State Consumer Disputes Redressal Commission
R.K Nolini Devi vs Dr. Sharatkumar And Others on 5 May, 2017
BEFORE THE MANIPUR STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
(STATE COMMISSION)
IMPHAL
MANIPUR
Complaint Case No. CC/4/2007
R.K NOlini Devi Vs. Dr. Sharatkumar and others
and Others
BEFORE:
HON'BLE MR. JUSTICE T.Nandakumar PRESIDENT
HON'BLE MR. M.Padmeshwor Singh JUDICIAL MEMBER
HON'BLE MRS. A.Nibedita Devi MEMBER
For the Mr. S.Ibjen and S.Somorjit, Advocate
Complainant:
For the Opp.
S.Dijeshor ,Mr.A.Bimol Singh and Mr.A Golly, Advocate
Party:
Mr. Tapan Sharma, Advocate
Mr. S. Dejeswor , Advocate
Mr. S. Dejeswor Singh, Advocate
Dated : 05 May 2017
ORDER
safety when used are being offered for sale to the public,-
(a) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
(b) if the trader could have known with due diligence that the goods so offered are unsafe to the public;
(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety;
with a view to obtaining any relief provided by or under this Act;
(d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any -1- system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation . - For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
15. This Commission also passed an order dated 21.12.2016 in the present case for taking opinion of the 2 (two) well-known Superspecialist in Nephrology namely (1) Dr. Guliver P. (Shija Hospital) and (2) Dr.L.K. Saratchandra Singh (RIMS Med.) on the 10 (ten) points. The relevant portion of the order dated 21.12.2016 is quoted hereunder :
"The Complainant's husband, Late Shri Gourachandra Sharma was hospitalized at Imphal Hospital And Research Centre, Imphal from 21.01.2007 till 27.01.2007, the patient (late Shri Gourachandra Sharma) was -2- diagnosed with Inferior Vena Cava Thrombosis with involvement of Bilateral Renal veins and Right Hepatic Vein (Budd-Chairi Syndromme). On 06.02.2007, the complainant's husband got admitted at RIMS Hospital, Imphal and was examined thoroughly by Dr. Naorem Sharatkumar Singh, Respondent No. 1 and Dr. Y. Iboton, Respondent No. 4 of RIMS Hospital. On 08.02.2007, the patient (late Shri Gourachandra Sharma) was transfused with whole blood taken from Jawaharlal Nehru Hospital, Porompat as per the advice of O.P. No. 4 Dr. Y. Iboton. Again, on 09.02.2007, the patient (late Shri Gourachandra Sharma) was transfused with whole blood taken from Blood Bank, RIMS. Admittedly, Zonda/Ondansetron and Low Molecular Weight Heparin (LMWH) were injected to the patient. The patient (late Shri Gourachandra Sharma) was suffering from Diabetes Mellitus 2, Chronic Kidney Disease and Acute Kidney Failure. While the patient was admitted into the RIMS Hospital, the patient was not referred to a Dietician by the attending Doctors. It is also alleged that the patient was Discharged on Request though the condition of the patient was in a very critical condition. Admittedly, the patient did not undergo Haemodialysis. The patient died at about 2.30 p.m. of 14.02.2007 inside the Ambulance which belonged to RIMS Hospital on his way to the Hospital from Airport .
It is clear that the patient had sudden raise of Serum Urea from 43 mg/dl to 254 mg/dl and Serum Creatinine from 1.9 mg% to 6.8 mg% within a span of 10 days. It would be clear from the chart below :
Urea Annexure
19.01.2007 51.1 A-2
20.01.2007 50 A-12
23.01.2007 40 A-10
03.02.2007 43 A-18
13.02.2007 254 A-21A
Serum Creatinine Annexure
-3-
19.01.2007 2.6 A-2
20.01.2007 2.2 A-12
It is also the further case that the
Respondent No. 1, Dr. N. Sharatkumar
Singh, Nephrologist and Respondent No.
23.01.2007 2.1 A-10
4, Dr. Y. Iboton of the Medicine
Department of the RIMS Hospital
treated the patient (late Shri
03.02.2007 1.9 A-18
Gourachandra Sharma) without
consulting a Cardiologist.
