Holding

The hospital and the three doctors owed a duty of care, breached it by failing to conduct or advise the ROP screening, and are jointly and severally liable for the resulting blindness, warranting enhanced compensation.

Summary

The case arose from a complaint by the mother of a pre‑term baby who became totally blind due to alleged failure to screen for Retinopathy of Prematurity (ROP). The National Consumer Disputes Redressal Commission held the hospital and three doctors negligent and awarded Rs. 64,00,000 in compensation. On appeal, the Supreme Court examined whether the defendants owed a legal duty of care, breached it by not conducting or advising the ROP test, and whether the delay in providing medical records constituted professional misconduct under the Indian Medical Council Regulations. The Court affirmed the lower tribunal's findings of gross negligence, vicarious liability of the hospital for its doctors, and ordered enhanced compensation of Rs. 76,00,000 with specific investment directions for the child's welfare. It also dismissed the hospital’s appeal while allowing the complainants’ appeal for higher compensation.

Issues considered

The existence and scope of a legal duty of care owed by the hospital and doctors to a pre‑term infant.
Whether failure to advise and perform mandatory ROP screening constitutes breach of that duty.
Whether the inordinate delay in providing medical records amounts to professional misconduct under IMC Regulations.
The applicability of vicarious liability of the hospital for the acts of its doctors.
The adequacy of the compensation awarded by the National Commission.

Legislation cited

Consumer Protection Act, 1986s. Section 21(a)(i)
Income Tax Act, 1961s. Section 80U
Indian Medical Council Act, 1956s. Section 20A, s. Section 33(m)
Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002s. Regulation 1.3.2, s. Regulation 7, s. Regulation 8

Subjects

medical negligenceretinopathy of prematurityduty of careprofessional misconductIndian Medical Council Regulationsvicarious liabilityconsumer protectioncompensationBolam testMontgomery principle

Judgment

[2019] 16 S.C.R. 1185 1185

MAHARAJA AGRASEN HOSPITAL & ORS. A
v.
MASTER RISHABH SHARMA & ORS.
(Civil Appeal No. 6619 of 2016)
DECEMBER 16, 2019 B
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Medical Negligence – Respondents Nos. 1 to 3-complainants
filed a complaint of medical negligence against appellant No. 1-
hospital and appellant Nos. 2 to 4-the Paediatricians and C
ophthalmologist doctors working with the hospital and respondent
No. 4-the Gynaecologist before the National Consumer Disputes
Redressal Commission – NCDRC held the appellant no. 1-hospital
guilty of medical negligence, since they failed to carry out the
mandatory check up of Retinopathy of Prematurity (ROP) on
respondent No. 1, who was a pre-term baby, which led to his total D
blindness and appellants Nos. 1 to 4 were jointly held liable to
pay the total amount of Rs. 64,00,000/- – On appeal, held: The
appellants owed a legal duty of care to the complainants/
respondents Nos. 1 & 2 – The failure to inform the respondent
No.2- mother of the respondent No. 1 of the necessity to have the E
ROP test conducted in the case of a pre-term baby and the high
risk involved which could lead total blindness, was a breach of
duty – Furthermore, the failure to carry out the ROP test, which is
mandated by standard protocol, while the baby was under their
direct care and supervision from birth till he was 3 and 1/2 months
F
old, amounted to gross negligence by the doctors and deficiency
of service by the hospital – Besides, there was inordinate delay of
over 2 years by appellant Nos. 1 in making the medical records of
respondent no.1 available to respondent no.2 and same would
constitute a grave professional misconduct u/regn. 7 of the IMC
regulations, apart from being a gross deficiency in service – The G
findings of the NCDRC affirmed and compensation of Rs.
76,00,000/- awarded to respondent no. 1 – Consumer Protection
– Deficiency in service – Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002 – Regulation
1.3.2. H
1185
1186 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Medical negligence – Constituents of – Held: Medical
negligence comprises of the following constituents: (1) A legal duty
to exercise due care on the part of the medical professional; (2)
failure to inform the patient of the risks involved; (3) the patient
suffers damage as a consequence of the undisclosed risk by the
B medical professional; (4) if the risk had been disclosed, the patient
would have avoided the injury; (5) breach of the said duty would
give rise to an actionable claim of negligence.
Medical negligence – Cause of action for – Held: The cause
of action for negligence arises only when damage occurs, since
C damage is a necessary ingredient of this tort – In a complaint of
medical negligence, the burden is on the complainant to prove
breach of duty, injury and causation – The injury must be
sufficiently proximate to the medical practitioner’s breach of duty
– In the absence of evidence to the contrary adduced by the
D opposite party, an inference of causation may be drawn even
though positive or scientific proof is lacking.
Doctrines/Principles – Vicarious Liability – discussed.
Medical Negligence – Bolam Test – discussed.
Disposing of the appeals, the Court
E
Inordinate Delay in Supply of Medical Records
HELD: 1.1 There was an inordinate delay of over 2 years
in making the Medical Records of Respondent No.1 available
to the Respondent No.2-Complainant. Regulation 1.3.2 of the
F Indian Medical Council (Professional Conduct, Etiquettes and
Ethics) Regulations, 2002 casts a statutory obligation upon every
doctor/hospital to provide medical records within 72 hours of the
request being made by the patient. [Para 11.1] [1203-C-D]
1.2 As per Regulation 7, if the doctor refuses or fails to
G provide the medical records within 72 hours when the patient
or his/her authorised representative makes a request as per the
Regulation 1.3.2, the said act of commission or omission would
constitute professional misconduct rendering him/her liable for
disciplinary action and punishment under Regulation 8. [Para
H 11.1.2] [1204-D]
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1187
RISHABH SHARMA & ORS.

1.3 The withholding the medical records of Respondent A
No.1, who was a premature baby, for a period of over 2 years,
would constitute grave professional misconduct under
Regulation 7, apart from being a gross deficiency in service on
the part of the Appellant No.1-Hospital and its management.
[Para 11.1.7] [1206-G; 1207-A]
B
Failure to diagnose Retinopathy of Prematurity (ROP)
2.1 The ROP was neither advised, nor carried out at all
by the Appellant No.1- Hospital, or Appellant No.4-the Senior
Ophthalmologist, throughout the period of hospitalisation of the
baby, or even after discharge. The baby was born in the 32nd C
gestational week, and was 1.49 kgs at birth. As per standard
protocol, the ROP screening ought to have been done between
3-4 weeks from birth. The baby remained admitted for 27 days
in the Hospital from 02.04.2005 to 29.04.2005. There is no
justification whatsoever why the mandatory screening of ROP
D
was not done for the baby, while he was under the direct care
and supervision of the Appellants. [Para 11.2.10] [1215-G-H;
1216-A]
Medical Negligence and Duty of Care
3.1 Medical negligence comprises of the following E
constituents: (1) A legal duty to exercise due care on the part
of the medical professional; (2) failure to inform the patient of
the risks involved; (3) the patient suffers damage as a
consequence of the undisclosed risk by the medical professional;
(4) if the risk had been disclosed, the patient would have avoided
F
the injury; (5) breach of the said duty would give rise to an
actionable claim of negligence. [Para 11.4.1] [1217-D]
3.2 The cause of action for negligence arises only when
damage occurs, since damage is a necessary ingredient of this
tort. In a complaint of medical negligence, the burden is on the
G
complainant to prove breach of duty, injury and causation. The
injury must be sufficiently proximate to the medical
practitioner’s breach of duty. In the absence of evidence to the
contrary adduced by the opposite party, an inference of causation
may be drawn even though positive or scientific proof is lacking.
[Para 11.4.1] [1217-E-F] H
1188 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 3.3 Medical negligence is the breach of a duty of care by
an act of omission or commission by a medical professional of
ordinary prudence. Actionable medical negligence is the neglect
in exercising a reasonable degree of skill and knowledge to the
patient, to whom he owes a duty of care, which has resulted in
injury to such person. The standard to be applied for adjudging
B
whether the medical professional charged has been negligent or
not, in the performance of his duty, would be that of an ordinary
competent person exercising ordinary skill in the profession.
The law requires neither the very highest nor a very low degree
of care and competence to adjudge whether the medical
C professional has been negligent in the treatment of the patient.
[Para 11.4.2] [1217-F-G; 1218-A]
3.4 In the present case, Appellant Nos. 2 and 3-the
Consultant Paediatricians, undoubtedly possessed the skill and
qualifications of a Paediatrician, and the baby was placed under
D their direct care and treatment from birth till he was 3 ½ months
old. They owed a duty of care to the baby and his parents.
Appellant No.4-the Senior Consultant Ophthalmologist, who was
engaged by the Appellant No.1-Hospital, and was the specialist
in the Ophthalmology Department, ought to have followed the
standard protocol for screening the Respondent No.1-baby for
E ROP, which is prescribed at the chronological age of 3 to 4
weeks after birth. [Para 11.4.13] [1227-D-E]
3.5 Appellant Nos.1 to 3 are liable for medical negligence
since at no stage were the parents of Complainant No.1 either
advised or guided about the possibility of occurrence of ROP in
F a premature baby, nor was the baby examined by Appellant No.4,
the Ophthalmologist as per standard protocol. The doctors ought
to have been fully aware of the high chances of occurrence of
ROP in a pre-term baby. The lack of care constitutes a gross
deficiency in service. After discharge on 29.04.2005, the baby
was brought on 04.05.2005 at the chronological age of 5 weeks.
G
Even on this date, no ROP test was either advised or conducted.
The baby was brought for a further follow up check-up on
13.07.2005, by which time the baby was 3 ½ months old. Even
on this visit, the Appellants did not advise or guide the
Respondent No.2-Complainant to have the ROP test conducted.
H [Para 11.4.14] [1227-F-G]
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1189
RISHABH SHARMA & ORS.

3.6 This Court affirms the findings of the National A
Commission to hold that the Appellant No.1-Hospital, Appellant
Nos. 2 and 3- the Paediatricians, and Appellant No.4- the Senior
Ophthalmologist, owed a legal duty of care to the Complainants/
Respondents No.1 and 2. The failure to inform the Respondent
No.2-mother of the necessity to have the ROP test conducted B
in the case of a pre-term baby, and the high risk involved which
could lead to total blindness, was a breach of duty. Furthermore,
the failure to carry out the ROP test, which is mandated by
standard protocol, while the baby was under their direct care and
supervision from birth till he was 3 ½ months old, amounted to
C
gross negligence by the Doctors, and deficiency of service by
the Hospital. The consequential damage caused to the baby by
not having conducted the mandatory ROP test, which led to the
total blindess of the baby, has given rise to an actionable claim
of negligence. [Para 11.4.16] [1228-E-F]
D
V. Krishnakumar v. State of Tamil Nadu (2015) 9 SCC
388 : [2015] 8 SCR 100 ; Jacob Mathew v. State of
Punjab (2005) 6 SCC 1 : [2005] 2 Suppl. SCR 307 ;
V. Kishan Rao v. Nikhil Super Speciality Hospital
(2010) 5 SCC 513 : [2010] 5 SCR 1 – relied on
E
Federation of Obstetrics & Gynaecological Societies
of India v. Union of India (2019) 6 SCC 283 ; Ramesh
Chandra Aggarwal v. Regence Hospital Ltd. & Ors.
(2009) 9 SCC 709 : [2009] 14 SCR 424 ; Malay
Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9
SCC 221 : [2009] 13 SCR 1 ; V. Kishan Rao v. Nikhil F
Super Speciality Hospital, (2010) 5 SCC 513 : [2010]
5 SCR 1 ; Nizam’s Institute of Medical Sciences v.
Prasanth S. Dhananka, (2009) 6 SCC 1 : [2009] 9
SCR 313 ; Savita Garg v. National Heart Institute
(2004) 8 SCC 56 : [2004] 5 Suppl. SCR 359 ; G
Postgraduate Institute of Medical Education &
Research v. Jaspal Singh, (2009) 7 SCC 330 : [2009]
9 SCR 889 ; Laxman Balkrishna Joshi (Dr.) v. Dr.
Trimbak Bapu Godbole, [1969] 1 SCR 206 ; Kusum
Sharma v. Batra Hospital (2010) 3 SCC 480 : [2010] H
1190 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 2 SCR 685 ; S.K. Jhunjhunwala v. Dhanwanti Kaur,
(2019) 2 SCC 28 ; Arun Kumar Manglik v. Chirayu
Health and Medicare (P) Ltd. (2019) 7 SCC 401 :
[2019] 3 SCR 281 ; Balram Prasad (2014) 1 SCC 384
: [2013] 12 SCR 30 ; Livingstone v. Rawyards Coal
B Co., (1880) LR 5 AC 25 (HL) ; Achutrao Haribhau
Khodwa v. State of Maharashtra (1996) 2 SCC 634 :
[1996] 2 SCR 881 ; State of H.P. v. Jai Lal (1999) 7
SCC 280 : [1999] 2 Suppl. SCR 318 – referred to.
Hucks v. Cole (1968) 118 New LJ 469 ; Bolam v.
C Friern Hospital Management Committee, (1957) 1
WLR 582 ; Eckersley v. Binnie (1988) 18 Con LR 1 ;
Bolitho v. City and Hackney Health Authority (1998)
1 AC 232 [1957] 1 W.L.R. 583, 587 ; Rogers v.
Whitaker (1992) 109 Aus LR 625 ; Montgomery v.
D Lanarkshire Health Board [2015] UKSC 11– referred
to.
Halsbury’s Laws of England 4th Edn., Vol. 26 pp. 17-
18
Case Law Reference
E
(2019) 6 SCC 283 referred to Para 11.1.5
[2009] 9 SCR 313 referred to Para 11.2.1
[2005] 2 Suppl. SCR 307 relied on Para 11.2.1
F [2015] 8 SCR 100 relied on Para 11.2.
[2009] 14 SCR 424 referred to Para 11.3.2
[1999] 2 Suppl. SCR 318 referred to Para 11.3.2
[2009] 13 SCR 1 referred to Para 11.3.2
G
[2010] 5 SCR 1 relied on Para 11.3.2
[2004] 5 Suppl. SCR 359 referred to Para 11.3.2
[2009] 9 SCR 889 referred to Para 11.4.2
H [1969] 1 SCR 206 referred to Para 11.4.3
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1191
RISHABH SHARMA & ORS.

[2010] 2 SCR 685 referred to Para 11.4.3 A
(2019) 2 SCC 28 referred to Para 11.4.6
[2010] 5 SCR 1 referred to Para 11.4.11
[2019] 3 SCR 281 referred to Para 11.4.12
[2004] 5 Suppl. SCR 359 referred to Para 11.4.17 B
[2013] 12 SCR 30 referred to Para 11.4.17
[1996] 2 SCR 881 referred to Para 11.4.17
(2015) 9 SCC 388 referred to Para 11.4.17
(2009) 9 SCC 221 referred to Para 11.5.4 C

[2015] 8 SCR 100 referred to Para 11.5.4
[2013] 12 SCR 30 referred to Para 11.5.4
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6619
of 2016. D

From the Judgment and Order dated 10.05.2016 of the National
Consumer Disputes Redressal Commission at New Delhi in Consumer
Complaint No. 119 of 2007
With
E
Civil Appeal No. 9461 of 2019.
Gaurav Goel, Sidharth Arora, Harshit Goel, Sameer Shrivastava
(With Ms. Pooja Sharma and Master Rishabh Sharma), Gautam
Narayan, Neeraj K. Gupta, A.K. Sharma, Anjani Kumar, Ranjeet Kumar
Singh, Anil Kumar, Ms. Manisha Ambwani, Advs. for the appearing F
parties.
The Judgment of the Court was delivered by
INDU MALHOTRA, J.
1. The present Civil Appeals arise out of a complaint of medical G
negligence made by Respondent Nos. 1 to 3 – the Complainants against
the Appellant No.1 – Hospital and Appellant Nos. 2 to 4 – the
Paediatricians and Ophthalmologist Doctors working with the Appellant
No.1-Hospital, and Respondent No.4- the Gynaecologist, before the
National Consumer Disputes Redressal Commission (hereinafter
referred to as the “National Commission”). H
1192 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 2. The National Commission vide Judgment and Order dated
10.05.2016 (“impugned Judgment”) allowed the consumer complaint,
and held the Appellant No.1 – Hospital, and Appellant Nos. 2 to 4 –
Doctors guilty of medical negligence, since they failed to carry out the
mandatory check up of Retinopathy of Prematurity (“ROP”) on
Respondent No.1-Master Rishabh, who was a pre-term baby, which
B led to his total blindness. In so far as Respondent No.4- Dr. Rama
Sharma, the Gynaecologist is concerned, who had delivered the baby,
she was exonerated by the National Commission, and has not been
pressed before this Court.
3. Aggrieved by the impugned Judgment passed by the National
C Commission, the Appellant No.1- Maharaja Agrasen Hospital, a super
speciality hospital, Appellant No.2 -Dr. G.S. Kochhar and Appellant
No.3- Dr. Naveen Jain, the Consultant Paediatricians working for the
Appellant No.1 – Hospital, and Appellant No.4-Dr. S.N. Jha, the Senior
Consultant Ophthalmologist working for the Appellant No.1-Hospital
D have filed Civil Appeal No. 6619 of 2016.
4. Respondent No.1-Master Rishab Sharma, is the child-patient,
who was Complainant No.1 before the National Commission, and was
represented by his widowed mother Pooja Sharma – Respondent No.2/
the Complainant No.2. Respondent No.3 is the elder brother of
Respondent No.1.
E
The Complainants have filed Civil Appeal No. 9461 of 2019
(Diary No. 15393 of 2019) before this Court for further enhancement
of the compensation awarded by the National Commission.
5. The background facts in which the present Civil Appeals have
F been filed are as under:-
5.1 Respondent No.2-Pooja Sharma – the Complainant No.2 was
under the ante-natal care of Respondent No.4-Dr. Rama Sharma at
Sharma Medical Centre since September 2005.
5.2 On 02.04.2005, at about 5.30 p.m., the Respondent No.2 had
G to undergo a caesarean section in view of the condition of Placenta
Previa. The baby-Respondent No.1 was born pre-term at 32 weeks’
gestation, with a weight of 1.49 kg at the time of birth.
5.3 On the same day, at about 8:30 p.m., Respondent No.4- Dr.
Rama Sharma, the Gynaecologist referred the case for intensive care
H to Maharaja Agrasen Hospital- Appellant No.1.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1193
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

At the time of admission, the general condition of the baby was A
poor, and was diagnosed as “32 weeks pre-term AGA with HMD”.
The baby was treated in the Neo-natal ICU of the Paediatrics Unit
and was put on ventilatory support, and Surfactant injections were
administered gradually.
5.4 The Respondent No.1-baby stayed in the Appellant No.1- B
Hospital for almost 4 weeks, and was discharged on 29.04.2005, which
was 27 days after birth.
The Discharge Slip issued by the Appellant No.1-Hospital to the
Complainants reads as follows:
C
“ Maharaja Agrasen Hospital
Punjabi Bagh, New Delhi-110026, Ph. 25106645 to 54
DISCHARGE SLIP
Hospital No. 505404. Ward: NICU Deptt./Unit: Paed-III.
Name: B/O. Pooja Sharma Age/Sex NB/M. D

Date of Admission: 02.04.2005 at 8.30 p.m.
Date of Discharge: 29.04.2005
Diagnosis: PT (32) with HMD with Neonatal Hyperbil with B/L
Pneumothorax Fungal Septicemia. E

Condition at time of discharge: Satisfactory.
Consultants: Dr. G.S.Kochar /Dr. N. Jain
DOB: 02.04.2005.
F
Sex: Male.
Birth weight: 1.49 kg.
Weight at discharge: 1.56 kg.
Mode: Emergency LSCS for placenta previa. G
FOLLOW UP ADVICE:
Syp. Taxim O 1 ml BD x 5 d.
Syp. Osteocalcium TDS.
Drops Visyneral Z 0.3 ml OD. H
1194 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Drop Vitcofol 5 drops OD.
Drop Evion 5 drops OD
To review in Pead. OPD on Wed / Sat 4 p.m.
Refer back to Rama Nursing Home (Sharma Medical
B Centre)
_____________ ______-sd-____________
Consultant Medical Officer ”
5.5 There is no advice to the Complainants to have the ROP test
carried out on the baby, who was born prematurely, in the Discharge
C Slip. Post discharge, the Respondent No.2-Complainant brought the baby
for a follow up check-up on 04.05.2005 to the Paediatrics Unit of the
General OPD of the Appellant No.1-Hospital, when the baby was 4
weeks and 4 days old. The baby was examined by the Consultant
Paediatricians - Dr. G.S. Kochhar and Dr. Naveen Jain/ Appellants No.
D 2 and 3.
As per the medical records, the Respondent No.1-baby was
found to be stable, and Respondent No.2-Complainant was advised to
continue breast feeding along with supplements.
It is pertinent to note that there was no advice or recommendation
E for ROP check-up on this date in the Medical Records produced by
the Appellant No.1 –Hospital.
5.6 On 13.07.2005, the Respondent No.2-Complainant brought
the baby for a 2nd follow-up visit when he was over 3 months old to
the Paediatrics Unit of the General OPD of the Appellant No.1-Hospital.
F The Respondent No.1-baby was examined by Dr. Manoj on behalf of
Dr. G.S. Kochhar. Dr. Manoj advised the Complainants for the BERA
scan/test to be conducted.
It is pertinent to note that there was no advice for ROP check-
up given even on this visit.
G 5.7 Respondent No.2-Complainant submits that sometime in
November 2005, she noticed abnormal visual responses in the
Respondent No.1 – baby. The Complainant asked for the medical
records of the baby to have his follow up treatment done.
The medical records were, however, not made available by
H Appellant No.1-Hospital.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1195
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

5.8 On 23.11.2005, Respondent No.2 – Complainant took the A
baby to Nayantara Eye Clinic, Delhi where an ultrasound (B. Scan)
was conducted. It was advised that eye-ointment and eye-drops be
administered to the baby.
5.9 On 03.12.2005, the baby was taken by Respondent No.2-
Complainant to Shroff Charity Eye Hospital, Delhi for further B
examination where the ultrasound (B. Scan) was conducted. The Shroff
Charity Eye Hospital diagnosed that the baby had ROP Stage 5 in both
eyes, which is a case of total retinal detachment.
5.10 Respondent No.2-Complainant approached Respondent
No.4- Dr Rama Sharma, the Gynaecologist of Sharma Medical Centre C
to explain how the medical condition of Respondent No.1-baby had
remained un-diagnosed. Dr. Rama Sharma shifted the blame to the
Appellants.
5.11 On 07.12.2005, Respondent No.2-Complainant took the baby
to the Appellant No.1-Hospital in the Private OPD Consultation. Dr. D
Sanjay Bhavan, Ophthalmologist examined Respondent No.1-baby. The
case was referred to Dr. Lingam Gopal of Shankara Netralaya at
Chennai for an urgent appointment.
5.12 On 07.01.2006, the Respondent No.1-baby was taken by
his mother- Respondent No.2-Complainant to Dr. Rajendra Prasad E
Centre for Ophthalmic Sciences at AIIMS, New Delhi for OPD
Consultation. After examination, it was confirmed that it was a case
of ROP Stage 5.
5.13 On 24.02.2007, the Respondent No.2-Complainant was
constrained to issue a legal notice to the Appellant No.1-Hospital to F
provide the entire in-patient medical records of the baby in compliance
with Regulation 1.3.2 of the Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002 (“IMC
Regulations”).
5.14 The Appellant Nos. 1 to 3 failed to provide the in-patient G
medical records to the Complainant despite the issuance of legal notice.
5.15 The Respondent No.2-Complainant then filed a complaint
with the Delhi Medical Council for a direction to the Appellant No.1-
Hospital to provide the complete in-patient medical records pertaining
to the baby. H
1196 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 5.16 Eventually, the Appellant No.1-Hospital provided a copy of
the medical records of the baby alongwith the Case Summary on
14.06.2007 after more than 2 years of discharge from the Appellant
No.1-Hospital.
5.17 The Respondent No.2-Complainant contends that when she
B received these records, she was shocked to find that the medical
records mentioned an alleged ROP check-up was conducted on
26.04.2005 by Appellant No.4-Dr. S.N. Jha. The Respondent No.2-
Complainant contends that no ROP examination was conducted by
Appellant No.4-Dr. S.N. Jha.
C 5.18 On 04.08.2007, the Respondent No.2-Complainant addressed
a letter to the Medical Superintendent of Appellant No.1- Hospital. The
relevant extract of the said letter is reproduced hereinbelow for ready
reference:
“Under the above enclosure we have received photocopies
D of some Medical Record (uncertified) along with a case
summary dated 13-06-2007.
The said summary states that on 26-04-2007 ROP
examination on our baby was conducted in the
Ophthalmological unit of your hospital and review
E examination after two weeks was also advised.
We are rather intrigued by this observation as it does not
find mention anywhere in the Discharge Summary nor is there
any follow up advise.
Since both of us do not recollect any such examination
F
conducted in our presence or review advise and the said
medical record is also totally silent about it, kindly provide
us with the entire record of the Ophthalmological unit, name
of the Paediatric Ophthalmologist who had conducted the
ROP examination and his written report dated 26-04-2006.”
G
[emphasis supplied]
5.19 Appellant No.1- Hospital replied to the letter on 24.08.2007,
wherein it was stated that:
“As per standard neonatal protocol, ophthalmological check-
H up was requested on 25-04-2005 to rule out ROP.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1197
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

The ophthalmological examination was done in the Nursery A
on 26-04-2005 morning by Dr. S. N. Jha, Senior Consultant
Ophthalmologist. The written report of the Ophthalmological
unit is stated on page no.102 of the case record.”
[emphasis supplied]
5.20 On 19.11.2007, Respondent Nos. 1 to 3 filed a Consumer B
Complaint under Section 21 (a)(i) of the Consumer Protection Act, 1986
before the National Commission [Consumer Case No. 119 Of 2007]
claiming compensation of Rs. 1,30,25,000/- alleging medical negligence
and deficiency in service on the part of Appellant Nos. 1 to 4, and
Respondent No.4- the Gynaecologist, for compensation for the C
permanent physical disability, mental agony, and social stigma, deprivation
of normal human life, companionship, torture and harassment etc.
5.21 The Delhi Medical Council vide order dated 14.12.2007
issued a warning to the Appellant No.1-Hospital for the delay in
supplying the medical records of the Respondent No.1-baby to the D
Complainant.
5.22 The National Commission vide Order dated 29.02.2012
directed the Medical Board, AIIMS to give an expert opinion in the
matter.
E
5.23 The Medical Board of AIIMS submitted its Report dated
11.05.2012 to the National Commission. The Report states that as per
standard guidelines (National Neonatology Forum), new born babies who
are born at 32 weeks’ gestation or less, should have their eyes examined
at 3-4 weeks of age and more frequent check-ups to be done thereafter.
Appellant No.4- Dr. S.N. Jha examined the baby at 24 days of age in F
accordance with established protocol. If ROP screening does not reveal
any ROP, then repeat examination should be performed after 2 weeks.
The Report goes on to say that after discharge, the baby was brought
twice to the General OPD of the Appellant No.1- Hospital. There is
no record to show that the baby was brought after 2 weeks of G
discharge to the Paediatrics OPD clinic when subsequent progression
could been assessed and treated on time.
6. The National Commission vide its Judgment and Order dated
10.05.2016 (bench comprising of Presiding Member J.M. Malik J. and
Dr. S.M. Kantikar, a qualified doctor) held as under: H
1198 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 6.1 The National Commission was not convinced that the ROP
screening was done by O.P. No.5/Appellant No.4 on Respondent No.1-
baby. The progress sheet was devoid of any details about the ROP
examination, the method and instruments used, drugs (midrates/
tropicamide)/ anaesthesia used during ROP testing. The Ophthalmologist
has not mentioned any details of the dilation of the pupils, and the
B
findings by indirect ophthalmoscope, and the intra-ocular or extra retinal
findings. The standard ROP screening protocol was not followed. The
Nurses’ Daily Records from 25.04.2005 to 27.04.2005 does not show
that any ROP examination was done by O.P. No. 5/Appellant No. 4.
6.2 The AIIMS Report did not comment about the details of the
C
ROP screening and the follow-up findings.
6.3 The National Commission held that the sequence of events
leading to ROP usually takes about 4 to 5 weeks, except in a small
sub-set of premature infants who develop rush disease in 2 to 3 weeks.
The routine screenings should begin at no later than 4 weeks after birth,
D
and possibly even earlier for infants at higher risk (2 to 3 weeks). It is
strongly recommended that one session of retinal screening be carried
before Day 30 of the life of any premature baby. The examination
should be done with the dilation of the pupil with Tropicamide 0.5% to
1% with Phenylapinephrine 2.5%.
E
6.4 The National Commission came to the conclusion that O.P.
No.5/Appellant No.4 did not conduct the ROP screening on the baby.
ROP screening is a team-work of the Paediatrician, Opthalmologist and
the NICU nurse. There is no medical documentation of the ROP
screening procedural details. The O.P. No. 5 should have performed
F the retinal examination with binocular indirect opthalmoscope on dilation
of the pupil with scleral depression to ascertain avascular zone at the
periphery of the retina. The National Commission found that nothing
was forthcoming from Page 102 of the medical records. It appears to
be a bare visual examination done by O.P. No. 5 in haste to cover up
the case.
G
The National Commission was of the considered view that neither
the ROP screening was performed, nor was any advice for follow up
of ROP given to the Respondent No.2-Complainant/mother.
6.5 The National Commission held that the Respondent No.1-
H Master Rishabh had been rendered blind for life, which could never
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1199
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

really be compensated in monetary terms. The baby had lost his father A
during the pendency of proceedings in 2013. The Respondent No.2-
Complainant had been pursuing the consumer complaint single-handedly
for almost a decade.
6.6 The National Commission awarded an amount of Rs.
53,00,000/- to the Respondent No.1-baby by applying the average B
inflationary principle at a conservative rate of 1% p.a., keeping in mind
the fluctuations over the next 59 years. The National Commission
awarded an amount of Rs. 10,00,000/- to the Respondent No.2-
Complainant/mother who would have to take care of the blind child
throughout her life. A further amount of Rs. 1,00,000/- was awarded
towards costs of litigation. The National Commission held O.P. Nos. 2 C
to 5/ Appellant Nos. 1 to 4 to be jointly and severally liable to pay the
total amount of Rs. 64,00,000/- within 2 months of the Order. The entire
amount would carry interest at the rate of 9% p.a.
Out of the total compensation awarded, Rs. 50,00,000/- would
be kept in a Fixed Deposit with a nationalised bank till Respondent No.1 D
attained the age of majority. The periodic interest on the deposit would
be paid to the Respondent No.2-Complainant/ mother till the child
attained the age of majority. The remaining amount of Rs. 14,00,000/-
would be released to the Respondent No.2-Complainant.
7. Aggrieved by the impugned Judgment passed by the National E
Commission, C.A. No. 6619 of 2016 was filed by the Hospital and the
Doctors before this Court. The Complainants have filed Civil Appeal
No. 9461 of 2019 (Diary No. 15393 of 2019) before this Court for
enhancement of compensation.
This Court vide interim Order dated 29.07.2016 ordered stay
F
of the operation of the impugned Judgment, subject to the Appellant
No.1-Hospital depositing 50% of the amount awarded by the National
Commission in this Court within 6 weeks.
On 07.09.2016, the Appellant No.1-Hospital deposited an amount
of Rs. 32,00,000/- in this Court. This Court vide Order dated 7.11.2016,
directed the amount to be kept in a Fixed Deposit with UCO Bank, G
which was renewed from time to time. The fixed deposit is due to
mature on 17.02.2020.
8. We have heard the learned Counsel for all the parties and
perused the original Medical Records, pleadings and written submissions
filed by the parties. H
1200 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 9. The learned counsel for the Appellants viz. the Hospital and
Doctors inter alia submitted that:
9.1 Respondent No.1-baby was pre-term (32 weeks) with signs
of HMD, and was admitted in Appellant No.1-Hospital on 02.04.2005
in a critical condition with little chance of survival. The baby was
B admitted in the neo-natal ICU, and had to be immediately placed on
ventilatory support for 10 days. As per standard protocol, regular
investigations and Arterial Blood Gas (ABG) analysis were performed.
Blood component therapy was given. The critical condition of the baby
and possible neuro-development, visual and hearing sequel was informed
C to the parents. The baby was given utmost care and attention by the
Doctors of the Appellant No.1-Hospital.
9.2 As per protocol, ophthalmological examination was advised
on 25.04.2005 to rule out ROP, as recorded at Page 100 of the medical
records. Appellant No.4-Dr. S.N. Jha, the Senior Ophthalmologist
conducted the ROP test on 26.04.2005, who found no ROP in
D
Respondent No.1-baby, as recorded by Appellant No.4 in his handwriting
at page 102 of the medical records. It was submitted that the Appellant
No.4 had advised a further review/check-up after 2 weeks in the
speciality OPD on Wednesay/Saturday between 4 p.m. to 6 p.m. The
parents of Respondent No.1-baby were explained all the problems which
E may develop in a premature baby.
9.3 As per the Discharge Summary at Page 109 of the medical
records, the Complainants were advised to bring the Respondent No.1-
baby for a ROP and BERA check-up to the speciality OPD on
Wednesday/Saturday at 4 pm.
F
9.4 The Respondent No.2-Complainant brought the baby to the
General OPD of Appellant No.1- Hospital on 04.05.2005 after 8 days
of the first ROP check-up, and not after 2 weeks as advised.
Thereafter, the baby was brought on 13.07.2005, which was after 2
months again to the General OPD.
G
9.5 The Appellants relied on the Report of the Medical Board
constituted by AIIMS, which had vide their Report dated 11.05.2012
held that the baby was not brought to the Paediatrics OPD Clinic on
Wednesdays or Saturdays at 4 P.M. after two weeks of discharge, when
subsequent progression of ROP could have been assessed and treated
H on time.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1201
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

9.6 The Appellant No.4/O.P. No.5 - Dr. S.N. Jha, a Senior A
Ophthalmologist was engaged with the Appellant No.1- Hospital from
1997 to 2010. It was submitted on his behalf that on 25.04.2005, the
Paediatrics Dept. of the Appellant No.1-Hospital had requisitioned him
to perform the ROP examination. The Appellant No.4 submits that the
ROP was duly conducted by him on 26.04.2005. His finding is recorded
at Page 102 of the medical records, wherein he has recorded that he B
did not find any evidence of ROP at that stage. It was further submitted
that it was not required to record the method of dilation of the pupil
and use of indirect ophthalmoscope. The standard medical literature
establishes that ROP manifests itself after 4 weeks of post-natal age.
In view thereof, the finding of Appellant No.4, who examined the baby C
only on 26.04.2005 i.e. when the baby was 24 days old, there was no
evidence of ROP, cannot be faulted.
9.7 It was further submitted that the only requirement for
conducting an ROP examination is a chemical solution of Tropicamide
and Phenylephrine to dilate the eyes, which was available in the nursery,
and an indirect ophthalmoscope, which is available with all D
ophthalmologists. who have specialised in the care of retina, and are
competent to carry ROP examination. It was submitted that the
Appellant No.4 was not required to record the procedure for conducting
the ROP examination, which is merely the retinal examination of the
baby by use of an indirect ophthalmoscope after dilation of the pupils. E
9.8 Appellant No.4 - Dr. S.N. Jha was not consulted on the two
subsequent visits by the Respondent No.2-Complainant with the baby
on 04.05.2005 and 13.07.2005 in the Ophthalmology department, even
though he would have been available in the speciality OPD on
Wednesdays/Saturdays at 4 P.M.
F
10. The learned counsel for the Complainants –Respondent Nos.
1 to 3 (Appellant Nos. 1 to 3 in Civil Appeal No. 9461 of 2019/Diary
No. 15393 of 2019), inter alia submitted that the Respondent No.1-
baby has become permanently blind on account of the gross medical
negligence by the Hospital, and the three specialist doctors i.e two
consultant Paediatricians, and the Ophthalmologist, for the following G
reasons:
10.1 The Appellant Nos.1 to 4 did not at any stage conduct the
ROP examination of the baby, who was a premature baby, nor was
the family ever informed about the high risk of ROP in a premature
baby, and the necessity for regular check-ups. H
1202 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 10.2 The Appellant No.1-Hospital had deliberately withheld the
medical records for over two years after discharge. At the time of
discharge on 29.04.2005, the Complainants were provided with a
Discharge Slip, which did not disclose any instructions advising that the
infant be brought for ROP examination (the Discharge Slip in Para 5.4
above).
B
In this Discharge Slip, there is no advice of ROP having been
conducted, or follow-up of ROP, nor was the risk of ROP explained
by the Appellant Nos. 2 and 3 to the Respondent No.2-Complainant.
10.3 The Complainants have strongly contended that parts of the
C medical records, which were provided after 2 years in 2007, had been
fabricated and interpolated as an afterthought to escape liability.
It was submitted that a bare perusal of the noting dated
26.04.2005 made in the medical record by Appellant No.4- the
Ophthalmologist, shows that is merely a scribble, and is illegible. The
Complainants have strongly refuted the case of the Appellants that the
D
ROP was conducted by Appellant No.4 on 26.04.2005.
The Complainants have supported their submission on the basis
of :(i) the progress sheets, which contain no details of the ROP
examination; (ii) there is no mention of the ROP examination in the
Nurses’ Daily Record; (iii) ROP exam is conducted with the help of
E dilation by using Cyclopentolate (0.5%) and Phenylephrine (2.5%) drops
to be applied 2 to 3 times, about 10-15 minutes apart. There is no record
with respect to the administration of the these medicines to the baby;
(iv) there is no mention of the ROP test in the Discharge Slip of
29.04.2005;
F 10.4 The Complainants contended that if the standard protocol
had been carried out by the Doctors, the ROP would have been detected
at an early stage, and could have been cured, since it is medically known
to be reversible at the early stages.
On account of the negligence of the Appellant Nos. 1 to 4, the
G ROP was discovered only at Stage 5, by the Shroff Charity Eye
Hospital, when the baby was 8 months old. By this time, the ROP
became irreversible, and resulted in total blindness of the Respondent
No.1-baby.
10.5 It was further urged that the quantum of compensation
H awarded by the National Commission was grossly inadequate and
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1203
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

insufficient. The National Commission failed to take into account A
variables such as the additional educational expenses in special schools,
transportation costs, costs of purchasing, maintaining and upgrading
Visual Aid/Assistive Devices, costs of permanent nursing/attendant care
and miscellaneous medical expenses. It was further contended that the
average rate of inflation taken by the National Commission i.e. a
B
conservative rate of 1 % per annum for the next 59 years, was grossly
undervalued. The Complainants sought enhancement of the
compensation to the extent of Rs. 9,87,84,000/-.
11. Discussion and Analysis
11.1 Inordinate Delay in Supply of Medical Records C
We find that there was an inordinate delay of over 2 years in
making the Medical Records of Respondent No.1-Master Rishabh
available to the Respondent No.2-Complainant. Regulation 1.3.2 of the
IMC Regulations casts a statutory obligation upon every doctor/hospital
to provide medical records within 72 hours of the request being made D
by the patient.
11.1.1 The Medical Council of India has framed the IMC
Regulations with the previous approval of the Central Government, in
exercise of the powers conferred by Section 20A read with Section
33(m) of the Indian Medical Council Act, 1956. The IMC Regulations E
came into force on their publication in the Gazette of India on 06.04.2002,
and have statutory force.
11.1.2 Regulation 1.3.2 of the Indian Medical Council
(Professional Conduct, Etiquettes and Ethics) Regulations, 2002 provides
as under: F
“1.3 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records
pertaining to his /her indoor patients for a period of 3 years
from the date of commencement of the treatment in a standard
proforma laid down by the Medical Council of India and G
attached as Appendix 3.
1.3.2. If any request is made for medical records either by
the patients / authorised attendant or legal authorities
involved, the same may be duly acknowledged and
documents shall be issued within the period of 72 hours. H
1204 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 1.3.3 A Registered medical practitioner shall maintain a
Register of Medical Certificates giving full details of
certificates issued. When issuing a medical certificate he /
she shall always enter the identification marks of the patient
and keep a copy of the certificate. He / She shall not omit
to record the signature and/or thumb mark, address and at
B
least one identification mark of the patient on the medical
certificates or report. The medical certificate shall be
prepared as in Appendix 2.
1.3.4 Efforts shall be made to computerize medical records
for quick retrieval.
C
[emphasis supplied]
As per Regulation 7, if the doctor refuses or fails to provide the
medical records within 72 hours when the patient or his/her authorised
representative makes a request as per the Regulation 1.3.2, the said
D act of commission or omission would constitute professional misconduct
rendering him/her liable for disciplinary action and punishment under
Regulation 8.
Regulations 7 and 8 provide as follows:
“7. MISCONDUCT
E
The following acts of commission or omission on the part of
a physician shall constitute professional misconduct
rendering him/her liable for disciplinary action
7.1 Violation of the Regulations: If he/she commits any
violation of these Regulations.
F
7.2 If he/she does not maintain the medical records of his/
her indoor patients for a period of three years as per
regulation 1.3 and refuses to provide the same within 72
hours when the patient or his/her authorised representative
makes a request for it as per the regulation 1.3.2.
G
8. PUNISHMENT AND DISCIPLINARY ACTION
8.1 It must be clearly understood that the instances of
offences and of Professional misconduct which are given
above do not constitute and are not intended to constitute a
H complete list of the infamous acts which calls for disciplinary
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1205
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

action, and that by issuing this notice the Medical Council A
of India and or State Medical Councils are in no way
precluded from considering and dealing with any other form
of professional misconduct on the part of a registered
practitioner. Circumstances may and do arise from time to
time in relation to which there may occur questions of
B
professional misconduct which do not come within any of
these categories. Every care should be taken that the code
is not violated in letter or spirit. In such instances as in all
others, the Medical Council of India and/or State Medical
Councils have to consider and decide upon the facts brought
before the Medical Council of India and/or State Medical C
Councils.
8.2 It is made clear that any complaint with regard to
professional misconduct can be brought before the
appropriate Medical Council for Disciplinary action. Upon
receipt of any complaint of professional misconduct, the D
appropriate Medical Council would hold an enquiry and give
opportunity to the registered medical practitioner to be heard
in person or by pleader. If the medical practitioner is found
to be guilty of committing professional misconduct, the
appropriate Medical Council may award such punishment as
deemed necessary or may direct the removal altogether or E
for a specified period, from the register of the name of the
delinquent registered practitioner. Deletion from the Register
shall be widely publicized in local press as well as in the
publications of different Medical Associations/ Societies/
Bodies. F
8.3 In case the punishment of removal from the register is
for a limited period, the appropriate Council may also direct
that the name so removed shall be restored in the register
after the expiry of the period for which the name was ordered
to be removed. G
8.4 Decision on complaint against delinquent physician shall
be taken within a time limit of 6 months.
8.5 During the pendency of the complaint the appropriate
Council may restrain the physician from performing the
procedure or practice which is under scrutiny. H
1206 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 8.6 Professional incompetence shall be judged by peer group
as per guidelines prescribed by Medical Council of India.”
11.1.3 The IMC Regulations framed by the Medical Council of
India are binding on all medical professionals, who are under a statutory
obligation to provide medical records to the patients or their attendants.
B All hospitals, whether Government or private are liable to maintain
the medical records, and provide the same to patient or their attendants
within 72 hours of the request.
11.1.4 The Delhi Medical Council vide Circular No. DMC/DHS/
F.5/2/2009 dated 15.05.2009 casts a statutory obligation on all registered
C medical practitioners and hospitals/nursing homes to strictly adhere to
Regulation 1.3.2 of the IMC Regulations. The failure to comply with
the same would constitute professional misconduct and entail disciplinary
action.
11.1.5 This Court in Federation of Obstetrics & Gynaecological
D Societies of India v. Union of India1 held that “considering the nature
of services rendered by medical professionals, proper maintenance of
records is an integral part of the medical services.”
11.1.6 The Respondent No.2-Complainant submitted that she had
made several requests for being provided the in-patient records for
E further evaluation/examination of the baby, which was not made
available to her for over 2 years after his discharge in April 2005 from
the Appellant No.1- Hospital. Respondent No.2-Complainant had to run
from one hospital to another so as to ascertain why her son had
abnormal visual responses. Despite repeated requests, the Medical
Records were withheld by the Hospital. The Respondent No.2-
F Complainant had a legal notice issued on 24.02.2007 to the Appellant
No.1-Hospital requesting for the entire in-patient medical record of her
child, and made a complaint to the Delhi Medical Council. The Appellant
No.1 -Hospital eventually provided the medical record on 14.06.2007.
11.1.7 The Delhi Medical Council vide Order dated 14.12.2007
G issued a warning to the Appellant No.1-Hospital for the delay in
supplying the medical records of Respondent No.1 to the Complainant.
We find that withholding the medical records of Respondent
No.1, who was a premature baby, for a period of over 2 years, would
1
H (2019) 6 SCC 283
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1207
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

constitute grave professional misconduct under Regulation 7, apart from A
being a gross deficiency in service on the part of the Appellant No.1-
Hospital and its management.
11.2 Failure to diagnose Retinopathy of Prematurity (ROP)
Retinopathy of Prematurity (ROP) is one of the major emerging B
causes of childhood blindness. A premature baby is not born with ROP.
At the time of birth, particularly in the case of premature babies, the
retina is immature, which is natural at this stage. It is the post-natal
developments in the retinal vessels which could lead to ROP.
11.2.1 As per medical literature, all infants with a birth weight C
of less than 1500 grams, or gestational age of less than 32 weeks, are
required to be mandatorily screened for ROP, which usually takes about
4 to 5 weeks to be diagnosed. The routine screening should begin no
later than 4 weeks after birth, and possibly even earlier for infants at
higher risk (2 to 3 weeks). D
The standard of care is to be judged in the light of the protocols
and standard procedures prevailing on the date of birth, and not on the
date of trial. 2
11.2.2 In Programme Planning and Screening Strategy in
Retinopathy of Prematurity3, published in March 2003 co-authored by E
Drs. Subhadra Jalali, MS; Raj Anand, MS; Harsh Kumar, MD; Mangat
R Dogra, MS; Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS
have opined that:
“There are several compelling reasons to have a screening F
programme for ROP. Firstly, the premature child is not born
with ROP and retinal disease is not present at birth. Each
prematurely born child has a potential for normal vision,
even if the retina is immature at birth. Screening for ROP
aims to identify those infants who have reached or have the
G
2
Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1;
Jacob Mathew v. State of Punjab (2005) 6 SCC 1 : 2005 SCC (Cri) 1369
3
Subhadra Jalali, MS; Raj Anand, MS; Harsh Kumar, MD; Mangat R Dogra, MS;
Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS, Programme Planning and
Screening Strategy in Retinopathy of Prematurity, Indian J Ophthalmol 2003 (March
2003), Vol. 51, Pages 89-99 H
1208 SUPREME COURT REPORTS [2019] 16 S.C.R.

A potential to reach threshold ROP, which if untreated, may
cause blindness or visual impairment. This has medico-legal
implications. There are indefensible legal repercussions
should an infant develop ROP and retinal detachment, but
had not received eye examination. Secondly, the grief and
B the personal tragedy for the family is tremendous, besides
the economic burden of such childhood blindness. The aim
of screening premature babies for ROP is to detect all
treatable neonates, with minimal expense of time and
resources. This also aims at not screening those babies who
are unlikely to get a severe form of ROP. Early recognition
C
of ROP by screening provides an opportunity for effective
treatment…. The criteria for screening babies are based on
two critical factors – the birth weight and the gestational
age.”
[emphasis supplied]
D
A well organised screening strategy and timely intervention can
to a large extent prevent blindness due to ROP. Extensive clinical trials
and publications4 have established that among other factors, gestation
period and low birth weight are critical in the pathophysiology of ROP.
If detected early and treated with peripheral retinal cryopexy or laser,
E
4
Palmer EA, Flynn JT, Hardy RJ, Phleps DL, Phillips CL, Schaffer DB, Incidence
and early course of retinopathy of prematurity. Ophthalmology 1991;98:1628-40;
Fielder AR, Shaw DF, Robinson J, Ng YK, Natural history of retinopathy of
prematurity: A prospective study. Eye 1992;6:233-42; STOP-ROP Multicentre Study
Group. Supplemental therapeutic oxygen for prethreshold retinopathy of prematurity
F (STOP-ROP), a randomised controlled trial: Primary outcomes. Paediatrics
2000;150:295-10. Cryotherapy for Retinopathy of Prematurity Cooperative Group.
Multicentre trial of cryotherapy for retinopathy of prematurity-Three-month outcome.
Arch Ophthalmol 1990;108:195-40.
5
Cryotherapy for Retinopathy of Prematurity Cooperative Group. Multicentre trial
of cryotherapy for retinopathy of prematurity-Three-month outcome, Arch
Ophthalmol 1990;108:195-40 ; Cryotherapy for Retinopathy of Prematurity
G Cooperative Group. Multicentre trial of cryotherapy for retinopathy of prematurity-
3½ years outcome for both structure and function, Arch Ophthalmol 1993;111:339-
44. Tsisis T, Tasman W, Mcnamara JA, Brown G, Vander J. Diode laser
photocoagulation for retinopathy of prematurity, Trans Am Ophthal Soc 1997;95:231-
36.; Despande DA, Chaturvedi M, Gopal L, Ramachandram S, Shanmugasundaram
R. Treatment of threshold retinopathy of prematurity, Indian J Ophthalmol
H 1998;46:15- 19.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1209
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

ROP blindness can be prevented to some extent.5 Once the case crosses A
Stage 3, in very few cases can the sight be saved even by extensive
vitreoretinal surgery.6
11.2.3 This Court considered this issue in a similar case in V.
Krishnakumar v. State of Tamil Nadu7. In that case, a premature
female baby was born in the 29th week of pregnancy. The infant B
weighed only 1.25 kgs at birth. The doctors failed to examine the baby
for ROP, or advise the parents that the baby was required to be seen
by a paediatric ophthalmologist since there was a possibility of
occurrence of ROP, so as to avert permanent blindness. The discharge
summary neither disclosed a warning to the infant’s parents of the C
possibility that the infant might develop ROP for which certain
precautions must be taken, nor any signs that the doctors were
themselves cautious of the dangers of development of ROP. The
doctors attempted to cover up their gross negligence of not having
examined the infant for the onset of ROP, which is a standard
precaution for a well-known condition in such a case. D
This Court after reviewing and analysing the medical literature
on ROP, observed that the problem occurs in infants who are
prematurely born, and who have been administered oxygen and blood
transfusion upon birth. If detected during early stages, it can be
prevented. In para 4 of the judgment, this Court held that: E

“4. ….It is said that prematurity is one of the most common
causes of blindness and is caused by an initial constriction
and then rapid growth of blood vessels in the retina. When
the blood vessels leak, they cause scarring. These scars can
later shrink and pull on the retina, sometimes detaching it. F
The disease advances in severity through five stages — 1,
2, 3, 4 and 5 (5 being the terminal stage). Medical literature
suggests that Stage 3 can be treated by Laser or Cryotherapy
treatment in order to eliminate the abnormal vessels. Even
in Stage 4, in some cases, the central retina or macula remains G

6
Cherry TA, Lambert SR, Capone-A Jr. Electroretinographic findings in stage V
retinopathy of prematurity after retinal reattachment, Retina 1995;15:21-24; Noorily
SW, Small K, Juan E de, Machemar R. Scleral bucking surgery for stage 4B
retinopathy of prematurity, Ophthalmology 1992;99:263-68.
7
(2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546 H
1210 SUPREME COURT REPORTS [2019] 16 S.C.R.

A intact thereby keeping intact the central vision. When the
disease is allowed to progress to Stage 5, there is a total
detachment and the retina becomes funnel shaped leading
to blindness. There is ample medical literature on the subject.
It is, however, not necessary to refer all of it. Some material
B relevant to the need for check-up for ROP for an infant is:
“All infants with a birth weight less than 1500 gm or
gestational age less than 32 weeks are required to be
screened for ROP.” [ AIIMS Report dated 21-8-2007]
5. It is undisputed that the relationship of birth weight and
C gestational age to ROP as reproduced in NCDRC’s order is
as follows:
“Most ROP is seen in very low birth weight infants, and the
incidence is inversely related to birth weight and gestational
age. About 70-80% of infants with birth weight less than
D 1000 gm show acute changes, whereas above 1500 gm birth
weight the frequency falls to less than 10%.”
6. …. It is further observed that ROP is a visually devastative
disease that often can be treated successfully if it is
diagnosed in time.”
E
[emphasis supplied]
This Court relied upon a Report dated 21.08.2007 of the All India
Institute of Medical Sciences, New Delhi comprising of five members,
of which, four were ophthalmological specialists. The Board opined as
under:
F
“A premature infant is not born with Retinopathy of
Prematurity (ROP), the retina though immature is normal for
this age. The ROP usually starts developing 2-4 weeks after
birth when it is mandatory to do the first screening of the
child. The current guidelines are to examine and screen the
G
babies with birth weight<1500 gm and <32 weeks
gestational age, starting at 31 weeks post-conceptional age
(PCA) or 4 weeks after birth, whichever is later. Around a
decade ago, the guidelines in general were the same and the
premature babies were first examined at 31-33 weeks post-
H conceptional age or 2-6 weeks after birth.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1211
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

There is a general agreement on these above guidelines on A
a national and international level. The attached annexure
explains some authoritative resources and guidelines
published in national and international literature especially
over the last decade.

However, in spite of ongoing interest world over in screening B
and management of ROP and advancing knowledge, it may
not be possible to exactly predict which premature baby will
develop ROP and to what extent and why.”

[emphasis supplied] C
On a review of the literature on ROP, the Supreme Court in V.
Krishnakumar (supra) set out the screening guidelines as follows:

Year Source First screening Who to screen
2006 American Academy of 31 weeks PCA or <1500 gm birth
D
Paediatrics et al. 4 weeks after weight or <32 weeks
birth, whichever GA or higher.
is later.
2003 Jalali S et al. Indian J 31 weeks PCA or <1500 gm birth
Ophthalmology 3-4 weeks after weight or <32 weeks
birth, whichever GA or higher.
is earlier. E
2003 Azad et al. JIMA 32 weeks PCA or <1500 gm birth
4-5 weeks after weight or <32 weeks
birth, whichever GA or higher.
is earlier.
2002 Aggarwal R et al. 32 weeks PCA or <1500 gm birth
Indian J. Paediatrics 4-6 weeks after weight or <32 weeks F
birth, whichever GA.
is earlier.
1997 American Academy of 31-33 weeks PCA <1500 gm birth
Paediatrics et al. or 4-6 weeks after weight or <28 weeks
birth. GA or higher.
1996 Maheshwari R et al. 32 weeks PCA or <1500 gm birth
National Med. J. India 2 weeks after weight or <35 weeks
G
birth, whichever GA or 02>24 hrs.
is earlier.
1988 Cryotherapy ROP 4-6 weeks after <1250 gm birth
Group birth. weight.

H
1212 SUPREME COURT REPORTS [2019] 16 S.C.R.

A This Court observed that ROP starts developing 2 to 4 weeks
after birth when it is mandatory to do the first screening of the child.
As per the report of AIIMS “it may not be possible to exactly predict
which premature baby will develop ROP and to what extent and
why”. This would necessitate the need for a check-up in all such cases.
B 11.2.4 It is clear from the above medical literature that ROP is
a visually progressive disease, which can be treated successfully if it
is diagnosed on time. ROP advances through 5 stages. Medical
literature suggests that Stage 3 can be treated by Laser or Cryotherapy
treatment in order to eliminate the abnormal vessels. Even at Stage 4,
in some cases, the central retina or macula remains intact thereby
C keeping intact the central vision. When the disease progresses to Stage
5, there is a total detachment, and the retina becomes funnel shaped,
leading to blindness.
11.2.3 We have carefully perused the original Medical Records
of the Appellant No.1-Hospital, which were provided in a sealed cover
D to the Court.
We find that there is an entry at Page 100 of the medical records
dated 25.04.2005 recorded at 9:00 a.m. which reads as under:
“ 25/4/05
E 9 AM Stable
Wt: 1.56 kg
Accepting cup feeds
S/E – NAD
D19 of Inj Amphocan
F Plan for Discharge tomorrow
Adv:
- Breast feeds
- Cont. rest
G - ROP Checkup (Dr Jha) ”
[emphasis supplied]
At the bottom of page 102 of the medical records, there is another
entry dated 26.04.2005, which reads as under:
H “ 26/4 by Dr. SNJ
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1213
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

No ROP A
Review, 2 weeks. ”
The said noting is signed by Dr. S.N. Jha – Appellant No.4. There
is, however, no time mentioned against this noting.
A visual examination of the original medical records/Treatment B
Sheet shows that this entry is not recorded in the same sequence as
all previous and subsequent notings. The entries recorded at Page 100
and Page 102 have been made at the bottom of the page. The date
“26/4” is mentioned in a different column, unlike the other entries made
before and after this entry. There is no time of the ophthalmological
examination by Appellant No.4-Dr. S.N. Jha on 26.04.2005 mentioned C
in the record, unlike all other notings by other doctors, who have
examined the patient, where the time is clearly recorded.
On the next page i.e. page 103 of the medical record, it is
mentioned as “Day 28” i.e. 26.04.2005 on the top of the page. The
first entry on that date is recorded at 10.30 am. This would indicate D
that the baby was not examined prior to 10.30 a.m. by any doctor.
There is no contemporaneous record to corroborate that ROP
screening was done by Appellant No.4 on 26.04.2005. The Nurses’ Daily
Record or Treatment Sheet do not mention that the dilation of the pupils
of the baby were carried out by administration of Cyclopentolate (0.5%) E
and Phenylephrine (2.5%) drops to conduct test of ROP.
We had orally enquired from the learned counsel appearing on
behalf of Appellant No.4- Dr. S.N. Jha about the approximate time at
which the ROP check-up was done by him on 26.04.2005. The counsel
was unable to specify the time at which the baby was examined by
F
him.
11.2.6 The Respondent No.1-baby was discharged on 29.04.2005.
The Complainants were provided with a Discharge Slip. The Discharge
Slip does not contain any advice for a mandatory follow-up for ROP.
Rather, the Discharge Slip only advised the Complainant to bring the
Respondent No.1 for a review to the Paediatrics OPD on Wednesday G
or Saturday at 4 P.M.
11.2.7 The Counsel for the Hospital and the Doctors contended
that post-discharge, the Respondent No.2-Complainant did not bring the
baby to the speciality Paediatric OPD for a check-up as advised in the
Discharge Summary. H
1214 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 11.2.8 We have seen the original medical records produced by
the Appellant No.1-Hospital, and find that on both occasions, i.e.
04.05.2005 and 13.07.2005, the Complainants went correctly to the
Paediatrics Unit of the General OPD. Hence, the contention of the
Appellants is liable to rejected as being completely baseless.
B 11.2.9 The Complainant took the baby for a follow up check-up
post-discharge to the Paediatrics-III Department on two occasions i.e.
04.05.2005 and 13.07.2005.
The baby was examined by Appellants No. 2 and 3 on
04.05.2005. In the Treatment Sheet, there is no recommendation to have
C ROP test done, nor was the patient advised to come back after two
weeks. The noting on 04.05.2005 is extracted hereinbelow for ready
reference:
“MAHARAJA AGRASEN HOSPITAL
Punjabi Bagh, New Delhi – 26
D
Ph. 252266465 to 54 (10 lines)
General OPD Prescription
MAH No.: 0505404 Date : 04-05-05
Deptt./Unit …PAEDIATRICS-III WED, SAT…09:00 To 11:00
E Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain
B/O POOJA SHARMA
Male. Age /Sex 1 Mths
Wt 1.65 kg
F FUC 32 weeks preterm AGA with HMD
with bilateral pneumothorax
with fungal septicemia.
Baby stable.
G Adv.
- Breast feeds.
- Continue supplements.
—————————
H Signature Dr. Naveen Jain. ”
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1215
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

The Complainant took the baby for a further follow-up on A
13.07.2005 to the Paediatrics-III Department. The baby was examined
by Dr. Manoj on behalf of Appellant No.2. The medical record even
on this date does not mention any advice for an ROP test. The
attending doctor only advised that a BERA test be done. The noting
on 13.07.2005 is reproduced hereinbelow for ready reference:
B
“MAHARAJA AGRASEN HOSPITAL
Punjabi Bagh, New Delhi – 26
Ph. 252266465 to 54 (10 lines)
General OPD Prescription
MAH No.: 0505404 Date : 04-05-05 C
Deptt./Unit …PAEDIATRICS-III WED, SAT…09:00 To 11:00
Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain
RISHABH SHARMA Age /Sex 4 Mths Male.
B/O POOJA SHARMA D
Wt 4 kg
Dr. Manoj Advice – BERA test
Calcirol sachet (3)
Visyneral-Z drops 8 drops daily. E
RB tone drop 5 drops.
Syp. Lactocal 1/2 tsf.
—————————
Dr. G.S. Kochhar (Signature) ”
F
It is thus abundantly clear that the baby was rightly taken to the
Paediatrics Unit of the General OPD Clinic at the chronological age
of 4 to 5 weeks, when the onset of ROP could have been detected.
However, there was no advice given by the treating doctors i.e.
Appellants Nos. 2 and 3 – the Consultant Paediatricians, nor the
Appellant No.4 – Ophthalmologist to conduct the ROP test. G
11.2.10 We find that the ROP was neither advised, nor carried
out at all by the Appellant No.1-Hospital, or Appellant No.4-Dr. S.N.
Jha, the Senior Ophthalmologist, throughout the period of hospitalisation
of the baby, or even after discharge. The baby was born in the 32nd
gestational week, and was 1.49 kgs at birth. As per standard protocol, H
1216 SUPREME COURT REPORTS [2019] 16 S.C.R.

A the ROP screening ought to have been done between 3-4 weeks from
birth. The baby remained admitted for 27 days in the Hospital from
02.04.2005 to 29.04.2005. There is no justification whatsoever why the
mandatory screening of ROP was not done for the baby, while he was
under the direct care and supervision of the Appellants.
B We affirm the findings of the National Commission of gross
negligence by the Appellant Nos. 2 to 4-Doctors, and deficiency of
service by the Appellant No.1- Hospital.
11.3 Report of the Medical Board constituted by AIIMS
11.3.1 A perusal of the AIIMS Report 11.05.2012 shows that it
C was premised on the alleged entry recorded by Appellant No.4 -Dr.
S.N. Jha on 26.04.2005, which records that ROP test was conducted,
and no ROP was detected.
We have already recorded a finding that the entry made in the
Treatment Sheet (at pages 100 and 102 of the original Medical Records)
D seems to be an interpolation done subsequently to cover up the failure
of the Hospital and the Doctors to advise or conduct the mandatory
ROP check-up and follow-up protocol.
The second point contained in the AIIMS Report that the baby
was not taken to the Paediatrics OPD is wholly fallacious. We have
E seen the medical records, and find that the baby was, in fact, taken to
the Paediatrics Unit of the General OPD. Hence, the basis of the
Report is misconceived, and cannot be relied upon.
11.3.2 It is well-settled that a court is not bound by the evidence
of an expert, which is advisory in nature. The court must derive its own
conclusions after carefully sifting through the medical records, and
F
whether the standard protocol was followed in the treatment of the
patient. The duty of an expert witness is to furnish the Court with the
necessary scientific criteria for testing the accuracy of the conclusions,
so as to enable the Court to form an independent opinion by the
application of this criteria to the facts proved by the evidence of the
G case.8 Whether such evidence could be accepted or how much weight
should be attached to it is for the court to decide.9
8
Ramesh Chandra Aggarwal vs. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709;
State of H.P. v. Jai Lal (1999) 7 SCC 280 : 1999 SCC (Cri) 1184
9
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : (2010) 2
SCC (Cri) 299 : (2009) 3 SCC (Civ) 663; V. Kishan Rao v. Nikhil Super Speciality
H Hospital, (2010) 5 SCC 513 : (2010) 2 SCC (Civ) 460
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1217
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

11.3.3 We accept the view taken by the National Commission in A
disregarding the opinion of the Medical Board constituted by AIIMS.
11.3.4 The Complainants have discharged the initial burden of
proof10 by making out a case of clear negligence on the part of the
Appellant No.1-Hospital and the Paediatric doctors under whose care
the baby was admitted, as also Appellant No.4 – Dr. S.N. Jha, the senior B
Ophthalmologist attached to the Appellant No.1-Hospital.
The Appellant No.1 - Hospital and the Appellants Nos. 2-4 -
Doctors have failed to satisfy the Court that ROP tests were conducted
at any point of time, or that the Complainants were even advised to
get the ROP test done. C
11.4 Medical Negligence and Duty of Care
11.4.1 Medical negligence comprises of the following constituents:
(1) A legal duty to exercise due care on the part of the medical
professional; (2) failure to inform the patient of the risks involved; (3)
the patient suffers damage as a consequence of the undisclosed risk D
by the medical professional; (4) if the risk had been disclosed, the patient
would have avoided the injury; (5) breach of the said duty would give
rise to an actionable claim of negligence.
The cause of action for negligence arises only when damage
occurs, since damage is a necessary ingredient of this tort. In a complaint E
of medical negligence, the burden is on the complainant to prove breach
of duty, injury and causation. The injury must be sufficiently proximate
to the medical practitioner’s breach of duty. In the absence of evidence
to the contrary adduced by the opposite party, an inference of causation
may be drawn even though positive or scientific proof is lacking.11 F
11.4.2 Medical negligence is the breach of a duty of care by an
act of omission or commission by a medical professional of ordinary
prudence. Actionable medical negligence is the neglect in exercising a
reasonable degree of skill and knowledge to the patient, to whom he
owes a duty of care, which has resulted in injury to such person. The
G
standard to be applied for adjudging whether the medical professional
charged has been negligent or not, in the performance of his duty, would
10
Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 :
(2009) 2 SCC (Civ) 688; Savita Garg v. National Heart Institute (2004) 8 SCC 56
11
Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7
SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ) 114 H
1218 SUPREME COURT REPORTS [2019] 16 S.C.R.

A be that of an ordinary competent person exercising ordinary skill in the
profession. The law requires neither the very highest nor a very low
degree of care and competence to adjudge whether the medical
professional has been negligent in the treatment of the patient. 12
11.4.3 The degree of skill and care required by
B a medical practitioner stated in Halsbury’s Laws of England13 is as
follows:-
“22. Negligence.—Duties owed to patient. A person who
holds himself out as ready to give medical advice or
treatment impliedly undertakes that he is possessed of skill
C and knowledge for the purpose. Such a person, whether he
is a registered medical practitioner or not, who is consulted
by a patient, owes him certain duties, namely, a duty of care
in deciding whether to undertake the case; a duty of care
in deciding what treatment to give; and a duty of care in his
administration of that treatment. A breach of any of these
D duties will support an action for negligence by the patient.
35. Degree of skill and care required.—…To establish liability
on that basis it must be shown (1) that there is a usual and
normal practice; (2) that the defendant has not adopted it;
and (3) that the course in fact adopted is one no professional
E man of ordinary skill would have taken had he been acting
with ordinary care.”
[emphasis supplied]
11.4.4 Lord Denning, in Hucks v. Cole14, held that a medical
practitioner would be liable only where his conduct falls below the
F standards of a reasonably competent practitioner in his field.
11.4.5 In earlier judgments, this Court referred to the Bolam test
laid down in Bolam v. Friern Hospital Management Committee15. In
12
Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1
G SCR 206 : AIR 1969 SC 128; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 :
(2010) 2 SCC (Cri) 1127 : (2010) 1 SCC (Civ) 747
13
4th Edn., Vol. 26 pp. 17-18; 4th Edition, Vol.30, Para 35
14
(1968) 118 New LJ 469; followed in Postgraduate Institute of Medical Education
& Research v. Jaspal Singh, (2009) 7 SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3
SCC (Civ) 114
15
Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582: : (1957) 2
H All ER 118
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1219
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

this case, the doctor treating the patient suffering from mental illness A
was held not to be guilty of medical negligence by the Queen’s Bench
Division for failure to administer muscle-relaxant drugs and using
physical restraint in the course of electro-convulsive therapy. McNair,
J., in his opinion, explained the law in the following words 16:
“… where you get a situation which involves the use of some B
special skill or competence, then the test as to whether there
has been negligence or not is not the test of the man on the
top of a Clapham omnibus, because he has not got this special
skill. The test is the standard of the ordinary skilled man
exercising and professing to have that special skill. A man
need not possess the highest expert skill; it is well-established C
law that it is sufficient if he exercises the ordinary skill of
an ordinary competent man exercising that particular art.”
[emphasis supplied]
The ratio of the Bolam case is that it is enough for the doctor to D
show that the standard of care and the skill exercised by him was that
of an ordinary competent medical practitioner exercising an ordinary
degree of professional skill. McNair, J., held that17:
“… he [a Doctor] is not guilty of negligence if he has acted
in accordance with a practice accepted as proper by a E
responsible body of medical men skilled in that particular
art.”
11.4.6 In the subsequent judgment rendered in
Eckersley v. Binnie18, Bingham, L.J. explained the Bolam test in the
following words: (Con LR p. 79) F
“From these general statements it follows that a professional
man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member
of his profession. He should not lag behind other ordinary
assiduous and intelligent members of his profession in the
G
knowledge of new advances, discoveries and developments

16
(WLR p. 586)
17
(WLR. P 587)
18
(1988) 18 Con LR 1; followed in Jacob Mathew v. State of Punjab, (2005) 6 SCC
1 : 2005 SCC (Cri) 1369; S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 28 H
1220 SUPREME COURT REPORTS [2019] 16 S.C.R.

A in his field. He should have such an awareness as an
ordinarily competent practitioner would have of the
deficiencies in his knowledge and the limitations on his skill.
He should be alert to the hazards and risks in any
professional task he undertakes to the extent that other
ordinarily competent members of the profession would be
B
alert. He must bring to any professional task he undertakes
no less expertise, skill and care than other ordinarily
competent members of his profession would bring, but need
bring no more. The standard is that of the reasonable
average. The law does not require of a professional man that
C he be a paragon combining the qualities of polymath and
prophet. (Charlesworth & Percy, ibid., para 8.04)”
[emphasis supplied]
A medical professional should be alert to the hazards and risks
in any professional task he undertakes to the extent that other ordinarily
D competent members of the profession would be alert. He must bring
to any professional task he undertakes reasonable skill that other
ordinarily competent members of his profession would bring.
11.4.7 This Court followed the Bolam test in Jacob Mathew v.
State of Punjab19 wherein it was held that the Bolam test has been
E
widely accepted as decisive of the standard of care required by medical
practitioners, and it is invariably cited with approval before the courts
in India, and applied as a touchstone to test the pleas of medical
negligence. The court summed up the law on medical negligence in the
following words:
F
“48. (1) Negligence is the breach of a duty caused by
omission to do something which a reasonable man guided
by those considerations which ordinarily regulate the conduct
of human affairs would do, or doing something which a
prudent and reasonable man would not do. The definition
G of negligence as given in Law of Torts, Ratanlal & Dhirajlal
(edited by Justice G.P. Singh), referred to hereinabove, holds
good. Negligence becomes actionable on account of injury
resulting from the act or omission amounting to negligence

19
H [2005] 2 Suppl. SCR 307
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1221
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

attributable to the person sued. The essential components of A
negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.
(2) Negligence in the context of the medical profession
necessarily calls for a treatment with a difference. To infer
rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case B
of occupational negligence is different from one of
professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the
part of a medical professional. So long as a doctor follows
a practice acceptable to the medical profession of that day, C
he cannot be held liable for negligence merely because a
better alternative course or method of treatment was also
available or simply because a more skilled doctor would not
have chosen to follow or resort to that practice or procedure
which the accused followed. When it comes to the failure of
taking precautions, what has to be seen is whether those D
precautions were taken which the ordinary experience of
men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the
particular happening cannot be the standard for judging the
alleged negligence. So also, the standard of care, while E
assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at
the date of trial. Similarly, when the charge of negligence
arises out of failure to use some particular equipment, the
charge would fail if the equipment was not generally
F
available at that particular time (that is, the time of the
incident) at which it is suggested it should have been used.
(3)A professional may be held liable for negligence on one
of the two findings: either he was not possessed of the
requisite skill which he professed to have possessed, or, he
G
did not exercise, with reasonable competence in the given
case, the skill which he did possess. The standard to be
applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent
person exercising ordinary skill in that profession. It is not
possible for every professional to possess the highest level H
1222 SUPREME COURT REPORTS [2019] 16 S.C.R.

A of expertise or skills in that branch which he practices. A
highly skilled professional may be possessed of better
qualities, but that cannot be made the basis or the yardstick
for judging the performance of the professional proceeded
against on indictment of negligence.
B (4)The test for determining medical negligence as laid down
in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118]
holds good in its applicability in India.”
[emphasis supplied]
11.4.8 In recent years, the Bolam test has been discarded by the
C courts in England. In Bolitho v. City and Hackney Health Authority20,
a five judge bench of the House of Lords ruled that21 :
“… the court is not bound to hold that a defendant doctor
escapes liability for negligent treatment or diagnosis just
because he leads evidence from a number of medical experts
D
who are genuinely of opinion that the defendant’s treatment
or diagnosis accorded with sound medical practice. In the
Bolam22 case itself, McNair J. stated that the defendant had
to have acted in accordance with the practice accepted as
proper by a “ responsible body of medical men.” Later, ..
E he referred to “a standard of practice recognised as proper
by a competent reasonable body of opinion.” Again, in the
passage which I have cited from Maynard’s 23 case, Lord
Scarman refers to a “respectable” body of professional
opinion. The use of these adjectives—responsible,
F reasonable and respectable—all show that the court has to
be satisfied that the exponents of the body of opinion relied
upon can demonstrate that such opinion has a logical basis.
In particular in cases involving, as they so often do, the
weighing of risks against benefits, the judge before
accepting a body of opinion as being responsible,
G reasonable or respectable, will need to be satisfied that, in
forming their views, the experts have directed their minds to
20
(1998) 1 AC 232 : (1997) 3 WLR 1151 : (1997) 4 All ER 771 (HL)
21
(AC pp. 241 G-H and 242 A-B)
22
[1957] 1 W.L.R. 583, 587
23
H [1984] 1 W.L.R. 634, 639
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1223
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

the question of comparative risks and benefits and have A
reached a defensible conclusion on the matter.”
[emphasis supplied]
Lord Browne-Wilkinson, speaking for the bench, in his opinion
stated that despite a body of professional opinion approving the doctor’s
conduct, a doctor can be held liable for negligence, if it is demonstrated B
that the professional opinion is not capable of withstanding logical
analysis24:
“These decisions demonstrate that in cases of diagnosis and
treatment there are cases where, despite a body of
professional opinion sanctioning the defendant’s conduct, C
the defendant can properly be held liable for negligence (I
am not here considering questions of disclosure of risk). In
my judgment that is because, in some cases, it cannot be
demonstrated to the judge’s satisfaction that the body of
opinion relied upon is reasonable or responsible. In the vast
majority of cases the fact that distinguished experts in the D
field are of a particular opinion will demonstrate the
reasonableness of that opinion. In particular, where there are
questions of assessment of the relative risks and benefits of
adopting a particular medical practice, a reasonable view
necessarily presupposes that the relative risks and benefits
E
have been weighed by the experts in forming their opinions.
But if, in a rare case, it can be demonstrated that the
professional opinion is not capable of withstanding logical
analysis, the judge is entitled to hold that the body of opinion
is not reasonable or responsible.
[emphasis supplied] F
11.4.9 A five judge bench of the Australian High Court in Rogers
v. Whitaker25 identified the basic flaw involved in approaching the
standard of duty of care of a doctor as laid down in Bolam (supra),
and held that:
G
“5. ….The law imposes on a medical practitioner a duty to
exercise reasonable care and skill in the provision of
professional advice and treatment. That duty is a “single

24
(AC p.243 A-E)
25
(1992) 109 Aus LR 625: [1992]HCA 58 H
1224 SUPREME COURT REPORTS [2019] 16 S.C.R.

A comprehensive duty covering all the ways in which a doctor
is called upon to exercise his skill and judgment” 26; it
extends to the examination, diagnosis and treatment of the
patient and the provision of information.”
“12. In Australia, it has been accepted that the standard of
B care to be observed by a person with some special skill or
competence is that of the ordinary skilled person exercising
and professing to have that special skill.27 But, that standard
is not determined solely or even primarily by reference to the
practice followed or supported by a responsible body of
C opinion in the relevant profession or trade. 28 Even in the
sphere of diagnosis and treatment, the heartland of the skilled
medical practitioner, the Bolam principle has not always been
applied. 29 Further, and more importantly, particularly in the
field of non-disclosure of risk and the provision of advice
and information, the Bolam principle has been discarded
D and, instead, the courts have adopted the principle that,
while evidence of acceptable medical practice is a useful
guide for the courts, it is for the courts to adjudicate on what
is the appropriate standard of care after giving weight to “the
paramount consideration that a person is entitled to make
his own decisions about his life”.
E
[emphasis supplied]
11.4.10 A seven-judge bench of the U.K. Supreme Court in a
more recent judgment delivered in Montgomery v Lanarkshire Health
Board30 traced the changes in the jurisprudence of medical negligence
F in England, and held that “patients are now widely regarded as
persons holding rights, rather than as the passive recipients of the
care of the medical profession”. The Supreme Court noted that the

26
Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871
27
Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376, at pp 383-384; Papatonakis
G v. Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, at
p 36; Weber v. Land Agents Board (1986) 40 SASR 312, at p 316; Lewis v. Tressider
Andrews Associates Pty. Ltd. (1987) 2 Qd R 533.
28
Florida Hotels Pty. Ltd. v. Mayo [1965] HCA 26; (1965) 113 CLR 588)
29
Albrighton v. Royal Prince Alfred Hospital (1980) 2 NSWLR 542; E v. Australian
Red Cross [1991] FCA 20; (1991) 99 ALR 601)
30
H [2015] UKSC 11
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1225
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

courts have tacitly ceased to apply the Bolam test in relation to the A
advice given by the doctor to their patients. The Court summed up the
law on medical negligence in the following words:
“82. In the law of negligence, this approach entails a duty
on the part of doctors to take reasonable care to ensure that
a patient is aware of material risks of injury that are inherent B
in treatment. This can be understood, within the traditional
framework of negligence, as a duty of care to avoid
exposing a person to a risk of injury which she would
otherwise have avoided, but it is also the counterpart of the
patient’s entitlement to decide whether or not to incur that
C
risk. The existence of that entitlement, and the fact that its
exercise does not depend exclusively on medical
considerations, are important. They point to a fundamental
distinction between, on the one hand, the doctor’s role when
considering possible investigatory or treatment options and,
on the other, her role in discussing with the patient any D
recommended treatment and possible alternatives, and the
risks of injury which may be involved.
87. The correct position, in relation to the risks of injury
involved in treatment, can now be seen to be substantially
that adopted in Sidaway by Lord Scarman, and by Lord E
Woolf MR in Pearce, subject to the refinement made by the
High Court of Australia in Rogers v Whitaker, which we have
discussed at paras 77-73. An adult person of sound mind is
entitled to decide which, if any, of the available forms of
treatment to undergo, and her consent must be obtained
F
before treatment interfering with her bodily integrity is
undertaken. The doctor is therefore under a duty to take
reasonable care to ensure that the patient is aware of any
material risks involved in any recommended treatment, and
of any reasonable alternative or variant treatments. The test
of materiality is whether, in the circumstances of the G
particular case, a reasonable person in the patient’s position
would be likely to attach significance to the risk, or the doctor
is or should reasonably be aware that the particular patient
would be likely to attach significance to it.”
[emphasis supplied] H
1226 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 11.4.11 This Court in V. Kishan Rao v. Nikhil Super Speciality
Hospital31 has opined that the Bolam test requires re-consideration.
A.K. Ganguly, J. speaking for this Court, observed that:
“23. Even though Bolam test was accepted by this Court as
providing the standard norms in cases of medical negligence,
B in the country of its origin, it is questioned on various
grounds. It has been found that the inherent danger
in Bolam test is that if the courts defer too readily to expert
evidence medical standards would obviously decline.
Michael Jones in his treatise on Medical Negligence (Sweet
and Maxwell), 4th Edn., 2008 criticised the Bolam test as it
C opts for the lowest common denominator. The learned author
noted that opinion was gaining ground in England
that Bolam test should be restricted to those cases where an
adverse result follows a course of treatment which has been
intentional and has been shown to benefit other patients
D previously. This should not be extended to certain types of
medical accidents merely on the basis of how common they
are. It is felt “to do this would set us on the slippery slope
of excusing carelessness when it happens often enough” (see
Michael Jones on Medical Negligence, para 3-039 at p.
246).
E
25. Even though Bolam test “has not been uprooted” it has
come under some criticism as has been noted in Jackson &
Powell on Professional Negligence (Sweet and Maxwell), 5th
Edn., 2002. The learned authors have noted (see para 7-047
at p. 200 in Professional Negligence) that there is an
F argument to the effect that Bolam test is inconsistent with the
right to life unless the domestic courts construe that the
requirement to take reasonable care is equivalent with the
requirement of making adequate provision for medical care.
In the context of such jurisprudential thinking in England,
G time has come for this Court also to reconsider the
parameters set down in Bolam test as a guide to decide cases
on medical negligence and specially in view of Article 21 of
our Constitution which encompasses within its guarantee, a
right to medical treatment and medical care.
31
H (2010) 5 SCC 513 : (2010) 2 SCC (Civ) 460
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1227
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

26. In England, Bolam test is now considered merely a “rule A
of practice or of evidence. It is not a rule of law” (see para
1.60 in Clinical Negligence by Michael Powers QC, Nigel
Harris and Anthony Barton, 4th Edn., Tottel Publishing).
However, as in the larger Bench of this Court in Jacob
Mathew v. State of Punjab, Lahoti, C.J. has
B
accepted Bolam test as correctly laying down the standards
for judging cases of medical negligence, we follow the same
and refuse to depart from it.”
[emphasis supplied]
11.4.12 More recently, this Court in Arun Kumar Manglik v. C
Chirayu Health and Medicare (P) Ltd.32 has held that the standard
of care as enunciated in Bolam (supra) must evolve in consonance with
its subsequent interpretation adopted by English and Indian courts.
11.4.13 Applying the aforesaid principles to the facts of the
present case, Appellant Nos. 2 and 3 viz. Dr. G.S. Kochhar and Dr. D
Naveen Jain, the Consultant Paediatricians, undoubtedly possessed the
skill and qualifications of a Paediatrician, and the baby was placed under
their direct care and treatment from birth till he was 3 ½ months old.
They owed a duty of care to the baby and his parents. Appellant No.4-
Dr. S.N. Jha, the Senior Consultant Ophthalmologist, who was engaged
E
by the Appellant No.1-Hospital, and was the specialist in the
Ophthalmology Department, ought to have followed the standard
protocol for screening the Respondent No.1-baby for ROP, which is
prescribed at the chronological age of 3 to 4 weeks after birth.
11.4.14 Appellant Nos.1 to 3 are liable for medical negligence
F
since at no stage were the parents of Complainant No.1 either advised
or guided about the possibility of occurrence of ROP in a premature
baby, nor was the baby examined by Appellant No.4, the
Ophthalmologist as per standard protocol. The doctors ought to have
been fully aware of the high chances of occurrence of ROP in a pre-
term baby. The lack of care constitutes a gross deficiency in service. G
After discharge on 29.04.2005, the baby was brought on
04.05.2005 at the chronological age of 5 weeks. Even on this date, no
ROP test was either advised or conducted.
32
(2019) 7 SCC 401 H
1228 SUPREME COURT REPORTS [2019] 16 S.C.R.

A The baby was brought for a further follow up check-up on
13.07.2005, by which time the baby was 3 ½ months old. Even on this
visit, the Appellants did not advise or guide the Respondent No.2-
Complainant to have the ROP test conducted.
11.4.15 After reviewing the medical literature setting out the
B contemporaneous standards and established protocols on ROP, the
reasonable standard of care for a premature baby, mandates screening
and checking up for ROP. It is a medically accepted position that ROP
is a reversible disease, if diagnosed up to Stage 3. Had the ROP test
been conducted by the Appellants, there would have been timely
detection of the onset of ROP, which at that stage would have been
C reversible.
On account of the negligence of the Appellants 2 to 4, the disease
remained undiagnosed. It came to be diagnosed on 03.12.2005, when
the baby was 8 months old, by Shroff Charity Eye Hospital. By this
time, the ROP had reached Stage 5, when it becomes irreversible
D leading to total blindness of the Respondent No.1- baby.
11.4.16 We affirm the findings of the National Commission to
hold that the Appellant No.1-Hospital, Appellant Nos. 2 and 3- the
Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the Senior
Ophthalmologist, owed a legal duty of care to the Complainants/
Respondents No.1 and 2. The failure to inform the Respondent No.2-
E
mother of the necessity to have the ROP test conducted in the case of
a pre-term baby, and the high risk involved which could lead to total
blindness, was a breach of duty. Furthermore, the failure to carry out
the ROP test, which is mandated by standard protocol, while the baby
was under their direct care and supervision from birth till he was 3 ½
F months old, amounted to gross negligence by the Doctors, and deficiency
of service by the Hospital. The consequential damage caused to the
baby by not having conducted the mandatory ROP test, which led to
the total blindess of the baby, has given rise to an actionable claim of
negligence.
11.4.17 It is well established that a hospital is vicariously liable
G
for the acts of negligence committed by the doctors engaged or
empanelled to provide medical care.33 It is common experience that
33
Savita Garg v. National Heart Institute (2004) 8 SCC 56; Balram Prasad (2014)
1 SCC 384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of
Maharashtra (1996) 2 SCC 634; V. Krishnakumar v. State of Tamil Nadu, (2015) 9
H SCC 388 : (2015) 4 SCC (Civ) 546
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1229
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

when a patient goes to a hospital, he/she goes there on account of the A
reputation of the hospital, and with the hope that due and proper care
will be taken by the hospital authorities. 34 If the hospital fails to
discharge their duties through their doctors, being employed on job basis
or employed on contract basis, it is the hospital which has to justify the
acts of commission or omission on behalf of their doctors. 35
B
11.4.18 Accordingly, we hold Appellant No.1-Hospital to be
vicariously liable for the acts of omission and commission committed
by Appellant Nos. 2 to 4. We hold all the Appellants as being jointly
and severally liable to pay compensation to the Complainants.
11.5 Compensation C
11.5.1 Having affirmed the findings recorded by the National
Commission on the question of medical negligence and deficiency in
service by the Appellants, the issue whether the compensation awarded
by the National Commission was just and reasonable is required to be
determined.
D
The Complainants had claimed Rs. 1,30,25,000/- as compensation
before the National Commission. The National Commission vide the
Impugned Judgment awarded a total sum of Rs. 64,00,000/- to the
Complainants along with interest.
11.5.2 This Court vide Order dated 06.11.2019 directed the E
Appellants to release a sum of Rs.5,00,000/- (Rupees Five Lakhs) in
favour of the Respondent No.2-Complainant from the amount lying
deposited by the Appellant No.1-Hospital in the Court.
This Court further directed the Complainant/Respondent No.2 to
file an affidavit regarding the education received by the Respondent F
No.1, and the level of proficiency he had attained.
11.5.3 Accordingly, the Respondent No.2- Complainant has stated
on affidavit that the Respondent No.1, who is now 14 years old, was
studying in a Government Senior Secondary School for Blind Boys,
Kingsway Camp from 2013 to 2017, and barely received education for G
4 years, up to 5th standard. The Respondent No.1 was forced to leave
school since the Respondent No.2-Complainant was unable to bear his
educational, co-curricular and transportation expenses. The father of
34
Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694
35
Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694 H
1230 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Respondent No.1, who was working as a security guard with the
Municipal Corporation of Delhi, had expired in 2013. The Respondent
No.2-Complainant stated that she is currently employed as a part-time
receptionist since 2017, and earns Rs. 5,500/- per month as salary, and
receives Rs. 2,500/- per month under the Delhi Vidhwa Pension Yojna.
She further stated that Respondent No.1 received Rs. 2,500/- per month
B
under the Delhi Government’s Scheme for Subsistence Allowance to
Persons with Special Needs.
11.5.4 The grant of compensation to remedy the wrong of
medical negligence is within the realm of law of torts. It is based on
the principle of restitutio in integrum. The said principle provides that
C
a person is entitled to damages which should as nearly as possible get
that sum of money which would put him in the same position as he
would have been if he had not sustained the wrong.36
11.5.5 In our considered view, having regard to the finding that
D the medical negligence in the instant case occurred in 2005, and the
litigation has been pending before this Court for over 3 years, coupled
with the fact that the additional monthly expenses such as the care of
an attendant/nurse, educational expenses of the patient in a special
school, assistive devices etc. have not been taken into account, it would
serve the ends of justice if the compensation awarded by the National
E
Commission is enhanced, by a further lump-sum amount of Rs. 12,00,000
(Rupees Twelve Lakhs).
11.5.6 In conclusion, we pass the following directions to secure
the interest and welfare of Respondent No.1. These directions are being
passed to ensure that the compensation received is utilized for the
F
welfare of Respondent No.1, to enable him to acquire suitable education
and equip him to become self-reliant.
We direct that the compensation of Rs. 76,00,000/- awarded to
the Respondent No.1- Master Rishabh Sharma s/o Mrs. Pooja Sharma
G (in C.A. No. 6619 of 2016), be utilized in the following manner:

36
Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay
Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663
: (2010) 2 SCC (Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 :
(2015) 4 SCC (Civ) 546; Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014)
H 1 SCC (Civ) 327
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1231
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

a) Rs. 60,00,000/- (Rupees Sixty Lacs Only) is allocated A
exclusively for Respondent No.1- Master Rishabh
Sharma for his education, welfare, and sustenance;
b) Rs. 15,00,000/- (Rupees Fifteen Lacs Only) is allocated
to Mrs. Pooja Sharma, the mother of Master Rishabh
Sharma, as his care-giver, after deduction of an amount B
of Rs.5,00,000/- already disbursed to her.;
c) Rs. 1,00,000/- (Rupees One Lac Only) is awarded
towards litigation costs, payable to Mr. Jai Dehadrai,
Advocate and Mr. Sidharth Arora, Advocate, who have
represented the Complainants on a pro bono basis (as C
stated by them) in this Court.
11.5.7 The amount of Rs. 60,00,000/- awarded to Master Rishabh
Sharma shall be disbursed in the following manner:
A. Rs. 50,00,000/- be deposited in a Five Years’ Post Office Time
D
Deposit Scheme in the name of Master Rishabh Sharma with Mrs.
Pooja Sharma as his natural guardian. Let five deposits in multiples of
Rs. 10,00,000/- each be made. The deposits shall be opened in the Post
Office Savings Bank Account of the Supreme Court Post Office, New
Delhi. The account shall be operated by Mrs. Pooja Sharma under the
supervision of the concerned Registrar of this Court. E
The aforesaid five deposits aggregating to Rs.50,00,000/-
will fetch Master Rishabh Sharma an annual interest income of
Rs.3,85,000/-, which will be credited into a Savings Account with the
Post Office. Out of the said sum, Rs.1,50,000/- shall be invested annually
in a 15 Year Public Provident Fund (“PPF”) Account to be opened in F
the name of Master Rishabh Sharma with UCO Bank, Supreme Court,
Tilak Marg, New Delhi. These yearly investments, going by the
provisions of the Income Tax Act, 1961, will be tax free.
After having invested Rs.1,50,000/- every year in a PPF account,
the rest of the yearly income amounting to Rs.2,35,000/- p.a. (from and G
out of Rs.3,85,000/-) which is equivalent to about Rs.20,000/-per month,
shall be utilized by Respondent No.2- Mrs. Pooja Sharma for the
education and upbringing of Respondent No.1.
B. Rs.4,50,000/- shall be deposited in a Five Year Post Office
Monthly Income Scheme Account (“MIS Account”) with the Supreme H
1232 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Post Office in the name of Master Rishabh Sharma so that it will give
him monthly interest of 7.6% p.a., that is to say Rs.2,850/- per month,
which shall be utilized by his Mrs. Pooja Sharma primarily for the
upbringing of Respondent No.1.
C. The balance of Rs. 5,50,000/- from the amount deposited by
B the Appellants, shall be invested in a Five Year Fixed Deposit Account
(“FD Account”) to opened with UCO Bank, Supreme Court, Tilak
Marg, New Delhi in the name of Master Rishabh Sharma. The interest
accruing therefrom may be utilized by Mrs. Pooja Sharma in such
manner as is deemed appropriate.
C D. These investments will ensure an annual income of
approximately Rs. 4,50,000/-. With the investment of Rs. 1,50,000/- in
a PPF Account, which will be tax free, as the annual income of Rs.
3,00,000/- will be within the permissible tax exemption limit of Rs.
3,00,000/- plus Rs. 75,000/- (Disability Allowance under Section 80U
of the Income Tax Act,1961).
D
E. All these deposits on maturity shall be re-invested by
Respondent No.2 – Pooja Sharma with the concurrence of the
concerned Registrar of this Court on such terms, which will fetch a
high rate of interest, and preserve the corpus for the benefit of
Respondent No.1. At no stage, will the Respondent No.2 be permitted
E to withdraw any amount from these deposits without the permission of
the concerned Registrar.
11.5.8 We direct the concerned Registrar of this Court to be
associated with Respondent No.2- the mother of Master Rishabh
Sharma, in giving effect to the directions issued hereinabove.
F
12. Accordingly, we allow Civil Appeal No. 9461 of 2019 (Diary
No. 15393 of 2019) filed by the Complainants.
13. Civil Appeal No. 6619 of 2016 filed by the Hospital and the
Doctors is dismissed. The Appellant Nos. 1 to 4 in Civil Appeal No.
6619 of 2016 are directed to deposit the balance amount of. Rs.
G
44,00,000/- in this Court within a further period of 12 weeks from today.
14. An affidavit of compliance with respect to the deposit of
compensation be filed by the Appellants before this Court.
15. We have been informed by the Registry of this Court that
H the amount of Rs. 32,00,000/-, which was deposited by the Appellants
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER 1233
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]

pursuant to Order dated 29.07.2016 of this Court, and kept in a A
Fixed Deposit with UCO Bank, has accrued an interest of about
Rs. 3,80,954/-. We direct that this interest amount be made over to
Mrs. Pooja Sharma, the mother and care-giver, for the welfare and
education of Master Rishabh Sharma, for the current year.
16. The original medical records be returned by the Registry to B
the counsel for the Appellant No.1-Hospital.
Pending Applications, if any, are accordingly disposed of. Ordered
accordingly.

C
Ankit Gyan Appeals disposed of.

D

E

F

G

H