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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2867 OF 2012
Dr. Balram Praa! " A##$lla%&
V.
Dr. '(%al Sa)a * Or. " R$#+%!$%&
,ITH
CIVIL APPEAL N+.6-2 +. 2012
A!/a%0$! M$!10ar$ * R$$ar0)
I%&1&(&$ L&!. " A##$lla%&
V.
Dr. '(%al Sa)a * Or. " R$#+%!$%&
,ITH
CIVIL APPEAL N+.2866 +. 2012
Dr. '(%al Sa)a "A##$lla%&
V.
Dr. S(2(mar M(2)$r3$$ * Or. " R$#+%!$%&
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,ITH
CIVIL APPEAL N+.741 +. 2012
Dr. Ba1!5a%a&) Hal!ar " A##$lla%&

V.
Dr. '(%al Sa)a * Or. " R$#+%!$%&
AND
CIVIL APPEAL N+.868 +. 2012

Dr. S(2(mar M(2)$r3$$ " A##$lla%&
V.
Dr. '(%al Sa)a * Or. " R$#+%!$%&
J U D 7 M E N T
V. 7+#ala 7+8!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/0,
1+estionin2 the !orre!tness of the i'p+2ned
3+d2'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/0 in 4ri2inal 5etition No.260 of 1""".
2.The appellantdo!tors are a22rieved by the
1+ant+' of !o'pensation a7arded by the National
Co''ission and the liability fastened +pon the'
for the ne2li2en!e on their part and have prayed
to set aside the sa'e by allo7in2 their appeals.
%n so far as the appellantA#$% &ospital is
!on!erned, it has also 1+estioned the 1+ant+' of
!o'pensation a7arded and has prayed to red+!e the
sa'e by a7ardin2 3+st and reasonable !o'pensation
by 'odifyin2 the 3+d2'ent by allo7in2 its appeal.
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,o far as the !lai'ant is !on!erned, he is
a22rieved by the said 3+d2'ent and the !o'pensation
a7arded 7hi!h, a!!ordin2 to hi', is inade1+ate, as
the sa'e is !ontrary to the ad'itted fa!ts and la7
laid do7n by this Co+rt in !atena of !ases
re2ardin2 a7ardin2 of !o'pensation in relation to
the proved 'edi!al ne2li2en!e for the death of his
7ife An+radha ,aha -hereinafter referred to as the
.de!eased/0.
3.The brief relevant fa!ts and the 2ro+nds +r2ed on
behalf of the appellantdo!tors, A#$% &ospital
and the !lai'ant in seriati' are adverted to in
this !o''on 3+d2'ent for the p+rpose of e8a'inin2
the !orre!tness of their respe!tive le2al
!ontentions +r2ed in their respe!tive appeals
7ith a vie7 to pass !o''on 3+d2'ent and a7ard.
6.9rief ne!essary and relevant fa!ts of the !ase
are stated here+nder:
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The !lai'ant filed 4ri2inal 5etition No. 260 of
1""" on 0".03.1""" before the National Co''ission
!lai'in2 !o'pensation for $s.77,07,65,000; and
later the sa'e 7as a'ended by !lai'in2 another s+'
of $s.20,00,00,000;. After the !ase of Mala5
'(mar 7a%:(l5 <s. Dr. S(2(mar M(2)$r3$$
1
7as
re'anded by this Co+rt to the National Co''ission
to a7ard 3+st and reasonable !o'pensation to the
!lai'ant by ans7erin2 the points fra'ed in the said
!ase, the National Co''ission held the do!tors and
the A#$% &ospital ne2li2ent in treatin2 the 7ife of
the !lai'ant on a!!o+nt of 7hi!h she died.
Therefore, this Co+rt dire!ted the National
Co''ission to deter'ine 3+st and reasonable
!o'pensation payable to the !lai'ant. &o7ever, the
!lai'ant, the appellant&ospital and the do!tors
7ere a22rieved by the a'o+nt of !o'pensation
a7arded by the National Co''ission and also the
'anner in 7hi!h liability 7as apportioned a'on2st
1
(2009) 9 SCC 221
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ea!h of the'. =hile the !lai'ant 7as a22rieved by
the inade1+ate a'o+nt of !o'pensation, the
appellantdo!tors and the &ospital fo+nd the a'o+nt
to be e8!essive and too harsh. They f+rther !lai'ed
that the proportion of liability as!ertained on
ea!h of the' is +nreasonable. ,in!e, the appellant
&ospital and the do!tors raised si'ilar iss+es
before the Co+rt> 7e intend to prod+!e their
!ontentions in brief as +nder:
O% :ra%&1%: &)$ ;(a%&(m +. 0+m#$%a&1+% <a$! +%
&)$ 1%0+m$ +. &)$ !$0$a$!=
5.%t is the !lai' of the learned !o+nsel on behalf
of the appellantdo!tors and the &ospital that
there is no pleadin2 in the petition of the
!lai'ant that the de!eased had a stable 3ob or a
stable in!o'e, e8!ept in para2raph 2A of the
petition 7hi!h states that the de!eased 7as a
5ost?rad+ate st+dent and she had s+b'itted her
thesis. The only !ertifi!ate prod+!ed by the
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!lai'ant sho7s that she 7as 3+st a 2rad+ate in
Arts -@n2lish0. A+rther, it is +r2ed by the
learned !o+nsel that the do!+'ent prod+!ed by the
!lai'ant a !o'p+ter 2enerated sheet, does not
e8plain for 7hat 7orB the re'+neration, if at all
7as re!eived by the de!eased. Also, 7hether the
sa'e 7as a oneti'e pay'ent of stipend or pay'ent
to7ards vol+ntary 7orB, is not e8plained by the
!lai'ant. A+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 7hat a!!o+nt the said
pay'ent 7as re!eived by the de!eased and 7hether
she has re!eived it as a Child 5sy!holo2ist as
!lai'ed by the !lai'ant or other7ise.
6.%t is also the !ase of the appellantdo!tors and
the &ospital that the !lai'ant had not led any
oral eviden!e 7ith re2ard to the in!o'e of the
de!eased and f+rther he has not e8plained 7hy
3+st a sin2le do!+'ent dis!loses the pay'ent 'ade
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so'eti'e in the 'onth of C+ne 1"88 in s+pport of
the in!o'e of the de!eased 7hen 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 +r2ed
that the said do!+'ent is a va2+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 a7ard the !o'pensation as has been
a7arded in the i'p+2ned 3+d2'ent and order. Aro'
a per+sal of the said do!+'ent, it !o+ld be
as!ertained that it sho7s 3+st one ti'e pay'ent
re!eived for so'e odd 3obs. Therefore, it is
!ontended by the appellantdo!tors and the
&ospital that the !lai'ant has not been able to
dis!har2e his on+s by add+!in2 any positive
eviden!e in this re2ard 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 7as
D30,000 per ann+' is not s+bstantiated by
prod+!in2 !o2ent eviden!e. No appoint'ent letter
of the de!eased to sho7 that she 7as e'ployed in
any or2aniEation in 7hatsoever !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 7as en2a2ed on any per'anent 7orB. No
%n!o'e Ta8 $et+rn has been prod+!ed by the
!lai'ant to sho7 that she had been payin2 ta8 or
had any in!o'e in F.,.A.
8.%t is f+rther s+b'itted that even if it is
ass+'ed that the ann+al in!o'e of the de!eased
7as D30,000 per ann+', apart fro' ded+!tion on
a!!o+nt of ta8, it is also essential for the
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National Co''ission to as!ertain the personal
livin2 e8penses of the de!eased 7hi!h 7as
re1+ired to be ded+!ted o+t of the ann+al in!o'e
to deter'ine the !o'pensation payable to the
!lai'ant. The National Co''ission 7as re1+ired
to first as!ertain the style of livin2 of the
de!eased 7hether it 7as ,partan or 9ohe'ian to
arrive the in!o'e fi2+re of D30,000 per ann+'.
%n %ndia, on a!!o+nt of style and standard of
livin2 of a person, one(third of the 2ross in!o'e
is re1+ired to be ded+!ted o+t of the ann+al
in!o'e as laid do7n in the de!ision of this Co+rt
in the !ase of Or1$%&al I%(ra%0$ C+m#a%5 L&!.
<s. Ja)(<$% * Or
2
.

%t is f+rther !ontended by the learned !o+nsel
for the appellantdo!tors and the &ospital that no
yardsti!B is available abo+t the e8pendit+re of the
de!eased in the F.,.A. The !lai'ant has not add+!ed
any eviden!e in this re2ard. The eviden!e 2iven by
2
(2008) 4 SCC 162
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the so!alled e8pert, 5rof. Cohn A. 9+rBe Cr. also
does not say anythin2 on this s!ore.
@ven if it is ass+'ed that the ann+al in!o'e of
the de!eased 7as D30,000 per ann+' for 7hi!h there
is no eviden!e, 25G thereof is re1+ired to be
ded+!ted to7ards ta8. The ded+!tion of ta8 is '+!h
'ore as is apparent fro' the !ase reported in
U%1&$! I%!1a I%(ra%0$ C+. L&!. * O&)$r <s.
Pa&r101a J$a% Ma)a3a% * Or
4
. %n fa!t, the
!lai'ant has neither add+!ed any eviden!e in this
re2ard nor has he prod+!ed the relevant stat+te
fro' 7hi!h the per!enta2e of ta8 ded+!tion !an be
as!ertained.
The !lai'ant 7as last e8a'ined by video
!onferen!in2 !ond+!ted +nder the s+pervision of
C+sti!e HoBesh7ar 5rasad -retired C+d2e of )elhi
&i2h Co+rt0 as lo!al Co''issioner. The A#$%
3
(2002) 6 SCC 281
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&ospitalappellant/s 7itness #r. ,atyabrata
Fpadhyay 7as !rosse8a'ined by the !lai'ant.
". The !lai'ant filed #.A. No.1327 of 200" before
the National Co''ission after re'and order 7as
passed by this Co+rt in the !ase of Mala5 '(mar
7a%:(l5 -s+pra0. The !lai'ant no7 !lai'ed
enhan!e'ent of !o'pensation at $s.78,16,00,000;
+nder the heads of pe!+niary da'a2es and non
pe!+niary da'a2es.
The prayer 'ade in the appli!ation 7as to ad'it
the !lai' for !o'pensation alon2 7ith s+pportin2
do!+'ents in!l+din2 the opinions of the forei2n
e8perts and f+rther prayed for iss+in2 dire!tion to
the appellantdo!tors and the &ospital to arran2e
for !rosse8a'ination of the forei2n e8perts, if
they 7ish, thro+2h video !onferen!in2 at their
e8penses as dire!ted by this Co+rt in the re'and
order in Mala5 '(mar 7a%:(l5> !ase -s+pra0 and for
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fi8in2 the 'atter for a final hearin2 as soon as
possible on a fir' and fi8ed date as the !lai'ant
hi'self 7ant to ar2+e his petition as 7as done
before this Co+rt, as he bein2 the per'anent
resident of F.,.A.
10. The learned senior !o+nsel appearin2 for the
!lai'ant on ".2.2010 prayed for 7ithdra7al of the
appli!ation statin2 that he 7o+ld file another
appropriate appli!ation. Thereafter, on 22.2.2010
the !lai'ant filed #.A. No.200 of 2010 seeBin2
dire!tion to the National Co''ission to per'it hi'
to prod+!e affidavit of fo+r forei2n e8perts and
their reports. The National Co''ission dis'issed
the sa'e vide order dated 26.6.2010 a2ainst 7hi!h
spe!ial leave petition No.15070;2010 7as filed
before this Co+rt 7hi!h 7as 7ithdra7n later on.
A2ain, the !lai'ant filed #.A. No.5"6 of 2010
before the National Co''ission for e8a'ination of
fo+r forei2n e8perts to s+bstantiate his !lai'
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thro+2h video !onferen!in2 at the e8pense 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 e8a'inin2 forei2n
e8perts. A2ainst this order, the !lai'ant preferred
,H5 -C0 No.3173 of 2011 before this Co+rt prayin2
for per'ission to e8a'ine t7o forei2n e8perts,
na'ely, 5rof. Cohn A. 9+rBe Cr. and 5rof. Cohn
9ro+2hton thro+2h video !onferen!in2 and he
+ndertooB to bear the e8penses for s+!h
e8a'ination. The !lai'ant had 2iven +p e8a'ination
of other t7o forei2n e8perts, na'ely, ). Coe
?riffith and #s. An2ela &ill. 5rof. Cohn A. 9+rBe
Cr. 7as e8a'ined on 26.6.2011 as an @!ono'i!s
@8pert 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" 7herein
he has stated that if the de!eased 7o+ld have been
e'ployed thro+2h the a2e 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 7as an
additional a'o+nt of D1,258,621.00. The said
7itness 7as !ross e8a'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 follo7in2 1+estions and ans7ers eli!ited
fro' the above @!ono'i!s @8pert 7itness, 7hi!h are
e8tra!ted here+nder:
IJ.16. Can yo+ tell 'e 7hat 7as the 7a2es of
An+radha in 1""7K
A.16. #ay % !he!B 'y file -per'itted0. %
don/t Bno7.
J.17. Are yo+ a7are 7hether An+radha 7as an
in!o'e ta8 payee or notK
A.17. An+ and her h+sband 7ere filin2 3oint
ret+rn.
J.18. )id An+ have any individ+al in!o'eK
A.18. % don/t Bno7.
J.1". )id *+nal ,aha provide yo+ the earnin2
state'ent of An+radha ,aha, 7herein her 2ross
'onthly pay 7as sho7n 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 2ivin2 yo+r
opinionK
A.21. None.
J.22. =hether An+ 7as 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
stron2 relian!e +pon the eviden!e of the @!ono'i!s
@8pert 5rof. Cohn A. 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 7o+ld have lived +p to the a2e of 70
years as he had also e8a'ined 5rof. Cohn 9ro+2hton
in 3+stifi!ation of his !lai'.
The learned !o+nsel for the appellantdo!tors
!ontended that 5rof. Cohn A. 9+rBe, 7ho 7as
e8a'ined thro+2h video !onferen!in2 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 7itho+t any s+pportin2
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'aterial. The said forei2n e8pert 7itness did not
Bno7 7hether the de!eased had any individ+al
in!o'e. &e did not Bno7 abo+t the earnin2 state'ent
of the de!eased prod+!ed by the !lai'ant. &e has
also stated that the de!eased 7as 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 earnin2 state'ent iss+ed by
Catholi! &o'e 9+rea+ statin2 the in!o'e of the
de!eased at D1060.72 for the period endin2 15
th
Can+ary, 1""8 !annot be relied +pon for the
follo7in2 reasons :
-a0 The earnin2 state'ent 7as not proved in
a!!ordan!e 7ith la7 sin!e only the
affidavit of !lai'ant 7as e8hibited and
not the do!+'ents before C+sti!e
HoBesh7ar 5rasad -$etired0 i.e. the
Ho!al Co''issioner on 5.12.2003 d+rin2
the !rosse8a'ination.

-b0 There is nothin2 to sho7 that An+radha
,aha 7as +nder e'ploy'ent at Catholi!
&o'e 9+rea+.
-!0 Hetter of appoint'ent has not been
anne8ed.
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-d0 Aederal Ta8 re!ord has not been
prod+!ed. The @!ono'i!s e8pert has
stated that An+radha and the !lai'ant
7ere filin2 3oint ta8 ret+rn.
-e0 %t does not sho7 7eeBly in!o'e of the
de!eased as has been treated by NC)$C.
-f0 Nat+re of appoint'ent, even if pres+'ed,
has not been stated, i.e., 7hether it
7as te'porary or per'anent, !ontra!t+al
or !as+al and period of e'ploy'ent.
%t is f+rther s+b'itted by the learned !o+nsel
that the eviden!e of 5rof. Cohn A. 9+rBe, Cr. has
not been relied +pon to prove the loss of in!o'e of
the de!eased as it sho7s that the de!eased 7as not
payin2 in!o'e ta8. Therefore, the National
Co''ission has erred in partly allo7in2 the !lai'
of the !lai'ant 7hile !o'p+tin2 the !o'pensation on
the basis of the earnin2 of the de!eased.
O% a8ar!1%: 0+m#$%a&1+% (%!$r &)$ )$a! +. ?l+ +.
0+%+r&1(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 a7ardin2
$s.10,00,000; to7ards loss of !onsorti+'. This
Co+rt in vario+s follo7in2 de!isions has a7arded
$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., -20120 6 ,CC
621
$s.10,000
2. Ne7 %ndia Ass+ran!e Co'pany
Hi'ited v. No2esh )evi, -20120 3
,CC 613
$s.10,000
3. National %ns+ran!e Co'pany
Hi'ited v. ,initha, -20120 2 ,CC
356
$s.5,000
6. ,+nil ,har'a v. 9a!hitar
,in2h, -20110 11 ,CC 625
$s.25,000
5. 5+shpa v. ,haB+ntala, -20110
2 ,CC 260
$s.10,000
6. Ar+n *+'ar A2ra7al v.
National %ns+ran!e Co'pany
Hi'ited, -20100 " ,CC 218
$s.15,000
7. ,hya'7ati ,har'a v. *ara'
,in2h, -20100 12 ,CC 378
$s.5,000
8. $esh'a *+'ari v. #adan #ohan,
-200"0 13 ,CC 622 in ,arla )i8it
v. 9al7ant Nadav
$s.15,000
". $a3 $ani v. 4riental
%ns+ran!e Co'pany Hi'ited,
-200"0 13 ,CC 656
$s.7,000
10. ,arla <er'a v. )elhi
Transport Corporation, -200"0 6
,CC 121
$s.10,000
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11. $ani ?+pta v. Fnited %ndia
%ns+ran!e Co'pany Hi'ited,
-200"0 13 ,CC 6"8
$s.25,000
12. National %ns+ran!e Co'pany
Hi'ited v. #e2h3i Naran
,oratiya, -200"0 12 ,CC 7"6
$s.10,000
13. 4riental %ns+ran!e Co'pany
Hi'ited v. An2ad *ol, -200"0 11
,CC 356
$s.10,000
16. Fsha $a3Bho7a v. 5ara'o+nt
%nd+stries, -200"0 16 ,CC 71
$s.5,000
15. Ha8'i )evi v. #oha''ad.
Tabbar, -20080 12 ,CC 165
$s.5,000
16. Andhra 5radesh ,tate $oad
Transport Corporation v. #.
$a'adevi, -20080 3 ,CC 37"
$s.5,000
17. ,tate of 5+n3ab v. Calo+r
,in2h, -20080 2 ,CC 660
$s.5,000
18. Abati 9eEbar+ah v. )y.
)ire!tor ?eneral, ?eolo2i!al
,+rvey of %ndia, -20030 3 ,CC
168
$s.3,000
1". 4riental %ns+ran!e Co. Htd.
v. &ansra3bhai <. *odala, -20010
5 ,CC 175
$s.5,000
20. ,arla )i8it v. 9al7ant
Nadav, -1""60 3 ,CC 17"
$s.15,000
21. ?.#., *erala ,$TC v. ,+sa''a
Tho'as, -1""60 2 ,CC 176
$s.15,000
22. National %ns+ran!e Co. Htd.
v. ,7aranlata )as, 1""3 ,+pp -20
,CC 763
$s.7,500
16. A+rther, the senior !o+nsel and other !o+nsel
for the appellantdo!tors !ontended that the !ase of
N1@am I%&1&(&$ +. M$!10al S01$%0$ <s. Praa%&) S.
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D)a%a%2a * Or.
A
relied +pon by the !lai'ant is
'is!on!eived as that !ase relates to the !ontin+o+s
pain and s+fferin2 of the vi!ti', 7ho had lost
!ontrol over his lo7er li'b and re1+ired !ontin+o+s
physiotherapy for rest of his life. %t 7as not the
a'o+nt for loss of !onsorti+' by the h+sband or
7ife. &en!e, it is s+b'itted by the' that the
National Co''ission erred in 2rantin2 $s.10 laBhs
+nder the head of .loss of !onsorti+'/.
O% &)$ +<3$0&1/$ a%! #a&&$r% +. #a5m$%& +.
0+m#$%a&1+% 0a$=
15. %t is f+rther !ontended by the learned !o+nsel
for the appellantdo!tors that the !o'pensation
a7arded by the National Co''ission sho+ld be 'eant
to restore the !lai'ant to the prea!!idental
position and in 3+d2in2 7hether the !o'pensation is
ade1+ate, reasonable and 3+st, 'onetary !o'pensation
is re1+ired to be arrived at on the prin!iple of
restitutio-in-integram. The National Co''ission
4
(2009) 6 SCC 1
21
Page 22
7hile !al!+latin2 the 3+st 'onetary !o'pensation,
the earnin2s of the !lai'ant 7ho hi'self is a
do!tor, is also re1+ired to be taBen into
!onsideration. $e2ardin2 the !ontention of the
!lai'ant that in allo7in2 !o'pensation the A'eri!an
standard is re1+ired to be applied, it has not been
dis!losed before the Co''ission as to 7hat is the
A'eri!an standard. 4n the !ontrary, the National
Co''ission 7as dire!ted by this Co+rt to !al!+late
the !o'pensation in the !ase as referred to in Mala5
'(mar 7a%:(l5> !ase -s+pra0 and on the basis of the
prin!iples laiddo7n by this &on/ble Co+rt in
vario+s other 3+d2'ents. The t7o 3+d2'ents 7hi!h
have been referred to in Mala5 '(mar 7a%:(l5> !ase
-s+pra0 are Or1$%&al I%(ra%0$ C+m#a%5 L&!. <s.
Ja)(<$% * Or. -s+pra0 and R.'. Mal12 <s. '1ra%
Pal
6
9 7here this Co+rt has not dire!ted assess'ent
of !o'pensation a!!ordin2 to A'eri!an standard.
Therefore, the !ontention of the !lai'ant that
5
(2009) 14 SCC 1
22
Page 23
!o'pensation has to be assessed a!!ordin2 to
A'eri!an standard is 7holly +ntenable in la7 and the
sa'e is liable to be re3e!ted.
16. A+rther, it is !ontended by the senior !o+nsel
and other !o+nsel for the appellantdo!tors and
&ospital that the relian!e pla!ed by the !lai'ant
+pon the de!ision of this Co+rt reported in Pa&r101a
J$a% Ma)a3a%> !ase -s+pra0 !learly sho7s that the
'+ltiplier 'ethod appli!able to !lai' !ases in %ndia
7as applied after taBin2 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 forei2ner
dies in %ndia, the basis of !al!+lation has to be
applied a!!ordin2 to %ndian ,tandard and not the
A'eri!an 'ethod as !lai'ed by the !lai'ant.
17. A+rther, the 7ord .reasonable/ i'plies that the
appellantdo!tors and A#$% &ospital !annot be
saddled 7ith an e8orbitant a'o+nt as da'a2es 7hi!h
23
Page 24
!annot either be treated as an obvio+s or nat+ral
tho+2h not foreseeable !onse1+en!e of ne2li2en!e.
18. A+rther, the learned senior !o+nsel has pla!ed
relian!e on the 3+d2'ent of this Co+rt in N1@am
I%&1&(&$ +. M$!10al S01$%0$ Bs+pra0 7herein this
Co+rt enhan!ed the ori2inal !o'pensation a7arded to
the !lai'antvi!ti' 7ho had been paralyEed d+e to
'edi!al ne2li2en!e fro' 7aist do7n, +nder the heads:
re1+ire'ent of n+rsin2 !are> need for driver!+'
attendant, as he 7as !onfined to a 7heel !hair> and
he needed physiotherapy.
%n the present !ase, the ne2li2en!e !o'plained
of is a2ainst the do!tors and the &ospital 7hi!h had
res+lted in the death of the 7ife of the !lai'ant.
%n that !ase, the e8tent of liability o+2ht to be
restri!ted to those da'a2es and e8penses in!+rred as
a dire!t !onse1+en!e of the fa!ts !o'plained of,
7hile settin2 apart the a'o+nt to be a7arded +nder
the head .loss of dependen!y/. The relevant portion
24
Page 25
of the aforesaid 3+d2'ent of this Co+rt in the
N1@am> I%&1&(&$ +. M$!10al S01$%0$ is 1+oted
here+nder:
ILLLL. The ade1+ate !o'pensation that 7e
speaB of, '+st to so'e e8tent, be a r+le of
th+'b 'eas+re, and a a <ala%0$ )a &+ <$
&r(029 1& 8+(l! <$ !1..10(l& &+ a&1.5
all &)$ #ar&1$ 0+%0$r%$!.C B#ara:ra#) 88D
1". %t is f+rther !ontended by the learned senior
!o+nsel and other !o+nsel for the appellantdo!tors
that the !lai'ant failed to prod+!e any do!+'ent by
taBin2 re!o+rse to 4rder OH% $+le 27 of Code of
Civil 5ro!ed+re and 4rder H<%% of ,+pre'e Co+rt
$+les to 3+stify his !lai's of appro8i'ately an
additional a'o+nt of $s.20 !rores in!l+din2 the
!ost of filin2 of the !lai' for !o'pensation to the
a'o+nt of !o'pensation de'anded for 'edi!al
ne2li2en!e 7hi!h is a farfet!hed theory and every
ne2ative happenin2 in the !lai'ant/s life post
death of his 7ife An+radha ,aha !annot be
attrib+ted as the !onse1+en!e d+e to 'edi!al
25
Page 26
ne2li2en!e. Therefore, the enhan!e'ent of
!o'pensation as prayed for by the !lai'ant stood
ri2htly re3e!ted by the National Co''ission by
re!ordin2 reasons. Therefore, this Co+rt need not
e8a'ine the !lai' a2ain.
O% &)$ ($ +. m(l&1#l1$r m$&)+! .+r !$&$rm1%1%:
0+m#$%a&1+% =
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 brin2 abo+t
!onsisten!y in deter'inin2 the loss of dependen!y
'ore parti!+larly, in !ases of death of vi!ti's of
ne2li2en!e, it 7o+ld be i'portant for the !o+rts to
har'onio+sly !onstr+!t the aforesaid t7o prin!iples
to deter'ine the a'o+nt of !o'pensation +nder the
heads: e8penses, spe!ial da'a2es, pain and
s+fferin2.

21. %n Sarla V$rma> !ase -s+pra0, this Co+rt, at
5ara2raphs 13 to 1", held that the '+ltiplier 'ethod
26
Page 27
is the proper and best 'ethod for !o'p+tation of
!o'pensation as there 7ill be +nifor'ity and
!onsisten!y in the de!isions. The said vie7 has
been reaffir'ed by this Co+rt in R$)ma '(mar1 *
Or. <s. Ma!a% M+)a% * A%r., Civil Appeal No.6666 of
200" de!ided on April 2, 2013.
22. %t is f+rther s+b'itted by the learned !o+nsel
that in !apitaliEin2 the pe!+niary loss, a lesser
'+ltiplier is re1+ired to be applied inas'+!h as
the de!eased had no dependants. %n s+pport of
his !ontention, relian!e is pla!ed +pon the
de!ision of this Co+rt reported in Pa&r101a
Ma)a3a%> !ase -s+pra0 in 7hi!h this Co+rt havin2
fo+nd a person 7ho died as a ba!helor, held that
a lesser '+ltiplier is re1+ired to be applied to
1+antify the !o'pensation.
23. %t is f+rther !ontended by the senior !o+nsel
and other !o+nsel for the appellantdo!tors that
in S(amma T)+ma -s+pra0 this Co+rt has observed
27
Page 28
that Iin fatal a!!ident !ases, the 'eas+re of
da'a2e 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
7hile a7ardin2 da'a2es in a fatal a!!ident !ase
tooB into a!!o+nt the pe!+niary loss already
s+ffered as a res+lt of the ne2li2en!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 +sin2
the '+ltiplier 'ethod and in respe!t of the +se
of the '+ltiplier 'ethod for the p+rpose of
!al!+latin2 the loss of dependen!y of the
!lai'ant, in para2raph No. 16 of the aforesaid
3+d2'ent this &on/ble Co+rt observed as follo7s:

I16. %t is ne!essary to reiterate that the
'+ltiplier 'ethod is lo2i!ally so+nd and
le2ally 7ellestablished. There are so'e
!ases 7hi!h have pro!eeded to deter'ine
28
Page 29
the !o'pensation on the basis of
a22re2atin2 the entire f+t+re earnin2s for
over the period the life e8pe!tan!y 7as
lost, ded+!ted a per!enta2e there fro'
to7ards +n!ertainties of f+t+re life and
a7ard the res+ltin2 s+' as !o'pensation.
This is !learly +ns!ientifi!L.M
26. %n Sarla V$rma> !ase -s+pra0 this Co+rt
so+2ht to define the e8pression .3+st
!o'pensation/ and opined as +nder:
I16.L.C+st Co'pensationM is ade1+ate
!o'pensation 7hi!h is fair and e1+itable,
on the fa!ts and !ir!+'stan!es of the
!ase, to 'aBe 2ood the loss s+ffered as a
res+lt of the 7ron2, as far as 'oney !an
do so, by applyin2 the 7ellsettled
prin!iples relatin2 to a7ard of
!o'pensation. %t is not intended to be a
bonanEa, lar2esse or so+r!e of profit.
17. Assess'ent of !o'pensation tho+2h
involvin2 !ertain hypotheti!al
!onsiderations sho+ld nevertheless be
ob3e!tive. C+sti!e and 3+stness e'anate
fro' e1+ality in treat'ent, !onsisten!y
and thoro+2hness in ad3+di!ation, and
fairness and +nifor'ity in the de!ision
'aBin2 pro!ess and the de!isions. =hile it
'ay not be possible to have 'athe'ati!al
pre!ision or identi!al a7ards in assessin2
!o'pensation, sa'e or si'ilar fa!ts sho+ld
lead to a7ards in the sa'e ran2e. =hen the
fa!tors;inp+ts are the sa'e, and the
for'+la;le2al prin!iples are the sa'e,
!onsisten!y and +nifor'ity, and not
29
Page 30
diver2en!e and freaBiness, sho+ld be the
res+lt of ad3+di!ation to arrive at 3+st
!o'pensation.M
-@'phasis laid by this Co+rt0
25. %t 7as also !ontended by the learned !o+nsel
for the appellantdo!tors that apart fro'
a!!ident !ases +nder the #otor <ehi!les A!t,
1"88, the '+ltiplier 'ethod 7as follo7ed in La&a
,a!)8a * Or. <s. S&a&$ +. B1)ar
6
by a three
C+d2e 9en!h of this Co+rt, 7hi!h is a !ase 7here
devastatin2 fire tooB pla!e at Ca'shedp+r 7hile
!elebratin2 the birth anniversary of ,ir
Ca'shed3i Tata. @ven in M.S. 7r$8al * A%r. <s.
D$$# C)a%! S++! a%! Or.
7
9 the '+ltiplier 'ethod
7as follo7ed 7herein s!hool !hildren 7ere
dro7ned d+e to ne2li2en!e of s!hool tea!hers.
%n the M(%101#al C+r#+ra&1+% +. D$l)1 <s. U#)aar
Tra:$!5 V10&1m A+01a&1+% * Or.
8
the
'+ltiplier 'ethod 7as on!e a2ain follo7ed 7here
6
(2001) 8 SCC 197
7
(2001) 8 SCC 151
8
(2011) 14 SCC 481
30
Page 31
death of 5" persons tooB pla!e in a !ine'a hall
and 10" persons s+ffered in3+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
7hile a7ardin2 !o'pensation to the vi!ti's
be!a+se it leads to !onsisten!y and avoids
arbitrariness.
O% 0+%&r1<(&+r5 %$:l1:$%0$ <5 &)$ 0la1ma%&
27. The learned senior !o+nsel and other !o+nsel
for the appellantdo!tors s+b'itted that the
National Co''ission in the i'p+2ned 3+d2'ent
sho+ld have ded+!ted 25G of the !o'pensation
a'o+nt to7ards !ontrib+tory ne2li2en!e of the
!lai'ant !a+sed by his interferen!e in the
treat'ent of the de!eased. %nstead, the National
Co''ission has ded+!ted only 10G to7ards the
sa'e. A!!ordin2 to the learned senior !o+nsel
31
Page 32
and other !o+nsel for the appellants, the
National Co''ission erred in not adherin2 to the
tenor set by this Co+rt 7hile re'andin2 the !ase
ba!B to it for deter'inin2 the !o'pensation to
arrive at an ade1+ate a'o+nt 7hi!h 7o+ld also
i'ply an aspe!t of !ontrib+tory ne2li2en!e,
individ+al role and liability of the &ospital
and the do!tors held ne2li2ent. Therefore, this
Co+rt is re1+ired to !onsider this aspe!t and
ded+!t the re'ainin2 15G o+t of the !o'pensation
a7arded by the National Co''ission to7ards
ne2li2en!e by the !lai'ant.
O% $%)a%0$m$%& +. 0+m#$%a&1+% 0la1m$! <5 &)$
0la1ma%& =
28. The learned senior !o+nsel and other !o+nsel
for the appellantdo!tors and the &ospital
!ontended that enhan!ed !lai' of the !lai'ant in
his appeal is 7itho+t any a'end'ent to the
pleadin2s and therefore, is not 'aintainable in
32
Page 33
la7. The !lai'ant in his 7ritten s+b'ission
filed d+rin2 the !o+rse of ar2+'ents in C+ly,
2011 before the National Co''ission, has 'ade
his !lai' of $s."7,56,07,000; 7hi!h the
National Co''ission has ri2htly re3e!ted in the
i'p+2ned 3+d2'ent holdin2 that it 7as le2ally
i'per'issible for it to !onsider that part of
the eviden!e 7hi!h is stri!tly not in !onfor'ity
7ith the pleadin2s in order to a7ard a hi2her
!o'pensation as !lai'ed by the !lai'ant. %n
3+stifi!ation of the said !on!l+sion and findin2
of the National Co''ission, the learned !o+nsel
have pla!ed relian!e +pon the prin!iple
analo2o+s to 4rder %% $+le 2 of C.5.C., 1"08 and
f+rther !ontended that the !lai'ant 7ho had
abandoned his !lai' no7 !annot 'aBe ne7 !lai's
+nder different heads. A+rther, it is s+b'itted
by #r. <i3ay &ansaria, the learned senior
!o+nsel on behalf of A#$% &ospital that tho+2h
the !lai'ant had filed an appli!ation on
33
Page 34
".11.200" in #.A. No.1327 of 200" for additional
!lai'> the said appli!ation 7as 7ithdra7n by hi'
on ".2.2010. Therefore, his !lai' for enhan!in2
!o'pensation is not tenable in la7. %n s+pport
of the said !ontention, he has pla!ed relian!e
+pon the 3+d2'ent of this Co+rt in Na&1+%al
T$E&1l$ C+r#+ra&1+% L&!. <s. Nar$)2(mar
Ba!r12(mar Ja:a!
-
9 7herein it is stated by this
Co+rt that the pleadin2s and parti!+lars are
ne!essary to enable the !o+rt to de!ide the
ri2hts of the parties in the trial.