13.02.2007 6.8 A-21A The Hon'ble
Supreme Court in Dr. J.J. Merchant
&Ors Vs. ShrinathChaturvedi (2002) 6 SCC 635 held that under the Consumer Protection Act, 1986, the National Commission is required to be headed by a retired Judge of the Supreme Court and the State Commission is required to be headed by a retired High Court Judge and they are competent to decide complicated issues of law or facts. Hence, it would not be proper to hold that in cases where negligence of experts is alleged, consumer should be directed to approach the civil court. From the ratio decidendi of Dr. J.J. Merchant's case (supra), it is clear that the State Commission headed by retired High Court Judge is competent to decide the complicated issues of law or facts. The Supreme Court in V. Kishan Rao Vs Nikhil Super Speciality Hospital &Anr. (2010) 5 SCC 513 held that for forming an opinion that an expert evidence is necessary, the Fora under the Consumer Protection Act, 1986 must come to a conclusion that the case is complicated enough to require the opinion of the expert. The Apex Court further made it clear in V. Kishan Rao's case (supra) that it is left to the discretion of the Fora especially when retired Judges of Supreme Court and High Courts are appointed to head the National Commission and State Commissions respectively. As such, it is the Commission i.e. State Commission or National Commission to decide whether or not the opinion of the expert is required in the given case. Para 18, 56 and 57 of the SCC in V. Kishan Rao's case (supra) are reproduced below :
18. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided -4- under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.
56. This Court however makes it clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. This discretion in this matter is left to the members of the Fora especially when retired Judges of the Supreme Court and the High Courts are appointed to head the National Commission and the State Commissions respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or straitjacket approach that each and every case must be referred to experts for evidence.
57. When the Fora finds that expert evidence is required, the Fora must keep in mind that en expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated.
(Emphasis supplied) The Apex Court in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee &Ors. (2009) 9 SCC 221 held that negligence or medical negligence is an omission to do something which ought to have done or an act of commission which ought not have been done, in law.
The present case is complicated enough to require opinion of the expert witness. This Commission is of the considered view that opinions of the expert witness on the following points are required :
Q.1 At what stage "Hemodialysis" is normally recommended for a patient suffering from Chronic Kidney Disease and Acute Kidney Failure?
Q.2 In case of refusal on the part of the patient or his party to undergo Hemodialysis, what step should be taken by the attending Doctor?-5-
Q.3 Whether a Nephrologist can treat a patient who is suffering from Inferior Vena Cava Thrombosis (Budd-Chairi Syndromme) without consulting a Cardiologist?
Q.4. To a patient with Inferior Vena Cava Thrombosis (Budd-Chairi Syndrome), Acute Renal Failure (ARF), Anemia, what are the risks of transfusing Whole Blood instead of RBC only?
Q.5 What will be the effect of transfusing Whole Blood to a patient suffering from Chronic Kidney Disease and Acute Kidney Failure?
Q.6 To a patient with Inferior Vena Cava Thrombosis (Budd-Chairi Syndrome) and Acute Renal Failure (ARF), what would be the after effect of the medicine Zonda/Ondansetron and Low Molecular Weight Heparin (LMWH)? What are the treatment protocol for the patient administered with Zonda/Ondansetron and Low Molecular Weight Heparin (LMWH)?
Q.7 Can a patient be 'Discharged on Request' though the condition of the patient is in a critical condition; and if, the Discharge on Request is made by the family/relative of the patient whether oral request in this regard can be entertained?
Q.8 What are the conditions necessary for a patient at the terminal stage because of suffering from Inferior Vena Cava Thrombosis (Budd-Chairi Syndrome), Chronic Kidney Disease, Acute Kidney Failure and Anemia to be discharged on request?
Q.9 What would be the reasons for sudden rise of Serum Urea from 43 mg/dl to 254 mg/dl and Serum Creatinine from 1.9 mg% to 6.8 mg% within a span of 10 days for a patient with Chronic Kidney Disease and Acute Kidney Failure while hospitalized?
Q. 10 Whether a patient suffering from Diabetes Mellitus 2, Chronic Kidney Disease and Acute Kidney Failure is required to be referred to a Dietician by the attending Doctors while the patient is under treatment in the hospital?
The Expert witness is requested to give his opinion/answers by referring to the Medical literature as far as practicable."
Medical Ethics and Doctor-patient relationship -6-
16. The Code of Medical Ethics/Medical Ethics of the Doctors and also formation of Doctor-patient relationship had been discussed in threadbare by the Hon'ble Supreme Court in P.B. Desai V. State of Maharashtra & Ors (2013) 15 SCC 481 and held that the formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent rights and duties, forming the basis of liability of a medical practitioner. Due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider . The ethical "duty to treat" on the part of the Doctors is clearly covered by the Code of Medical Ethics, 1972. Para 39 of the SCC in P.B. Desai's case (supra) reads as follow :
"(2) Duty of care which a doctor owes towards his patient
39. Once it is found that there is "duty to treat" there would be a corresponding "duty to take care" upon the doctor qua his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of "duty to take care" is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal "duty to treat" may arise in a contractual relationship or governmental hospital or hospital located in a public sector undertaking. The ethical "duty to treat" on the part of doctors is clearly covered by the Code of Medical Ethics, 1972. Clause 10 of this Code deals with "obligation to the sick" and Clause 13 casts obligation on the part of the doctors with the caption "Patient must not be neglected". Whenever there is a breach of the aforesaid Code, the aggrieved patient or the party can file a petition before the relevant disciplinary committee constituted by the State Medical Council concerned. "
Regulation 2.4 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 read as follows :
"2.4 The patient must not be neglected. - A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care ."
