during operation on 2.4.1990, it was slightly damaged but repaired instantly, hence there was no cause of any anxiety. When the fact of damage to pancreas came to the notice of the deceased, he asked for the details which were not given. The appellants alleged that the tumor taken out from the body was not malignant.
48. According to Halsbury's Laws of England Ed.4 Vol.26 pages 17-18, the definition of Negligence is as under:-
"Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient
(c)."
49. In a celebrated and oftenly cited judgment in Bolam v. Friern Hospital Management Committee (1957) I WLR 582 : (1957) 2 All ER 118 (Queen's Bench Division - Lord Justice McNair observed.
"(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view.
The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; See 70 Corpus Juris Secundum (1951) 952, 953, para 44.
Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence ibid. 971, para 48).
Lord Justice McNair also observed : Before I turn that, I must explain what in law we mean by "negligence". In the ordinary case which does not involve any special skill, negligence in law means this : some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case, it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Claphm omnibus, becausehe has not got this man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if her exercises the ordinary skill of an ordinary competent man exercising that particular art."
50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said : `It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."
52. It was also observed in the same case that "We must not look at the 1947 accident with 1954 spectacles:". "But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.
53. In Whitehouse v. Jordon & Another (1981) 1 All ER 267 House of Lords per Lord Edmund-Davies, Lord Fraser and Lord Russell:
"The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair Jo. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 at 121).
54. In Chin Keow v. Government of Malaysia & Anr. (1967) WLR 813: the Privy Council applied these words of McNair J in Bolam v. Friern Hospital Management Committee:
"..........where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill."
55. This court in the case of State of Haryana v. Smt. Santra (2000) 5 SCC 182 in the matter of negligence relied upon the case of Bolam v. Friern Hospital Management Committee (supra) and on Whitehouse v. Jordan & Another (supra).
56. In Poonam Verma v. Ashwin Patel & Ors. (1996) 4 SCC 332 where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under:-
"Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se."
58. Negligence per-se is defined in Black's Law Dictionary as under:-
Negligence per-se: - Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes."
59. In Bolam v. Friern Hospital Management Committee (supra), Lord McNair said : "..........I myself would prefer to put it this way : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men in that particular art". In the instant case, expert opinion is in favour of the procedure adopted by Opposite Party No.3 at the time of Surgery on 2.4.90.
60. The test is the standard of ordinary skilled man exercising and professing to have that special skill.
61. In Roe and Woolley (supra) Lord Denning said:
"We should be doing a dis-service to the community at large if we were to impose liability on Hospitals and Doctors for everything that happens to go wrong".
88. In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, this Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
89. In Spring Meadows Hospital & Another (supra), the court observed that an error of judgment is not necessarily negligence. In Whitehouse (supra) the court observed as under:-
"The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence."
90. In Jacob Mathew's case (supra), conclusions summed up by the court were very apt and some portions of which are reproduced hereunder:-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the profession. The test is of ordinary skilled man exercising and professing to have that special skill. An error of judgment may or may not be negligent, which dependents on the nature of error. In the context of medical profession, the negligence means treatment with a difference. A simple lack of care, error of judgment or any accident is not proof of negligence on the part of medical professional. So long as the doctor follows a practice acceptable to medical profession of that day. The doctor can not be held liable, if a better alternative course of method of treatment were also available or simply because a more skilled doctor would not have choosen the course the defendant has followed.
19. Ld. Counsel for plaintiff has relied on citation titled Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 at para no. 11 describing duties of doctor towards patient as follows:
11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those, duties gives a right of action for negligence to, the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require : (cf. Halsbury's Laws of England 3rd ed. vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. But the question is not whether the judgment or discretion in choosing the treatment be exercised was right or wrong, for, as Mr. Purshottam rightly agreed, no such question arises in the present case because if we come to the same conclusion as the High Court, viz., that what the appellant did was to reduce the fracture without giving anesthetic to the boy, there could be no manner of doubt of his being guilty of negligence and carelessness. He also said that he was not pressing the question whether in this action filed under the Fatal Accidents Act (XIII of 1855) the respondents would be entitled to get damages. The question, therefore, is within a small compass, namely, whether the concurrent findings of the trial court and the High Court that what the appellant did was reduction of the fracture without giving anesthetic to the boy and not mere immobilisation with light traction as was his case, is based on evidence or is the result of mere conjecture or surmises or of misunderstanding of that evidence.
20. The four basic elements to medical negligence/malpractice must be proved in case of medical negligence as held in case titled Vishwanath Shivling Birajdar (Dr.) v. Gangadhar Sangram Mitkari & Ors. II (2014) CPJ 184 (NC) at para no. 10, 11, 12 and 13 which are reproduced hereasunder:
10. There are four basic elements to a medical negligence/ malpractice case. The four legal elements (4 Ds) must be proven by complainant to succeed in a medical negligence case.
(1) Duty - a professional duty owed to the patient;
(2) Deficiency / Breach of such Duty;
(3) Direct Causation-injury caused by the breach (Causa Causans) (4) Resulting Damages.
Causation means that the medical professionals breach of the standard of care caused or contributed to causing some harm to the patient. In this case, even if the untrained compounder has given pain killer injection Voveron to Ganesh, it did not cause any damage to the patient. Hence, we refrain ourselves to consider this issue, as a medical negligence.
11. We have relied upon several judgements of Honble Supreme Court and this Commission on medical negligence.
In Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) was concluded that, a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.
12. Also, we like to refer to the Bolam test, in this context. In the Bolams case (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR
582) it was also held that a doctor is not negligent, if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. Applying the above principles in the instant case, we do not find any medical negligence on the part of OP-1 and OP-2, who have used their best professional judgment and took due care during surgery and during unexpected CVA to the deceased Ganesh.