%n s+pport of the said proposition of la7,
relian!e 7as also pla!ed +pon other 3+d2'ent of
this Co+rt in Mar1a Mar:ar1!a S$;($r1a F$r%a%!$
<s. Eram+ Ja02 !$ S$;($r1a
10
9 7herein this Co+rt,
at para2raph 61, has held that :
Iin !ivil !ases, pleadin2s are e8tre'ely
i'portant for as!ertainin2 title and
possession of the property in 1+estion.M

9
(2011012 ,CC 6"5
10
(20120 5 ,CC 370
34
Page 35
The said vie7 of this Co+rt 7as reiterated in A.
S)a%m(:am <s. Ar15a ')a&r15a Ra3a2(la Vama&)(
Ma!ala5a Na%!a/a%a Par1#ala%a1 Sa%:am
11
,

2". A+rther, the learned senior !o+nsel for the
appellantdo!tors and A#$% &ospital pla!ed
relian!e +pon the provisions of the Cons+'er
5rote!tion A!t, 1"86 and the #otor <ehi!les A!t,
1"88 to +r2e that tho+2h the Cons+'er Co+rts
have pe!+niary 3+risdi!tion for de!idin2 the
'atters filed before it 7hereby the pe!+niary
3+risdi!tion of the )istri!t Aor+' is $s.20
laBhs, ,tate Co''ission is fro' $s.20 laBhs to
$s.1 !rore, 7hereas for National Co''ission, it
is above $s.1 !rore, the #otor A!!ident Clai's
Trib+nal have +nli'ited 3+risdi!tion. %n the
Cons+'er 5rote!tion A!t, 1"86 there is a
provision for li'itation of 2 years for filin2
of !o'plaint +nder ,e!tion 26A of the A!t and
11
(2012) 6 SCC 430
35
Page 36
there is no li'itation pres!ribed in the #otor
<ehi!les A!t, 1"88.

30. ,e!tions 12 and 13 of the Cons+'er 5rote!tion
A!t, 1"86 provide as to ho7 the !o'plaint has to
be 'ade and the pro!ed+re to be follo7ed by the
!lai'ant for filin2 the !o'plaint. $+le 16-!0
of the Cons+'er 5rote!tion $+les, 1"87 and the
Cons+'er 5rote!tion $e2+lations, 2005 re1+ire
the !o'plainant to spe!ify the relief 7hi!h he
!lai's. The filin2 of the
!o'plaint;appeal;revision is dealt 7ith Cons+'er
5rote!tion $e2+lations, 2005. Fnder the #otor
<ehi!les A!t, 1"88, a vi!ti' or de!eased/s le2al
representative does not have to spe!ify the
a'o+nt !lai'ed as held by this Co+rt in the !ase
of Na:a##a <s. 7(r(!a5al S1%:)
12
.
31. Fnder ,e!tion 158-60 of the #otor <ehi!les
A!t, 1"88, the report for7arded to the Clai's
12
-20030 2 ,CC 276
36
Page 37
Trib+nal !an be treated as an appli!ation for
!o'pensation even tho+2h no !lai' is 'ade or
spe!ified a'o+nt is !lai'ed 7hereas +nder the
Cons+'er 5rote!tion A!t, a 7ritten !o'plaint
spe!ifyin2 the !lai' to be preferred before the
appropriate for+' 7ithin 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 <ehi!les
A!t, 1"88 a !lai'ant is entitled to !o'pensation
+nder the str+!t+red for'+la even 7itho+t
ne2li2en!e 7hereas no s+!h provision e8ists
+nder the Cons+'er 5rote!tion A!t.
33. %n this re2ard, the learned senior !o+nsel
and other !o+nsel for the appellantdo!tors and
&ospital pla!ed relian!e +pon the 3+d2'ent of
this Co+rt in the !ase of I<ra)1m <s. Ra3(.
13
and
s+b'itted that the said !ase does not apply to
13
(20110 10 ,CC 636
37
Page 38
the fa!t sit+ation for t7o reasons, na'ely, it
7as a !ase +nder the #otor <ehi!les A!t, 1"88,
7hereas this !ase involves the Cons+'er
5rote!tion A!t. ,e!ondly, this Co+rt in the
previo+s !ase, enhan!ed the !o'pensation
observin2 that d+e to finan!ial in!apa!ity the
!lai'ant !o+ld not avail the servi!es of the
!o'petent la7yer, 7hi!h is not the !ase in hand,
in as '+!h as the !lai'ant had hired the
servi!es of an advo!ate 7ho is 9aratHa7 and
the 5resident of the ,+pre'e Co+rt 9ar
Asso!iation.
36. A+rther, the learned !o+nsel for the
appellantdo!tors pla!ed relian!e +pon the
3+d2'ent of this Co+rt in the !ase of Sa%3a5
Ba&)am <s. M(%%alal Par1)ar
1A
, 7hi!h is a !ase
+nder the #otor <ehi!les A!t, 1"88. This Co+rt
enhan!ed the !o'pensation follo7in2 the 3+d2'ent
in Na:a##a> !ase -s+pra0. The learned !o+nsel
14
(20110 10 ,CC 655
38
Page 39
also pla!ed relian!e +pon the 3+d2'ent of this
Co+rt in N1@am I%&1&(&$> !ase -s+pra0 7here
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 $s.1 !rore. 9+t, the
N1@am I%&1&(&$> !ase is not a !ase for the
proposition that a !lai'ant !an be a7arded
!o'pensation beyond 7hat is !lai'ed by hi'. 4n
the other hand, it 7as a !ase of pe!+liar fa!ts
and !ir!+'stan!es sin!e the !lai'ant had
per'anent disability 7hi!h re1+ired !onstant
'edi!al attention, 'edi!ines, servi!es of
attendant and driver for hi'self. The !ases
referred to by the !lai'ant re2ardin2 'edi!al
ne2li2en!e in his 7ritten s+b'ission are
distin2+ishable fro' the present !ase and in
none of these !ases +pon 7hi!h relian!e has been
pla!ed by the !lai'ant, this Co+rt has a7arded
!o'pensation beyond 7hat is !lai'ed. Therefore,
the relian!e pla!ed +pon the aforesaid 3+d2'ents
39
Page 40
by the !lai'ant does not s+pport his !lai' and
this Co+rt need not a!!ept the sa'e and enhan!e
the !o'pensation as has been !lai'ed by hi'
sin!e he is not entitled to the sa'e.
D$a&) +. &)$ 0la1ma%&> 81.$ !($ &+ 0(m(la&1/$
$..$0& +. %$:l1:$%0$ =
35. This Co+rt vide its 3+d2'ent in Mala5 '(mar
7a%:(l5> !ase -s+pra0 has held that:

I186. A patient 7o+ld feel the
defi!ien!y in servi!e havin2 re2ard to
the !+'+lative effe!t of ne2li2en!e of
all !on!erned. Ne2li2en!e on the part of
ea!h of the treatin2 do!tors as also the
hospital 'ay have been the !ontrib+tin2
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 7ith the
!onse1+en!es the patient fa!ed, Beepin2
in vie7 the !+'+lative effe!t. %n the
instant !ase, ne2li2ent a!tion has been
noti!ed 7ith respe!t to 'ore than one
respondent. A !+'+lative in!iden!e,
therefore, has led to the death of the
patient.M

The t7o 7ords I'ayM and I!+'+lative in!iden!eM in
the abovesaid observations of this Co+rt is
40
Page 41
relevant for deter'inin2 the 1+antifi!ation of
!o'pensation. %t is s+b'itted that this Co+rt is
also not s+re that the ne2li2en!e solely has
!ontrib+ted to the death of the !lai'ant/s 7ife. At
the 'ost, this Co+rt is of the vie7 that the
ne2li2en!e 'ay have !ontrib+ted to the death of the
!lai'ant/s 7ife. The in!iden!es leadin2 to or
!ontrib+tin2 to the death of the de!eased are:
-i0 )isease T@N itself is a fatal disease
7hi!h has very hi2h 'ortality rate.
-ii0T@N itself prod+!es septi!e'i! sho!B and
de!eased An+radha died be!a+se of s+!h
!onse1+en!e.
-iii0 No dire!t treat'ent or treat'ent
proto!ol for T@N.
-iv0Ne2li2en!e of 'any in treatin2 de!eased
An+radha.
-v0 Contrib+tory ne2li2en!e on the part of
)r.*+nal ,aha and his brother.
A+rther'ore, it is observed fa!t+ally that
lethal !o'bination of Cisapride and Al+!onaEole had
been +sed for a n+'ber of days at 9rea!h Candy
&ospital d+rin2 her stay 7hi!h leads to !ardia!
arrest. Therefore, the National Co''ission o+2ht to
41
Page 42
have !onsidered different in!iden!es as aforesaid
leadin2 to the death of the !lai'ant/s 7ife so as
to !orre!tly apportion the individ+al liability of
the do!tors and the A#$% &ospital in !a+sin2 the
death of the 7ife of the !lai'ant.
36. A+rther, 7ith re2ard to the liability of ea!h
of the do!tors and the A#$% &ospital,
individ+al s+b'issions have been 'ade 7hi!h are
presented here+nder:
C1/1l A##$al N+. 6-2F2012
37. %t is the !ase of the appellantA#$% &ospital
that the National Co''ission sho+ld have taBen
note of the fa!t that the de!eased 7as initially
e8a'ined by )r. ,+B+'ar #+Bher3ee and the
alle2ed 'edi!al ne2li2en!e res+ltin2 in the
death of the de!eased 7as d+e to his 7ron2
'edi!ation -overdose of steroid0. Therefore,
the &ospital has little or 'ini'al
42
Page 43
responsibility in this re2ard, parti!+larly,
7hen after ad'ission of the de!eased in the
&ospital there 7as !orre!t dia2nosis and she 7as
2iven best possible treat'ent. The National
Co''ission erred in apportionin2 the liability
on the &ospital to the e8tent of 25G of the
total a7ard. This Co+rt in the earlier ro+nd of
liti2ation held that there is no 'edi!al
ne2li2en!e by )r. *a+shiB Nandy, the ori2inal
respondent No.6 in the !o'plaint, 7ho 7as also a
do!tor in the appellant&ospital.
38. A+rther, the learned senior !o+nsel for the
A#$% &ospital s+b'itted that the ar2+'ents
advan!ed on behalf of the appellantsdo!tors )r.
9alra' 5rasad in C.A. No.2867;2012, )r. ,+B+'ar
#+Bher3ee in C.A. No.858;2012 and )r. 9aidyanath
&aldar in C.A. 731;2012 7ith re2ard to
per!enta2e, on the basis of !osts i'posed in
para2raph 1"6 of the 3+d2'ent in the earlier
43
Page 44
ro+nd of liti2ation is 7itho+t any basis and
f+rther s+b'itted that +nder the headin2 (
.%ndivid+al Hiability of )o!tors/ findin2s as to
7hat 7as the ne2li2en!e of the do!tors and the
appellant A#$% &ospital is not stated. %f the
said findin2s of the National Co''ission are
!onsidered, then it !annot be ar2+ed that the
appellant A#$% &ospital sho+ld pay the hi2hest
!o'pensation. A+rther, the learned senior
!o+nsel reb+tted the s+b'ission of the !lai'ant
!ontendin2 that sin!e he had hi'self !lai'ed
spe!ial da'a2es a2ainst the appellantdo!tors,
the &ospital and )r. Abani $oy Cho+dhary in the
!o'plaint before the National Co''ission,
therefore, he !annot no7 !ontend !ontrary to the
sa'e in the appeal before this Co+rt.
CIVIL APPEAL NO. 868 OF 2012
44
Page 45
3". %t is the !ase of the appellant )r. ,+B+'ar
#+Bher3ee that the National Co''ission 7hile
apportionin2 the liability of the appellant, has
7ron2ly observed that :
I,+pre'e Co+rt has pri'arily fo+nd
)r.,+B+'ar #+Bher3ee and A#$% hospital
2+ilty of ne2li2en!e and defi!ient in
servi!e on several !o+nts. Therefore,
2oin2 by the said findin2s and
observations of ,+pre'e Co+rt 7e
!onsider it appropriate to apportion the
liability of )r. ,+B+'ar #+Bher3ee and
A#$% hospital in e1+al proportion, i.e.
ea!h sho+ld pay 25G i.e. 38,"0,000; of
the a7arded a'o+nt of 1,55,60,000;.M
60. %t is s+b'itted by the learned !o+nsel for
the appellant )r. ,+B+'ar #+Bher3ee that
s!r+tiny of the 3+d2'ent in Mala5 '(mar
7a%:(l5/s !ase -s+pra0 7ill sho7 that at no
pla!e did the &on/ble ,+pre'e Co+rt 'ade any
observation or re!orded any findin2 that the
appellant )r. #+Bher3ee and the &ospital are
pri'arily responsible. 4n the !ontrary, +nder
the headin2 IC+'+lative @ffe!t of Ne2li2en!eM
45
Page 46
+nder paras 186 and 187, this &on/ble Co+rt has
held as +nder:
I186. A patient 7o+ld feel the
defi!ien!y in servi!e havin2 re2ard to
the !+'+lative effe!t of ne2li2en!e of
all !on!erned. Ne2li2en!e on the part
of ea!h of the treatin2 do!tors as also
the hospital 'ay have been !ontrib+tin2
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 7ith the
!onse1+en!es the patient fa!ed Beepin2
in vie7 the !+'+lative effe!t. %n the
instant !ase, ne2li2ent a!tion has been
noti!ed 7ith 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 la7. The !o'ple8ities involved
in the instant !ase as also differin2
nat+re of ne2li2en!e e8er!ised by
vario+s a!tors, 'aBe it very diffi!+lt
to distil individ+al e8tent of
ne2li2en!e 7ith respe!t to ea!h of the
respondent. %n s+!h a s!enario findin2
of 'edi!al ne2li2en!e +nder ,e!tion 306
A !annot be ob3e!tively deter'ined.M
61. %t is f+rther s+b'itted by the learned
!o+nsel for the appellant )r. ,+B+'ar #+Bher3ee
that the 7ife of the !lai'ant 7as s+fferin2 fro'
46
Page 47
rash;fever fro' April 1""8, she 7as seen by the
appellant)r.,+B+'ar #+Bher3ee only on three
o!!asions before his preplanned visit to the
F.,.A. for attendin2 a 'edi!al !onferen!e i.e.
on 26.6.1""8, 7.5.1""8 and on the ni2ht of
11.5.1""8 and then the appellant)r.#+Bher3ee
left %ndia for F,A and ret+rned '+!h after the
de'ise of the !lai'ant/s 7ife. 4n her first
e8a'ination on 26.6.1""8 the appellant
s+22ested a host of patholo2i!al tests. The
patient 7as re1+ested to visit the )o!tor 7ith
these reports. No dr+2s 7ere pres!ribed by the
appellant)r.#+Bher3ee at this e8a'ination. 4n
7.5.1""8, An+radha ,aha 7alBed into the !lini!
of the appellant)r.#+Bher3ee at ".30 p.'. and
reported that she 7as +n!o'fortable be!a+se she
had !ons+'ed food of Chinese !+isine. The
appellant)r.#+Bher3ee noti!ed that there 7as a
definite !han2e in the nat+re of the rash. 9ased
on the infor'ation f+rnished and the stat+s and
47
Page 48
!ondition of the patient, she 7as dia2nosed to
be s+fferin2 fro' aller2i! vas!+litis and the
appellant)r.#+Bher3ee !o''en!ed treatin2 the
patient 7ith )epo'edrol, 7hi!h is a dr+2
belon2in2 to the fa'ily of steroids. The
appellant)r.#+Bher3ee re!o''ended )epo'edrol 80
'2.%# t7i!e daily for 3 days to be re!onsidered
after An+radha ,aha 7as s+b3e!t to f+rther
revie7. )epo'edrol is very '+!h indi!ated in
<as!+litis -F,5)% 1""60: I)epo'edrol is anti
infla''atory, antialler2i! dr+2. Therefore, it
is )o!tor/s 3+d2'ent to +se the dr+2.M The
appellant)r.#+Bher3ee ad'inistered one
in3e!tion of )epo'edrol on the ni2ht of
7.5.1""8. &e did not ad'inister any other
in3e!tions to the de!eased thereafter. %t is
f+rther s+b'itted that '+!h hi2her dose of
)epo'edrol have been re!o''ended in F,5)% 1""6
and C)$o' &arisons 5rin!iples of #edi!ine 1""8
in by pass sBin diseases liBe '+ltiple s!lerosis
48
Page 49
7ith a dose of 177.7 '2 daily for 1 7eeB and 71
'2 on every other day for one 'onth.
62. 4n 11.5.1""8 7hen the appellant)r.#+Bher3ee
e8a'ined An+radha ,aha at the A#$% &ospital
prior to his depart+re to F.,.A., he pres!ribed
a 7hole line of treat'ent and or2aniEed
referen!e to different spe!ialists;!ons+ltants.
&e re!o''ended f+rther patholo2i!al tests
be!a+se on e8a'inin2 the patient at the A#$%, he
noti!ed that she had so'e blisters 7hi!h 7ere
not peeled off. There 7as no deta!h'ent of sBin
at all. &e also re1+ested in 7ritin2 the
treatin2 !ons+ltant physi!ian of A#$% )r. 9alra'
5rasad, #) to or2aniEe all these in!l+din2
referral to all spe!ialists. The appellant
)r.#+Bher3ee s+spe!ted !ontin+ation of aller2i!
<as!+litis in a22ravated for' and pres!ribed
steroids in a taperin2 dose on 11.5.1""8 and
advised other tests to !he!B infe!tion and any
49
Page 50
i''+no abnor'alities. %t is stated that the
appellant)r.#+Bher3ee did not e8a'ine the
patient thereafter and as afore'entioned, he
left on a prearran2ed visit to F.,.A. for a
'edi!al !onferen!e. No fees 7ere !har2ed by the
appellant)r.#+Bher3ee. %t is f+rther s+b'itted
that before the appellant)r.#+Bher3ee started
the treat'ent of the de!eased, )r.,an3oy ?hose
on 6.5.1""8 treated her and d+rin2 the period of
treat'ent of the appellant)r. #+Bher3ee fro'
7.5.1""8 to 11.5.1""8, on ".5.1""8 )r.AshoB
?hosal -)er'atolo2ist0 treated An+radha ,aha.
These fa!ts 7ere 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 findin2 in the !ase referred to s+pra
that the patient 7as also e8a'ined by t7o
!ons+ltant der'atolo2ists )r.A.*. ?hosal and )r.
,. ?hosh 7ho dia2nosed the disease to be a !ase
of vas!+litis.
50
Page 51
63. %t is f+rther s+b'itted by the learned
!o+nsel for the appellant)r. #+Bher3ee that the
!a+se of death as re!orded in the death
!ertifi!ate of the de!eased is Isepti!e'i! sho!B
7ith '+lti syste' or2an fail+re in a !ase of T@N
leadin2 to !ardio respiratory arrestM. 9lood
!+lt+re 7as ne2ative prior to death. There 7as
no a+topsy to !onfir' the dia2nosis at 9rea!h
Candy &ospital, #+'bai. )r. Fd7adia observed on
27.5.1""8 that the patient has developed ,%$, in
absen!e of infe!tion in T@N. The patient
e8pired on 28.5.1""8 and the death !ertifi!ate
7as 7ritten by a 3+nior do!tor 7itho+t the
!o''ents of )r. Fd7adia. %t is s+b'itted by the
learned !o+nsel that there is neither any
alle2ation nor any findin2 by this Co+rt that
the do!tors of the A#$% &ospital had !ontrib+ted
to septi!e'ia. The 'ere findin2 that the
patient 7as not properly dressed at A#$%
51
Page 52
&ospital 7here she stayed for only 6 days of
early evo!ation of the disease do not 3+stify
!ontrib+tion to septi!e'i! sho!B of the
de!eased. A+rther, there is no re!ord to sho7
that at A#$% &ospital the sBin of the patient
had peeled o+t thereby leadin2 to !han!e of
developin2 septi!e'ia. 4n the other hand, it is
a fa!t borne o+t fro' re!ord that the patient
7as taBen in a !hartered fli2ht to 9rea!h Candy
&ospital, 9o'bay a2ainst the advi!e of the
do!tors at *olBata and f+rther nothin2 is borne
o+t fro' the re!ords as 7hat pre!a+tion 7ere
taBen by the !lai'ant 7hile shiftin2 the patient
by Air to 9rea!h Candy &ospital thereby leadin2
to the !on!l+sion that d+rin2 the travel by
!hartered fli2ht she 'i2ht have !ontra!ted
infe!tion of the sBin leadin2 to septi!e'ia. %t
is f+rther s+b'itted by the learned !o+nsel for
the appellant )r. ,+B+'ar #+Bher3ee that the
fa!t that the disease T@N re1+ires hi2her
52
Page 53
de2ree of !are sin!e there is no definite
treat'ent, s+!h hi2h de2ree of !are 7ill be
relatable to !o'fort b+t not definitely to
septi!e'ia that o!!+rred at 9rea!h Candy
&ospital. &en!e, ne2li2en!e has to be assessed
for da'a2es 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.
66. %t is s+b'itted by the learned !o+nsel for
appellant)r. ,+B+'ar #+Bher3ee that there is no
findin2 or alle2ation that the dr+2 )epo'edrol
pres!ribed by the appellant)r.#+Bher3ee !a+sed
the disease T@N. The appellant advised a n+'ber
of blood tests on 11.5."8 in A#$% &ospital to
dete!t any infe!tion and i''+ne abnor'ality d+e
to steroids and to foresee !onse1+en!es. %t is
f+rther s+b'itted that 9rea!h Candy &ospital
re!ords sho7 that the patient 7as hae'o
dyna'i!ally stable. @ven )r.Fd7adia of 9rea!h
53
Page 54
Candy &ospital on 17.5.1""8 do+bted 7ith re2ard
to the e8a!t disease and re!orded the disease as
T@N or ,teven Cohnson ,yndro'.
Therefore, the National Co''ission o+2ht to
have !onsidered different in!iden!es as aforesaid
leadin2 to the death of the !lai'ant/s 7ife and the
1+ant+' of da'a2es shall have to be divided into
five parts and only one part shall be attrib+ted to
the ne2li2en!e of the appellant)r.#+Bher3ee.
C1/1l A##$al N+. 2867 +. 2012
65. %t is the !ase of )r. 9alra' 5rasadappellant
in Civil Appeal No. 2867 of 2012 that on
11.05.1""8, )r. ,+B+'ar #+Bher3ee, before
leavin2 for F.,.A., attended the patient at the
A#$% &ospital at 2.15 p.'. and after e8a'inin2
the de!eased, iss+ed the se!ond and last
pres!ription on the aforesaid date 7itho+t
pres!ribin2 anythin2 different b+t reass+red
54
Page 55
the patient that she 7o+ld be fine in a fe7
7eeBs/ ti'e and 'ost !onfidently and stron2ly
advised her to !ontin+e 7ith the said in3e!tion
for at least fo+r 'ore days. This 7as also
re!orded in the aforesaid last pres!ription of
the said date. A+rther, it is stated that
7itho+t dis!losin2 that he 7o+ld be o+t of %ndia
fro' 12.05.1""8, he asBed the de!eased to
!ons+lt the na'ed )er'otolo2ist, )r. 9.&aldar P
9aidyanath &aldar, the appellant in Civil Appeal
No. 731 of 2012, and the physi!ian )r. Abani $oy
Cho7dh+ry in his last pres!ription on the last
visit of the de!eased. #ost !+lpably, he did not
even pres!ribe %.<. Al+id and ade1+ate
n+tritional s+pport 7hi!h 7as 'andatory in that
!ondition. )r. &aldar tooB over the treat'ent
of the de!eased as a )er'atolo2ist &ead and )r.
Abani $oy Cho7dh+ry as &ead of the #edi!al
#ana2e'ent fro' 12.05.1""8 7ith the positive
Bno7led2e and treat'ent ba!B2ro+nd that the
55
Page 56
patient by then already had !lear intaBe of 880
'2 of )epo'edrol in3e!tion as 7o+ld be evident
fro' A#$%/s treat'ent sheet dated 11.05.1""8.
66. %t is f+rther stated by the !lai'ant in the
!o'plaint lod2ed before National Co''ission that
it !ontained spe!ifi! aver'ents of ne2li2en!e
a2ainst the appellantdo!tors. The only aver'ent
of alle2ed ne2li2en!e 7as !ontained in para2raph
66 of the !o'plaint 7hi!h reads as +nder:
I66. That )r. 9alra' 5rasad as attendin2
physi!ian at A#$% did do nothin2 better.
&e did not taBe any part in the
treat'ent of the patient altho+2h he
stood liBe a se!ond fiddle to the 'ain
tea' headed by the opposite party No. 2
and 3. &e never s+22ested even faintly
that A#$% is not an ideal pla!e for
treat'ent of T@N patient> on the
!onverse, he 7as f+ll of praise for A#$%
as an ideal pla!e for the treat'ent of
T@N patients Bno7in2 nothin2 ho7 a T@N
patient sho+ld be treated.M
56
Page 57
67. The !lai'ant has also pla!ed stron2 relian!e
+pon the ans7er 2iven by hi' to 1+estion No. 26
in his !ross e8a'ination 7hi!h reads th+s:
IJ.No.26. )r. 5rasad says that
)epo'edrol dose a!!ordin2 to the
treat'ent sheet of the A#$% &ospital,
he 'ade a spe!ifi! s+22estion 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.
Neah, he said one day in A#$% re!ord.M
68. Tho+2h, the appellant)r. 9alra' 5rasad 7as
a!!+sed in the !ri'inal !o'plaint lod2ed by the
!lai'ant he 7as neither pro!eeded a2ainst as an
a!!+sed in the !ri'inal !o'plaint nor before the
=est 9en2al #edi!al Co+n!il b+t 7as na'ed as a
7itness. A+rther, it is stated by the !lai'ant
that he +r2ed before the National Co''ission as
7ell as before this Co+rt in +ne1+ivo!al ter's
that the b+lB of the !o'pensation a7arded 7o+ld
have to be in the proportion of 80G on the A#$%
&ospital, 15G on )r. ,+B+'ar #+Bher3ee and
57
Page 58
balan!e bet7een the rest. )espite the aforesaid
s+b'ission before the National Co''ission, the
!lai'ant !lai's that it has erred in a7ardin2
the proportion of the liability a2ainst ea!h of
the appellantdo!tors in a 'anner 'entioned in
the table 7hi!h is provided here+nder:
NAME OF THE PARTG AMOUNT TO BE PAID
)r. ,+B+'ar #+Bher3ee Co'pensation:$s.38,"0,000
Cost of liti2ation:1,50,000
)r. 9aidyanath &aldar Co'pensation:$s.25,"3,000
Cost of liti2ation: $s.1,00,000
)r. Abani $oy Cho7dh+ry
-sin!e de!eased0 -!lai'
fore2one0
Co'pensation: 25,00,000
A#$% &ospital Co'pensation: $s.38,"0,000
Cost of liti2ation: $s.1,50,000
)r. 9alra' 5rasad Co'pensation: $s.25,"3,000
Cost of liti2ation: $s.1,00,000
6". The appellant)r. 9alra' 5rasad in Civil
Appeal No.2867;2012 !ontends that he 7as the
3+nior 'ost attendin2 physi!ian atta!hed to the
&ospital, he 7as not !alled +pon to pres!ribe
'edi!ines b+t 7as only re1+ired to !ontin+e
58
Page 59
and;or 'onitor the 'edi!ines pres!ribed by the
spe!ialist in the dis!ipline. 9+t realiEin2 the
serio+sness of the patient, the appellant had
hi'self referred the patient to the three
spe!ialists and also s+22ested for +ndertaBin2 a
sBin biopsy. The d+ty of !are ordinarily
e8pe!ted of a 3+nior do!tor had been dis!har2ed
7ith dili2en!e by the appellant. %t is f+rther
!ontended that in his !rosse8a'ination before
the National Co''ission in the en1+iry
pro!eedin2, the !lai'ant hi'self has ad'itted
that the basi! falla!y 7as !o''itted by three
physi!ians, na'ely, )r. #+Bher3ee, )r. &aldar
and )r. $oy Cho7dh+ry. The above fa!ts 7o+ld
!learly sho7 that the role played by the
appellant)o!tors in the treat'ent of the
de!eased 7as only se!ondary and the sa'e had
been dis!har2ed 7ith reasonable and d+e !are
e8pe!ted of an attendin2 physi!ian in the 2iven
fa!ts and !ir!+'stan!es of the instant !ase.
59
Page 60
50. %n the li2ht of the above fa!ts and
!ir!+'stan!es, the !ontention of the !lai'ant
that the death of the !lai'ant/s 7ife 7as
neither dire!tly nor !ontrib+torily relatable to
the alle2ed ne2li2ent a!t of the appellant )r.
9alra' 5rasad, it is 'ost respe!tf+lly s+b'itted
that the National Co''ission 7as not 3+stified
in apportionin2 the da'a2es in the 'anner as has
been done by the National Co''ission to pla!e
the appellant on the sa'e footin2 as that of )r.
9aidyanath &aldar, 7ho 7as a senior do!tor in
!har2e of the 'ana2e'ent;treat'ent of the
de!eased.
51. The learned senior !o+nsel for the appellant
)r. 9alra' 5rasad f+rther +r2ed that the
National Co''ission has also erred in not taBin2
into a!!o+nt the s+b'issions of the !lai'ant
that 80G of the da'a2es o+2ht to have been
levied on the &ospital, 15G on )r. ,+B+'ar
60
Page 61
#+Bher3ee and the balan!e bet7een the rest. %t
is +r2ed that the proportion of the !o'pensation
a'o+nt a7arded on the appellant is e8!essive and
+nreasonable 7hi!h is beyond the !ase of the
!lai'ant hi'self.
CIVIL APPEAL NO. 741 OF 2012
52. The learned !o+nsel #r. $an3an #+Bher3ee
appearin2 on behalf of the appellant in this
appeal has filed the 7ritten s+b'issions on
15.6.2013. &e has reiterated his s+b'ission in
s+pport of his appeal filed by the said do!tor
and has also adopted the ar2+'ents 'ade in
s+pport of the 7ritten s+b'issions filed on
behalf of the other do!tors and A#$% &ospital by
7ay of reply to the 7ritten s+b'issions of the
!lai'ant. A+rther, he has s+b'itted that the
appellant )r. 9aidyanath &aldar is abo+t 80
years and is ailin2 7ith heart disease and no
'ore in a!tive pra!ti!e. Therefore, he re1+ested
61
Page 62
to set aside the liability of !o'pensation
a7arded a2ainst hi' by allo7in2 his appeal.
All the do!tors and the &ospital +r2ed 'ore or
less the sa'e 2ro+nds.
C1/1l A##$al N+. 2866 +. 2012
53. This appeal has been filed by the !lai'ant.
%t is the 2rievan!e of the !lai'ant that the
National Co''ission re3e!ted 'ore than "8G of
the total ori2inal !lai' of $s.77.7 !rores 7hi!h
7as 'odified to $s."7.5 !rores later on by
addin2 Ispe!ial da'a2esM 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 lon2 trial in relation to the pro!eedin2s
in 1+estion before the National Co''ission and
this Co+rt. The National Co''ission event+ally
a7arded !o'pensation of only $s.1.3 !rores after
red+!in2 fro' the total a7ard of $s.1.72 !rores
on the 2ro+nd that the !lai'ant had IinterferedM
62
Page 63
in the treat'ent of his 7ife and sin!e one of
the 2+ilty do!tors had already e8pired, his
share of !o'pensation 7as also denied.
56. Therefore, the present appeal is filed
!lai'in2 the 3+st and reasonable !o'pensation
+r2in2 the follo7in2 2ro+nds:
a) The National Co''ission has failed to
!onsider the pe!+niary, nonpe!+niary
and spe!ial da'a2es as e8tra!ted
hereinbefore.
b) The National Co''ission has 'ade blatant
errors in 'athe'ati!al !al!+lation 7hile
a7ardin2 !o'pensation +sin2 the
'+ltiplier 'ethod 7hi!h is not the
!orre!t approa!h.
c) The National Co''ission has erroneo+sly
+sed the '+ltiplier 'ethod to deter'ine
!o'pensation for the first ti'e in
%ndian le2al history for the 7ron2f+l
63
Page 64
death !a+sed by 'edi!al ne2li2en!e of
the appellantdo!tors and the A#$%
&ospital.
d) The National Co''ission has
reinvesti2ated the entire !ase abo+t
'edi!al ne2li2en!e and 7ent beyond the
observations 'ade by this Co+rt in Mala5
'(mar 7a%:(l5> !ase -s+pra0 by holdin2
that the !lai'ant is also 2+ilty for his
7ife/s death.
e) The National Co''ission has failed to
2rant any interest on the !o'pensation
tho+2h the liti2ation has taBen 'ore
than 15 years to deter'ine and a7ard
!o'pensation.
f) The National Co''ission has failed to
!onsider the deval+ation of 'oney as a
res+lt of IinflationM for a7ardin2
64
Page 65
hi2her !o'pensation that 7as so+2ht 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' statin2 that he 7as
tryin2 to I'aBe a fort+ne o+t of a
'isfort+ne.M The said re'arB '+st be
e8p+n2ed.
55. The appellantdo!tors and the A#$% &ospital
!ontended that the !o'pensation !lai'ed by the
!lai'ant is an enor'o+sly fab+lo+s a'o+nt and
sho+ld not be 2ranted to the !lai'ant +nder any
!ondition. This !ontention o+2ht to have been
noti!ed by the National Co''ission that it is
7holly +ntenable in la7 in vie7 of the
Constit+tion 9en!h de!ision of this Co+rt in the
!ase of I%!1a% M$!10al A+01a&1+% <s. V.P.
S)a%&)a * Or
16
9 7herein this Co+rt has
15
-1""50 6 ,CC 651
65
Page 66
!ate2ori!ally disa2reed on this spe!ifi! point
in another !ase 7herein I'edi!al ne2li2en!eM 7as
involved. %n the said de!ision, it has been
held at para2raph 53 that to deny a le2iti'ate
!lai' or to restri!t arbitrarily the siEe of an
a7ard 7o+ld a'o+nt to s+bstantial in3+sti!e to
the !lai'ant.
56. A+rther, in a three C+d2e 9en!h de!ision of
this Co+rt in N1@am I%&1&(&$> !ase-s+pra0 it
has been held that if a !ase is 'ade o+t by the
!lai'ant, the !o+rt '+st not be !hary of
a7ardin2 ade1+ate !o'pensation. A+rther, the
!lai'ant !ontends that this Co+rt has re!ently
ref+sed to 1+ash the defa'ation !lai' to the
t+ne of $s.100 !rores in T1m$ 7l+<al
Br+a!0a&1%: C+. L&!. * A%r. <s. Par)(ram
Ba<aram Sa8a%& Q,H5 -Civil0 No-s0 2""7";2011
de!ided on 16112011R, s+22estin2 that in
66
Page 67
appropriate !ases, see'in2ly lar2e a'o+nt of
!o'pensation is 3+stified.
57. The !lai'ant f+rther +r2ed that this is the
f+nda'ental prin!iple for a7ardin2 I3+st
!o'pensationM and this Co+rt has !ate2ori!ally
stated 7hile re'andin2 the !ase ba!B to the
National Co''ission that the prin!iple of 3+st
!o'pensation is based on Irestitutio in
integrum”, i.e. the !lai'ant '+st re!eive the
s+' of 'oney 7hi!h 7o+ld p+t hi' in the sa'e
position as he 7o+ld have been if he had not
s+stained the 7ron2. %t is f+rther !ontended
that the !lai'ant had 'ade a !lai' referred to
s+pra +nder spe!ifi! headin2s in 2reat detail
7ith 3+stifi!ation for ea!h of the heads.
Fnfort+nately, despite referrin2 to 3+di!ial
noti!e and the said !lai'table in its final
3+d2'ent, the National Co''ission has re3e!ted
the entire !lai' on the sole 2ro+nd that sin!e
67
Page 68
the additional !lai' 7as not pleaded earlier,
none of the !lai's 'ade by the !lai'ant !an be
!onsidered. Therefore, the National Co''ission
7as 7ron2 in re3e!tin2 different !lai's 7itho+t
any !onsideration and in ass+'in2 that the
!lai's 'ade by the !lai'ant before the Trib+nal
!annot be !han2ed or 'odified 7itho+t prior
pleadin2s +nder any other !ondition. The said
vie7 of the National Co''ission is !ontrary to
the n+'ero+s follo7in2 de!isions of this Co+rt
7hi!h have opined other7ise:

N1%:amma a%! A%r. <s. U%1&$! I%!1a I%(ra%0$
C+m#a%5 L&!.
16
9 Mala5 '(mar 7a%:(l5> !ase referred
to s+pra, N1@am I%&1&(&$> !ase -s+pra0, Or1$%&al
I%(ra%0$ C+m#a%5 L&!. <s. Ja)(<$% * Or. B(#raD9
R.D. Ha&&a%:a!1 <s. P$& C+%&r+l BI%!1aD P/&. L&!.
* Or
17
9 Ra3 Ra%1 * Or <s. Or1$%&al I%(ra%0$
C+m#a%5 L&!. * Or
18
.9 LaEma% H LaEma% M+(r5a <s.
16
-200"0 13 ,CC 710
17
-1""50 1 ,CC 551
18
(200"0 13 ,CC 656
68
Page 69
D1/11+%al Ma%a:$r <s. Or1$%&al I%(ra%0$ C+. L&!.
* A%r.
1-
and I<ra)1m <s. Ra3( * Or. -s+pra0.

58. The !lai'ant has f+rther ar2+ed that the 3+st
!o'pensation for prospe!tive loss of in!o'e of a
st+dent sho+ld be taBen into !onsideration by
the National Co''ission. %n this re2ard, he has
!ontended that this Co+rt 7hile re'andin2 the
!ase ba!B to the National Co''ission only for
deter'ination of 1+ant+' of !o'pensation, has
'ade !ate2ori!al observations that !o'pensation
for the loss of 7ife to a h+sband '+st depend on
her “educational qualification, her own
upbringing, status, husband’s income, etc.” %n
this re2ard, in the !ase of R.'. Mal12 * A%r.
-s+pra0 -para2raphs 30320 this Co+rt has also
e8pressed si'ilar vie7 that stat+s, f+t+re
prospe!ts and ed+!ational 1+alifi!ation '+st be
3+d2ed for de!idin2 ade1+ate !o'pensation. %t is
19
-20110 10 ,CC 756
69
Page 70
!ontended by the !lai'ant that it is an
+ndisp+ted fa!t that the !lai'ant/s 7ife 7as a
re!ent 2rad+ate in 5sy!holo2y fro' a hi2hly
presti2io+s %vy Hea2+e ,!hool in Ne7 NorB 7ho
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' sho7in2 a paltry in!o'e of
only D 30,000 per year, 7hi!h she 7as earnin2
as a 2rad+ate st+dent. This 7as a 2rave error
on the part of the National Co''ission,
espe!ially, in vie7 of the observations 'ade by
this Co+rt in the !ase of Ar/1%! '(mar M1)ra
<s. N$8 I%!1a A(ra%0$ C+.
20
9 7herein this
Co+rt has !al!+lated 1+ant+' of !o'pensation
based on .reasonable/ ass+'ption abo+t
prospe!tive loss as to ho7 '+!h an @n2ineerin2
st+dent fro' 9%T 'i2ht have earned in f+t+re
20
-20100 10 ,CC 256
70
Page 71
even in the absen!e of any e8pert/s opinion
-para2raphs 13,160. The prin!iples of this !ase
7ere follo7ed in 'any other !ases na'ely, Ra3
'(mar <s. A3a5 '(mar * A%r.
21
, 7+/1%! Ga!a/ <s.
N$8 I%!1a I%(ra%0$ C+. L&!.
22
9 Sr1
Rama0)a%!ra##a <s. Ma%a:$r9 R+5al S(%!aram
All1a%0$ I%(ra%0$
24
9 I<ra)1m <s. Ra3( * Or.
-s+pra09LaEma% H LaEma% M+(r5a <s. D1/11+%al
Ma%a:$r9 Or1$%&al I%(ra%0$ C+. L&!. -s+pra0 and
'a/1&a <s. D1#a2 * Or.
2A
5". %n vie7 of the above said de!isions of this
Co+rt, the prospe!tive loss of in!o'e for the
7ron2f+l death of !lai'ant/s 7ife '+st be
reasonably 3+d2ed based on her f+t+re potential
in the F.,.A. that has also been !al!+lated
s!ientifi!ally by e!ono'i! e8pert, 5rof. Cohn A.
9+rBe.
21
-20110 1 ,CC 363
22
(2011) 10 SCC 683
23
(2011) 13 SCC 236
24
(2012) 8 SCC 604
71
Page 72
60. %t is f+rther the !ase of the !lai'ant that
the National Co''ission has !o'pletely failed to
a7ard I3+st !o'pensationM d+e to non
!onsideration of all the follo7in2 !riti!al
fa!tors:
10 The ?+idelines provided by ,+pre'e
Co+rt: This Co+rt has provided
2+idelines as to ho7 the National
Co''ission sho+ld arrive at an
Iade1+ate !o'pensationM after
!onsideration of the +ni1+e nat+re of
the !ase.
20 ,tat+s and 1+alifi!ation of the vi!ti'
and her h+sband.
30 %n!o'e and standard of livin2 in the
F.,.A.: As both the de!eased and the
!lai'ant 7ere !itiEens of F.,.A. and
per'anently settled as a I!hild
psy!holo2istM and A%)s resear!her,
respe!tively, the !o'pensation in the
72
Page 73
instant !ase '+st be !al!+lated in
ter's of the stat+s and standard of
livin2 in the F.,.A.. I% Pa&r101a
Ma)a3a%> !ase -s+pra0, 7here a 68
year old F, !itiEen died in a road
a!!ident in %ndia, this Co+rt has
a7arded a !o'pensation of 'ore than
$s. 16 !rores after holdin2 that the
!o'pensation in s+!h !ases '+st
!onsider the hi2h stat+s and standard
of livin2 in the !o+ntry 7here the
vi!ti' and the dependent live.
60 @!ono'i! e8pert fro' the F.,.A. :
The !lai'ant initially filed a !o'plaint
before the National Co''ission soon after
the 7ron2f+l death of his 7ife in 1""8
7ith a total !lai' of $s.77.7 !rores
a2ainst the appellant do!tors and A#$%
&ospital 7hi!h 7as re3e!ted and this Co+rt
re'anded this 'atter to the National
73
Page 74
Co''ission for deter'ination of the
1+ant+' of !o'pensation 7ith a spe!ifi!
dire!tion in the final senten!e of
3+d2'ent that Iforei2n e8pertsM 'ay be
e8a'ined thro+2h video !onferen!in2.
50 ,!ientifi! !al!+lation of loss of
in!o'e: The National Co''ission
sho+ld have 'ade s!ientifi!
!al!+lation re2ardin2 the loss of
in!o'e of the !lai'ant. This dire!tion
has been 2iven by this Co+rt in a
n+'ber of !ases. A+rther, he has
!ontended that the !lai'ant 'oved this
Co+rt for video !onferen!in2. The
!lai'ant e8a'ined 5rof. Cohn A. 9+rBe,
a F.,.A. based @!ono'ist of
international rep+te, in #ayC+ne,
2011. 5rof Cohn A. 9+rBe 7as also
!rosse8a'ined by the appellant
do!tors and the A#$% &ospital. 5rof.
74
Page 75
9+rBe s!ientifi!ally !al!+lated and
testified hi'self +nder dire!t as 7ell
as !rosse8a'ination as to ho7 he !a'e
to !al!+late the prospe!tive loss of
in!o'e for a si'ilarly sit+ated person
in F.,.A. as An+radha, the de!eased
and !ate2ori!ally stated that the
dire!t loss of in!o'e for An+radha/s
pre'at+re death 7o+ld a'o+nt to I5
'illion and 125 tho+sand dollarsM.
This loss of in!o'e 7as !al!+lated
after ded+!tion of 1;3
rd
of the a'o+nt
for her personal e8penses. 1;3
rd
ded+!tion of in!o'e for personal
e8penses has also been re!o''ended in
a 3+d2'ent of this Co+rt in the !ase
of Sarla V$rma -s+pra0. 5rof. 9+rBe
has also e8plained ho7 he !al!+lated
the loss of in!o'e d+e to the
pre'at+re death of An+radha and
75
Page 76
f+rther testified that his !al!+lation
for loss of An+radha/s in!o'e 7as a
I/$r5 0+%$r/a&1/$ .+r$0a&C and that
to so'e other esti'ates, the da'a2es
for An+radha/s death !o+ld be I" to 10
'illion dollars. =hile the loss of
in!o'e 7o+ld be '+lti 'illion dollars
as dire!t loss for 7ron2f+l death of
An+radha, it 'ay appear as a fab+lo+s
a'o+nt in the !onte8t of %ndia. This
is +ndo+btedly an avera2e and
le2iti'ate !lai' in the !onte8t of the
instant !ase. And f+rther, it 'ay be
noted that far bi22er a'o+nts of
!o'pensation are ro+tinely a7arded by
the !o+rts in 'edi!al ne2li2en!e !ases
in the F.,.A. %n this re2ard this
Co+rt also 'ade very !lear observation
in I%!1a% M$!10al A+01a&1+% <s. V.P.
S)a%&a * Or.-s+pra09 that to deny a
76
Page 77
le2iti'ate !lai' or to restri!t
arbitrarily the siEe of an a7ard 7o+ld
a'o+nt to s+bstantial in3+sti!e.
60 Hoss of in!o'e of !lai'ant:
The National Co''ission has i2nored the
loss of in!o'e of the !lai'ant tho+2h this
Co+rt has !ate2ori!ally stated 7hile
re'andin2 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 1+ant+' of !o'pensation. The !lai'ant
had in!+rred a h+2e a'o+nt of e8penses in
the !o+rse of the 'ore than 15 years lon2
trial in the instant !ase. These e8penses
in!l+de the enor'o+s !ost for le2al
e8penses as 7ell as e8penses for the
n+'ero+s trips bet7een %ndia and the
F.,.A. over the past 'ore than 12 years.
%n addition to that the !lai'ant has also
77
Page 78
s+ffered h+2e losses d+rin2 this period,
both dire!t loss of in!o'e fro' his 3ob in
F.,.A. as 7ell as indire!t loss for pain
and intense 'ental a2ony for ten+re denial
and ter'ination of his e'ploy'ent at 4hio
,tate Fniversity -4,F0 7hi!h 7as a dire!t
res+lt of the 7ron2f+l death of An+radha
in %ndia as 7o+ld be evident fro' the
3+d2'ent passed by the Co+rt of Clai's in
4hio 7hi!h 7as filed by the A#$% &ospital
on C+ly 18, 2011. The !lai'ant also
s+b'itted an affidavit as dire!ted by the
National Co''ission in 7hi!h the detailed
des!ription abo+t the loss that he
s+ffered in his personal as 7ell as
professional !areer in F.,.A. over the
past 12 years for the 7ron2f+l death of
An+radha, has been 'entioned. Needless to
say that these additional da'a2es and
finan!ial losses the !lai'ant has s+ffered
78
Page 79
sin!e he filed the ori2inal !o'plaint
a2ainst the appellantdo!tors !o+ld not
possibly be a part of the ori2inal !lai'
filed by hi' 15 years a2o.
61. %n vie7 of the !ir!+'stan!es narrated above,
the !lai'ant has referred a revised 1+ant+' of
!lai' 7hi!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 headin2s of
pe!+niary, nonpe!+niary, p+nitive and spe!ial
da'a2es. The individ+al ite's of !lai' have
also been 3+stified 7ith appropriate referen!es
and s+pportin2 'aterials as needed. The total
1+ant+' of !lai' for the 7ron2f+l death of the
!lai'ant/s 7ife no7 stands at $s."7,56,07,000;
in!l+din2 pe!+niary da'a2es of
$s.36,56,07,000;, non pe!+niary da'a2es of
$s.31,50,00,000;, spe!ial da'a2es of F, D
1,000,000; for loss of 3ob in 4hio and p+nitive
79
Page 80
da'a2es of F, D 1,000,000;. This +pdated breaB
+p of the total !lai' has been sho7n in the
!lai'table referred to in the later part of the
3+d2'ent. The !lai'ant respe!tf+lly s+b'its that
the National Co''ission sho+ld have !onsidered
this total !lai' in !on3+n!tion 7ith the
affidavit filed by hi' d+rin2 the !o+rse of
'aBin2 final ar2+'ents. The National Co''ission
also sho+ld have taBen into !onsideration the
le2al prin!iples laid do7n in the !ase of N1@am
I%&1&(&$ -s+pra0 7herein this Co+rt allo7ed the
!lai' of !o'pensation 7hi!h 7as s+bstantially
hi2her than the ori2inal !lai' that he initially
filed in the !o+rt. A+rther, the National
Co''ission o+2ht to have taBen into
!onsideration the observations 'ade in the
re'and order passed by this Co+rt 7hile
deter'inin2 the 1+ant+' of !o'pensation and the
le2iti'ate e8pe!tation for the 7ron2f+l death of
a patient .after fa!torin2 in the position and
80
Page 81
stat+re of the do!tors !on!erned as also the
&ospital/. This Co+rt also held in Malay Kumar
Ganguly’s !ase -s+pra0 that A#$% is one of the
best &ospitals in Cal!+tta, and that the do!tors
7ere the best do!tors available. Therefore, the
!o'pensation in the instant !ase 'ay be enhan!ed
in vie7 of the spe!ifi! observations 'ade by
this Co+rt.
62. Appellantdo!tors )r. ,+B+'ar #+Bher3ee and
)r. 9aidyanath &aldar have atte'pted to !lai' in
their respe!tive appeals that they !annot be
penaliEed 7ith !o'pensation be!a+se they did not
!har2e any fee for treat'ent of the de!eased.
,+!h a !lai' has no le2al basis as in vie7 of
the !ate2ori!al observations 'ade by this Co+rt
in Sa/1&a 7ar: <s. D1r$0&+r9 Na&1+%al H$ar&
I%&1&(&$
26
and in Mala5 '(mar 7a%:(l5> !ase
-s+pra0 7herein this Co+rt has !ate2ori!ally
stated that the aforesaid prin!iple in Sa/1&a
25
(2004) 8 SCC 56
81
Page 82
7ar:> !ase applies to the present !ase also
insofar as it ans7ers the !ontentions raised
before +s that the three senior do!tors did not
!har2e any professional fees.
63. A+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+sin2 death of a
patient fro' 'edi!al ne2li2en!e on the 2ro+nd
that he did not !har2e any fee. %f that 7as
tr+e, poor patients 7ho are so'eti'es treated
for free and patients in 'any !haritable
&ospitals 7o+ld be Billed 7ith i'p+nity by
errant and re!Bless do!tors. %t is +r2ed that
the National Co''ission o+2ht to have !onsidered
the !lai' 'ade for prospe!tive loss of in!o'e of
the appellant/s 7ife and has !o''itted error in
re3e!tin2 the sa'e and it has also re3e!ted the
a'o+nt of the pe!+niary losses of this !lai'ant
+nder separate headin2s 7hi!h are 'entioned in
82
Page 83
the table referred to s+pra in!l+din2 e8penses
that 7ere paid at the dire!tion of the National
Co''ission, na'ely, e8penses relatin2 to video
!onferen!in2 or pay'ent for the Co+rt
Co''issioners. #ost of these dire!t losses 7ere
s+ffered by the !lai'ant as a res+lt of the
7ron2f+l death of his 7ife in the lon2 1+est for
3+sti!e over the past 15 years as a res+lt of
the 7ron2f+l death of his 7ife. The National
Co''ission did not provide any reason as to 7hy
the said !lai's 7ere denied to hi', as per this
Co+rt/s de!ision in C)ara% S1%:) <s. H$al1%:
T+(0) H+#1&al
26
.
66. %t is f+rther +r2ed by the !lai'ant that the
National Co''ission, in applyin2 the '+ltiplier
'ethod as provided in the ,e!ond ,!hed+le +nder
,e!tion 163 A of the #otor <ehi!les A!t, is
erroneo+s to !al!+late !o'pensation in relation
to death d+e to 'edi!al ne2li2en!e.
26
-20020 7 ,CC 668
83
Page 84
65. A+rther, the !lai'ant has taBen s+pport fro'
the follo7in2 'edi!al ne2li2en!e !ases de!ided
by this Co+rt. %t 7as !ontended by the !lai'ant
that o+t of these !ases not a sin2le !ase 7as
de!ided by +sin2 the '+ltiplier 'ethod, s+!h as,
I%!1a% M$!10al A%. <s. V.P. S)a%&a * Or.
B(#raD9 S#r1%: M$a!+8 H+#1&al * A%r <s.
Har3+l A)l(8al1a
27
9 C)ara% S1%:) <s. H$al1%:
T+(0) H+#1&al a%! Or.-s+pra09 J.J. M$r0)a%& *
Or. <s. Sr1%a&) C)a&(r<$!1 -s+pra09 Sa/1&a 7ar:
<s. D1r$0&+r Na&1+%al H$ar& I%&1&(&$ -s+pra09
S&a&$ +. P(%3a< V. S)1/ Ram * Or.-s+pra09
Sam1ra '+)l1 <s. Dr. Pra<)a Ma%0)a%!a * A%r.
-s+pra09 P.7. I%&1&(&$ +. M$!10al S01$%0$ <s.
Ja#al S1%:) * Or.9 -s+pra0 N1@am I%&1&(&$
<s. Praa%& D)a%a%2a -s+pra0 Mala5 '(mar 7a%:(l5
<s. S(2(mar M(2)$r3$$ * Or. -s+pra0 and V.
'1)a% Ra+ <s. N12)1l S(#$r#$01al1&5 H+#1&al *
A%r. -s+pra0.
27
-1""80 6 ,CC 3"
84
Page 85
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 ade1+ate
!o'pensation for death or in3+ry !a+sed d+e to
'edi!al ne2li2en!e e8!ept 7hen the National
Co''ission de!ided the !lai'ant/s !ase after it
7as re'anded ba!B by this Co+rt. $elian!e 7as
pla!ed +pon Sarla V$rma> !ase -s+pra0 at
para2raph 37, 7herein the prin!iple laid do7n
for deter'inin2 !o'pensation +sin2 '+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 +r2ed
that death or per'anent in3+ry to a patient
!a+sed fro' 'edi!al ne2li2en!e is +ndo+btedly a
reprehensible a!t. Co'pensation for death of a
patient fro' 'edi!al ne2li2en!e !annot and
sho+ld not be !o'pensated si'ply by +sin2 the
'+ltiplier 'ethod. %n s+pport of this !ontention
85
Page 86
he has pla!ed relian!e +pon the N1@am
I%&1&(&$> !ase -s+pra0 at para2raph "2,
7herein the Co+rt has re3e!ted the spe!ifi!
!lai' 'ade by the 2+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 7as 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 7ith the !ase of death fro' 'edi!al
ne2li2en!e +nder any !ondition. The aforesaid
approa!h in adoptin2 the '+ltiplier 'ethod to
deter'ine the 3+st !o'pensation 7o+ld be
da'a2in2 for so!iety for the reason that the
r+les for +sin2 the '+ltiplier 'ethod to the
notional in!o'e of only $s.15,000; per year
7o+ld be taBen as a '+ltipli!and. %n !ase, the
86
Page 87
vi!ti' has no in!o'e then a '+ltiplier of 18 is
the hi2hest '+ltiplier +sed +nder the provision
of ,e!tions 163 A of the #otor <ehi!les a!t read
7ith the ,e!ond ,!hed+le. Therefore, if a !hild,
ho+se7ife or other non7orBin2 person fall
vi!ti' to re!Bless 'edi!al treat'ent by 7ay7ard
do!tors, the 'a8i'+' pe!+niary da'a2es that the
+nfort+nate vi!ti' 'ay !olle!t 7o+ld be only
$s.1.8 laBh. %t is stated in vie7 of the
aforesaid reasons that in today/s %ndia,
&ospitals, N+rsin2 &o'es and do!tors 'aBe laBhs
and !rores of r+pees on a re2+lar basis. Fnder
s+!h s!enario, allo7in2 the '+ltiplier 'ethod to
be +sed to deter'ine !o'pensation in 'edi!al
ne2li2en!e !ases 7o+ld not have any deterrent
effe!t on the' for their 'edi!al ne2li2en!e b+t
in !ontrast, this 7o+ld en!o+ra2e 'ore in!idents
of 'edi!al ne2li2en!e in %ndia brin2in2 even
2reater dan2er for the so!iety at lar2e.
87
Page 88
68. %t is f+rther +r2ed by the !lai'ant that the
National Co''ission has failed to a7ard any
!o'pensation for the intense pain and s+fferin2
that the !lai'ant/s 7ife had to s+ffer d+e to
the ne2li2ent treat'ent by do!tors and A#$%
&ospital b+t the National Co''ission had 'ade a
paltry a7ard e1+ivalent to D 20,000 for the
enor'o+s and lifelon2 pain, s+fferin2, loss of
!o'panionship and a'enities that the +nfort+nate
!lai'ant has been p+t thro+2ho+t his life by the
ne2li2ent a!t of the do!tors and the A#$%
&ospital.
6". The !lai'ant f+rther !ontended that he is
entitled to spe!ial da'a2es for losses that he
s+ffered +pto the date of trial as held by this
Co+rt 7hile re'andin2 this 'atter in Mala5 '(mar
7a%:(l5/s !ase ba!B to the National Co''ission.
Th+s, the !lai'ant filed a le2iti'ate !lai' for
spe!ial da'a2es for the losses s+stained by hi'
88
Page 89
in the !o+rse of 15 years lon2 trial in!l+din2
the loss of his e'ploy'ent at the 4hio ,tate
Fniversity and res+ltant position of banBr+pt!y
and ho'e fore!los+re. The National Co''ission
did not provide any reason for re3e!tin2 the
said !lai' 7hi!h is in violation of the
observations 'ade in C)ara% S1%:)> !ase
-s+pra0.
70. A+rther, this Co+rt has affir'ed the
prin!iple re2ardin2 deter'ination of 3+st
!o'pensation in the follo7in2 !ases that
inflation sho+ld be !onsidered 7hile de!idin2
1+ant+' of !o'pensation: R$)ma '(mar1 * Or.
<s. Ma!a% M+)a% * A%r. -s+pra0, 7+/1%! Ga!a/ <s.
N$8 I%!1a% I%(ra%0$ C+. L&!. -s+pra0and I<ra)1m
<s. Ra3( * Or. -s+pra0.
71. Fsin2 the !ost of inflation inde8 -in short
C.%.%.0 as p+blished by the ?ovt. of %ndia, the
ori2inal !lai' of $s.77.7 !rores 'ade by the
89
Page 90
!lai'ant in 1""8 7o+ld be e1+ivalent to
$s.188.6 !rores as of 20122013. The
'athe'ati!al !al!+lation in this re2ard has been
presented in the short note s+b'itted by the
!lai'ant. Th+s, the !o'pensation payable for the
7ron2f+l death of !lai'ant/s 7ife 7o+ld stand
today at $s.188.6 !rores and not $s.77.7 !rores
as ori2inally !lai'ed by hi' in 1""8 7itho+t
taBin2 into !onsideration the vario+s relevant
aspe!ts referred to s+pra and proper 2+idan!e
and advi!e in the 'atter.
72. A+rther, it is +r2ed by the !lai'ant that he
is entitled to interest on the !o'pensation at
reasonable rate as the National Co''ission has
a7arded interest P 12G b+t only in !ase of
defa+lt by the appellant do!tors and the A#$%
&ospital to pay the !o'pensation 7ithin 8 7eeBs
after the 3+d2'ent 7hi!h 7as delivered on
4!tober 21, 2011. That 'eans, the National
90
Page 91
Co''ission did not 2rant any interest for the
last 15 years lon2 period on the !o'pensation
a7arded in favo+r of the !lai'ant as this !ase
7as pendin2 before the 3+di!ial syste' in %ndia
for 7hi!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(ra51l Sara<1 * Or. <s.
U%1+% +. I%!1a * A%r.
28
.
73. &e has also pla!ed relian!e +pon in
3+stifi!ation of his !lai' of e8e'plary or
p+nitive da'a2es. A !lai' of F, D 1,000,000 as
p+nitive da'a2es has been 'ade a2ainst the A#$%
&ospital and )r. ,+B+'ar #+Bher3ee as provided
in the table. %n s+pport of this !ontention he
pla!ed stron2 relian!e on La%!:ra. <s. USI F1lm
Pr+!
2-
and this Co+rt/s de!ision in D$&r(0&1+%
+. P(<l10 a%! Pr1/a&$ Pr+#$r&1$ <s. S&a&$ +.
A.P.
40
9 7herein it is held that p+nitive or
28
(2009) 7 SCC 372
29
511 U.S. 244, 1994
30
(2009) 5 SCC 212
91
Page 92
e8e'plary da'a2es have been 3+stifiably a7arded
as a deterrent in the f+t+re for o+tra2eo+s and
reprehensible a!t on the part of the a!!+sed. %n
fa!t p+nitive da'a2es are ro+tinely a7arded in
'edi!al ne2li2en!e !ases in 7estern !o+ntries
for re!Bless and reprehensible a!t by the
do!tors or &ospitals in order to send a
deterrent 'essa2e 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 ,$l0) <s.
E#&$1%
41
held that a ne+ros+r2eon is 2+ilty for
re!Bless therapy after he +sed a dr+2 in !lear
disre2ard to the 7arnin2 2iven by the dr+2
'an+fa!t+rer !a+sin2 the death of a patient.
This Co+rt has !ate2ori!ally held that the
in3e!tion )epo'edrol +sed at the rate of 80 '2
t7i!e daily by )r. ,+B+'ar #+Bher3ee 7as in
!lear violation of the 'an+fa!t+rer/s 7arnin2
and re!o''endation and ad'ittedly, the
31
536 S.E. 2d 408 2000
92
Page 93
instr+!tion re2ardin2 dire!tion for +se of the
'edi!ine had not been follo7ed in the instant
!ase. This Co+rt has also 'ade it !lear that the
e8!essive +se of the 'edi!ine by the do!tor 7as
o+t of sheer i2noran!e of basi! haEards relatin2
to the +se of steroids as also la!B of 3+d2'ent.
No do!tor has the ri2ht to +se the dr+2 beyond
the 'a8i'+' re!o''ended dose.
76. The ,+pre'e Co+rt of 4hio in Dar!1%:$r <s.
