SHODA DEVI versus DDU/RIPON HOSPITAL SHIMLA AND ORS. on 7 March 2019

[2019] 2 S.C.R. 945

SHODA DEVI

v.

DDU/RIPON HOSPITAL SHIMLA AND ORS.

(Civil Appeal No. 2557 of 2019)

MARCH 07, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Consumer Protection Act, 1986:

Medical negligence – Compensation – Appellant’s case wasthat she was admitted in respondent-Hospital on account of abdomenpain and menstrual problem where she was examined by respondentno.2 and diagnosed with having fibroids and endometrialhyperplasia and had to undergo minor operation – For the saidpurpose, respondent no.3-para-medico administered intravenousinjection of Phenergan directly by a syringe in her right arm –Appellant continuously suffered excruciating pain during the entiresurgical procedure and despite bringing the fact to the knowledgeof respondents-doctors during and after the procedure, no measureswere taken to reduce the discomfort suffered by her – Due to thecomplications that arose in regard to arm of the appellant whichcould not be handled by the team of doctors at respondent-Hospital,she was shifted to another hospital in a taxi arranged by her husbandwhere she was diagnosed with acute arterial occlusion with ischemiaof limb caused by intra arterial injection which ultimately resultedin amputation of her right arm above the elbow – Claim petition byappellant – State Commission rejected the complaint but directedthe respondent to make ex gratia payment of Rs.2,93,526/- to theappellant – National Commission held that it was a clear case ofmedical negligence and awarded compensation of Rs.2 lakh –Appeal for enhancement of compensation amount – Held: Appellantwas 45 years of age when her right arm was amputated – Shebelonged to a very poor and rural background and was coveredunder Integrated Rural Development Programme – NationalCommission, even after finding it to be a case of medical negligence

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Aquantified the amount of compensation only at Rs. 2,00,000/- –When the appellant is shown to be a poor lady from ruralbackground, her contribution in ensuring the family meeting bothends also deserved due consideration – With her disablement andreduced contribution, the amount of compensation ought to be ofBsuch level as to provide relief in reasonable monetary terms to theappellant and to her family – Appellant is allowed Rs. 10,00,000/-towards compensation, over and above the amount awarded by theState Commission and the National Commission.

Consumer Protection Act, 1986:

CMedical negligence – Compensation – Determiningfactors – Ordinarily, the general damages towards pain and sufferingas also loss of amenities of life deserve to be considered uniformlyfor the human beings and the award of compensation cannot gorestrictive when the victim is coming from a poor and ruralDbackground; rather, in a given case like that of the appellant, sucha background of the victim may guide the adjudicatory processtowards reasonably higher amount of compensation after havingregard to all the attending circumstances.

Allowing the appeal, the CourtE

HELD: 1. The State Commission though recorded that withthe onset of gangrene, amputation of the right arm of the appellantwas carried out with a view to save her life but dismissed thecomplaint on rather untenable grounds like that the surgerywould not have been successful if sedation was not complete andFproper; and that the appellant was referred to another hospitalfor more effective treatment after all the efforts at the respondenthospital were exhausted. In appeal, the National Commissionminutely examined the evidence on record and concluded on themedical negligence of respondents for several counts such as:Gnot providing or making arrangements for an ambulance for propershifting of the appellant; not attending on the appellant at thefirst instance on her complaint about unbearable pain and thedelay having aggravated the ischemic process; and though cannula

was not used as it was a one-time prick for the procedure, yet itshould have been used to prevent mishaps. There is no infirmityin the findings of the National Commission, in so far the issue ofmedical negligence is concerned. However, after having recordedclear findings on medical negligence and after taking note of thedirections of the State Commission regarding ex gratia payment,the National Commission considered it proper to award to theappellant an additional compensation to the tune ofRs. 2,00,000/-. The requirement in such cases of disablementdue to medical negligence is of awarding just and reasonablecompensation to the victim, while keeping in view thepecuniary damages as also the non-pecuniary damages likepain and suffering and loss of amenities of life. [Paras 14, 16][953-C-G; 955-A]

Nizam’s Institute of Medical Sciences v. Prashanth S.Dhananka and Ors. (2009) 6 SCC 1 : [2009] 9 SCR313 ; Alfred Benddict v. Manipal Hospital: (2015) 11SCC 423 – relied on

