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Transcript of Kunal Saha
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2867 OF 2012
Dr. Balram Praa! " A##$lla%&
V.
Dr. '(%al Sa)a * Or. " R$#+%!$%&
,ITH
CIVIL APPEAL N+.6-2 + 2012
A!/a%$! M$!ar$ * R$$ar)I%&&(&$ L&!. " A##$lla%&
V.
Dr. '(%al Sa)a * Or. " R$#+%!$%&
,ITH
CIVIL APPEAL N+.2866 + 2012
Dr. '(%al Sa)a "A##$lla%&
V.
Dr. S((mar M()$r3$$ * Or. " R$#+%!$%&
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,ITH
CIVIL APPEAL N+.741 + 2012
Dr. Ba!5a%a&) Hal!ar " A##$lla%&
V.
Dr. '(%al Sa)a * Or. " R$#+%!$%&
AND
CIVIL APPEAL N+.88 + 2012
Dr. S((mar M()$r3$$ " A##$lla%&
V.
Dr. '(%al Sa)a * Or. " R$#+%!$%&
J U D M E N T
V. +#ala +!a9 J.
The Civil Appeal Nos.2867, 731 and 858 of 2012
are filed by the appellantdo!tors, Civil Appeal
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No. 6"2 of 2012 is filed by the appellantA#$%
&ospital and Civil Appeal No. 2866 of 2012 is filed
by the !lai'antappellant ( )r. *+nal aha
-hereinafter referred to as the !lai'ant/,
+estionin the !orre!tness of the i'p+ned
+d'ent and order dated 21.10.2011 passed by the
National Cons+'er )isp+tes $edressal Co''ission
-hereinafter referred to as the National
Co''ission/ in 4riinal etition No.20 of 1""".
2.The appellantdo!tors are arieved by the
+ant+' of !o'pensation aarded by the National
Co''ission and the liability fastened +pon the'
for the nelien!e on their part and have prayed
to set aside the sa'e by alloin their appeals.
%n so far as the appellantA#$% &ospital is
!on!erned, it has also +estioned the +ant+' of
!o'pensation aarded and has prayed to red+!e the
sa'e by aardin +st and reasonable !o'pensation
by 'odifyin the +d'ent by alloin its appeal.
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o far as the !lai'ant is !on!erned, he is
arieved by the said +d'ent and the !o'pensation
aarded hi!h, a!!ordin to hi', is inade+ate, as
the sa'e is !ontrary to the ad'itted fa!ts and la
laid don by this Co+rt in !atena of !ases
reardin aardin of !o'pensation in relation to
the proved 'edi!al nelien!e for the death of his
ife An+radha aha -hereinafter referred to as the
de!eased/.
3.The brief relevant fa!ts and the ro+nds +red on
behalf of the appellantdo!tors, A#$% &ospital
and the !lai'ant in seriati' are adverted to in
this !o''on +d'ent for the p+rpose of ea'inin
the !orre!tness of their respe!tive leal
!ontentions +red in their respe!tive appeals
ith a vie to pass !o''on +d'ent and aard.
.9rief ne!essary and relevant fa!ts of the !ase
are stated here+nder:
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The !lai'ant filed 4riinal etition No. 20 of
1""" on 0".03.1""" before the National Co''ission
!lai'in !o'pensation for $s.77,07,5,000; and
later the sa'e as a'ended by !lai'in another s+'
of $s.20,00,00,000;. After the !ase of Mala5
'(mar a%:(l5
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!lai'ant shos that she as +st a rad+ate in
Arts -@nlish. +rther, it is +red by the
learned !o+nsel that the do!+'ent prod+!ed by the
!lai'ant a !o'p+ter enerated sheet, does not
eplain for hat orB the re'+neration, if at all
as re!eived by the de!eased. Also, hether the
sa'e as a oneti'e pay'ent of stipend or pay'ent
toards vol+ntary orB, is not eplained by the
!lai'ant. +rther, it is stated by the learned
!o+nsel that there is no aver'ent in the petition
of the !lai'ant as to on hat a!!o+nt the said
pay'ent as re!eived by the de!eased and hether
she has re!eived it as a Child sy!holoist as
!lai'ed by the !lai'ant or otherise.
6.%t is also the !ase of the appellantdo!tors and
the &ospital that the !lai'ant had not led any
oral eviden!e ith reard to the in!o'e of the
de!eased and f+rther he has not eplained hy
+st a sinle do!+'ent dis!loses the pay'ent 'ade
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so'eti'e in the 'onth of +ne 1"88 in s+pport of
the in!o'e of the de!eased hen ad'ittedly, the
!o+ple !a'e to %ndia in the 'onth of #ar!hApril,
1""8. Therefore, the learned !o+nsel for the
appellantdo!tors and the &ospital have +red
that the said do!+'ent is a va+e do!+'ent and no
relian!e !o+ld have been pla!ed by the National
Co''ission on the sa'e to !o'e to the !on!l+sion
that the de!eased in fa!t had s+!h an in!o'e to
deter'ine and aard the !o'pensation as has been
aarded in the i'p+ned +d'ent and order. ro'
a per+sal of the said do!+'ent, it !o+ld be
as!ertained that it shos +st one ti'e pay'ent
re!eived for so'e odd obs. Therefore, it is
!ontended by the appellantdo!tors and the
&ospital that the !lai'ant has not been able to
dis!hare his on+s by add+!in any positive
eviden!e in this reard before the National
Co''ission.
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7.%t is f+rther !ontended by the learned !o+nsel
that the assertion of the !lai'ant in the
petition and in his eviden!e before the National
Co''ission that the in!o'e of the de!eased as
D30,000 per ann+' is not s+bstantiated by
prod+!in !oent eviden!e. No appoint'ent letter
of the de!eased to sho that she as e'ployed in
any oraniEation in hatsoever !apa!ity had been
prod+!ed nor has the !lai'ant prod+!ed any in!o'e
!ertifi!ate;salary sheet. No eviden!e is prod+!ed
by the !lai'ant in s+pport of the fa!t that the
de!eased as enaed on any per'anent orB. No
%n!o'e Ta $et+rn has been prod+!ed by the
!lai'ant to sho that she had been payin ta or
had any in!o'e in F..A.
8.%t is f+rther s+b'itted that even if it is
ass+'ed that the ann+al in!o'e of the de!eased
as D30,000 per ann+', apart fro' ded+!tion on
a!!o+nt of ta, it is also essential for the
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National Co''ission to as!ertain the personal
livin epenses of the de!eased hi!h as
re+ired to be ded+!ted o+t of the ann+al in!o'e
to deter'ine the !o'pensation payable to the
!lai'ant. The National Co''ission as re+ired
to first as!ertain the style of livin of the
de!eased hether it as partan or 9ohe'ian to
arrive the in!o'e fi+re of D30,000 per ann+'.
%n %ndia, on a!!o+nt of style and standard of
livin of a person, one(third of the ross in!o'e
is re+ired to be ded+!ted o+t of the ann+al
in!o'e as laid don in the de!ision of this Co+rt
in the !ase of Or$%&al I%(ra%$ C+m#a%5 L&!.
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the so!alled epert, rof. ohn . 9+rBe r. also
does not say anythin on this s!ore.
@ven if it is ass+'ed that the ann+al in!o'e of
the de!eased as D30,000 per ann+' for hi!h there
is no eviden!e, 25G thereof is re+ired to be
ded+!ted toards ta. The ded+!tion of ta is '+!h
'ore as is apparent fro' the !ase reported in
U%&$! I%!a I%(ra%$ C+. L&!. * O&)$r
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&ospitalappellant/s itness #r. atyabrata
Fpadhyay as !rossea'ined by the !lai'ant.
". The !lai'ant filed #.A. No.1327 of 200" before
the National Co''ission after re'and order as
passed by this Co+rt in the !ase of Mala5 '(mar
a%:(l5 -s+pra. The !lai'ant no !lai'ed
enhan!e'ent of !o'pensation at $s.78,1,00,000;
+nder the heads of pe!+niary da'aes and non
pe!+niary da'aes.
The prayer 'ade in the appli!ation as to ad'it
the !lai' for !o'pensation alon ith s+pportin
do!+'ents in!l+din the opinions of the forein
eperts and f+rther prayed for iss+in dire!tion to
the appellantdo!tors and the &ospital to arrane
for !rossea'ination of the forein eperts, if
they ish, thro+h video !onferen!in at their
epenses as dire!ted by this Co+rt in the re'and
order in Mala5 '(mar a%:(l5> !ase -s+pra and for
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fiin the 'atter for a final hearin as soon as
possible on a fir' and fied date as the !lai'ant
hi'self ant to ar+e his petition as as done
before this Co+rt, as he bein the per'anent
resident of F..A.
10. The learned senior !o+nsel appearin for the
!lai'ant on ".2.2010 prayed for ithdraal of the
appli!ation statin that he o+ld file another
appropriate appli!ation. Thereafter, on 22.2.2010
the !lai'ant filed #.A. No.200 of 2010 seeBin
dire!tion to the National Co''ission to per'it hi'
to prod+!e affidavit of fo+r forein eperts and
their reports. The National Co''ission dis'issed
the sa'e vide order dated 26..2010 aainst hi!h
spe!ial leave petition No.15070;2010 as filed
before this Co+rt hi!h as ithdran later on.
Aain, the !lai'ant filed #.A. No.5" of 2010
before the National Co''ission for ea'ination of
fo+r forein eperts to s+bstantiate his !lai'
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thro+h video !onferen!in at the epense of the
appellantdo!tors and the &ospital. The National
Co''ission vide order dated 6.".2010 dis'issed the
appli!ation of the !lai'ant for ea'inin forein
eperts. Aainst this order, the !lai'ant preferred
H -C No.3173 of 2011 before this Co+rt prayin
for per'ission to ea'ine to forein eperts,
na'ely, rof. ohn . 9+rBe r. and rof. ohn
9ro+hton thro+h video !onferen!in and he
+ndertooB to bear the epenses for s+!h
ea'ination. The !lai'ant had iven +p ea'ination
of other to forein eperts, na'ely, ). oe
?riffith and #s. Anela &ill. rof. ohn . 9+rBe
r. as ea'ined on 26..2011 as an @!ono'i!s
@pert to prove the loss of in!o'e of the de!eased
and the !lai'ant relied +pon an affidavit dated
21.".200" and his report dated 18.12.200" herein
he has stated that if the de!eased o+ld have been
e'ployed thro+h the ae of 70, her net in!o'e
!o+ld have been D3,750,213.00. %n addition, the
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loss of servi!e fro' a do'esti! prospe!tive as an
additional a'o+nt of D1,258,21.00. The said
itness as !ross ea'ined by the learned !o+nsel
for the do!tors and A#$% &ospital. The learned
Co+nsel for the appellantdo!tors pla!ed relian!e
+pon the folloin +estions and ansers eli!ited
fro' the above @!ono'i!s @pert itness, hi!h are
etra!ted here+nder:
IJ.16. Can yo+ tell 'e hat as the aes of
An+radha in 1""7K
A.16. #ay % !he!B 'y file -per'itted. %
don/t Bno.
