National Consumer Disputes Redressal
Sadhna Singh & Anr. vs Mithraj Multi Super Speciality ... on 31 May, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2046 OF 2016 1. SADHNA SINGH & ANR. W/o Lt. Sh. Satya Prakash Maurya R/o A/3, 1st Floor, Vaishnav Apartment, Samad Road, Kwarsi Aligarh UTTAR PRADESH 2. MASTER SAKSHAM Through his natural Gardian Mother Smt. Sadhna Singh S/o Lt. Sh. Satya Prakash Maurya R/o A/3, 1st Floor, Vaishnav Apartment, Samad Road, Kwarsi Aligarh U.P. ...........Complainant(s) Versus 1. MITHRAJ MULTI SUPER SPECIALITY HOSPITAL AND RESEARCH CENTRE & 5 ORS. Through its Manager Ramghat Road, Near Sports Stadium Aligarh U.P. 2. DR. RAJENDRA VARSHNAY MANAGER Mithraj Multi Super Speciality Hospital And Research Centre Ramghat Road, Near Sports Stadium Aligarh U.P. 3. DR. ARSHAD JAMAL Mithraj Multi Super Speciality Hospital And Research Centre Ramghat Road, Near Sports Stadium Aligarh U.P. 4. DR. JIYA SIDDIQUI Mithraj Multi Super Speciality Hospital And Research Centre Ramghat Road, Near Sports Stadium Aligarh U.P. 5. DR. AMIT Mithraj Multi Super Speciality Hospital And Research Centre Ramghat Road, Near Sports Stadium Aligarh U.P. 6. DR. SUNIL Mithraj Multi Super Speciality Hospital And Research Centre Ramghat Road, Near Sports Stadium Aligarh U.P. 7. DR. AMIT Mithraj Multi Super Speciality Hospital And Research Centre Ramghat Road, Near Sports Stadium Aligarh U.P. 8. DR. JIYA SIDDIQUI Mithraj Multi Super Speciality Hospital And Research Centre Ramghat Road, Near Sports Stadium Aligarh U.P. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. VIVEK SINGH, ADVOCATE
MR. RITIK DWIVEDI, ADVOCATE
MR. M. VISHAL SUNDARA MUGHAN, ADVOCATE FOR THE OPP. PARTY : MR. NIKHIL JAIN, ADVOCATE
MR. ABHI GARG, ADVOCATE
Dated : 31 May 2024 ORDER
1. Heard Mr. Vivek Singh, Advocate, for the complainants and Mr. Nikhil Jain, Advocate, for the opposite parties.
2. Smt. Sadhna Singh and Master Saksham (minor) have filed above complaint, for directing the opposite parties jointly and severally to pay (i) Rs.21000000/- with interest @12% per annum from 10.08.2016 till the date of realization, as compensation; and (ii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainants stated that Satya Prakash Maurya, aged about 44 years (husband of complainant-1 and father of complainant-2) was posted as Additional Chief Judicial Magistrate, Bhabhua, Kaimur, Bihar, in 2016. Satya Prakash Maurya owned Flat No. A/3, 1st Floor, Vaishnav Apartment, Samad Road, Kwarsi, district Aligarh. Satya Prakash Maurya (the patient) suffered from pain in abdomen region during June, 2016 and was advised to undergo Ultra Sonography, especially for Hepatobiliary by the consultant physician at Bhabhua on 21.06.2016. Ultra Sonography report dated 06.07.2016 showed "3-4 gall stones within of largest approximately 1.8 cm without mass lesions and in his kidney- E/0 3.0 mm calculi seen at lower pole of right kidney and 5.6 mm calculi seen at upper pole of left kidney with mildly dilated b/I renal pelvis. Impression: Cholelithiasis, B/L Neprolithiasis with B/L Mild Hydronephrosis RT>LT". The patient then consulted at District Government Hospital at Bhabhua, who referred to higher specialized centre for further management. The patient then visited Mithraj Multi Super Speciality Hospital and Research Centre (OP-1) on 01.08.2016, where he was examined by Dr. Rajendra Varshney (OP-2), who conducted various tests on 01.08.2016. After examining test reports, OP-2 fixed 02.08.2016 for laparoscopic surgery of the patient. The patient deposited Rs.25000/- and was admitted in the hospital on 02.08.2016 at 8:00 hours. The patient was taken to operation theatre, where a team of the doctors consisting of Dr. Rajendra Varshney, Dr. Arshad Jamal, Dr. Jiya Siddiqui, Dr. Amit and Technician Sunil Kumar attended him. After one and half hours, the doctors came out from operation theatre and informed complainant-1 that the stones were stuck in the liver and open surgery had to be performed. Complainant-1 told to the doctors to do best possible treatment of the patient. After half an hour, Dr. Rajendra