Contract of personal service and contract for service
17. As provided under Section 2(1) (o) of the Consumer Protection Act, 1986 "service" does not include a contract of personal service . The Apex Court (Three Judges) in Kishori Lal v. Chairman, E.S.I Corporation AIR 2007 SC 1819 had discussed the distinction between the expression "contract of service" and "contract for service" and held that the service rendered by the Doctors, employee of the hospital to a patient of the hospital does not come under "a contract of personal service". Paras 8, 17, 18 and 19 of the AIR in Kishori Lal's case read as under :
"8. ...... The exclusionary part in Section 2(1)(o) excludes from the main part in service rendered (i) free of charge; or (ii) under a contract of personal service. The expression 'contract of personal service' in the exclusionary part of Section 2(1)(o) must be construed -7- as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression 'service. There is a distinction between a 'contract of service' and a 'contract for service'. A 'contract for service' implies a contract whereby one party undertakes to render service e.g. professional or technical service, to or for another in the performance of which he is not subject to detailed direction and control and exercises professional or technical skill and uses his own knowledge and discretion, whereas a 'contract of service' implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. A contract of service is excluded for consideration from the ambit of definition of 'service' in the CP Act, whereas a contract for service is included. ..............
17. It has been held in numerous cases of this court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s Spring Meadows Hospital and Another v. Harjol Ahluwalia and Another, AIR 1998 SC 1801, it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction . In State of Karnataka v. Vishwabarathi House Building Co-op, Society and Others, AIR 2003 SC 1043, the Court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the lis . These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Co-operative Agriculture Credit Society v. M. Lalitha and Others. (2004) 1 SCC 305. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment . The court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated.
18. The submission of the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees' Insurance Court alone which has the jurisdiction to decide it. We are afraid that we cannot agree with the submission made by the learned counsel . Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees' Insurance Court. Clause (e) of Section 75(1) gives power to the Employees' Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been rendered to, has a reference to the -8- benefits under the Act, i.e., the ESI Act. The Employees' State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents' benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, there are the benefits which are provided under the Rules to the employees and the ex-employees for which claim can be made in the Employees' Insurance Court. The appellant's claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees' I n s u r a n c e Court. The appellant's claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein .
19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence."
Negligence/Medical Negligence
18. In Halsbury's Laws of England - Vol. 6 (3 rd Edition); defines Negligence as :
"22. Negligence : duties owned to the 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 to 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),
23. Degree of skill and care required.
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 he requires (d); a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way (d);-9-
nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men (e)."
19. No doubt, the deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming and inadequacy in quality and nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The Apex Court in Ravneet Singh Bagga vs. KLM Royal Dutch Airlines & Ors. (2000) 1 SCC 66 held that "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality and nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service of the respondent. ..............."
20. The Apex Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors (2009) 9 SCC 221 held that negligence is an omission to do something which ought to have been done or an act of omission which ought not have been done in law . Para 135 and 136 of the SCC in Malay Kumar Ganguly's case (supra) read as follow :
"135. 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 . (See Law of Torts, Ratanlal & Dhirajlal, 24 th Edn. 2002, at pp. 441-42) Negligence means "either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; it is rather a comparative term. In determining whether negligence exists in a particular case, all the attending and surrounding facts and circumstances have to be taken into account". (See Municipal Corpn. of Greater Bombay v. Laxman Iyer (2003) 8 SCC 731 : 2004 SCC(Cri) 252, SCC para 6, Advanced Law Lexicon, P. Ramanatha Aiyar, 3 rd Edn. 2005, p. 3161.)
136. Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence ."
21. The Apex Court in Martin F.D'souza vs. Mohd. Ishfaq (2009) 3 SCC 1 held that "47. ............
-10-Precautions which doctors/hospitals/nursing homes should take
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly. Thus, in Sarwat Ali Khan v. Prof R. Gogi (OP No. 181 of 1997 decided on 18-7-2007 (NC)) the facts were that out of 52 cataract operations performed between 26-9-1995 and 28-9-1995 in an eye hospital, 14 persons lost their vision in the operated eye. An enquiry revealed that in the operation theater two autoclaves were not working properly. This equipment is absolutely necessary to carry out sterilization of instruments, cotton, pads, linen, etc. and the damage occurred because of its absence in working condition . The doctors were held liable.
(b) No prescription should ordinarily be given without actual examination . The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary .
(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient .
(e) An expert should be consulted in case of any doubt . Thus, in Indrani Bhattacharjee (OP No. 233 of 1996 decided on 9-8-2007 (NC)), the patient was diagnosed as having "mild lateral wall ischaemia". The doctor prescribed medicine for gastroenteritis, but he expired. It was held that the doctor was negligent as he should have advised consulting a cardiologist in writing .
(f) Full record of the diagnosis, treatment, etc. should be maintained ."
22. The Apex Court in Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 held that failure to maintain standard of care prescribed by law thereby committing breach of such duty is medical negligence . Para 11 and 48 of the SCC in Jacob Mathew's case (supra) read as follow :
"11. According to Charlesworth & Percy on Negligence (10 th Edn., 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and
(iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (para 1.01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say :
(1) the existence of a duty to take care, which is owed by the defendant to the complainant;-11-
(2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (para 1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (para 1.24).
48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to do something which is 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 goods. 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 of method of treatment was also available or simply because of more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to 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 -12- 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 for 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.
(4) The test for determining medical negligence as laid down in Bolam case (Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 :
(1957) 2 All ER 118 (QBD)), WLR at p. 586 holds good in its applicability in India .
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence . It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
Burden of Proof -13-
23. The Apex Court in Nizam's Institute of Medical Sciences vs. Prasanth S. Dhananka & Ors. (2009) 6 SCC 1 held that once the claimant discharges the initial burden by making out a case of negligence, held, onus shifts on to the hospital or doctors to satisfy the court that there was no lack of care or diligence. Para 77 and 79 of the Nizam's case (supra) read as follow :
"77. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence .
79. In the light of the above facts, we have no option but to hold that the attending doctors were seriously remiss in the conduct of the operation and it was on account of this negligence that the paraplegia had set in. We accordingly confirm the findings of the Commission on this score as well."
23A. The Apex Court in Savita Garg (Smt) vs. Director, National Heart Institute (2004) 8 SCC 56 held that once the complainant has filed a claim has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctors who treated the patient to show that there was no negligence involved in the treatment . Hospital is bound to produce the record to show that there was no negligence . Para 10 of the SCC in Savita Garg's case (supra) reads as follow :
"10. ............... The patients once they are admitted to such hospital, it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the hospital to provide the best service and if it does not, then the hospital cannot take shelter under the technical ground that the surgeon concerned or the nursing staff, as the case may be, was not impleaded , and therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence . In fact it is the hospital which engages the treating doctor thereafter it is their responsibility. The burden is greater on the institution/hospital than that on the claimant. The institution is a private body and they are responsible to provide efficient service and if in discharge of their efficient service there are a couple of weak links which have caused damage to the patient then it is the -14- hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties."
Applicability of Code of Civil Procedure
24. Section 13(4), Section 13(5), Section 13(6) and Section 13(7) of the Consumer Protection Act, 1986 clearly provides the limited application of CPC, 1908 in the proceedings before the Consumer Fora . In this regard, the Apex Court in Savita Garg (Smt.) Vs. Director, National Heart Institute (2004) 8 SCC 56 held that :
"7. Sub-section (4), (5) and (6) of Section 13 lay down that the Forum shall have the power to summon and enforce the attendance of any defendant or witness as laid down in the Code of Civil Procedure. Likewise, it shall have the power to direct for production of material producible as evidence, reception of evidence on affidavit; requisitioning of the report of the analysis or test concerned form the appropriate laboratory or from any other relevant source; issuing of any commission for the examination of any witness and any other matter which may be prescribed. Sub-section (5) says that every proceeding before the District Forum shall be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and the District Form shall be deemed to be a civil court for the purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure. Sub-section (6) says that when there is more than one consumer, then one of them can sue as required under Order I Rule 8 of the Code of Civil Procedure. Therefore, if there are a number of consumers, one of them can represent the interest of all. Therefore, as far as the Commission is concerned, the provisions of the Code of Civil Procedure are applicable to a limited extent and not all the provisions of the Code of Civil Procedure are made applicable to proceedings of the National Forum . Rules have also been framed under the Act, known as the Consumer Protection Rules, 1987, where Rule 14 has prescribed the procedure to be followed by the Commission. Rule 14 says that the name, description and the address of the complainant and the opposite parties, as the case may be, so far as they can be ascertained, should be given. Clause (b) of sub-rule (1) which is relevant for our purposes reads as under :
14. (1) (b) the name, description and address of the opposite party or parties, as the case may be, so far as they can be ascertained;"
8. Therefore, according to the procedure laid down by the Rules, a complainant has to give the name, description and address of the opposite party or parties so far as they can be ascertained.
