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PLAGIARISM SCAN REPORT

Date 2021‐06‐02

Words 970

9% 91% Characters 6103

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The case of Shoda Devi v. DDU Hospital, Shimla is a landmark case in determining the compensation in cases of
disablement brought about by medical negligence. The case makes reference to issues such as enhancement of
compensation, nature of medical services under the consumer protection act, degree of care of a medical profession and
how both pecuniary and non‐pecuniary damages account for the damages.
FACTS:
The appellant, a woman of 45 years of age, suffering from abdominal pains and menstrual issues went to Deen Dayal
Upadhyay Hospital in Shimla, hereinafter to be referred to as Respondent 1, for medical attention. In this hospital she was
attended by Respondent 2 who diagnosed her with Endometrial hyperplasia. After a few days when she found no relief
from medicine, she was advised to undergo a Fractional Curettage operation.
During the operation Respondent 3, a para medico, injected Fortwin and Phenergan directly into her right arm
intravenously. The appellant alleged that due to his injection she suffered excruciating pain throughout the operation. She
also alleged that the doctor and para medico took no steps to alleviate her pain despite her making the discomfort known
to them.
Subsequently, complications arose in the appellants right arm which could not be addressed by the doctors at DDU
Hospital. She had to be moved to Indira Gandhi Medical College and Hospital, Shimla by taxi arranged by her husband.
Inability of Respondent 1 to furnish an ambulance for transporting the appellant must be noted. Due to the nature of the
complication she developed severe gangrene in her right arm which had to be amputated.
After suffering the loss of her limb, the appellant filed a FIR under section 338, IPC. Additionally, she preferred a consumer
complaint for seeking compensation on the grounds that had she would not have lost 80% of here right arm if the doctors
at respondent 1 had not treated her negligently. Despite her complaints of debilitating pain, post‐operation, she had only
been seen by respondent 2 and a gynecologist in a casual manner. Her shift to IGMCH was in a taxi brought by her
husband rather than an Ambulance.
Medical staff at Respondent 1 filed counter affidavits denying all allegations of negligence in treatment and liability for the
damages suffered by the applicant. According to them the course of operation was nothing out of the norm, all due care
and caution was taken.
During the course of hearing of the matter, the State Commission made an order on 16‐9‐2008, expecting the Deputy
Commissioner, Shimla and the Secretary, Health Department to explore the possibility of extending a reasonable ex gratia
payment to the appellant, looking to the nature of disablement suffered by her and her poor and rural background. In
response thereto, the Senior Medical Superintendent of DDU Hospital stated by way of affidavit that a sum of Rs 2,93,526
was assessed in this regard; and if accepted by the appellant, the same may be conveyed to the Director, Health Services.
Thereafter, the State Commission examined the matter on merits; and, with reference to the evidence of the doctors as also
that of the appellant, held that no case of medical negligence was proved. Hence, the State Commission rejected the
complaint. But, in view of the order previously passed on 16‐9‐2008 and response thereto by the Government, the State
Commission directed Respondent 1 to make ex gratia payment to the tune of Rs 2,93,526 to the appellant, if she was
willing to accept the same.
The appellant applied to the National commission for consumer redressal against the order. Relying on the nature of delay,
loss of limb suffered by the appellant and the testimony of the doctors at IGMCH, National commission held it to be a
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straightforward case of medical negligence but enhanced the compensation merely to another 2,00,000.
The appellant held that the consideration provided by the National Commission is but a meagre sum when the degree of
loss suffered by the appellant is taken into notice. She is a woman of 45 years living in a rural area with many dependents.
Appellant made reference to the case of Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, in its appeal to the
Supreme Court for enhancement of compensation. In the aforementioned case damages had be increased due to medical
negligence. The prosecution demanded compensation of Rs. 16, 20,000 together with an interest rate of 6% from the date
of filing of the complaint.
While the defense alleged that the appellant was not entitled to any further enhancement over the Rs. 4,93,526 that it had
received. They denied any liability on the part of the medical professionals at the hospital. The doctors and staff had not
acted negligently. Any loss the appellant suffer was due to a rare circumstance that cannot be said to arise from medical
negligence.
CHARGES FRAMED
• Whether liability can be made on the part of the respondents for Section 338 IPC?
OBSERVATION
For the liability under Section 338 to be made out it is required to prove that the accused acted rashly and negligently, that
the act endangered the life or the personal safety of others and that such act caused grievous hurt.
The grievousness of the injury suffered by the appellant cannot be questioned and the Supreme Court has upheld that the
holding of the National Commission that the staff at respondent 1 had acted both rashly and negligently. Additionally, the
danger to the appellant’s life is apparent in fact.
HOLDING
“We are of the view that the appellant deserves to be allowed further an amount of Rs. 10 Lakhs towards compensation,
over and above the amount awarded by the state and national commission… it is also considered proper the allow three
months’ time to the respondents to make requisite payment and also, to bear the burden of interest.”