13. Since, the present case is based upon an allegation of deviation from ordinary professional practice, it is worth to refer Lord President Clyde in Scottish case Hunter v Hanley 1955 SC 200, wherein it has laid down the following requirements to be established by the patient to fasten liability in case of negligence committed by a doctor:
"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail."
21. In the citation titled Baidya Nath Chakraborty (Dr.) & Ors. v. Chandi Bhattacharjee & Ors. II (2014) CPJ 601 (NC). The negligence is defined under para no. 10, 11, 12 and 13 which is reproduced hereasunder:
10. The term negligence defies any precise meaning. Eminent jurists and leading Judgments on the point have assigned various meanings to the said term. In the Law of Torts, Ratanlal & Dhirajlal (26th Ed., 2010) at page 474, Justice G.P. Singh, summarized the concept of negligence as follows:-
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. According to Winfield, negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (2) Breach of the said duty; and (3) consequential damage.
11. Halsburys Laws of England (Fifth Ed. Vol.78) states the nature of negligence liability as under:-
Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.
12. The law of negligence applies to doctors, as it applies to other professionals like lawyers, architects, etc., as they are required to perform the task assigned to them with the requisite skill and expertise possessed by them for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution.
13. In Bolam V. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD), oft-quoted as Bolam test, generally accepted as a true enunciation of the meaning of the expression negligence by the medical practitioners, McNair J. said:
In the ordinary case which does not involve any special skill, negligence in law means this: Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus. Because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. (Emphasis supplied).
22. In the citation titled Nizam Institute of Medical Sciences v. Prasanth S. Dhananka & Ors. III (2010) SLT 734 has laid down at para no. 13, 15, 25, 27 and 33 that complete investigation prior to operation not carried out which needed intervention of Neuro-Surgeon before operation attending doctors not associated Neuro-Surgeon at pre-operated and at the stage of operation. It is laid down that Neuro-Surgeon must have been associated with the diagnosis and the actual operation. In the present case the Neuro-Surgeon and the admitting doctor has not associated himself in the entire operation of Myelogram test which is mainly diagnostic in nature and requirement of Myelogram test is doubtful in view of medical test discussed in the present judgment. In the said case the patient has died due lack of proper care of which burden lies to the hospital to justify no negligence on their part of the treating doctor or the hospital who is in better position to disclose that what care was taken and what medicine was administer to the patient. It is duty of the hospital to satisfy that there was not lack of care or diligence. It was held in case titled Mohd. Shafi Suleman Kazi v. Dr. Villas Dhondu Kavishwar AIR 182 Bom 27 that State would be liable for the acts of negligence committed by hospital employees in the course of their employment in the State run hospital. In the case titled Achutrao Haribhau Khodwa v. State of Maharashtra AIR 1996 SC 2377 it is laid down that maintenance of Government hospital constitute a non- sovereign activity of the Government and State would be vicariously liable for damages which may become payable on account of negligence of his doctors or other employees. Once the negligence in the hospital is established then the State is liable to pay the damages.
23. Hence to prove negligence on part of defendants, the plaintiff must prove three ingredients as follows:-
(i) The defendant owes a duty of care to the patient.
(ii) The defendant has breached this duty of care.
(iii) The plaintiff has suffered an injury due to his
breach.
(iv) Resulting damages
24. Vide Ex.PA/5 the patient/deceased was admitted by Dr. Ajay Sharma/defendant no. 2 on 31.01.1995. The patient was admitted after investigation at Safdarjung Hospital complaining pain in the spine. MRI was already conducted at Safdarjung hospital and medicine was given. Hence with such admission with complaint of Myeloma the patient vide registration no. 20762 and with such admission of the patient by defendant no. 2/Associate Professor, Department of Neuro-Surgery, G.B. Pant hospital the duty to take care has arisen in favour of deceased who was male aged 46 years at the time of such admission. Hence the first ingredient is satisfied.
25. The next ingredient the plaintiff needs to satisfy is that defendant has breached this duty of care. It is submitted by ld. Counsel for plaintiff that in RTI dated 15.02.2017 it is answered that the record is lost.
No reason is mentioned that why the record is lost. Hence without any proper order it cannot be accepted that the record was lost. It is submitted that the written statement is not signed by defendant no. 1 and 3 and there is absence of name of any person in the verification clause with any specific date of such verification. Hence the written statement filed by defendant no. 1 and 3 cannot be accepted for the purpose of defence. The defendant no. 2 has not denied any factual position in his written statement.
26. It is submitted by ld. Counsel for plaintiff that MRI test is more important and advanced test then Myelogram test. Ex.PA/16 is referred by ld. Counsel for plaintiff which is medical text from the book titled Principles of Neurology, sixth edition, authored by Mr. Raymond D. Adams, Mr. Maurice Victor and Allan H. Ropper published by Tata Mc Graw - Hill. It is mentioned at page no. 2158 under the heading Myelography. The same is reproduced as under:
"This is rarely indicated nowadays in well-equipped imaging departments, because it is invasive and less informative than MRI. It is only contemplated when MRI is unavailable or contra-indicated, or is unsatisfactory due to patient tolerance or unusual shape, such as limb contractures or severe scoliosis, and possibly in one or two clinical situations to be discussed in Chapter 98".
