NAND KISHORE PRASAD versus DR. MOHIB HAMIDI & OTHERS on 10 May 2019

1. The challenge in the present appeal is to an order passed by theNational Consumer Disputes Redressal Commission[1] on 02.11.2015whereby the original Opposite Party No. 3 (Respondent No. 1 herein)was absolved of the damages of Rs. 2,00,000/- imposed by StateConsumer Disputes Redressal Commission[2]vide order dated 12.11.2014.

2. Sanjay Kumar aged about 15 years, son of the Appellantcomplained of abdominal pain, fever and haemorrhage in both eyes.Initially, the Appellant had taken his son to a physician Dr. Arun Tiwarion 08.11.1995 who advised some tests and medicines. He was advisedto consult with the specialist as well. After examining the blood report,Dr. Arun Tiwari referred the patient to the Kurji Holy Family Hospital-original Opposite Party No. 1 on 10.11.1995. He was taken to the Hospitalat about 8.00 PM. The recorded history of the patient is as under:

“A 15 years old male patient is admitted in 3A-7 with the complaintsof fever, pain abdomen and hemorrhage from both eyes since 5days.”

3. The patient was operated upon on 11.11.1995 when the plateletscount was 35000 per cubic millimeter (cu.mm) at about 11.15 AM. Beforethe surgery, the patient was transfused with two units of blood and afterthe surgery another two units of blood were transfused. Since the patientwas bleeding and in spite of packing of leakages, the relatives of thepatient took discharge from the Kurji Holy Family Hospital at about 2.00PM on 13.11.1995. On the same date, the patient was admitted to PatnaMedical College and Hospital (PMCH) where the patient died on16.11.1995.

4. In consumer complaint under the Consumer Protection Act,1986[3], the Appellant produced an affidavit of Dr. Hare Ram Singh, thenposted in Jharkhand State Assembly at Russian Hostel, Dhurwa, P.S.Jaganathpur, District Ranchi. Dr. Hare Ram Singh opined that BleedingTime (BT) was 3’ 00" against normal value of 2-4 seconds and Clotting 1 NCDRC

2 SCDRC

3 1986 Act

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ATime (CT) was 5’ 00" against normal value of 3-6 seconds. The affidavitfurther states that there was a second test which shows that the plateletsdecreased excessively and there were very few plasma cells present.There was another test conducted before surgery, showing platelets countas 35000 per cu. mm. Dr. Hare Ram Singh was of the opinion that tooperate the patient with excessive low platelets count was the greatestBblunder and clear case of extreme negligence of doctors.5. The surgery was performed on 11.11.1995 at about 11.15 AM.The post-operative note of the operating team reads as under:

“Name(s) of Operation(s) : Exp.Lap. & Extraction of R.W.COperative Findings: Numerous R.W. in the small gut with yellowishcollection of fluid in the peritoneal cavity.

Procedure: The abdomen was opened by midline incision aboveand below the umbilicus. The peritoneal cavity was found tocontain yellowish fluid a small amount of which was collectedDand sent for c/s & biomedical examination. The small gut wasfound to contain many round worms. They were collected at oneplace and extracted out by making a nick in the gut. The woundwas closed in layers. A rubber corrugated drain was placed inthe peritoneal cavity. The abdomen was closed in one layer byEvieryl. skin was left open.”

6. Learned SCDRC found that the patient was haemophilic andnot peritonitis as diagnosed by the Respondents. However, since theplatelets count was 35000 per cu.mm against normal range of 1.5 lakhsto 4 lakhs per cu. mm, the Operating Surgeon was medically negligent inoperating patient when the platelets count was so low. Thus, the oppositeFparty was found negligent in carrying out surgery. The SCDRC awardeda sum of Rs. 4,00,000/- as compensation to be paid by the Kurji HolyFamily Hospital-Opposite Party No.1 and Rs. 2,00,000/- by the OppositeParty No.3-Operating Surgeon with 6 percent simple interest, apart fromRs. 32,000/- as expenditure incurred in medical treatment and the litigationGcosts of Rs. 25,000/-. In appeal by the Operating Surgeon, the amountof compensation awarded against Operating Surgeon was set aside byNCDRC.

7. The NCDRC though held the Opposite Party No. 3 wee bitnegligent but, it found that the amount of compensation awarded by theH

SCDRC and paid by the Kurji Holy Family Hospital is just a propercompensation. The Operating Surgeon was warned to be careful infuture.