A%&)$m Bl($ Cr+ S)1$l! $& al
42
. had 3+d2ed that
sin!e D 6" 'illion p+nitive da'a2es 7as
e8!essive it still a7arded F, D1" 'illion in a
!ase of 'edi!al ne2li2en!e. The aforesaid
3+d2'ents fro' the F.,.A. !learly sho7 that
p+nitive da'a2es +s+ally are 'any ti'es bi22er
than the !o'pensatory da'a2es. A no'inal a'o+nt
of F, D 1,000,000 has been !lai'ed as p+nitive
da'a2es in the instant !ase to send a deterrent
'essa2e to the re!Bless do!tors in %ndia Beepin2
32
781 N.E. 2d, 2002
93
Page 94
in vie7 the 'a3or differen!e in the standard of
livin2 bet7een %ndia and F.,.A. %n fa!t, this
Co+rt in a 7ellBno7n !ase of La&a ,a!)8a
-s+pra0 in 7hi!h a n+'ber of !hildren and 7o'en
died fro' an a!!idental fire, a7arded p+nitive
da'a2es to send a 'essa2e a2ainst the +nsafe
!ondition Bept by so'e 2reedy or2aniEations or
!o'panies in the !o''on p+bli! pla!es in %ndia.
75. %t 7as f+rther !ontended by the !lai'ant that
this Co+rt re'anded the !ase ba!B to the
National Co''ission for deter'ination of the
1+ant+' of !o'pensation only b+t the National
Co''ission in !lear disre2ard to the dire!tion
iss+ed by this Co+rt, has ree8a'ined the iss+es
involved for 'edi!al ne2li2en!e. A+rther, in
Mala5 '(mar 7a%:(l5> !ase, this Co+rt has
re3e!ted the assertion 'ade by the do!tors of
the &ospital that the !lai'ant had interfered
7ith the treat'ent of his 7ife or that other
94
Page 95
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 7ron2f+lly
apportioned the total a'o+nt of !o'pensation by
losin2 si2ht of the observations 'ade by this
Co+rt 7hile re'andin2 the !ase ba!B to it for
deter'ination of the 1+ant+' of !o'pensation.
This Co+rt did not 'aBe any observation as to
ho7 the !o'pensation sho+ld be divided, as
a7arded by the National Co''ission. @8!ept for
the appellant)r. ,+B+'ar #+Bher3ee 7ho 7as
i'posed 7ith a !ost of $s.5,00,000; this Co+rt
did not i'pose !ost a2ainst any other do!tors
even tho+2h the Co+rt fo+nd other appellant
do!tors also 2+ilty for 'edi!al ne2li2en!e.
77. %t is f+rther !ontended that the National
Co''ission on 31
st
#ar!h, 2010 in S.P. A::ar8al
95
Page 96
<s. Sa%3a5 7a%!)1 P.7. I%&1&(&$ -AA
No.678;20050 held that Iin vie7 of the fa!t that
several do!tors and para'edi!al staff of the
appellant instit+te 7ere involved, it is the
appellant instit+te 7hi!h has to be held
vi!ario+sly liable to !o'pensate the !o'plainant
to the above e8tent.M
78. %t is f+rther +r2ed that in N1@am I%&1&(&$>
!ase -s+pra0 this Co+rt i'posed the entire
!o'pensation a2ainst the &ospital despite
holdin2 several do!tors responsible for !a+sin2
per'anent in3+ry to the patient. =hile re'andin2
ba!B the iss+e of 1+antifyin2 the 1+ant+' of
!o'pensation to the National Co''ission, this
Co+rt has observed that the standard of 'edi!al
n+rsin2 !are at the A#$% &ospital 7as abys'al.
%t is f+rther s+b'itted that 80G of the total
!o'pensation sho+ld be i'posed a2ainst the A#$%
96
Page 97
&ospital and 20G a2ainst )r. ,+B+'ar #+Bher3ee.
The !lai'ant has !lai'ed the da'a2es as +nder :
PECUNIARG DAMA7ES=
A C+& a+01a&$! 81&) &)$ /10&1m9 A%(ra!)a Sa)a
1 Hoss of prospe!tive;f+t+re
earnin2 +pto to 70 years
$s.",25,00,000;
2 Hoss of F, ,o!ial ,e!+rity
in!o'e +p to 82 years
$s.1,66,00,000;
3 5aid for treat'ent at
A#$%;9rea!h Candy &ospital
$s.12,00,000;
6 5aid for !hartered fli2ht to
transfer An+radha
$s. ",00,000;
5 Travel;hotel;other e8penses
d+rin2 An+radha/s treat'ent in
#+'bai; *olBata in 1""8
$s. 7,00,000;
6 5aid for !o+rt pro!eedin2s
in!l+din2 video !onferen!in2
fro' F.,.A.
$s.11,57,000;
9 C+& a+01a&$! 81&) A%(ra!)a> )(<a%!9 Dr. '(%al
Sa)a
1 Hoss of in!o'e for 'issed 7orB $s.1,12,50,000;
2 Travel e8penses over the past
12 years
$s.70,00,000;
C L$:al $E#$%$
1 Advo!ate fees $s.1,50,00,000;
2 other le2al e8penses $s.15,00,000;
Total pe!+niary da'a2es
$s.36,56,07,000;
N+%IP$0(%1ar5 S#$01al Dama:$
97
Page 98
1 Hoss of !o'panionship and life
a'enities
$s.13,50,00,000;
2 @'otional distress, pain and
s+fferin2 for h+sband
$s.50,00,000;
3 5ain;s+fferin2 end+red by the
vi!ti' d+rin2 therapy
$s.6,50,00,000;
Total non pe!+niary da'a2es $s.31,50,00,000;
) PUNITIVEFEJEMPLARG DAMA7ES $s.13,50,00,000;
@ SPECIAL DAMA7ES $s.18,00,00,000;
T+&al $s."7,56,07,000;
Therefore, the !lai'ant has prayed for allo7in2 his
appeal by a7ardin2 3+st and reasonable !o'pensation
+nder vario+s heads as !lai'ed by hi'.
7". 4n the basis of the rival le2al fa!t+al and
!ontentions +r2ed on behalf of the respe!tive
do!torappellants, &ospital and the !lai'ant,
the follo7in2 points 7o+ld arise for
!onsideration of this Co+rt:
10 =hether the !lai' of the !lai'ant
for enhan!e'ent of !o'pensation in his
appeal is 3+stified. %f it is so, for
7hat !o'pensation he is entitled toK
98
Page 99
20 =hile 'aBin2 additional !lai' by 7ay
of affidavit before the National
Co''ission 7hen a'endin2 the !lai'
petition, 7hether the !lai'ant is
entitled for !o'pensation on the
enhan!ed !lai' preferred before the
National Co''issionK
3-a0 =hether the !lai'ant seeBin2 to a'end
the !lai' of !o'pensation +nder !ertain
heads in the ori2inal !lai' petition has
forfeited his ri2ht of !lai' +nder 4rder
%% $+le 2 of C5C as pleaded by the A#$%
&ospitalK
3-b0 =hether the !lai'ant is 3+stified in
!lai'in2 additional a'o+nt for
!o'pensation +nder different heads 7itho+t
follo7in2 the pro!ed+re !onte'plated +nder
the provisions of the Cons+'er 5rote!tion
A!t and the $+lesK
99
Page 100
6. =hether the National Co''ission is
3+stified in adoptin2 the '+ltiplier
'ethod to deter'ine the !o'pensation and
to a7ard the !o'pensation in favo+r of
the !lai'antK
5. =hether the !lai'ant is entitled to
pe!+niary da'a2es +nder the heads of
loss of e'ploy'ent, loss of his property
and his travelin2 e8penses fro' F.,.A.
to %ndia to !ond+!t the pro!eedin2s in
his !lai' petitionK
6.=hether the !lai'ant is entitled to the
interest on the !o'pensation that 7o+ld
be a7ardedK
7. =hether the !o'pensation a7arded in
the i'p+2ned 3+d2'ent and the
apportion'ent of the !o'pensation a'o+nt
fastened +pon the do!tors and the hospital
re1+ires interferen!e and 7hether the
!lai'ant is liable for !ontrib+tory
100
Page 101
ne2li2en!e and ded+!tion of !o'pensation
+nder this headK
8. To 7hat 4rder and A7ard the !lai'ant
is entitled to in these appealsK
80. %t 7o+ld be !onvenient for +s to taBe +p
first the Civil Appeal No. 2866 of 2012 filed by
)r. *+nal ,aha, the !lai'ant, as he had so+2ht
for enhan!e'ent of !o'pensation. %f 7e ans7er
his !lai' then the other iss+es that 7o+ld arise
in the !onne!ted appeals filed by the do!tors
and the A#$% &ospital !an be disposed of later
on. Therefore, the points that 7o+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 ans7ered by re!ordin2 the
follo7in2 reasons:
A%8$r &+ P+1%& %+. 19 2 a%! 4
101
Page 102
81. 5oint Nos. 1, 2 and 3 are taBen +p to2ether
and ans7ered sin!e they are inter related.
The !lai' for enhan!e'ent of !o'pensation by
the !lai'ant in his appeal is 3+stified for the
follo7in2 reasons:
The National Co''ission has re3e!ted the !lai'
of the !lai'ant for IinflationM 'ade by hi' 7itho+t
assi2nin2 any reason 7hatsoever. %t is an
+ndisp+ted fa!t that the !lai' of the !o'plainant
has been pendin2 before the National Co''ission and
this Co+rt for the last 15 years. The val+e of
'oney that 7as !lai'ed in 1""8 has been deval+ed to
a 2reat e8tent. This Co+rt in vario+s follo7in2
!ases has repeatedly affir'ed that inflation of
'oney sho+ld be !onsidered 7hile de!idin2 the
1+ant+' of !o'pensation:
I% R$)ma '(mar1 a%! Or. <s. Ma!a% M+)a% a%!
A%r. -s+pra0, this Co+rt at para 67 has dealt 7ith
this aspe!t as +nder:
102
Page 103
I67.4ne of the in!idental iss+es 7hi!h
has also to be taBen into !onsideration
is inflation. %s the pra!ti!e of taBin2
inflation into !onsideration 7holly
in!orre!tK Fnfort+nately, +nliBe other
developed !o+ntries in %ndia there has
been no s!ientifi! st+dy. %t is e8pe!ted
that 7ith the risin2 inflation the rate
of interest 7o+ld 2o +p. %n %ndia it does
not happen. %t, therefore, 'ay be a
relevant fa!tor 7hi!h 'ay be taBen into
!onsideration for deter'inin2 the a!t+al
2ro+nd reality. No hardandfast r+le,
ho7ever, !an be laid do7n therefor.M
%n 7+/1%! Ga!a/ <s. N$8 I%!1a I%(ra%0$ C+m#a%5
L&!.-s+pra09 this !o+rt at para 15 observed as
+nder 7hi!h 2ot reiterated at para2raph 13 of
I<ra)1m <s. Ra3( * Or. -s+pra0=I
I15. %n Reshma Kumari v. Madan Mohan this
Co+rt reiterated that the !o'pensation
a7arded +nder the A!t sho+ld be 3+st and
also identified the fa!tors 7hi!h sho+ld
be Bept in 'ind 7hile deter'inin2 the
a'o+nt of !o'pensation. The relevant
portions of the 3+d2'ent are e8tra!ted
belo7: -,CC pp. 63132 S 66061, paras 26
27 S 66670
‘!. The !o'pensation 7hi!h is re1+ired to
be deter'ined '+st be 3+st. =hile the
!lai'ants are re1+ired to be !o'pensated
for the loss of their dependen!y, the sa'e
sho+ld not be !onsidered to be a 7indfall.
Fn3+st enri!h'ent sho+ld be dis!o+ra2ed.
103
Page 104
This Co+rt !annot also lose si2ht of the
fa!t that in 2iven !ases, as for e8a'ple
death of the only son to a 'other, she !an
never be !o'pensated in 'onetary ter's.
". The 1+estion as to the 'ethodolo2y
re1+ired to be applied for deter'ination
of !o'pensation as re2ards prospe!tive
loss of f+t+re earnin2s, ho7ever, as far
as possible sho+ld be based on !ertain
prin!iples. A person 'ay have a bri2ht
f+t+re prospe!t> he 'i2ht have be!o'e
eli2ible to pro'otion i''ediately> there
'i2ht have been !han!es of an i''ediate
pay revision, 7hereas in another -si!
sit+ation0 the nat+re of e'ploy'ent 7as
s+!h that he 'i2ht not have !ontin+ed in
servi!e> his !han!e of pro'otion, havin2
re2ard 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 do7n ri2id
tests 7hi!h sho+ld be applied in all
sit+ations. There are diver2ent vie7s. %n
so'e !ases it has been s+22ested that so'e
sort of hypotheses or 2+ess7orB 'ay be
inevitable. That 'ay be so./
T T T
#!. $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
104
Page 105
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 which
the 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 Ainan!e
#inistry of Fnion of %ndia every year in order
to appre!iate the level of deval+ation of 'oney
ea!h year. Fsin2 the C.%.%. as p+blished by the
?overn'ent of %ndia, the ori2inal !lai' of
$s.77.7 !rores preferred by the !lai'ant in 1""8
7o+ld be e1+ivalent to $s.188.6 !rores as of
2013 and, therefore the enhan!ed !lai' preferred
by the !lai'ant before the National Co''ission
105
Page 106
and before this Co+rt is le2ally 3+stifiable as
this Co+rt is re1+ired to deter'ine the 3+st,
fair and reasonable !o'pensation. Therefore, the
!ontention +r2ed by the appellantdo!tors and
the A#$% &ospital that in the absen!e of
pleadin2s in the !lai' petition before the
National Co''ission and also in the li2ht of the
in!ident that the s+bse1+ent appli!ation filed
by the !lai'ant seeBin2 for a'end'ent to the
!lai' in the prayer of the !o'plainant bein2
re3e!ted, the additional !lai' 'ade by the
!lai'ant !annot be e8a'ined for 2rant of
!o'pensation +nder different heads is 7holly
+ns+stainable in la7 in vie7 of the de!isions
rendered by this Co+rt in the aforesaid !ases.
Therefore, this Co+rt is re1+ired to !onsider
the relevant aspe!t of the 'atter na'ely, that
there has been steady inflation 7hi!h sho+ld
have been !onsidered over period of 15 years and
that 'oney has been deval+ed 2reatly. Therefore,
106
Page 107
the de!ision of the National Co''ission in
!onfinin2 the 2rant of !o'pensation to the
ori2inal !lai' of $s.77.7 !rores preferred by
the !lai'ant +nder different heads and a7ardin2
'ea2er !o'pensation +nder the different heads in
the i'p+2ned 3+d2'ent, is 7holly +ns+stainable
in la7 as the sa'e is !ontrary to the le2al
prin!iples laid do7n by this Co+rt in !atena of
!ases referred to s+pra. =e, therefore, allo7
the !lai' of the !lai'ant on enhan!e'ent of
!o'pensation to the e8tent to be dire!ted by
this Co+rt in the follo7in2 para2raphs.
83. 9esides enhan!e'ent of !o'pensation, the
!lai'ant has so+2ht 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 7hi!h 7o+ld have never happened b+t for
107
Page 108
the 7ron2f+l death of his 7ife. The !lai'ant
has pla!ed relian!e on the f+nda'ental prin!iple
to be follo7ed by the Trib+nals, )istri!t
Cons+'er Aor+', ,tate Cons+'er Aor+', and the
National Co''ission and the !o+rts for a7ardin2
.3+st !o'pensation/. %n s+pport of this
!ontention, he has also stron2ly pla!ed relian!e
+pon the observations 'ade at para 170 in the
Malay Kumar Ganguly’s !ase referred to s+pra
7herein this Co+rt has 'ade observations as
th+s:
I170. %ndisp+tably, 2rant of !o'pensation
involvin2 an a!!ident is 7ithin the real'
of la7 of torts. %t is based on the
prin!iple of restitutio in integrum. The
said prin!iple provides that a person
entitled to da'a2es sho+ld, as nearly as
possible, 2et that s+' of 'oney 7hi!h
7o+ld p+t hi' in the sa'e position as he
7o+ld have been if he had not s+stained
the 7ron2. -,ee -i&ingstone v. Raw)ards
+oal +o.0M
The !lai'ant 'ade a !lai' +nder spe!ifi! heads
in 2reat detail in 3+stifi!ation for ea!h one of
108
Page 109
the !lai' 'ade by hi'. The National Co''ission,
despite taBin2 3+di!ial noti!e of the !lai' 'ade by
the !lai'ant in its 3+d2'ent, has re3e!ted the
entire !lai' solely on the 2ro+nd that the
additional !lai' 7as not pleaded earlier,
therefore, none of the !lai's 'ade by hi' !an be
!onsidered. The re3e!tion of the additional !lai's
by the National Co''ission 7itho+t !onsideration on
the ass+'ption that the !lai's 'ade by the !lai'ant
before the National Co''ission !annot be !han2ed or
'odified 7itho+t pleadin2s +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:
-a0 %n N1%:amma> !ase -s+pra0, this Co+rt has
observed at para 36 7hi!h reads th+s:
I36. Fndo+btedly, ,e!tion 166 of the #<A
deals 7ith I3+st !o'pensationM and even
if in the pleadin2s no spe!ifi! !lai' 7as
'ade +nder ,e!tion 166 of the #<A, in o+r
!onsidered opinion a party sho+ld not be
109
Page 110
deprived fro' 2ettin2 I3+st !o'pensationM
in !ase the !lai'ant is able to 'aBe o+t
a !ase +nder any provision of la7.
Needless to say, the #<A is benefi!ial
and 7elfare le2islation. %n fa!t, the
!o+rt is d+tybo+nd and entitled to a7ard
I3+st !o'pensationM irrespe!tive of the
fa!t 7hether any plea in that behalf 7as
raised by the !lai'ant or not.
-b0 %n Mala5 '(mar 7a%:(l5> !ase, this Co+rt
by pla!in2 relian!e on the de!ision of this Co+rt
in R.D. Hattangadi <s. Pest Control (India) (P)
Ltd.,-s+pra0 'ade observation 7hile re'andin2 ba!B
the 'atter to National Co''ission solely for the
deter'ination of 1+ant+' of !o'pensation, that
!o'pensation sho+ld in!l+de Iloss of earnin2 of
profit +p to the date of trialM and that it 'ay
also in!l+de any loss Ialready s+ffered or is
liBely to be s+ffered in f+t+reM. $i2htly, the
!lai'ant has !ontended that 7hen ori2inal !o'plaint
7as filed soon after the death of his 7ife in 1""8,
it 7o+ld be i'possible for hi' to file a !lai' for
I3+st !o'pensationM for the pain that the !lai'ant
s+ffered in the !o+rse of the 15 years lon2 trial.
110
Page 111
!0 %n N1@am I%&1&(&$> !ase s+pra, the
!o'plainant had so+2ht a !o'pensation of $s.6.61
!rores before the National Co''ission b+t he
enhan!ed his !lai' to $s 7.50 !rores 7hen the
'atter !a'e +p before this Co+rt. %n response to
the !lai', this Co+rt held as +nder:
I82. The !o'plainant, 7ho has ar2+ed his
o7n !ase, has s+b'itted 7ritten
s+b'issions no7 !lai'in2 abo+t $s 7.50
!rores as !o'pensation +nder vario+s
heads. &e has, in addition so+2ht a
dire!tion that a f+rther s+' of $s 2
!rores be set aside to be +sed by hi'
sho+ld so'e develop'ents benefi!ial to hi'
in the 'edi!al field taBe pla!e. ,o'e of
the !lai's are +ntenable and 7e have no
hesitation in re3e!tin2 the'. =e, ho7ever,
find that the !lai' 7ith respe!t to so'e
of the other ite's need to be allo7ed or
enhan!ed in vie7 of the pe!+liar fa!ts of
the !ase.M
d0 %n Or1$%&al I%(ra%0$ C+m#a%5 L&!. <s.
Ja)(<$% * Or. -s+pra09 the initial !lai' 7as for
$s.12 laBhs 7hi!h 7as s+bse1+ently raised to $s.25
laBhs. The !lai' 7as partly allo7ed by this Co+rt.
111
Page 112
e0 %n R.D. Ha&&a%:a!1 <s. P$& C+%&r+l
BI%!1aD -s+pra0 the appellant 'ade an initial
!o'pensation !lai' of $s.6 laBhs b+t later on
enhan!ed the !lai' to $s.35 laBhs by this Co+rt.
f0 %n Ra3 Ra%1 * Or. <s. Or1$%&al I%(ra%0$
C+m#a%5 L&!. * Or.9-s+pra0 this Co+rt has observed
that there is no restri!tion that !o'pensation
!o+ld be a7arded only +p to the a'o+nt !lai'ed by
the !lai'ant. The relevant para2raph reads as
+nder:
K16. %n 1agappa v. 2uruda)al 3ingh this
Co+rt has held as +nder: -,CC p. 27",
para 70
I". Airstly, +nder the provisions of the
#otor <ehi!les A!t, 1"88, -hereinafter
referred to as .the #< A!t/0 there is no
restri!tion that !o'pensation !o+ld be
a7arded only +p to the a'o+nt !lai'ed by
the !lai'ant. %n an appropriate !ase,
7here fro' the eviden!e bro+2ht on re!ord
if the Trib+nal;!o+rt !onsiders that the
!lai'ant is entitled to 2et 'ore
!o'pensation than !lai'ed, the Trib+nal
'ay pass s+!h a7ard. The only e'bar2o isU
it sho+ld be .3+st/ !o'pensation, that is
to say, it sho+ld be neither arbitrary,
fan!if+l nor +n3+stifiable fro' the
112
Page 113
eviden!e. This 7o+ld be !lear by
referen!e to the relevant provisions of
the #< A!t.M
20 %n LaEma% H LaEama% M+(r5a <s. D1/11+%al
Ma%a:$r9 Or1$%&al I%(ra%0$ C+. L&!. * A%r.9-s+pra0
this Co+rt a7arded 'ore !o'pensation than 7hat 7as
!lai'ed by the !lai'ant after 'aBin2 the follo7in2
!ate2ori!al observations:
I%n the absen!e of any bar in the A!t, the
Trib+nal and for that reason, any
!o'petent !o+rt, is entitled to a7ard
hi2her !o'pensation to the vi!ti' of an
a!!identM
h0 %n I<ra)1m <s. Ra3( * Or.9-s+pra0 this
Co+rt a7arded do+ble the !o'pensation so+2ht for by
the !o'plainant after dis!+ssion of host of
previo+s 3+d2'ents.
86. %n vie7 of the aforesaid de!isions of this
Co+rt referred to s+pra, 7herein this Co+rt has
a7arded .3+st !o'pensation/ 'ore than 7hat 7as
!lai'ed by the !lai'ants initially and therefore,
the !ontention +r2ed by learned senior !o+nsel and
113
Page 114
other !o+nsel on behalf of the appellantdo!tors
and the A#$% &ospital that the additional !lai'
'ade by the !lai'ant 7as ri2htly not !onsidered by
the National Co''ission for the reason that the
sa'e is not s+pported by pleadin2s by filin2 an
appli!ation to a'end the sa'e re2ardin2 the 1+ant+'
of !o'pensation and the sa'e !o+ld not have been
a'ended as it is barred by the li'itation provided
+nder ,e!tion 23 of the Cons+'er 5rote!tion A!t,
1"86 and the !lai'ant is also not entitled to seeB
enhan!ed !o'pensation in vie7 of 4rder %% $+le 2
of the C5C as he had restri!ted his !lai' at
$s.77,07,65,000;, is not s+stainable in la7. The
!lai'ant has appropriately pla!ed relian!e +pon the
de!isions of this Co+rt in 3+stifi!ation of his
additional !lai' and the findin2 of fa!t on the
basis of 7hi!h the National Co''ission re3e!ted the
!lai' is based on +ntenable reasons. =e have to
re3e!t the !ontention +r2ed by the learned senior
!o+nsel and other !o+nsel on behalf of the
114
Page 115
appellantdo!tors and the A#$% &ospital as it is
7holly +ntenable in la7 and is !ontrary to the
aforesaid de!isions of this Co+rt referred to
s+pra. =e have to a!!ept the !lai' of the !lai'ant
as it is s+pported by the de!isions of this Co+rt
and the sa'e is 7ell fo+nded in la7. %t is the d+ty
of the Trib+nals, Co''issions and the Co+rts to
!onsider relevant fa!ts and eviden!e in respe!t of
fa!ts and !ir!+'stan!es of ea!h and every !ase for
a7ardin2 3+st and reasonable !o'pensation.
Therefore, 7e are of the vie7 that the !lai'ant is
entitled for enhan!ed !o'pensation +nder !ertain
ite's 'ade by the !lai'ant in additional !lai'
preferred by hi' before the National Co''ission.
=e have to Beep in vie7 the fa!t that this Co+rt
7hile re'andin2 the !ase ba!B to the National
Co''ission only for the p+rpose of deter'ination of
1+ant+' of !o'pensation also 'ade !ate2ori!al
observation that:

115
Page 116
I172. Hoss of 7ife to a h+sband 'ay al7ays
be tr+ly !o'pensated by 7ay of 'andatory
!o'pensation. &o7 one 7o+ld do it has been
bafflin2 the !o+rt for a lon2 ti'e. Aor
!o'pensatin2 a h+sband for loss of his
7ife, therefore, the !o+rts !onsider the
loss of in!o'e to the fa'ily. %t 'ay not
be diffi!+lt to do 7hen she had been
earnin2. @ven other7ise a 7ife/s
!ontrib+tion to the fa'ily in ter's of
'oney !an al7ays be 7orBed o+t. @very
ho+se7ife 'aBes a !ontrib+tion to his
fa'ily. %t is !apable of bein2 'eas+red on
'onetary ter's altho+2h e'otional aspe!t
of it !annot be. %t depends +pon her
ed+!ational 1+alifi!ation, her o7n
+pbrin2in2, stat+s, h+sband/s in!o'e,
et!.M
Q@'phasis laid by this Co+rtR
%n this re2ard, this Co+rt has also e8pressed
si'ilar vie7 that stat+s, f+t+re prospe!ts and
ed+!ational 1+alifi!ation of the de!eased '+st be
3+d2ed for de!idin2 ade1+ate, 3+st and fair
!o'pensation as in the !ase of R.'. Mal12 * A%r.
-s+pra0.
85. A+rther, it is an +ndisp+ted fa!t that the
vi!ti' 7as a 2rad+ate in psy!holo2y fro' a hi2hly
presti2io+s %vy Hea2+e s!hool in Ne7 NorB. ,he had
116
Page 117
a brilliant f+t+re ahead of her. &o7ever, 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 sho7in2 a paltry in!o'e of
only D30,000 per year 7hi!h she 7as earnin2 as a
2rad+ate st+dent. Therefore, the National
Co''ission has !o''itted 2rave error in taBin2 that
fi2+re to deter'ine !o'pensation +nder the head of
loss of dependen!y and the sa'e is !ontrary to the
observations 'ade by this Co+rt in the !ase of
Ar/1%! '(mar M1)ra <s. N$8 I%!1a A(ra%0$ 7hi!h
reads as +nder:
I16. 4n !o'pletion of 9a!helor of
@n2ineerin2 -#e!hani!al0 fro' the
presti2io+s instit+te liBe 9%T, it !an be
reasonably ass+'ed that he 7o+ld have 2ot
a 2ood 3ob. The appellant has stated in
his eviden!e that in the !a'p+s intervie7
he 7as sele!ted by Tata as 7ell as
$elian!e %nd+stries and 7as offered pay
pa!Ba2e of $s. 3,50,000 per ann+'. @ven if
that is not a!!epted for 7ant of any
eviden!e in s+pport thereof, there 7o+ld
not have been any diffi!+lty for hi' in
2ettin2 so'e de!ent 3ob in the private
se!tor. &ad he de!ided to 3oin 2overn'ent
servi!e and 2ot sele!ted, he 7o+ld have
117
Page 118
been p+t in the pay s!ale for Assistant
@n2ineer and 7o+ld have at least earned
$s. 60,000 per ann+'. =herever he 3oined,
he had a fair !han!e of so'e pro'otion and
re'ote !han!e of so'e hi2h position. 9+t
+n!ertainties of life !annot be i2nored
taBin2 relevant fa!tors into
!onsideration. %n o+r opinion, it is fair
and reasonable to assess his f+t+re
earnin2s at $s. 60,000 per ann+' taBin2
the salary and allo7an!es payable to an
Assistant @n2ineer in p+bli! e'ploy'ent as
the basis.M
86. The !lai'ant f+rther pla!ed relian!e +pon the
de!isions of this Co+rt in 7+/1%! Ga!a/ <s. N$8
I%!1a I%(ra%0$ C+. L&!.4supra59 Sr1 Rama0)a%!ra##a
<s. Ma%a:$r9 R+5al S(%!aram All1a%0$ I%(ra%0$
4supra59 I<ra)1m <s. Ra3( * Or.9 LaEma% H LaEma%
M+(r5a <s. D1/11+%al Ma%a:$r9 Or1$%&al I%(ra%0$
C+. L&!. 4supra5 a%! 'a/1&a <s. D1#a2 * Or
4supra5 in s+pport of his additional !lai' on loss
of f+t+re prospe!t of in!o'e. &o7ever, these
de!isions do not have any relevan!e to the fa!ts
and !ir!+'stan!es of the present !ase. #oreover,
these !ases 'ention abo+t .f+t+re loss of in!o'e/
118
Page 119
and not .f+t+re prospe!ts of in!o'e/ in ter's of
the potential of the vi!ti' and 7e are in!lined to
distin2+ish bet7een the t7o.
87. =e pla!e relian!e +pon the de!isions of this
Co+rt in Ar/1%! '(mar M1)ra> !ase 4supra5 and
also in S(amma T)+ma -s+pra0, 7herein this Co+rt
held th+s:
K26. %n 3usamma 6homas, this Co+rt
in!reased the in!o'e by nearly 100G, in
3arla 7i%it the in!o'e 7as in!reased only
by 50G and in 8bati 9e:baruah the in!o'e
7as in!reased by a 'ere 7G. %n vie7 of the
i'ponderables and +n!ertainties, 7e are in
favo+r of adoptin2 as a r+le of th+'b, an
addition of 50G of a!t+al salary to the
a!t+al salary in!o'e of the de!eased
to7ards f+t+re prospe!ts, 7here the
de!eased had a per'anent 3ob and 7as belo7
60 years. -=here the ann+al in!o'e is in
the ta8able ran2e, the 7ords Ia!t+al
salaryM sho+ld be read as Ia!t+al salary
less ta8M0. The addition sho+ld be only
30G if the a2e of the de!eased 7as 60 to
50 years. There sho+ld be no addition,
7here the a2e of the de!eased is 'ore than
50 years. Tho+2h the eviden!e 'ay indi!ate
a different per!enta2e of in!rease, it is
ne!essary to standardise the addition to
avoid different yardsti!Bs bein2 applied
or different 'ethods of !al!+lation bein2
119
Page 120
adopted. =here the de!eased 7as self
e'ployed or 7as on a fi8ed salary -7itho+t
provision for ann+al in!re'ents, et!.0,
the !o+rts 7ill +s+ally taBe only the
a!t+al in!o'e at the ti'e of death. A
depart+re therefro' sho+ld be 'ade only in
rare and e8!eptional !ases involvin2
spe!ial !ir!+'stan!es.M
88. A+rther, to hold that the !lai'ant is entitled
to enhan!ed !o'pensation +nder the headin2 of loss
of f+t+re prospe!ts of in!o'e of the vi!ti', this
Co+rt in Sa%&+) D$/1 <s. Na&1+%al I%(ra%0$
C+m#a%5 a%! Or. -s+pra0, held as +nder:
I18. Therefore, 7e do not thinB that 7hile
'aBin2 the observations in the last three
lines of para 26 of 3arla ;erma 3+d2'ent,
the Co+rt had intended to lay do7n an
absol+te r+le that there 7ill be no
addition in the in!o'e of a person 7ho is
selfe'ployed or 7ho is paid fi8ed 7a2es.
$ather, it 7o+ld be reasonable to say that
a person 7ho is selfe'ployed or is
en2a2ed on fi8ed 7a2es 7ill also 2et 30G
in!rease in his total in!o'e over a period
of ti'e and if he;she be!o'es the vi!ti'
of an a!!ident then the sa'e for'+la
deserves to be applied for !al!+latin2 the
a'o+nt of !o'pensation.M
120
Page 121
8". %n vie7 of the aforesaid observations and la7
laid do7n by this Co+rt 7ith re2ard to the approa!h
by the Co''ission in a7ardin2 3+st and reasonable
!o'pensation taBin2 into !onsideration the f+t+re
prospe!ts of the de!eased even in the absen!e of
any e8pert/s opinion '+st have been reasonably
3+d2ed based on the in!o'e of the de!eased and her
f+t+re potential in F.,.A. &o7ever, in the present
!ase the !al!+lation of the f+t+re prospe!t of
in!o'e of the de!eased has also been s!ientifi!ally
done by e!ono'i! e8pert 5rof. Cohn A. 9+rBe. %n
this re2ard, the learned !o+nsel for the other
appellantdo!tors and the &ospital have !ontended
that 7itho+t a'endin2 the !lai' petition the
enhan!ed !lai' filed before the National Co''ission
or an appli!ation filed in the appeal by the
!lai'ant !annot be a!!epted by this Co+rt. %n
s+pport of this !ontention, they have pla!ed
relian!e +pon the vario+s provisions of the
Cons+'er 5rote!tion A!t and also de!isions of this
121
Page 122
Co+rt 7hi!h have been adverted to in their
s+b'issions re!orded in this 3+d2'ent. The
!lai'ant stron2ly !ontended by pla!in2 relian!e
+pon the additional !lai' by 7ay of affidavit filed
before the National Co''ission 7hi!h 7as so+2ht to
be 3+stified 7ith referen!e to the liberty 2iven by
this Co+rt in the earlier pro!eedin2s 7hi!h arose
7hen the appli!ation filed by the !lai'ant 7as
re3e!ted and this Co+rt has per'itted hi' to file
an affidavit before the National Co''ission and the
sa'e has been done. The 2ro+nd +r2ed by the
!lai'ant is that the National Co''ission has not
!onsidered the entire !lai' in!l+din2 the
additional !lai' 'ade before it. &e has pla!ed
stron2 relian!e +pon V.P. S)a%&)a> !ase -s+pra0 in
s+pport of his !ontention 7herein it 7as held as
+nder:
I53. )ealin2 7ith the present state of
'edi!al ne2li2en!e !ases in the Fnited
*in2do' it has been observed:
122
Page 123
IThe le2al syste', then, is fa!ed 7ith the
!lassi! proble' of doin2 3+sti!e to both
parties. The fears of the 'edi!al
profession '+st be taBen into a!!o+nt
7hile the le2iti'ate !lai's of the patient
!annot be i2nored.
#edi!al ne2li2en!e apart, in pra!ti!e, the
!o+rts are in!reasin2ly rel+!tant to
interfere in !lini!al 'atters. =hat 7as
on!e per!eived as a le2al threat to
'edi!ine has disappeared a de!ade later.
=hile the !o+rt 7ill a!!ept the absol+te
ri2ht of a patient to ref+se treat'ent,
they 7ill, at the sa'e ti'e, ref+se to
di!tate to do!tors 7hat treat'ent they
sho+ld 2ive. %ndeed, the fear !o+ld be
that, if anythin2, the pend+l+' has s7+n2
too far in favo+r of therape+ti! i''+nity.
-p. 160
%t 7o+ld be a 'istaBe to thinB of do!tors
and hospitals as easy tar2ets for the
dissatisfied patient. %t is still very
diffi!+lt to raise an a!tion of 'edi!al
ne2li2en!e in 9ritain> so'e, s+!h as the
Asso!iation of the <i!ti's of #edi!al
A!!idents, 7o+ld say that it is
+na!!eptably diffi!+lt. Not only are there
pra!ti!al diffi!+lties in linBin2 the
plaintiff/s in3+ry to 'edi!al treat'ent,
b+t the standard of !are in 'edi!al
ne2li2en!e !ases is still effe!tively
defined by the profession itself. All
these fa!tors, to2ether 7ith the sheer
e8pense of brin2in2 le2al a!tion and the
denial of le2al aid to all b+t the
poorest, operate to inhibit 'edi!al
liti2ation in a 7ay in 7hi!h the A'eri!an
syste', 7ith its !ontin2en!y fees and its
sy'patheti! 3+ries, does not.
123
Page 124
%t is diffi!+lt to sin2le o+t any one
!a+se for 7hat in!rease there has been in
the vol+'e of 'edi!al ne2li2en!e a!tions
in the Fnited *in2do'. A !o''on
e8planation is that there are, 1+ite
si'ply, 'ore 'edi!al a!!idents o!!+rrin2 U
7hether this be d+e to in!reased press+re
on hospital fa!ilities, to fallin2
standards of professional !o'peten!e or,
'ore probably, to the everin!reasin2
!o'ple8ity of therape+ti! and dia2nosti!
'ethods.M -p. 1"10
A patient 7ho has been in3+red by an a!t
of 'edi!al ne2li2en!e has s+ffered in a
7ay 7hi!h is re!o2nised by the la7 U and
by the p+bli! at lar2e U as deservin2
!o'pensation. This loss 'ay be !ontin+in2
and 7hat 'ay see' liBe an +nd+ly lar2e
a7ard 'ay be little 'ore than that s+'
7hi!h is re1+ired to !o'pensate hi' for
s+!h 'atters as loss of f+t+re earnin2s
and the f+t+re !ost of 'edi!al or n+rsin2
!are. To deny a le2iti'ate !lai' or to
restri!t arbitrarily the siEe of an a7ard
7o+ld a'o+nt to s+bstantial in3+sti!e.
After all, there is no differen!e in le2al
theory bet7een the plaintiff in3+red
thro+2h 'edi!al ne2li2en!e and the
plaintiff in3+red in an ind+strial or
'otor a!!ident.M -pp. 1"2"30
-Mason’s -aw and Medical <thics, 6th
@dn.0M
Q@'phasis laid by this Co+rtR
"0. &e has also pla!ed relian!e +pon the N1@am
I%&1&(&$ +. M$!10al S01$%0$/s !ase referred to
124
Page 125
s+pra in s+pport of his s+b'ission that if a !ase
is 'ade o+t, then the Co+rt '+st not be !hary of
a7ardin2 ade1+ate !o'pensation. The relevant
para2raph reads as +nder:
I88. =e '+st e'phasise that the !o+rt has
to striBe a balan!e bet7een the inflated
and +nreasonable de'ands of a vi!ti' and
the e1+ally +ntenable !lai' of the
opposite party sayin2 that nothin2 is
payable. ,y'pathy for the vi!ti' does not,
and sho+ld not, !o'e in the 7ay of 'aBin2
a !orre!t assess'ent, b+t if a !ase is
'ade o+t, the !o+rt '+st not be !hary of
a7ardin2 ade1+ate !o'pensation. The
Iade1+ate !o'pensationM that 7e speaB of,
'+st to so'e e8tent, be a r+le of th+'b
'eas+re, and as a balan!e has to be
str+!B, it 7o+ld be diffi!+lt to satisfy
all the parties !on!erned.M
"1. &e has f+rther ri2htly !ontended that 7ith
respe!t to the f+nda'ental prin!iple for a7ardin2
3+st and reasonable !o'pensation, this Co+rt in
Mala5 '(mar 7a%:(l5> !ase -s+pra0 has
!ate2ori!ally stated 7hile re'andin2 this !ase ba!B
to the National Co''ission that the prin!iple for
3+st and reasonable !o'pensation is based on
125
Page 126
.restit+tio in inte2r+'/ that is, the !lai'ant '+st
re!eive s+' of 'oney 7hi!h 7o+ld p+t hi' in the
sa'e position as he 7o+ld have been if he had not
s+stained the 7ron2.
"2. A+rther, he has pla!ed relian!e +pon the
3+d2'ent of this Co+rt in the !ase of N1%:amma/s
!ase -s+pra0 in s+pport of the proposition of la7
that the Co+rt is d+tybo+nd and entitled to a7ard
I3+st !o'pensationM irrespe!tive of the fa!t
7hether any plea in that behalf 7as raised by the
!lai'ant or not. The relevant para2raph reads as
+nder:
I36. Fndo+btedly, ,e!tion 166 of the #<A
deals 7ith I3+st !o'pensationM and even if
in the pleadin2s no spe!ifi! !lai' 7as
'ade +nder ,e!tion 166 of the #<A, in o+r
!onsidered opinion a party sho+ld not be
deprived fro' 2ettin2 I3+st !o'pensationM
in !ase the !lai'ant is able to 'aBe o+t a
!ase +nder any provision of la7. Needless
to say, the #<A is benefi!ial and 7elfare
le2islation. %n fa!t, the !o+rt is d+ty
bo+nd and entitled to a7ard I3+st
!o'pensationM irrespe!tive of the fa!t
126
Page 127
7hether any plea in that behalf 7as raised
by the !lai'ant or not.M
"3.&e has also ri2htly pla!ed relian!e +pon
observations 'ade in Mala5 '(mar 7a%:(l5> !ase
referred to s+pra 7herein this Co+rt has held
the appellant do!tors 2+ilty of !a+sin2 death of
!lai'ant/s 7ife 7hile re'andin2 the 'atter ba!B
to the National Co''ission only for
deter'ination of 1+ant+' of !o'pensation for
'edi!al ne2li2en!e. This Co+rt has f+rther
observed that !o'pensation sho+ld in!l+de Iloss
of earnin2 of profit +p to the date of trialM
and that it 'ay also in!l+de any loss Ialready
s+ffered or liBely to be s+ffered in f+t+reM.
The !lai'ant has also ri2htly s+b'itted that
7hen the ori2inal !o'plaint 7as filed soon after
the death of his 7ife in 1""8, it 7o+ld be
i'possible to file a !lai' for I3+st
!o'pensationM. The !lai'ant has s+ffered in the
!o+rse of the 15 years lon2 trial. %n s+pport
127
Page 128
of his !ontention he pla!ed relian!e on so'e
other !ases also 7here 'ore !o'pensation 7as
a7arded than 7hat 7as !lai'ed, s+!h as Or1$%&al
I%(ra%0$ C+m#a%5 L&!. <s. Ja)(<$% * Or.9 R.D.
Ha&&a%:a!1 , Ra3 Ra%1 * Or9 LaEma% H LaEama%
M+(r5a all !ases referred to s+pra. Therefore,
the relevant para2raphs fro' the said 3+d2'ents
inseriat+' e8tra!ted above sho7 that this Co+rt
has 2ot the po7er +nder Arti!le 136 of the
Constit+tion and the d+ty to a7ard 3+st and
reasonable !o'pensation to do !o'plete 3+sti!e
to the affe!ted !lai'ant.
%n vie7 of the aforesaid reasons stated by +s,
it is 7holly +ntenable in la7 7ith re2ard to the
le2al !ontentions +r2ed on behalf of the A#$%
&ospital and the do!tors that 7itho+t there bein2
an a'end'ent to the !lai' petition, the !lai'ant is
not entitled to seeB the additional !lai's by 7ay
of affidavit, the !lai' is barred by li'itation and
128
Page 129
the sa'e has not been ri2htly a!!epted by the
National Co''ission.
"6.Also, in vie7 of the above reasonin2 the
!ontention that the !lai'ant has 7aived his
ri2ht to !lai' 'ore !o'pensation in vie7 of the
4rder %% $+le 2 of C5C as pleaded by the A#$%
&ospital and the appellantdo!tors is also held
to be 7holly +ns+stainable in la7. The !lai'ant
is 3+stified in !lai'in2 additional !lai' for
deter'inin2 3+st and reasonable !o'pensation
+nder different heads. A!!ordin2ly, the point
Nos. 1, 2, and 3 are ans7ered in favo+r of the
!lai'ant and a2ainst the appellantdo!tors and
the &ospital.
A%8$r &+ #+1%& %+. A
"5. =ith re2ard to point no. 6, the National
Co''ission has +sed the I'+ltiplierM 'ethod +nder
,e!tion 163A read 7ith the se!ond s!hed+le of the
129
Page 130
#otor <ehi!les A!t to deter'ine the 1+ant+' of
!o'pensation in favo+r of the !lai'ant applyin2 the
'+ltiplier 'ethod as has been laid do7n by this
Co+rt in Sarla erma’s !ase-s+pra0. Conse1+ently, it
has taBen +p '+ltiplier of 15 in the present !ase to
1+antify the !o'pensation +nder the loss of
dependen!y of the !lai'ant. %t is +r2ed by the
!lai'ant that +se of '+ltiplier syste' for
deter'inin2 !o'pensation for 'edi!al ne2li2en!e
!ases involvin2 death of his 7ife is 2rossly
erroneo+s in la7. The !lai'ant has ri2htly pla!ed
relian!e +pon the !ases of this Co+rt s+!h as,
I%!1a% M$!10al A%. <s. V.P. S)a%&a * Or.B(#raD9
S#r1%: M$a!+8 H+#1&al * A%r. <s. Har3+l
A)l(8al1a
44
9 C)ara% S1%:) <s. H$al1%: T+(0) H+#1&al
a%! Or.-s+pra09 J.J. M$r0)a%& * Or. <s. Sr1%a&)
C)a&(r<$!1 -s+pra09 Sa/1&a 7ar: <s. D1r$0&+r
Na&1+%al H$ar& I%&1&(&$ -s+pra09 S&a&$ +. P(%3a<
V. S)1/ Ram * Or.-s+pra09 Sam1ra ')+l1 <s. Dr.
33
-1""80 6 ,CC 3"
130
Page 131
Pra<)a Ma%0)a%!a * A%r.-s+pra09 P.7. I%&1&(&$ +.
M$!10al S01$%0$ <s. Ja#al S1%:) * Or.9 -s+pra0
N1@am I%&1&(&$ <s. Praa%& D)a%a%2a B(#raD Mala5
'(mar 7a%:(l5 <s. S(2(mar M(2)$r3$$ * Or. -s+pra0
and V. '1)a% Ra+ <s. N12)1l S(#$r#$01al1&5
H+#1&al * A%r. -s+pra0 to !ontend that not a sin2le
!ase 7as de!ided by +sin2 the '+ltiplier 'ethod.
%n s+pport of this !ontention, he has f+rther
ar2+ed that in the three 3+d2e 9en!h de!ision in
the !ase of N1@am I%&1&(&$> case 4supra5, this
Co+rt has re3e!ted the +se of '+ltiplier syste' to
!al!+late the 1+ant+' of !o'pensation. The relevant
para2raph is 1+oted here+nder:
K-2. #r Tandale, the learned !o+nsel for
the respondent has, f+rther s+b'itted that
the proper 'ethod for deter'inin2
!o'pensation 7o+ld be the '+ltiplier
'ethod. =e find absol+tely no 'erit in
this plea. The Bind of da'a2e that the
!o'plainant has s+ffered, the e8pendit+re
that he has in!+rred and is liBely to
in!+r in the f+t+re and the possibility
that his rise in his !hosen field 7o+ld
no7 be restri!ted, are 'atters 7hi!h
131
Page 132
!annot be taBen !are of +nder the
'+ltiplier 'ethod.M
Q@'phasis laid by this Co+rtR
&e has f+rther +r2ed that the .'+ltiplier/
'ethod as provided in the se!ond ,!hed+le to
,e!tion 163A of the #.<.A!t 7hi!h provision alon2
7ith the ,e!ond ,!hed+le 7as inserted to the A!t by
7ay of A'end'ent in 1""6, 7as 'eant for speedy
disposal of .no fa+lt/ 'otor a!!ident !lai' !ases.
&en!e, the present !ase of 2ross 'edi!al ne2li2en!e
by the appellantdo!tors and the &ospital !annot be
!o'pared 7ith .no fa+lt/ 'otor a!!ident !lai'
!ases.
"6. The appellant )r. 9alra' 5rasad on the other
hand relied +pon the de!ision in U%1&$! I%!1a
I%(ra%0$ C+. L&!. <s. Pa&r101a J$a% Ma)a3a%
-s+pra0 and !ontended that '+ltiplier 'ethod is a
standard 'ethod of deter'inin2 the 1+ant+' of
!o'pensation in %ndia. The relevant para2raphs read
as +nder:
132
Page 133
I20. The !o+rt !annot be totally oblivio+s
to the realities. The ,e!ond ,!hed+le
7hile pres!ribin2 the '+ltiplier, had
'a8i'+' in!o'e of $s 60,000 p.a. in 'ind,
b+t it is !onsidered to be a safe 2+ide
for applyin2 the pres!ribed '+ltiplier in
!ases of hi2her in!o'e also b+t in !ases
7here the 2ap in in!o'e is so 7ide as in
the present !ase in!o'e is 2,26,2"7
dollars, in s+!h a sit+ation, it !annot be
said that so'e deviation in the '+ltiplier
7o+ld be i'per'issible. Therefore, a
deviation fro' applyin2 the '+ltiplier as
provided in the ,e!ond ,!hed+le 'ay have
to be 'ade in this !ase. Apart fro'
fa!tors indi!ated earlier the a'o+nt of
'+ltipli!and also be!o'es a fa!tor to be
taBen into a!!o+nt 7hi!h in this !ase
!o'es to 2,26,2"7 dollars, that is to say
an a'o+nt of aro+nd $s 68 laBhs per ann+'
by !onvertin2 it at the rate of $s 30. 9y
%ndian standards it is !ertainly a hi2h
a'o+nt. Therefore, for the p+rposes of
fair !o'pensation, a lesser '+ltiplier !an
be applied to a heavy a'o+nt of
'+ltipli!and. A deviation 7o+ld be
reasonably per'issible in the fi2+re of
'+ltiplier even a!!ordin2 to the
observations 'ade in the !ase of 3usamma
6homas 7here a spe!ifi! e8a'ple 7as 2iven
abo+t a person dyin2 at the a2e of 65
leavin2 no heirs bein2 a ba!helor e8!ept
his parents.
OOO OOO OOO
22. =e therefore, hold that ordinarily
7hile a7ardin2 !o'pensation, the
133
Page 134
provisions !ontained in the ,e!ond
,!hed+le 'ay be taBen as a 2+ide in!l+din2
the '+ltiplier, b+t there 'ay arise so'e
!ases, as the one in hand, 7hi!h 'ay fall
in the !ate2ory havin2 spe!ial feat+res or
fa!ts !allin2 for deviation fro' the
'+ltiplier +s+ally appli!able.M
"7. %t is f+rther +r2ed by the learned senior
!o+nsel #r. <i3ay &ansaria for the appellantA#$%
&ospital relyin2 on Sarla V$rma/s !ase -s+pra0 that
the '+ltiplier 'ethod has enabled the !o+rts to
brin2 abo+t !onsisten!y in deter'inin2 the .loss of
dependen!y/ 'ore parti!+larly in the death of
vi!ti's of ne2li2en!e. The relevant para2raph
reads as +nder:

I16. The la!B of +nifor'ity and
!onsisten!y in a7ardin2 !o'pensation has
been a 'atter of 2rave !on!ern. @very
distri!t has one or 'ore #otor A!!idents
Clai's Trib+nal-s0. %f different Trib+nals
!al!+late !o'pensation differently on the
sa'e fa!ts, the !lai'ant, the liti2ant,
the !o''on 'an 7ill be !onf+sed, perple8ed
and be7ildered. %f there is si2nifi!ant
diver2en!e a'on2 the Trib+nals in
deter'inin2 the 1+ant+' of !o'pensation on
si'ilar fa!ts, it 7ill lead to
134
Page 135
dissatisfa!tion and distr+st in the
syste'.M
The learned !o+nsel for the appellantA#$%
&ospital f+rther ar2+ed that relian!e pla!ed +pon
the 3+d2'ent in N1@am I%&1&(&$> !ase referred to
s+pra by the !lai'ant is 'ispla!ed sin!e the vi!ti'
in that !ase s+ffered fro' per'anent disability
7hi!h re1+ired !onstant 'edi!al assistan!e.
Therefore, it 7as +r2ed that N1@am I%&1&(&$ !ase
!annot be relied +pon by this Co+rt to deter'ine
the 1+ant+' of !o'pensation by not adoptin2
'+ltiplier 'ethod in favo+r of the !lai'ant.
A !aref+l readin2 of the above !ases sho7s that
this Co+rt is sBepti!al abo+t +sin2 a strait 3a!Bet
'+ltiplier 'ethod for deter'inin2 the 1+ant+' of
!o'pensation in 'edi!al ne2li2en!e !lai's. 4n the
!ontrary, this Co+rt 'entions vario+s instan!es
7here the Co+rt !hose to deviate fro' the standard
'+ltiplier 'ethod to avoid over!o'pensation and
135
Page 136
also relied +pon the 1+ant+' of '+ltipli!and to
!hoose the appropriate '+ltiplier. Therefore,
s+b'ission 'ade in this re2ard by the !lai'ant is
7ell fo+nded and based on so+nd lo2i! and is
reasonable as the National Co''ission or this Co+rt
re1+ires to deter'ine 3+st, fair and reasonable
!o'pensation on the basis of the in!o'e that 7as
bein2 earned by the de!eased at the ti'e of her
death and other related !lai's on a!!o+nt of death
of the 7ife of the !lai'ant 7hi!h is dis!+ssed in
the reasonin2 portion in ans7er to the point Nos.
1 to 3 7hi!h have been fra'ed by this Co+rt in
these appeals. A!!ordin2ly, 7e ans7er the point No.
6 in favo+r of the !lai'ant holdin2 that the
s+b'issions 'ade by the learned !o+nsel for the
appellantdo!tors and the A#$% &ospital in
deter'ination of !o'pensation by follo7in2 the
'+ltiplier 'ethod 7hi!h 7as so+2ht to be 3+stified
by pla!in2 relian!e +pon Sarla V$rma and R$)ma>
!ases -s+pra0 !annot be a!!epted by this Co+rt and
136
Page 137
the sa'e does not inspire !onfiden!e in +s in
a!!eptin2 the said s+b'ission 'ade by the learned
senior !o+nsel and other !o+nsel to 3+stify the
'+ltiplier 'ethod adopted by the National
Co''ission to deter'ine the !o'pensation +nder the
head of loss of dependen!y. A!!ordin2ly, 7e ans7er
the point no. 6 in favo+r of the !lai'ant and
a2ainst the appellantsdo!tors and A#$% &ospital.
A%8$r &+ P+1%& %+. 6
"8. %t is the !lai' of the !lai'ant that he has
also s+ffered h+2e losses d+rin2 this period, both
dire!t loss of in!o'e fro' his 3ob in F.,.A. as
7ell as indire!t loss for pain and intense 'ental
a2ony for ten+re denial and ter'ination of his
e'ploy'ent at 4hio ,tate Fniversity 7hi!h 7as a
dire!t res+lt of the 7ron2f+l death of de!eased in
%ndia as 7o+ld be evident fro' the 3+d2'ent passed
by the Co+rt of Clai's in 4hio 7hi!h 7as filed by
the &ospital on 18
th
C+ly, 2011. %n lie+ of s+!h
137
Page 138
pain and s+fferin2 the !lai'ant 'ade a de'and of
$s.36,56,07,000; +nder different heads of .loss of
in!o'e for 'issed 7orB/, .travellin2 e8penses over
the past 12 years/ and .le2al e8penses in!l+din2
advo!ate fees/ et!.
"". =e have per+sed thro+2h the !lai's of the
!lai'ant +nder the above heads and 7e are in!lined
to observe the follo7in2 :
The !lai' of $s.1,12,50,000; 'ade by the
!lai'ant +nder the head of loss of in!o'e for
'issed 7orB, !annot be allo7ed by this Co+rt sin!e,
the sa'e has no dire!t ne8+s 7ith the ne2li2en!e of
the appellant do!tors and the &ospital. The
!lai'ant f+rther assessed his !lai' +nder the head
of .Travel e8penses over the past 12 years/ at
$s.70,00,000;. %t is pertinent to observe that the
!lai'ant did not prod+!e any re!ord of plane fare
to prove his travel e8pendit+re fro' F.,.A. to
%ndia to attend the pro!eedin2s. &o7ever, it is an
138
Page 139
+ndisp+ted fa!t that the !lai'ant is a !itiEen of
F.,.A. and had been livin2 there. %t !annot be
denied that he had to in!+r travel e8penses to !o'e
to %ndia to attend the pro!eedin2s. Therefore, on
an avera2e, 7e a7ard a !o'pensation of $s.10 laBhs
+nder the head of .Travel e8penses over the past
t7elve years/.
A+rther, the !lai'ant ar2+es that he has spent
$s.1,65,00,000; to7ards liti2ation over the past
12 years 7hile seeBin2 !o'pensation +nder this
head. A2ain, 7e find the !lai' to be on the hi2her
side. Considerin2 that the !lai'ant 7ho is a do!tor
by profession, appeared in person before this Co+rt
to ar2+e his !ase. =e a!Bno7led2e the fa!t that he
'i2ht have re1+ired ri2oro+s assistan!e of la7yers
to prepare his !ase and prod+!e eviden!e in order.
Therefore, 7e 2rant a !o'pensation of $s.1,50,000;
+nder the head of .le2al e8penses/. Therefore, a
139
Page 140
total a'o+nt of $s. 11,50,000; is 2ranted to the
!lai'ant +nder the head of .!ost of liti2ation/.
A%8$r &+ P+1%& %+. 6
100. A per+sal of the operative portion of the
i'p+2ned 3+d2'ent of the National Co''ission sho7s
that it has a7arded interest at the rate of 12G per
ann+' b+t only in !ase of defa+lt by the do!tors of
A#$% &ospital to pay the !o'pensation 7ithin 8
7eeBs after the 3+d2'ent 7as delivered on 4!tober
21, 2011. Therefore, in other 7ords, the National
Co''ission did not 2rant any interest for the lon2
period of 15 years as the !ase 7as pendin2 before
the National Co''ission and this Co+rt. Therefore,
the National Co''ission has !o''itted error in not
a7ardin2 interest on the !o'pensation a7arded by it
and the sa'e is opposed to vario+s de!isions of
this Co+rt, s+!h as in the !ase of T)a@)a&)$
P(ra51l Sara<1 * Or. <s. U%1+% +. I%!1a * A%r.
140
Page 141
re2ardin2 pay'ent of interest on a de!ree of
pay'ent this Co+rt held as +nder:
I25. %t is, therefore, !lear that the
!o+rt, 7hile 'aBin2 a de!ree for pay'ent
of 'oney is entitled to 2rant interest at
the !+rrent rate of interest or
!ontra!t+al rate as it dee's reasonable to
be paid on the prin!ipal s+' ad3+d2ed to
be payable and;or a7arded, fro' the date
of !lai' or fro' the date of the order or
de!ree for re!overy of the o+tstandin2
d+es. There is also hardly any roo' for
do+bt that interest 'ay be !lai'ed on any
a'o+nt de!reed or a7arded for the period
d+rin2 7hi!h the 'oney 7as d+e and yet
re'ained +npaid to the !lai'ants.
26. The !o+rts are !onsistent in their
vie7 that nor'ally 7hen a 'oney de!ree is
passed, it is 'ost essential that interest
be 2ranted for the period d+rin2 7hi!h the
'oney 7as d+e, b+t !o+ld not be +tilised
by the person in 7hose favo+r an order of
re!overy of 'oney 7as passed.
27. As has been fre1+ently e8plained by
this Co+rt and vario+s &i2h Co+rts,
interest is essentially a !o'pensation
payable on a!!o+nt of denial of the ri2ht
to +tilise the 'oney d+e, 7hi!h has been,
in fa!t, +tilised by the person
7ithholdin2 the sa'e. A!!ordin2ly, pay'ent
of interest follo7s as a 'atter of !o+rse
7hen a 'oney de!ree is passed.
28. The only 1+estion to be de!ided is
sin!e 7hen is s+!h interest payable on
141
Page 142
s+!h a de!ree. Tho+2h, there are t7o
diver2ent vie7s, one indi!atin2 that
interest is payable fro' the date 7hen
!lai' for the prin!ipal s+' is 'ade,
na'ely, the date of instit+tion of the
pro!eedin2s in the re!overy of the a'o+nt,
the other vie7 is that s+!h interest is
payable only 7hen a deter'ination is 'ade
and order is passed for re!overy of the
d+es. &o7ever, the 'ore !onsistent vie7
has been the for'er and in rare !ases
interest has been a7arded for periods even
prior to the instit+tion of pro!eedin2s
for re!overy of the d+es, 7here the sa'e
is provided for by the ter's of the
a2ree'ent entered into bet7een the parties
or 7here the sa'e is per'issible by
stat+te.M
101. A+rther, in '$m# a%! '$m# on J+ant+' of
)a'a2es9 the ob3e!tive behind 2rantin2 interest is
re!orded as +nder:
IThe ob3e!t of a !o+rt in a7ardin2 interest
to a s+!!essf+l liti2ant is to !o'pensate
hi' for bein2 Bept o+t of 'oney 7hi!h the
!o+rt has fo+nd is properly d+e to hi'.
That ob3e!tive is easy to a!hieve 7here
it is !lear that on a !ertain date the
defendant o+2ht to have paid to the
plaintiff an as!ertained s+', for e8a'ple
by 7ay of repay'ent of a loan. The proble's
7hi!h arise in personal in3+ry and fatal
a!!ident !ases in relation to a7ards of
interest res+lt fro' the fa!ts that 7hile,
on the one hand, the !a+se of a!tion
142
Page 143
a!!r+es at the ti'e of the a!!ident, so
that !o'pensation is payable as fro' that
ti'e, on the other hand
-a0 the appropriate a'o+nt of !o'pensation
!annot be assessed in a personal in3+ry
!ase 7ith any preten!e of a!!+ra!y
+ntil the !ondition of the plaintiff
has stabilised, and
-b0 s+b3e!t to the provisions of the
,+pre'e Co+rt A!t 1"81, ,.32A 7hen that
se!tion is bro+2ht into for!e, 7hen
da'a2es are assessed they are assessed
on!e for all in relation to both a!t+al
past and anti!ipated f+t+re loss and
da'a2e.
OOO OOO OOO OOO OOO
The ne!essity for 2+idelines, and the
stat+s of 2+idelines, 7ere !onsidered by
the &o+se of Hords in CooBson v. *no7les.
36
%n that !ase Hord )iplo!B 7ith 7ho' the
other 'e'bers of the &o+se a2reed, said:
The se!tion
as a'ended 2ives to the 3+d2e several
options as to the 7ay in 7hi!h he 'ay
assess the interest ele'ent to be in!l+ded
in the s+' a7arded by the 3+d2'ent. &e
'ay in!l+de interest on the 7hole of the
da'a2es or on a part of the' only as he
thinBs appropriate. &e 'ay a7ard it for
the 7hole or any part of the period
bet7een the date 7hen the !a+se of a!tion
34
[1979] A.C. 556
143
Page 144
arose and the date of 3+d2'ent and he 'ay
a7ard it at different rates for different
part of the period !hosen.
The se!tion 2ives no 2+idan!e as to the
7ay in 7hi!h the 3+d2e sho+ld e8er!ise his
!hoi!e bet7een the vario+s options open to
hi'. This is all left to his dis!retion>
b+t liBe all dis!retions vested in 3+d2es
by stat+te or at !o''on la7, it '+st be
e8er!ised 3+di!ially or, in the ,!ots
phrase +sed by Hord @'slie in ,'ith <.
#iddleton, 1"72 ,.C. 30, in a sele!tive
and dis!ri'inatin2 'anner, not arbitrarily
or idiosyn!ra!ti!ally for other7ise the
ri2hts of parties to liti2ation 7o+ld
be!o'e dependent +pon 3+di!ial 7hi'.
%t is therefore appropriate for an
appellate !o+rt to lay do7n 2+idelines as
to 7hat 'atters it is proper for the 3+d2e
to taBe into a!!o+nt in de!idin2 ho7 to
e8er!ise the dis!retion !onfided in hi' by
the stat+te. %n e8er!isin2 this
appellate f+n!tion, the !o+rt is not
e8po+ndin2 a r+le of la7 fro' 7hi!h a
3+d2e is pre!l+ded fro' departin2 7here
spe!ial !ir!+'stan!es e8ist in a
parti!+lar !ase> nor indeed, even in !ases
7here there are no spe!ial !ir!+'stan!es,
is an appellate !o+rt 3+stified in 2ivin2
effe!t to the preferen!e of its 'e'bers
for e8er!isin2 the dis!retion in a
different 7ay fro' that adopted by the
3+d2e if the !hoi!e bet7een the
alternative 7ays of e8er!isin2 it is one
+pon 7hi!h 3+di!ial opinion 'i2ht
reasonably differ.M
144
Page 145
102. Therefore, the National Co''ission in not
a7ardin2 interest on the !o'pensation a'o+nt fro'
the date of filin2 of the ori2inal !o'plaint +p to
the date of pay'ent of entire !o'pensation by the
appellantdo!tors and the A#$% &ospital to the
!lai'ant is 'ost +nreasonable and the sa'e is
opposed to the provision of the %nterest A!t, 1"78.
Therefore, 7e are a7ardin2 the interest on the
!o'pensation that is deter'ined by this Co+rt in
the appeal filed by the !lai'ant at the rate of 6G
per ann+' on the !o'pensation a7arded in these
appeals fro' the date of !o'plaint till the date of
pay'ent of !o'pensation a7arded by this Co+rt. The
3+stifi!ation 'ade by the learned senior !o+nsel on
behalf of the appellantdo!tors and the A#$%
&ospital in not a7ardin2 interest on the
!o'pensation a7arded by the National Co''ission is
!ontrary to la7 laid do7n by this Co+rt and also
the provisions of the %nterest A!t, 1"78. &en!e,
145
Page 146
their s+b'issions !annot be a!!epted as the sa'e
are 7holly +ntenable in la7 and 'ispla!ed.
A!!ordin2ly, the aforesaid point is ans7ered in
favo+r of the !lai'ant.
A%8$r &+ #+1%& %+. 7
103. 9efore 7e ans7er this point, it is pertinent
to 'ention that 7e are not in!lined to deter'ine
the liability of the do!tors in !a+sin2 the death
of the !lai'ant/s 7ife sin!e the sa'e has already
been done by the Co+rt in Mala5 '(mar 7a%:(l5/s
!ase -supra5. =e 7ill !onfine o+rselves to
deter'ine the e8tent to 7hi!h the appellantdo!tors
and the &ospital are liable to pay !o'pensation
a7arded to the !lai'ant for their a!ts of
ne2li2en!e in 2ivin2 treat'ent to the de!eased 7ife
of the !lai'ant.
L1a<1l1&5 +. &)$ AMRI H+#1&al:
146
Page 147
106. %t is the !lai' of appellantA#$% &ospital
that the ar2+'ents advan!ed on behalf of the
appellantdo!tors that is, )r. 9alra' 5rasad, )r.
,+B+'ar #+Bher3ee and )r. 9aidyanath &aldar and the
!lai'ant )r. *+nal ,aha, that the appellant A#$% is
liable to pay the hi2hest share of !o'pensation in
ter's of per!enta2e on the basis of the !ost
i'posed by this Co+rt in the earlier ro+nd of
liti2ation in Mala5 '(mar 7a%:(l5> !ase, s+pra are
not s+stainable in la7.
105. The learned senior !o+nsel for the appellant
A#$% &ospital #r. <i3ay &ansaria ar2+ed that the
s+b'ission 'ade by the !lai'ant )r. *+nal ,aha is
not s+stainable both on fa!ts and in la7 sin!e he
hi'self had !lai'ed spe!ial da'a2es a2ainst the
appellantdo!tors, )r. ,+B+'ar #+Bher3ee, )r.
9aidyanath &aldar and )r. Abani $oy Cho+dh+ry in
his appeal and therefore, he !annot no7 in these
pro!eedin2s !lai' to the !ontrary. 4n the other
147
Page 148
hand, the !lai'ant )r. *+nal ,aha ar2+es that
tho+2h the National Co''ission !lai's that this
Co+rt did not 'aBe any observation on apportion'ent
of liability 7hile re'andin2 the 'atter ba!B to it
for deter'inin2 the 1+ant+' of !o'pensation, this
Co+rt had i'pli!itly dire!ted the b+lB of
!o'pensation to be paid by the &ospital. Thro+2h
5ara2raph No. 1"6, the 3+d2'ent reads as +nder:
I1"6. =e, Beepin2 in vie7 the stand
taBen and !ond+!t of A#$% and )r.
#+Bher3ee, dire!t that !osts of $s
5,00,000 and $s 1,00,000 7o+ld be payable
by A#$% and )r. #+Bher3ee respe!tively. =e
f+rther dire!t that if any forei2n e8perts
are to be e8a'ined it shall be done only
thro+2h video!onferen!in2 and at the !ost
of the respondents.M
This Co+rt has stated that the b+lB of the
proportion of !o'pensation is to be paid by the
&ospital and the rest by )r. ,+B+'ar #+Bher3ee.
None of the other do!tors involved 7ere i'posed
7ith !ost tho+2h they 7ere fo+nd 2+ilty of 'edi!al
ne2li2en!e. The !lai'ant relied +pon the de!ision
148
Page 149
in !i"am Institute.s !ase -s+pra0 in 7hi!h this
Co+rt dire!ted the &ospital to pay the entire
a'o+nt of !o'pensation to the !lai'ant in that !ase
even tho+2h the treatin2 do!tors 7ere fo+nd to be
responsible for the ne2li2en!e. The !lai'ant also
relied +pon the observations 'ade by this Co+rt
7hile re'ittin2 the !ase ba!B to National
Co''ission for deter'inin2 the 1+ant+' of
!o'pensation, to e'phasiEe +pon the ne2li2en!e on
the part of the &ospital. The findin2s of this
Co+rt in Mala5 '(mar 7a%:(l5> !ase read as +nder:
I76. A#$% re!ords de'onstrate ho7 abys'al
the n+rsin2 !are 7as. =e +nderstand that
there 7as no b+rn +nit in A#$% and there
7as no b+rn +nit at 9rea!h Candy &ospital
either. A patient of T@N is Bept in %CF.
All e'phasis has been laid on the fa!t
that one roo' 7as virt+ally 'ade an %CF.
@ntry restri!tions 7ere stri!tly adhered
to. &y2iene 7as ens+red. 9+t !onstant
n+rsin2 and s+pervision 7as re1+ired. %n
the na'e of preventin2 infe!tion, it
!annot be a!!epted that the n+rses 7o+ld
not Beep a 7at!h on the patient. They
7o+ld also not !o'e to see the patients or
ad'inister dr+2s.
149
Page 150
77. No naso2astri! t+be 7as 2iven altho+2h
the !ondition of the 'o+th 7as s+!h that
An+radha !o+ld not have been 2iven any
solid food. ,he re1+ired 7 to 8 litres of
7ater daily. %t 7as i'possible to 2ive so
'+!h 7ater by 'o+th. The do!tors on the
very first day fo+nd that the !ondition of
the 'o+th 7as bad.
78. The @NT spe!ialist in his pres!ription
noti!ed blisters aro+nd the lips of the
patient 7hi!h led her to diffi!+lty in
s7allo7in2 or eatin2. No blood sa'ple 7as
taBen. No other ro+tine patholo2i!al
e8a'ination 7as !arried o+t. %t is no7
beyond any disp+te that 2530G body
s+rfa!e area 7as affe!ted -re.
5res!ription of )r. Nandy, 5lasti!
,+r2eon0. The ne8t day, he e8a'ined the
patient and he fo+nd that 'ore and 'ore
body s+rfa!e area 7as affe!ted. @ven )r.
5rasad fo+nd the sa'e.
7". ,+pportive therapy or sy'pto'ati!
therapy, ad'ittedly, 7as not ad'inistered
as needle pri!B 7as prohibited. A#$% even
did not 'aintain its re!ords properly. The
n+rses reports !learly sho7 that fro' 13
th
#ay on7ards even the ro+tine !he!B+ps
7ere not done.M
106. The liability of !o'pensation to be
apportioned by this Co+rt on the appellantA#$%
&ospital is 'entioned in para2raph 165 of the Mala5
'(mar 7a%:(l5>s !ase 7hi!h reads as +nder:
150
Page 151
I165. As re2ards, individ+al liability of
$espondents 6, 5 and 6 is !on!erned, 7e 'ay
noti!e the sa'e here+nder. As re2ards A#$%,
it 'ay be noti!ed:
-i0<ital para'eters of An+radha 7ere not
e8a'ined bet7een 1151""8 to 1651""8
-body te'perat+re, respiration rate, p+lse,
95 and +rine inp+t and o+tp+t0.
-ii0 %< fl+id not ad'inistered. -%< fl+id
ad'inistration is absol+tely ne!essary in
the first 68 ho+rs of treatin2 T@N.0M
107. &o7ever, this Co+rt in the aforesaid !ase,
also re!orded as +nder:
I186. %n R. <. =ogasa'aran the Ne7 Vealand
Co+rt opined that the hospital is in a
better position to dis!lose 7hat !are 7as
taBen or 7hat 'edi!ine 7as ad'inistered to
the patient. %t is the d+ty of the
hospital to satisfy that there 7as no la!B
of !are or dili2en!e. The hospitals are
instit+tions, people e8pe!t better and
effi!ient servi!e, if the hospital fails
to dis!har2e their d+ties thro+2h their
do!tors, bein2 e'ployed on 3ob basis or
e'ployed on !ontra!t basis, it is the
hospital 7hi!h has to 3+stify and not
i'pleadin2 a parti!+lar do!tor 7ill not
absolve the hospital of its
responsibilities. -,ee also <rrors,
Medicine and the -aw, Alan #erry and
Ale8ander #!Call ,'ith, 2001 @dn.,
Ca'brid2e Fniversity 5ress, p. 12.0M
151
Page 152
108. @ven in the !ase of Sa/1&a 7ar: <s. Na&1+%al
H$ar& I%&1&(&$ 4supra5 this Co+rt, 7hile
deter'inin2 the liability of the &ospital, observed
as +nder:
I15. Therefore, as per the @n2lish
de!isions also the distin!tion of
I!ontra!t of servi!eM and I!ontra!t
for servi!eM, in both the !ontin2en!ies,
the !o+rts have taBen the vie7 that the
hospital is responsible for the a!ts of
their per'anent staff as 7ell as staff
7hose servi!es are te'porarily
re1+isitioned for the treat'ent of the
patients. Therefore, the distin!tion 7hi!h
is so+2ht to be pressed into servi!e so
ably by learned !o+nsel !annot absolve the
hospital or the %nstit+te as it is
responsible for the a!ts of its treatin2
do!tors 7ho are on the panel and 7hose
servi!es are re1+isitioned fro' ti'e to
ti'e by the hospital looBin2 to the nat+re
of the diseases. The hospital or the
%nstit+te is responsible and no
distin!tion !o+ld be 'ade bet7een the t7o
!lasses of persons i.e. the treatin2
do!tor 7ho 7as on the staff of the
hospital and the n+rsin2 staff and the
do!tors 7hose servi!es 7ere te'porarily
taBen for treat'ent of the
patients............
16. Therefore, the distin!tion bet7een the
I!ontra!t of servi!eM and I!ontra!t for
servi!eM has been very elaborately
152
Page 153
dis!+ssed in the above !ase and this Co+rt
has e8tended the provisions of the
Cons+'er 5rote!tion A!t, 1"86, to the
'edi!al profession also and in!l+ded in
its a'bit the servi!es rendered by private
do!tors as 7ell as the 2overn'ent
instit+tions or the non2overn'ental
instit+tions, be it free 'edi!al servi!es
provided by the 2overn'ent hospitals. %n
the !ase of 8chutrao >aribhau Khodwa v.
3tate of Maharashtra their Hordships
observed that in !ases 7here the do!tors
a!t !arelessly and in a 'anner 7hi!h is
not e8pe!ted of a 'edi!al pra!titioner,
then in s+!h a !ase an a!tion in tort
7o+ld be 'aintainable. Their Hordships
f+rther observed that if the do!tor has
taBen proper pre!a+tions and despite that
if the patient does not s+rvive then the
!o+rt sho+ld be very slo7 in attrib+tin2
ne2li2en!e on the part of the do!tor. %t
7as held as follo7s: -,CC p. 6350
.A 'edi!al pra!titioner has vario+s
d+ties to7ards his patient and he
'+st a!t 7ith a reasonable de2ree of
sBill and Bno7led2e and '+st e8er!ise
a reasonable de2ree of !are. This is
the least 7hi!h a patient e8pe!ts
fro' a do!tor. The sBill of 'edi!al
pra!titioners differs fro' do!tor to
do!tor. The very nat+re of the
profession is s+!h that there 'ay be
'ore than one !o+rse of treat'ent
7hi!h 'ay be advisable for treatin2 a
patient. Co+rts 7o+ld indeed be slo7
in attrib+tin2 ne2li2en!e on the part
of a do!tor if he has perfor'ed his
d+ties to the best of his ability and
153
Page 154
7ith d+e !are and !a+tion. #edi!al
opinion 'ay differ 7ith re2ard to the
!o+rse of a!tion to be taBen by a
do!tor treatin2 a patient, b+t as
lon2 as a do!tor a!ts in a 'anner
7hi!h is a!!eptable to the 'edi!al
profession and the !o+rt finds that
he has attended on the patient 7ith
d+e !are, sBill and dili2en!e and if
the patient still does not s+rvive or
s+ffers a per'anent ail'ent, it 7o+ld
be diffi!+lt to hold the do!tor to be
2+ilty of ne2li2en!e. 9+t in !ases
7here the do!tors a!t !arelessly and
in a 'anner 7hi!h is not e8pe!ted of
a 'edi!al pra!titioner, then in s+!h
a !ase an a!tion in torts 7o+ld be
'aintainable./
,i'ilarly, o+r attention 7as invited to a
de!ision in the !ase of 3pring Meadows
>ospital v. >ar(ol 8hluwalia. Their Hordships
observed as follo7s: -,CC pp. 6667, para "0
.".L<ery often in a !lai' for
!o'pensation arisin2 o+t of
'edi!al ne2li2en!e a plea is taBen
that it is a !ase of bona fide
'istaBe 7hi!h +nder !ertain
!ir!+'stan!es 'ay be e8!+sable,
b+t a 'istaBe 7hi!h 7o+ld
tanta'o+nt to ne2li2en!e !annot be
pardoned. %n the for'er !ase a
!o+rt !an a!!ept that ordinary
h+'an fallibility pre!l+des the
liability 7hile in the latter the
!ond+!t of the defendant is
!onsidered to have 2one beyond the
bo+nds of 7hat is e8pe!ted of the
154
Page 155
sBill of a reasonably !o'petent
do!torL/
Therefore, as a res+lt of o+r above
dis!+ssion 7e are of the opinion that
s+''ary dis'issal of the ori2inal petition
by the Co''ission on the 1+estion of non
3oinder of ne!essary parties 7as not
proper. %n !ase the !o'plainant fails to
s+bstantiate the alle2ations, then the
!o'plaint 7ill fail. 9+t not on the 2ro+nd
of non3oinder of ne!essary party. 9+t at
the sa'e ti'e the hospital !an dis!har2e
the b+rden by prod+!in2 the treatin2
do!tor in defen!e that all d+e !are and
!a+tion 7as taBen and despite that the
patient died. The hospital;%nstit+te is
not 2oin2 to s+ffer on a!!o+nt of non
3oinder of ne!essary parties and the
Co''ission sho+ld have pro!eeded a2ainst
the hospital. @ven other7ise also the
%nstit+te had to prod+!e the treatin2
physi!ian !on!erned and has to prod+!e
eviden!e that all !are and !a+tion 7as
taBen by the' or their staff to 3+stify
that there 7as no ne2li2en!e involved in
the 'atter. Therefore, nothin2 t+rns on
not i'pleadin2 the treatin2 do!tor as a
party. 4n!e an alle2ation is 'ade that the
patient 7as ad'itted in a parti!+lar
hospital and eviden!e is prod+!ed to
satisfy that he died be!a+se of la!B of
proper !are and ne2li2en!e, then the
b+rden lies on the hospital to 3+stify
that there 7as no ne2li2en!e on the part
of the treatin2 do!tor or hospital.
Therefore, in any !ase, the hospital is in
a better position to dis!lose 7hat !are
7as taBen or 7hat 'edi!ine 7as
155
Page 156
ad'inistered to the patient. %t is the
d+ty of the hospital to satisfy that there
7as no la!B of !are or dili2en!e. The
hospitals are instit+tions, people e8pe!t
better and effi!ient servi!e, if the
hospital fails to dis!har2e their d+ties
thro+2h their do!tors, bein2 e'ployed on
3ob basis or e'ployed on !ontra!t basis,
it is the hospital 7hi!h has to 3+stify
and not i'pleadin2 a parti!+lar do!tor
7ill not absolve the hospital of its
responsibilities.M
-@'phasis laid by this Co+rt0
10". Therefore, in the li2ht of the rival le2al
!ontentions raised by the parties and the le2al
prin!iples laid do7n by this Co+rt in plethora of
!ases referred to s+pra, parti!+larly, Sa/1&a
7ar:> !ase, 7e have to infer that the appellant
A#$% &ospital is vi!ario+sly liable for its
do!tors. %t is !learly 'entioned in Sa/1&a 7ar:>
!ase that a &ospital is responsible for the !ond+!t
of its do!tors both on the panel and the visitin2
do!tors. =e, therefore, dire!t the appellantA#$%
&ospital to pay the total a'o+nt of !o'pensation
7ith interest a7arded in the appeal of the !lai'ant
156
Page 157
7hi!h re'ains d+e after ded+!tin2 the total a'o+nt
of $s.25 laBhs payable by the appellantsdo!tors as
per the 4rder passed by this Co+rt 7hile ans7erin2
the point no. 7.
L1a<1l1&5 +. Dr. S(2(mar M(2)$r3$$=
110. As re2ards the liability of )r. ,+B+'ar
#+Bher3ee, it is his !ase that no7here has this
Co+rt in Mala5 '(mar 7a%:(l5> de!ision hold the
appellant )r. #+Bher3ee and appellantA#$% &ospital
Ipri'arily responsibleM for the death of the
!lai'ant/s 7ife. 4n the !ontrary, referrin2 to
paras 186 and 187 of the said 3+d2'ent, +nder the
headin2 of .!+'+lative effe!t/, the appellant/s
!o+nsel has ar2+ed that his liability is not
established by the Co+rt. The said para2raphs are
e8tra!ted here+nder:
I186. A patient 7o+ld feel the defi!ien!y
in servi!e havin2 re2ard to the !+'+lative
effe!t of ne2li2en!e of all !on!erned.
Ne2li2en!e on the part of ea!h of the
157
Page 158
treatin2 do!tors as also the hospital 'ay
have been the !ontrib+tin2 fa!tors to the
+lti'ate death of the patient. 9+t, then
in a !ase of this nat+re, the !o+rt '+st
deal 7ith the !onse1+en!es the patient
fa!ed, Beepin2 in vie7 the !+'+lative
effe!t. %n the instant !ase, ne2li2ent
a!tion has been noti!ed 7ith respe!t to
'ore than one respondent. A !+'+lative
in!iden!e, therefore, has led to the death
of the patient.
187. %t is to be noted that the do!trine
of !+'+lative effe!t is not available in
!ri'inal la7. The !o'ple8ities involved in
the instant !ase as also the differin2
nat+re of ne2li2en!e e8er!ised by vario+s
a!tors, 'aBe it very diffi!+lt to distil
individ+al e8tent of ne2li2en!e 7ith
respe!t to ea!h of the respondent. %n s+!h
a s!enario findin2 of 'edi!al ne2li2en!e
+nder ,e!tion 306A !annot be ob3e!tively
deter'ined.M
111. %n the li2ht of the le2al !ontention raised by
the appellant)r. #+Bher3ee, 7e are in!lined to
'aBe the follo7in2 observation re2ardin2 his
liability in the present !ase. The para2raphs
relied +pon by )r. #+Bher3ee as have been 'entioned
above are in relation to the !+lpability of the
do!tors for !a+sin2 the death of the patient +nder
,e!tion 306A of %5C. %t is i'perative to 'ention
here that the 1+ant+' of !o'pensation to be paid by
158
Page 159
the appellantdo!tors and the A#$% &ospital is not
pre'ised on their !+lpability +nder ,e!tion 306A
of %5C b+t on the basis of their a!t of ne2li2en!e
as do!tors in treatin2 the de!eased 7ife of the
!lai'ant. =e are therefore in!lined to reiterate
the findin2s of this Co+rt re2ardin2 the liability
of )r. #+Bher3ee in Mala5 '(mar 7a%:(l5> !ase
7hi!h read as +nder:
I15". =hen )r. #+Bher3ee e8a'ined
An+radha, she had rashes all over her body
and this bein2 the !ase of der'atolo2y, he
sho+ld have referred her to a
der'atolo2ist. %nstead, he pres!ribed
Idepo'edrolM for the ne8t 3 days on his
ass+'ption that it 7as a !ase of
Ivas!+litisM. The dosa2e of 120 '2
depo'edrol per day is !ertainly a hi2her
dose in !ase of a T@N patient or for that
'atter any patient s+fferin2 fro' any
other bypass or sBin disease and the
'a8i'+' re!o''ended +sa2e by the dr+2
'an+fa!t+rer has also been e8!eeded by )r.
#+Bher3ee. 4n 1151""8, the f+rther
pres!ription of depo'edrol 7itho+t
dia2nosin2 the nat+re of the disease is a
7ron2f+l a!t on his part.
160. A!!ordin2 to 2eneral pra!ti!e, lon2
a!tin2 steroids are not advisable in any
!lini!al !ondition, as noti!ed
hereinbefore. &o7ever, instead of
159
Page 160
pres!ribin2 a 1+i!Ba!tin2 steroid, the
pres!ription of a lon2a!tin2 steroid
7itho+t foreseein2 its i'pli!ations is
!ertainly an a!t of ne2li2en!e on )r.
#+Bher3ee/s part 7itho+t e8er!isin2 any
!are or !a+tion. As it has been already
stated by the e8perts 7ho 7ere !ross
e8a'ined and the a+thorities that have
been s+b'itted that the +sa2e of 80120 '2
is not per'issible in T@N. A+rther'ore,
after pres!ribin2 a steroid, the effe!t of
i''+nos+ppression !a+sed d+e to it, o+2ht
to have been foreseen. The effe!t of
i''+nos+ppression !a+sed d+e to the +se of
steroids has affe!ted the i''+nity of the
patient and )r. #+Bher3ee has failed to
taBe note of the said !onse1+en!es.M