Varshnay (OP-2) came out from operation theatre in worried condition. Complainant-1 and other family members curiously asked him about the condition of the patient, on which, OP-2 informed that laparoscopic surgery was done, for which three holes were done. Through one hole an operation instrument, like mouse, was inserted, which cut unwanted part but they were managing it. On this information, complainant-1 and other family members worried and started further queries from OP-2 about the condition of the patient but OP-2 did not disclose as to what had happened and rebuked complainant-1 and her family members. At about 12:30 hours, all the doctors came out of the operation theatre and informed that the operation was successful and the patient would be kept in ICU. The patient was taken to ICU at 13:00 hours. Complainant-1 and her family members were permitted to meet the patient at about 17:00 hours, then he informed that he had difficulty in breathing. Complainant-1 informed Dr. Amit, who was In-charge of ICU at that time about the problem of the patient, who in turn, informed Dr. Rajendra Vashnay (OP-2) about the breathing problem of the patient. Dr. Rajendra Vashnay (OP-2) attended the patient at the time of round and informed that normally after operation, the patient shows such symptoms but nothing to bother. The patient was kept in ICU on 02.08.2016 also. The doctors were talking among themselves in a fishy manner as if something was not well. In ICU, they used to conduct X-ray and ultrasound of the patient but nothing was informed to the attendants of the patient. Copmainant-1 used to inquire about the condition of the patient but whenever she asked anything she was rebuked. From morning of 03.08.2016, the condition of the patient started deteriorating, his body temperature became high and platelets counts fallen down. Despite this, the attendants of the patient were not informed about the correct condition of the patient. The doctors were consoling complainant-1 by saying that till evening the condition would become normal. Although the patient had lost consciousness in evening of 03.08.2016, but the attendants were not informed about his condition. Feeling about the seriousness, complainant-1 told OP-2 to take the patient to some other higher centre but OP-2 again rebuked and told to keep faith upon him. On 04.08.2016 at about 3:30 hours, the patient completely went into coma. Complainant-1 showed concern to In-charge of ICU but he told that the doctors are coming and you need not worry. She was asked to arrange for blood and a jumbo pack platelets immediately. Complainant-2 and her family members inquired as to what had happened, which required blood and jumbo pack platelets immediately but no satisfactory reply was given. The attendants of the patient immediately started for searching of the blood and jumbo pack platelets, which could be arranged from Aligarh Medical College. In spite of transfusion of blood and platelets, there was no improvement in the patient, then the attendants of the patient, strictly told OP-2 to refer the patient to higher centre as his condition was out of his control. Then OP-2 referred the patient to Sir Ganga Ram Hospital, Rajendra Nagar, New Delhi. The OPs took one and half hour in arranging ambulance and the patient was boarded in ambulance at 12:30 hours on 04.08.2016. The patient was admitted to Sir Ganga Ram Hospital, Rajendra Nagar, New Delhi on 04.08.2016 at 16:00 hours in emergency, from where, the patient was shifted in ICU and kept on ventilator. The doctors of Sir Ganga Ram Hospital informed that while conducting laparoscopic surgery of the patient at OP-1 hospital, his bile duct was cut, due to which there was leakage of huge quantity of bile, which resulted in sepsis. The patient remained in ICU in Sir Ganga Ram Hospital from 04.08.2016 till 10.08.2010 and died on 10.08.2016 at 14:10 hours. The complainants stated that Blood Test Report of the patient dated 01.08.2016 showed haemoglobin as 12.5 gm/dl (reference range 13.0-18.0) and platelet count as 93 10/cmm (reference range 150-450) but OP-2 