27. Further ld. Counsel has also relied on the heading Myelographic Block at page no. 2160 which is reproduced as under:
"When contrast medium is introduced in the lumbar region and an obstruction to the cranial flow of contrast medium is encountered, it can usually be overcome by increasing the intrathecal pressure below the blockage. This is achieved by injecting contrast medium or saline through the spinal needle while the contrast column is held against the block by appropriate head-down tilt. The patient usually experiences discomfort or pain in girdle distribution as the obstruction is overcome, and once contrast medium begins to pass, it frequently does so rapidly. This technique has been termed the saline (or contrast) 'push' method. It is very uncommon to need to introduce contrast medium from the cervical region to show the upper limit of a myelographic block".
28. It is submitted by ld. Counsel for plaintiff that when MRI test is conducted then there was no requirement of any Myelogram test because MRI is more advance and better test then Myelogram test. Other than this ld. Counsel for plaintiff has referred to Ex.PA/6 which is report of MRI conducted by Department of Neuroradiology, AIIMS, Delhi on 02.08.1994. It is further submitted that the Safdarjung hospital has got conducted MRI vide Ex.PA/4 dated 24.01.1994 vide which the patient was referred to Professor of Neurology at G.B. Pant hospital for expert opinion. At G.B Pant hospital the MRI was recorded done vide Ex.PA/5 on 31.01.1995 by Dr. Ajay Sharma, Associate Professor/defendant no. 2.
29. The plaintiff has relied on Ex.PA/9 and Ex.PA/10 submitting that none of the above documents mentions exhibit mark of the inquiry conducted by the department hence the above documents are forged later on. The above documents are filed only on the direction of the Court on 20.04.1999. To impute the fraud. Ld. Counsel has relied on admission summary slip dated 27.03.1999 from G.B. Pant Hospital, Delhi bearing CR no. 155492. It is submitted that at page 16 of the said admission summary bears date 13.02.1995 which does not found mention in Ex.PA-5. The alleged forged document at page 16 mention Myelography notes. However at Ex.PA/5 dated 11.02.1995 and 13.02.1995 does not mention any such Myelography notes. The case history of the patient is mentioned in Ex.PA/9 of which typed version is also filed by the plaintiff. The said case history in Ex.PA/9 mentions that laryngoscope was not found in working order when one of the blade was found short and the other blade was not found in working order. The staff nurse was requested to get working laryngoscope which was necessary to give oxygen to patient in time. Call was sent to anesthetist at 1.30 PM and fresh laryngoscope was called and ventilation started. Medicines were administered intravenously. However at such time no cardiac activity was seen in the patient and the patient was declared dead by 2.00 PM. Hence, the set of documents filed later on with admission summary which does not resemble with any particular with Ex.PA/9 and therefore the said document is later document of later creation and not a correct document. In the said different document at page 17 the call received is mentioned at 1.00 PM and at the bottom it is written that the patient was declared dead. However in Ex.PA/10 the call was received at 13.30 PM and the patient was declared dead at 14.00 PM. Hence there is prima facie tampering with the document to create false impression of treatment and attendance of patient early in time. In Ex.PA/9 there was no call made and the laryngoscope was not in working order. The correct medical record and notes which were in special knowledge of the defendants only are not produced on record and they have even attempted to create different document/Ex.D-1 and produced them on record. In the different document/Ex.D-1 it is mentioned that the call was received at 13.25 PM contradictory to same anesthesia notes the call was received at 13.30 PM. Hence there is not only tampering with the record but tampering with the facts in manipulating the period of time when the patient was left unattended between 1.00 PM to 13.30 PM. It is recorded in Ex.PA/9 that the patient was not having oxygen due to non functioning laryngoscope. A period of half an hour is long time for a patient who need immediate oxygen to save his life from immediate threatening position. Since the defendants themselves submitted different documents/Ex.D-1 that is why they did not took date for verification in the written statement. For the same reason they did not file report of inquiry and submitted a lame plea that the file was missing. The above submission of ld. Counsel for plaintiff are found correct. There was no need with the defendants to create two separate set of contradictory documents in the same department of anesthesia and which could be created only when the things were not in proper order. Not only there is creation of such documents but they were also kept part of the record. There is substance in submission of the plaintiff that why the verification date was not mentioned in the written statement of defendant no. 1 and 3. In fact the verification bear the stamp at the bottom of WS of Mr. D.K. Srivastava. When there is missing report of inquiry then departmental inquiry should have been conducted to hold the person guilty who is responsible for the same. In fact defendants have remained ex- parte and did not produce any such report against the said person from whom the inquiry report went missing. Hence the above plea of the defendants of missing of inquiry report cannot be accepted in absence of further report of department. The above facts are in special knowledge of the defendants only for which adverse inference is liable to be drawn against them for non production of necessary documents u/Sec. 114(g) of Indian Evidence Act, 1872 that had such documents would have been produced then it would have went against them. The fact of missing of original inquiry report of which even copy is not filed before the present Court is only within the special knowledge of the defendants and burden of proving that fact was on defendants only u/Sec. 106 of Indian Evidence Act, 1872. Therefore on this account the defendant who remained ex-parte has failed to discharge the said burden and it is therefore proved ex-parte against the defendants that the defendants have tampered with the original medical record of the patient/deceased.
30. Ld. Counsel for plaintiff has submitted that there was lack coordination between the department of neurosurgery and radiology in respect of administration of medicine, availability of laryngoscope instrument and non coordination between the said two departments which remains an admitted fact in written statement of defendant no. 1 and 3.