9. ......... Though the Commission directed that necessary parties may be impleaded it appears that no effort was made to implead the treating surgeon or the nursing staff as a party. Therefore, the question is whether non-impleading the treating surgeon or a nursing staff can be said to be necessary party and if they are not impleaded then, in that case, the original petition can result in dismissal on account of non-joinder of necessary party.
-15-So far as the law with regard to the non-joinder of party under the Code of Civil Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC there also even no suit shall fail because of misjoinder or non-joinder of parties . It can be proceed against the persons who are parties before the court. Even the court has the power under Order 1 Rule 10(4) to give direction to implead a person who is a necessary party. Therefore, even if after the direction given by the Commission the doctor concerned and the nursing staff who were looking after the deceased A.K. Garg have not been impleaded as opposite parties it cannot result in dismissal of the original petition as a whole ."
Applicability of Indian Evidence Act
25. The Apex Court in Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & Ors (2009) 9 SCC 221 held that provisions of Indian Evidence Act are not applicable . Para 43 of the SCC in Malay Kumar's case (supra) reads as follow :
"43. Apart from the procedures laid down in Sections 12 and 13 as also the Rules made under the Act, the Commission is not bound by any other prescribed procedure. The provisions of the Evidence Act are not applicable . The Commission is merely to comply with the principles of natural justice, save and except the ones laid down under sub-section (4) of Section 13 of the 1986 Act. The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court . (See Bharat Bank Ltd. v. Employees (AIR 1950 SC 188 : 1950 SCR 459) and Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corpn. ((2009) 8 SCC 646)."
'No Fee Charge' is not the ground for escaping the Doctor from his liability of negligence
26. The Apex Court in Balram Prasad vs. Kunal Saha & Ors. (2014) 1 SCC 384 after considering the earlier decision of the Apex Court in Savita Garg v. National Heart Institute ((2004) 8 SCC 56) and in Malay Kumar Ganguly case ((2009) 9 SCC 221) held that doctors cannot escape the liability for medical negligence only on the ground that he did not charge any fee . Paras 76 and 77 of the SCC in Balram Prasad's case (supra) read as follow :
"76. The appellant doctors Dr Sukumar Mukherjee and Dr Baidyanath Haldar have attempted to claim in their respective appeals that they cannot be penalized with compensation because they did not charge any fee for treatment of the deceased . Such a claim has no legal basis as in view of the categorical observations made by this Court in Savita Garg v. National Heart Institute ((2004) 8 SCC 56) and in Malay Kumar Ganguly case ((2009) 9 SCC
221) wherein this Court has categorically stated that the aforesaid principle in Savita Garg case ((2004) 8 SCC 56) applies to the present case also insofar as it answers the contentions raised before us that the three senior doctors did not charge any professional fees .-16-
77. Further, it is contended by the claimant that from a moral and ethical perspective, a doctor cannot escape liability for causing death of a patient from medical negligence on the ground that he did not charge any fee .
If that was true, poor patients who are sometimes treated for free and patients in many charitable hospitals would be killed with impunity by errant and reckless doctors. It is urged that the National Commission ought to have considered the claim made for prospective loss of income of the appellant's wife and has committed error in rejecting the same and it has also rejected the amount of the pecuniary losses of this claimant under separate headings which are mentioned in the Table referred to supra including expenses that were paid at the direction of the National Commission, namely, expenses relating to videoconferencing or payment for the Court Commissioners. Most of these direct losses were suffered by the claimant as a result of the wrongful death of his wife in the long quest for justice over the past 15 years as a result of the wrongful death of his wife. The National Commission did not provide any reason as to why the said claims were denied to him, as per this Court's decision in Charan Singh v. healing Touch Hospital ((2000) 7 SCC 668 : 2000 SCC (Cril) 1444)."
Medical Negligence and Government Hospital
27. The Apex Court in V. Krishnakumar vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388 held that the state would be vicariously liable on account of negligence of its doctors and other employee . Para 34 of the SCC in V. Krishnakumar's case (supra) reads as follow "34. It is settled law that the Hospital is variously liable for the acts of its doctors vide Savita Garg v. National Heart Institute (2004) 8 SCC 56 , also followed in Balram Prasad case (2014) 1 SCC 384. Similarly in Achutrao Haribhau Khodwa v. State of Maharastra (1996) 2 SCC 634, this Court unequivocally held that the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees . By the same measure, it is not possible to absolve Respondent 1, the State of Tamil Nadu, which establishes and administers such hospitals through its Department of Health, from its liability."