ignored low level of haemoglobin and platelet and conducted laparoscopic surgery on 02.08.2016 although there was no emergency and surgery could have been postponed till improving level of haemoglobin and platelet. During laparoscopic surgery on 02.08.2016, OP-2 and 3 negligently cut bile duct, which resulted in leakage of huge quantity of bile daily but the OPs did nothing to stop leakage of bile. Due to cut injury and leakage of bile, sepsis spread. From morning of 03.08.2016, the condition of the patient started deteriorating, his body temperature became high and platelets counts fallen down. The OPs conducted blood test on 03.08.2016, in which, haemoglobin was fallen to 10.4 gm/dl, platelet 77 10/cmm, TLC 4000 /cumm, while Serum Amylase increased to 1131.1 IU/I and Serum Lipase to 449.0 IU/I. On 04.08.2016, haemoglobin was fallen to 9.5 gm/dl, platelet 35 10/cmm, while Blood Urea increased to 58.8 mg/dl. On 04.08.2016 at about 3:30 hours, the patient completely went into coma. The OPs did not take post-operative care. Even the OPs took unreasonable time in referring the patient for higher centre although due to critical condition every hour was important to save the life of the patient. The OPs committed gross negligence which resulted into death of the patient on 10.08.2016. At the time of death the patient was posted as Sub-Judge-cum-Additional Chief Judicial Magistrate, Kaimur at Bhabhua and was drawing salary of Rs.89943/- per month. Loss of income of the family due to death of the patient was Rs.15000000/-. The family incurred Rs.800000/- towards medical and other incidental expenses in treatment of the patient. Complainant-1 became widow in early age and complainant-2 lost his father in the age of six year and they lost love and affection for ever. As such consolidated compensation of Rs.21000000/- has been claimed. Alleging deficiency in service on the part of the opposite parties, the complaint was filed on 08.12.2016.
4. Mithraj Multi Super Speciality Hospital and Research Centre and others (the OPs) filed its written version on 01.03.2017 and stated that Dr. Rajendra Kumar Varshey (OP-2) was MBBS, MD (Med), DMRD, MAMS, (TB &Chest), Senior Physician, Radiologist and chest disease specialist. Dr. Arshad Jamal (OP-3) was MBBS, MS (Surg), MRC, Laparoscopic Surgeon. Dr. Mohd. Zia Siddiqui was MBBS, MS (Surg), FRCS (Ireland), Senior Surgeon and Dr. Yogesh Pratap Singh was MBBS, DA, Senior Anaesthetist, who were working in the hospital OP-1. One Mr. Sunil Bajpai was posted as the Commandant of PAC, 15th Battalion, in Aligarh. He approached the OPs for laparoscopic surgery (cholecystectomy) of his wife Mrs. Sushma Bajpai, which was successfully performed by Dr. Arshad Jamal (OP-3) and his team. Thereafter, Mr. Anand Kumar, Deputy Commandant of PAC, 15th Battalion, in Aligarh, also approached the OPs for laparoscopic surgery (cholecystectomy) of his wife Mrs. Basanta Devi, which was successfully performed by Dr. Arshad Jamal (OP-3) and his team. Mr. Satya Prakash Maurya (the patient) was son-in-law of Mr. Anand Kumar. When in Ultra Sonography report of the patient dated 06.07.2016 stones in gall bladder and kidney was diagnosed, Mr. Anand Kumar (father-in-law of the patient) recommended the patient for cholecystectomy in OP-1 hospital. The patient came to OP-1 on 01.08.2016, then, his blood tests were conducted. The patient informed his age as 44 years. Blood Test Report of the patient dated 01.08.2016 showed haemoglobin as 12.5 gm/dl (reference range 13.0-18.0) and platelet count as 93 10/cmm (reference range 150-450). According to the nature of surgery, status of haemoglobin and platelets were normal as such he was admitted in the hospital on 02.08.2016 for laparoscopic surgery. The patient was taken to operation theatre, where the same team of the doctors consisting of Dr. Rajendra Varshney, Dr. Arshad Jamal, Dr. Jiya Siddiqui, Dr. Amit and Dr. Yogesh Pratap Singh attended him. The surgery was uneventful and the patient was shifted to ICU at 12:30 hours in conscious and oriented condition. His blood pressure was 110/70 mm of Hg, respiratory