31. The Ex.PA/10 is compared with page 18 of admission summary on record claimed forged by the plaintiff against the defendant. In the alleged forged documents the time is mentioned as 13.25 PM and the word Myelogram is missing. At page 19 words are added and documents are tampered with. The forged document mentions pulse not palpable and Ex.PA/10 mentions pulse not palpable on previous page. No medicines are administered in Ex.PA/10 which are adrenaline but the same is reflected as administered in the forged document. In the forged document the paper of some other patient are inserted at number 30 of one Mr. Lalit Shah which show intermingling of the record of some other patient. The said document is tried to be shown as document pertaining to the deceased in the present case. It is a clinical sheet for 11.02.1995 to 16.02.1995. Hence the correct clinical sheet of the deceased are not produced in the present case. In fact the clinical sheet at page no. 29 does not bear the name of patient or the doctor or the room though it marks recording of such attendance of the patient on 11.02.1995. hence defendants want to pass on the clinical history of another patient as clinical history of deceased and they cannot be relied on for any purpose unless proved on record by the person who prepared them. It is submitted that at page 22 of the forged document no signature is put by the doctor while preparing the note for administration of medicine. At page 11 and 12 name of the patient is not mentioned. The documents are withheld by the defendants only to hide their negligence. The patient had died during the test and not during the admission for treatment. The patient is shown being shifted to the ward and not in the ICU even when the patient was not stable. This is negligence on the part of defendants on the face of it.
32. Ld. Counsel for plaintiff has referred to Ex.PA/15 which is letter to Sh. P.C. Sharma the Joint Director by the Joint Secretary Medical dated 10.12.1995 recording that the inquiry officer has suggested corrective measures, proper coordination between the departments. The Director, G.B. Pant hospital had informed that he has taken all possible steps to prevent such incident and resuscitation facilities have been upgraded. It is noted that had there been no laxity then there was no need to take any corrective measures and this is an admission on the part of the defendants. The submission of ld. Counsel for plaintiff are accepted in this regard that Ex.PA/15 is admission on the part of defendants that the necessary facilities were lacking during the time of treatment of patient/deceased which is also corroborated in evidence discussed above Ex.PA/9 and Ex.PA/10. The forgery as alleged against the defendants is seen on the face of the record otherwise how it was required upon the defendants to create two set of documents for treatment of same patient with two different version. The director G.B. Pant hospital has admitted through joint secretary medical vide Ex.PA/15 that the necessary facilities were lacking. The patient was in requirement of immediate attention and non-supply of oxygen is an admitted fact vide Ex.PA/9 and Ex.PA/10. The laryngoscope was not found in working order and the staff nurse was instructed to provide the same alongwith oxygen cylinders and other medicines. This shows that the above material was not readily available for administration to the patient.
33. In Ex.PA/15 letter from Joint Secretary, Medical to Joint Director, CBI dated 10.12.1995 admits that there was lack of emergency facility in the nursing home. The inquiry officer has suggested certain corrective measures to ensure proper coordination between the departments. Hence lack of emergency facility is admitted. The corrective measures were suggested as per inquiry report in their possession and they have not filed it on record. The submission of loss of inquiry report is not accepted in absence of due inquiry and fastening of responsibility on the concerned officer and adverse inference is already drawn in the previous para in this regard. Dr. Ajay Sharma, Neuro Surgeon/defendant no. 2 who had admitted the patient has not seen the patient even once even during course of treatment or till his expiry vide Ex.PA/9 and Ex.PA/10. Despite the patient was admitted under the signature of defendant no. 4 only. Dr. Abha had done operation in presence of Dr. Vidyarathi. The patient was required to be attended when he was shifted to ward. The outcome of Myelogram report in Ex.PA/9 is that no blockage was seen. Hence it cannot be said that due to such medical condition the patient could have suffered immediate collapse in Ex.PA/9. It is mentioned that at 1.00 PM Dr. Vidyarathi received a call from the ward and the patient was having repeated convulsion. The patient was found in the status of epilepticus. The pulse rate was 100 per minute and the BP was 140/80 mmHg. The attending doctor had asked the staff for the injection Dilantin 300 mg which was not available in the ward. The laryngoscope and endortracheal tube no. 8 was not found in working order. Even suction machine was not there in the ward when the ventilation was started with AMBU bag with mask. The relative of the patient was sent to purchase injection Dilantin and injection Hydrocortisone from the shop of chemist. During this period the patient had two more episodes of convulsion. Later on injection Hydrocortisone 100 mg and injection Dilantin 300 mg was given. The attempt to intubate the patient had failed due short blade of laryngoscope and other blade of laryngoscope was not found in order. A call was sent to anesthetist at 1.30 PM when Dr. Harminder had arrived to intubate the patient with fresh laryngoscope and ventilation started. However no cardiac activity was seen at that time. The patient was declared dead at 2.00 PM. Hence the patient was tried to be revive between 1.30 PM and 2.00 PM. Even before 1.30 PM the patient had shown more than two episodes of convulsions and the oxygen could not be administered due non working laryngoscope. Medicines could not be given due to non-availability and a relative of patient was sent to purchase the medicines. In fact oxygen could not be supplied to the patient between 1.00 PM to 1.30 PM nor medicine could be supplied. Half hour is a long time in case of a patient who need immediate attention. The patient was admitted under the charge of defendant no. 2. It was the duty of defendant no. 2 to supervise the entire operation when other doctors were available for his assistance who had to conduct the operation under his guidance. In fact defendant no. 2 had nowhere appeared in the picture during entire episode between 1.00 PM to 2.00 PM. In fact the manipulation of documents was attempted which is already observed above in reference to admission summary and now marked as Ex.D-1. Ex.D-1 are the doubtful documents which are prima facie contradictory and doubtful documents as discussed above. When the patient was in need of medicine and laryngoscope they were not available. Such medicine and facility should have been available even before the beginning of operation. The nature of the operation was known to defendant no. 2. It is not the case of the defendants that such kind of emergency is not required in operation of this kind. When such medicine and facilities were required then they should have been available at the immediate call. The oxygen is such an essential facility non-availability of which even for a period of five minutes could be life threatening for a patient. In the present case the medicine and oxygen were not available for the patient for a period of half an hour. Such medical facility was required to be arranged by the doctors at the immediate call which were not so available. Hence the defendants were in breach of their duty.
