Kunal Saha

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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%$! M$!ar$ * R$$ar)I%&&(&$ 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((mar M()$r3$$ * Or. " R$#+%!$%&

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     ,ITH

      CIVIL APPEAL N+.741 + 2012

    Dr. Ba!5a%a&) Hal!ar " A##$lla%& 

     V.

      Dr. '(%al Sa)a * Or. " R$#+%!$%&

     AND

    CIVIL APPEAL N+.88 + 2012 

    Dr. S((mar M()$r3$$ " A##$lla%&

      V.

     Dr. '(%al Sa)a * Or. " R$#+%!$%&

    J U D M E N T

     V. +#ala +!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/,

    +estionin the !orre!tness of the i'p+ned

    +d'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/ in 4riinal etition No.20 of 1""".

    2.The appellantdo!tors are arieved by the

    +ant+' of !o'pensation aarded by the National

    Co''ission and the liability fastened +pon the'

    for the nelien!e on their part and have prayed

    to set aside the sa'e by alloin their appeals.

    %n so far as the appellantA#$% &ospital is

    !on!erned, it has also +estioned the +ant+' of

    !o'pensation aarded and has prayed to red+!e the

    sa'e by aardin +st and reasonable !o'pensation

    by 'odifyin the +d'ent by alloin its appeal.

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    o far as the !lai'ant is !on!erned, he is

    arieved by the said +d'ent and the !o'pensation

    aarded hi!h, a!!ordin to hi', is inade+ate, as

    the sa'e is !ontrary to the ad'itted fa!ts and la

    laid don by this Co+rt in !atena of !ases

    reardin aardin of !o'pensation in relation to

    the proved 'edi!al nelien!e for the death of his

    ife An+radha aha -hereinafter referred to as the

    de!eased/.

    3.The brief relevant fa!ts and the ro+nds +red on

    behalf of the appellantdo!tors, A#$% &ospital

    and the !lai'ant in seriati' are adverted to in

    this !o''on +d'ent for the p+rpose of ea'inin

    the !orre!tness of their respe!tive leal

    !ontentions +red in their respe!tive appeals

    ith a vie to pass !o''on +d'ent and aard.

    .9rief ne!essary and relevant fa!ts of the !ase

    are stated here+nder:

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    The !lai'ant filed 4riinal etition No. 20 of

    1""" on 0".03.1""" before the National Co''ission

    !lai'in !o'pensation for $s.77,07,5,000; and

    later the sa'e as a'ended by !lai'in another s+'

    of $s.20,00,00,000;. After the !ase of  Mala5

    '(mar a%:(l5

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    !lai'ant shos that she as +st a rad+ate in

    Arts -@nlish. +rther, it is +red by the

    learned !o+nsel that the do!+'ent prod+!ed by the

    !lai'ant a !o'p+ter enerated sheet, does not

    eplain for hat orB the re'+neration, if at all

    as re!eived by the de!eased. Also, hether the

    sa'e as a oneti'e pay'ent of stipend or pay'ent

    toards vol+ntary orB, is not eplained by the

    !lai'ant. +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 hat a!!o+nt the said

    pay'ent as re!eived by the de!eased and hether

    she has re!eived it as a Child sy!holoist as

    !lai'ed by the !lai'ant or otherise.

    6.%t is also the !ase of the appellantdo!tors and

    the &ospital that the !lai'ant had not led any

    oral eviden!e ith reard to the in!o'e of the

    de!eased and f+rther he has not eplained hy

    +st a sinle do!+'ent dis!loses the pay'ent 'ade

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    so'eti'e in the 'onth of +ne 1"88 in s+pport of

    the in!o'e of the de!eased hen 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 +red

    that the said do!+'ent is a va+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 aard the !o'pensation as has been

    aarded in the i'p+ned +d'ent and order. ro'

    a per+sal of the said do!+'ent, it !o+ld be

    as!ertained that it shos +st one ti'e pay'ent

    re!eived for so'e odd obs. Therefore, it is

    !ontended by the appellantdo!tors and the

    &ospital that the !lai'ant has not been able to

    dis!hare his on+s by add+!in any positive

    eviden!e in this reard 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 as

    D30,000 per ann+' is not s+bstantiated by

    prod+!in !oent eviden!e. No appoint'ent letter

    of the de!eased to sho that she as e'ployed in

    any oraniEation in hatsoever !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 as enaed on any per'anent orB. No

    %n!o'e Ta $et+rn has been prod+!ed by the

    !lai'ant to sho that she had been payin ta 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

    as D30,000 per ann+', apart fro' ded+!tion on

    a!!o+nt of ta, it is also essential for the

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    National Co''ission to as!ertain the personal

    livin epenses of the de!eased hi!h as

    re+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 as re+ired

    to first as!ertain the style of livin of the

    de!eased hether it as partan or 9ohe'ian to

    arrive the in!o'e fi+re of D30,000 per ann+'.

    %n %ndia, on a!!o+nt of style and standard of

    livin of a person, one(third of the ross in!o'e

    is re+ired to be ded+!ted o+t of the ann+al

    in!o'e as laid don in the de!ision of this Co+rt

    in the !ase of Or$%&al I%(ra%$ C+m#a%5 L&!.

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    the so!alled epert, rof. ohn . 9+rBe r. also

    does not say anythin on this s!ore.

    @ven if it is ass+'ed that the ann+al in!o'e of

    the de!eased as D30,000 per ann+' for hi!h there

    is no eviden!e, 25G thereof is re+ired to be

    ded+!ted toards ta. The ded+!tion of ta is '+!h

    'ore as is apparent fro' the !ase reported in

    U%&$! I%!a I%(ra%$ C+. L&!. * O&)$r

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    &ospitalappellant/s itness #r. atyabrata

    Fpadhyay as !rossea'ined by the !lai'ant.

    ". The !lai'ant filed #.A. No.1327 of 200" before

    the National Co''ission after re'and order as

    passed by this Co+rt in the !ase of  Mala5 '(mar

    a%:(l5 -s+pra. The !lai'ant no !lai'ed

    enhan!e'ent of !o'pensation at $s.78,1,00,000;

    +nder the heads of pe!+niary da'aes and non

    pe!+niary da'aes.

    The prayer 'ade in the appli!ation as to ad'it

    the !lai' for !o'pensation alon ith s+pportin

    do!+'ents in!l+din the opinions of the forein

    eperts and f+rther prayed for iss+in dire!tion to

    the appellantdo!tors and the &ospital to arrane

    for !rossea'ination of the forein eperts, if

    they ish, thro+h video !onferen!in at their

    epenses as dire!ted by this Co+rt in the re'and

    order in Mala5 '(mar a%:(l5> !ase -s+pra and for

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    fiin the 'atter for a final hearin as soon as

    possible on a fir' and fied date as the !lai'ant

    hi'self ant to ar+e his petition as as done

    before this Co+rt, as he bein the per'anent

    resident of F..A.

    10. The learned senior !o+nsel appearin for the

    !lai'ant on ".2.2010 prayed for ithdraal of the

    appli!ation statin that he o+ld file another

    appropriate appli!ation. Thereafter, on 22.2.2010

    the !lai'ant filed #.A. No.200 of 2010 seeBin

    dire!tion to the National Co''ission to per'it hi'

    to prod+!e affidavit of fo+r forein eperts and

    their reports. The National Co''ission dis'issed

    the sa'e vide order dated 26..2010 aainst hi!h

    spe!ial leave petition No.15070;2010 as filed

    before this Co+rt hi!h as ithdran later on.

    Aain, the !lai'ant filed #.A. No.5" of 2010

    before the National Co''ission for ea'ination of

    fo+r forein eperts to s+bstantiate his !lai'

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    thro+h video !onferen!in at the epense 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 ea'inin forein

    eperts. Aainst this order, the !lai'ant preferred

    H -C No.3173 of 2011 before this Co+rt prayin

    for per'ission to ea'ine to forein eperts,

    na'ely, rof. ohn . 9+rBe r. and rof. ohn

    9ro+hton thro+h video !onferen!in and he

    +ndertooB to bear the epenses for s+!h

    ea'ination. The !lai'ant had iven +p ea'ination

    of other to forein eperts, na'ely, ). oe

    ?riffith and #s. Anela &ill. rof. ohn . 9+rBe

    r. as ea'ined on 26..2011 as an @!ono'i!s

    @pert 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" herein

    he has stated that if the de!eased o+ld have been

    e'ployed thro+h the ae 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 as an

    additional a'o+nt of D1,258,21.00. The said

    itness as !ross ea'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 folloin +estions and ansers eli!ited

    fro' the above @!ono'i!s @pert itness, hi!h are

    etra!ted here+nder:

    IJ.16. Can yo+ tell 'e hat as the aes of

    An+radha in 1""7K

    A.16. #ay % !he!B 'y file -per'itted. %

    don/t Bno.

    J.17. Are yo+ aare hether An+radha as anin!o'e ta payee or notK

    A.17. An+ and her h+sband ere filin oint

    ret+rn.

    J.18. )id An+ have any individ+al in!o'eK

    A.18. % don/t Bno.

    J.1". )id *+nal aha provide yo+ the earninstate'ent of An+radha aha, herein her ross

    'onthly pay as shon 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 ivin yo+r

    opinionK

    A.21. None.

    J.22. =hether An+ as 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

    stron relian!e +pon the eviden!e of the @!ono'i!s

    @pert rof. ohn . 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 o+ld have lived +p to the ae of 70

    years as he had also ea'ined rof. ohn 9ro+hton

    in +stifi!ation of his !lai'.