Matched Source

Similarity 5%
Title: SHODA DEVI Vs. DDU/RIPON HOSPITAL SHIMLA AND OTHERS ...
... of extending a reasonable ex gratia payment to the appellant, looking to the nature of disablement suffered by her and
her poor and rural background.
https://www.legitquest.com/case/shoda‐devi‐v‐dduripon‐hospital‐shimla‐and‐others‐respndent/1DF674

Similarity 5%
Title: Shoda Devi Vs. DDU/Ripon Hospital Shimla
In response thereto, the Senior Medical Superintendent of DDU Hospital stated by way of affidavit that a sum of Rs.
2,93,526/‐ was assessed in this regard; and if accepted by the appellant, the same may be conveyed to the Director Health
Services.
https://www.latestlaws.com/latest‐caselaw/2019/march/2019‐latest‐caselaw‐244‐sc/

Similarity 4%
Title: Shoda Devi Vs. DDU/Ripon Hospital Shimla | Latest Supreme ...
But, in view of the order previously passed on 16.09.2008 and response thereto by the Government, the State Commission
directed the respondent No. 1 to make ex gratia payment to the tune of Rs. 2,93,526/‐ to the appellant, if she was willing to
accept the same. 9. In appeal against the order of the State Commission, the appellant relied on the ...
https://www.advocatekhoj.com/library/judgments/announcement.php?WID=11284

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Title: Supreme Court makes Shimla hospital, doctors pay for ...
 · Justice Maheshwari said, "We are of the view that the appellant deserves to be allowed further an amount of Rs 10 lakh
towards compensation, over and above the amount awarded by the state ...
https://timesofindia.indiatimes.com/city/shimla/supreme‐court‐makes‐shimla‐hospital‐doctors‐pay‐for‐
insensitivity/articleshow/68312703.cms
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PLAGIARISM SCAN REPORT

Date 2021‐06‐02

Words 961

12% 88% Characters 6124

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Disablement refers to a loss of capacity to work or move. Disable refers to any form of injury, physical or otherwise, that
adversely affects the earning capacity of the aggrieved. It is immaterial that the aggrieve can be returned to full physical
efficiency with proper treatment and therapy due to the sunk cost of the time spent in obtaining such treat and the cost of
treatment.
Disablement can be classified into two categories:
• Temporary disablement: Which can further be dividend into total and partial disablement. Temporary total
disablement refers to that which precludes the workman from doing all work he could possibly do. Whereas, in temporary
partial disablement the earning capacity of the workman is reduced in any employment in which he was engaged at the
time of the accident resulting in disablement.
• Permanent disablement: If employee as a result of an accident suffers from injury specified in part I of Schedule I ﴾The
Workmen's Compensation Act,1923﴿ or suffer from such a combination of injuries specified in part 2 Schedule I as would
bring the loss of earning capacity when totaled to 100% or more such an injury is said to be permanent total disablement.
To determine whether the injury is permanent or temporary the total effect of injury on the employment opportunities of
the employee concerned is the deciding Criterion. Permanent partial disablement reduces earning capacity in every work,
which he could do well. It is permanent in nature every injury specified in part II Schedule I is Deemed to be permanent
partial disablement. ﴾Part‐I, Schedule‐I contains 48 Injuries, for example, loss of thumb 30% loss of 4 fingers of one hand
50% etc.﴿
 