34. Further when MRI is more important test than Myelogram test vide Ex.PA/16 then there is no explanation from the defendants that why they at all had conducted Myelogram test when report of better test is available with them. The MRI test was already conducted at Safdarjung hospital and received by the defendants vide Ex.PA/5. In WS of defendant no. 1 and 3 at para no. 6 in parawise reply the presence of suction machine is not disputed. However the choice of particular test and method of treatment is prerogative of the treating doctor and it is settled law that per se it cannot be claimed as negligent. The suction machine was not in working order. Defendant no. 2 has not stated that which other patient he was treating and why he could not be present during operation of deceased. There is no explanation that why the patient was continued to be treated at the ward and not shifted to emergency ICU when his condition had deteriorated. The defence of the defendants was already struck off vide order dated 10.07.2000. No report of blood pressure, fever or sugar test was filed by the defendants in absence of which the claim of defendants that patient was suffering from diabetes and he could not be revived due to his such special medical condition cannot be sustained. Moreso when the patient was prepared for Myelogram test since last six days from his admission. It is claim of the defendants that the patient was diabetic to which effect no evidence is filed on record and hence the said bald submission cannot be accepted. The main responsibility was of Dr. Ajay Sharma/defendant no. 2 and not of the junior doctors available for his assistance for which defendant no. 2 is vicariously liable. In fact defendant no. 2 was not seen during the entire period of operation and emergency of the patient which is not explained by defendant no. 2 with specific record and pleadings that which other patient he was examining due to which he could not appear to conduct the operation upon the deceased/patient.
35. Hence in absence of any evidence to the contrary the evidence of the plaintiff remains unrebutted, unimpeached and not cross examined on material aspect which is found consistent and reliable. The breach of duty is found in the circumstances discussed above that emergency resuscitation facility was not available at the nick of the time for immediate treatment of the patient between 1.00 PM to 1.30 PM which is sufficiently a long time thereof the patient had collapsed. In fact in such time the patient had collapsed and expired. Hence it is found that with such breach on the part of the defendants the patient has expired and second ingredient of negligence and breach of duty is satisfied in the present case.
36. The third ingredient under consideration is that the patient has suffered an injury due to this breach of duty. It has come on record vide Ex.PA/9 and Ex.PA/10 and in the evidence already discussed above that there were lack of emergency facility and breach of duty on the part of the defendants. In Ex.PA/9 and Ex.PA/10 the conduct of the attending doctors has shown that patient was an immediate need of such medicine and oxygen and such facility were not available due to which the condition of the patient had deteriorated. Such facility were not available between 1.00 PM to 1.30 PM and thereafter also when Dr. Harminder had arrived to intubate the patient with fresh laryngoscope and ventilation started. However no cardiac activity was seen at that time. He was unsuccessful in giving such medicine to the patient or the oxygen. It was incumbent on the defendants to submit time and cause of death of the patient by submitting the necessary post morterm report when the death was not natural and there is claim of negligence against them. When Dr. Harminder could not successfully administer the oxygen and medicine on the patient shows that the condition of the patient had deteriorated at that time due to such lack of facilities and therefore injury has occurred to the patient/deceased. On 11.02.1995 at 11.20 PM the patient was found sleeping comfortable in the room as per notes put by Sr. Resident Doctor Dr. Vidyarathi and the same is proved by Ex.PA/9 and Ex.PA/10. Only on 12.02.1995 the patient had complained pain in back and difficulty in breathing. There was pain in back and difficulty in breathing and patient was found non-cynotic. Following the Myelogram test on 13.02.1995 the patient has vomited for which he was given injection and his condition had deteriorated on the same day. Therefore there was no reason for shifting the patient to ward and not in ICU until the patient becomes stable. Hence the defendant no. 2 the Supervising doctor must have shown that he has taken all reasonable care which he has failed to show on record by remaining ex-parte. Other defendants could not prove such bonafide steps. Injury has occurred to the patient/deceased due to such negligent conduct of the defendants and due to such breach of duty the patient has suffered death. Hence injury has occurred on the patient/deceased and the third limb of the ingredient of negligence in the present case has stood prove on record against the defendants for which the defendant no. 1, 3 and 4 are held liable for being principal and defendant no. 2 is held liable as agent of the principal in such capacity.
DAMAGES
37. The plaintiff has claimed that in the usual course of his duty the patient would have reached to the rank of DIG who could have earned the pay scale of Rs.5,100/- per month to Rs. 25,000/- per month to Rs.35,000/- per month. Huge amount was spent in medical and connected expenses. Part of which were reimbursed by the employer. The compensation is also claimed for loss of mental peace and agony to the wife and children of the deceased and for such loss of the company. A token compensation of Rs.50 lakh is prayed by the plaintiff with interest @ 1% pm from the date of death till recovery and notice fee is also claimed @ Rs.1,500/- from the defendants.
38. In view of discussion above there is no iota of doubt that damages are to be awarded in the case of medical negligence when the negligence is proved. In the present case the negligence has since been proved on record on the part of defendants.