28. Keeping in view the decisions of the Apex Court in the cases discussed above, we are of the considered view that the opposite party No. 1 and opposite party No. 4 did not charge any fees for their service to the complainant's husband while the complainant's husband was the inpatient of RIMS hospital is not a legally valid ground for escaping their liabilities for medical negligence within the purview of the Consumer Protection Act, 1986 . After such finding we are not required to burden ourselves to see as to whether the opposite party No. 1 and opposite party No. 4 had really charged the fee for their service, may be a small amount, to the complainant's husband while the complainant's husband was the inpatient of RIMS hospital by appreciating the evidence produced by the complainant that the RIMS hospital, opposite party No. 1 and opposite party No. 4 had really charged fees for different tests of the complainant's husband and other services rendered by the hospital. In the result, we hold that the present complaint under the Consumer Protection Act, 1986 is maintainable.
-17-29. In the given case, the complainant had successfully put up the highly probable case of transfusing the mismatched blood to the complainant's husband on the said 3 (three) occasions, and in such case, the onus is shifted on to the opposite parties to show that care had been taken as required under the medical protocol or medical procedures that the blood group of the complainant's husband was carefully tested and so also the blood group of the donors were clearly tested and only the matching blood had been transfused to the complainant's husband. On the side of the opposite parties, they had examined D.W. No. 1, Dr. Y. Bijoykumar, Medical Officer, Blood Bank in RIMS. He stated that as per the official record maintained in the RIMS for supplying blood for transfusion to the complainant's husband, after meticulously testing/grouping, the blood group of the complainant's husband was A+ve. The Blood group of A+ve was transfused to the complainant's husband. D.W. No.1 is neither a Doctor nor a technician who had conducted the Blood Grouping Test of the complainant's husband and also that of the donors and also he had no direct knowledge as to whether the matching blood had been transfused to the complainant's husband on the said 3 (three) occasions. In his cross-examination, he stated that he did not participate in the act of transfusion as matter of norm blood test is conducted by the technician in the laboratory. He further stated that his Examination-in-chief in the form of Affidavit was brought to his office by one un-known person brought by opposite party No. 1 Dr. N. Sharatkumar Singh. None of the opposite party No. 1 and opposite party No. 2 had knowledge as to who had conducted the blood grouping test and cross-matching test of the complainant's husband and correct blood group of A+ve was transfused to the complainant's husband. Further the opposite parties did not examine any witnesses who had conducted the blood grouping test and also the blood grouping test of the blood supplied for transfusion to the complainant's husband. The opposite parties had failed to shift their onus.
Duty of Doctor to give adequate information and consent of the patient/patient party
30. In the given case, as discussed above, Haemodialysis treatment of the complainant's husband was required, the purpose of which was limited only to prevent catastrophe on 12.02.2007 and 13.02.2007 but instead of giving Haemodialysis treatment to the complainant's husband, the complainant's husband was discharged on 13.02.2007. The complainant's husband could not be taken to Well-equipped hospital at Kolkata and he died on 14.02.2007 inside the Ambulance of the RIMS. Both the opposite party No. 1 and opposite party No. 4 did not give any reasons why there were failures on their part to give the best possible treatment to prevent catastrophe by giving Haemodialysis treatment to the complainant's husband. The opposite party No. 1 while he was examined as D.W. No. 2, did not even state anything as to why he failed to extend the best possible treatment to the complainant's husband to prevent catastrophe. But the opposite party No. 4, when he was examined as D.W. No.3, stated in his cross-examination that as per the condition of the deceased patient on 13.02.2007, after assessment of the report, one of the possible last resort was for Haemodialysis but this could not be done as the patient wanted to be discharged for going elsewhere. It is the clear case of the complainant that there was no request from the side of the complainant and patient and patient's party to discharge the patient i.e. the complainant's husband on request. As discussed above under the Doctor-patient relationship and also other medical ethics it is the bounden duty of the doctors to give the best possible treatment which is unavoidably required as a last resort. Further it is also the bounden duty of the opposite party No. 1 and opposite party No. 4 to furnish the adequate information to the patient and his party so as to enable the patient and his party to make a balanced judgment. The Apex Court in Samira Kohli vs. Dr. Prabha Manchanda & Anr. (2008) 2 SCC 1 held that attending doctors -18- should furnish the adequate information to the patient so as to enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. Paras 18, 20 and 49 of the SCC in Samira' case (supra) read as follow :
"18. Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient . For example, when a patient enters a dentist's clinic and sits in the dental chair, his consent is implied for examination, diagnosis and consultation. Except where consent can be clearly and obviously implied, there should be express consent . There is, however, a significant difference in the nature of express consent of the patient, known as "real consent" in UK and as "informed consent" in America . In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and "real"
when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On the other hand, the concept of "informed consent" developed by American courts, while retaining the basic requirements of consent, shifts the emphasis on the doctor's duty to disclose the necessary information to the patient to secure his consent. "Informed consent" is defined in Taber's Cyclopedic Medical Dictionary thus :
" Consent that is given by a person after receipt of the following information: the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful .""
20. The basic principle in regard to patient's consent may be traced to the following classic statement by Cardozo, J. in Schloendorff v. Society of New York Hospital (211 NY 125 : 105 NE 92 (1914)): (NE p. 93, paras 5-6) "... Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.