J.17. Are yo+ aare hether An+radha as anin!o'e ta payee or notK
A.17. An+ and her h+sband ere filin oint
ret+rn.
J.18. )id An+ have any individ+al in!o'eK
A.18. % don/t Bno.
J.1". )id *+nal aha provide yo+ the earninstate'ent of An+radha aha, herein her ross
'onthly pay as shon as D 1060 as on
16.1.1""8K
A.1". % don/t believe that % have that
infor'ation.
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L
J.21. =hat do!+'ents have yo+ taBen into
!onsideration of An+/s in!o'e for ivin yo+r
opinionK
A.21. None.
J.22. =hether An+ as e'ployed at the ti'e of
her deathK
A.22. % don/t thinB so> % don/t believe so.M
11. The !lai'ant on the other hand, had pla!ed
stron relian!e +pon the eviden!e of the @!ono'i!s
@pert rof. ohn . 9+rBe to prove the in!o'e of
the de!eased as on the date of her death and a!t+al
in!o'e if she o+ld have lived +p to the ae of 70
years as he had also ea'ined rof. ohn 9ro+hton
in +stifi!ation of his !lai'.
The learned !o+nsel for the appellantdo!tors
!ontended that rof. ohn . 9+rBe, ho as
ea'ined thro+h video !onferen!in in the presen!e
of the Ho!al Co''issioner, has esti'ated the life
ti'e in!o'e of the de!eased to be 5 'illion and 125
tho+sand F dollars itho+t any s+pportin
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'aterial. The said forein epert itness did not
Bno hether the de!eased had any individ+al
in!o'e. &e did not Bno abo+t the earnin state'ent
of the de!eased prod+!ed by the !lai'ant. &e has
also stated that the de!eased as not e'ployed at
the ti'e of her death.
12. The learned !o+nsel for the appellantdo!tors
also s+b'itted that the earnin state'ent iss+ed by
Catholi! &o'e 9+rea+ statin the in!o'e of the
de!eased at D1060.72 for the period endin 15th
an+ary, 1""8 !annot be relied +pon for the
folloin reasons :
-a The earnin state'ent as not proved in
a!!ordan!e ith la sin!e only the
affidavit of !lai'ant as ehibited and
not the do!+'ents before +sti!e
HoBeshar rasad -$etired i.e. the
Ho!al Co''issioner on 5.12.2003 d+rin
the !rossea'ination.
-b There is nothin to sho that An+radha
aha as +nder e'ploy'ent at Catholi!
&o'e 9+rea+.
-! Hetter of appoint'ent has not been
anneed.
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-d ederal Ta re!ord has not been
prod+!ed. The @!ono'i!s epert has
stated that An+radha and the !lai'antere filin oint ta ret+rn.
-e %t does not sho eeBly in!o'e of the
de!eased as has been treated by NC)$C.
-f Nat+re of appoint'ent, even if pres+'ed,
has not been stated, i.e., hether it
as te'porary or per'anent, !ontra!t+al
or !as+al and period of e'ploy'ent.
%t is f+rther s+b'itted by the learned !o+nsel
that the eviden!e of rof. ohn . 9+rBe, r. has
not been relied +pon to prove the loss of in!o'e of
the de!eased as it shos that the de!eased as not
payin in!o'e ta. Therefore, the National
Co''ission has erred in partly alloin the !lai'
of the !lai'ant hile !o'p+tin the !o'pensation on
the basis of the earnin of the de!eased.
O% aar!%: +m#$%a&+% (%!$r &)$ )$a! + ?l+ ++%+r&(m>=
13. The learned senior !o+nsel and other !o+nsel
for the appellantdo!tors s+b'itted that the
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National Co''ission has erred in aardin
$s.10,00,000; toards loss of !onsorti+'. This
Co+rt in vario+s folloin de!isions has aarded
$s.5,000; to $s.25,000; on the aforesaid
a!!o+nt:
CA@ HA= A#4FNT
1. antosh )evi v. National
%ns+ran!e Co. Htd., -2012 6 CC
21
$s.10,000
2. Ne %ndia Ass+ran!e Co'pany
Hi'ited v. oesh )evi, -2012 3
CC 613
$s.10,000
3. National %ns+ran!e Co'pany
Hi'ited v. initha, -2012 2 CC
356
$s.5,000
. +nil har'a v. 9a!hitar
inh, -2011 11 CC 25
$s.25,000
5. +shpa v. haB+ntala, -20112 CC 20
$s.10,000
6. Ar+n *+'ar Araal v.
National %ns+ran!e Co'pany
Hi'ited, -2010 " CC 218
$s.15,000
7. hya'ati har'a v. *ara'
inh, -2010 12 CC 378
$s.5,000
8. $esh'a *+'ari v. #adan #ohan,
-200" 13 CC 22 in arla )iit
v. 9alant adav
$s.15,000
". $a $ani v. 4riental
%ns+ran!e Co'pany Hi'ited,
-200" 13 CC 65
$s.7,000
10. arla
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D)a%a%a * Or. relied +pon by the !lai'ant is
'is!on!eived as that !ase relates to the !ontin+o+s
pain and s+fferin of the vi!ti', ho had lost
!ontrol over his loer li'b and re+ired !ontin+o+s
physiotherapy for rest of his life. %t as not the
a'o+nt for loss of !onsorti+' by the h+sband or
ife. &en!e, it is s+b'itted by the' that the
National Co''ission erred in rantin $s.10 laBhs
+nder the head of loss of !onsorti+'/.
O% &)$ +
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hile !al!+latin the +st 'onetary !o'pensation,
the earnins of the !lai'ant ho hi'self is a
do!tor, is also re+ired to be taBen into
!onsideration. $eardin the !ontention of the
!lai'ant that in alloin !o'pensation the A'eri!an
standard is re+ired to be applied, it has not been
dis!losed before the Co''ission as to hat is the
A'eri!an standard. 4n the !ontrary, the National
Co''ission as dire!ted by this Co+rt to !al!+late
the !o'pensation in the !ase as referred to in Mala5
'(mar a%:(l5> !ase -s+pra and on the basis of the
prin!iples laiddon by this &on/ble Co+rt in
vario+s other +d'ents. The to +d'ents hi!h
have been referred to in Mala5 '(mar a%:(l5> !ase
-s+pra are Or$%&al I%(ra%$ C+m#a%5 L&!.
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!o'pensation has to be assessed a!!ordin to
A'eri!an standard is holly +ntenable in la and the
sa'e is liable to be ree!ted.
16. +rther, it is !ontended by the senior !o+nsel
and other !o+nsel for the appellantdo!tors and
&ospital that the relian!e pla!ed by the !lai'ant
+pon the de!ision of this Co+rt reported in Pa&ra
J$a% Ma)a3a%> !ase -s+pra !learly shos that the
'+ltiplier 'ethod appli!able to !lai' !ases in %ndia
as applied after taBin note of !ontrib+tion by the
de!eased for his dependants. The said !ase is a
!lear pointer to the fa!t that even if a foreiner
dies in %ndia, the basis of !al!+lation has to be
applied a!!ordin to %ndian tandard and not the
A'eri!an 'ethod as !lai'ed by the !lai'ant.
17. +rther, the ord reasonable/ i'plies that the
appellantdo!tors and A#$% &ospital !annot be
saddled ith an eorbitant a'o+nt as da'aes hi!h
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!annot either be treated as an obvio+s or nat+ral
tho+h not foreseeable !onse+en!e of nelien!e.
18. +rther, the learned senior !o+nsel has pla!ed
relian!e on the +d'ent of this Co+rt in N@am
I%&&(&$ + M$!al S$%$ s+pra herein this
Co+rt enhan!ed the oriinal !o'pensation aarded to
the !lai'antvi!ti' ho had been paralyEed d+e to
'edi!al nelien!e fro' aist don, +nder the heads:
re+ire'ent of n+rsin !are> need for driver!+'
attendant, as he as !onfined to a heel !hair> and
he needed physiotherapy.
%n the present !ase, the nelien!e !o'plained
of is aainst the do!tors and the &ospital hi!h had
res+lted in the death of the ife of the !lai'ant.
%n that !ase, the etent of liability o+ht to be
restri!ted to those da'aes and epenses in!+rred as
a dire!t !onse+en!e of the fa!ts !o'plained of,
hile settin apart the a'o+nt to be aarded +nder
the head loss of dependen!y/. The relevant portion
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of the aforesaid +d'ent of this Co+rt in the
N@am> I%&&(&$ + M$!al S$%$ is +oted
here+nder:
ILLLL. The ade+ate !o'pensation that e
speaB of, '+st to so'e etent, be a r+le of
th+'b 'eas+re, and a a
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nelien!e. Therefore, the enhan!e'ent of
!o'pensation as prayed for by the !lai'ant stood
rihtly ree!ted by the National Co''ission by
re!ordin reasons. Therefore, this Co+rt need not
ea'ine the !lai' aain.
O% &)$ ($ + m(l&#l$r m$&)+! +r !$&$rm%%:+m#$%a&+% =
20. %t is !ontended by the senior !o+nsel and other
!o+nsel for the appellants that the '+ltiplier
'ethod has enabled the !o+rts to brin abo+t
!onsisten!y in deter'inin the loss of dependen!y
'ore parti!+larly, in !ases of death of vi!ti's of
nelien!e, it o+ld be i'portant for the !o+rts to
har'onio+sly !onstr+!t the aforesaid to prin!iples
to deter'ine the a'o+nt of !o'pensation +nder the
heads: epenses, spe!ial da'aes, pain and
s+fferin.
21. %n Sarla V$rma> !ase -s+pra, this Co+rt, at
araraphs 13 to 1", held that the '+ltiplier 'ethod
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is the proper and best 'ethod for !o'p+tation of
!o'pensation as there ill be +nifor'ity and
!onsisten!y in the de!isions. The said vie has
been reaffir'ed by this Co+rt in R$)ma '(mar *
Or.