2. Appellant was 45 years of age when she suffered themedical negligence and consequences thereof, leading toamputation of her right arm. She came from a very poor andrural background and is covered under Integrated RuralDevelopment Programme. The National Commission, even afterappreciating the troubles and trauma as also disablement anddisadvantage suffered by the appellant, had been too restrictivein award of compensation. [Paras 16.1, 16.2][955-B-E]

3. Granting of reasonably higher amount of compensationin the present case appears necessary to serve dual purposes:one, to provide some succour and support to the appellant againstthe hardship and disadvantage due to amputation of right arm;and second, to send the message to the professionals that theirresponsiveness and diligence has to be equi-balanced for all theirconsumers and all the human beings deserve to be treated withequal respect and sensitivity. When the appellant was writhing in AB

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Apain, she was not immediately attended at and was snubbed withthe retort that ‘the people from hilly areas make unnecessarynoise’. Such remarks, obviously, added insult to the injury andwere least expected of the professionals on public duties. Apartfrom that, when the appellant is shown to be a poor lady fromBrural background, her contribution in ensuring the family meetingboth ends also deserves due consideration. With her disablementand reduced contribution, the amount of compensation ought tobe of such level as to provide relief in reasonable monetary termsto the appellant and to her family. The appellant deserves to beallowed further an amount of Rs. 10,00,000/- towardsCcompensation, over and above the amount awarded by the StateCommission and the National Commission. The respondents shallmake the requisite payment within 3 months from today failingwhich, the enhanced amount of compensation shall carry interest@ 6% p.a. from the date of filing of the complaint before theDState Commission. [Paras 16.3-18][955-F-H; 956-A-E]

Nizam’s Institute of Medical Sciences v. Prashanth S.Dhananka and Ors. (2009) 6 SCC 1 : [2009] 9 SCR313 ; Alfred Benddict v. Manipal Hospital (2015) 11SCC 423 – relied onE

Case Law Reference

FCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2557of 2019.

From the Judgment and Order dated 23.02.2018 of the NationalConsumer Disputes Redressal Commission, New Delhi in First AppealNo. 348 of 2009.

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Aftab Ali Khan, Syed Mohammed Aatif, M. Z. Chaudhary,Rahat Ali Chaudhary, Ms. Heena Khan, Ali S. Farooqi, Syed ImtiyazAli, Advs. for the Appellant.

Abhinav Mukerji, Mrs. Bihu Sharma and Ms. Pratishtha Vij, Advs.,Hfor the Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J. 1. Leave granted.

2. This appeal by special leave is directed against the judgmentand order dated 23.02.2018, as passed in First Appeal No. 348 of 2009,whereby the National Consumer Disputes Redressal Commission(‘National Commission’) has modified the order dated 03.08.2009, aspassed by the Himachal Pradesh State Consumer Disputes RedressalCommission (‘State Commission’) in Complaint Case No. 11 of 2006;and while holding that the State Commission had wrongly exoneratedthe respondents for medical negligence and deficiency in service, hasawarded compensation to the complainant-appellant in the sum of Rs.2,00,000/- in addition to the ex gratia amount of Rs. 2,93,526/- allowedby the State Commission. In the present appeal, the complainant-appellantseeks enhancement of the amount of compensation with reference tothe disablement and loss suffered by her due to the negligence of therespondents, which led to the amputation of her right arm above theelbow.

3. We may observe at the outset that the impugned judgment andorder dated 23.02.2018, as passed by the National Commission in FirstAppeal No. 348 of 2009, holding the respondents liable for compensationon account of medical negligence, was sought to be questioned by theMedical Officer concerned (respondent No. 2 herein) by way of a Petitionfor Special Leave to Appeal (C) No. 15888 of 2018 that was consideredand dismissed by this Court on 11.07.2018.

4. Having regard to the subject matter of this appeal, thebackground aspects, so far relevant for the present purpose, could benoticed, in brief, as follows:

4.1 The appellant, who had been suffering with abdomen painand menstrual problems, approached the respondent No.1 Deen DayalUpadhyay Hospital - a government hospital at Shimla (‘DDU Hospital’)where she was examined by the respondent No. 2 on 10.07.2006 andwas diagnosed with having fibroid and endometrial hyperplasia. On18.07.2006, after finding that she had no relief from medicines, theappellant was advised to undergo a minor operation viz., FractionalCurettage (D & C).