rate 20 per minutes and SPO2- 96%. He had pain in abdomen due to surgery. On 02.08.2016 at 19:00 hours, his blood pressure was 110/70 mm of Hg, respiratory rate 20 per minutes, pulse 88 per minute, SPO2 98% and body temperature 98.6 F. In morning of 03.08.2016, the patient was given 100 ml juice. His urine output was sufficient and Cather was removed after noon. The patient went to toilet on foot and passed sufficient urine. However, the patient felt difficulty in passing urine and thus re-catheterising was done. The patient passed urine in midnight. On 03.08.2016, repeat blood test was done, in which, haemoglobin as 10.4 gm/dl and platelet count as 40 10/cmm. Due to decrease of haemoglobin and platelet, his test for dengue was conducted but it was non-reactive. Bed site ultrasound was done, in which, no fluid collection was found. The condition of the patient deteriorated in the night of 03.08.2016 and the patient went into shock condition. The team of the doctor attended the patient and maintained blood pressure about 100 mm of Hg. The team of the doctor remained in ICU throughout the night. Blood and platelet Jumbo pack along with 25% glucose was transfused on 04.08.2016 in morning. In repeat blood test on 04.08.2016, haemoglobin was fallen to 9.5 gm/dl, platelet 35 10/cmm, while Blood Urea increased to 58.8 mg/dl. Then the doctors consulted in Sir Ganga Ram Hospital for transfer of the patient and transferred the patient to Sir Ganga Ram Hospital. Dr. Rajendra Kumar Varshney and ICU staff went to Sir Ganga Ram Hospital in the ambulance. Dr. Rajendra Kumar Varshney arranged admission of the patient in emergency during paper work and he remained there till late night. After admission in Sir Ganga Ram Hospital, blood test of the patient was done, in which, TLC was 7600 as such by that time there was no sign of sepsis. In Sir Ganga Ram Hospital, two ultrasound of the patient was done, in which, no injury in bile duct or any other internal organ was seen. During six days of hospitalisation in Sir Ganga Ram Hospital, no CT scan or MRI or any other investigation was done which could confirm the diagnosis. Even post mortem of the patient was not done in order to ascertain cause of death. Decreased TLC was seen in the blood test report dated 10.08.2016. Prior to 10.08.2016, TLC was normal. No culture or sensitivity report of bile, blood or pus was done in Sir Ganga Ram Hospital, which could confirm sepsis. There is no evidence to suggest that any negligence was committed in OP-1 hospital. The complainants or the patient did not pay any consideration and the OPs provided services free of charge as such the complainants/patient were not consumer of the OPs and the complaint is not maintainable and liable to be dismissed.
5. The complainants filed Rejoinder, Affidavit of Evidence of Mrs. Sadhna Singh and documentary evidence. The OPs filed Affidavit of Evidence of Dr. Rajendra Kumar Varshney and documentary evidence. In the Affidavit of Evidence of Dr. Rajendra Kumar Varshney, it has been stated that on the complaint of complainant-1, FIR No.0730 dated 23.08.2016, u/section 304-A IPC was registered at PS Quarasi, district Aligarh, in which, after investigation the police did not find any negligence on the part of the OPs and submitted Final Report No.182/2017 dated 01.05.2017, for closer of the case. Both the parties have filed short synopsis of the arguments.
6. We have considered the arguments of the counsel for the parties and examined the record. Preliminary issue raised by the OPs that the complainants or the patient did not pay any consideration and the OPs provided services free of charge as such the complainants are not consumer of the OPs and the complaint is not maintainable and liable to be dismissed. Mrs. Sadhna Singh, in her Affidavit of Evidence has stated that she had deposited Rs.25000/- on 02.08.2016 in OP-1 hospital. The OPs did not cross-examine her. As such her version in respect of deposit of Rs.25000/- on 02.08.2016 is not liable to be disbelieved. AS the OPs have not provided service free of charge, the complaint is maintainable.
