# DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS

- **Citation:** [2013] 12 S.C.R. 30
- **Court:** Supreme Court of India
- **Decided:** 2013-10-24
- **Case number:** Civil Appeal No. 2867 of 2012
- **Bench:** Chandramauli Kr. Prasad, V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-balram-prasad-v-dr-kunal-saha-ors-28604
- **Pages:** 135

## Headnote

CONSUMER PROTECTION ACT, 1986:
Complaint -
Medical negligence -
Contributory
negligence - Death of an US f)ased patient in hospital in India
- National Commission holding the hospital and doctors liable
for medical negligence as also the husband of deceased
D liable for contributory negligence and, as such, deducting 10%
towards contributory negligence from compensation, awarding
Rs. 1,55,58,750 to claimant - Held: Appellant-Hospital is
vicariously liable for its doctors and is, therefore, directed to
pay total amount of compensation amounting to
E Rs. 6, 08, 00, 5501-, under various heads as detailed in
judgment, after deducting Rs.25 lakhs payable by appellantsdoctors - National Commission erred in holding that claimant
had contributed to negligence of appellant-doctors and
Hospital which resulted in death of his wife when Supreme
F
Court had clearly absolved the claimant of such liability and
remanded the matter back to National Commission only for
determining the quantum of compensation - Finding of
National Commission in this regard is set aside and it is reemphasized that claimant did not contribute to negligence of
appellants-doctors and Hospital which resulted in death of his
G wife - Consumer Protection Rules, 1987 - r. ·r4(c).
H
Enhancement of compensation by complainant
subsequent to filing of claim petition - Claimant making
30
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS.
31
additional claims by way of affidavit before National A
Commission - Held: Claim for enhancement of compensation
by claimant is justified - Claimant is entitled for enhanced
compensation under certain items in additional claim
preferred before National Commission - Further, claim of
claimant having remained pending for 15 years, value of B
money has devalued to a great extent - Therefore, inflation
should be considered while deciding the quantum of
compensation - It is wholly untenable in law for the 'Hospital
and the doctors to plead that without there being an
amendment to the claim petition, the claimant is not entitled c
to seek the additional claims by way of affidavit, and that the
claim is ~arred by limitation -- Supreme Court has got the
power under Art. 136 of the Constitution and the duty to award
just and reasonable compensation to do complete justice to
the affected claimant - Code of Civil Procedure, 1908 -
D
Constitution of India, 1950 - Art. 136.
Just and fair compensation - Held: Status, future
prospects and educational qualification of deceased must be
judged for deciding adequate, just and fair compensation -
Principle of just and reasonable compensation is based on E
'restitutio in integrum', i.e., claimant must receive the sum of
money which would put him in the same position as he would
have been if he had not sustained the wrong - Court is duty
bound and entitled to award just compensation' irrespective
of the fact whether any plea in that behalf was raised by F
claimant or not.
Future prospects of income - Held, 'Future loss. of
income' is different from 'future prospects of income' in terms
of potential of victim - Jn awarding just and reasonable G
compensation, future prospects of deceased must have been
reasonably judged by the National Commission.
Medical negligence - Compensation - Multiplier method
Held: Just, fair and reasonable compensation has to be
H
32
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A determined on the basis of the income of aeceased at the
time of death of the victim and other related claims on
account of the death - Therefore, the plea to apply tile
multiplier method in determination of compensation, does not
inspire confidence.
B
Medical negligence - Death of patient - Compensation
towards loss of income of deceased - Held: While
determining the income of deceased, evidence on record has
to be relied on - Further, 30% added towards future loss of
C income of deceased - 113 of total income is required to be
deducted towards personal expenditure of deceased -
Estimating the life expectancy of a healthy

## Text

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A
B
c
[2013] 12 S.C.R. 30
DR. BALRAM PRASAD
v.
DR. KUNAL SAHA & ORS.
(Civil Appeal No. 2867 of 2012 etc.)
OCTOBER 24, 2013
[CHANDRAMAULI KR. PRASAD AND
V. GOPALA GOWDA, JJ.]
CONSUMER PROTECTION ACT, 1986:
Complaint -
Medical negligence -
Contributory
negligence - Death of an US f)ased patient in hospital in India
- National Commission holding the hospital and doctors liable
for medical negligence as also the husband of deceased
D liable for contributory negligence and, as such, deducting 10%
towards contributory negligence from compensation, awarding
Rs. 1,55,58,750 to claimant - Held: Appellant-Hospital is
vicariously liable for its doctors and is, therefore, directed to
pay total amount of compensation amounting to
E Rs. 6, 08, 00, 5501-, under various heads as detailed in
judgment, after deducting Rs.25 lakhs payable by appellantsdoctors - National Commission erred in holding that claimant
had contributed to negligence of appellant-doctors and
Hospital which resulted in death of his wife when Supreme
F
Court had clearly absolved the claimant of such liability and
remanded the matter back to National Commission only for
determining the quantum of compensation - Finding of
National Commission in this regard is set aside and it is reemphasized that claimant did not contribute to negligence of
appellants-doctors and Hospital which resulted in death of his
G wife - Consumer Protection Rules, 1987 - r. ·r4(c).
H
Enhancement of compensation by complainant
subsequent to filing of claim petition - Claimant making
30
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS.