39. In case titled Nizam Insititute of Medical Sciences (supra) the compensation was awarded at para no. 37 after assessing the working life of the patient. In the present case at the time of his death the patient was aged about 46 years as mentioned at para 8 of the plaint and he was a Government Servant. Hence a Government Servant retires usually at the age of 60 years until conditions exists on record as to his early retirement. No such adverse condition are proved or exist on record and therefore it is believed that the patient would have worked upto 60 years. Hence for a period of 14 years the patient is entitled to compensation. It is led in evidence by the plaintiff that at the time of treatment the patient was drawing scale of Rs.5,100/- per month and could have reached the scale of Rs.25,000/- to Rs.35,000/- per month.
40. The certificate/Ex.PA-3 from DDO, CBI dated 02.05.1995 pertaining to the deceased patient Sh. S.P. Sharma, DSP, CBI for the month of January 1995 mentions grand total salary for a sum of Rs.7,925/- per month only.
41. The letter addressed to the plaintiff from DDO, CBI dated 04.10.1999 supplying certified copy of service book is Ex.PA-19 and Ex.PA-20 is part of the same letter containing service book which mentions the date of birth of the patient/deceased as 02.07.1949 and believing that the deceased would have superannuated at the age of 60 then age of deceased was 46 years and 6 months. The deceased would have superannuated in the year 2009. The date of death is 13.02.1995.
42. The plaintiff has relied on citation titled Anand v. Pratap and Anr. AIR 2018 SC 5081 where loss of future income is calculated at 75% when the income of the victim was Rs.8,500/- p.m who was 29 year old at the time of accident. Hence deduction was made 1/4th of the amount of income received by the victim. In case titled Nand Kishore Prasad v. Mohd. Hamidi in CA no. 4619 of 2019 dated 10.05.2019 the principles for awarding compensation are laid down at para no. 15 to 17 which are reproduced hereasunder:
15. In respect of amount of compensation, the NCDRC held that sum of Rs.4,00,000/- awarded by the SCDRC against the Hospital is just compensation. The appellant relies upon judgment of this court reported as V. Krishnakumar v. State of Tamil Nadu and Others6 to claim enhanced amount of compensation. In the said case of medical negligence at the time of delivery of a baby girl born to middle class family, this Court held as under:-
"19. The principle of awarding compensation that can be safely relied on is restitutio in integrum. This principle has been recognised and relied on in Malay Kumar Ganguly v.Sukumar Mukherjee 7 and in Balram Prasad case 8, in the following passage from the latter: (Malay Kumar Ganguly case, SCC p. 282, para 170) "170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co9)" An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the 6 (2015) 9 SCC 388 7 (2009) 9 SCC 221 8 (2014) 1 SCC 384 9 (1880) LR 5 AC 25 (HL) aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event."
16. In a Judgment of this Court reported as National Insurance Company Limited v. Pranay Sethi and Others 10, a Constitution Bench has laid down parameters for the grant of compensation in respect of claims arising out of Motor Vehicular accidents as just compensation has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The Court held as under:-
"55. Section 168 of the Act deals with the concept of "just compensation"
and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance.
Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma11 and it has been approved in Reshma Kumari12. The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the courts have to bear in mind that the basic principle lies in pragmatic computation which is in 10 (2017) 16 SCC 680 11 (2009) 6 SCC 121 12 (2013) 9 SCC 65 proximity to reality. It is a well-accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the courts is difficult and hence, an endeavour has been made by this Court for standardisation which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardisation keeping in view the principle of certainty, stability and consistency. We approve the principle of "standardisation" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age."
17. Thus, the compensation has to be calculated on the basis of twin criteria of age and income. But in the absence of income of the father or family, there is no legally acceptable norm available on record for the enhancement of compensation.
42.1 The compensation has to be awarded in proximity to reality for the purpose of restitution when the incident had occurred. Under Section 60 of Code of Civil Procedure, 1908 a guideline is laid down regarding attachment of salary that under Sub-Clause (ia) of Proviso to the said Section that 1/3rd of the salary in execution of any decree for maintenance shall not be attached. The said guideline is laid down in view of the said fact that such salary is required for maintenance of the individual and his family. Keeping in view the said guideline 1/3rd of the salary of the deceased would have been spend on himself and his family and therefore the said amount if taken only for the purpose of amount to be spent on deceased on his ownself is reasonably reduced to 1/4th of his total salary amount. Hence 75% of his salary amount has to be paid as compensation on such receipt of salary. The certificate/Ex.PA-3 from DDO, CBI dated 02.05.1995 pertaining to the deceased patient Sh. S.P. Sharma, DSP, CBI for the month of January 1995 mentions grand total salary for a sum of Rs.7,925/- per month only. Hence 75% of the same comes to Rs.5,944/- approx. Hence the annual salary comes to Rs.71,325/-. Taking that the deceased was working upto 60 years of age then for 13 years 6 months the amount comes to Rs.9,27,225/- + Rs.35,662/- which comes to Rs.9,62,888/- rounded off. Hence the compensation awarded to the deceased on his such annual income for upto 60 years of age is as above. Ld. Counsel for the plaintiff has submitted that the working life of the deceased had to be calculated upto 70 years. However in support of the same, keeping in view the deceased was a Government employee, no such further evidence is produced and keeping in view of the fact that deceased had to work upto 60 years in usual course the loss of income is calculated only upto 60 years.