112. %t is also i'portant to hi2hli2ht in this
3+d2'ent that the 'anner in 7hi!h )r. #+Bher3ee
atte'pted to shirB fro' his individ+al
responsibility both in the !ri'inal and !ivil !ases
'ade a2ainst hi' on the death of the !lai'ant/s
7ife is very '+!h +nbe!o'in2 of a do!tor as
reno7ned and revered as he is. The findin2 of this
Co+rt on this aspe!t re!orded in Mala5 '(mar
7a%:(l5> !ase reads as +nder:
I182. %t is also of so'e 2reat
si2nifi!an!e that both in the !ri'inal as
160
Page 161
also the !ivil !ases, the do!tors
!on!erned tooB re!o+rse to the bla'e 2a'e.
,o'e of the' tried to shirB their
individ+al responsibilities. =e 'ay in
this behalf noti!e the follo7in2:
-i0 %n response to the noti!e of )r.
*+nal, )r. #+Bher3ee says that depo'edrol
had not been ad'inistered at all. =hen
!onfronted 7ith his pres!ription, he
s+22ested that the reply 7as not prepared
on his instr+!tions, b+t on the
instr+!tion of A#$%.
-ii0 )r. #+Bher3ee, th+s, so+2ht to diso7n
his pres!ription at the first instan!e. ,o
far as his pres!ription dated 1151""8 is
!on!erned, a!!ordin2 to hi', be!a+se he
left Cal!+tta for attendin2 an
international !onferen!e, the pres!ription
iss+ed by hi' be!a'e nonoperative and,
th+s, he so+2ht to shift the bla'e on )r.
&alder.
-iii0 )r. #+Bher3ee and )r. &alder have
shifted the bla'e to )r. 5rasad and other
do!tors. =hereas )r. 5rasad !o+nter!har2ed
the senior do!tors in!l+din2 $espondent 2
statin2:
I5rof. 9.N. &alder -$espondent 20 7as so
'+!h atta!hed 7ith the daytoday treat'ent
of patient An+radha that he never fo+nd
any defi!ien!y in the overall 'ana2e'ent
at A#$% so '+!h so that he had hi'self
2iven a !ertifi!ate that her !ondition 7as
very '+!h fit eno+2h to travel to #+'bai.
LM
161
Page 162
113. Therefore, the ne2li2en!e of )r. ,+B+'ar
#+Bher3ee in treatin2 the !lai'ant/s 7ife had been
already established by this Co+rt in Mala5 '(mar
7a%:(l5> !ase. ,in!e he is a senior do!tor 7ho 7as
in !har2e of the treat'ent of the de!eased, 7e are
in!lined to 'ention here that )r. #+Bher3ee has
sho7n +t'ost disrespe!t to his profession by bein2
so !as+al in his approa!h in treatin2 his patient.
#oreover, on bein2 !har2ed 7ith the liability, he
atte'pted to shift the bla'e on other do!tors. =e,
therefore, in the li2ht of the fa!ts and
!ir!+'stan!es, dire!t hi' to pay a !o'pensation of
$s.10 laBhs to the !lai'ant in lie+ of his
ne2li2en!e and 7e sin!erely hope that he +pholds
his inte2rity as a do!tor in the f+t+re and not be
!as+al abo+t his patient/s lives.
L1a<1l1&5 +. Dr.Ba1!5a%a&) Hal!ar=
116. The !ase of the appellant )r. 9aidyanath
&aldar is that he is a senior !ons+ltant 7ho 7as
162
Page 163
!alled by the attendin2 physi!ian to e8a'ine the
patient on 12.5.1""8. 4n e8a'inin2 the patient, he
dia2nosed the disease as T@N and pres!ribed
'edi!ines and ne!essary s+pportive therapies. %t is
his f+rther !ase that he 7as not !alled either to
see or e8a'ine the patient post 12.5.1""8. The !ase
a2ainst )r. 9. &aldar is his pres!ription of
,teroid 5redinosolone at the rate of 60 '2 thri!e a
day 7hi!h 7as e8!essive in vie7 of the fa!t that
the de!eased 7as already +nder hi2h dose of
steroid. %t is +r2ed by the appellant)r. &aldar
that the de!eased 7as +nder a hi2h dose of steroid
at the rate of 160 '2 per day and it 7as the
appellant 7ho tapered it do7n by pres!ribin2 a
1+i!B a!tin2 steroid 5redinosolone at 120 '2 per
day. The appellant)r. &aldar f+rther +r2ed that he
7as !alled only on!e to e8a'ine the de!eased and he
7as not !alled thereafter. &en!e, the National
Co''ission 7ron2ly e1+ated hi' 7ith )r. 9alra'
5rasad 7ho 7as the attendin2 physi!ian. Tho+2h the
163
Page 164
!lai'ant did not 'aBe any !o+nter state'ent on
apportionin2 liability to the appellant)r. &aldar,
it is pertinent for +s to resort to the findin2s
re!orded by this Co+rt in the !ase 7hile re'andin2
it ba!B to the National Co''ission for deter'inin2
the individ+al liability of the appellant do!tors
involved in the treat'ent of the de!eased. The
findin2s of this Co+rt in Mala5 '(mar 7a%:(l5>
!ase s+pra, are re!orded as +nder:
I161. After taBin2 over the treat'ent of
the patient and dete!tin2 T@N, )r. &alder
o+2ht to have ne!essarily verified the
previo+s pres!ription that has been 2iven
to the patient. 4n 1251""8 altho+2h
Idepo'edrolM 7as stopped, )r. &alder did
not taBe any re'edial 'eas+res a2ainst the
e8!essive a'o+nt of Idepo'edrolM that 7as
already st+!B in the patient/s body and
added 'ore f+el to the fire by pres!ribin2
a 1+i!Ba!tin2 steroid IprednisoloneM at
60 '2 three ti'es daily, 7hi!h is an
e8!essive dose, !onsiderin2 the fa!t that
a h+2e a'o+nt of Idepo'edrolM has been
already a!!+'+lated in the body.
162. Hife savin2 Is+pportive therapyM
in!l+din2 %< fl+ids;ele!trolyte
repla!e'ent, dressin2 of sBin 7o+nds and
!lose 'onitorin2 of the infe!tion is
'andatory for proper !are of T@N patients.
164
Page 165
,Bin -7o+nd0 s7ap and blood tests also
o+2ht to be perfor'ed re2+larly to dete!t
the de2ree of infe!tion. Apart fro' +sin2
the steroids, a22ressive s+pportive
therapy that is !onsidered to be
r+di'entary for T@N patients 7as not
provided by )r. &alder.
163. A+rther Ivital si2nsM of a patient
s+!h as te'perat+re, p+lse, intaBeo+tp+t
and blood press+re 7ere not 'onitored. All
these fa!tors are !onsidered to be the
very basi! ne!essary a'enities to be
provided to any patient, 7ho is !riti!ally
ill. The fail+re of )r. &alder to ens+re
that these fa!tors 7ere 'onitored
re2+larly is !ertainly an a!t of
ne2li2en!e. 4!!l+sive dressin2s 7ere
!arried o+t as a res+lt of 7hi!h the
infe!tion had been in!reased. )r. &alder/s
pres!ription 7as a2ainst the Canadian
Treat'ent 5roto!ol referen!e to 7hi!h 7e
have already 'ade hereinbefore. %t is the
d+ty of the do!tors to prevent f+rther
spreadin2 of infe!tions. &o7 that is to be
done is the do!tors !on!ern. &ospitals or
n+rsin2 ho'es 7here a patient is taBen for
better treat'ent sho+ld not be a pla!e for
2ettin2 infe!tion.M
115. ,i'ilar to the appellant )r. ,+B+'ar
#+Bher3ee, the appellant )r. 9aidyanath &aldar is
also a senior do!tor of hi2h rep+te. &o7ever,
a!!ordin2 to the findin2s of this Co+rt in Mala5
165
Page 166
'(mar 7a%:(l5> !ase, he had !ond+!ted 7ith +t'ost
!allo+sness in 2ivin2 treat'ent to the !lai'ant/s
7ife 7hi!h led to her +nfort+nate de'ise. The
appellant )r. 9aidyanath &aldar too, liBe )r.
,+B+'ar #+Bher3ee, 'ade every atte'pt to shift the
bla'e to the other do!tors thereby taintin2 the
'edi!al profession 7ho +ndertooB to serve. This
Co+rt thereby dire!ts hi' to pay $s.10 laBhs as
!o'pensation to the !lai'ant in lie+ of his
ne2li2en!e in treatin2 the 7ife of the !lai'ant.
L1a<1l1&5 +. Dr Ba1!5a%a&) Praa!:
116. %t is the !ase of the appellant)r. 9alra'
5rasad that he 7as the 3+nior'ost attendin2
physi!ian at A#$% &ospital 7ho sa7 the de!eased for
the first ti'e on 11.5.1""8. &e 7as not !alled +pon
to pres!ribe 'edi!ines b+t 7as only re1+ired to
!ontin+e and 'onitor the 'edi!ines to be
ad'inistered to the de!eased as pres!ribed by the
166
Page 167
spe!ialists. The learned senior !o+nsel on behalf
of the appellant)r. 9.5rasad ar2+es that the
!o'plaint 'ade by the !lai'ant had no aver'ents
a2ainst hi' b+t the one 7hereby it 7as stated by
the !lai'ant at para2raph 66 of the !o'plaint 7hi!h
reads th+s:
I66. That )r. 9alra' 5rasad as attendin2
physi!ian at A#$% did do nothin2 better.
&e did not taBe any part in the treat'ent
of the patient altho+2h he stood liBe a
se!ond fiddle to the 'ain tea' headed by
the opposite party no. 2 S 3. &e never
s+22ested even faintly that A#$% is not an
ideal pla!e for treat'ent of T@N patient>
on the !onverse, he 7as f+ll of praise for
A#$% as an ideal pla!e for the treat'ent
of T@N patients Bno7in2 nothin2 ho7 a T@N
patient sho+ld be treated.M
117. To prove his !o'peten!e as a do!tor, the
appellant)r. 9alra' 5rasad f+rther prod+!ed a
portion of the !o'plaint 7hi!h reads th+s:
I33LLL. that no sBin biopsy for
histopatholo2y report 7as ever re!o''ended
by any -e8!ept )r. 9.5rasad0, 7hi!h is the
basi! startin2 point in s+!h treat'ent,
the sa'e 'istaBe 7as also !o''itted by the
opposite party no. 1M
167
Page 168
118. The appellant )r. 9alra' 5rasad f+rther
e'phasiEes +pon the !rosse8a'ination of the
!lai'ant to prove that he 7as not ne2li2ent 7hile
treatin2 the patient. J+estion No. 26 of the !ross
e8a'ination reads as +nder:
IJ. No. 26: )r. 5rasad says that
)epo'edrol dose a!!ordin2 to the treat'ent
sheet of the A#$% hospital, he 'ade a
spe!ifi! s+22estion 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. Neah, he
said that one day in A#$% re!ord.M
11". Tho+2h the !lai'ant did not 'aBe spe!ifi!
!lai' a2ainst the appellant)r. 9alra' 5rasad,
appellant )r. 9. &aldar !lai'ed in his s+b'ission
that he has been 7ron2ly e1+ated 7ith )r. 9alra'
5rasad 7ho 7as the attendin2 physi!ian and )r.
Anbani $oy Cho+dh+ry 7ho 7as the physi!ian in
!har2e of the patient.
168
Page 169
120. %t is pertinent for +s to note the shiftin2 of
bla'es on individ+al responsibility by the do!tors
spe!ially the senior do!tor as re!orded by this
Co+rt 7hi!h is a sha'ef+l a!t on the di2nity of
'edi!al profession. The observations 'ade by this
Co+rt in this re2ard in Mala5 '(mar 7a%:(l5> !ase
read as +nder:
I182......-iii0 )r. #+Bher3ee and )r.
&alder have shifted the bla'e to )r.
5rasad and other do!tors. =hereas )r.
5rasad !o+nter!har2ed the senior do!tors
in!l+din2 $espondent 2 statin2:
I5rof. 9.N. &alder -$espondent 20 7as so
'+!h atta!hed 7ith the daytoday treat'ent
of patient An+radha that he never fo+nd
any defi!ien!y in the overall 'ana2e'ent
at A#$% so '+!h so that he had hi'self
2iven a !ertifi!ate that her !ondition 7as
very '+!h fit eno+2h to travel to #+'bai.
LM
%n ans7er to a 1+estion as to 7hether )r.
&alder had 2iven spe!ifi! dire!tion to hi'
for !ontrol of daytoday 'edi!ine to
An+radha, )r. 5rasad stated:
IL this 7as done +nder the 2+idan!e of )r.
,+B+'ar #+Bher3ee -$espondent 10, )r. 9.N.
&alder -$espondent 20 and )r. Abani $oy
Cho7dh+ry -$espondent 30.M
&e f+rther'ore stated that those three
senior do!tors pri'arily de!ided the
treat'ent re2i'en for An+radha at A#$%.
169
Page 170
-i&0 )r. *a+shiB Nandy had also stated
that three senior do!tors 7ere in !har2e
of An+radha/s treat'ent.
-&0 A#$% states that the dr+2s had been
ad'inistered and n+rsin2 !are had been
2iven as per the dire!tions of the
do!tors.
-&i0 $espondents 5 and 6, therefore, did
not o7n any individ+al responsibility on
the'selves altho+2h they 7ere independent
physi!ians 7ith post2rad+ate 'edi!al
1+alifi!ations.
183. %n <rrors, Medicine and the -aw,
Ca'brid2e Fniversity 5ress, p. 16, the
a+thors, Alan #erry and Ale8ander #!Call
,'ith, 2001 @dn., stated:
I#any in!idents involve a !ontrib+tion
fro' 'ore than one person, and this !ase
is an e8a'ple. %t ill+strates the tenden!y
to bla'e the last identifiable ele'ent in
the !lai' of !a+sationUthe person holdin2
the .s'oBin2 2+n/. A 'ore !o'prehensive
approa!h 7o+ld identify the relative
!ontrib+tions of the other fail+res in the
syste', in!l+din2 fail+res in the !ond+!t
of other individ+als.LM
121. 5ara2raph 183 of the 3+d2'ent indi!ates that
the Co+rt abhorred the shiftin2 of bla'es by the
senior do!tor on the attendin2 physi!ian the
appellant )r. 9alra' 5rasad even tho+2h the Co+rt
170
Page 171
held hi' 2+ilty of ne2li2en!e. This Co+rt fo+nd the
appellant)r. 9alra' 5rasad 2+ilty as +nder:
I166. As re2ards, )r. 9alara' 5rasad,
$espondent 5, it 'ay be noti!ed:
-i0 #ost do!tors refrain fro' +sin2
steroids at the later sta2e of the disease
d+e to the fear of sepsis, yet he added
'ore steroids in the for' of 1+i!Ba!tin2
IprednisoloneM at 60 '2 three ti'es a day.
-ii0 &e stood as a se!ond fiddle to the
treat'ent and failed to apply his o7n
'ind.
-iii0 No do!tor has the ri2ht to +se the
dr+2 beyond the 'a8i'+' re!o''ended dose.M
122. =e a!Bno7led2e the fa!t that )r. 9alra'
5rasad 7as a 3+nior do!tor 7ho 'i2ht have a!ted on
the dire!tion of the senior do!tors 7ho +ndertooB
the treat'ent of the !lai'ant/s 7ife in A#$%
&ospital. &o7ever, 7e !annot lose si2ht of the fa!t
that the appellant )r. 9alra' 5rasad 7as an
independent 'edi!al pra!titioner 7ith a post
2rad+ate de2ree. &e still stood as a se!ond fiddle
and perpet+ated the ne2li2en!e in 2ivin2 treat'ent
to the !lai'ant/s 7ife. This Co+rt in Mala5 '(mar
171
Page 172
7a%:(l5> !ase fo+nd hi' to be ne2li2ent in
treatin2 the !lai'ant/s 7ife in spite of bein2 the
attendin2 physi!ian of the &ospital. 9+t sin!e he
is a 3+nior do!tor 7hose !ontrib+tion to the
ne2li2en!e is far less than the senior do!tors
involved, therefore this Co+rt dire!ts hi' to pay a
!o'pensation of $s. 5 laBhs to the !lai'ant. =e
hope that this !o'pensation a!ts as a re'inder and
deterrent to hi' a2ainst bein2 !as+al and passive
in treatin2 his patients in his for'ative years of
'edi!al profession.
L1a<1l1&5 +. &)$ 0la1ma%& I Dr. '(%al Sa)a:
123. Ainally, 7e arrive at deter'inin2 the
!ontrib+tion of the !lai'ant to the ne2li2en!e of
the appellant do!tors and the A#$% &ospital in
!a+sin2 the death of his 7ife d+e to 'edi!al
ne2li2en!e. The National Co''ission has deter'ined
the !o'pensation to be paid for 'edi!al ne2li2en!e
172
Page 173
at $s.1,72,87,500;. &o7ever, the National
Co''ission 7as of the opinion that the interferen!e
of the !lai'ant 7as also !ontrib+ted to the death
of his 7ife. The National Co''ission relied +pon
para2raph 123 of the 3+d2'ent of this Co+rt in
Mala5 '(mar 7a%:(l5/s !ase to arrive at the
aforesaid !on!l+sion. 5ara2raph 123 of the 3+d2'ent
reads th+s:
I123. To !on!l+de, it 7ill be pertinent to
note that even if 7e a2ree that there 7as
interferen!e by *+nal ,aha d+rin2 the
treat'ent, it in no 7ay di'inishes the
pri'ary responsibility and defa+lt in d+ty
on part of the defendants. %n spite of a
possibility of hi' playin2 an overan8io+s
role d+rin2 the 'edi!al pro!eedin2s, the
brea!h of d+ty to taBe basi! standard of
'edi!al !are on the part of defendants is
not dil+ted. To that e8tent, !ontrib+tory
ne2li2en!e is not pertinent. %t 'ay,
ho7ever, have so'e role to play for the
p+rpose of da'a2es.M
Therefore, holdin2 the !lai'ant responsible for
!ontrib+tory ne2li2en!e, the National Co''ission
ded+!ted 10G fro' the total !o'pensation and an
173
Page 174
a7ard of $s.1,55,58,750; 7as 2iven to the
!lai'ant.
126. The appellantsdo!tors and the A#$% &ospital
have raised the iss+e of !ontrib+tory ne2li2en!e
all over a2ain in the present !ase for deter'inin2
the 1+ant+' of !o'pensation to be ded+!ted for the
interferen!e of the !lai'ant in treat'ent of the
de!eased.
125. 4n the other hand, the !lai'ant in his 7ritten
state'ent has 'entioned that this Co+rt has
re3e!ted the assertion that the !lai'ant interfered
7ith the treat'ent of his 7ife. The appellant
do!tors raised the sa'e iss+e in the revision
petition 7hi!h 7as appropriately dis'issed. &e
relied +pon the observations 'ade by this Co+rt
7hi!h read as +nder:
I117. %nterferen!e !annot be taBen to be
an e8!+se for abdi!atin2 one/s
responsibility espe!ially 7hen an
interferen!e !o+ld also have been in the
nat+re of s+22estion. ,a'e !o''ents 7ere
174
Page 175
said to have been 'ade by )r. &alder 7hile
'aBin2 his state'ent +nder ,e!tion 313 of
the Code of Cri'inal 5ro!ed+re. They are
ad'issible in eviden!e for the said
p+rpose. ,i'ilarly, the state'ents 'ade by
)r. #+Bher3ee and )r. &alder in their
7ritten state'ents before the National
Co''ission are not ba!Bed by any eviden!e
on re!ord. @ven other7ise, Beepin2 in vie7
the spe!ifi! defen!e raised by the'
individ+ally, interferen!e by *+nal, so
far as they are !on!erned, 7o+ld a'o+nt to
hearsay eviden!e and not dire!t eviden!e.
122. The respondents also so+2ht to
hi2hli2ht on the n+'ber of antibioti!s
7hi!h are said to have been ad'inistered
by *+nal to An+radha 7hile she 7as in A#$%
!ontendin2 that the said antibioti!s 7ere
ne!essary. *+nal, ho7ever, s+b'itted that
the said antibioti!s 7ere pres!ribed by
the do!tors at A#$% and he did not 7rite
any pres!ription. =e 7o+ld, ho7ever,
ass+'e that the said antibioti!s had been
ad'inistered by *+nal on his o7n, b+t it
no7 stands ad'itted that ad'inistration of
s+!h antibioti!s 7as ne!essary.
123. To !on!l+de, it 7ill be pertinent to
note that even if 7e a2ree that there 7as
interferen!e by *+nal ,aha d+rin2 the
treat'ent, it in no 7ay di'inishes the
pri'ary responsibility and defa+lt in d+ty
on part of the defendants. %n spite of a
possibility of hi' playin2 an overan8io+s
role d+rin2 the 'edi!al pro!eedin2s, the
brea!h of d+ty to taBe basi! standard of
'edi!al !are on the part of defendants is
not dil+ted. To that e8tent, !ontrib+tory
175
Page 176
ne2li2en!e is not pertinent. %t 'ay,
ho7ever, have so'e role to play for the
p+rpose of da'a2es.M
-@'phasis laid by this Co+rt0
A !aref+l readin2 of the above para2raphs to2ether
fro' the de!ision of Malay Kumar Ganguly’s !ase
7o+ld 2o to sho7 that the !lai'ant tho+2h over
an8io+s, did to the patient 7hat 7as ne!essary as a
part of the treat'ent. The National Co''ission
erred in readin2 in isolation the state'ent of this
Co+rt that the !lai'ant/s a!tion 'ay have played
so'e role for the p+rpose of da'a2e.
126. =e f+rther intend to e'phasiEe +pon the
observation of this Co+rt in Mala5 '(mar 7a%:(l5/s
!ase 7hi!h reads as +nder:
I1"6. A+rther, the state'ent 'ade by the
&i2h Co+rt that the transfer !ertifi!ate
7as for2ed by the patient party is
absol+tely erroneo+s, as )r. Anil *+'ar
?+pta deposed before the trial !o+rt that
he sa7 the transfer !ertifi!ate at A#$%/s
offi!e and the 7ords Ifor better
treat'entM 7ere 7ritten by )r. 9alara'
5rasad in his presen!e and these 7ords
7ere 7ritten by )r. 5rasad, 7ho told it
176
Page 177
7o+ld be easier for the' to transport the
patient. %n a !ase of this nat+re, *+nal
7o+ld have e8pe!ted sy'pathy and not a
spate of irresponsible a!!+sations fro'
the &i2h Co+rt.M
%n the above'entioned para2raph, this Co+rt !learly
deterred the &i2h Co+rt fro' 'aBin2 irresponsible
a!!+sations a2ainst the !lai'ant 7ho has s+ffered
not only d+e to the loss of his 7ife b+t also
be!a+se his lon2 dra7n battle for 3+sti!e.
Fnfort+nately, the National Co''ission 'ade the
sa'e 'istaBe.

127. =e, therefore, !on!l+de that the National
Co''ission erred in holdin2 that the !lai'ant had
!ontrib+ted to the ne2li2en!e of the appellant
do!tors and the &ospital 7hi!h res+lted in the
death of his 7ife 7hen this Co+rt !learly absolved
the !lai'ant of s+!h liability and re'anded the
'atter ba!B to the National Co''ission only for the
p+rpose of deter'inin2 the 1+ant+' of !o'pensation.
&en!e, 7e set aside the findin2 of the National
177
Page 178
Co''ission and ree'phasiEe the findin2 of this
Co+rt that the !lai'ant did not !ontrib+te to the
ne2li2en!e of the appellantsdo!tors and A#$%
&ospital 7hi!h res+lted in the death of his 7ife.

A%8$r &+ #+1%& %+. 8
128. This Co+rt, 7hile re'andin2 the 'atter ba!B to
the National Co''ission, has !ate2ori!ally stated
that the pe!+niary and nonpe!+niary losses
s+stained by the !lai'ant and f+t+re losses of hi'
+p to the date of trial '+st be !onsidered for the
1+ant+' of !o'pensation. That has not been done in
the instant !ase by the National Co''ission.
Therefore, the !lai'ant is entitled for enhan!e'ent
of !o'pensation on the aforesaid heads as he has
in!+rred h+2e a'o+nt of e8penses in the !o+rt of
'ore than 15 years lon2 trial in the instant !ase.
The total !lai', ori2inal as 7ell as enhan!ed !lai'
by 7ay of filin2 affidavit 7ith s+pportin2
178
Page 179
do!+'ents, is $s."7,56,07,000; that in!l+des
pe!+niary da'a2es of $s.36,56,07,000; and non
pe!+niary da'a2es of $s.31,50,00,000;, spe!ial
da'a2es of F, D6,000,000 for loss of 3ob;ho+se in
4hio and p+nitive da'a2es of F, D1,000,000. The
+pdated breaB+p of the total !lai' has been
per+sed and the sa'e has not been !onsidered by
the National Co''ission Beepin2 in vie7 the !lai'
and le2al eviden!e and observations 'ade and
dire!tions iss+ed by this Co+rt in Mala5 '(mar
7a%:(l5> !ase to deter'ine 3+st and reasonable
!o'pensation. Therefore, 7e are of the vie7 that
the !lai'ant is entitled for enhan!ed !o'pensation
that 7ill be 'entioned +nder different heads 7hi!h
7ill be noted in the appropriate para2raphs of this
3+d2'ent.
12". The National Co''ission has also not taBen
into !onsideration the observations 'ade by this
Co+rt 7hile re'andin2 the !ase for deter'inin2 the
179
Page 180
1+ant+' of !o'pensation 7ith re2ard to the stat+s
of treatin2 do!tors and the &ospital. A+rther, the
National Co''ission has failed to taBe into
!onsideration the observations 'ade in the
aforesaid 3+d2'ent 7herein in para2raphs 152 and
155 it is held that A#$% &ospital is one of the
best &ospitals in Cal!+tta and the do!tors 7ere
best do!tors available. This aspe!t of the 'atter
has been !o'pletely i2nored by the National
Co''ission in a7ardin2 3+st and reasonable
!o'pensation in favo+r of the !lai'ant.
130. ,in!e, it has already been deter'ined by the
Co+rt that the !o'pensation paid by the National
Co''ission 7as inade1+ate and that it is re1+ired
to be enhan!ed s+bstantially 2iven the fa!ts and
eviden!e on re!ord, it 7ill be pr+dent to taBe +p
the different heads of !o'pensation separately to
provide !larity to the reasonin2 as 7ell.
L+ +. 1%0+m$ +. &)$ !$0$a$!=
180
Page 181
131. The 2rievan!e of the !lai'ant is that the
National Co''ission has failed to taBe into
!onsideration the le2al and s+bstantial eviden!e
prod+!ed on re!ord re2ardin2 the in!o'e of the
de!eased 7ife as she 7as a !itiEen of F.,.A. and
per'anently settled as a !hild psy!holo2ist and the
!lai'ant 7as A%), resear!her in the F.,.A.
Therefore, the National Co''ission o+2ht to have
taBen the above relevant fa!t+al aspe!t of the !ase
into !onsideration re2ardin2 the stat+s and
standard of livin2 of the de!eased in F.,.A. to
deter'ine 3+st !o'pensation +nder the head of loss
of dependen!y. The !lai'ant has ri2htly relied +pon
the !ase involvin2 death of a 6768 years old
F.,.A. !itiEen in a road a!!ident in %ndia, in
U%1&$! I%!1a I%(ra%0$ C+. L&!. * O&)$r <s.
Pa&r101a J$a% Ma)a3a% * Or. referred to s+pra
7here this Co+rt has a7arded !o'pensation of
$s.10.38 !rores after holdin2 that 7hile a7ardin2
181
Page 182
!o'pensation in s+!h !ases the Co+rt '+st !onsider
the hi2h stat+s and standard of livin2 of both the
vi!ti' and dependents. &o7ever, the National
Co''ission did not !onsider the s+bstantial and
le2al eviden!e add+!ed on re!ord by the !lai'ant
re2ardin2 the in!o'e that 7as bein2 earned by the
!lai'ant/s 7ife even tho+2h he has e8a'ined the
F.,.A. based 5rof. Cohn A. 9+rBe thro+2h video
!onferen!in2 in #ayC+ne, 2011. &e 7as also !ross
e8a'ined by the !o+nsel of the appellant do!tors
and the &ospital and had s!ientifi!ally !al!+lated
and testified +nder dire!t as 7ell as !ross
e8a'ination as to ho7 he !a'e to !al!+late the
prospe!tive loss of in!o'e for a si'ilarly sit+ated
person in F.,.A. as of the de!eased. 5rof. Cohn
A. 9+rBe has !ate2ori!ally stated that dire!t loss
of in!o'e of the de!eased on a!!o+nt of her
pre'at+re death, 7o+ld a'o+nt to 5 'illion and 125
tho+sand dollars. The loss of in!o'e on a!!o+nt of
pre'at+re death of the !lai'ant/s 7ife 7as
182
Page 183
!al!+lated by the said 7itness 7ho is an @!ono'ist
in A'eri!a and he has also ded+!ted onethird for
her personal e8penses o+t of her ann+al in!o'e
7hi!h is at par 7ith the la7 laid do7n by this
Co+rt in n+'ber of !ases in!l+din2 Sarla V$rma>
!ase -supra5. %n the !ross e8a'ination of the said
e8pert 7itness by the learned !o+nsel for the
appellantdo!tors and the &ospital, he has also
e8plained ho7 he !al!+lated the loss of in!o'e on
the pre'ise of the pre'at+re death of the
!lai'ant/s 7ife. A!!ordin2 to 5rof. Cohn A. 9+rBe,
the above !al!+lation of 5 'illion and 125 tho+sand
dollars for loss of in!o'e of the de!eased 7as a
very !onservative fore!ast and other esti'ates the
da'a2es for her pre'at+re death !o+ld be " to 10
'illion dollars. %t is the !lai' of the !lai'ant
that loss of in!o'e of '+lti'illion dollars as
dire!t loss for the 7ron2f+l death of the de!eased
'ay appear as a fab+lo+s a'o+nt in the !onte8t of
%ndia b+t +ndo+btedly an avera2e and le2iti'ate
183
Page 184
!lai' in the !onte8t of the instant !ase has to be
taBen to a7ard 3+st !o'pensation. &e has pla!ed
relian!e +pon the 3+d2'ent of this Co+rt in I%!1a%
M$!10al A+01a&1+%/ !ase -s+pra0 7herein the
Constit+tion 9en!h has stated that to deny the
le2iti'ate !lai' or to restri!t arbitrarily the
siEe of an a7ard 7o+ld a'o+nt to s+bstantial
in3+sti!e. =e have !onsidered the above i'portant
aspe!t of the !ase in the de!ision of this Co+rt
for enhan!in2 the !o'pensation in favo+r of the
!lai'ant.
132. As per the eviden!e on re!ord, the de!eased
7as earnin2 D 30,000 per ann+' at the ti'e of her
death. The appellantdo!tors and the &ospital !o+ld
not prod+!e any eviden!e to reb+t the !lai's of the
!lai'ant re2ardin2 the 1+alifi!ation of her 7ife.
A+rther, 5rof. Cohn A. 9+rBe, an e!ono'i! e8pert
testified that the de!eased !o+ld have earned '+!h
'ore in f+t+re 2iven her present prospe!t. 9+t
184
Page 185
relyin2 +pon the prin!iple laid do7n by this Co+rt,
7e !annot taBe the esti'ate of 5rof. Cohn A. 9+rBe
to be the in!o'e of the de!eased. =e also feel that
D30,000 per ann+' earned by the de!eased d+rin2 the
ti'e of her death 7as not fro' a re2+lar so+r!e of
in!o'e and she 7o+ld have earned lot 'ore had it
been a re2+lar so+r!e of in!o'e, havin2 re2ard to
her 1+alifi!ation and the 3ob for 7hi!h she 7as
entitled to. Therefore, 7hile deter'inin2 the
in!o'e of the de!eased, 7e rely on the eviden!e on
re!ord for the p+rpose of deter'inin2 the 3+st,
fair and reasonable !o'pensation in favo+r of the
!lai'ant. %t 7o+ld be 3+st and proper for +s to
taBe her earnin2 at D60,000 per ann+' on a re2+lar
3ob. =e f+rther rely +pon the para2raphs in the
!ases of Sarla V$rma and Sa%&+) D$/1 referred to
s+pra 7hile ans7erin2 the point no. 1, to hold that
30G sho+ld be added to7ards the f+t+re loss of
in!o'e of the de!eased. Also, based on the la7 laid
do7n by this Co+rt in !atena of !ases referred to
185
Page 186
s+pra, 1;3
rd
of the total in!o'e is re1+ired to be
ded+!ted +nder the head of personal e8pendit+re of
the de!eased to arrive at the '+ltipli!and.
133. The '+ltiplier 'ethod to be applied has been
!onvin!in2ly ar2+ed by the learned !o+nsel for the
appellantdo!tors and the &ospital a2ainst by the
!lai'ant 7hi!h 7e !on!ede 7ith based on the
reasonin2 'entioned 7hile ans7erin2 the point no.
6. Therefore, esti'atin2 the life e8pe!tan!y of a
healthy person in the present a2e as 70 years, 7e
are in!lined to a7ard !o'pensation a!!ordin2ly by
'+ltiplyin2 the total loss of in!o'e by 30.
136. A+rther, the !lai'ant has ri2htly pointed that
the val+e of %ndian !+rren!y has 2one do7n sin!e
the ti'e 7hen these le2al pro!eedin2s have be2+n in
this !o+ntry. This ar2+'ent of the !lai'ant has
been a!!epted by +s 7hile ans7erin2 the point nos.
2 and 3. Therefore, it 7ill be pr+dent for +s to
186
Page 187
hold the !+rrent val+e of %ndian $+pee at a stable
rate of $s.55; per 1D.
Therefore, +nder the head of .loss of in!o'e of
the de!eased/ the !lai'ant is entitled to an a'o+nt
of $s.5,72,00,550; 7hi!h is !al!+lated as
QD60,000W-30;100860,000D0-1;3 8 52,000D0 8 30 8
$s.55;R X $s.5,72,00,550;.
O&)$r P$0(%1ar5 Dama:$=
135. The pe!+niary da'a2es in!+rred by the !lai'ant
d+e to the loss of the de!eased have already been
2ranted 7hile ans7erin2 the point no. 5. Therefore,
7e are not in!lined to repeat it a2ain in this
portion. &o7ever, the e8pendit+re 'ade by the
!lai'ant d+rin2 the treat'ent of the de!eased both
in *olBata and #+'bai &ospitals deserves to be d+ly
!o'pensated for a7ardin2 reasonable a'o+nt +nder
this head as +nder:
187
Page 188