31
additional claims by way of affidavit before National A
Commission - Held: Claim for enhancement of compensation
by claimant is justified - Claimant is entitled for enhanced
compensation under certain items in additional claim
preferred before National Commission - Further, claim of
claimant having remained pending for 15 years, value of B
money has devalued to a great extent - Therefore, inflation
should be considered while deciding the quantum of
compensation - It is wholly untenable in law for the 'Hospital
and the doctors to plead that without there being an
amendment to the claim petition, the claimant is not entitled c
to seek the additional claims by way of affidavit, and that the
claim is ~arred by limitation -- Supreme Court has got the
power under Art. 136 of the Constitution and the duty to award
just and reasonable compensation to do complete justice to
the affected claimant - Code of Civil Procedure, 1908 -
D
Constitution of India, 1950 - Art. 136.
Just and fair compensation - Held: Status, future
prospects and educational qualification of deceased must be
judged for deciding adequate, just and fair compensation -
Principle of just and reasonable compensation is based on E
'restitutio in integrum', i.e., claimant must receive the sum of
money which would put him in the same position as he would
have been if he had not sustained the wrong - Court is duty
bound and entitled to award just compensation' irrespective
of the fact whether any plea in that behalf was raised by F
claimant or not.
Future prospects of income - Held, 'Future loss. of
income' is different from 'future prospects of income' in terms
of potential of victim - Jn awarding just and reasonable G
compensation, future prospects of deceased must have been
reasonably judged by the National Commission.
Medical negligence - Compensation - Multiplier method
Held: Just, fair and reasonable compensation has to be
H
32
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A determined on the basis of the income of aeceased at the
time of death of the victim and other related claims on
account of the death - Therefore, the plea to apply tile
multiplier method in determination of compensation, does not
inspire confidence.
B
Medical negligence - Death of patient - Compensation
towards loss of income of deceased - Held: While
determining the income of deceased, evidence on record has
to be relied on - Further, 30% added towards future loss of
C income of deceased - 113 of total income is required to be
deducted towards personal expenditure of deceased -
Estimating the life expectancy of a healthy person as 70 years,
compensation to be awarded by multiplying the total loss of
income by 30.
D
Medical negligence - Death of patient - Claim by
husband under the heads loss of income for missed work,
travel expenses and legal expenses - Held: Claim towards
missed work cannot be allowed as the same has no direct .
nexus with the negligence of appellant-doctors and hospital -
E - However, claim towards travel expenses and legal expenses,
partly allowed.
Other pecuniary damages - Medical ni9gligence - Death
of patient -- Expenses incurred by claimant towards treatment,
F
travel and hotel expenses in this regard, allowed.
Non-pecuniary damages -Medical negligence - Death of
patient -- Compensation under the head )Jain and suffering
of patient during the course of treatment', allowed - Loss of
consortium, allowed -- However, under the head, 'emotional
G distress, pain and suffering for claimant himself', no
compensation can be awarded since this cl;3im bears no direct
link with negligence of hospital and doctors in treating
claimant's wife.
H
Medical negligence - Interest on compensation amount
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS.
33
- Held: Not awarding interest by National Commission on
A
compensation amount from the date of filing of original
complaint up to the date of payment is most unreasonable
and is opposed to provisions of Interest Act - Therefore, 6%
interest is awarded on the compensation finally determined
from date of the petition till payment - Interest Act, 1978.
B
Medical Negligence -- Liability of nursing homes,
hospitals and doctors - Need of an appropriate legislation -
Held: Doctors, hospitals and nursing homes and other
connected establishments are required to be dealt with strictly C
if they are found to be negligent with patients and do not take
their responsibility seriously - Central and State Governments
may consider enacting laws wherever there is absence of one,
for effective functioning of private hospitals and nursing
homes.
D
The wife of the claimant-respondent no. 1 (C.A. No.
692/2012) died while she was undergoing treatment in the .
appellant Hospital. Respondent no. 1 filed a claim
petition. Initially the claim was filed for Rs.77,07,45,000/-
and later the same was amended by claiming a further
E
sum of Rs.20,00,00,000/-. After the case of Malay Kumar
Ganguly1 was remanded by Supreme Court, the National
Consumer Disputes Redressal Commission awarded the
compensation holding the hospital and the four doctors
guilty of medical negligence. The four doctors who had
treated the deceased were directed to pay Rs.25,00,000/
F
- each besides the cost of litigation. The National
Commission deducted 10% of the compensation towards
the contributory negligence of the claimant holding that
he had interfered with the treatment, and awarded G
Rs.1,55,58,750/- as compensation payable to the claimant.
One of the doctors died· subsequently. The decision of
the National Commission was challenged in the instant
appeals by the Hospital, the doctors as also by the
claimant..·
H
34
SUPREME COURT REPORTS
[20'13] 12 S.C.R.
A
The rival submissions of the parties were but before
this Court and the following issues were to be considered
by the Court:
"1) Whether the claim of the claimant for
8
enhancement of compensation in his appeal is justified.
If it is so, for what compensation he is entitled to?
2) While making additional claim by way of affidavit
before the National Commission when amending the
claim petition, whether the claimant is entitled for
C compensation on the enhanced claim preferred before
the National Commission?
3(a) Whether the claimant seeking to amend the
claim of compensation under certain heads in the original
0
claim petition has forfeited his right of claim under Order
II Rule 2 of CPC as pleaded by the Hospital?
3(b) Whether the claimant is justified in claiming
additional amount for compensation under different
heads without following the procedure contemplated
E under the provisions of the Consumer Protection Act
and the Rules?