43. However in case titled Balram Prasad v. Kunal Saha & Ors. dated 24.10.2013 from the Hon'ble Supreme Court of India in Civil Appeal No. 2867 of 2012 wherein it is held that under para no. 87 that how future prospects are to be calculated for different age group of victim/deceased. The relevant para is reproduced hereasunder:
87. We place reliance upon the decisions of this Court in Arvind Kumar Mishra's case (supra) and also in Susamma Thomas (supra), wherein this Court held thus:
"24. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
43.1 For the age group of 40-50 years addition of only 30% of the salary has to be done to the salary of the victim. Hence keeping in view the above cited law the plaintiff is held entitled to compensation at 75% of his last income. Hence the addition to the salary of the deceased by way of future prospect in the nature of increment, enhanced allowance, higher pay scale and promotional prospects are considered @ 30% compensation on the awarded amount which comes to Rs.2,88,865/- rounded off. Hence the same is accordingly awarded to the claimant at the said rate.
44. Ld. Counsel for plaintiff has relied on Chapter 26 titled Negligence by Doctor; compensation for in the book at page no. 529 to
552. At page no. 533 compensation for physical pain and mental anguish is explained in which the total compensation for medical negligence for a sum of Rs.1,50,000/- and another sum of Rs.50,000 was awarded for physical pain and mental anguish in reference to case titled Virubhai Parsottamdas Patel v. Dr. Vijay Kumar Ajmera 1997 (1) CPR 348 (Guj.)
45. It is noted that incident in the present case pertains to the year 1995 and keeping in view facts and circumstances of the case and citation referred above pertaining to the year 1997 the compensation for medical negligence is awarded to the plaintiff at the same rate for a sum of Rs.1,50,000/- and for physical pain and for mental anguish/agony of the family another sum of Rs.2,50,000/- is awarded to the plaintiff keeping in view the fact that the trial in the present matter has continued for about 2½ decades. The amount of medical negligence is specifically liable to be paid by defendant no. 2. The defendant no. 2 being agent held not jointly and severally liable. The remaining amount has to be paid by defendant no. 1 and 4 in joint and several liability. The same liability accrues on account of vicarious liability and defendant no. 1 and 4 are accordingly by vicariously liable in view of citation titled Balram Prasad V. Kunal Saha (supra) the principle as laid down at para no. 109 which is reproduced hereasunder:
109. Therefore, in the light of the rival legal contentions raised by the parties and the legal principles laid down by this Court in plethora of cases referred to supra, particularly, Savita Garg's case, we have to infer that the appellant-AMRI Hospital is vicariously liable for its doctors. It is clearly mentioned in Savita Garg's case that a Hospital is responsible for the conduct of its doctors both on the panel and the visiting doctors. We, therefore, direct the appellant-AMRI Hospital to pay the total amount of compensation with interest awarded in the appeal of the claimant 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.
46. The plaintiff has claimed compensation also against the Director G.B. Pant Hospital who is defendant no. 3 in the present case. However in the citation titled Arun Kumar Manglik v. Chirayu Health and Medicare Pvt. Ltd. in Civil Appeal no. 227-228 of 2019 from Hon'ble Supreme Court of India at para no. 48 it is laid down that the Director of the hospital was not the treating Doctor or the referring Doctor. Hence the finding of medical negligence against the hospital was confirmed in the said case and the vicarious liability of the Director in personal liability was declined. In such view of the matter the Director/defendant no. 3 cannot be made personally liable for such death on account of medical negligence and therefore the said compensation is not awarded against the Director of G.B. Pant Hospital in personal liability. However it is held that the Director was represented and impleaded for the G.B. Pant Hospital who had represented as such after filing of WS jointly with defendant no. 1. Hence G.B. Pant Hospital as such is liable for the negligence represented through its Director.
47. In the citation titled Nizam Institute of Medical Sciences v. Prasanth S. Dhananka & Ors. III (2010) SLT 734 at para no. 35 onwards the compensation is calculated and the working life in the said case was taken 30 years for the patient aged about 40 years on the date of claim. The medical expenses of the patient were defrayed by the employer and therefore no compensation was granted in this respect.
48. However the demand for compensation for physical pain and mental anguish is considered in citation relied by plaintiff titled Virubhai Parsottamdas Patel v. Dr. Vijay Kumar Ajmera 1997 (1) CPR 348 (Guj.) which refers to mental anguish and pain of the patient and not of the relatives.
49. Interest is claimed @1% PM on the awarded compensation amount from 13.02.1995 till recovery of due amount. It is noted that the payment of interest is by way of compensation and not by wrongful gain to one person and wrongful for another. Therefore the plaintiff must prove that the defendants could have earned such interest @1% PM on the due amount in their ordinary course of business. The present case is not a business/commercial transaction. Therefore lower rate of interest as applicable can be considered. Imagination are to be minimised for grant of compensation and plaintiff must prove such facts for grant of such interest at this rate. The relevant citation in this regard is reproduced hereasunder:
In case titled as Mrs Veena Jain vs Sunil Sood on 23 July, 2012 from the Hon'ble High Court of Delhi At New Delhi CS(OS) No.1177/2003 it is laid down as under:
8. I am however not agreeable to grant the huge rate of 24% interest as claimed by the plaintiff. The Supreme Court in the recent chain of judgments reported as Rajendra Construction Co. v. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. v. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State Road Transport Corporation v. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. v. G.Harischandra, 2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd (2009) 3 Arb. LR 140 (SC) has mandated that Courts must reduce the high rates of interest on account of the consistent fall in the rates of interest in changed economic scenario. In my opinion, plaintiff will be thus entitled to interest @ 9% per annum on the principal amount due of 27,84,947.50/- for the period prior to the filing of the suit i.e. from 10.5.2000 till the date of filing of the suit. Plaintiff will also be entitled to pendente lite and future interest till payment @ 9% per annum simple.