This principle has been accepted by an English court also. F. ( Mental Patient :
Sterilisation ), In re ((1990) 2 AC 1 : (1989) 2 WLR 1025 : (1989) 2 All ER 545 sub nom F. v. West Berkshire HA) the House of Lords while dealing with a case of sterilisation of a mental patient reiterated the fundamental principle that every person's body is inviolate and performance of a medical operation on a person without his or her consent is unlawful. The English Law on this aspect is summarized thus in Principles of Medical Law (published by Oxford University Press, 2nd Edn., edited by Andrew Grubb, p. 133, para 3.04):-19-
"Any intentional touching of a person is unlawful and amounts to the tort of battery unless it is justified by consent or other lawful authority. In medical law, this means that a doctor may only carry out a medical treatment or procedure which involves contact with a patient if there exists a valid consent by the patient (or another person authorized by law to consent on his behalf) or if the touching is permitted notwithstanding the absence of consent."
49. We may now summarise principles relating to consent as follows :
(i) A doctor has to seek and secure the consent of the patient before commencing a "treatment" (the term "treatment" includes surgery also). The consent so obtained should be real and valid , which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to .
(ii) The " adequate information " to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment . But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment.
A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo and unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent -20- for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Centerbury (Centerbury v. Spence, 464 F 2d 772 : 150 US App DC 263 (1972) but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment."
31. Keeping in view the ratio decidendi of the Samira Kohli's case (supra) we have given our anxious consideration as to whether the opposite party No. 1 and opposite party No. 4 had given the adequate information to the complainant and her husband so as to enable them to take the balanced judgment as to whether the complainant's husband was to undergo the Haemodialysis treatment? But we found that there was no material evidence either in the form of documents or oral evidence to show that adequate information had been furnished to the complainant and her husband so as to enable them to take the balanced judgment as to whether the complainant's husband was to undergo the Haemodialysis treatment or not? The opposite party No. 1 and opposite party No. 4 not only failed to give adequate information to the complainant but also failed to give Haemodialysis treatment to the complainant's husband. Accordingly, we hold that there were deficiencies of service on the part of the opposite parties more particularly opposite party No. 1 and opposite party No. 4 thereby resulting to medical negligence.
32. The opposite party No. 1 and opposite party No. 4 could not even produce any evidence to show that the Discharge Certificate, Exhibit D/38 was issued on the request of the complainant or her party. The complainant clearly stated that the complainant and her party did not request the hospital authority or the opposite party No. 1 and opposite party No. 4 to discharge the complainant's husband, who was in a very critical condition, on request. The 2 (two) expert witnesses namely, (1) Dr. Guliver P., Consultant Nephrology, Shija Hospitals and (2) Dr. L.K. Sharatchandra, Prof. Medicine and consultant Nephrology, RIMS had given their opinion unanimously, in clear terms, that for discharging the patient (critically ill) on request, written consent of the family or relative of the patient is required and also party shall sign on the Certificate (Exhibit D/38). There was no evidence on record that there was a written consent/written request of the patient party or relative of the complainant's husband or the complainant herself for discharging the critically ill complainant's husband on request. None of the patient party or the complainant herself signed on the Discharge Certificate on request, Exhibit D/38. Over and above, the critically ill complainant's husband was discharged without any life supporting equipments for enabling the complainant's husband to attend a well-equipped hospital as per the advice indicated in the Discharge Certificate. Accordingly, we are constraint to hold that there was deficiency of service on the part of the opposite party No. 1 and opposite party No. 4.
Compensation -21-
33. The Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors. (2003) 7 SCC 484 held that there can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration and requires judicious approach. The expression "just" denotes equitability, fairness, reasonableness and non-arbitrariness . There are two types of damages viz. Pecuniary Damages (Special damages) and Non-pecuniary Damages (General Damages) (ref.: Raj Kumar vs. Ajay Kumar & Ors. (2011) 1 SCC 343 ). In the present case, what would be the "just" compensation in the light of the decision of the Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors. (2003) 7 SCC 484, is the compensation which is equitable, fair, reasonable and non-arbitrary.
34. The Apex Court in V. Krishnakumar vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388 held that "Quantification of compensation
19. The principle of awarding compensation that can be safely relied on is restitution in integrum . This principle has been recognized as relied on in Malay Kumar Ganguly v. Sukumar Mukherjee ((2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299) and in Balram Prasad case ((2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327) in the following passage from the latter : ( Malay Kumar Ganguly v. Sukumar Mukherjee ((2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299), 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 restitution in integrum . The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position, as he would have been if he had not sustained the wrong . (See Livingstone v. Rawyards Coal Co. ((1880) LR 5 AC 25 (HL))"
An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event."