4) Whether the National Commission is justified in
adopting the multiplier method to determine the
F
compensation and to award the compensation in favour
of the claimant?
5) Whether the claimant is entitled to pecuniary
damages under the heads of loss of employment, loss
of his property and his traveling expenses from U.S.A.
G to India to conduct the proceedings in his claim petition?
H
6) Whether the claimant is entitled to the interest on
the compensation that would be awarded?
7) Whether the compensation awarded in the
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS.
35
impugned judgment and the apportionment of the
A
compensation amount fastened upon the doctors and the
hospital requires interference and whether the claimant
is liable for contributory negligence and deduction of
compensation under this head?
8) To what Order and Award the claimant is entitled
B
to in these appeals?"
Disposing of the appeals, the Court
HELD:
Answer to Point nos. 1, 2 and 3
1.1 The claim for enhancement of compensation by
the claimant in his appeal is justified for the following
reasons:
The National Commission has rejected the claim of
c
D
the claimant for "inflation" made by him without assigning
any reason whatsoever. It is an undisputed fact that the
claim of the complainant has been pending before the
National Commission and this Court for the last 15 years.
E
The value of money that was claimed in 1998 has been
devalued to a great extent. This Court has repeatedly
affirmed that inflation of money should be considered
while deciding the quantum of compensation. [para 81]
[102-E-G]
F
Resh ma Kumari v. Madan Mohan 2009 (11) SCR 305
= (2009) 13 SCC 422 Govind Yadav Vs. New India Insurance
Co. Ltd. (2011) 1 o sec 683, Ibrahim Vs. Raju (2011) 1 o sec
634 - relied on.
1.2 Using the C.1.1. as published by the Government
of India, the original claim of Rs.77.7 crores preferred by
G
the claimant in 1998 would be equivalent to Rs.188.6
crores as of 2013 and, therefore, the enhanced claim
preferred by the claimant before the !ljati9nal. H
36
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A Commission and before this Court is legally justifiable as
this Court is required to determine the just, fair and
reasonable compensation. Therefore, this Court is
required to consider the relevant aspect of the matter,
namely, that there has been steady inflation over the
B period of 15 years and that money has been devalued
greatly. Therefore, the decision of the National
Commission in confining the grant of compensation to
the original claim of Rs.77.7 crores preferred by the
claimant under different heads and awarding meager
C compensation in the impugned judgment, is wholly
unsustainable in law as the same is contrary to the legal
principles laid down by this Court. Therefore, the claim
for enhancement of compensation is allowed. [para 82)
[105-A-B, D-F]
D
2. As regards the claim for additional compensation
of about Rs.20 crores in addition to the initial claim, made
in 2011, the rejection of the additional claims by the
National Commission without consideration on the
assumption that the claims made by the claimant before
E it cannot be changed or modified without pleadings
under any condition is contrary to the decisions of this
Court. The finding of fact on the basis of which the
National Commission rejected the claim is based on
untenable reasons. The claim of the claimant for
F additional compensation is accepted as it is supported
by the decisions of this Court and the same is well
founded in law. It is the duty of Tribunals, Commissions
and Courts to consider relevant facts and evidence in
respect of facts and circumstances of each and every
G case for awarding just and reasonable compensation.
Therefore, this Court is of the view that the claimant is
entitled for enhanced compensation under certain items
made by the claimant in additional claim preferred by him
before the National Commission. [para 83-84) [105-G;
H 106-F-G; 109-E-H; 110-A]
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 37
Nizam Institute of Medical Sciences Vs. Prasanth S.
A
Dhananka & Ors. (2009) 9 SCR 313 = (2009) 6 SCC 1;
Oriental Insurance Company Ltd. Vs. Jashuben & Ors. 2008
(2) SCR 930 = (2008) 4 SCC 162; R.D. Hattangadi Vs. Pest
Control (India) Pvt. Ltd. & Ors. 1995 (1) SCR 75 = (1995) 1
SCC 551; Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee
B
(2009) 13 SCR 1 = (2009) 9 SCC 221; Raj Rani & Ors Vs.
Oriental Insurance Company Ltd. & Ors. (2009) 7 SCR 1168
= (2009) 13 sec 654 - relied on.
3.1 Status, future prospects and educational
qualification of the deceased must be judged for deciding C
adequate, just and fair compensation. Further, it is an
undisputed fact that the victim was a graduate in
psychology from a highly prestigious school in New
York. She had a brilliant future. However, the National
Commiss;ion has calculated the entire compensation and D
prospective loss of income solely based on a pay receipt
showing a paltry income of only $30,000 per year which
she was earning <1s a graduate student. Therefore, the
National Commission has committed grave error in taking
that figure to determine compensation under the head of E
loss of olependency and the same is contrary to the
observath>ns made by this Court. [para 84-85] [110-F-H;
111-A]
R.K. Malik Vs. Kiran Pal 2009 (10) SCR 87= (2009) 14
SCC 1; A(\vind Kumar Mishra Vs. New India Assurance Co.
F
2010 (11) SCR 857 = (2010) 10 sec 254; G.M.,Kerala SRTC
v. Susamma Thomas, (1994) 2 SCC 176 - relied on.