BaD F+r &)$ m$!10al &r$a&m$%& 1% '+l2a&a a%!
M(m<a1=
136. An a'o+nt of $s.23 laBhs has been !lai'ed by
the !lai'ant +nder this head. &o7ever, he has been
able to prod+!e the 'edi!al bill only to the e8tent
of $s.2.5 laBhs 7hi!h he had paid to the 9rea!h
Candy &ospital, #+'bai. Ass+'in2 that he 'i2ht have
in!+rred so'e 'ore e8pendit+re, the National
Co''ission had 1+antified the e8penses +nder this
head to the t+ne of $s.5 laBhs. =e still !onsider
this a'o+nt as ins+ffi!ient in the li2ht of the
fa!t that the de!eased 7as treated at A#$% &ospital
as an inpatient for abo+t a 7eeB> 7e dee' it 3+st
and proper to enhan!e the !o'pensation +nder this
head by $s.2 laBhs thereby a7ardin2 a total a'o+nt
4f $s.7 laBhs +nder this head.
B<D Tra/$l a%! H+&$l $E#$%$ a& B+m<a5=
188
Page 189
137. The !lai'ant has so+2ht for !o'pensation to
the t+ne of $s.7 laBhs for travel and e8penses for
11 days he had to stay in #+'bai for the treat'ent
of his 7ife. &o7ever, a2ain he has failed to
prod+!e any bills to prove his e8pendit+re. ,in!e,
his travel to #+'bai for the treat'ent of his 7ife
is on re!ord, the National Co''ission has a7arded
!o'pensation of $e.1 laBh +nder this head. =e find
it fit and proper to enhan!e the !o'pensation by
$s.50,000; 'ore !onsiderin2 that he had also
in!+rred so'e +navoidable e8pendit+re d+rin2 his
travel and stay in #+'bai at the ti'e of treat'ent
of the de!eased. Therefore, +nder this head, 7e
a7ard a !o'pensation of $s.1,50,000;.
138. &o7ever, 7ith respe!t to the !lai' 'ade +nder
the !ost of !hartered fli2ht, a s+' of
$s.5,00,000; is already a7arded by the National
Co''ission and 7e are not in!lined to interfere
7ith the sa'e in absen!e of any eviden!e 7hi!h
189
Page 190
alters the !o'p+tation of the !ost in!+rred in
!hartered fli2ht. &en!e, 7e +phold the a'o+nt
a7arded by the National Co''ission +nder the head
of .!ost of !hartered fli2ht/.
N+% #$0(%1ar5 !ama:$=
13". %t is the !ase of the !lai'ant that the
National Co''ission has a7arded paltry a'o+nt
e1+ivalent to D20,000 for the enor'o+s and lifelon2
pain, s+fferin2, loss of !o'panionship and
a'enities that he had been p+t thro+2h d+e to the
ne2li2ent a!t of the appellant do!tors and the
&ospital. The !lai'ant had !lai'ed $s.50 !rores
+nder this head before the National Co''ission
7itho+t 2ivin2 any breaB +p fi2+res for the a'o+nt.
9efore this Co+rt ho7ever, the !lai'ant has red+!ed
the !lai' to $s.31,50,00,000; +nder three
different heads. &e has !lai'ed $s.13,50,00,000;
for loss of !o'panionship and life a'enities,
190
Page 191
$s.50,00,000; for e'otional distress, pain and
s+fferin2 of the h+sband the !lai'ant and
$s.6,50,00,000; for pain and s+fferin2 end+red by
the de!eased d+rin2 her treat'ent.
160. %n this re2ard, 7e are in!lined to 'aBe an
observation on the ho+se7ife servi!es here. %n the
!ase of Ar(% '(mar A:ar8al <s. Na&1+%al I%(ra%0$
C+m#a%5
46
9 this Co+rt observed as follo7s:
22. =e 'ay no7 deal 7ith the 1+estion
for'+lated in the openin2 para2raph of
this 3+d2'ent. %n Kemp and Kemp on ?uantum
of 7amages, -,pe!ial @dn., 1"860, the
a+thors have identified vario+s heads
+nder 7hi!h the h+sband !an !lai'
!o'pensation on the death of his 7ife.
These in!l+de loss of the 7ife/s
!ontrib+tion to the ho+sehold fro' her
earnin2s, the additional e8penses in!+rred
or liBely to be in!+rred by havin2 the
ho+sehold r+n by a ho+seBeeper or servant,
instead of the 7ife, the e8penses in!+rred
in b+yin2 !lothes for the !hildren instead
of havin2 the' 'ade by the 7ife, and
si'ilarly havin2 his o7n !lothes 'ended or
stit!hed else7here than by his 7ife, and
the loss of that ele'ent of se!+rity
provided to the h+sband 7here his
e'ploy'ent 7as inse!+re or his health 7as
35
-20100 " ,CC 218
191
Page 192
bad and 7here the 7ife !o+ld 2o o+t and
7orB for a livin2.
23. %n @n2land the !o+rts +sed to a7ard
da'a2es solely on the basis of pe!+niary
loss to fa'ily d+e to the de'ise of the
7ife. A depart+re fro' this r+le !a'e to
be 'ade in 9err) v. >umm @ +o. 7here the
plaintiff !lai'ed da'a2es for the death of
his 7ife !a+sed d+e to the ne2li2en!e of
the defendant/s servants. After taBin2
!o2niEan!e of so'e pre!edents, the learned
C+d2e observed: -*9 p. 6310
IL % !an see no reason in prin!iple 7hy
s+!h pe!+niary loss sho+ld be li'ited to
the val+e of 'oney lost, or the 'oney
val+e of thin2s lost, as !ontrib+tions of
food or !lothin2, and 7hy % sho+ld be
bo+nd to e8!l+de the 'onetary loss
in!+rred by repla!in2 servi!es rendered
2rat+ito+sly by a relative, if there 7as a
reasonable prospe!t of their bein2
rendered freely in the f+t+re b+t for the
death.M
26. %n Regan v. Ailliamson the Co+rt
!onsidered the iss+e relatin2 to 1+ant+'
of !o'pensation payable to the dependants
of the 7o'an 7ho 7as Billed in a road
a!!ident. The fa!ts of that !ase 7ere that
on the date of a!!ident, the plaintiff 7as
a2ed 63 years and his !hildren 7ere a2ed
16 years, 11 years, 8 years and 3 years
respe!tively. The de!eased 7ife;'other 7as
a2ed 37 years. The !ost of a ho+seBeeper
to !arry o+t servi!es previo+sly rendered
by his 7ife 7as 22.5 po+nds per 7eeB, the
192
Page 193
savin2 to hi' in not havin2 to !lothe and
feed his 7ife 7as 10 po+nd per 7eeB,
leavin2 a net loss of 12.50 po+nds per
7eeB or 600 po+nds a year. &o7ever, the
Co+rt tooB into a!!o+nt the val+e of other
servi!es previo+sly rendered by the 7ife
for 7hi!h no s+bstit+te 7as available and
a!!ordin2ly in!reased the dependen!y to 20
po+nds a 7eeB. The Co+rt then applied a
'+ltiplier of 11 in rea!hin2 a total fatal
a!!idents a7ard of 12,2"8 po+nds. %n his
3+d2'ent, =atBins, C. noted as +nder: -=H$
pp. 307 &308 A0
IThe 7eeBend !are of the plaintiff and the
boys re'ains a proble' 7hi!h has not been
satisfa!torily solved. The plaintiff/s
relatives help hi' to a !ertain e8tent,
espe!ially on ,at+rday afternoons. 9+t %
for'ed the !lear i'pression that the
plaintiff is often, at 7eeBends, sorely
tired in tryin2 to be an effe!tive
s+bstit+te for the de!eased. The proble'
!o+ld, to so'e e8tent, be !+red by
en2a2in2 another 7o'an, possibly to do
d+ty at the 7eeBend, b+t findin2 s+!h a
person is no si'ple 'atter. % thinB the
plaintiff has not 'ade e8tensive en1+iries
in this re2ard. 5ossibly the e8pense
involved in 2ettin2 'ore help is a fa!tor
7hi!h has deterred hi'. =hatever be the
reason, the plain fa!t is that the
de!eased/s servi!es at the 7eeBend have
not been repla!ed. They are lost to the
plaintiff and to the boys.M
&e then pro!eeded to observe: -=H$ p. 30"
A)0
193
Page 194
I% have been referred to a n+'ber of !ases
in 7hi!h 3+d2es have felt !o'pelled to
looB +pon the tasB of assessin2 da'a2es in
!ases involvin2 the death of a 7ife and
'other 7ith stri!t disre2ard to those
feat+res of the life of a 7o'an beyond her
so!alled servi!es, that is to say, to
Beep ho+se, to !ooB the food, to b+y the
!lothes, to 7ash the' and so forth. %n
'ore than one !ase, an atte'pt has been
'ade to !al!+late the a!t+al n+'ber of
ho+rs it 7o+ld taBe a 7o'an to perfor'
s+!h servi!es and to !o'pensate dependants
+pon that basis at so '+!h an ho+r and so
rele2ate the 7ife or 'other, so it see's
to 'e, to the position of a ho+seBeeper.
-@'phasis laid by this Co+rt0
=hile % thinB that the la7 inhibits 'e fro',
'+!h as % sho+ld liBe to, 2oin2 all the 7ay
alon2 the path to 7hi!h Hord @d'+nd)avies
pointed, % a', 7ith d+e respe!t to the other
3+d2es to 7ho' % have been referred, of the
vie7 that the 7ord .servi!es/ has been too
narro7ly !onstr+ed. $t should, at least,
include an ac'nowledgment that a wife and
mother does not wor' to set hours and, still
less, to rule. 3he is in constant attendance,
sa&e for those hours when she is, if that is
the fact, at wor'. 7uring some of those hours
she ma) well gi&e the children instruction on
essential matters to do with their upbringing
and, possibl), with such things as their
homewor'. This sort of attention see's to be as
'+!h of a servi!e, and probably 'ore val+able
to the', than the other Binds of servi!e
!onventionally so re2arded.M

194
Page 195
25. %n Mehmet v. Berr) the pe!+niary val+e of a
7ife/s servi!es 7ere assessed and 2ranted +nder
the follo7in2 heads:
-a0 Hoss to the fa'ily of the 7ife/s
ho+seBeepin2 servi!es.
-b0 Hoss s+ffered by the !hildren of the
personal attention of their 'other, apart fro'
ho+seBeepin2 servi!es rendered by her.
-!0 Hoss of the 7ife/s personal !are and
attention, 7hi!h the h+sband had s+ffered, in
addition to the loss of her ho+seBeepin2
servi!es.
26. %n %ndia the !o+rts have 195 re!o2niEed
that the !ontrib+tion 'ade by the 7ife to the
ho+se is inval+able and !annot be !o'p+ted in
ter's of 'oney. The 2rat+ito+s servi!es
rendered by the 7ife 7ith tr+e love and
affe!tion to the !hildren and her h+sband and
'ana2in2 the ho+sehold affairs !annot be
e1+ated 7ith the servi!es rendered by others. A
7ife;'other does not 7orB by the !lo!B. ,he is
in the !onstant attendan!e of the fa'ily
thro+2ho+t the day and ni2ht +nless she is
e'ployed and is re1+ired to attend the
e'ployer/s 7orB for parti!+lar ho+rs. ,he taBes
!are of all the re1+ire'ents of the h+sband and
!hildren in!l+din2 !ooBin2 of food, 7ashin2 of
!lothes, et!. ,he tea!hes s'all !hildren and
provides inval+able 2+idan!e to the' for their
f+t+re life. A ho+seBeeper or 'aidservant !an
do the ho+sehold 7orB, s+!h as !ooBin2 food,
7ashin2 !lothes and +tensils, Beepin2 the ho+se
!lean, et!., b+t she !an never be a s+bstit+te
for a 7ife;'other 7ho renders selfless servi!e
to her h+sband and !hildren.
195
Page 196
27. %t is not possible to 1+antify any a'o+nt
in lie+ of the servi!es rendered by the
7ife;'other to the fa'ily i.e. the h+sband and
!hildren. &o7ever, for the p+rpose of a7ard of
!o'pensation to the dependants, so'e pe!+niary
esti'ate has to be 'ade of the servi!es of the
ho+se7ife;'other. %n that !onte8t, the ter'
Iservi!esM is re1+ired to be 2iven a broad
'eanin2 and '+st be !onstr+ed by taBin2 into
a!!o+nt the loss of personal !are and attention
2iven by the de!eased to her !hildren as a
'other and to her h+sband as a 7ife. They are
entitled to ade1+ate !o'pensation in lie+ of
the loss of 2rat+ito+s servi!es rendered by the
de!eased. The a'o+nt payable to the dependants
!annot be di'inished on the 2ro+nd that so'e
!lose relation liBe a 2rand'other 'ay vol+nteer
to render so'e of the servi!es to the fa'ily
7hi!h the de!eased 7as 2ivin2 earlier.

30. %n 8. Ra(am v. M. Mani')a Redd), #.
Ca2annadha $ao, C. -as he then 7as0 advo!ated
2ivin2 of a 7ider 'eanin2 to the 7ord
Iservi!esM in !ases relatin2 to a7ard of
!o'pensation to the dependants of a de!eased
7ife;'other. ,o'e of the observations 'ade in
that 3+d2'ent are e8tra!ted belo7:
.The loss to the h+sband and !hildren
!onse1+ent +pon the death of the ho+se7ife or
'other has to be !o'p+ted by esti'atin2 the
loss of .servi!es/ to the fa'ily, if there 7as
reasonable prospe!t of s+!h servi!es bein2
rendered freely in the f+t+re, b+t for the
death. %t '+st be re'e'bered that any
s+bstit+te to be so e'ployed is not liBely to
be as e!ono'i!al as the ho+se7ife. Apart fro'
the val+e of obtainin2 s+bstit+ted servi!es,
the e8pense of 2ivin2 a!!o''odation or food to
196
Page 197
the s+bstit+te '+st also be !o'p+ted. Aro' this
total '+st be ded+!ted the e8pense the fa'ily
7o+ld have other7ise been spendin2 for the
de!eased ho+se7ife.
=hile esti'atin2 the .servi!es/ of the
ho+se7ife, a narro7 'eanin2 sho+ld not be 2iven
to the 'eanin2 of the 7ord .servi!es/ b+t it
sho+ld be !onstr+ed broadly and one has to taBe
into a!!o+nt the loss of .personal !are and
attention/ by the de!eased to her !hildren, as
a 'other and to her h+sband, as a 7ife. The
a7ard is not di'inished 'erely be!a+se so'e
!lose relation liBe a 2rand'other is prepared
to render vol+ntary servi!es./
OOO OOO OOO
32. %n 1ational $nsurance +o. -td. v.
Mahade&an the learned ,in2le C+d2e referred to
the ,e!ond ,!hed+le of the A!t and observed
that 1+antifyin2 the pe!+niary loss at the sa'e
rate or a'o+nt even after 13 years after the
a'end'ent, i2norin2 the es!alation in the !ost
of livin2 and the inflation, 'ay not be
3+stified.

33. %n +handra 3ingh v. 2urmeet 3ingh, Krishna
2upta v. Madan -al, +aptan 3ingh v. ,riental
$nsurance +o. -td. and 8mar 3ingh 6hu'ral v.
3andeep +hhatwal, the ,in2le and )ivision
9en!hes of the )elhi &i2h Co+rt de!lined to
apply the 3+d2'ent of this Co+rt in -ata
Aadhwa case for the p+rpose of a7ard of
!o'pensation +nder the A!t. %n Krishna 2upta v.
Madan -al the )ivision 9en!h of the &i2h Co+rt
observed as +nder: -)HT p. 836, para 260
I#. L The de!ision of the Ape8 Co+rt in -ata
Aadhwa in o+r !onsidered opinion, !annot be
197
Page 198
said to have any appli!ation in the instant
!ase. The #otor <ehi!les A!t, 1"3" 7as the
!o'plete !ode by itself. %t not only provides
for the ri2ht of a vi!ti' and;or his le2al
heirs to obtain !o'pensation in !ase of bodily
in3+ry or death arisin2 o+t of +se of 'otor
vehi!le, b+t the Aor+' therefor has been
provided, as also the 'ode and 'anner in 7hi!h
the !o'pensation to be a7arded therefor. %n
s+!h a sit+ation, it 7o+ld be inappropriate to
rely +pon a de!ision of the Ape8 Co+rt, 7hi!h
had been rendered in an absol+tely different
fa!t sit+ation and in relation 7hereto there
did not e8ist any stat+tory !o'pensation. -ata
Aadhwa 7as de!ided in a 'atter 7here a fire
o!!+rred d+rin2 a !elebration. The liability of
Tata %ron S ,teel Co. Htd. 7as not disp+ted.
Co'pensation 7as a7arded havin2 re2ard to the
pe!+liar feat+re obtainin2 in that !ase 7hi!h
has 2ot nothin2 to do 7ith the stat+tory
!o'pensation payable +nder the provisions of
the #otor <ehi!les A!t.M
-@'phasis laid by this Co+rt0
161. Also, in a three 3+d2e 9en!h de!ision of this
Co+rt in the !ase of Ra3$) * Or. <s. Ra3/1r S1%:)
a%! Or.
46
, this Co+rt held as +nder:
I20. The ratio of a de!ision of this
Co+rt, on a le2al iss+e is a pre!edent.
9+t an observation 'ade by this Co+rt,
'ainly to a!hieve +nifor'ity and
!onsisten!y on a so!ioe!ono'i! iss+e, as
!ontrasted fro' a le2al prin!iple, tho+2h
a pre!edent, !an be, and in fa!t o+2ht to
36
2013 -60 ,CAH@ 563
198
Page 199
be periodi!ally revisited, as observed
in Sa%&)+) D$/1 -s+pra0. =e 'ay
therefore, revisit the pra!ti!e of
a7ardin2 !o'pensation +nder !onventional
heads: loss of !onsorti+' to the spo+se,
loss of love, !are and 2+idan!e to
!hildren and f+neral e8penses. %t 'ay be
noted that the s+' of $s. 2,500; to $s.
10,000; in those heads 7as fi8ed several
de!ades a2o and havin2 re2ard to inflation
fa!tor, the sa'e needs to be in!reased.
%n Sarla V$rmaL 0a$ -s+pra0, it 7as held
that !o'pensation for loss of !onsorti+'
sho+ld be in the ran2e of $s. 5,000; to
$s. 10,000;, %n le2al parlan!e,
Y!onsorti+'Y is the ri2ht of the spo+se to
the !o'pany, !are, help, !o'fort,
2+idan!e, so!iety, sola!e, affe!tion and
se8+al relations 7ith his or her 'ate.
That nonpe!+niary head of da'a2es has not
been properly +nderstood by o+r Co+rts.
The loss of !o'panionship , !are and
prote!tion, et!., the spo+se is entitled
to 2et, has to be !o'pensated
appropriately. The !on!ept of non
pe!+niary da'a2e for loss of !onsorti+' is
one of the 'a3or heads of a7ard of
!o'pensation in other parts of the 7orld
'ore parti!+larly in the Fnited ,tates of
A'eri!a, A+stralia, et!. @n2lish Co+rts
have also re!o2niEed the ri2ht of a spo+se
to 2et !o'pensation even d+rin2 the period
of te'porary disable'ent. 9y loss of
!onsorti+', the !o+rts have 'ade an
atte'pt to !o'pensate the loss of spo+seYs
affe!tion, !o'fort, sola!e, !o'panionship,
so!iety, assistan!e, prote!tion, !are and
se8+al relations d+rin2 the f+t+re years.
FnliBe the !o'pensation a7arded in other
199
Page 200
!o+ntries and other 3+risdi!tions, sin!e
the le2al heirs are other7ise ade1+ately
!o'pensated for the pe!+niary loss, it
7o+ld not be proper to a7ard a 'a3or
a'o+nt +nder this head. &en!e, 7e are of
the vie7 that it 7o+ld only be 3+st and
reasonable that the !o+rts a7ard at least
r+pees one laBh for loss of !onsorti+'.M
-@'phasis laid by this Co+rt0
162. Fnder the headin2 of loss d+e to pain and
s+fferin2 and loss of a'enities of the 7ife of the
!lai'ant, '$m# a%! '$m# 7rite as +nder:
IThe a7ard to a plaintiff of da'a2es +nder
the head Ipain and s+fferin2M depends as
Hord ,!ar'an said in Hi' 5oh Choo v.
Ca'den and %slin2ton Area health
A+thority, I+pon the !laia'ant/s personal
a7areness of pain, her !apa!ity of
s+fferin2. A!!ordin2ly, no a7ard is
appropriate if and in so far as the
!lai'ant has not s+ffered and is not
liBely to s+ffer pain, and has not end+red
and is not liBely to end+re s+fferin2, for
e8a'ple, be!a+se he 7as rendered
i''ediately and per'anently +n!ons!io+s in
the a!!ident. 9y !ontrast, an a7ard of
da'a2es in respe!t of loss of a'enities is
appropriate 7henever there is in fa!t s+!h
a loss re2ardless of the !lai'ant/s
a7areness of the loss.M
LLL.
A+rther, it is 7ritten that,
200
Page 201
I@ven tho+2h the !lai'ant 'ay die fro' his
in3+ries shortly after the a!!ident, the
eviden!e 'ay 3+stify an a7ard +nder this
head. ,ho!B sho+ld also be taBen a!!o+nt
of as an in2redient of pain and s+fferin2
and the !lai'ant/s parti!+lar
!ir!+'stan!es 'ay 7ell be hi2hly relevant
to the e8tent of her s+fferin2.
LLL.
9y !onsiderin2 the nat+re of a'enities
lost and the in3+ry and pain in the
parti!+lar !ase, the !o+rt '+st assess the
effe!t +pon the parti!+lar !lai'ant. %n
de!idin2 the appropriate a7ard of da'a2es,
an i'portant !onsideration sho7 lon2 7ill
he be deprived of those a'enities and ho7
lon2 the pain and s+fferin2 has been and
7ill be end+red. %f it is for the rest of
his life the !o+rt 7ill need to taBe into
a!!o+nt in assessin2 da'a2es the
!lai'ant/s a2e and his e8pe!tation in
life. That applies as '+!h in the !ase of
an +n!ons!io+s plaintiff as in the !ase of
one sentient, at least as re2ards the loss
of a'enity.M
The e8tra!t fro' Mala5 '(mar 7a%:(l5/s !ase
read as +nder:
I3. )espite ad'inistration of the said
in3e!tion t7i!e daily, An+radha/s
!ondition deteriorated rapidly fro' bad to
7orse over the ne8t fe7 days. A!!ordin2ly,
she 7as ad'itted at Advan!ed #edi!are
$esear!h %nstit+te -A#$%0 in the 'ornin2
201
Page 202
of 1151""8 +nder )r. #+Bher3ee/s
s+pervision. An+radha 7as also e8a'ined by
)r. 9aidyanath &alder, $espondent 2
herein. )r. &alder fo+nd that she had been
s+fferin2 fro' erythe'a pl+s blisters. &er
!ondition, ho7ever, !ontin+ed to
deteriorate f+rther. )r. Abani $oy
Cho7dh+ry, Cons+ltant, $espondent 3 7as
also !ons+lted on 1251""8.
6. 4n or abo+t 1751""8 An+radha 7as
shifted to 9rea!h Candy &ospital, #+'bai
as her !ondition f+rther deteriorated
severely. ,he breathed her last on 285
1""8LLM
163. The above e8tra!ted portion fro' the above
3+d2'ent 7o+ld sho7 that the de!eased had +nder2one
the ordeal of pain for 18 lon2 days before she
breathed her last. %n this !o+rse of period, she
has s+ffered 7ith i''ense pain and s+fferin2 and
+nder2one 'ental a2ony be!a+se of the ne2li2en!e of
the appellantdo!tors and the &ospital 7hi!h has
been proved by the !lai'ant and needs no
reiteration.
166. A+rther, in the !ase of N1@am I%&1&(&$
-s+pra0, the !lai'ant 7ho 7as also the s+rvivin2
202
Page 203
vi!ti' of a 'otor vehi!le a!!ident 7as a7arded
$s.10 laBhs for pain and s+fferin2. A+rther, it 7as
held in R.D. Hattangadi’s !ase -supra5 as follo7s:
I16. %n >alsbur)’s -aws of <ngland, 6th @dn.,
<ol. 12 re2ardin2 nonpe!+niary loss at pa2e
666 it has been said:
1on-pecuniar) lossC the pattern.U )a'a2es
a7arded for pain and s+fferin2 and loss of
a'enity !onstit+te a !onventional s+'
7hi!h is taBen to be the s+' 7hi!h so!iety
dee's fair, fairness bein2 interpreted by
the !o+rts in the li2ht of previo+s
de!isions. Th+s there has been evolved a
set of !onventional prin!iples providin2 a
provisional 2+ide to the !o'parative
severity of different in3+ries, and
indi!atin2 a bra!Bet of da'a2es into 7hi!h
a parti!+lar in3+ry 7ill !+rrently fall.
The parti!+lar !ir!+'stan!es of the
plaintiff, in!l+din2 his a2e and any
+n+s+al deprivation he 'ay s+ffer, is
refle!ted in the a!t+al a'o+nt of the
a7ard.MZ
165. Therefore, the !lai' of $s.6,50,00,000; by
the !lai'ant is e8!essive sin!e it 2oes a2ainst the
a'o+nt a7arded by this Co+rt +nder this head in the
earlier !ases referred to s+pra. =e a!Bno7led2e and
e'pathise 7ith the fa!t that the de!eased had 2one
203
Page 204
thro+2h i''ense pain, 'ental a2ony and s+fferin2 in
!o+rse of her treat'ent 7hi!h +lti'ately !o+ld not
save her life, 7e are not in!lined to a7ard 'ore
than the !onventional a'o+nt set by this Co+rt on
the basis of the e!ono'i! stat+s of the de!eased.
Therefore, a l+'ps+' a'o+nt of $s.10 laBhs is
a7arded to the !lai'ant follo7in2 the N1@am
I%&1&(&$> !ase -s+pra0 and also applyin2 the
prin!iples laid in *e'p and *e'p on the IJ+ant+' of
)a'a2esM, +nder the head of .pain and s+fferin2 of
the !lai'ant/s 7ife d+rin2 the !o+rse of
treat'ent/.
166. &o7ever, re2ardin2 !lai' of $s.50,00,000; by
the !lai'ant +nder the head of .@'otional distress,
pain and s+fferin2 for the !lai'ant/ hi'self, 7e
are not in!lined to a7ard any !o'pensation sin!e
this !lai' bears no dire!t linB 7ith the ne2li2en!e
!a+sed by the appellantdo!tors and the &ospital in
treatin2 the !lai'ant/s 7ife.
204
Page 205

%n s+''ary, the details of !o'pensation +nder
different heads are presented here+nder:
Hoss of in!o'e of the
de!eased
$s.5,72,00,550;
Aor #edi!al treat'ent in
*olBata and #+'bai
$s.7,00,000;
Travel and &otel
e8penses at #+'bai
$s.6,50,000;
Hoss of !onsorti+' $s.1,00,000;
5ain and s+fferin2 $s.10,00,000;
Cost of liti2ation $s.11,50,000;
167. Therefore, a total a'o+nt of $s.6,08,00,550;
is the !o'pensation a7arded in this appeal to the
!lai'ant )r. *+nal ,aha by partly 'odifyin2 the
a7ard 2ranted by the National Co''ission +nder
different heads 7ith 6G interest per ann+' fro' the
date of appli!ation till the date of pay'ent.
168. 9efore partin2 7ith the 3+d2'ent 7e are
in!lined to 'ention that the n+'ber of 'edi!al
ne2li2en!e !ases a2ainst do!tors, &ospitals and
N+rsin2 &o'es in the !ons+'er for+' are in!reasin2
day by day. %n the !ase of Pa0)1m Ba%:a ')$&
205
Page 206
Ma@!++r Sam1&5 <s. S&a&$ +. ,$& B$%:al
47
9 this
Co+rt has already prono+n!ed that ri2ht to health
of a !itiEen is a f+nda'ental ri2ht 2+aranteed
+nder Arti!le 21 of the Constit+tion of %ndia. %t
7as held in that !ase that all the 2overn'ent
&ospitals, N+rsin2 &o'es and 5oly!lini!s are
liable to provide treat'ent to the best of their
!apa!ity to all the patients.
16". The do!tors, &ospitals, the N+rsin2 &o'es and
other !onne!ted establish'ents are to be dealt 7ith
stri!tly if they are fo+nd to be ne2li2ent 7ith the
patients 7ho !o'e to the' pa7nin2 all their 'oney
7ith the hope to live a better life 7ith di2nity.
The patients irrespe!tive of their so!ial, !+lt+ral
and e!ono'i! ba!B2ro+nd are entitled to be treated
7ith di2nity 7hi!h not only for's their f+nda'ental
ri2ht b+t also their h+'an ri2ht. =e, therefore,
hope and tr+st that this de!ision a!ts as a
deterrent and a re'inder to those do!tors,
37
-1""60 6 ,CC 37
206
Page 207
&ospitals, the N+rsin2 &o'es and other !onne!ted
establish'ents 7ho do not taBe their responsibility
serio+sly.
150. The !entral and the state 2overn'ents 'ay
!onsider ena!tin2 la7s 7herever there is absen!e of
one for effe!tive f+n!tionin2 of the private
&ospitals and N+rsin2 &o'es. ,in!e the !ond+!t of
do!tors is already re2+lated by the #edi!al Co+n!il
of %ndia, 7e hope and tr+st for i'partial and
stri!t s!r+tiny fro' the body. Ainally, 7e hope and
believe that the instit+tions and individ+als
providin2 'edi!al servi!es to the p+bli! at lar2e
ed+!ate and +pdate the'selves abo+t any ne7 'edi!al
dis!ipline and rare diseases so as to avoid
tra2edies s+!h as the instant !ase 7here a val+able
life !o+ld have been saved 7ith a little 'ore
a7areness and 7isdo' fro' the part of the do!tors
and the &ospital.
207
Page 208
151. A!!ordin2ly, the Civil Appeal No. 2867;2012
filed by )r. 9alra' 5rasad, Civil Appeal No.
858;2012 filed by )r. ,+B+'ar #+Bher3ee and Civil
Appeal No. 731;2012 filed by )r. 9aidyanath &aldar
are partly allo7ed by 'odifyin2 the 3+d2'ent and
order of the National Co''ission in so far as the
a'o+nt fastened +pon the' to be paid to the
!lai'ant as 'entioned belo7. )r. ,+B+'ar #+Bher3ee
and )r. 9aidyanath &aldar are liable to pay
!o'pensation to the t+ne of $s.10 laBhs ea!h and
)r. 9alra' 5rasad is held liable to pay
!o'pensation of $s.5 laBhs to the !lai'ant. ,in!e,
the appellantdo!tors have paid !o'pensation in
e8!ess of 7hat they have been 'ade liable to by
this 3+d2'ent, they are entitled for rei'b+rse'ent
fro' the appellantA#$% &ospital and it is dire!ted
to rei'b+rse the sa'e to the above do!tors 7ithin
ei2ht 7eeBs.
208
Page 209
152. The Civil Appeal No. 6"2;2012 filed by the
appellantA#$% &ospital is dis'issed and it is
liable to pay !o'pensation as a7arded in this
3+d2'ent in favo+r of the !lai'ant after ded+!tin2
the a'o+nt fastened +pon the do!tors in this
3+d2'ent 7ith interest P 6G per ann+'.
153. The Civil Appeal No. 2866;2012 filed by the
!lai'ant)r.*+nal ,aha is also partly allo7ed and
the findin2 on !ontrib+tory ne2li2en!e by the
National Co''ission on the part of the !lai'ant is
set aside. The dire!tion of the National Co''ission
to ded+!t 10G of the a7arded a'o+nt of !o'pensation
on a!!o+nt of !ontrib+tory ne2li2en!e is also set
aside by enhan!in2 the !o'pensation fro'
$s.1,36,66,000; to $s.6,08,00,550; 7ith 6G
interest per ann+' fro' the date of the !o'plaint
to the date of the pay'ent to the !lai'ant.
156. The A#$% &ospital is dire!ted to !o'ply 7ith
this 3+d2'ent by sendin2 de'and draft of the
209
Page 210
!o'pensation a7arded in this appeal to the e8tent
of liability i'posed on it after ded+!tin2 the
a'o+nt, if any, already paid to the !lai'ant,
7ithin ei2ht 7eeBs and s+b'it the !o'plian!e
report.
""""""""""""""""""""""J.
MCHANDRAMAULI 'R. PRASADN
""""""""""""""""""""""J.
MV. 7OPALA 7O,DAN
N$8 D$l)19
O0&+<$r 2A9 2014.
210