35. The Apex Court in Balram Pradad vs. Kunal Saha & Ors (2014) 1 SCC 384 held that "177. Under the heading loss due to pain and suffering and loss of amenities of the wife of the claimant, Kemp and Kemp write as under :
"The award to the plaintiff of damages under the head 'pain and suffering' depends as Lord Scarman said in Lim Poh Choo v. Camden and Islington Area Health Authority (1980 AC 174 : (1979) 3 WLR 44 : (1979) 2 All -22- ER 910 (HL) , upon the claimant's personal awareness of pain, her capacity of suffering. Accordingly, no award is appropriate if an insofar as the claimant has not suffered and is not likely to suffer pain, and has not endured and is not likely to endure suffering, for example, because he was rendered immediately and permanently unconscious in the accident. By contrast, an award of damages in respect of loss of amenities is appropriate whenever there is in fact such a loss regardless of the claimant's awareness of the loss."
Further, it is written that :
"Even though the claimant may die for his injuries shortly after the accident, the evidence may justify an award under this head. Shock should also be taken account of as an ingredient of pain and suffering and the claimant's particular circumstances may well be highly relevant to the extent of her suffering.
By considering the nature of amenities lost and injury and pain in the particular case, the court must assess the effect upon the particular claimant. In deciding the appropriate award of damages, an important consideration is how long he be deprived of those amenities and how long the pain and suffering has been and will be endured. If it is for the rest of the life the court will need to take into account in assessing damages the claimant's age and his expectation in life . That applies as much in the case of an unconscious plaintiff as in the case of one sentient, at least as regards the loss of amenity."
178. The extract from Malay Kumar Ganguly case (2009) 9 SCC 221 reads as under : (SCC p. 232, paras 3-4) "3. Despite administration of the said injection twice daily, Anuradha's condition deteriorated rapidly from bad to worse over the next few days. Accordingly, she was admitted at Advanced Medicare Research Institute (AMRI) in the morning of 11-5-1998 under Dr. Mukherjee's supervision. Anuradha was also examined by Dr Baidyanath Haldar, Respondent 2 herein. Dr Haldar found that she had been suffering from erythema plus blisters. Her condition, however, continued to deteriorate further. Dr Abani Roy Choudhury, Consultant, Respondent 3 was also consulted on 12-5-1998.
4. On or about 17-5-1998 Anuradha was shifted to Breach Candy Hospital, Mumbai as her condition further deteriorated severely. She breathed her last on 28-5-1998."
The above -extracted portion from the above judgment would show that the deceased had undergone the ordeal of pain for 18 long days before she breathed her last. In this course of the period, she has suffered with immense pain and suffering and undergone mental agony because of the negligence of -23- the appellant doctors and the Hospital which has been proved by the claimant and needs no reiteration .
179. Further, in Nizam's Institute (2009) 6 SCC 1 : (2009) 2 SCC (Civ) 688), the claimant who was also the surviving victim of a motor vehicle accident was awarded Rs 10 lakhs for pain and suffering. Further, it was held in R.D. Hattangadi case ((1995) 1 SCC 551 : 1995 SCC (cri) 250) as follows : (SCC p. 557, para 14) "14. In Halsbury's Laws of England, 4 th Edn., Vol. 12 regarding non-pecuniary loss at pp. 446-47 it has been said :
1147. Non-pecuniary loss : the pattern. - Damages awarded for pain and suffering and loss for amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.'"
36. Keeping in view the above decisions of the Apex Court as to the amount of compensation, we are of the considered view that "just" compensation under different heads in the present complaint case are hereunder :
Loss of income of the deceased Rs. 7,00,000/-
For medical treatment Rs. 90,000/-
Pain and suffering Rs. 3,00,000/-
Cost of litigation Rs. 15,000/-
Total Cost : Rs. 11,05,000/-
-24-
Therefore, a total sum of Rs. 11,05,000/- (Rupees eleven lakhs and five thousand) only is the compensation awarded in favour of the complainant. Opposite party No. 1, opposite party No. 2 and opposite party No. 4 are jointly and severally liable to pay the said compensation within a period of 4 (four) months from the date of passing this judgment and order. The said amount of compensation shall be deposited in the Registry of this Commission and Registry shall release the said amount of compensation to the complainant on being identified by a counsel known to this Commission. In case of failure to deposit the said amount within the period indicated above, there shall be 6% interest per annum from the date of expiry of the period for depositing the amount mentioned above.
37. The present complaint case is allowed to the extent indicated above.
[HON'BLE MR. JUSTICE T.Nandakumar] PRESIDENT [HON'BLE MR. M.Padmeshwor Singh] JUDICIAL MEMBER [HON'BLE MRS. A.Nibedita Devi] MEMBER -25-