      The learned !o+nsel for the appellantdo!tors

    !ontended that rof. ohn . 9+rBe, ho as

    ea'ined thro+h video !onferen!in 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 itho+t any s+pportin

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    'aterial. The said forein epert itness did not

    Bno hether the de!eased had any individ+al

    in!o'e. &e did not Bno abo+t the earnin state'ent

    of the de!eased prod+!ed by the !lai'ant.  &e has

    also stated that the de!eased as 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 earnin state'ent iss+ed by

    Catholi! &o'e 9+rea+ statin the in!o'e of the

    de!eased at D1060.72 for the period endin 15th

    an+ary, 1""8 !annot be relied +pon for the

    folloin reasons :

    -a The earnin state'ent as not proved in

    a!!ordan!e ith la sin!e only the

    affidavit of !lai'ant as ehibited and

    not the do!+'ents before +sti!e

    HoBeshar rasad -$etired i.e. the

    Ho!al Co''issioner on 5.12.2003 d+rin

    the !rossea'ination.

     -b There is nothin to sho that An+radha

    aha as +nder e'ploy'ent at Catholi!

    &o'e 9+rea+.

    -! Hetter of appoint'ent has not been

    anneed.

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    -d ederal Ta re!ord has not been

    prod+!ed. The @!ono'i!s epert has

    stated that An+radha and the !lai'antere filin oint ta ret+rn.

    -e %t does not sho eeBly in!o'e of the

    de!eased as has been treated by NC)$C.

    -f Nat+re of appoint'ent, even if pres+'ed,

    has not been stated, i.e., hether it

    as 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 rof. ohn . 9+rBe, r. has

    not been relied +pon to prove the loss of in!o'e of

    the de!eased as it shos that the de!eased as not

    payin in!o'e ta. Therefore, the National

    Co''ission has erred in partly alloin the !lai'

    of the !lai'ant hile !o'p+tin the !o'pensation on

    the basis of the earnin of the de!eased.

    O% aar!%: +m#$%a&+% (%!$r &)$ )$a! + ?l+ ++%+r&(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 aardin

    $s.10,00,000; toards loss of !onsorti+'. This

    Co+rt in vario+s folloin de!isions has aarded

    $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., -2012 6 CC

    21

    $s.10,000

    2. Ne %ndia Ass+ran!e Co'pany

    Hi'ited v. oesh )evi, -2012 3

    CC 613

    $s.10,000

    3. National %ns+ran!e Co'pany

    Hi'ited v. initha, -2012 2 CC

    356

    $s.5,000

    . +nil har'a v. 9a!hitar

    inh, -2011 11 CC 25

    $s.25,000

    5. +shpa v. haB+ntala, -20112 CC 20

    $s.10,000

    6. Ar+n *+'ar Araal v.

    National %ns+ran!e Co'pany

    Hi'ited, -2010 " CC 218

    $s.15,000

    7. hya'ati har'a v. *ara'

    inh, -2010 12 CC 378

    $s.5,000

    8. $esh'a *+'ari v. #adan #ohan,

    -200" 13 CC 22 in arla )iit

    v. 9alant adav

    $s.15,000

    ". $a $ani v. 4riental

    %ns+ran!e Co'pany Hi'ited,

    -200" 13 CC 65

    $s.7,000

    10. arla

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    D)a%a%a * Or.  relied +pon by the !lai'ant is

    'is!on!eived as that !ase relates to the !ontin+o+s

    pain and s+fferin of the vi!ti', ho had lost

    !ontrol over his loer li'b and re+ired !ontin+o+s

    physiotherapy for rest of his life. %t as not the

    a'o+nt for loss of !onsorti+' by the h+sband or

    ife. &en!e, it is s+b'itted by the' that the

    National Co''ission erred in rantin $s.10 laBhs

    +nder the head of loss of !onsorti+'/.

    O% &)$ +

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    hile !al!+latin the +st 'onetary !o'pensation,

    the earnins of the !lai'ant ho hi'self is a

    do!tor, is also re+ired to be taBen into

    !onsideration. $eardin the !ontention of the

    !lai'ant that in alloin !o'pensation the A'eri!an

    standard is re+ired to be applied, it has not been

    dis!losed before the Co''ission as to hat is the

    A'eri!an standard. 4n the !ontrary, the National

    Co''ission as dire!ted by this Co+rt to !al!+late

    the !o'pensation in the !ase as referred to in Mala5

    '(mar a%:(l5> !ase -s+pra and on the basis of the

    prin!iples laiddon by this &on/ble Co+rt in

    vario+s other +d'ents. The to +d'ents hi!h

    have been referred to in Mala5 '(mar a%:(l5> !ase

    -s+pra are Or$%&al I%(ra%$ C+m#a%5 L&!.

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    !o'pensation has to be assessed a!!ordin to

    A'eri!an standard is holly +ntenable in la and the

    sa'e is liable to be ree!ted.

    16. +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&ra

    J$a% Ma)a3a%> !ase -s+pra !learly shos that the

    '+ltiplier 'ethod appli!able to !lai' !ases in %ndia

    as applied after taBin 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 foreiner

    dies in %ndia, the basis of !al!+lation has to be

    applied a!!ordin to %ndian tandard and not the

    A'eri!an 'ethod as !lai'ed by the !lai'ant.

    17. +rther, the ord reasonable/ i'plies that the

    appellantdo!tors and A#$% &ospital !annot be

    saddled ith an eorbitant a'o+nt as da'aes hi!h

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    !annot either be treated as an obvio+s or nat+ral

    tho+h not foreseeable !onse+en!e of nelien!e.

    18. +rther, the learned senior !o+nsel has pla!ed

    relian!e on the +d'ent of this Co+rt in  N@am

    I%&&(&$ + M$!al S$%$ s+pra  herein this

    Co+rt enhan!ed the oriinal !o'pensation aarded to

    the !lai'antvi!ti' ho had been paralyEed d+e to

    'edi!al nelien!e fro' aist don, +nder the heads:

    re+ire'ent of n+rsin !are> need for driver!+'

    attendant, as he as !onfined to a heel !hair> and

    he needed physiotherapy.

    %n the present !ase, the nelien!e !o'plained

    of is aainst the do!tors and the &ospital hi!h had

    res+lted in the death of the ife of the !lai'ant.

    %n that !ase, the etent of liability o+ht to be

    restri!ted to those da'aes and epenses in!+rred as

    a dire!t !onse+en!e of the fa!ts !o'plained of,

    hile settin apart the a'o+nt to be aarded +nder

    the head loss of dependen!y/. The relevant portion

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    of the aforesaid +d'ent of this Co+rt in the

     N@am> I%&&(&$ + M$!al S$%$ is +oted

    here+nder:

    ILLLL. The ade+ate !o'pensation that e

    speaB of, '+st to so'e etent, be a r+le of

    th+'b 'eas+re, and a a

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    nelien!e. Therefore, the enhan!e'ent of

    !o'pensation as prayed for by the !lai'ant stood

    rihtly ree!ted by the National Co''ission by

    re!ordin reasons. Therefore, this Co+rt need not

    ea'ine the !lai' aain.

    O% &)$ ($ + m(l&#l$r m$&)+! +r !$&$rm%%:+m#$%a&+% =

    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 brin abo+t

    !onsisten!y in deter'inin the loss of dependen!y

    'ore parti!+larly, in !ases of death of vi!ti's of

    nelien!e, it o+ld be i'portant for the !o+rts to

    har'onio+sly !onstr+!t the aforesaid to prin!iples

    to deter'ine the a'o+nt of !o'pensation +nder the

    heads: epenses, spe!ial da'aes, pain and

    s+fferin.

     

    21. %n Sarla V$rma> !ase -s+pra, this Co+rt, at

    araraphs 13 to 1", held that the '+ltiplier 'ethod

    26

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    is the proper and best 'ethod for !o'p+tation of

    !o'pensation as there ill be +nifor'ity and

    !onsisten!y in the de!isions. The said vie has

    been reaffir'ed by this Co+rt in R$)ma '(mar *

    Or. 

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    that Iin fatal a!!ident !ases, the 'eas+re of

    da'ae 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

    hile aardin da'aes in a fatal a!!ident !ase

    tooB into a!!o+nt the pe!+niary loss already

    s+ffered as a res+lt of the nelien!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 +sin

    the '+ltiplier 'ethod and in respe!t of the +se

    of the '+ltiplier 'ethod for the p+rpose of

    !al!+latin the loss of dependen!y of the

    !lai'ant, in pararaph No. 16 of the aforesaid

    +d'ent this &on/ble Co+rt observed as follos:

     

    I16. %t is ne!essary to reiterate that the

    '+ltiplier 'ethod is loi!ally so+nd and

    leally ellestablished. There are so'e

    !ases hi!h have pro!eeded to deter'ine

    28

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    the !o'pensation on the basis of

    areatin the entire f+t+re earnins for

    over the period the life epe!tan!y as

    lost, ded+!ted a per!entae there fro'toards +n!ertainties of f+t+re life and

    aard the res+ltin s+' as !o'pensation.

    This is !learly +ns!ientifi!L.M

    2. %n Sarla V$rma> !ase  -s+pra this Co+rt

    so+ht to define the epression +st

    !o'pensation/ and opined as +nder:

      I16.L.+st Co'pensationM is ade+ate

    !o'pensation hi!h is fair and e+itable,

    on the fa!ts and !ir!+'stan!es of the

    !ase, to 'aBe ood the loss s+ffered as a

    res+lt of the ron, as far as 'oney !an

    do so, by applyin the ellsettled

    prin!iples relatin to aard of

    !o'pensation. %t is not intended to be a

    bonanEa, laresse or so+r!e of profit.

    17. Assess'ent of !o'pensation tho+h

    involvin !ertain hypotheti!al

    !onsiderations sho+ld nevertheless be

    obe!tive. +sti!e and +stness e'anate

    fro' e+ality in treat'ent, !onsisten!y

    and thoro+hness in ad+di!ation, and

    fairness and +nifor'ity in the de!ision

    'aBin pro!ess and the de!isions. =hile it'ay not be possible to have 'athe'ati!al

    pre!ision or identi!al aards in assessin

    !o'pensation, sa'e or si'ilar fa!ts sho+ld

    lead to aards in the sa'e rane. =hen the

    fa!tors;inp+ts are the sa'e, and the

    for'+la;leal prin!iples are the sa'e,

    !onsisten!y and +nifor'ity, and not

    29

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    diveren!e and freaBiness, sho+ld be the

    res+lt of ad+di!ation to arrive at +st

    !o'pensation.M

      -@'phasis laid by this Co+rt

    25. %t as also !ontended by the learned !o+nsel

    for the appellantdo!tors that apart fro'

    a!!ident !ases +nder the #otor

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    death of 5" persons tooB pla!e in a !ine'a hall

    and 10" persons s+ffered in+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

    hile aardin !o'pensation to the vi!ti's

    be!a+se it leads to !onsisten!y and avoids

    arbitrariness.

    O% +%&r

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    and other !o+nsel for the appellants, the

    National Co''ission erred in not adherin to the

    tenor set by this Co+rt hile re'andin the !ase

    ba!B to it for deter'inin the !o'pensation to

    arrive at an ade+ate a'o+nt hi!h o+ld also

    i'ply an aspe!t of !ontrib+tory nelien!e,

    individ+al role and liability of the &ospital

    and the do!tors held nelient. Therefore, this

    Co+rt is re+ired to !onsider this aspe!t and

    ded+!t the re'ainin 15G o+t of the !o'pensation

    aarded by the National Co''ission toards

    nelien!e by the !lai'ant.

    O% $%)a%$m$%& + +m#$%a&+% lam$!

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    la. The !lai'ant in his ritten s+b'ission

    filed d+rin the !o+rse of ar+'ents in +ly,

    2011 before the National Co''ission, has 'ade

    his !lai' of $s."7,56,07,000; hi!h the

    National Co''ission has rihtly ree!ted in the

    i'p+ned +d'ent holdin that it as leally

    i'per'issible for it to !onsider that part of

    the eviden!e hi!h is stri!tly not in !onfor'ity

    ith the pleadins in order to aard a hiher

    !o'pensation as !lai'ed by the !lai'ant. %n

    +stifi!ation of the said !on!l+sion and findin

    of the National Co''ission, the learned !o+nsel

    have pla!ed relian!e +pon the prin!iple

    analoo+s to 4rder %% $+le 2 of C..C., 1"08 and

    f+rther !ontended that the !lai'ant ho had

    abandoned his !lai' no !annot 'aBe ne !lai's

    +nder different heads. +rther, it is s+b'itted

    by #r.

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    ".11.200" in #.A. No.1327 of 200" for additional

    !lai'> the said appli!ation as ithdran by hi'

    on ".2.2010. Therefore, his !lai' for enhan!in

    !o'pensation is not tenable in la. %n s+pport

    of the said !ontention, he has pla!ed relian!e

    +pon the +d'ent of this Co+rt in  Na&+%al

    T$&l$ C+r#+ra&+% L&!. 

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    The said vie of this Co+rt as reiterated in  A.

    S)a%m(:am  

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    there is no li'itation pres!ribed in the #otor

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    Trib+nal !an be treated as an appli!ation for

    !o'pensation even tho+h no !lai' is 'ade or

    spe!ified a'o+nt is !lai'ed hereas +nder the

    Cons+'er rote!tion A!t, a ritten !o'plaint

    spe!ifyin the !lai' to be preferred before the

    appropriate for+' ithin 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

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    the fa!t sit+ation for to reasons, na'ely, it

    as a !ase +nder the #otor  !ase -s+pra. The learned !o+nsel

    14  (2011 10 CC 655

    38

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    also pla!ed relian!e +pon the +d'ent of this

    Co+rt in  N@am I%&&(&$>  !ase -s+pra here

    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

     N@am I%&&(&$>  !ase is not a !ase for the

    proposition that a !lai'ant !an be aarded

    !o'pensation beyond hat is !lai'ed by hi'. 4n

    the other hand, it as a !ase of pe!+liar fa!ts

    and !ir!+'stan!es sin!e the !lai'ant had

    per'anent disability hi!h re+ired !onstant

    'edi!al attention, 'edi!ines, servi!es of

    attendant and driver for hi'self. The !ases

    referred to by the !lai'ant reardin 'edi!al

    nelien!e in his ritten s+b'ission are

    distin+ishable fro' the present !ase and in

    none of these !ases +pon hi!h relian!e has been

    pla!ed by the !lai'ant, this Co+rt has aarded

    !o'pensation beyond hat is !lai'ed. Therefore,

    the relian!e pla!ed +pon the aforesaid +d'ents

    39

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    relevant for deter'inin the +antifi!ation of

    !o'pensation. %t is s+b'itted that this Co+rt is

    also not s+re that the nelien!e solely has

    !ontrib+ted to the death of the !lai'ant/s ife. At

    the 'ost, this Co+rt is of the vie that the

    nelien!e 'ay have !ontrib+ted to the death of the

    !lai'ant/s ife. The in!iden!es leadin to or

    !ontrib+tin to the death of the de!eased are:

    -i )isease T@N itself is a fatal disease

    hi!h has very hih 'ortality rate.

    -iiT@N itself prod+!es septi!e'i! sho!B and

    de!eased An+radha died be!a+se of s+!h

    !onse+en!e.

    -iii No dire!t treat'ent or treat'ent

    proto!ol for [email protected]!e of 'any in treatin de!eased

    An+radha.

    -v Contrib+tory nelien!e on the part of

    )r.*+nal aha and his brother.

    +rther'ore, it is observed fa!t+ally that

    lethal !o'bination of Cisapride and l+!onaEole had

    been +sed for a n+'ber of days at 9rea!h Candy

    &ospital d+rin her stay hi!h leads to !ardia!

    arrest. Therefore, the National Co''ission o+ht to

    41

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    have !onsidered different in!iden!es as aforesaid

    leadin to the death of the !lai'ant/s ife so as

    to !orre!tly apportion the individ+al liability of

    the do!tors and the A#$% &ospital in !a+sin the

    death of the ife of the !lai'ant.

    36. +rther, ith reard to the liability of ea!h

    of the do!tors and the A#$% &ospital,

    individ+al s+b'issions have been 'ade hi!h are

    presented here+nder:

    C/l A##$al N+. 6-22012

    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 as initially

    ea'ined by )r. +B+'ar #+Bheree and the

    alleed 'edi!al nelien!e res+ltin in the

    death of the de!eased as d+e to his ron

    'edi!ation -overdose of steroid. Therefore,

    the &ospital has little or 'ini'al

    42

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    responsibility in this reard, parti!+larly,

    hen after ad'ission of the de!eased in the

    &ospital there as !orre!t dianosis and she as

    iven best possible treat'ent. The National

    Co''ission erred in apportionin the liability

    on the &ospital to the etent of 25G of the

    total aard. This Co+rt in the earlier ro+nd of

    litiation held that there is no 'edi!al

    nelien!e by )r. *a+shiB Nandy, the oriinal

    respondent No.6 in the !o'plaint, ho as also a

    do!tor in the appellant&ospital.

    38. +rther, the learned senior !o+nsel for the

    A#$% &ospital s+b'itted that the ar+'ents

    advan!ed on behalf of the appellantsdo!tors )r.

    9alra' rasad in C.A. No.2867;2012, )r. +B+'ar

    #+Bheree in C.A. No.858;2012 and )r. 9aidyanath

    &aldar in C.A. 731;2012 ith reard to

    per!entae, on the basis of !osts i'posed in

    pararaph 1"6 of the +d'ent in the earlier

    43

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    ro+nd of litiation is itho+t any basis and

    f+rther s+b'itted that +nder the headin (

    %ndivid+al Hiability of )o!tors/ findins as to

    hat as the nelien!e of the do!tors and the

    appellant A#$% &ospital is not stated. %f the

    said findins of the National Co''ission are

    !onsidered, then it !annot be ar+ed that the

    appellant A#$% &ospital sho+ld pay the hihest

    !o'pensation. +rther, the learned senior

    !o+nsel reb+tted the s+b'ission of the !lai'ant

    !ontendin that sin!e he had hi'self !lai'ed

    spe!ial da'aes aainst the appellantdo!tors,

    the &ospital and )r. Abani $oy Cho+dhary in the

    !o'plaint before the National Co''ission,

    therefore, he !annot no !ontend !ontrary to the

    sa'e in the appeal before this Co+rt.

    CIVIL APPEAL NO. 88 OF 2012

    44

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    3". %t is the !ase of the appellant )r. +B+'ar

    #+Bheree that the National Co''ission hile

    apportionin the liability of the appellant, has

    ronly observed that :

    I+pre'e Co+rt has pri'arily fo+nd

    )r.+B+'ar #+Bheree and A#$% hospital

    +ilty of nelien!e and defi!ient in

    servi!e on several !o+nts. Therefore,

    oin by the said findins and

    observations of +pre'e Co+rt e

    !onsider it appropriate to apportion the

    liability of )r. +B+'ar #+Bheree and

    A#$% hospital in e+al proportion, i.e.

    ea!h sho+ld pay 25G i.e. 38,"0,000; of

    the aarded a'o+nt of 1,55,60,000;.M

    0. %t is s+b'itted by the learned !o+nsel for

    the appellant )r. +B+'ar #+Bheree that

    s!r+tiny of the +d'ent in  Mala5 '(mar

    a%:(l5/s !ase -s+pra ill sho that at no

    pla!e did the &on/ble +pre'e Co+rt 'ade any

    observation or re!orded any findin that the

    appellant )r. #+Bheree and the &ospital are

    pri'arily responsible. 4n the !ontrary, +nder

    the headin IC+'+lative @ffe!t of Nelien!eM

    45

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    +nder paras 186 and 187, this &on/ble Co+rt has

    held as +nder:

    I186. A patient o+ld feel the

    defi!ien!y in servi!e havin reard to

    the !+'+lative effe!t of nelien!e of

    all !on!erned. Nelien!e on the part

    of ea!h of the treatin do!tors as also

    the hospital 'ay have been !ontrib+tin

    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 ith the

    !onse+en!es the patient fa!ed Beepin

    in vie the !+'+lative effe!t. %n the

    instant !ase, nelient a!tion has been

    noti!ed ith 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 la. The !o'pleities involved

    in the instant !ase as also differin

    nat+re of nelien!e eer!ised by

    vario+s a!tors, 'aBe it very diffi!+lt

    to distil individ+al etent of

    nelien!e ith respe!t to ea!h of the

    respondent. %n s+!h a s!enario findin

    of 'edi!al nelien!e +nder e!tion 30

    A !annot be obe!tively deter'ined.M

    1. %t is f+rther s+b'itted by the learned

    !o+nsel for the appellant )r. +B+'ar #+Bheree

    that the ife of the !lai'ant as s+fferin fro'

    46

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    rash;fever fro' April 1""8, she as seen by the

    appellant)r.+B+'ar #+Bheree only on three

    o!!asions before his preplanned visit to the

    F..A. for attendin a 'edi!al !onferen!e i.e.

    on 26..1""8, 7.5.1""8 and on the niht of

    11.5.1""8 and then the appellant)r.#+Bheree

    left %ndia for FA and ret+rned '+!h after the

    de'ise of the !lai'ant/s ife. 4n her first

    ea'ination on 26..1""8 the appellant

    s+ested a host of patholoi!al tests. The

    patient as re+ested to visit the )o!tor ith

    these reports. No dr+s ere pres!ribed by the

    appellant)r.#+Bheree at this ea'ination. 4n

    7.5.1""8, An+radha aha alBed into the !lini!

    of the appellant)r.#+Bheree at ".30 p.'. and

    reported that she as +n!o'fortable be!a+se she

    had !ons+'ed food of Chinese !+isine. The

    appellant)r.#+Bheree noti!ed that there as a

    definite !hane in the nat+re of the rash. 9ased

    on the infor'ation f+rnished and the stat+s and

    47

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    !ondition of the patient, she as dianosed to

    be s+fferin fro' alleri! vas!+litis and the

    appellant)r.#+Bheree !o''en!ed treatin the

    patient ith )epo'edrol, hi!h is a dr+

    belonin to the fa'ily of steroids. The

    appellant)r.#+Bheree re!o''ended )epo'edrol 80

    '.%# ti!e daily for 3 days to be re!onsidered

    after An+radha aha as s+be!t to f+rther

    revie. )epo'edrol is very '+!h indi!ated in

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    ith a dose of 177.7 ' daily for 1 eeB and 71

    ' on every other day for one 'onth.

    2. 4n 11.5.1""8 hen the appellant)r.#+Bheree

    ea'ined An+radha aha at the A#$% &ospital

    prior to his depart+re to F..A., he pres!ribed

    a hole line of treat'ent and oraniEed

    referen!e to different spe!ialists;!ons+ltants.

    &e re!o''ended f+rther patholoi!al tests

    be!a+se on ea'inin the patient at the A#$%, he

    noti!ed that she had so'e blisters hi!h ere

    not peeled off. There as no deta!h'ent of sBin

    at all. &e also re+ested in ritin the

    treatin !ons+ltant physi!ian of A#$% )r. 9alra'

    rasad, #) to oraniEe all these in!l+din

    referral to all spe!ialists. The appellant

    )r.#+Bheree s+spe!ted !ontin+ation of alleri!

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    i''+no abnor'alities. %t is stated that the

    appellant)r.#+Bheree did not ea'ine the

    patient thereafter and as afore'entioned, he

    left on a prearraned visit to F..A. for a

    'edi!al !onferen!e. No fees ere !hared by the

    appellant)r.#+Bheree. %t is f+rther s+b'itted

    that before the appellant)r.#+Bheree started

    the treat'ent of the de!eased, )r.anoy ?hose

    on 6.5.1""8 treated her and d+rin the period of

    treat'ent of the appellant)r. #+Bheree fro'

    7.5.1""8 to 11.5.1""8, on ".5.1""8 )r.AshoB

    ?hosal -)er'atoloist treated An+radha aha.

    These fa!ts ere 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 findin in the !ase referred to s+pra

    that the patient as also ea'ined by to

    !ons+ltant der'atoloists )r.A.*. ?hosal and )r.

    . ?hosh ho dianosed the disease to be a !ase

    of vas!+litis.

    50

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    3. %t is f+rther s+b'itted by the learned

    !o+nsel for the appellant)r. #+Bheree that the

    !a+se of death as re!orded in the death

    !ertifi!ate of the de!eased is Isepti!e'i! sho!B

    ith '+lti syste' oran fail+re in a !ase of T@N

    leadin to !ardio respiratory arrestM. 9lood

    !+lt+re as neative prior to death. There as

    no a+topsy to !onfir' the dianosis at 9rea!h

    Candy &ospital, #+'bai. )r. Fdadia observed on

    27.5.1""8 that the patient has developed %$ in

    absen!e of infe!tion in T@N. The patient

    epired on 28.5.1""8 and the death !ertifi!ate

    as ritten by a +nior do!tor itho+t the

    !o''ents of )r. Fdadia. %t is s+b'itted by the

    learned !o+nsel that there is neither any

    alleation nor any findin by this Co+rt that

    the do!tors of the A#$% &ospital had !ontrib+ted

    to septi!e'ia. The 'ere findin that the

    patient as not properly dressed at A#$%

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    &ospital here she stayed for only 6 days of

    early evo!ation of the disease do not +stify

    !ontrib+tion to septi!e'i! sho!B of the

    de!eased. +rther, there is no re!ord to sho

    that at A#$% &ospital the sBin of the patient

    had peeled o+t thereby leadin to !han!e of

    developin septi!e'ia. 4n the other hand, it is

    a fa!t borne o+t fro' re!ord that the patient

    as taBen in a !hartered fliht to 9rea!h Candy

    &ospital, 9o'bay aainst the advi!e of the

    do!tors at *olBata and f+rther nothin is borne

    o+t fro' the re!ords as hat pre!a+tion ere

    taBen by the !lai'ant hile shiftin the patient

    by Air to 9rea!h Candy &ospital thereby leadin

    to the !on!l+sion that d+rin the travel by

    !hartered fliht she 'iht have !ontra!ted

    infe!tion of the sBin leadin to septi!e'ia. %t

    is f+rther s+b'itted by the learned !o+nsel for

    the appellant )r. +B+'ar #+Bheree that the

    fa!t that the disease T@N re+ires hiher

    52

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    deree of !are sin!e there is no definite

    treat'ent, s+!h hih deree of !are ill be

    relatable to !o'fort b+t not definitely to

    septi!e'ia that o!!+rred at 9rea!h Candy

    &ospital. &en!e, nelien!e has to be assessed

    for da'aes 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.

    . %t is s+b'itted by the learned !o+nsel for

    appellant)r. +B+'ar #+Bheree that there is no

    findin or alleation that the dr+ )epo'edrol

    pres!ribed by the appellant)r.#+Bheree !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 !onse+en!es. %t is

    f+rther s+b'itted that 9rea!h Candy &ospital

    re!ords sho that the patient as hae'o

    dyna'i!ally stable. @ven )r.Fdadia of 9rea!h

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    Candy &ospital on 17.5.1""8 do+bted ith reard

    to the ea!t disease and re!orded the disease as

    T@N or teven ohnson yndro'.

    Therefore, the National Co''ission o+ht to

    have !onsidered different in!iden!es as aforesaid

    leadin to the death of the !lai'ant/s ife and the

    +ant+' of da'aes shall have to be divided into

    five parts and only one part shall be attrib+ted to

    the nelien!e of the appellant)r.#+Bheree.

    C/l A##$al N+. 2867 + 2012

    5. %t is the !ase of )r. 9alra' rasadappellant

    in Civil Appeal No. 2867 of 2012 that on

    11.05.1""8, )r. +B+'ar #+Bheree, before

    leavin for F..A., attended the patient at the

    A#$% &ospital at 2.15 p.'. and after ea'inin

    the de!eased, iss+ed the se!ond and last

    pres!ription on the aforesaid date itho+t

    pres!ribin anythin different b+t reass+red

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    the patient that she o+ld be fine in a fe

    eeBs/ ti'e and 'ost !onfidently and stronly

    advised her to !ontin+e ith the said ine!tion

    for at least fo+r 'ore days. This as also

    re!orded in the aforesaid last pres!ription of

    the said date. +rther, it is stated that

    itho+t dis!losin that he o+ld be o+t of %ndia

    fro' 12.05.1""8, he asBed the de!eased to

    !ons+lt the na'ed )er'otoloist, )r. 9.&aldar P

    9aidyanath &aldar, the appellant in Civil Appeal

    No. 731 of 2012, and the physi!ian )r. Abani $oy

    Chodh+ry in his last pres!ription on the last

    visit of the de!eased. #ost !+lpably, he did not

    even pres!ribe %.

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    patient by then already had !lear intaBe of 880

    ' of )epo'edrol ine!tion as o+ld be evident

    fro' A#$%/s treat'ent sheet dated 11.05.1""8.

    6. %t is f+rther stated by the !lai'ant in the

    !o'plaint loded before National Co''ission that

    it !ontained spe!ifi! aver'ents of nelien!e

    aainst the appellantdo!tors. The only aver'ent

    of alleed nelien!e as !ontained in pararaph

    of the !o'plaint hi!h reads as +nder:

    I. That )r. 9alra' rasad as attendin

    physi!ian at A#$% did do nothin better.

    &e did not taBe any part in thetreat'ent of the patient altho+h he

    stood liBe a se!ond fiddle to the 'ain

    tea' headed by the opposite party No. 2

    and 3. &e never s+ested even faintly

    that A#$% is not an ideal pla!e for

    treat'ent of T@N patient> on the

    !onverse, he as f+ll of praise for A#$%

    as an ideal pla!e for the treat'ent of

    T@N patients Bnoin nothin ho a T@N

    patient sho+ld be treated.M

    56

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    7. The !lai'ant has also pla!ed stron relian!e

    +pon the anser iven by hi' to +estion No. 26

    in his !ross ea'ination hi!h reads th+s:

    IJ.No.26. )r. rasad says that

    )epo'edrol dose a!!ordin to the

    treat'ent sheet of the A#$% &ospital,

    he 'ade a spe!ifi! s+estion 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.

    eah, he said one day in A#$% re!ord.M

    8. Tho+h, the appellant)r. 9alra' rasad as

    a!!+sed in the !ri'inal !o'plaint loded by the

    !lai'ant he as neither pro!eeded aainst as an

    a!!+sed in the !ri'inal !o'plaint nor before the

    =est 9enal #edi!al Co+n!il b+t as na'ed as a

    itness. +rther, it is stated by the !lai'ant

    that he +red before the National Co''ission as

    ell as before this Co+rt in +ne+ivo!al ter's

    that the b+lB of the !o'pensation aarded o+ld

    have to be in the proportion of 80G on the A#$%

    &ospital, 15G on )r. +B+'ar #+Bheree and

    57

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    balan!e beteen the rest. )espite the aforesaid

    s+b'ission before the National Co''ission, the

    !lai'ant !lai's that it has erred in aardin

    the proportion of the liability aainst ea!h of

    the appellantdo!tors in a 'anner 'entioned in

    the table hi!h is provided here+nder:

      NAME OF THE PARTG AMOUNT TO BE PAID

    )r. +B+'ar #+Bheree Co'pensation:$s.38,"0,000

    Cost of litiation:1,50,000

    )r. 9aidyanath &aldar Co'pensation:$s.25,"3,000

    Cost of litiation: $s.1,00,000

    )r. Abani $oy Chodh+ry

    -sin!e de!eased -!lai'

    foreone

    Co'pensation: 25,00,000

    A#$% &ospital Co'pensation: $s.38,"0,000

    Cost of litiation: $s.1,50,000

    )r. 9alra' rasad Co'pensation: $s.25,"3,000

    Cost of litiation: $s.1,00,000

    ". The appellant)r. 9alra' rasad in Civil

    Appeal No.2867;2012 !ontends that he as the

    +nior 'ost attendin physi!ian atta!hed to the

    &ospital, he as not !alled +pon to pres!ribe

    'edi!ines b+t as only re+ired to !ontin+e

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    and;or 'onitor the 'edi!ines pres!ribed by the

    spe!ialist in the dis!ipline. 9+t realiEin the

    serio+sness of the patient, the appellant had

    hi'self referred the patient to the three

    spe!ialists and also s+ested for +ndertaBin a

    sBin biopsy. The d+ty of !are ordinarily

    epe!ted of a +nior do!tor had been dis!hared

    ith dilien!e by the appellant. %t is f+rther

    !ontended that in his !rossea'ination before

    the National Co''ission in the en+iry

    pro!eedin, the !lai'ant hi'self has ad'itted

    that the basi! falla!y as !o''itted by three

    physi!ians, na'ely, )r. #+Bheree, )r. &aldar

    and )r. $oy Chodh+ry. The above fa!ts o+ld

    !learly sho that the role played by the

    appellant)o!tors in the treat'ent of the

    de!eased as only se!ondary and the sa'e had

    been dis!hared ith reasonable and d+e !are

    epe!ted of an attendin physi!ian in the iven

    fa!ts and !ir!+'stan!es of the instant !ase.

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    50. %n the liht of the above fa!ts and

    !ir!+'stan!es, the !ontention of the !lai'ant

    that the death of the !lai'ant/s ife as

    neither dire!tly nor !ontrib+torily relatable to

    the alleed nelient a!t of the appellant )r.

    9alra' rasad, it is 'ost respe!tf+lly s+b'itted

    that the National Co''ission as not +stified

    in apportionin the da'aes in the 'anner as has

    been done by the National Co''ission to pla!e

    the appellant on the sa'e footin as that of )r.

    9aidyanath &aldar, ho as a senior do!tor in

    !hare of the 'anae'ent;treat'ent of the

    de!eased.

    51. The learned senior !o+nsel for the appellant

    )r. 9alra' rasad f+rther +red that the

    National Co''ission has also erred in not taBin

    into a!!o+nt the s+b'issions of the !lai'ant

    that 80G of the da'aes o+ht to have been

    levied on the &ospital, 15G on )r. +B+'ar

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    #+Bheree and the balan!e beteen the rest. %t

    is +red that the proportion of the !o'pensation

    a'o+nt aarded on the appellant is e!essive and

    +nreasonable hi!h is beyond the !ase of the

    !lai'ant hi'self.

    CIVIL APPEAL NO. 741 OF 2012

    52. The learned !o+nsel #r. $anan #+Bheree

    appearin on behalf of the appellant in this

    appeal has filed the ritten s+b'issions on

    15..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 ar+'ents 'ade in

    s+pport of the ritten s+b'issions filed on

    behalf of the other do!tors and A#$% &ospital by

    ay of reply to the ritten s+b'issions of the

    !lai'ant. +rther, he has s+b'itted that the

    appellant )r. 9aidyanath &aldar is abo+t 80

    years and is ailin ith heart disease and no

    'ore in a!tive pra!ti!e. Therefore, he re+ested

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    to set aside the liability of !o'pensation

    aarded aainst hi' by alloin his appeal.

    All the do!tors and the &ospital +red 'ore or

    less the sa'e ro+nds.

    C/l A##$al N+. 2866 + 2012

    53. This appeal has been filed by the !lai'ant.

    %t is the rievan!e of the !lai'ant that the

    National Co''ission ree!ted 'ore than "8G of

    the total oriinal !lai' of $s.77.7 !rores hi!h

    as 'odified to $s."7.5 !rores later on by

    addin Ispe!ial da'aesM 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 lon trial in relation to the pro!eedins

    in +estion before the National Co''ission and

    this Co+rt. The National Co''ission event+ally

    aarded !o'pensation of only $s.1.3 !rores after

    red+!in fro' the total aard of $s.1.72 !rores

    on the ro+nd that the !lai'ant had IinterferedM

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    in the treat'ent of his ife and sin!e one of

    the +ilty do!tors had already epired, his

    share of !o'pensation as also denied.

    5. Therefore, the present appeal is filed

    !lai'in the +st and reasonable !o'pensation

    +rin the folloin ro+nds:

    a) The National Co''ission has failed to

    !onsider the pe!+niary, nonpe!+niary

    and spe!ial da'aes as etra!ted

    hereinbefore.

    b) The National Co''ission has 'ade blatant

    errors in 'athe'ati!al !al!+lation hile

    aardin !o'pensation +sin the

    '+ltiplier 'ethod hi!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 leal history for the ronf+l

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    death !a+sed by 'edi!al nelien!e of

    the appellantdo!tors and the A#$%

    &ospital.

    d) The National Co''ission has

    reinvestiated the entire !ase abo+t

    'edi!al nelien!e and ent beyond the

    observations 'ade by this Co+rt in Mala5

    '(mar a%:(l5> !ase -s+pra by holdin

    that the !lai'ant is also +ilty for his

    ife/s death.

    e) The National Co''ission has failed to

    rant any interest on the !o'pensation

    tho+h the litiation has taBen 'ore

    than 15 years to deter'ine and aard

    !o'pensation.

    f) The National Co''ission has failed to

    !onsider the deval+ation of 'oney as a

    res+lt of IinflationM for aardin

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    hiher !o'pensation that as so+ht 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' statin that he as

    tryin to I'aBe a fort+ne o+t of a

    'isfort+ne.M The said re'arB '+st be

    ep+ned.

    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 ranted to the !lai'ant +nder any

    !ondition. This !ontention o+ht to have been

    noti!ed by the National Co''ission that it is

    holly +ntenable in la in vie of the

    Constit+tion 9en!h de!ision of this Co+rt in the

    !ase of I%!a% M$!al A+a&+%

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    !ateori!ally disareed on this spe!ifi! point

    in another !ase herein I'edi!al nelien!eM as

    involved. %n the said de!ision, it has been

    held at pararaph 53 that to deny a leiti'ate

    !lai' or to restri!t arbitrarily the siEe of an

    aard o+ld a'o+nt to s+bstantial in+sti!e to

    the !lai'ant.

    56. +rther, in a three +de 9en!h de!ision of

    this Co+rt in N@am I%&&(&$> !ase-s+pra it

    has been held that if a !ase is 'ade o+t by the

    !lai'ant, the !o+rt '+st not be !hary of

    aardin ade+ate !o'pensation. +rther, the

    !lai'ant !ontends that this Co+rt has re!ently

    ref+sed to +ash the defa'ation !lai' to the

    t+ne of $s.100 !rores in Tm$ l+

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    appropriate !ases, see'inly lare a'o+nt of

    !o'pensation is +stified.

    57. The !lai'ant f+rther +red that this is the

    f+nda'ental prin!iple for aardin I+st

    !o'pensationM and this Co+rt has !ateori!ally

    stated hile re'andin the !ase ba!B to the

    National Co''ission that the prin!iple of +st

    !o'pensation is based on Irestitutio in

    integrum”, i.e. the !lai'ant '+st re!eive the

    s+' of 'oney hi!h o+ld p+t hi' in the sa'e

    position as he o+ld have been if he had not

    s+stained the ron. %t is f+rther !ontended

    that the !lai'ant had 'ade a !lai' referred to

    s+pra +nder spe!ifi! headins in reat detail

    ith +stifi!ation for ea!h of the heads.

    Fnfort+nately, despite referrin to +di!ial

    noti!e and the said !lai'table in its final

    +d'ent, the National Co''ission has ree!ted

    the entire !lai' on the sole ro+nd that sin!e

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    the additional !lai' as not pleaded earlier,

    none of the !lai's 'ade by the !lai'ant !an be

    !onsidered. Therefore, the National Co''ission

    as ron in ree!tin different !lai's itho+t

    any !onsideration and in ass+'in that the

    !lai's 'ade by the !lai'ant before the Trib+nal

    !annot be !haned or 'odified itho+t prior

    pleadins +nder any other !ondition. The said

    vie of the National Co''ission is !ontrary to

    the n+'ero+s folloin de!isions of this Co+rt

    hi!h have opined otherise:

      N%:amma a%! A%r.

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    D/+%al Ma%a:$r

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    !ontended by the !lai'ant that it is an

    +ndisp+ted fa!t that the !lai'ant/s ife as a

    re!ent rad+ate in sy!holoy fro' a hihly

    prestiio+s %vy Hea+e !hool in Ne orB ho

    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' shoin a paltry in!o'e of

    only D 30,000 per year, hi!h she as earnin

    as a rad+ate st+dent. This as a rave error

    on the part of the National Co''ission,

    espe!ially, in vie of the observations 'ade by

    this Co+rt in the !ase of  Ar/%! '(mar M)ra

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    even in the absen!e of any epert/s opinion

    -pararaphs 13,1. The prin!iples of this !ase

    ere folloed in 'any other !ases na'ely, Ra3

    '(mar

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    60. %t is f+rther the !ase of the !lai'ant that

    the National Co''ission has !o'pletely failed to

    aard I+st !o'pensationM d+e to non

    !onsideration of all the folloin !riti!al

    fa!tors:

    1 The ?+idelines provided by +pre'e 

    Co+rt: This Co+rt has provided

    +idelines as to ho the National

    Co''ission sho+ld arrive at an

    Iade+ate !o'pensationM after

    !onsideration of the +ni+e nat+re of

    the !ase.

    2 tat+s and +alifi!ation of the vi!ti' 

    and her h+sband.

    3 %n!o'e and standard of livin in the 

    F..A.: As both the de!eased and the

    !lai'ant ere !itiEens of F..A. and

    per'anently settled as a I!hild

    psy!holoistM and A%)s resear!her,

    respe!tively, the !o'pensation in the

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    instant !ase '+st be !al!+lated in

    ter's of the stat+s and standard of

    livin in the F..A.. I% Pa&ra

     Ma)a3a%> !ase -s+pra, here a 8

    year old F !itiEen died in a road

    a!!ident in %ndia, this Co+rt has

    aarded a !o'pensation of 'ore than

    $s. 16 !rores after holdin that the

    !o'pensation in s+!h !ases '+st

    !onsider the hih stat+s and standard

    of livin in the !o+ntry here the

    vi!ti' and the dependent live.

    @!ono'i! epert fro' the F..A. :

    The !lai'ant initially filed a !o'plaint

    before the National Co''ission soon after

    the ronf+l death of his ife in 1""8

    ith a total !lai' of $s.77.7 !rores

    aainst the appellant do!tors and A#$%

    &ospital hi!h as ree!ted and this Co+rt

    re'anded this 'atter to the National

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    Co''ission for deter'ination of the

    +ant+' of !o'pensation ith a spe!ifi!

    dire!tion in the final senten!e of

    +d'ent that Iforein epertsM 'ay be

    ea'ined thro+h video !onferen!in.

    5 !ientifi! !al!+lation of loss of

    in!o'e: The National Co''ission

    sho+ld have 'ade s!ientifi!

    !al!+lation reardin the loss of

    in!o'e of the !lai'ant. This dire!tion

    has been iven by this Co+rt in a

    n+'ber of !ases. +rther, he has

    !ontended that the !lai'ant 'oved this

    Co+rt for video !onferen!in. The

    !lai'ant ea'ined rof. ohn . 9+rBe,

    a F..A. based @!ono'ist of

    international rep+te, in #ay+ne,

    2011. rof ohn . 9+rBe as also

    !rossea'ined by the appellant

    do!tors and the A#$% &ospital. rof.

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    9+rBe s!ientifi!ally !al!+lated and

    testified hi'self +nder dire!t as ell

    as !rossea'ination as to ho 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 !ateori!ally stated that the

    dire!t loss of in!o'e for An+radha/s

    pre'at+re death o+ld a'o+nt to I5

    'illion and 125 tho+sand dollarsM.

    This loss of in!o'e as !al!+lated

    after ded+!tion of 1;3rd

     of the a'o+nt

    for her personal epenses. 1;3rd

    ded+!tion of in!o'e for personal

    epenses has also been re!o''ended in

    a +d'ent of this Co+rt in the !ase

    of Sarla V$rma -s+pra.  rof. 9+rBe

    has also eplained ho he !al!+lated

    the loss of in!o'e d+e to the

    pre'at+re death of An+radha and

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    f+rther testified that his !al!+lation

    for loss of An+radha/s in!o'e as a

    I/$r5 +%$r/a&/$ +r$a& and that

    to so'e other esti'ates, the da'aes

    for An+radha/s death !o+ld be I" to 10

    'illion dollars. =hile the loss of

    in!o'e o+ld be '+lti 'illion dollars

    as dire!t loss for ronf+l death of

    An+radha, it 'ay appear as a fab+lo+s

    a'o+nt in the !ontet of %ndia. This

    is +ndo+btedly an averae and

    leiti'ate !lai' in the !ontet of the

    instant !ase. And f+rther, it 'ay be

    noted that far bier a'o+nts of

    !o'pensation are ro+tinely aarded by

    the !o+rts in 'edi!al nelien!e !ases

    in the F..A. %n this reard this

    Co+rt also 'ade very !lear observation

    in I%!a% M$!al A+a&+%

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    leiti'ate !lai' or to restri!t

    arbitrarily the siEe of an aard o+ld

    a'o+nt to s+bstantial in+sti!e.

    6 Hoss of in!o'e of !lai'ant: 

    The National Co''ission has inored the

    loss of in!o'e of the !lai'ant tho+h this

    Co+rt has !ateori!ally stated hile

    re'andin 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 +ant+' of !o'pensation. The !lai'ant

    had in!+rred a h+e a'o+nt of epenses in

    the !o+rse of the 'ore than 15 years lon

    trial in the instant !ase. These epenses

    in!l+de the enor'o+s !ost for leal

    epenses as ell as epenses for the

    n+'ero+s trips beteen %ndia and the

    F..A. over the past 'ore than 12 years.

    %n addition to that the !lai'ant has also

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    sin!e he filed the oriinal !o'plaint

    aainst the appellantdo!tors !o+ld not

    possibly be a part of the oriinal !lai'

    filed by hi' 15 years ao.

    61. %n vie of the !ir!+'stan!es narrated above,

    the !lai'ant has referred a revised +ant+' of

    !lai' hi!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 headins of

    pe!+niary, nonpe!+niary, p+nitive and spe!ial

    da'aes. The individ+al ite's of !lai' have

    also been +stified ith appropriate referen!es

    and s+pportin 'aterials as needed. The total

    +ant+' of !lai' for the ronf+l death of the

    !lai'ant/s ife no stands at $s."7,56,07,000;

    in!l+din pe!+niary da'aes of

    $s.3,56,07,000;, non pe!+niary da'aes of

    $s.31,50,00,000;, spe!ial da'aes of F D

    1,000,000; for loss of ob in 4hio and p+nitive

    79

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    da'aes of F D 1,000,000;. This +pdated breaB

    +p of the total !lai' has been shon in the

    !lai'table referred to in the later part of the

    +d'ent. The !lai'ant respe!tf+lly s+b'its that

    the National Co''ission sho+ld have !onsidered

    this total !lai' in !on+n!tion ith the

    affidavit filed by hi' d+rin the !o+rse of

    'aBin final ar+'ents. The National Co''ission

    also sho+ld have taBen into !onsideration the

    leal prin!iples laid don in the !ase of N@am

    I%&&(&$ -s+pra herein this Co+rt alloed the

    !lai' of !o'pensation hi!h as s+bstantially

    hiher than the oriinal !lai' that he initially

    filed in the !o+rt. +rther, the National

    Co''ission o+ht to have taBen into

    !onsideration the observations 'ade in the

    re'and order passed by this Co+rt hile

    deter'inin the +ant+' of !o'pensation and the

    leiti'ate epe!tation for the ronf+l death of

    a patient after fa!torin in the position and

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    stat+re of the do!tors !on!erned as also the

    &ospital/. This Co+rt also held in  Malay Kumar

    Ganguly’s !ase -s+pra that A#$% is one of the

    best &ospitals in Cal!+tta, and that the do!tors

    ere the best do!tors available. Therefore, the

    !o'pensation in the instant !ase 'ay be enhan!ed

    in vie of the spe!ifi! observations 'ade by

    this Co+rt.

    62. Appellantdo!tors )r. +B+'ar #+Bheree and

    )r. 9aidyanath &aldar have atte'pted to !lai' in

    their respe!tive appeals that they !annot be

    penaliEed ith !o'pensation be!a+se they did not

    !hare any fee for treat'ent of the de!eased.

    +!h a !lai' has no leal basis as in vie of

    the !ateori!al observations 'ade by this Co+rt

    in Sa/&a ar:

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    ar:> !ase applies to the present !ase also

    insofar as it ansers the !ontentions raised

    before +s that the three senior do!tors did not

    !hare any professional fees.

    63. +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+sin death of a

    patient fro' 'edi!al nelien!e on the ro+nd

    that he did not !hare any fee. %f that as

    tr+e, poor patients ho are so'eti'es treated

    for free and patients in 'any !haritable

    &ospitals o+ld be Billed ith i'p+nity by

    errant and re!Bless do!tors. %t is +red that

    the National Co''ission o+ht to have !onsidered

    the !lai' 'ade for prospe!tive loss of in!o'e of

    the appellant/s ife and has !o''itted error in

    ree!tin the sa'e and it has also ree!ted the

    a'o+nt of the pe!+niary losses of this !lai'ant

    +nder separate headins hi!h are 'entioned in

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    the table referred to s+pra in!l+din epenses

    that ere paid at the dire!tion of the National

    Co''ission, na'ely, epenses relatin to video

    !onferen!in or pay'ent for the Co+rt

    Co''issioners. #ost of these dire!t losses ere

    s+ffered by the !lai'ant as a res+lt of the

    ronf+l death of his ife in the lon +est for

    +sti!e over the past 15 years as a res+lt of

    the ronf+l death of his ife. The National

    Co''ission did not provide any reason as to hy

    the said !lai's ere denied to hi', as per this

    Co+rt/s de!ision in C)ara% S%:)

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    65. +rther, the !lai'ant has taBen s+pport fro'

    the folloin 'edi!al nelien!e !ases de!ided

    by this Co+rt. %t as !ontended by the !lai'ant

    that o+t of these !ases not a sinle !ase as

    de!ided by +sin the '+ltiplier 'ethod, s+!h as,

    I%!a% M$!al A%.

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    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 ade+ate

    !o'pensation for death or in+ry !a+sed d+e to

    'edi!al nelien!e e!ept hen the National

    Co''ission de!ided the !lai'ant/s !ase after it

    as re'anded ba!B by this Co+rt. $elian!e  as

    pla!ed +pon Sarla V$rma> !ase -s+pra at

    pararaph 37, herein the prin!iple laid don

    for deter'inin !o'pensation +sin '+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 +red

    that death or per'anent in+ry to a patient

    !a+sed fro' 'edi!al nelien!e is +ndo+btedly a

    reprehensible a!t. Co'pensation for death of a

    patient fro' 'edi!al nelien!e !annot and

    sho+ld not be !o'pensated si'ply by +sin the

    '+ltiplier 'ethod. %n s+pport of this !ontention

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    he has pla!ed relian!e +pon the  N@am

    I%&&(&$> !ase -s+pra at pararaph "2,

    herein the Co+rt has ree!ted the spe!ifi!

    !lai' 'ade by the +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 as 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 ith the !ase of death fro' 'edi!al

    nelien!e +nder any !ondition. The aforesaid

    approa!h in adoptin the '+ltiplier 'ethod to

    deter'ine the +st !o'pensation o+ld be

    da'ain for so!iety for the reason that the

    r+les for +sin the '+ltiplier 'ethod to the

    notional in!o'e of only $s.15,000; per year

    o+ld be taBen as a '+ltipli!and. %n !ase, the

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    vi!ti' has no in!o'e then a '+ltiplier of 18 is

    the hihest '+ltiplier +sed +nder the provision

    of e!tions 163 A of the #otor

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    68. %t is f+rther +red by the !lai'ant that the

    National Co''ission has failed to aard any

    !o'pensation for the intense pain and s+fferin

    that the !lai'ant/s ife had to s+ffer d+e to

    the nelient treat'ent by do!tors and A#$%

    &ospital b+t the National Co''ission had 'ade a

    paltry aard e+ivalent to D 20,000 for the

    enor'o+s and lifelon pain, s+fferin, loss of

    !o'panionship and a'enities that the +nfort+nate

    !lai'ant has been p+t thro+ho+t his life by the

    nelient 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'aes for losses that he

    s+ffered +pto the date of trial as held by this

    Co+rt hile re'andin this 'atter in Mala5 '(mar

    a%:(l5/s !ase ba!B to the National Co''ission.

    Th+s, the !lai'ant filed a leiti'ate !lai' for

    spe!ial da'aes for the losses s+stained by hi'

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    in the !o+rse of 15 years lon trial in!l+din

    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 ree!tin the

    said !lai' hi!h is in violation of the

    observations 'ade in C)ara% S%:)>  !ase

    -s+pra.

    70. +rther, this Co+rt has affir'ed the

    prin!iple reardin deter'ination of +st

    !o'pensation in the folloin !ases that

    inflation sho+ld be !onsidered hile de!idin

    +ant+' of !o'pensation: R$)ma '(mar * Or.

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    !lai'ant in 1""8 o+ld be e+ivalent to

    $s.188.6 !rores as of 20122013. The

    'athe'ati!al !al!+lation in this reard has been

    presented in the short note s+b'itted by the

    !lai'ant. Th+s, the !o'pensation payable for the

    ronf+l death of !lai'ant/s ife o+ld stand

    today at $s.188.6 !rores and not $s.77.7 !rores

    as oriinally !lai'ed by hi' in 1""8 itho+t

    taBin into !onsideration the vario+s relevant

    aspe!ts referred to s+pra and proper +idan!e

    and advi!e in the 'atter.

    72. +rther, it is +red by the !lai'ant that he

    is entitled to interest on the !o'pensation at

    reasonable rate as the National Co''ission has

    aarded 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 ithin 8 eeBs

    after the +d'ent hi!h as delivered on

    4!tober 21, 2011. That 'eans, the National

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    Co''ission did not rant any interest for the

    last 15 years lon period on the !o'pensation

    aarded in favo+r of the !lai'ant as this !ase

    as pendin before the +di!ial syste' in %ndia

    for hi!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(ra5l Sara

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    ee'plary da'aes have been +stifiably aarded

    as a deterrent in the f+t+re for o+traeo+s and

    reprehensible a!t on the part of the a!!+sed. %n

    fa!t p+nitive da'aes are ro+tinely aarded in

    'edi!al nelien!e !ases in estern !o+ntries

    for re!Bless and reprehensible a!t by the

    do!tors or &ospitals in order to send a

    deterrent 'essae 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  ,$l)

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    instr+!tion reardin dire!tion for +se of the

    'edi!ine had not been folloed in the instant

    !ase. This Co+rt has also 'ade it !lear that the

    e!essive +se of the 'edi!ine by the do!tor as

    o+t of sheer inoran!e of basi! haEards relatin

    to the +se of steroids as also la!B of +d'ent.

    No do!tor has the riht to +se the dr+ beyond

    the 'ai'+' re!o''ended dose.

    7. The +pre'e Co+rt of 4hio in Dar!%:$r

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    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 ronf+lly

    apportioned the total a'o+nt of !o'pensation by

    losin siht of the observations 'ade by this

    Co+rt hile re'andin the !ase ba!B to it for

    deter'ination of the +ant+' of !o'pensation.

    This Co+rt did not 'aBe any observation as to

    ho the !o'pensation sho+ld be divided, as

    aarded by the National Co''ission. @!ept for

    the appellant)r. +B+'ar #+Bheree ho as

    i'posed ith a !ost of $s.5,00,000; this Co+rt

    did not i'pose !ost aainst any other do!tors

    even tho+h the Co+rt fo+nd other appellant

    do!tors also +ilty for 'edi!al nelien!e.

    77. %t is f+rther !ontended that the National

    Co''ission on 31st #ar!h, 2010 in S.P. A::aral

    95

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    &ospital and 20G aainst )r. +B+'ar #+Bheree.

    The !lai'ant has !lai'ed the da'aes as +nder :

    PECUNIARG DAMAES=

    A C+& a+a&$! &) &)$ /&m9 A%(ra!)a Sa)a

    1 Hoss of prospe!tive;f+t+re

    earnin +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,,00,000;

    3 aid for treat'ent at

    A#$%;9rea!h Candy &ospital

    $s.12,00,000;

    aid for !hartered fliht to

    transfer An+radha

    $s. ",00,000;

    5 Travel;hotel;other epenses

    d+rin An+radha/s treat'ent in

    #+'bai; *olBata in 1""8

    $s. 7,00,000;

    6 aid for !o+rt pro!eedins

    in!l+din video !onferen!in

    fro' F..A.

    $s.11,57,000;

    9 C+& a+a&$! &) A%(ra!)a> )(

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    1 Hoss of !o'panionship and life

    a'enities

    $s.13,50,00,000;

    2 @'otional distress, pain and

    s+fferin for h+sband

    $s.50,00,000;

    3 ain;s+fferin end+red by the

    vi!ti' d+rin therapy

    $s.,50,00,000;

    Total non pe!+niary da'aes $s.31,50,00,000;

    ) PUNITIVEEEMPLARG DAMAES $s.13,50,00,000;

    @ SPECIAL DAMAES $s.18,00,00,000;

      T+&al $s."7,56,07,000;

    Therefore, the !lai'ant has prayed for alloin his

    appeal by aardin +st and reasonable !o'pensation

    +nder vario+s heads as !lai'ed by hi'.

    7". 4n the basis of the rival leal fa!t+al and

    !ontentions +red on behalf of the respe!tive

    do!torappellants, &ospital and the !lai'ant,

    the folloin points o+ld arise for

    !onsideration of this Co+rt:

    1 =hether the !lai' of the !lai'ant

    for enhan!e'ent of !o'pensation in his

    appeal is +stified. %f it is so, for

    hat !o'pensation he is entitled toK

    98

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    2 =hile 'aBin additional !lai' by ay

    of affidavit before the National

    Co''ission hen a'endin the !lai'

    petition, hether the !lai'ant is

    entitled for !o'pensation on the

    enhan!ed !lai' preferred before the

    National Co''issionK

    3-a =hether the !lai'ant seeBin to a'end

    the !lai' of !o'pensation +nder !ertain

    heads in the oriinal !lai' petition has

    forfeited his riht of !lai' +nder 4rder

    %% $+le 2 of CC as pleaded by the A#$%

    &ospitalK

    3-b =hether the !lai'ant is +stified in

    !lai'in additional a'o+nt for

    !o'pensation +nder different heads itho+t

    folloin the pro!ed+re !onte'plated +nder

    the provisions of the Cons+'er rote!tion

    A!t and the $+lesK

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    . =hether the National Co''ission is

    +stified in adoptin the '+ltiplier

    'ethod to deter'ine the !o'pensation and

    to aard the !o'pensation in favo+r of

    the !lai'antK

    5. =hether the !lai'ant is entitled to

    pe!+niary da'aes +nder the heads of

    loss of e'ploy'ent, loss of his property

    and his travelin epenses fro' F..A.

    to %ndia to !ond+!t the pro!eedins in

    his !lai' petitionK

    6.=hether the !lai'ant is entitled to the

    interest on the !o'pensation that o+ld

    be aardedK

    7. =hether the !o'pensation aarded in

    the i'p+ned +d'ent and the

    apportion'ent of the !o'pensation a'o+nt

    fastened +pon the do!tors and the hospital

    re+ires interferen!e and hether the

    !lai'ant is liable for !ontrib+tory

    100

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    nelien!e and ded+!tion of !o'pensation

    +nder this headK

    8. To hat 4rder and Aard the !lai'ant

    is entitled to in these appealsK

    80. %t o+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+ht

    for enhan!e'ent of !o'pensation. %f e anser

    his !lai' then the other iss+es that o+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 o+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 ansered by re!ordin the

    folloin reasons:

     A%$r &+ P+%& %+. 19 2 a%! 4

    101

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    81. oint Nos. 1, 2 and 3 are taBen +p toether

    and ansered sin!e they are inter related.

    The !lai' for enhan!e'ent of !o'pensation by

    the !lai'ant in his appeal is +stified for the

    folloin reasons:

    The National Co''ission has ree!ted the !lai'

    of the !lai'ant for IinflationM 'ade by hi' itho+t

    assinin any reason hatsoever. %t is an

    +ndisp+ted fa!t that the !lai' of the !o'plainant

    has been pendin before the National Co''ission and

    this Co+rt for the last 15 years. The val+e of

    'oney that as !lai'ed in 1""8 has been deval+ed to

    a reat etent. This Co+rt in vario+s folloin

    !ases has repeatedly affir'ed that inflation of

    'oney sho+ld be !onsidered hile de!idin the

    +ant+' of !o'pensation:

    I% R$)ma '(mar a%! Or.

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    I7.4ne of the in!idental iss+es hi!h

    has also to be taBen into !onsideration

    is inflation. %s the pra!ti!e of taBin

    inflation into !onsideration hollyin!orre!tK Fnfort+nately, +nliBe other

    developed !o+ntries in %ndia there has

    been no s!ientifi! st+dy. %t is epe!ted

    that ith the risin inflation the rate

    of interest o+ld o +p. %n %ndia it does

    not happen. %t, therefore, 'ay be a

    relevant fa!tor hi!h 'ay be taBen into

    !onsideration for deter'inin the a!t+al

    ro+nd reality. No hardandfast r+le,

    hoever, !an be laid don therefor.M

      %n +/%! Ga!a/

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    This Co+rt !annot also lose siht of the

    fa!t that in iven !ases, as for ea'ple

    death of the only son to a 'other, she !an

    never be !o'pensated in 'onetary ter's." . The +estion as to the 'ethodoloy

    re+ired to be applied for deter'ination

    of !o'pensation as reards prospe!tive

    loss of f+t+re earnins, hoever, as far

    as possible sho+ld be based on !ertain

    prin!iples. A person 'ay have a briht

    f+t+re prospe!t> he 'iht have be!o'e

    eliible to pro'otion i''ediately> there

    'iht have been !han!es of an i''ediate

    pay revision, hereas in another -si!

    sit+ation the nat+re of e'ploy'ent as

    s+!h that he 'iht not have !ontin+ed in

    servi!e> his !han!e of pro'otion, havin

    reard 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 don riid

    tests hi!h sho+ld be applied in all

    sit+ations. There are diverent vies. %n

    so'e !ases it has been s+ested that so'esort of hypotheses or +essorB 'ay be

    inevitable. That 'ay be so./

    #!. $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

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    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 whichthe 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 inan!e

    #inistry of Fnion of %ndia every year in order

    to appre!iate the level of deval+ation of 'oney

    ea!h year. Fsin the C.%.%. as p+blished by the

    ?overn'ent of %ndia, the oriinal !lai' of

    $s.77.7 !rores preferred by the !lai'ant in 1""8

    o+ld be e+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

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    and before this Co+rt is leally +stifiable as

    this Co+rt is re+ired to deter'ine the +st,

    fair and reasonable !o'pensation. Therefore, the

    !ontention +red by the appellantdo!tors and

    the A#$% &ospital that in the absen!e of

    pleadins in the !lai' petition before the

    National Co''ission and also in the liht of the

    in!ident that the s+bse+ent appli!ation filed

    by the !lai'ant seeBin for a'end'ent to the

    !lai' in the prayer of the !o'plainant bein

    ree!ted, the additional !lai' 'ade by the

    !lai'ant !annot be ea'ined for rant of

    !o'pensation +nder different heads is holly

    +ns+stainable in la in vie of the de!isions

    rendered by this Co+rt in the aforesaid !ases.

    Therefore, this Co+rt is re+ired to !onsider

    the relevant aspe!t of the 'atter na'ely, that

    there has been steady inflation hi!h sho+ld

    have been !onsidered over period of 15 years and

    that 'oney has been deval+ed reatly. Therefore,

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    the de!ision of the National Co''ission in

    !onfinin the rant of !o'pensation to the

    oriinal !lai' of $s.77.7 !rores preferred by

    the !lai'ant +nder different heads and aardin

    'eaer !o'pensation +nder the different heads in

    the i'p+ned +d'ent, is holly +ns+stainable

    in la as the sa'e is !ontrary to the leal

    prin!iples laid don by this Co+rt in !atena of

    !ases referred to s+pra. =e, therefore, allo

    the !lai' of the !lai'ant on enhan!e'ent of

    !o'pensation to the etent to be dire!ted by

    this Co+rt in the folloin pararaphs.

    83. 9esides enhan!e'ent of !o'pensation, the

    !lai'ant has so+ht 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 hi!h o+ld have never happened b+t for

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    the ronf+l death of his ife. The !lai'ant

    has pla!ed relian!e on the f+nda'ental prin!iple

    to be folloed by the Trib+nals, )istri!t

    Cons+'er or+', tate Cons+'er or+', and the

    National Co''ission and the !o+rts for aardin

    +st !o'pensation/. %n s+pport of this

    !ontention, he has also stronly pla!ed relian!e

    +pon the observations 'ade at para 170 in the

     Malay Kumar Ganguly’s !ase referred to s+pra

    herein this Co+rt has 'ade observations as

    th+s:

    I170. %ndisp+tably, rant of !o'pensationinvolvin an a!!ident is ithin the real'

    of la of torts. %t is based on the

    prin!iple of restitutio in integrum. The

    said prin!iple provides that a person

    entitled to da'aes sho+ld, as nearly as

    possible, et that s+' of 'oney hi!h

    o+ld p+t hi' in the sa'e position as he

    o+ld have been if he had not s+stained

    the ron. -ee i&ingstone  v. Raw)ards

    +oal +o.M

      The !lai'ant 'ade a !lai' +nder spe!ifi! heads

    in reat detail in +stifi!ation for ea!h one of

    108

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    the !lai' 'ade by hi'. The National Co''ission,

    despite taBin +di!ial noti!e of the !lai' 'ade by

    the !lai'ant in its +d'ent, has ree!ted the

    entire !lai' solely on the ro+nd that the

    additional !lai' as not pleaded earlier,

    therefore, none of the !lai's 'ade by hi' !an be

    !onsidered. The ree!tion of the additional !lai's

    by the National Co''ission itho+t !onsideration on

    the ass+'ption that the !lai's 'ade by the !lai'ant

    before the National Co''ission !annot be !haned or

    'odified itho+t pleadins +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:

    -a %n N%:amma> !ase -s+pra, this Co+rt has

    observed at para 3 hi!h reads th+s:

    I3. Fndo+btedly, e!tion 166 of the #

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    deprived fro' ettin I+st !o'pensationM

    in !ase the !lai'ant is able to 'aBe o+t

    a !ase +nder any provision of la.

    Needless to say, the #

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      ! %n  N@am I%&&(&$> !ase s+pra, the

    !o'plainant had so+ht a !o'pensation of $s..61

    !rores before the National Co''ission b+t he

    enhan!ed his !lai' to $s 7.50 !rores hen the

    'atter !a'e +p before this Co+rt. %n response to

    the !lai', this Co+rt held as +nder:

    I82. The !o'plainant, ho has ar+ed his

    on !ase, has s+b'itted rit