8. The argument of the learned counsel for the Appellant is that itis a case of sheer medical negligence in operating the son of the Appellanteven though he had low platelet count as 35000 cu.mm as against normalplatelet count of 1.5 lakhs cu.mm to 4 lakhs cu. mm.

9. On the other hand, learned counsel for the Respondents arguedthat when the patient was admitted on 10.11.1995, there was haemorrhagein both eyes for the last five days. After admission as per the affidavit ofDr. Hare Ram Singh, the first BT and CT test were done at about 8.55pm (pg. 23 of paper book) which was quite low. The second test whichwas higher than the normal bleeding and clotting time was conducted at7.30 AM on 11.11.1995 (pg. 24 of paper book). Another test wasconducted at 9.00 AM on 11.11.1995 (pg. 25 of paper book). The lasttest before the surgery was conducted at 10.30 AM.

10. It is thus, contended that the patient was in difficult and criticalmedical condition. Therefore, the option with the Surgeon was to try tosave life by removing the round worms and transfuse blood to facilitaterecovery of the patient. It was bona fide decision taken by the OperatingSurgeon in the situation in which the patient was. Therefore, performingof surgery on 11.11.1995 at 11.15 AM is not a case of medical negligence.

11. It is contented that the affidavit of Dr. Hare Ram Singh is inrespect of reports immediately before the surgery but there is no reportin respect of the medical condition of the patient at the time of hisadmission to the Kurji Holy Family Hospital. Therefore, the affidavit ofDr. Hare Ram Singh is not the complete evidence as without reportingabout the condition of the patient at the time of admission, it is not possiblefor another doctor to report whether the action of Operating Surgeonwas negligent or not.

12. At the time of admission, the recorded history of the patient iscomplaint of pain in abdomen, fever and haemorrhage in both eyes forthe past five days. However, there is no evidence of critical condition ofthe patient to be operated upon even with low platelet count. The surgeryto remove round worms is not proved to be of immediate necessity tosave life of a patient who had critical platelet count. In the absence ofany evidence that the surgery was the only life saving option available at A

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Athat time, the action to operate upon the patient cannot be said to beprudent decision. This Court recently in Arun Kumar Manglik v.Chirayu Medical Health and Medicare Private Ltd.[4] held as under:- “53. In the practice of medicine, there could be varyingapproaches to treatment. There can be a genuine difference ofBopinion. However, while adopting a course of treatment, themedical professional must ensure that it is not unreasonable. Thethreshold to prove unreasonableness is set with due regard to therisks associated with medical treatment and the conditions underwhich medical professionals function. This is to avoid a situationwhere doctors resort to ‘defensive medicine’ to avoid claims ofCnegligence, often to the detriment of the patient. Hence, in aspecific case where unreasonableness in professional conduct hasbeen proven with regard to the circumstances of that case, aprofessional cannot escape liability for medical evidence merelyby relying on a body of professional opinion.”

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13. In fact, this Court in Kusum Sharma and Others v. BatraHospital and Medical Research Centre and Others[5], held that the“Doctors in complicated cases have to take chance even if the rate ofsurvival is low. The professional should be held liable for his act or omission,if negligent; is to make life safer and to eliminate the possibility ofErecurrence of negligence in future”. But, in the absence of any evidencethat the surgery was the only option even with low blood platelets, thefinding of negligence of the operating surgeon cannot be ignored.

14. Thus, we find that it is a case of unreasonable decision of theOperating Surgeon to operate and not a case of “bit negligent” so as toFabsolve the surgeon from the allegation of medical negligence.Consequently, the finding of NCDRC to that extent is set aside.

15. In respect of amount of compensation, the NCDRC held thatsum of Rs.4,00,000/- awarded by the SCDRC against the Hospital isjust compensation. The appellant relies upon judgment of this courtGreported as V. Krishnakumar v. State of Tamil Nadu and Others[6]toclaim enhanced amount of compensation. In the said case of medicalnegligence at the time of delivery of a baby girl born to middle classfamily, this Court held as under:- 4 2019 SCC OnLine SC 1975 (2010) 3 SCC 480H6 (2015) 9 SCC 388

“19. The principle of awarding compensation that can be safelyrelied on is restitutio in integrum. This principle has beenrecognised and relied on in Malay Kumar Ganguly v. SukumarMukherjee[7] and in Balram Prasad case[8], in the following passagefrom the latter: (Malay Kumar Ganguly case, SCC p. 282, para170)

“170. Indisputably, grant of compensation involving an accidentis within the realm of law of torts. It is based on the principleof restitutio in integrum. The said principle provides that aperson entitled to damages should, as nearly as possible, getthat sum of money which would put him in the same positionas he would have been if he had not sustained the wrong.