4.2. On 19.07.2006, for the purpose of the operation aforesaid,the respondent No. 3, a para-medico, administered intravenous injection B

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Aof Phenergan and Fortwin directly by a syringe in the right arm of theappellant. The case of the appellant has been that she continuouslysuffered excruciating pain during the entire surgical procedure and despitebringing the fact to the knowledge of respondent Nos. 2 and 3 duringand after the procedure, no measures were taken to redress and reducethe discomfort suffered by her.B

4.3. Due to the complications that had arisen in regard to the armof the appellant, which could not be handled by the team of doctors atDDU Hospital, she was shifted to Indira Gandhi Medical College andHospital, Shimla (‘IGMCH’) in a taxi arranged by her husband. InIGMCH, she was administered Brachial Plexus Block treatmentCimmediately and, on being examined by CW-2, she was diagnosed with“acute arterial occlusion with ischemia of limb, caused by intra-arterial injection”, which ultimately resulted in CW-1 amputating herright arm above the elbow on 22.07.2006.

5. Having thus suffered the loss of limb, the appellant, apart fromDfiling FIR under Section 338 IPC on 27.07.2006 at Police Station, Sadar,Shimla, preferred the consumer complaint on 28.09.2006, seekingcompensation with the submissions, inter alia, that after several hoursof complaints, the respondent No. 2 attended on her with a team ofdoctors consisting of general physician and gynaecologist in a ratherEcasual manner; that no proper service was provided to her; that she wasshifted to IGMCH only in a taxi arranged by her husband; and that shesuffered amputation only due to the medical negligence of the medicosand para-medicos of the respondent No. 1.

6. The respondents filed their separate counter affidavits inFopposition to the complaint so made by the appellant. The sum andsubstance of such counter affidavits had been that the respondents hadprovided services with utmost caution and care; that the appellant wasto undergo a minor surgery viz., Fractional Curettage wherefore, thestaff nurse administered an intravenous injection prior to the surgery;that the entire procedure lasted for about 5 minutes and the appellantGcooperated during the procedure, which was conclusive of the fact thatthe intravenous injection was administered properly; that after beingshifted to the ward, when the appellant complained about severe pain inthe right forearm, she was attended at immediately but when onset oflimb ischemia was confirmed, she was referred to IGMCH for furtherHtreatment as DDU Hospital was not equipped with CTVS Department; that on reaching IGMCH, immediate treatment was administered to theappellant but, despite all possible treatment, her right arm had to beamputated as gangrene had started to set in. Thus, the respondentsasserted that the appellant was provided immediate and necessarytreatment; and that there was no negligence and/or deficiency in theirservice.

7. The appellant examined Dr. Rajneesh Pathania, Professor &Head, CTVS, IGMCH, Shimla as CW-1 who produced the case historyof the appellant and pointed out that she had arrived at the hospital inemergency with a history of severe pain in the right forearm and shewas diagnosed with acute limb ischemia and treatment was given onthese lines; but with the onset of gangrene, the right arm was amputatedunder his supervision to save the life of appellant. CW-1 further statedthat the reaction to an injection administered could take place irrespectiveof the route of administration; that severity of limb ischemia is more ifthe whole drug is given intra arterially and occurs one in a million; andthat preventive efforts should have been taken when the complaint ofpain was made at the first instance. He further stated that the treatmentadministered at DDU hospital was the one accepted as an initial line oftreatment for management of pain in similar situations. Dr. R.G. NegiCW-2, who was the first doctor to examine the appellant in IGMCH,also made the statement in concurrence with that of CW-1. The appellantgot herself examined where she denied all the suggestions put to her bythe respondent but admitted that she did not complain about any painwhen she was shifted from the operation theatre. It was pointed out thatthe medical board had assessed her permanent disablement at 80%.

8. During the course of hearing of the matter, the State Commissionmade an order on 16.09.2008, expecting the Deputy Commissioner, Shimlaand the Secretary Health Department to explore the possibility ofextending a reasonable ex gratia payment to the appellant, looking to thenature of disablement suffered by her and her poor and rural background.In response thereto, the Senior Medical Superintendent of DDU Hospitalstated by way of affidavit that a sum of Rs. 2,93,526/- was assessed inthis regard; and if accepted by the appellant, the same may be conveyedto the Director Health Services. Thereafter, the State Commissionexamined the matter on merits; and, with reference to the evidence ofthe doctors as also that of the appellant, held that no case of medicalnegligence was proved. Hence, the State Commission rejected thecomplaint. But, in view of the order previously passed on 16.09.2008and response thereto by the Government, the State Commission directed A

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Athe respondent No. 1 to make ex gratia payment to the tune ofRs. 2,93,526/- to the appellant, if she was willing to accept the same.