Govind Yadav Vs. New India Insurance Co. Ltd. (2011)
(10) SCC 6El3, Sri Ramachandrappa Vs. Manager, Royal
Sundaram Alliance Insurance 2011 (9) SCR 922 = (2011) 13 G
SCC 236, L.axman @ Laxman Mourya Vs. Divisional
Manager Vs. Oriental Insurance Co. Ltd. & Anr. (2011) 10
SCC 756; Kaitita Vs. Dipak & Ors. (2012) 8 SCC 604; Ibrahim
Vs. Raju. (20111) 10 SCC 634; Kavita Vs. Dipak & Ors. (2012)
8 SCC 604 - held inapplicable.
H
38
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A
3.2 'Future loss of income' is different from 'future
prospects of income' in terms of the potential of the
victim. In view of the law laid down by this Court, the
Commission, in awarding just and reasonable
compensation, ought to have taken into consideration
B
the future prospects of the deceased even in the absence
of any expert opinion, and reasonably judged the same,
based on the income of the deceased and her future
potential in U.S.A. However, in the instant case, the
calculation of the future prospect of income of the
c deceased has also been scientifically done by ecoromic
expert. The claimant is entitled to enhanced
compensation under the heading of loss of future
prospects of income of the victim. [para 86, 88 and 89)
[111-G-H; 112-F-G; 113-C-D]
D
E
F
'G
H
Santosh Devi v. National Insurance Co. Ltd., (2012) 6
sec 421 - relied on.
3.3 With respect to the fundamental principle for
awarding just and reasonable compensation, flis Court
in Malay Kumar Ganguly's case has categoricaly stated,
while remanding this case back to the National
Commission, that the principle for just and reasonable
compensation is based on 'restitutio in integr~m· that is,
the claimant must receive sum of money which would put
him in the same position as he would have beEll if he had
not sustained the wrong. The Court is duty-bound and
entitled to award "just compensation" irrespfctive of the
fact whether any plea in that behalf was raised by the
claimant or· not. [para 91-92) [116-B-DJ
Malay Kumar Ganguly Vs. Dr. Sukumir Mukherjee
(2009) 13 SCR 1 = (2009) 9 SCC 221 Ninganma and Anr.
Vs. United India Insurance Company Ltd. 200~ (8) SCR 683
= (2009) 13 sec 710 - relied on.
3.4 While remanding the matter back it the National
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS.
39
compensation for medical negligence, this Court has
A
observed that compensation should include "loss of
earning of profit up to the date of trial" and that it may
also include any loss "already suffered or likely to be
, suffered in future". The claimant has also rightly asserted
that when the original .claim petition was filed soon after s
the death of his wife in 1998, it would be impossible to
file a claim for "just compensation". The claimant has
suffered in the course of the 15 years long trial. [para 93]
[116-G-H; 117-A-B]
Oriental Insurance Company Ltd. Vs. Jashuben & Ors.
C
(2008) 2 SCR 930 = (2008) 4 SCC 1621; R.D. Hattangadi
Vs. Pest Control (India) Pvt. Ltd. & Ors. (1995) 1 SCR 75 =
1995 (1) SCC 551; Raj Rani & Ors Vs. Oriental Insurance
Company Ltd. & Ors. (2009) 7 SCR 1168 = (2009) 13 SCC
654, Laxman @ Laxman Mourya Vs. Divisional Manager Vs.
D
Oriental Insurance Co. Ltd. & Anr. (2011) 10 SCC 756 Ibrahim
Vs. Raju (2011) 10 SCC 634 - referred to.
3.5 This Court has got the power under Art. 136 of
the Constitution and the duty to award just and
E
reasonable compensation to do complete justice to the
affected claimant. It is wholly untenable in law for the
Hospital and the doctors to plead that without there being
an amendment to the claim petition, the claimant is not
entitled to seek the additional claims by way of affidavit,
and that the claim is barred by limitation. The claimant is
F
justified in claiming additional claim for determining just
and reasonable compensation under different heads.
Accordingly, the point Nos. 1, 2, and 3 are answered in
favour of the claimant and against the appellant-doctors
and the Hospital. [para 93-94] [117-D-E; F-G]
G
Answer to point no. 4
4.1 It would not be proper to use a strait jacket
multiplier method for determining the quantum of
H
40
SUPREME COURT REPORTS
[201:3] 12 S.C.R.
A compensation in medical negligence claims. On the
contrary, this Court has chosen to deviate from the
standard multiplier method to avoid over-compensation
and also relied upon the quantum of multiplicand to
choose the appropriate multiplier. [para 97] [121-8-C]
B
4.2 The National Commission or this Court requires
to determine just, fair and reasonable compensation on
the basis of the income that was being earned by the
deceased at the time of her death and other related claims
on account of her death. Accordingly, this Court holds
C that the plea to apply the multiplier method in
determination of compensation does not inspire
confidence and the same cannot be accepted. Point no.
4 is answered in favour of the claimant and against the
appellants-doctors and the Hospital. [para 97] [121-C-D,
D E-G]
Indian Medical Association Vs. V.P. Shantha & Ors. 1995
(5) Suppl. SCR 110 = (1995) 6 SCC 651; Spring Meadows
Hospital & Anr Vs. Harjo/ Ahluwalia (1998) 2 SCR 428 =
(1998) 4 SCC 39;, Charan Singh Vs. Healing Touch Hospital
E and Ors. 2000 (3) Suppl. SCR 337 = (2000) 7 sec 668,
Savita Garg Vs. Director National Heart Institute 2004 (5)
Suppl. SCR 359 = (2004) 8 SCC 56, State of Punjab Vs. Shiv
Ram & Ors. (2005) 2 Suppl. SCR 991 = (2005) 7 SCC 1;
Samira Kohli Vs. Dr. Prabha Manchanda &, Anr. (2008) 1
F SCR 719 = (2008) 2 SCC 1; P. G. Institute of Medical
Sciences Vs. Jaspal Singh & Ors. (2009) 9 SCR 889 = 2009
(7) SCC 330; Nizam Institute Vs. Prasant Dhananka Nizam
Institute of Medical Sciences Vs. Prasanth S. Dhananka &
Ors. (2009) 9 SCR 313 = (2009) 6 SCC 1; Malay Kumar
G Ganguly Vs. Sukumar Mukherjee & Ors. Malay Kumar
Gangu/y Vs. Dr. Sukumar Mukherjee (2009) 13 SCR 1=2009
(9) SCC 221; and V. Kishan Rao Vs. Nikhil Superspeciality
Hospital & Anr. (2010) 5 SCR 1 = (2010) 5 SCC 513 - referred
to.
H
Sar/a Verma v. Delhi Transport Corporation, 2009 (5)
•
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 41
SCR 1098 = (2009) 6 SCC 121 Reshma Kumari v. Madan
A
Mohan 2009 (11) SCR 305 = (2009) 13 SCC 422 - held
inapplicable.
Answer to Point no. 5
5.1 The claim of Rs.1,12,50,000/- made by the claimant
8
under the head of loss of income for missed work,
cannot be allowed by this Court since, the same has no
direct nexus with the negligence of the appellantdoctors and the Hospital. [para 99] [122-0-E]
5.2 As regards the claim under the head of 'Travel c
expenses over the past 12 years' at Rs.70,00,000/-, the
claimant did not produce any record of plane fare to
prove his travel expenditure from U.S.A. to India to attend
the proceedings. However, it is an undisputed fact that
the claimant is a citizen of U.S.A. and had been living D
there. It cannot be denied that he had to incur travel
expenses to come to India to attend the proceedings.
Therefore, on an average, this Court awards a
compensation of Rs.10 lakhs under the head of 'Travel
expenses over the past twelve years'. [para 99] [122-EF]
E
5.3 The claim of the claimant that he has spent
Rs.1,65,00,000/- towards litigation over the past 12 years
while seeking compensation under this head, is on the
higher side, considering that the claimant who is a doctor
by profession, appeared in person before this Court to
F
argue his case. However, he might have required
rigorous assistance of lawyers to prepare his case and
produce evidence in order. Therefore, a compensation of
Rs.1,50,000/- is granted under the head of 'legal
expenses'. Therefore, a total amount of Rs. 11,50,000/- is G
granted to the claimant under the head of 'cost of
litigation'. [para 99] [122-G-H; 123-A]
Answer to Point no. 6
6. The National Commission did not grant any H
•
42
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A
interest for the long period of 15 years when the case
remained pending before the National Commission and
this Court. Not awarding interest by the National
Commission on the compensation amount from the date
of filing of the original complaint up to the date of
B
payment of entire compensation by the appellant-doctors
and the Hospital to the claimant is most unreasonable
and the same is opposed to the provision of the Interest
Act, 1978. Therefore, interest is awarded on the
compensation determined by this Court at the rate of 6%
c
from the date of complaint till the date of payment. [para
100 and 102) [123-C-D. 126-D-F]
Thazhathe Purayil Sarabi & Ors. Vs. Union of India &
Anr. 2009 (10) SCR 70 = 2009 (7) SCC 372 - relied on.
D
Kemp and Kemp on Quantum of Damages (Special
E
F
Edn., 1986) - referred to.
Answer to point no. 7
7.1 The liability of the doctors in causing the death
of claimant's wife has already been established by the
Court in Malay Kumar Ganguly's case. The decision in
the instant appeals is confined to determine the extent
to which the appellant-doctors and the Hospital are liable
to pay compensation awarded to the claimant for their
acts of negligence in giving treatment to the deceased
wife of the claimant. [para 103) [127-A-C]
Liability. of the Hospital:
7.2 This Court in Malay Kumar Ganguly's has stated
G
that the bulk of the proportion of compensation is to be
paid by the hospital and the rest by Dr. 'SM'. None of the
other doctors involved were imposed with cost though
'they were found guilty of medical negligence.[para 105]
H
[128-C-E]
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 43
7.3 It has to oe inferred that the appellant Hospital is A
vicariously liable for its doctors. The appellant-Hospital
is, therefore, directed to pay the total amount of
compensation with interest awarded in the appeal of the
claimant which remains due, after deducting the total
amount of Rs.25 lakhs payable by the appellants-doctors B
as per the Order passed by this Court while answering
the point no. 7. [para 109] [133-E-F]
Liability of Dr. 'SM'
7.4 It is imperative to mention that the quantum of C
compensation to be paid by the appellant-doctors and the
Hospital is not premised on their culpability u/s 304-A of
IPC but on the basis of their act of negligence as doctors
in treating the deceased wife of the claimant. The findings
of this Court regarding the liability of Dr. 'SM' in Malay D
Kumar Ganguly's case are, therefore, reiterated. [para 111]
[134-G-H; 135-A]
7.5 It is also important to highlight in this judgment
that the manner in which Dr. 'SM' attempted to shirk from E
his individual responsibility both in the criminal and civil
cases made against him on the death of the claimant's
wife is very much unbecoming of a doctor as renowned
and revered as he is. He is a senior doctor who was in
charge of the treatment of the deceased, but he has shown F
utmost disrespect to his profession by being so casual in
his approach in treating his patient. Moreover, on being
charged with the liability, he attempted to shift the blame
on other doctors. Therefore, in the light of the facts and
circumstances, he is directed to pay a compensation of
Rs.10 lakhs to the claimant in lieu of his negligence and G
it is hoped that he upholds his integrity as a doctor in future
and would not be casual about his patient's lives. [para
112-113] [135-G-H; 136-A-H; 137-A-B]
H
•
44
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A
Liability of Dr.SH:
7.6 Like appellant Dr. 'SM', appellant Dr. 'BH' is also
a senior doctor of high repute. However, according to the
findings of this Court in Malay Kumar Ganguly's case, he
8
had conducted himself with utmost callousness in giving
treatment to the claimant's wife which led to her
unfortunate demise. He too made every attempt to shift
the blame to the other doctors thereby tainting the
medical profession. This Court directs him to pay Rs.10
lakhs as compensation to the claimant in lieu of his
C negligence in treating the wife of the claimant. [para 115]
[139-A-C]
Liability of Dr 'BP':
0
7.8 This Court in Malay Kumar Ganguly abhorred the
shifting of blames by the senior doctor on the attending
physician appellant 'BP' even though the Court held him
guilty of negligence. He was a junior doctor and might
have acted on the direction of senior doctors who
E undertook the treatment of the claimant's wife in the
Hospital. However, the fact cannot be lost sight of that
the appellant was an independent medical practitioner
with a post graduate degree. He still stood as a second
fiddle and perpetuated the negligence in giving treatment
to the claimant's wife. This Court in Malay Kumar
F Ganguly's case found him negligent in treating the
claimant's wife in spite of being the attending physician
of the Hospital. But since he is a junior doctor whose
contribution to the negligence is far less than the senior
doctors involved, therefore, this Court directs him to pay
G a compensation of Rs. 5 lakhs to the claimant. This
compensation acts as a reminder and deterrent to him
against being casual and passive in treating his patients
in his formative years of medical profession. [para 121 &
122] [142-8, E-H; 143-A]
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 45
Liability of the claimant
A
7.9 The National Commission erred in holding that
the claimant had contributed to the negligence of the
appellant-doctors and the Hospital which resulted in the
death of his wife when this Court had clearly absolved
the claimant of such liability and remanded the matter
8
back to the National Commission only for the purpose of
determining the quantum of compensation. Therefore, the
finding of the National Commission is set aside and the
finding of this Court is re-emphasized that the claimant
did not contribute to the negligence of the appellantsC
doctors and the Hospital which resulted in the death of
his wife. [para 127] [146-A-C]
Answer to point no. 8
8.1 This Court, while remanding the matter back to
the National Commission, has categorically stated that D
the pecuniary and non-pecuniary losses sustained by the
claimant and future losses up to the date of trial must be
considered for the quantum of compensation. That has
not been done in the instant case by the National
Commission. Therefore, the claimant is entitled for E
enhancement of compensation on the said heads as he
has incurred huge amount of expenses in the court of
more than 15 years long trial in the instant case. The
updated break-up of the total claim has not been
considered by the National Commission keeping in view
F
the claim and legal evidence and observations made and
directions issued by this Court in Malay Kumar Ganguly's
case to determine just and reasonable compensation.
Therefore, the claimant is entitled for enhanced
compensation as mentioned under different heads in this
judgment. The National Commission has also not taken
G
into consideration the observations made by this Court
while remanding the case for determining the quantum
of compensation with regard to the status of treating
doctors and the Hospital. [para 128-129] [146-D-E, F-H;
147-A-B]
H
46
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A Loss of income of the deceased:
8.2 The National Commission did not consider the
substantial and iegal evidence adduced on record by the
claimant regarding the income that was being earned by
his wife even though he has examined the U.S.A. based
B economic expert through video conferencing. As per the
evidence on record, the deceased was earning $ 30,000
per annum at the time of her death. The appellant-doctors
and the Hospital could not produce any evidence to rebut
the claims of the claimant regarding the qualification of
c his wife. Further, the expert witness testified that the
deceased could have earned much more in future given
her present prospect. But relying upon the principle laid
down by this Court, the estimate of the witness cannot
be taken to be the income of the deceased. However,
$30,000 per annum earned by the deceased during the
D time of her death was not from a regular source of
income and she would have earned lot more had it been
a regular source of income, having regard to her
qualification and the job for which she was entitled to.
Therefore, while determining the income of the deceased,
E the evidence on record has to be relied on for the
purpose of determining the just, fair and reasonable
compensation in favour of the claimant. It would be just
and proper to take her earning at $40,000 per annum on
a regular job, and 30% should be added towards the
F future loss of income of the deceased. However, 1/3rd of
the total income is required to be deducted under the
head of personal expenditure of the deceased to arrive
at the multiplicand. Therefore, estimating the life
expectancy of a healthy person as 70 years,
compensation is to be awarded by multiplying the total
G loss of income by 30. [para 131-133] [148-8-C, 149-B-G;
150-A-B]
8.3 Further, the claimant has rightly pointed out that
the value of Indian currency has gone down since the
time when these legal proceedings have begun in this
H country. Therefore, it will be prudent to hold the current
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 47
value of Indian Rupee at a stable rate of Rs.55/- per 1$. A
Therefore, under the head of 'loss of income of the
deceased' the claimant is entitled to an amount of
Rs.5,72,00,550/-, as calculated in the judgment. [para 134)
[150-B-D]
Other Pecuniary Damages:
B
9.1 The expenditure made by the claimant during the
treatment of the deceased deserves to be duly
compensated for awarding reasonable amount. The
claimant has been able to produce the medical bill only C
to the extent of Rs.2.5 lakhs which he had paid to the
Hospital in Mumbai. Assuming that he might have
incurred some more expenditure, the National
Commission had quantified the expenses under this head
to the tune of Rs.5 lakhs. This Court still considers this D
amount as insufficient in the light of the fact that the
deceased was treated at the Hospital as an in-patient for
about a week; it would be just and proper to enhance the
compensation under this head by Rs.2 lakhs thereby
awarding a total amount of Rs.7 lakhs under this head. E
[para 135-136) [150-E-H; 151-A-B]
9.2 The claimant has sought for compensation to the
tune of Rs. 7 lakhs for travel and expenses for 11 days he
had to stay in Mumbai for the treatment of his wife.
However, he has failed to produce any bills to prove his F
expenditure. Since, his travel to Mumbai for the treatment
of his wife is on record, the National Commission has
awarded compensation of Re.1 lakh under this head. It
would be fit and proper to enhance the compensation by
Rs.50,000/- more considering that he had also incurred G
some unavoidable expenditure during his travel and stay
In Mumbai at the time of treatment of the deceased.
Therefore, under this head, a compensation of
Rs.1,50,000/- is awarded. However, with respect to the
claim made under the cost of chartered flight, a sum of H
48
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A Rs.5,00,0001-has already been awarded by the National
Commission which this Court would not interfere within
the absence of any contrary evidence. [para 137-138)
[157-C-F]
8
Non pecuniary damages:
10.2 It is true that the deceased had gone through
immense pain, mental agony and suffering in course of
her treatment which ultimately could not save her life.
However, more than the conventional amount set by this
c Court cannot be awarded on the basis of the economic
status of the deceased. Therefore, a lumpsum amount of
Rs.10 lakhs is awarded to the claimant under the head
of 'pain and suffering of the claimant's wife during the
course of treatment'. [para 145) [162-A-C]
D
E
Arun Kumar Agarwal Vs. National Insurance Company
(2010) 9 SCC 218; and Rajesh & Ors. Vs. Rajvir Singh and
Ors. 2013 (6) SCALE 563; Nizam Institute of Medical
Sciences Vs. Prasanth S. Dhananka & Ors. 2009 (9) SCR 313
= (2009) 6 sec 1 • referred to.
Kemp and Kemp on Quantum of Damages - referred
to.
10.2 Regarding claim under the head of 'Emotional
distress, pain and suffering for the claimant' himself, no
Fcompensation can be awarded in this regard since this
claim bears no direct link with the negligence caused by
the appellant-doctors and the Hospital in treating the
claimant's wife. [para 146) [162-C-D]
10.3 Further, the claimant is entitled to Rs.1,00,0001G under the head 'Loss of consortium'. [para 146) [162-F]
H
11. Therefore, a total amount of Rs.6,08,00,5501- is
awarded as compensation to the claimant by partly
modifying the award granted by the National Commission
under different heads, as detailed in the judgment, with
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 49
6% interest per annum from the date of application till the
A
date of payment. [para 147] [162-G-H]
12.1 The number of medical negligence cases
against doctors, Hospitals and Nursing Homes in the
consumer forum are increasing day by day. The doctors,
8
Hospitals, the Nursing Homes and other connected
establishments are to be dealt with strictly if they are
found to be negligent with the patients. The patients
irrespective of their social, cultural and economic
background are entitled to be treated with dignity which
C
not only forms their fundamental right but also their
human right. It is, therefore, hoped that this decision acts
as a deterrent and a reminder to those doctors, Hospitals,
the Nursing Homes and other connected establishments
who do not take their responsibility seriously. [para 148149] [163-A-B, C-E]
D
Paschim Banga Khet Mazdoor Samity Vs. State of West
Bengal (1996) 4 SCC 37 - referred to.
12.2 The central and the state governments may
E
consider enacting laws wherever there is absence of one
for effective functioning of private Hospitals and Nursing
Homes. Since the conduct of doctors is already
regulated by the Medical Council of India, impartial and
strict scrutiny is expected from the body. Finally, the
institutions and individuals providing medical services to
F
the public at large are required to educate and update
themselves about any new medical discipline and rare
diseases so as to avoid tragedies such as the instant
case where a valuable life could have been saved with a
little more awareness and wisdom on the part of the
G
doctors and the Hospital. [para 150] [163-F-H]
New India Assurance Company Limited v. Yoges Devi,
(2012) 3 SCC 613; National Insurance Company Limited v.
Sinitha, 2011 (16 ) SCR 166 = (2012) 2 sec 356 Sunil
H
50
SUPREME COURT REPORTS
(2013] 12 S.C.R.
A
Sharma v. Bachitar Singh, 2011 (2 ) SCR 576 = (2011) 11
SCC 425; Pushpa v. Shakuntala, 2011 (1) SCR 334 = (2011)
2 SCC 240; Shyamwati Sharma v. Karam Singh, 2010 (8 )
SCR 417 = (2010) 12 SCC 378; Rani Gupta v. United India
Insurance Company Limited, 2009 (5) SCR 721= (2009) 13
B SCC 498; National Insurance Company Limited v. Meghji
Naran Soratiya, 2009 (3) SCR 875 = (2009) 12 SCC 796;
Oriental Insurance Company Limited v. Angad Kol 2009 (2)
SCR 695 = (2009) 11 SCC 356; Usha Rajkhowa v.
Paramount Industries, 2009 (2) SCR 520 = (2009) 14 SCC
C
71; Laxmi Devi v. Mohammad. Tabbar, 2008 (5) SCR 436 =
(2008) 12 SCC 165; Andhra Pradesh State Road Transport
Corporation v. M. Ramadevi, 2008 (2) SCR 22 = (2008) 3
SCC 379; State of Punjab v. Jalour Singh 2008 (1) SCR 922
= (2008) 2 SCC 660; Abati Bezbaruah v. Dy. Director General,
0
Geological Survey of India, 2003 (1) SCR 1229 = (2003) 3
SCC 148; Oriental Insurance Co. Ltd. v. Hansrajbhai V.
Koda/a, 2001 (2) SCR 999 = (2001) 5 SCC 175; Sar/a Dixit
v. Ba/want Yadav, 1996 (3) SCR 30 = (1996) 3 SCC 179;
National Insurance Co. Ltd. v. Swaran/ata Das, 1993 Supp
(2) SCC 743; United India Insurance Co. Ltd. & Others Vs.
E Patricia Jean Mahajan & Ors. 2002 (3) SCR 1176 = (2002) 6
SCC 281; Lata Wadhwa & Ors. Vs. State of Bihar (2001) 1
Suppl. SCR 578 = 2001 (8) SCC 197; M.S. Grewal & Anr.
Vs. Deep Chand Sood and Ors. 2001 (2) Suppl. SCR 156=
2001 (8) SCC 151; Municipal Corporation of Delhi Vs.
F
Uphaar Tragedy Victims Association & Ors. 2011 (16) SCR
1 = 2011 (14) SCC 48'1; National Textile Corporation Ltd. Vs.
Nareshkumar Badrikumar Jagad 2012 (14) SCR 472 = (2011)
12 SCC 695, Maria Margarida Sequeria Fernandes Vs.
Erasmo Jack de Sequeria 2012 (3) SCR 841 :: (2012) 5 SCC
G 370, A. Shanmugam Vs. Ariya Kshatriya Rajaku/a Vamsathu
Madalaya Nandavana Paripalanai Sangam 2012 (4) SCR 74
= 2012 (6) SCC 430; Nagappa Vs. Gurudaya/ Singh 2002
(4) Suppl. SCR 499 = 2003 (2) SCC 274; Sanjay Batham
Vs. Munna/a/ Parihar (2011) 10 SCC 655; Times Global
H
DR. BALRAM PRASAD v. DR. KUNAL SAHA & ORS. 51
Broadcasting Co. Ltd. & Anr. Vs. Parshuram Babaram
A
Sawant SLP (Civil) No(s) 2997912011 decided on 14-112011; Raj Kumar Vs. Ajay Kumar & Anr. 2010 (13) SCR 179
= 2011 (1) SCC 343, Sri RamacQandrappa Vs. Manager,
Royal Sundaram Alliance Insurance 2011 (9) SCR 922 =
2011 (13) sec 236, Kavita Vs. Dipak & Ors. 2012 (8) sec
B
604; Landgraf Vs. US/ Film Prods 511 U.S. 244, 1994
Destruction of Public and Private Properties Vs. State of A.P.
2009 (6) SCR 439 = 2009 (5) SCC 212; S.P. Aggarwal Vs.
Sanjay Gandhi P.G. Institute (FA No.47812005) decided on
31.3.2010 - cited.
c
Welch Vs. Epstein 536 S.E. 2d 408 2000; Dardinger Vs.
Anthem Blue Cross Shield et al 781 N.E. 2d, 2002 - cited.
Case Law Reference:
2009 (13) SCR 1
relied on
para 4
D
2008 (2) SCR 930
relied on
para 8
2002 (3) SCR 1176
cited
para 8
(2012) 3 sec 613
cited
para 13
E
2011 (16) SCR 166
cited
para 13
2011 (2) SCR 576
cited
para 13
2011 (1) SCR 334
cited
para 13
F
2010 (8) SCR 417
cited
para 13
2009 (5) SCR 721
cited
para 13
2009 (3) SCR 875
cited
para 13
G
2009 (2) SCR 695
cited
para 13
2009 (2) SCR 520
cited
para 13
2008 (5) SCR 436
cited
para 13
H
52
SUPREME COURT REPORTS
[2013] 12"8.C.R.
A
2008 (2) SCR 22
cited
para 13
2008 (1) SCR 922
cited
para 13
2003 (1) SCR 1229
cited
para 13
8
2001 (2) SCR 999
cited
para 13
1996 (3) SCR 30
cited
para 13
1993 (2) Suppl. sec 743 cited
para 13
2009 (9) SCR 313
relied on
para 14
c
2009 (10) SCR 87
relied on
para 14
1994) 2 sec 116
relied on
para 15
2011 11 O) sec 634
referred to
para 21
D
2001 (1) Suppl. SCR 578 cited
para 25
2001 (2) Suppl.