(See Livingstone v. Rawyards Coal Co[9])”

An application of this principle is that the aggrieved person shouldget that sum of money, which would put him in the same positionif he had not sustained the wrong. It must necessarily result incompensating the aggrieved person for the financial loss suffereddue to the event, the pain and suffering undergone and the liabilitythat he/she would have to incur due to the disability caused by theevent.”

16. In a Judgment of this Court reported as National InsuranceCompany Limited v. Pranay Sethi and Others[10], a Constitution Benchhas laid down parameters for the grant of compensation in respect ofclaims arising out of Motor Vehicular accidents as just compensationhas to be determined on the foundation of fairness, reasonableness andequitability on acceptable legal standard because such determination cannever be in arithmetical exactitude. The Court held as under:- “55. Section 168 of the Act deals with the concept of “justcompensation” and the same has to be determined on thefoundation of fairness, reasonableness and equitability onacceptable legal standard because such determination can neverbe in arithmetical exactitude. It can never be perfect. The aim isto achieve an acceptable degree of proximity to arithmeticalprecision on the basis of materials brought on record in an individual 7 (2009) 9 SCC 221

8 (2014) 1 SCC 384

9 (1880) LR 5 AC 25 (HL)

10 (2017) 16 SCC 680

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case. The conception of “just compensation” has to be viewedthrough the prism of fairness, reasonableness and non-violationof the principle of equitability. In a case of death, the legal heirs ofthe claimants cannot expect a windfall. Simultaneously, thecompensation granted cannot be an apology for compensation. Itcannot be a pittance. Though the discretion vested in the tribunalis quite wide, yet it is obligatory on the part of the tribunal to beguided by the expression, that is, “just compensation”. Thedetermination has to be on the foundation of evidence brought onrecord as regards the age and income of the deceased andthereafter the apposite multiplier to be applied. The formula relatingto multiplier has been clearly stated in Sarla Verma[11] and it hasbeen approved in Reshma Kumari[12]. The age and income, as statedearlier, have to be established by adducing evidence. The tribunaland the courts have to bear in mind that the basic principle lies inpragmatic computation which is in proximity to reality. It is a well-accepted norm that money cannot substitute a life lost but aneffort has to be made for grant of just compensation havinguniformity of approach. There has to be a balance between thetwo extremes, that is, a windfall and the pittance, a bonanza andthe modicum. In such an adjudication, the duty of the tribunal andthe courts is difficult and hence, an endeavour has been made bythis Court for standardisation which in its ambit includes additionof future prospects on the proven income at present. As far asfuture prospects are concerned, there has been standardisationkeeping in view the principle of certainty, stability and consistency.We approve the principle of “standardisation” so that a specificand certain multiplicand is determined for applying the multiplieron the basis of age.”

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17. Thus, the compensation has to be calculated on the basis oftwin criteria of age and income. But in the absence of income of thefather or family, there is no legally acceptable norm available on recordfor the enhancement of compensation.G

18. The SCDRC has awarded a sum Rs.4,00,000/- ascompensation payable by the Hospital and Rs.2,00,000/- by the OperatingSurgeon. The NCDRC found a sum of Rs. 4,00,000/- as just compensation H

11 (2009) 6 SCC 12112 (2013) 9 SCC 65

NAND KISHORE PRASAD v. DR. MOHIB HAMIDI & OTHERS[HEMANT GUPTA, J.]

and absolved the Operating Surgeon from any liability. When the SCDRChas awarded a sum of Rs. 6,00,000/- as compensation, the NCDRCshould not have interfered with the amount of compensation but couldapportion the amount of compensation payable by the Operating Surgeonto the Hospital as the liability of Hospital to pay the amount ofcompensation is vicarious as the death has occurred during the courseof employment of Operating Surgeon with the said Hospital.

19. Therefore, we find that the entire amount of Rs.6,00,000/- ispayable by the Hospital which would be just compensation in the factsand circumstances of the present case. The enhanced amount ofcompensation of Rs.2,00,000/- shall be paid by the Hospital along withinterest at the rate of 6% per annum from the date of the order passedby SCDRC on 12.11.2014.

20. Thus, the appeal is partly allowed in the manner mentionedabove.

Divya Pandey

Appeal partly allowed.

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