7. The complainants alleged that Blood Test Report of the patient dated 01.08.2016 showed haemoglobin as 12.5 gm/dl (reference range 13.0-18.0) and platelet count as 93 10/cmm (reference range 150-450) but OP-2 ignored low level of haemoglobin and platelet and conducted laparoscopic surgery on 02.08.2016 although there was no emergency and surgery could have been postponed till improving level of haemoglobin and platelet. The OPs stated that in the nature of surgery i.e. laparoscopic cholecystectomy, this was normal level. The OPs have also relied upon medical literature in this respect, a perusal of which shows that if active bleeding or haemorrhage was not anticipated then in the status haemoglobin level above < 8.0 gm/dl and platelet < 50 10/cmm, the surgery can be performed.
8. Other allegation of the complainants is that during laparoscopic surgery on 02.08.2016, OP-2 and 3 negligently cut bile duct, which resulted in leakage of huge quantity of bile daily but the OPs did nothing to stop leakage of bile. Due to cut injury and leakage of bile, sepsis spread. From morning of 03.08.2016, the condition of the patient started deteriorating, his body temperature became high and platelets counts fallen down. The OPs conducted blood test on 03.08.2016, in which, haemoglobin was fallen to 10.4 gm/dl, platelet 77 10/cmm, TLC 4000 /cumm, while Serum Amylase increased to 1131.1 IU/I and Serum Lipase to 449.0 IU/I. On 04.08.2016, haemoglobin was fallen to 9.5 gm/dl, platelet 35 10/cmm, while Blood Urea increased to 58.8 mg/dl. On 04.08.2016 at about 3:30 hours, the patient completely went into coma. The OPs did not take proper post-operative care. Even the OPs took unreasonable time in referring the patient for higher centre although due to critical condition every hour was important to save the life of the patient.
9. The OPs denied causing of bile duct injury. The OPs stated that on 03.08.2016, repeat blood test was done, in which, haemoglobin was 10.4 gm/dl and platelet count was 40 10/cmm. Due to decrease of haemoglobin and platelet, his test for dengue was conducted but it was non-reactive. Bedside ultrasound was done, in which, no fluid collection was found. The Patient File as produced by the complainants only shows blood test reports dated 03.08.2016 and 04.08.2016 and test relating to dengue. Prescription slip dated 03.08.2016 does not indicate for bedside ultrasound. Prescription slip dated 04.08.2016 noted for ABG, CBC, BSR, RFT, LFT, S/E, S/P, X-ray chest PA including upper abdomen.
At the time of admission in Sir Ganga Ram Hospital, the procedure adopted at the OP-1 hospital was noted down (Pg.263 of Evidence of the complainants)
Admission/Discharge Record of Sir Ganga Ram Hospital shows that 1000 ml bile was drained on 02.08.2016 and 700 ml bile was drained on 03.08.2016.
History and Course of present illness: Patient underwent laparoscopic cholecystectomy on 02.08.2016 at Aligarh. Next day the patient developed hypotension C desaturation & patient was intubated on 04.08.2016 found to have severe metabolic acidosis C hypoglycaemia deranged KFT thrombocytopenia.
Final Diagnosis- Bile Duct Injury, Biliary Peritonises, Septis with Acute Kidney Injury. The patient was intubated on 04.08.2016 and kept on inotropic support.
The OPs have not produced bedside ultrasound report allegedly done on 03.08.2016. Thus defence of the OPs are not proved
10. The OPs argued that in Sir Ganga Ram Hospital in ultrasound was not done as such final diagnosis of Bile Duct Injury, Biliary Peritonises, Sepsis with Acute Kidney Injury, are not proved. The argument in this respect is not liable to be accepted. Medical record of Sir Ganga Ram Hospital, Pg.266 of Evidence of the complainants, noted on 04.08.2016 "Plan for bedside USG abdomen if collection then PCD placement, Pg.191 of Evidence of the complainants, noted CT Ango Abdomen on 05.08.2016 and (Pg.195 of Evidence of the complainants) noted bedside Rgt Ultrasound. Death Summary shows that due to critical condition, the patient could not be shifted for CT abdomen. Radiologist Reports have been filed on Pgs. 251 to 256 of Evidence of the complainants. From above documents bile duct injury, bile leak and kidney injury to the patient at the time of laparoscopic surgery on 02.08.2016 are proved, swhich resulted in Biliary Peritonises, Sepsis.