9. In appeal against the order of the State Commission, theappellant relied on the principle of res ipsa loquitor and also contendedthat the State Commission overlooked the material facts, the evidenceBof experts, the delay caused at each and every stage, and the continuoussuffering that she had to undergo from the time of minor operation, tothe amputation of her right arm and thereafter as well.

10. The National Commission meticulously examined the evidenceon record and particularly, the evidence of CW-1 Dr. Rajneesh PathaniaCand CW-2 Dr. R.J. Negi as regards the cause of onset of gangrene onthe appellant’s right arm as also the preventive measures which couldhave been, but were not, taken by the respondents. While holding it to bea clear case of medical negligence, the National Commissionallowed the appeal but enhanced the compensation only to the tune ofRs. 2,00,000/-.

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11. Seeking enhancement over the amount so awarded, learnedcounsel for the appellant has relied on the decision in Nizam’s Instituteof Medical Sciences v. Prashanth S. Dhananka and Ors. : 2009 (6)SCC 1 where, on the facts and in the circumstances of the case, thisCourt had enhanced the compensation on the ground of medicalEnegligence. Learned counsel has strenuously argued that despite comingto the conclusion that the present one is a case of medical negligence,the National Commission has awarded a meagre sum of Rs. 2,00,000/-towards compensation without considering the immense loss sufferedby the appellant, a person coming from poor and rural background, whoFwas 45 years of age at the time of such amputation. According to thelearned counsel, the award of compensation deserves to be re-evaluatedand enhanced to minimum Rs. 16,20,000/- together with interest @ 6%p.a. from the date of filing of complaint.

12. Per contra, learned counsel for respondent No.1 has attemptedGto submit that the National Commission has awarded Rs. 2,00,000/- tothe appellant over and above the ex gratia amount allowed by the StateCommission and in the given circumstances, the appellant is not entitledto make a claim for any further enhancement of compensation. Learnedcounsel has refuted the contentions pertaining to medical negligenceand submitted that there had not been any fault or negligence on part of H

the hospital staff i.e., doctors and nurses; and that the happenings due tounforeseeable and unpredictable rarest of rare complications cannot beconsidered to be of medical negligence. The learned counsel would submitthat the respondents have adhered to their medical duties in treating andattending to the appellant’s needs to the best that could be provided.

13. Having heard learned counsel for the parties and havingexamined the record, we are clearly of the view of that while the findingson medical negligence on the part of the respondents do not call for anyinterference, a clear case for enhancement of the amount ofcompensation is made out.

14. On perusing the order of the State Commission, it is but apparentthat the State Commission though recorded that with the onset ofgangrene, amputation of the right arm of the appellant was carried outwith a view to save her life but dismissed the complaint on rather untenablegrounds like that the surgery would not have been successful if sedationwas not complete and proper; and that the appellant was referred toanother hospital for more effective treatment after all the efforts at therespondent hospital were exhausted. In appeal, the National Commissionminutely examined the evidence on record and concluded on the medicalnegligence of respondents for several counts such as: not providing ormaking arrangements for an ambulance for proper shifting of theappellant; not attending on the appellant at the first instance on hercomplaint about unbearable pain and the delay having aggravated theischemic process; and though cannula was not used as it was a one-timeprick for the procedure, yet it should have been used to prevent mishaps.We find no infirmity in the findings of the National Commission, in so farthe issue of medical negligence is concerned. However, after havingrecorded clear findings on medical negligence and after taking note ofthe aforementioned directions of the State Commission regardingex gratia payment, the National Commission considered it proper toaward to the appellant an additional compensation to the tune ofRs. 2,00,000/-. The question is: as to whether the amount so awarded tothe appellant is that of just and reasonable compensation?

15. As regards the quantum of compensation in such cases, it isnoticed that in the case of Alfred Benddict v. Manipal Hospital: (2015)11 SCC 423, where, for the reason of medical negligence, a 2-year-oldgirl developed gangrene in right arm which resulted in its amputation, A

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Athis Court, considering the age of the child and her life-long suffering, beit her education or marriage prospects, awarded a lump sum of Rs.20,00,000/- as compensation. Likewise, in the case of Nizam’s Instituteof Medical Sciences (supra), where the complainant had sufferedparaplegia as an outcome of the surgery and was thereafter confined toa wheelchair, this Court pointed out some of the factors that weigh inBwhile quantifying compensation in such cases. This Court, inter alia,observed as under:- “90. At the same time we often find that a person injured inan accident leaves his family in greater distress, vis-à-vis afamily in a case of death. In the latter case, the initial shockgives way to a feeling of resignation and acceptance, and intime, compels the family to move on. The case of an injuredand disabled person is, however, more pitiable and the feelingof hurt, helplessness, despair and often destitution enuresevery day. The support that is needed by a severelyhandicapped person comes at an enormous price, physical,financial and emotional, not only on the victim but even moreso on his family and attendants and the stress saps their energyand destroys their equanimity.

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91. We can also visualize the anxiety of the complainant andhis parents for the future after the latter, as must all of us,inevitably fade away. We, have, therefore computed thecompensation keeping in mind that his brilliant career hasbeen cut short and there is, as of now, no possibility ofimprovement in his condition, the compensation will ensure asteady and reasonable income to him for a time when he isunable to earn for himself.

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92. Mr. Tandale, the learned counsel for the respondent has,further submitted that the proper method for determiningcompensation would be the multiplier method. We findabsolutely no merit in this plea. The kind of damage that thecomplainant has suffered, the expenditure that he has incurredand is likely to incur in the future and the possibility that hisrise in his chosen field would now be restricted, are matterswhich cannot be taken care of under the multiplier method.”

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16. In the ultimate analysis, the requirement in such cases ofdisablement due to medical negligence is of awarding just and reasonablecompensation to the victim, while keeping in view the pecuniary damagesas also the non-pecuniary damages like pain and suffering and loss ofamenities of life.

16.1 On the facts that have come on record, it appears that theappellant was 45 years of age when she suffered the medical negligenceand consequences thereof, leading to amputation of her right arm. It isalso apparent that the appellant comes from a very poor and ruralbackground and is covered under Integrated Rural DevelopmentProgramme. The National Commission, even after finding this one to bea case of medical negligence leading to amputation of right arm, quantifiedthe amount of compensation only at Rs. 2,00,000/-. Even if the ex gratiaproposed before the State Commission and the amount awarded by theNational Commission are taken together, the total compensation to theappellant comes to Rs. 4,93,526/- only.

16.2 We are constrained to observe that the National Commission,even after appreciating the troubles and trauma as also disablement anddisadvantage suffered by the appellant, had been too restrictive in awardof compensation. Ordinarily, the general damages towards pain andsuffering as also loss of amenities of life deserve to be considereduniformly for the human beings and the award of compensation cannotgo restrictive when the victim is coming from a poor and rural background;rather, in a given case like that of the appellant, such a background ofthe victim may guide the adjudicatory process towards reasonably higheramount of compensation (of course, after having regard to all theattending circumstances).

16.3 Such granting of reasonability higher amount of compensationin the present case appears necessary to serve dual purposes: one, toprovide some succour and support to the appellant against the hardshipand disadvantage due to amputation of right arm; and second, to sendthe message to the professionals that their responsiveness and diligencehas to be equi-balanced for all their consumers and all the human beingsdeserve to be treated with equal respect and sensitivity. We are impelledto make these observations in the context of an uncomfortable factindicated on record that when the appellant was writhing in pain, shewas not immediately attended at and was snubbed with the retort that A

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A‘the people from hilly areas make unnecessary noise’. Such remarks,obviously, added insult to the injury and were least expected of theprofessionals on public duties.

16.4. Apart from the above, when the appellant is shown to be apoor lady from rural background, her contribution in ensuring the familyBmeeting both ends also deserves due consideration. With her disablementand reduced contribution, the amount of compensation ought to be ofsuch level as to provide relief in reasonable monetary terms to theappellant and to her family.

17. For what has been discussed and observed hereinabove andCin the given set of facts and circumstances, we are of the view that theappellant deserves to be allowed further an amount of Rs. 10,00,000/-towards compensation, over and above the amount awarded by the StateCommission and the National Commission. Having regard to the quantumof enhancement being allowed herein, it is also considered proper togrant 3 months’ time to the respondents to make the requisite paymentDand else, to bear the burden of interest.

18. Accordingly, this appeal is allowed. The appellant is awardedfurther an amount of Rs. 10,00,000/- (Rupees ten lakhs) towardscompensation, over and above the amount awarded by the StateCommission and the National Commission. The respondents shall makeEthe requisite payment within 3 months from today failing which, theenhanced amount of compensation shall carry interest @ 6% p.a. fromthe date of filing of the complaint before the State Commission.

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Devika Gujral

Appeal allowed.

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