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that Iin fatal a!!ident !ases, the 'eas+re of
da'ae is the pe!+niary loss s+ffered and is
liBely to be s+ffered by ea!h dependant as a
res+lt of the deathM. This 'eans that the !o+rt
hile aardin da'aes in a fatal a!!ident !ase
tooB into a!!o+nt the pe!+niary loss already
s+ffered as a res+lt of the nelien!e !o'plained
of, and the loss of dependen!y based on the
!ontrib+tions 'ade by the de!eased to the
!lai'ant +ntil her death. =hile the for'er 'ay be
easily as!ertainable, the latter has been
deter'ined by the National Co''ission by +sin
the '+ltiplier 'ethod and in respe!t of the +se
of the '+ltiplier 'ethod for the p+rpose of
!al!+latin the loss of dependen!y of the
!lai'ant, in pararaph No. 16 of the aforesaid
+d'ent this &on/ble Co+rt observed as follos:
I16. %t is ne!essary to reiterate that the
'+ltiplier 'ethod is loi!ally so+nd and
leally ellestablished. There are so'e
!ases hi!h have pro!eeded to deter'ine
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the !o'pensation on the basis of
areatin the entire f+t+re earnins for
over the period the life epe!tan!y as
lost, ded+!ted a per!entae there fro'toards +n!ertainties of f+t+re life and
aard the res+ltin s+' as !o'pensation.
This is !learly +ns!ientifi!L.M
2. %n Sarla V$rma> !ase -s+pra this Co+rt
so+ht to define the epression +st
!o'pensation/ and opined as +nder:
I16.L.+st Co'pensationM is ade+ate
!o'pensation hi!h is fair and e+itable,
on the fa!ts and !ir!+'stan!es of the
!ase, to 'aBe ood the loss s+ffered as a
res+lt of the ron, as far as 'oney !an
do so, by applyin the ellsettled
prin!iples relatin to aard of
!o'pensation. %t is not intended to be a
bonanEa, laresse or so+r!e of profit.
17. Assess'ent of !o'pensation tho+h
involvin !ertain hypotheti!al
!onsiderations sho+ld nevertheless be
obe!tive. +sti!e and +stness e'anate
fro' e+ality in treat'ent, !onsisten!y
and thoro+hness in ad+di!ation, and
fairness and +nifor'ity in the de!ision
'aBin pro!ess and the de!isions. =hile it'ay not be possible to have 'athe'ati!al
pre!ision or identi!al aards in assessin
!o'pensation, sa'e or si'ilar fa!ts sho+ld
lead to aards in the sa'e rane. =hen the
fa!tors;inp+ts are the sa'e, and the
for'+la;leal prin!iples are the sa'e,
!onsisten!y and +nifor'ity, and not
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diveren!e and freaBiness, sho+ld be the
res+lt of ad+di!ation to arrive at +st
!o'pensation.M
-@'phasis laid by this Co+rt
25. %t as also !ontended by the learned !o+nsel
for the appellantdo!tors that apart fro'
a!!ident !ases +nder the #otor
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death of 5" persons tooB pla!e in a !ine'a hall
and 10" persons s+ffered in+ry.
26. Therefore, it is !ontended by the senior
!o+nsel and other !o+nsel for the appellant
do!tors that '+ltiplier 'ethod sho+ld be +sed
hile aardin !o'pensation to the vi!ti's
be!a+se it leads to !onsisten!y and avoids
arbitrariness.
O% +%&r
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and other !o+nsel for the appellants, the
National Co''ission erred in not adherin to the
tenor set by this Co+rt hile re'andin the !ase
ba!B to it for deter'inin the !o'pensation to
arrive at an ade+ate a'o+nt hi!h o+ld also
i'ply an aspe!t of !ontrib+tory nelien!e,
individ+al role and liability of the &ospital
and the do!tors held nelient. Therefore, this
Co+rt is re+ired to !onsider this aspe!t and
ded+!t the re'ainin 15G o+t of the !o'pensation
aarded by the National Co''ission toards
nelien!e by the !lai'ant.
O% $%)a%$m$%& + +m#$%a&+% lam$!
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la. The !lai'ant in his ritten s+b'ission
filed d+rin the !o+rse of ar+'ents in +ly,
2011 before the National Co''ission, has 'ade
his !lai' of $s."7,56,07,000; hi!h the
National Co''ission has rihtly ree!ted in the
i'p+ned +d'ent holdin that it as leally
i'per'issible for it to !onsider that part of
the eviden!e hi!h is stri!tly not in !onfor'ity
ith the pleadins in order to aard a hiher
!o'pensation as !lai'ed by the !lai'ant. %n
+stifi!ation of the said !on!l+sion and findin
of the National Co''ission, the learned !o+nsel
have pla!ed relian!e +pon the prin!iple
analoo+s to 4rder %% $+le 2 of C..C., 1"08 and
f+rther !ontended that the !lai'ant ho had
abandoned his !lai' no !annot 'aBe ne !lai's
+nder different heads. +rther, it is s+b'itted
by #r.
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".11.200" in #.A. No.1327 of 200" for additional
!lai'> the said appli!ation as ithdran by hi'
on ".2.2010. Therefore, his !lai' for enhan!in
!o'pensation is not tenable in la. %n s+pport
of the said !ontention, he has pla!ed relian!e
+pon the +d'ent of this Co+rt in Na&+%al
T$&l$ C+r#+ra&+% L&!.
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The said vie of this Co+rt as reiterated in A.
S)a%m(:am
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there is no li'itation pres!ribed in the #otor
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Trib+nal !an be treated as an appli!ation for
!o'pensation even tho+h no !lai' is 'ade or
spe!ified a'o+nt is !lai'ed hereas +nder the
Cons+'er rote!tion A!t, a ritten !o'plaint
spe!ifyin the !lai' to be preferred before the
appropriate for+' ithin the period of
li'itation pres!ribed +nder the provision of the
A!t is a '+st.
32. Fnder e!tion 163A of the #otor
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the fa!t sit+ation for to reasons, na'ely, it
as a !ase +nder the #otor !ase -s+pra. The learned !o+nsel
14 (2011 10 CC 655
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also pla!ed relian!e +pon the +d'ent of this
Co+rt in N@am I%&&(&$> !ase -s+pra here
the !o'plainant had 'ade a !lai' of $s.7.50
!rores. This Co+rt enhan!ed the !o'pensation
fro' $s.15.50 laBhs to $s.1 !rore. 9+t, the
N@am I%&&(&$> !ase is not a !ase for the
proposition that a !lai'ant !an be aarded
!o'pensation beyond hat is !lai'ed by hi'. 4n
the other hand, it as a !ase of pe!+liar fa!ts
and !ir!+'stan!es sin!e the !lai'ant had
per'anent disability hi!h re+ired !onstant
'edi!al attention, 'edi!ines, servi!es of
attendant and driver for hi'self. The !ases
referred to by the !lai'ant reardin 'edi!al
nelien!e in his ritten s+b'ission are
distin+ishable fro' the present !ase and in
none of these !ases +pon hi!h relian!e has been
pla!ed by the !lai'ant, this Co+rt has aarded
!o'pensation beyond hat is !lai'ed. Therefore,
the relian!e pla!ed +pon the aforesaid +d'ents
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relevant for deter'inin the +antifi!ation of
!o'pensation. %t is s+b'itted that this Co+rt is
also not s+re that the nelien!e solely has
!ontrib+ted to the death of the !lai'ant/s ife. At
the 'ost, this Co+rt is of the vie that the
nelien!e 'ay have !ontrib+ted to the death of the
!lai'ant/s ife. The in!iden!es leadin to or
!ontrib+tin to the death of the de!eased are:
-i )isease T@N itself is a fatal disease
hi!h has very hih 'ortality rate.
-iiT@N itself prod+!es septi!e'i! sho!B and
de!eased An+radha died be!a+se of s+!h
!onse+en!e.
-iii No dire!t treat'ent or treat'ent
proto!ol for [email protected]!e of 'any in treatin de!eased
An+radha.
-v Contrib+tory nelien!e on the part of
)r.*+nal aha and his brother.
+rther'ore, it is observed fa!t+ally that
lethal !o'bination of Cisapride and l+!onaEole had
been +sed for a n+'ber of days at 9rea!h Candy
&ospital d+rin her stay hi!h leads to !ardia!
arrest. Therefore, the National Co''ission o+ht to
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have !onsidered different in!iden!es as aforesaid
leadin to the death of the !lai'ant/s ife so as
to !orre!tly apportion the individ+al liability of
the do!tors and the A#$% &ospital in !a+sin the
death of the ife of the !lai'ant.
36. +rther, ith reard to the liability of ea!h
of the do!tors and the A#$% &ospital,
individ+al s+b'issions have been 'ade hi!h are
presented here+nder:
C/l A##$al N+. 6-22012
37. %t is the !ase of the appellantA#$% &ospital
that the National Co''ission sho+ld have taBen
note of the fa!t that the de!eased as initially
ea'ined by )r. +B+'ar #+Bheree and the
alleed 'edi!al nelien!e res+ltin in the
death of the de!eased as d+e to his ron
'edi!ation -overdose of steroid. Therefore,
the &ospital has little or 'ini'al
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responsibility in this reard, parti!+larly,
hen after ad'ission of the de!eased in the
&ospital there as !orre!t dianosis and she as
iven best possible treat'ent. The National
Co''ission erred in apportionin the liability
on the &ospital to the etent of 25G of the
total aard. This Co+rt in the earlier ro+nd of
litiation held that there is no 'edi!al
nelien!e by )r. *a+shiB Nandy, the oriinal
respondent No.6 in the !o'plaint, ho as also a
do!tor in the appellant&ospital.
38. +rther, the learned senior !o+nsel for the
A#$% &ospital s+b'itted that the ar+'ents
advan!ed on behalf of the appellantsdo!tors )r.
9alra' rasad in C.A. No.2867;2012, )r. +B+'ar
#+Bheree in C.A. No.858;2012 and )r. 9aidyanath
&aldar in C.A. 731;2012 ith reard to
per!entae, on the basis of !osts i'posed in
pararaph 1"6 of the +d'ent in the earlier
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ro+nd of litiation is itho+t any basis and
f+rther s+b'itted that +nder the headin (
%ndivid+al Hiability of )o!tors/ findins as to
hat as the nelien!e of the do!tors and the
appellant A#$% &ospital is not stated. %f the
said findins of the National Co''ission are
!onsidered, then it !annot be ar+ed that the
appellant A#$% &ospital sho+ld pay the hihest
!o'pensation. +rther, the learned senior
!o+nsel reb+tted the s+b'ission of the !lai'ant
!ontendin that sin!e he had hi'self !lai'ed
spe!ial da'aes aainst the appellantdo!tors,
the &ospital and )r. Abani $oy Cho+dhary in the
!o'plaint before the National Co''ission,
therefore, he !annot no !ontend !ontrary to the
sa'e in the appeal before this Co+rt.
CIVIL APPEAL NO. 88 OF 2012
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3". %t is the !ase of the appellant )r. +B+'ar
#+Bheree that the National Co''ission hile
apportionin the liability of the appellant, has
ronly observed that :
I+pre'e Co+rt has pri'arily fo+nd
)r.+B+'ar #+Bheree and A#$% hospital
+ilty of nelien!e and defi!ient in
servi!e on several !o+nts. Therefore,
oin by the said findins and
observations of +pre'e Co+rt e
!onsider it appropriate to apportion the
liability of )r. +B+'ar #+Bheree and
A#$% hospital in e+al proportion, i.e.
ea!h sho+ld pay 25G i.e. 38,"0,000; of
the aarded a'o+nt of 1,55,60,000;.M
0. %t is s+b'itted by the learned !o+nsel for
the appellant )r. +B+'ar #+Bheree that
s!r+tiny of the +d'ent in Mala5 '(mar
a%:(l5/s !ase -s+pra ill sho that at no
pla!e did the &on/ble +pre'e Co+rt 'ade any
observation or re!orded any findin that the
appellant )r. #+Bheree and the &ospital are
pri'arily responsible. 4n the !ontrary, +nder
the headin IC+'+lative @ffe!t of Nelien!eM
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+nder paras 186 and 187, this &on/ble Co+rt has
held as +nder:
I186. A patient o+ld feel the
defi!ien!y in servi!e havin reard to
the !+'+lative effe!t of nelien!e of
all !on!erned. Nelien!e on the part
of ea!h of the treatin do!tors as also
the hospital 'ay have been !ontrib+tin
fa!tors to the +lti'ate death of the
patient. 9+t, then in a !ase of this
nat+re, the !o+rt '+st deal ith the
!onse+en!es the patient fa!ed Beepin
in vie the !+'+lative effe!t. %n the
instant !ase, nelient a!tion has been
noti!ed ith respe!t to 'ore than one
respondent. A !+'+lative in!iden!e,
therefore, has led to the death of the
patient.
187. %t is to be noted that do!trine of
!+'+lative effe!t is not available in!ri'inal la. The !o'pleities involved
in the instant !ase as also differin
nat+re of nelien!e eer!ised by
vario+s a!tors, 'aBe it very diffi!+lt
to distil individ+al etent of
nelien!e ith respe!t to ea!h of the
respondent. %n s+!h a s!enario findin
of 'edi!al nelien!e +nder e!tion 30
A !annot be obe!tively deter'ined.M
1. %t is f+rther s+b'itted by the learned
!o+nsel for the appellant )r. +B+'ar #+Bheree
that the ife of the !lai'ant as s+fferin fro'
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rash;fever fro' April 1""8, she as seen by the
appellant)r.+B+'ar #+Bheree only on three
o!!asions before his preplanned visit to the
F..A. for attendin a 'edi!al !onferen!e i.e.
on 26..1""8, 7.5.1""8 and on the niht of
11.5.1""8 and then the appellant)r.#+Bheree
left %ndia for FA and ret+rned '+!h after the
de'ise of the !lai'ant/s ife. 4n her first
ea'ination on 26..1""8 the appellant
s+ested a host of patholoi!al tests. The
patient as re+ested to visit the )o!tor ith
these reports. No dr+s ere pres!ribed by the
appellant)r.#+Bheree at this ea'ination. 4n
7.5.1""8, An+radha aha alBed into the !lini!
of the appellant)r.#+Bheree at ".30 p.'. and
reported that she as +n!o'fortable be!a+se she
had !ons+'ed food of Chinese !+isine. The
appellant)r.#+Bheree noti!ed that there as a
definite !hane in the nat+re of the rash. 9ased
on the infor'ation f+rnished and the stat+s and
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!ondition of the patient, she as dianosed to
be s+fferin fro' alleri! vas!+litis and the
appellant)r.#+Bheree !o''en!ed treatin the
patient ith )epo'edrol, hi!h is a dr+
belonin to the fa'ily of steroids. The
appellant)r.#+Bheree re!o''ended )epo'edrol 80
'.%# ti!e daily for 3 days to be re!onsidered
after An+radha aha as s+be!t to f+rther
revie. )epo'edrol is very '+!h indi!ated in
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ith a dose of 177.7 ' daily for 1 eeB and 71
' on every other day for one 'onth.
2. 4n 11.5.1""8 hen the appellant)r.#+Bheree
ea'ined An+radha aha at the A#$% &ospital
prior to his depart+re to F..A., he pres!ribed
a hole line of treat'ent and oraniEed
referen!e to different spe!ialists;!ons+ltants.
&e re!o''ended f+rther patholoi!al tests
be!a+se on ea'inin the patient at the A#$%, he
noti!ed that she had so'e blisters hi!h ere
not peeled off. There as no deta!h'ent of sBin
at all. &e also re+ested in ritin the
treatin !ons+ltant physi!ian of A#$% )r. 9alra'
rasad, #) to oraniEe all these in!l+din
referral to all spe!ialists. The appellant
)r.#+Bheree s+spe!ted !ontin+ation of alleri!
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i''+no abnor'alities. %t is stated that the
appellant)r.#+Bheree did not ea'ine the
patient thereafter and as afore'entioned, he
left on a prearraned visit to F..A. for a
'edi!al !onferen!e. No fees ere !hared by the
appellant)r.#+Bheree. %t is f+rther s+b'itted
that before the appellant)r.#+Bheree started
the treat'ent of the de!eased, )r.anoy ?hose
on 6.5.1""8 treated her and d+rin the period of
treat'ent of the appellant)r. #+Bheree fro'
7.5.1""8 to 11.5.1""8, on ".5.1""8 )r.AshoB
?hosal -)er'atoloist treated An+radha aha.
These fa!ts ere not stated in the !o'plaint
petition and !on!ealed by the !lai'ant. To this
aspe!t, even this &on/ble Co+rt has also
re!orded a findin in the !ase referred to s+pra
that the patient as also ea'ined by to
!ons+ltant der'atoloists )r.A.*. ?hosal and )r.
. ?hosh ho dianosed the disease to be a !ase
of vas!+litis.
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3. %t is f+rther s+b'itted by the learned
!o+nsel for the appellant)r. #+Bheree that the
!a+se of death as re!orded in the death
!ertifi!ate of the de!eased is Isepti!e'i! sho!B
ith '+lti syste' oran fail+re in a !ase of T@N
leadin to !ardio respiratory arrestM. 9lood
!+lt+re as neative prior to death. There as
no a+topsy to !onfir' the dianosis at 9rea!h
Candy &ospital, #+'bai. )r. Fdadia observed on
27.5.1""8 that the patient has developed %$ in
absen!e of infe!tion in T@N. The patient
epired on 28.5.1""8 and the death !ertifi!ate
as ritten by a +nior do!tor itho+t the
!o''ents of )r. Fdadia. %t is s+b'itted by the
learned !o+nsel that there is neither any
alleation nor any findin by this Co+rt that
the do!tors of the A#$% &ospital had !ontrib+ted
to septi!e'ia. The 'ere findin that the
patient as not properly dressed at A#$%
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&ospital here she stayed for only 6 days of
early evo!ation of the disease do not +stify
!ontrib+tion to septi!e'i! sho!B of the
de!eased. +rther, there is no re!ord to sho
that at A#$% &ospital the sBin of the patient
had peeled o+t thereby leadin to !han!e of
developin septi!e'ia. 4n the other hand, it is
a fa!t borne o+t fro' re!ord that the patient
as taBen in a !hartered fliht to 9rea!h Candy
&ospital, 9o'bay aainst the advi!e of the
do!tors at *olBata and f+rther nothin is borne
o+t fro' the re!ords as hat pre!a+tion ere
taBen by the !lai'ant hile shiftin the patient
by Air to 9rea!h Candy &ospital thereby leadin
to the !on!l+sion that d+rin the travel by
!hartered fliht she 'iht have !ontra!ted
infe!tion of the sBin leadin to septi!e'ia. %t
is f+rther s+b'itted by the learned !o+nsel for
the appellant )r. +B+'ar #+Bheree that the
fa!t that the disease T@N re+ires hiher
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deree of !are sin!e there is no definite
treat'ent, s+!h hih deree of !are ill be
relatable to !o'fort b+t not definitely to
septi!e'ia that o!!+rred at 9rea!h Candy
&ospital. &en!e, nelien!e has to be assessed
for da'aes for fail+re to provide !o'fort to
the patient and not a !ontrib+tory to septi!e'ia
sho!B s+ffered by the de!eased.
. %t is s+b'itted by the learned !o+nsel for
appellant)r. +B+'ar #+Bheree that there is no
findin or alleation that the dr+ )epo'edrol
pres!ribed by the appellant)r.#+Bheree !a+sed
the disease T@N. The appellant advised a n+'ber
of blood tests on 11.5."8 in A#$% &ospital to
dete!t any infe!tion and i''+ne abnor'ality d+e
to steroids and to foresee !onse+en!es. %t is
f+rther s+b'itted that 9rea!h Candy &ospital
re!ords sho that the patient as hae'o
dyna'i!ally stable. @ven )r.Fdadia of 9rea!h
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Candy &ospital on 17.5.1""8 do+bted ith reard
to the ea!t disease and re!orded the disease as
T@N or teven ohnson yndro'.
Therefore, the National Co''ission o+ht to
have !onsidered different in!iden!es as aforesaid
leadin to the death of the !lai'ant/s ife and the
+ant+' of da'aes shall have to be divided into
five parts and only one part shall be attrib+ted to
the nelien!e of the appellant)r.#+Bheree.
C/l A##$al N+. 2867 + 2012
5. %t is the !ase of )r. 9alra' rasadappellant
in Civil Appeal No. 2867 of 2012 that on
11.05.1""8, )r. +B+'ar #+Bheree, before
leavin for F..A., attended the patient at the
A#$% &ospital at 2.15 p.'. and after ea'inin
the de!eased, iss+ed the se!ond and last
pres!ription on the aforesaid date itho+t
pres!ribin anythin different b+t reass+red
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the patient that she o+ld be fine in a fe
eeBs/ ti'e and 'ost !onfidently and stronly
advised her to !ontin+e ith the said ine!tion
for at least fo+r 'ore days. This as also
re!orded in the aforesaid last pres!ription of
the said date. +rther, it is stated that
itho+t dis!losin that he o+ld be o+t of %ndia
fro' 12.05.1""8, he asBed the de!eased to
!ons+lt the na'ed )er'otoloist, )r. 9.&aldar P
9aidyanath &aldar, the appellant in Civil Appeal
No. 731 of 2012, and the physi!ian )r. Abani $oy
Chodh+ry in his last pres!ription on the last
visit of the de!eased. #ost !+lpably, he did not
even pres!ribe %.
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patient by then already had !lear intaBe of 880
' of )epo'edrol ine!tion as o+ld be evident
fro' A#$%/s treat'ent sheet dated 11.05.1""8.
6. %t is f+rther stated by the !lai'ant in the
!o'plaint loded before National Co''ission that
it !ontained spe!ifi! aver'ents of nelien!e
aainst the appellantdo!tors. The only aver'ent
of alleed nelien!e as !ontained in pararaph
of the !o'plaint hi!h reads as +nder:
I. That )r. 9alra' rasad as attendin
physi!ian at A#$% did do nothin better.
&e did not taBe any part in thetreat'ent of the patient altho+h he
stood liBe a se!ond fiddle to the 'ain
tea' headed by the opposite party No. 2
and 3. &e never s+ested even faintly
that A#$% is not an ideal pla!e for
treat'ent of T@N patient> on the
!onverse, he as f+ll of praise for A#$%
as an ideal pla!e for the treat'ent of
T@N patients Bnoin nothin ho a T@N
patient sho+ld be treated.M
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7. The !lai'ant has also pla!ed stron relian!e
+pon the anser iven by hi' to +estion No. 26
in his !ross ea'ination hi!h reads th+s:
IJ.No.26. )r. rasad says that
)epo'edrol dose a!!ordin to the
treat'ent sheet of the A#$% &ospital,
he 'ade a spe!ifi! s+estion that the
dose sho+ld be li'ited to that
parti!+lar day only. %s it !orre!tK
Ans. %t is all 'atter of re!ord.
eah, he said one day in A#$% re!ord.M
8. Tho+h, the appellant)r. 9alra' rasad as
a!!+sed in the !ri'inal !o'plaint loded by the
!lai'ant he as neither pro!eeded aainst as an
a!!+sed in the !ri'inal !o'plaint nor before the
=est 9enal #edi!al Co+n!il b+t as na'ed as a
itness. +rther, it is stated by the !lai'ant
that he +red before the National Co''ission as
ell as before this Co+rt in +ne+ivo!al ter's
that the b+lB of the !o'pensation aarded o+ld
have to be in the proportion of 80G on the A#$%
&ospital, 15G on )r. +B+'ar #+Bheree and
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balan!e beteen the rest. )espite the aforesaid
s+b'ission before the National Co''ission, the
!lai'ant !lai's that it has erred in aardin
the proportion of the liability aainst ea!h of
the appellantdo!tors in a 'anner 'entioned in
the table hi!h is provided here+nder:
NAME OF THE PARTG AMOUNT TO BE PAID
)r. +B+'ar #+Bheree Co'pensation:$s.38,"0,000
Cost of litiation:1,50,000
)r. 9aidyanath &aldar Co'pensation:$s.25,"3,000
Cost of litiation: $s.1,00,000
)r. Abani $oy Chodh+ry
-sin!e de!eased -!lai'
foreone
Co'pensation: 25,00,000
A#$% &ospital Co'pensation: $s.38,"0,000
Cost of litiation: $s.1,50,000
)r. 9alra' rasad Co'pensation: $s.25,"3,000
Cost of litiation: $s.1,00,000
". The appellant)r. 9alra' rasad in Civil
Appeal No.2867;2012 !ontends that he as the
+nior 'ost attendin physi!ian atta!hed to the
&ospital, he as not !alled +pon to pres!ribe
'edi!ines b+t as only re+ired to !ontin+e
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and;or 'onitor the 'edi!ines pres!ribed by the
spe!ialist in the dis!ipline. 9+t realiEin the
serio+sness of the patient, the appellant had
hi'self referred the patient to the three
spe!ialists and also s+ested for +ndertaBin a
sBin biopsy. The d+ty of !are ordinarily
epe!ted of a +nior do!tor had been dis!hared
ith dilien!e by the appellant. %t is f+rther
!ontended that in his !rossea'ination before
the National Co''ission in the en+iry
pro!eedin, the !lai'ant hi'self has ad'itted
that the basi! falla!y as !o''itted by three
physi!ians, na'ely, )r. #+Bheree, )r. &aldar
and )r. $oy Chodh+ry. The above fa!ts o+ld
!learly sho that the role played by the
appellant)o!tors in the treat'ent of the
de!eased as only se!ondary and the sa'e had
been dis!hared ith reasonable and d+e !are
epe!ted of an attendin physi!ian in the iven
fa!ts and !ir!+'stan!es of the instant !ase.
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50. %n the liht of the above fa!ts and
!ir!+'stan!es, the !ontention of the !lai'ant
that the death of the !lai'ant/s ife as
neither dire!tly nor !ontrib+torily relatable to
the alleed nelient a!t of the appellant )r.
9alra' rasad, it is 'ost respe!tf+lly s+b'itted
that the National Co''ission as not +stified
in apportionin the da'aes in the 'anner as has
been done by the National Co''ission to pla!e
the appellant on the sa'e footin as that of )r.
9aidyanath &aldar, ho as a senior do!tor in
!hare of the 'anae'ent;treat'ent of the
de!eased.
51. The learned senior !o+nsel for the appellant
)r. 9alra' rasad f+rther +red that the
National Co''ission has also erred in not taBin
into a!!o+nt the s+b'issions of the !lai'ant
that 80G of the da'aes o+ht to have been
levied on the &ospital, 15G on )r. +B+'ar
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#+Bheree and the balan!e beteen the rest. %t
is +red that the proportion of the !o'pensation
a'o+nt aarded on the appellant is e!essive and
+nreasonable hi!h is beyond the !ase of the
!lai'ant hi'self.
CIVIL APPEAL NO. 741 OF 2012
52. The learned !o+nsel #r. $anan #+Bheree
appearin on behalf of the appellant in this
appeal has filed the ritten s+b'issions on
15..2013. &e has reiterated his s+b'ission in
s+pport of his appeal filed by the said do!tor
and has also adopted the ar+'ents 'ade in
s+pport of the ritten s+b'issions filed on
behalf of the other do!tors and A#$% &ospital by
ay of reply to the ritten s+b'issions of the
!lai'ant. +rther, he has s+b'itted that the
appellant )r. 9aidyanath &aldar is abo+t 80
years and is ailin ith heart disease and no
'ore in a!tive pra!ti!e. Therefore, he re+ested
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to set aside the liability of !o'pensation
aarded aainst hi' by alloin his appeal.
All the do!tors and the &ospital +red 'ore or
less the sa'e ro+nds.
C/l A##$al N+. 2866 + 2012
53. This appeal has been filed by the !lai'ant.
%t is the rievan!e of the !lai'ant that the
National Co''ission ree!ted 'ore than "8G of
the total oriinal !lai' of $s.77.7 !rores hi!h
as 'odified to $s."7.5 !rores later on by
addin Ispe!ial da'aesM d+e to f+rther e!ono'i!
loss, loss of e'ploy'ent, banBr+pt!y et!.
s+ffered by the !lai'ant in the !o+rse of 15
year lon trial in relation to the pro!eedins
in +estion before the National Co''ission and
this Co+rt. The National Co''ission event+ally
aarded !o'pensation of only $s.1.3 !rores after
red+!in fro' the total aard of $s.1.72 !rores
on the ro+nd that the !lai'ant had IinterferedM
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in the treat'ent of his ife and sin!e one of
the +ilty do!tors had already epired, his
share of !o'pensation as also denied.
5. Therefore, the present appeal is filed
!lai'in the +st and reasonable !o'pensation
+rin the folloin ro+nds:
a) The National Co''ission has failed to
!onsider the pe!+niary, nonpe!+niary
and spe!ial da'aes as etra!ted
hereinbefore.
b) The National Co''ission has 'ade blatant
errors in 'athe'ati!al !al!+lation hile
aardin !o'pensation +sin the
'+ltiplier 'ethod hi!h is not the
!orre!t approa!h.
c) The National Co''ission has erroneo+sly
+sed the '+ltiplier 'ethod to deter'ine
!o'pensation for the first ti'e in
%ndian leal history for the ronf+l
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death !a+sed by 'edi!al nelien!e of
the appellantdo!tors and the A#$%
&ospital.
d) The National Co''ission has
reinvestiated the entire !ase abo+t
'edi!al nelien!e and ent beyond the
observations 'ade by this Co+rt in Mala5
'(mar a%:(l5> !ase -s+pra by holdin
that the !lai'ant is also +ilty for his
ife/s death.
e) The National Co''ission has failed to
rant any interest on the !o'pensation
tho+h the litiation has taBen 'ore
than 15 years to deter'ine and aard
!o'pensation.
f) The National Co''ission has failed to
!onsider the deval+ation of 'oney as a
res+lt of IinflationM for aardin
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hiher !o'pensation that as so+ht for
in 1""8.
g) %t is also vehe'ently !ontended by the
!lai'ant that the National Co''ission
has 'ade blatant and irresponsible
!o''ent on hi' statin that he as
tryin to I'aBe a fort+ne o+t of a
'isfort+ne.M The said re'arB '+st be
ep+ned.
55. The appellantdo!tors and the A#$% &ospital
!ontended that the !o'pensation !lai'ed by the
!lai'ant is an enor'o+sly fab+lo+s a'o+nt and
sho+ld not be ranted to the !lai'ant +nder any
!ondition. This !ontention o+ht to have been
noti!ed by the National Co''ission that it is
holly +ntenable in la in vie of the
Constit+tion 9en!h de!ision of this Co+rt in the
!ase of I%!a% M$!al A+a&+%
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!ateori!ally disareed on this spe!ifi! point
in another !ase herein I'edi!al nelien!eM as
involved. %n the said de!ision, it has been
held at pararaph 53 that to deny a leiti'ate
!lai' or to restri!t arbitrarily the siEe of an
aard o+ld a'o+nt to s+bstantial in+sti!e to
the !lai'ant.
56. +rther, in a three +de 9en!h de!ision of
this Co+rt in N@am I%&&(&$> !ase-s+pra it
has been held that if a !ase is 'ade o+t by the
!lai'ant, the !o+rt '+st not be !hary of
aardin ade+ate !o'pensation. +rther, the
!lai'ant !ontends that this Co+rt has re!ently
ref+sed to +ash the defa'ation !lai' to the
t+ne of $s.100 !rores in Tm$ l+
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appropriate !ases, see'inly lare a'o+nt of
!o'pensation is +stified.
57. The !lai'ant f+rther +red that this is the
f+nda'ental prin!iple for aardin I+st
!o'pensationM and this Co+rt has !ateori!ally
stated hile re'andin the !ase ba!B to the
National Co''ission that the prin!iple of +st
!o'pensation is based on Irestitutio in
integrum”, i.e. the !lai'ant '+st re!eive the
s+' of 'oney hi!h o+ld p+t hi' in the sa'e
position as he o+ld have been if he had not
s+stained the ron. %t is f+rther !ontended
that the !lai'ant had 'ade a !lai' referred to
s+pra +nder spe!ifi! headins in reat detail
ith +stifi!ation for ea!h of the heads.
Fnfort+nately, despite referrin to +di!ial
noti!e and the said !lai'table in its final
+d'ent, the National Co''ission has ree!ted
the entire !lai' on the sole ro+nd that sin!e
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the additional !lai' as not pleaded earlier,
none of the !lai's 'ade by the !lai'ant !an be
!onsidered. Therefore, the National Co''ission
as ron in ree!tin different !lai's itho+t
any !onsideration and in ass+'in that the
!lai's 'ade by the !lai'ant before the Trib+nal
!annot be !haned or 'odified itho+t prior
pleadins +nder any other !ondition. The said
vie of the National Co''ission is !ontrary to
the n+'ero+s folloin de!isions of this Co+rt
hi!h have opined otherise:
N%:amma a%! A%r.
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D/+%al Ma%a:$r
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!ontended by the !lai'ant that it is an
+ndisp+ted fa!t that the !lai'ant/s ife as a
re!ent rad+ate in sy!holoy fro' a hihly
prestiio+s %vy Hea+e !hool in Ne orB ho
had a brilliant f+t+re ahead of her.
Fnfort+nately, the National Co''ission has
!al!+lated the entire !o'pensation and
prospe!tive loss of in!o'e solely based on a pay
re!eipt of the vi!ti' shoin a paltry in!o'e of
only D 30,000 per year, hi!h she as earnin
as a rad+ate st+dent. This as a rave error
on the part of the National Co''ission,
espe!ially, in vie of the observations 'ade by
this Co+rt in the !ase of Ar/%! '(mar M)ra
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even in the absen!e of any epert/s opinion
-pararaphs 13,1. The prin!iples of this !ase
ere folloed in 'any other !ases na'ely, Ra3
'(mar
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60. %t is f+rther the !ase of the !lai'ant that
the National Co''ission has !o'pletely failed to
aard I+st !o'pensationM d+e to non
!onsideration of all the folloin !riti!al
fa!tors:
1 The ?+idelines provided by +pre'e
Co+rt: This Co+rt has provided
+idelines as to ho the National
Co''ission sho+ld arrive at an
Iade+ate !o'pensationM after
!onsideration of the +ni+e nat+re of
the !ase.
2 tat+s and +alifi!ation of the vi!ti'
and her h+sband.
3 %n!o'e and standard of livin in the
F..A.: As both the de!eased and the
!lai'ant ere !itiEens of F..A. and
per'anently settled as a I!hild
psy!holoistM and A%)s resear!her,
respe!tively, the !o'pensation in the
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instant !ase '+st be !al!+lated in
ter's of the stat+s and standard of
livin in the F..A.. I% Pa&ra
Ma)a3a%> !ase -s+pra, here a 8
year old F !itiEen died in a road
a!!ident in %ndia, this Co+rt has
aarded a !o'pensation of 'ore than
$s. 16 !rores after holdin that the
!o'pensation in s+!h !ases '+st
!onsider the hih stat+s and standard
of livin in the !o+ntry here the
vi!ti' and the dependent live.
@!ono'i! epert fro' the F..A. :
The !lai'ant initially filed a !o'plaint
before the National Co''ission soon after
the ronf+l death of his ife in 1""8
ith a total !lai' of $s.77.7 !rores
aainst the appellant do!tors and A#$%
&ospital hi!h as ree!ted and this Co+rt
re'anded this 'atter to the National
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Co''ission for deter'ination of the
+ant+' of !o'pensation ith a spe!ifi!
dire!tion in the final senten!e of
+d'ent that Iforein epertsM 'ay be
ea'ined thro+h video !onferen!in.
5 !ientifi! !al!+lation of loss of
in!o'e: The National Co''ission
sho+ld have 'ade s!ientifi!
!al!+lation reardin the loss of
in!o'e of the !lai'ant. This dire!tion
has been iven by this Co+rt in a
n+'ber of !ases. +rther, he has
!ontended that the !lai'ant 'oved this
Co+rt for video !onferen!in. The
!lai'ant ea'ined rof. ohn . 9+rBe,
a F..A. based @!ono'ist of
international rep+te, in #ay+ne,
2011. rof ohn . 9+rBe as also
!rossea'ined by the appellant
do!tors and the A#$% &ospital. rof.
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9+rBe s!ientifi!ally !al!+lated and
testified hi'self +nder dire!t as ell
as !rossea'ination as to ho he !a'e
to !al!+late the prospe!tive loss of
in!o'e for a si'ilarly sit+ated person
in F..A. as An+radha, the de!eased
and !ateori!ally stated that the
dire!t loss of in!o'e for An+radha/s
pre'at+re death o+ld a'o+nt to I5
'illion and 125 tho+sand dollarsM.
This loss of in!o'e as !al!+lated
after ded+!tion of 1;3rd
of the a'o+nt
for her personal epenses. 1;3rd
ded+!tion of in!o'e for personal
epenses has also been re!o''ended in
a +d'ent of this Co+rt in the !ase
of Sarla V$rma -s+pra. rof. 9+rBe
has also eplained ho he !al!+lated
the loss of in!o'e d+e to the
pre'at+re death of An+radha and
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f+rther testified that his !al!+lation
for loss of An+radha/s in!o'e as a
I/$r5 +%$r/a&/$ +r$a& and that
to so'e other esti'ates, the da'aes
for An+radha/s death !o+ld be I" to 10
'illion dollars. =hile the loss of
in!o'e o+ld be '+lti 'illion dollars
as dire!t loss for ronf+l death of
An+radha, it 'ay appear as a fab+lo+s
a'o+nt in the !ontet of %ndia. This
is +ndo+btedly an averae and
leiti'ate !lai' in the !ontet of the
instant !ase. And f+rther, it 'ay be
noted that far bier a'o+nts of
!o'pensation are ro+tinely aarded by
the !o+rts in 'edi!al nelien!e !ases
in the F..A. %n this reard this
Co+rt also 'ade very !lear observation
in I%!a% M$!al A+a&+%
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leiti'ate !lai' or to restri!t
arbitrarily the siEe of an aard o+ld
a'o+nt to s+bstantial in+sti!e.
6 Hoss of in!o'e of !lai'ant:
The National Co''ission has inored the
loss of in!o'e of the !lai'ant tho+h this
Co+rt has !ateori!ally stated hile
re'andin the !ase to the National
Co''ission that pe!+niary and non
pe!+niary losses and f+t+re losses I+p to
the date of trialM '+st be !onsidered for
the +ant+' of !o'pensation. The !lai'ant
had in!+rred a h+e a'o+nt of epenses in
the !o+rse of the 'ore than 15 years lon
trial in the instant !ase. These epenses
in!l+de the enor'o+s !ost for leal
epenses as ell as epenses for the
n+'ero+s trips beteen %ndia and the
F..A. over the past 'ore than 12 years.
%n addition to that the !lai'ant has also
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sin!e he filed the oriinal !o'plaint
aainst the appellantdo!tors !o+ld not
possibly be a part of the oriinal !lai'
filed by hi' 15 years ao.
61. %n vie of the !ir!+'stan!es narrated above,
the !lai'ant has referred a revised +ant+' of
!lai' hi!h also in!l+des a detailed breaB+p of
the individ+al ite's of the total !lai' in
proper perspe!tive +nder separate headins of
pe!+niary, nonpe!+niary, p+nitive and spe!ial
da'aes. The individ+al ite's of !lai' have
also been +stified ith appropriate referen!es
and s+pportin 'aterials as needed. The total
+ant+' of !lai' for the ronf+l death of the
!lai'ant/s ife no stands at $s."7,56,07,000;
in!l+din pe!+niary da'aes of
$s.3,56,07,000;, non pe!+niary da'aes of
$s.31,50,00,000;, spe!ial da'aes of F D
1,000,000; for loss of ob in 4hio and p+nitive
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da'aes of F D 1,000,000;. This +pdated breaB
+p of the total !lai' has been shon in the
!lai'table referred to in the later part of the
+d'ent. The !lai'ant respe!tf+lly s+b'its that
the National Co''ission sho+ld have !onsidered
this total !lai' in !on+n!tion ith the
affidavit filed by hi' d+rin the !o+rse of
'aBin final ar+'ents. The National Co''ission
also sho+ld have taBen into !onsideration the
leal prin!iples laid don in the !ase of N@am
I%&&(&$ -s+pra herein this Co+rt alloed the
!lai' of !o'pensation hi!h as s+bstantially
hiher than the oriinal !lai' that he initially
filed in the !o+rt. +rther, the National
Co''ission o+ht to have taBen into
!onsideration the observations 'ade in the
re'and order passed by this Co+rt hile
deter'inin the +ant+' of !o'pensation and the
leiti'ate epe!tation for the ronf+l death of
a patient after fa!torin in the position and
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stat+re of the do!tors !on!erned as also the
&ospital/. This Co+rt also held in Malay Kumar
Ganguly’s !ase -s+pra that A#$% is one of the
best &ospitals in Cal!+tta, and that the do!tors
ere the best do!tors available. Therefore, the
!o'pensation in the instant !ase 'ay be enhan!ed
in vie of the spe!ifi! observations 'ade by
this Co+rt.
62. Appellantdo!tors )r. +B+'ar #+Bheree and
)r. 9aidyanath &aldar have atte'pted to !lai' in
their respe!tive appeals that they !annot be
penaliEed ith !o'pensation be!a+se they did not
!hare any fee for treat'ent of the de!eased.
+!h a !lai' has no leal basis as in vie of
the !ateori!al observations 'ade by this Co+rt
in Sa/&a ar:
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ar:> !ase applies to the present !ase also
insofar as it ansers the !ontentions raised
before +s that the three senior do!tors did not
!hare any professional fees.
63. +rther, it is !ontended by the !lai'ant that
fro' a 'oral and ethi!al perspe!tive, a do!tor
!annot es!ape liability for !a+sin death of a
patient fro' 'edi!al nelien!e on the ro+nd
that he did not !hare any fee. %f that as
tr+e, poor patients ho are so'eti'es treated
for free and patients in 'any !haritable
&ospitals o+ld be Billed ith i'p+nity by
errant and re!Bless do!tors. %t is +red that
the National Co''ission o+ht to have !onsidered
the !lai' 'ade for prospe!tive loss of in!o'e of
the appellant/s ife and has !o''itted error in
ree!tin the sa'e and it has also ree!ted the
a'o+nt of the pe!+niary losses of this !lai'ant
+nder separate headins hi!h are 'entioned in
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the table referred to s+pra in!l+din epenses
that ere paid at the dire!tion of the National
Co''ission, na'ely, epenses relatin to video
!onferen!in or pay'ent for the Co+rt
Co''issioners. #ost of these dire!t losses ere
s+ffered by the !lai'ant as a res+lt of the
ronf+l death of his ife in the lon +est for
+sti!e over the past 15 years as a res+lt of
the ronf+l death of his ife. The National
Co''ission did not provide any reason as to hy
the said !lai's ere denied to hi', as per this
Co+rt/s de!ision in C)ara% S%:)
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65. +rther, the !lai'ant has taBen s+pport fro'
the folloin 'edi!al nelien!e !ases de!ided
by this Co+rt. %t as !ontended by the !lai'ant
that o+t of these !ases not a sinle !ase as
de!ided by +sin the '+ltiplier 'ethod, s+!h as,
I%!a% M$!al A%.
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66. %n fa!t, the National Co''ission or any other
!ons+'er !o+rt in %ndia have never +sed the
'+ltiplier syste' to !al!+late ade+ate
!o'pensation for death or in+ry !a+sed d+e to
'edi!al nelien!e e!ept hen the National
Co''ission de!ided the !lai'ant/s !ase after it
as re'anded ba!B by this Co+rt. $elian!e as
pla!ed +pon Sarla V$rma> !ase -s+pra at
pararaph 37, herein the prin!iple laid don
for deter'inin !o'pensation +sin '+ltiplier
'ethod does not apply even in a!!ident !ases
+nder e!tion 166 of the #< A!t. %n !ontrast to
death fro' road or other a!!ident, it is +red
that death or per'anent in+ry to a patient
!a+sed fro' 'edi!al nelien!e is +ndo+btedly a
reprehensible a!t. Co'pensation for death of a
patient fro' 'edi!al nelien!e !annot and
sho+ld not be !o'pensated si'ply by +sin the
'+ltiplier 'ethod. %n s+pport of this !ontention
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he has pla!ed relian!e +pon the N@am
I%&&(&$> !ase -s+pra at pararaph "2,
herein the Co+rt has ree!ted the spe!ifi!
!lai' 'ade by the +ilty &ospital that
'+ltiplier sho+ld be +sed to !al!+late
!o'pensation as this Co+rt has held that s+!h a
!lai' has absol+tely no 'erit.
67. The '+ltiplier 'ethod as provided for
!onvenien!e and speedy disposal of no fa+lt
'otor a!!ident !ases. Therefore, obvio+sly, a
Ino fa+ltM 'otor vehi!le a!!ident sho+ld not be
!o'pared ith the !ase of death fro' 'edi!al
nelien!e +nder any !ondition. The aforesaid
approa!h in adoptin the '+ltiplier 'ethod to
deter'ine the +st !o'pensation o+ld be
da'ain for so!iety for the reason that the
r+les for +sin the '+ltiplier 'ethod to the
notional in!o'e of only $s.15,000; per year
o+ld be taBen as a '+ltipli!and. %n !ase, the
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vi!ti' has no in!o'e then a '+ltiplier of 18 is
the hihest '+ltiplier +sed +nder the provision
of e!tions 163 A of the #otor
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68. %t is f+rther +red by the !lai'ant that the
National Co''ission has failed to aard any
!o'pensation for the intense pain and s+fferin
that the !lai'ant/s ife had to s+ffer d+e to
the nelient treat'ent by do!tors and A#$%
&ospital b+t the National Co''ission had 'ade a
paltry aard e+ivalent to D 20,000 for the
enor'o+s and lifelon pain, s+fferin, loss of
!o'panionship and a'enities that the +nfort+nate
!lai'ant has been p+t thro+ho+t his life by the
nelient a!t of the do!tors and the A#$%
&ospital.
6". The !lai'ant f+rther !ontended that he is
entitled to spe!ial da'aes for losses that he
s+ffered +pto the date of trial as held by this
Co+rt hile re'andin this 'atter in Mala5 '(mar
a%:(l5/s !ase ba!B to the National Co''ission.
Th+s, the !lai'ant filed a leiti'ate !lai' for
spe!ial da'aes for the losses s+stained by hi'
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in the !o+rse of 15 years lon trial in!l+din
the loss of his e'ploy'ent at the 4hio tate
Fniversity and res+ltant position of banBr+pt!y
and ho'e fore!los+re. The National Co''ission
did not provide any reason for ree!tin the
said !lai' hi!h is in violation of the
observations 'ade in C)ara% S%:)> !ase
-s+pra.
70. +rther, this Co+rt has affir'ed the
prin!iple reardin deter'ination of +st
!o'pensation in the folloin !ases that
inflation sho+ld be !onsidered hile de!idin
+ant+' of !o'pensation: R$)ma '(mar * Or.
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!lai'ant in 1""8 o+ld be e+ivalent to
$s.188.6 !rores as of 20122013. The
'athe'ati!al !al!+lation in this reard has been
presented in the short note s+b'itted by the
!lai'ant. Th+s, the !o'pensation payable for the
ronf+l death of !lai'ant/s ife o+ld stand
today at $s.188.6 !rores and not $s.77.7 !rores
as oriinally !lai'ed by hi' in 1""8 itho+t
taBin into !onsideration the vario+s relevant
aspe!ts referred to s+pra and proper +idan!e
and advi!e in the 'atter.
72. +rther, it is +red by the !lai'ant that he
is entitled to interest on the !o'pensation at
reasonable rate as the National Co''ission has
aarded interest P 12G b+t only in !ase of
defa+lt by the appellant do!tors and the A#$%
&ospital to pay the !o'pensation ithin 8 eeBs
after the +d'ent hi!h as delivered on
4!tober 21, 2011. That 'eans, the National
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Co''ission did not rant any interest for the
last 15 years lon period on the !o'pensation
aarded in favo+r of the !lai'ant as this !ase
as pendin before the +di!ial syste' in %ndia
for hi!h the !lai'ant is not responsible. The
said a!t is !ontrary to the de!ision of this
Co+rt in T)a@)a&)$ P(ra5l Sara
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ee'plary da'aes have been +stifiably aarded
as a deterrent in the f+t+re for o+traeo+s and
reprehensible a!t on the part of the a!!+sed. %n
fa!t p+nitive da'aes are ro+tinely aarded in
'edi!al nelien!e !ases in estern !o+ntries
for re!Bless and reprehensible a!t by the
do!tors or &ospitals in order to send a
deterrent 'essae to other 'e'bers of the
'edi!al !o''+nity. %n a si'ilar !ase, the Co+rt
of Appeals in o+th Carolina in ,$l)
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instr+!tion reardin dire!tion for +se of the
'edi!ine had not been folloed in the instant
!ase. This Co+rt has also 'ade it !lear that the
e!essive +se of the 'edi!ine by the do!tor as
o+t of sheer inoran!e of basi! haEards relatin
to the +se of steroids as also la!B of +d'ent.
No do!tor has the riht to +se the dr+ beyond
the 'ai'+' re!o''ended dose.
7. The +pre'e Co+rt of 4hio in Dar!%:$r
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do!tors and; or the &ospital i.e. 9rea!h Candy
&ospital in 9o'bay sho+ld also be 'ade a party
in this !ase.
76. %t is f+rther !ontended by the !lai'ant that
the National Co''ission has ronf+lly
apportioned the total a'o+nt of !o'pensation by
losin siht of the observations 'ade by this
Co+rt hile re'andin the !ase ba!B to it for
deter'ination of the +ant+' of !o'pensation.
This Co+rt did not 'aBe any observation as to
ho the !o'pensation sho+ld be divided, as
aarded by the National Co''ission. @!ept for
the appellant)r. +B+'ar #+Bheree ho as
i'posed ith a !ost of $s.5,00,000; this Co+rt
did not i'pose !ost aainst any other do!tors
even tho+h the Co+rt fo+nd other appellant
do!tors also +ilty for 'edi!al nelien!e.
77. %t is f+rther !ontended that the National
Co''ission on 31st #ar!h, 2010 in S.P. A::aral
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&ospital and 20G aainst )r. +B+'ar #+Bheree.
The !lai'ant has !lai'ed the da'aes as +nder :
PECUNIARG DAMAES=
A C+& a+a&$! &) &)$ /&m9 A%(ra!)a Sa)a
1 Hoss of prospe!tive;f+t+re
earnin +pto to 70 years
$s.",25,00,000;
2 Hoss of F o!ial e!+rity
in!o'e +p to 82 years
$s.1,,00,000;
3 aid for treat'ent at
A#$%;9rea!h Candy &ospital
$s.12,00,000;
aid for !hartered fliht to
transfer An+radha
$s. ",00,000;
5 Travel;hotel;other epenses
d+rin An+radha/s treat'ent in
#+'bai; *olBata in 1""8
$s. 7,00,000;
6 aid for !o+rt pro!eedins
in!l+din video !onferen!in
fro' F..A.
$s.11,57,000;
9 C+& a+a&$! &) A%(ra!)a> )(
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1 Hoss of !o'panionship and life
a'enities
$s.13,50,00,000;
2 @'otional distress, pain and
s+fferin for h+sband
$s.50,00,000;
3 ain;s+fferin end+red by the
vi!ti' d+rin therapy
$s.,50,00,000;
Total non pe!+niary da'aes $s.31,50,00,000;
) PUNITIVEEEMPLARG DAMAES $s.13,50,00,000;
@ SPECIAL DAMAES $s.18,00,00,000;
T+&al $s."7,56,07,000;
Therefore, the !lai'ant has prayed for alloin his
appeal by aardin +st and reasonable !o'pensation
+nder vario+s heads as !lai'ed by hi'.
7". 4n the basis of the rival leal fa!t+al and
!ontentions +red on behalf of the respe!tive
do!torappellants, &ospital and the !lai'ant,
the folloin points o+ld arise for
!onsideration of this Co+rt:
1 =hether the !lai' of the !lai'ant
for enhan!e'ent of !o'pensation in his
appeal is +stified. %f it is so, for
hat !o'pensation he is entitled toK
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2 =hile 'aBin additional !lai' by ay
of affidavit before the National
Co''ission hen a'endin the !lai'
petition, hether the !lai'ant is
entitled for !o'pensation on the
enhan!ed !lai' preferred before the
National Co''issionK
3-a =hether the !lai'ant seeBin to a'end
the !lai' of !o'pensation +nder !ertain
heads in the oriinal !lai' petition has
forfeited his riht of !lai' +nder 4rder
%% $+le 2 of CC as pleaded by the A#$%
&ospitalK
3-b =hether the !lai'ant is +stified in
!lai'in additional a'o+nt for
!o'pensation +nder different heads itho+t
folloin the pro!ed+re !onte'plated +nder
the provisions of the Cons+'er rote!tion
A!t and the $+lesK
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. =hether the National Co''ission is
+stified in adoptin the '+ltiplier
'ethod to deter'ine the !o'pensation and
to aard the !o'pensation in favo+r of
the !lai'antK
5. =hether the !lai'ant is entitled to
pe!+niary da'aes +nder the heads of
loss of e'ploy'ent, loss of his property
and his travelin epenses fro' F..A.
to %ndia to !ond+!t the pro!eedins in
his !lai' petitionK
6.=hether the !lai'ant is entitled to the
interest on the !o'pensation that o+ld
be aardedK
7. =hether the !o'pensation aarded in
the i'p+ned +d'ent and the
apportion'ent of the !o'pensation a'o+nt
fastened +pon the do!tors and the hospital
re+ires interferen!e and hether the
!lai'ant is liable for !ontrib+tory
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nelien!e and ded+!tion of !o'pensation
+nder this headK
8. To hat 4rder and Aard the !lai'ant
is entitled to in these appealsK
80. %t o+ld be !onvenient for +s to taBe +p
first the Civil Appeal No. 2866 of 2012 filed by
)r. *+nal aha, the !lai'ant, as he had so+ht
for enhan!e'ent of !o'pensation. %f e anser
his !lai' then the other iss+es that o+ld arise
in the !onne!ted appeals filed by the do!tors
and the A#$% &ospital !an be disposed of later
on. Therefore, the points that o+ld arise for
!onsideration in these appeals by these Co+rt
have been fra'ed in the !o'posite. The sa'e are
taBen +p in relation to the !lai'ants/ !ase in
seriat+' and are ansered by re!ordin the
folloin reasons:
A%$r &+ P+%& %+. 19 2 a%! 4
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81. oint Nos. 1, 2 and 3 are taBen +p toether
and ansered sin!e they are inter related.
The !lai' for enhan!e'ent of !o'pensation by
the !lai'ant in his appeal is +stified for the
folloin reasons:
The National Co''ission has ree!ted the !lai'
of the !lai'ant for IinflationM 'ade by hi' itho+t
assinin any reason hatsoever. %t is an
+ndisp+ted fa!t that the !lai' of the !o'plainant
has been pendin before the National Co''ission and
this Co+rt for the last 15 years. The val+e of
'oney that as !lai'ed in 1""8 has been deval+ed to
a reat etent. This Co+rt in vario+s folloin
!ases has repeatedly affir'ed that inflation of
'oney sho+ld be !onsidered hile de!idin the
+ant+' of !o'pensation:
I% R$)ma '(mar a%! Or.
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I7.4ne of the in!idental iss+es hi!h
has also to be taBen into !onsideration
is inflation. %s the pra!ti!e of taBin
inflation into !onsideration hollyin!orre!tK Fnfort+nately, +nliBe other
developed !o+ntries in %ndia there has
been no s!ientifi! st+dy. %t is epe!ted
that ith the risin inflation the rate
of interest o+ld o +p. %n %ndia it does
not happen. %t, therefore, 'ay be a
relevant fa!tor hi!h 'ay be taBen into
!onsideration for deter'inin the a!t+al
ro+nd reality. No hardandfast r+le,
hoever, !an be laid don therefor.M
%n +/%! Ga!a/
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This Co+rt !annot also lose siht of the
fa!t that in iven !ases, as for ea'ple
death of the only son to a 'other, she !an
never be !o'pensated in 'onetary ter's." . The +estion as to the 'ethodoloy
re+ired to be applied for deter'ination
of !o'pensation as reards prospe!tive
loss of f+t+re earnins, hoever, as far
as possible sho+ld be based on !ertain
prin!iples. A person 'ay have a briht
f+t+re prospe!t> he 'iht have be!o'e
eliible to pro'otion i''ediately> there
'iht have been !han!es of an i''ediate
pay revision, hereas in another -si!
sit+ation the nat+re of e'ploy'ent as
s+!h that he 'iht not have !ontin+ed in
servi!e> his !han!e of pro'otion, havin
reard to the nat+re of e'ploy'ent 'ay be
distant or re'ote. %t is, therefore,
diffi!+lt for any !o+rt to lay don riid
tests hi!h sho+ld be applied in all
sit+ations. There are diverent vies. %n
so'e !ases it has been s+ested that so'esort of hypotheses or +essorB 'ay be
inevitable. That 'ay be so./
#!. $n the $ndian conte%t se&eral other
factors should be ta'en into consideration
including education of the dependants and
the nature of (ob. $n the wa'e of changed
societal conditions and global scenario,
future prospects ma) ha&e to be ta'en into
consideration not onl) ha&ing regard to
the status of the emplo)ee, his
educational qualification* his past
performance but also other rele&ant
factors, namel), the higher salaries and
per's which are being offered b) the
pri&ate companies these da)s. $n fact
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while determining the multiplicand this
+ourt in riental $nsurance +o. td. v.
ashuben held that e&en dearness allowance
and per's with regard thereto from whichthe famil) would ha&e deri&ed monthl)
benefit, must be ta'en into consideration.
#". ne of the incidental issues which has
also to be ta'en into consideration is
inflation. $s the practice of ta'ing
inflation into consideration wholl)
incorrect/ 0nfortunatel), unli'e other
de&eloped countries in $ndia there has
been no scientific stud). $t is e%pected
that with the rising inflation the rate of
interest would go up. $n $ndia it does not
happen. $t, therefore, ma) be a rele&ant
factor which ma) be ta'en into
consideration for determining the actual
ground realit). 1o hard-and-fast rule,
howe&er, can be laid down therefor .M
82. The C.%.%. is deter'ined by the inan!e
#inistry of Fnion of %ndia every year in order
to appre!iate the level of deval+ation of 'oney
ea!h year. Fsin the C.%.%. as p+blished by the
?overn'ent of %ndia, the oriinal !lai' of
$s.77.7 !rores preferred by the !lai'ant in 1""8
o+ld be e+ivalent to $s.188.6 !rores as of
2013 and, therefore the enhan!ed !lai' preferred
by the !lai'ant before the National Co''ission
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and before this Co+rt is leally +stifiable as
this Co+rt is re+ired to deter'ine the +st,
fair and reasonable !o'pensation. Therefore, the
!ontention +red by the appellantdo!tors and
the A#$% &ospital that in the absen!e of
pleadins in the !lai' petition before the
National Co''ission and also in the liht of the
in!ident that the s+bse+ent appli!ation filed
by the !lai'ant seeBin for a'end'ent to the
!lai' in the prayer of the !o'plainant bein
ree!ted, the additional !lai' 'ade by the
!lai'ant !annot be ea'ined for rant of
!o'pensation +nder different heads is holly
+ns+stainable in la in vie of the de!isions
rendered by this Co+rt in the aforesaid !ases.
Therefore, this Co+rt is re+ired to !onsider
the relevant aspe!t of the 'atter na'ely, that
there has been steady inflation hi!h sho+ld
have been !onsidered over period of 15 years and
that 'oney has been deval+ed reatly. Therefore,
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the de!ision of the National Co''ission in
!onfinin the rant of !o'pensation to the
oriinal !lai' of $s.77.7 !rores preferred by
the !lai'ant +nder different heads and aardin
'eaer !o'pensation +nder the different heads in
the i'p+ned +d'ent, is holly +ns+stainable
in la as the sa'e is !ontrary to the leal
prin!iples laid don by this Co+rt in !atena of
!ases referred to s+pra. =e, therefore, allo
the !lai' of the !lai'ant on enhan!e'ent of
!o'pensation to the etent to be dire!ted by
this Co+rt in the folloin pararaphs.
83. 9esides enhan!e'ent of !o'pensation, the
!lai'ant has so+ht for additional !o'pensation
of abo+t $s.20 !rores in addition to his initial
!lai' 'ade in 2011 to in!l+de the e!ono'i! loss
that he had s+ffered d+e to loss of his
e'ploy'ent, ho'e fore!los+re and banBr+pt!y in
F..A hi!h o+ld have never happened b+t for
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the ronf+l death of his ife. The !lai'ant
has pla!ed relian!e on the f+nda'ental prin!iple
to be folloed by the Trib+nals, )istri!t
Cons+'er or+', tate Cons+'er or+', and the
National Co''ission and the !o+rts for aardin
+st !o'pensation/. %n s+pport of this
!ontention, he has also stronly pla!ed relian!e
+pon the observations 'ade at para 170 in the
Malay Kumar Ganguly’s !ase referred to s+pra
herein this Co+rt has 'ade observations as
th+s:
I170. %ndisp+tably, rant of !o'pensationinvolvin an a!!ident is ithin the real'
of la of torts. %t is based on the
prin!iple of restitutio in integrum. The
said prin!iple provides that a person
entitled to da'aes sho+ld, as nearly as
possible, et that s+' of 'oney hi!h
o+ld p+t hi' in the sa'e position as he
o+ld have been if he had not s+stained
the ron. -ee i&ingstone v. Raw)ards
+oal +o.M
The !lai'ant 'ade a !lai' +nder spe!ifi! heads
in reat detail in +stifi!ation for ea!h one of
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the !lai' 'ade by hi'. The National Co''ission,
despite taBin +di!ial noti!e of the !lai' 'ade by
the !lai'ant in its +d'ent, has ree!ted the
entire !lai' solely on the ro+nd that the
additional !lai' as not pleaded earlier,
therefore, none of the !lai's 'ade by hi' !an be
!onsidered. The ree!tion of the additional !lai's
by the National Co''ission itho+t !onsideration on
the ass+'ption that the !lai's 'ade by the !lai'ant
before the National Co''ission !annot be !haned or
'odified itho+t pleadins +nder any !ondition is
!ontrary to the de!isions of this Co+rt rendered in
!atena of !ases. %n s+pport of his additional
!lai', the !lai'ant pla!es relian!e +pon s+!h
de!isions as 'entioned here+nder:
-a %n N%:amma> !ase -s+pra, this Co+rt has
observed at para 3 hi!h reads th+s:
I3. Fndo+btedly, e!tion 166 of the #
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deprived fro' ettin I+st !o'pensationM
in !ase the !lai'ant is able to 'aBe o+t
a !ase +nder any provision of la.
Needless to say, the #
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! %n N@am I%&&(&$> !ase s+pra, the
!o'plainant had so+ht a !o'pensation of $s..61
!rores before the National Co''ission b+t he
enhan!ed his !lai' to $s 7.50 !rores hen the
'atter !a'e +p before this Co+rt. %n response to
the !lai', this Co+rt held as +nder:
I82. The !o'plainant, ho has ar+ed his
on !ase, has s+b'itted rit