50. Further in citation titled Balram Prasad. v. Kunal Saha guidelines are laid down for awarding interest under para no. 100 to 102 which are reproduced hereasunder:
100. A perusal of the operative portion of the impugned judgment of the National Commission shows that it has awarded interest at the rate of 12% per annum but only in case of default by the doctors of AMRI Hospital to pay the compensation within 8 weeks after the judgment was delivered on October 21, 2011. Therefore, in other words, the National Commission did not grant any interest for the long period of 15 years as the case was pending before the National Commission and this Court. Therefore, the National Commission has committed error in not awarding interest on the compensation awarded by it and the same is opposed to various decisions of this Court, such as in the case of Thazhathe Purayil Sarabi & Ors. Vs. Union of India & Anr. regarding payment of interest on a decree of payment this Court held as under:
"25. It is, therefore, clear that the court, while making a decree for payment of money is entitled to grant interest at the current rate of interest or contractual rate as it deems reasonable to be paid on the principal sum adjudged to be payable and/or awarded, from the date of claim or from the date of the order or decree for recovery of the outstanding dues. There is also hardly any room for doubt that interest may be claimed on any amount decreed or awarded for the period during which the money was due and yet remained unpaid to the claimants.
26. The courts are consistent in their view that normally when a money decree is passed, it is most essential that interest be granted for the period during which the money was due, but could not be utilised by the person in whose favour an order of recovery of money was passed.
27. As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of the right to utilise the money due, which has been, in fact, utilised by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed.
28. The only question to be decided is since when is such interest payable on 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."
102. Therefore, the National Commission in not awarding interest on the compensation amount from the date of filing of the original complaint up to the date of payment of entire compensation by the appellant-doctors and the AMRI Hospital to the claimant is most unreasonable and the same is opposed to the provision of the Interest Act, 1978. Therefore, we are awarding the interest on the compensation that is determined by this Court in the appeal filed by the claimant at the rate of 6% per annum on the compensation awarded in these appeals from the date of complaint till the date of payment of compensation awarded by this Court. The justification made by the learned senior counsel on behalf of the appellant-doctors and the AMRI Hospital in not awarding interest on the compensation awarded by the National Commission is contrary to law laid down by this Court and also the provisions of the Interest Act, 1978. Hence, their submissions cannot be accepted as the same are wholly untenable in law and misplaced. Accordingly, the aforesaid point is answered in favour of the claimant.
50.1 Keeping in view facts and circumstances of the case pre-suit interest @ 10% p.a is awarded to the plaintiffs u/Sec. 34 CPC is justifiable which is as such granted to the plaintiffs against the defendants as pre-suit interest on the due amount of compensation from 13.02.1995 till the recovery of entire amount of compensation. The interest is awarded keeping in view the conduct of defendants in not only manipulating the records but also withholding records from the scrutiny of the Court due to which the trial in the matter has since been delayed. The pendentelite and future interest is also granted to the plaintiff @ 10% p.a. on the total due amount for the same reason discussed above.
51. The plaintiff has prayed for notice charges for a sum of Rs.1,500/- alongwith cost of the suit. The cost of litigation expenses for a period of 12 years was provided by Hon'ble Supreme Court of India in citation titled Balram Prasad v. Kunal Saha at para no. 99.
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 award a compensation of Rs.10 lakhs under the head of 'Travel expenses over the past twelve years'.
Further, the claimant argues that he has spent Rs.1,65,00,000/- towards litigation over the past 12 years while seeking compensation under this head. Again, we find the claim to be on the higher side. Considering that the claimant who is a doctor by profession, appeared in person before this Court to argue his case. We acknowledge the fact that he might have required rigorous assistance of lawyers to prepare his case and produce evidence in order. Therefore, we grant a compensation of Rs.1,50,000/- under the head of 'legal expenses'. Therefore, a total amount of Rs. 11,50,000/- is granted to the claimant under the head of 'cost of litigation'.
51.1 The amount was awarded for a sum of Rs.1,50,000/-. In the said case the Appellant had contested his case upto the Hon'ble Supreme Court of India and as the level of jurisdiction rises the amount of litigation expense increase manifold. In the present case the plaintiff is contesting the suit since the year 1996 for about 25 years and keeping in view the facts and circumstances of the case the litigation expenses are awarded to the plaintiff for a sum of Rs.1,50,000/- alongwith cost of the suit which includes notice charges u/Sec. 34B of CPC as defendants had not co-
operated in submission of timely and complete evidence.
RELIEF
52. In view of above discussion it is held that plaintiffs are awarded compensation for a sum of Rs.9,62,888/- for such loss of salary. 30% of the same amount Rs.2,88,865/- is granted for the cost of inflation and future earning prospect of the deceased. Rs.1,50,000/- is awarded only against defendant no. 2 for medical negligence as exclusive liability of defendant no. 2. Defendant no. 1, 3 and 4 are not liable for the said amount for a sum of Rs.1,50,000/-. The defendant no. 2 is held not jointly and severally liable for the remaining due amount. Rs.2,50,000/- is granted to the plaintiffs against defendant nos. 1, 3 and 4 for physical pain and mental agony. The litigation expenses inclusive of notice charges are awarded u/Sec. 34B CPC for a sum of Rs.1,50,000/-. Interest is granted to the plaintiffs against the defendants in their respective liability @10% p.a. for the pre-suit interest from 13.02.1995 till one day before the filing of the suit and pendentelite and future interest is also granted @ 10% p.a. from the date of filing of the suit till recovery of suit amount. The plaintiffs are entitled to the amount awarded in the judgment against the defendants in their respective liability. Cost of the suit is also awarded in favour of plaintiffs and against the defendants. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court on 28th May 2019 (JOGINDER PRAKASH NAHAR) ADDL. DISTRICT JUDGE-04 CENTRAL/TIS HAZARI COURT/DELHI