QUANTUM OF DAMAGES
Assuming it is established that the disable of the aggrieved arises out of negligence of the medical practitioner, the
aggrieved part is entitled to damages under the Consumer Protection Act, 1986 or under the tort of negligence. The
aggrieved party may also apply under section 304﴾A﴿ of the Indian Penal Code. In cases of negligence to perform a duty
fixed by law, the doctor is bound to compensate the victim.
In a civil suit for torts the plaintiff is required to pay ad valorem court fee, which is about 10% of the amount claimed apart
from other miscellaneous expenses.
Under Consumer Protection Act, 1986, he is not required to pay a court fee or to even engage a lawyer. Complainant may
represent his case personally. In a suit for criminal negligence, the doctor may be punished for causing death by rash and
negligent act under section 304﴾A﴿, providing for a 2 year’s sentence or fine or both. Or for causing grievous hurt
endangering life with a sentence of 2 year or a 1000rs fine or both. Or for endangering life under section 337, with 6‐
month sentence, fine up to Rs 500 or with both.
Pendency in a criminal trial would not be a bar to civil proceedings. Both civil and criminal proceedings may be undertaken
simultaneously as was held in the Union carbide case.
With regards to the quantum of compensation, the Supreme Court in Shoda Devi v. DDU/Ripon Hospital Shimla, observed
that: “he requirement in such cases of disablement due to medical negligence is of awarding just and reasonable
compensation to the victim, while keeping in view the pecuniary damages as also the non‐pecuniary damages like pain
and suffering and loss of amenities of life… the approach in awarding compensation should not be restrictive when the
victim comes from a poor rural background, rather, in a case like this, it should be reasonably higher.”
 Page 2
the case of Alfred Bendict v. Manipal Hospital, where, for the reason of medical negligence, a 2‐year‐old girl developed
gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life‐long
suffering, be it her education or marriage prospects, awarded a lump sum of Rs. 20,00,000/‐ as compensation. Likewise, in
the case of Nizam's Institute of Medical Sciences, where the complainant had suffered paraplegia as an outcome of the
surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while
quantifying compensation in such cases. “The court has to strike a balance between the inflated and unreasonable
demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for
the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court
must not be chary of awarding adequate compensation. The “adequate compensation” that we speak of, must to some
extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties
concerned.”
A person injured in an accident causes his family great distress but after the initial shock wears off, the family and the
victim eventually move on. However, in cases of disablement the situation of the victim is more pitiable. The feeling of hurt,
helplessness and despair continues every day. The emotional, financial and the physical cost of being disabled and caring
for a disabled person is a constant reminder of what has been lost. It saps the strength of the aggrieved family. The award
must be sufficiently suited to mitigate the pain to some extent.
Maheshwari J, in the DDU hospital case observed that, the grant of reasonably higher compensation serves a dual
purpose. First, it grants some succor to the appellant against the disadvantage and hardship of disablement and second, to
send a message to all medical professionals that their responsiveness and diligence has to be equi‐balanced for all their
consumers and all human beings deserve to be treated with respect and sensitivity.

Matched Source

Similarity 17%
Title: Disablement : Classification of Disablement | Labor Law ...
To determine whether the injury is permanent or temporary the total effect of injury on the employment opportunities of the
employee concerned is the deciding Criterion. In simple words, The accident in capacities loss of 100% earning capacity
forever for example permanent in nature.
https://www.srdlawnotes.com/2017/11/disablement‐classification‐of.html

Similarity 4%
Title: Shoda Devi ﴾S﴿ v. Ddu/Ripon Hospital Shimla And Others ﴾S ...
Mar 7, 2019 — ... thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while
quantifying compensation in such cases.
https://www.casemine.com/judgement/in/5c8148c69eff4345648defa1

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Title: Govind Yadav v. New India Insurance Company Limited ...
 · We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and
the equally untenable claim of the opposite party saying that nothing is payable.
https://www.casemine.com/judgement/in/5609af0ae4b01497114156ba

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Title: Raman v. Uttar Haryana Bijli Vitran Nigam Limited And ...
Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made
out, the court must not be chary of awarding adequate compensation. The “adequate compensation” that we speak of, must
to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties
concerned ...
https://www.casemine.com/judgement/in/5609af5ae4b014971141623c