11. With the help of medical literature, the counsel for the OPs argued that at the time of cholecystectomy, there is 0.05% possibility of bile duct injury. Therefore it cannot be said that the injury was caused due to negligence of the OPs. Medical record suggests possibility of bile duct injury at the time of cholecystectomy is very less i.e. 0.05%. If the injury occurs then it is negligence on the doctors performing surgery.
12. The counsel for the OPs argued that at the time of admission in Sir Ganga Ram Hospital, TLC was 7600 as such by that time there was no sign of sepsis. This argument is not liable to be accepted. TLC as noted on the prescription slip of Sir Ganga Ram Hospital dated 04.08.2016, Pg.184 of Evidence of the complainants, is 11.9. TLC 4000 /cumm is noted in the blood test report dated 03.08.2016, which shows that within 36 hours TLC was drastically deceased which is sign of sepsis. In view of the aforesaid discussions, it is proved that bile duct injury and kidney injury were caused to the patient at the time of laparoscopic surgery on 02.08.2016 although bile duct injury and kidney injury were noticed that fluid collection of 1000 ml on 02.08.2016 and 700 ml on 03.08.2016 was drained by the OPs but post-operative treatment was not satisfactory. The negligence on the part of OPs in conducting surgery and post-operative care is proved.
13. So far as the arguments that no expert opinion/evidence has been filed to prove the negligence of the OPs, is concerned, Supreme Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, held that in medical negligence cases, expert evidence is not always necessary. Ajay Kumar Parmar Vs. State of Rajasthan (2012) 12 SCC 406, held that in the absence of expert evidence the court has to form its opinion and standard literature on the subject.
14. The counsel for the OPs relied upon the judgments of Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, Kusum Sharma Vs. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 and Dr. Harsh Kumar Khurana Vs. Joginder Singh (2021) 10 SCC 291 and submitted that if treatment was not successful then only for this reason, it cannot held that the doctor has committed negligence.
Supreme Court in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, held that (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 the 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. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 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 professional proceeded against on indictment of negligence. (iv) Mere deviation from normal professional practice is not necessarily evidence of negligence. (v) Mere accident is not evidence of negligence.(vi) An error of judgment on the part of a professional is not negligence per se. (vii) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
In the present, there failure to take precaution and negligence is fully proved.
15. So far as, the quantum of compensation is concerned, Constitution Bench of Supreme Court in National Insurance Company Limited Vs. Pranay Sethi, (2017) 16 SCC 680, held that the compensation would be just and fair. In Maharaja Agrasen Hospital Vs. Master Rishabh Sharma (2020) 6 SCC 501, it has been held that it is based on restitutio in integrum meaning thereby restoration of an injured party to the situation which would have been prevailed, had no injury been sustained. In Sarla Verma Vs. Delhi Transport Corporation (2009) 6 SCC 121, Supreme Court has adopted multiplier system for computing loss of income. As one-time payment would be capitalized value of income which has been approved in Pranay Sethi's case.
16. Satya Prakash Maurya (the deceased) was posted as Sub-Judge-cum-Additional Chief Judicial Magistrate, Kaimur at Bhabhua and was drawing salary of Rs.89943/- per month at the time of his death. Salary Slip has been filed. The family incurred Rs.800000/- towards medical and other incidental expenses in treatment of the patient. Complainant-1 became widow in early age and complainant-2 lost his father in the age of six year. They lost love and affection of husband/father for ever. As such consolidated compensation of Rs.21000000/- has been claimed.
There were three members in the family of the deceased as such 1/3rd income ought to be deducted towards personal expenses. Loss of annual income comes to Rs.719544/-. As age proof has not been filed and somewhere age was noted as 45 years and somewhere more, we adopt multiplier applicable for the age group of 46 years to 50 years i.e. 13 and capitalized value will be Rs.9354072/-. As the deceased was in permanent government service, 25% ought to be added towards future income and total comes to Rs.11692590/-. In Addition to it, the complainants are entitled for loss of consortium medical and other expenses. We quantify the compensation to Rs.125/- lacs.
O R D E R
In view of the aforesaid discussions, the complaint is allowed. The opposite parties are directed to pay Rs.125/- lacs as compensation to the complainants, within two months. Complainant-2 is minor and his ½ share of the compensation would be deposited in fixed deposit in a nationalised bank till his attaining the age of majority.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER