NAND KISHORE PRASADversusDR. MOHIB HAMIDI & OTHERS

1076                       [2019]
                SUPREME COURT     7 S.C.R. 1076
                               REPORTS                     [2019] 7 S.C.R.


 A                        NAND KISHORE PRASAD
                                        v.
                       DR. MOHIB HAMIDI & OTHERS
                         (Civil Appeal No. 4619 of 2019)
 B                                MAY 10, 2019
               [DR. DHANANJAYA Y CHANDRACHUD AND
                            HEMANT GUPTA, JJ.]
              Consumer Protection Act, 1986 – Medical Negligence –
 C     Vicarious liability of the Hospital vis-a-vis the Operating Surgeon –
       Appellant’s son-patient complained of abdominal pain, fever and
       haemorrhage in both eyes – Referred by the physician to the
       Hospital-original Opposite Party No.1 – He was taken to the said
       Hospital where he was operated upon when the platelets count was
       35000 per cubic millimeter (cu.mm) – Since the patient was bleeding,
 D
       the relatives of the patient took discharge from the Hospital and on
       the same date admitted him to another Hospital where he died–
       SCDRC held that the operating surgeon (respondent no.1) was
       medically negligent in operating the patient when the platelets count
       was so low and inter alia awarded Rs.4 lakhs as compensation to be
 E     paid by the Hospital and Rs.2 lakhs by respondent no.1 – NCDRC
       set aside the compensation awarded against respondent no.1 holding
       that Rs.4 lakhs awarded against the hospital is just compensation –
       On appeal, held: At the time of admission, the recorded history of
       the patient was complaint of pain in abdomen, fever and
       haemorrhage in both eyes for the past five days – However, there is
 F
       no evidence of critical condition of the patient to be operated upon
       even with low platelet count – Surgery is not proved to be of
       immediate necessity or the only life saving option to save life of a
       patient who had critical platelet count – Action to operate upon the
       patient cannot be said to be prudent decision – It is a case of
 G     unreasonable decision of the Operating Surgeon to operate and
       not a case of “bit negligent” so as to absolve the surgeon from the
       allegation of medical negligence – Finding of NCDRC set aside to
       that extent – When the SCDRC awarded Rs. 6 lakhs as compensation,
       the NCDRC should not have interfered with the amount of
       compensation but could apportion the amount payable by the
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                                       1076
NAND KISHORE PRASAD v. DR. MOHIB HAMIDI & OTHERS 1077


Operating Surgeon to the Hospital as the liability of Hospital to     A
pay the amount of compensation was vicarious as the death
occurred during the course of employment of Operating Surgeon
with the said Hospital – Entire amount of Rs.6 lakhs is payable by
the Hospital which would be just compensation in the facts and
circumstances of the present case – Enhanced compensation of Rs.2
                                                                      B
lakhs be paid by the Hospital along with interest at the rate of 6%
per annum from the date of the order passed by SCDRC.
      Partly allowing the appeal, the Court
      HELD : 1.1 At the time of admission, the recorded history
of the patient was complaint of pain in abdomen, fever and            C
haemorrhage in both eyes for the past five days. However, there
was no evidence of critical condition of the patient to be operated
upon even with low platelet count. The surgery to remove round
worms was not proved to be of immediate necessity to save life
of a patient who had critical platelet count. In the absence of any
evidence that the surgery was the only life saving option available   D
at that time, the action to operate upon the patient cannot be said
to be prudent decision. In the absence of any evidence that the
surgery was the only option even with low blood platelets, the
finding of negligence of the operating surgeon cannot be ignored.
Thus, it is a case of unreasonable decision of the Operating          E
Surgeon to operate and not a case of “bit negligent” so as to
absolve the surgeon from the allegation of medical negligence.
Consequently, the finding of NCDRC to that extent is set aside.
In respect of amount of compensation, the NCDRC held that sum
of Rs.4,00,000/- awarded by the SCDRC against the Hospital is
just compensation. [Paras 12-15] [1081-G-H; 1082-A; E-G]              F

       1.2 The compensation has to be calculated on the basis of
twin criteria of age and income. But in the absence of income of
the father or family, there is no legally acceptable norm available
on record for the enhancement of compensation. The SCDRC
awarded a sum Rs.4,00,000/- as compensation payable by the            G
Hospital and Rs.2,00,000/- by the Operating Surgeon. The
NCDRC found a sum of Rs. 4,00,000/- as just compensation and
absolved the Operating Surgeon from any liability. When the
SCDRC has awarded a sum of Rs. 6,00,000/- as compensation,
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1078           SUPREME COURT REPORTS                      [2019] 7 S.C.R.


 A     the NCDRC should not have interfered with the amount of
       compensation but could apportion the amount of compensation
       payable by the Operating Surgeon to the Hospital as the liability
       of Hospital to pay the amount of compensation is vicarious as the
       death has occurred during the course of employment of Operating
       Surgeon with the said Hospital. Therefore, the entire amount of
 B
       Rs.6,00,000/- is payable by the Hospital which would be just
       compensation in the facts and circumstances of the present case.
       The enhanced amount of compensation of Rs.2,00,000/- shall be
       paid by the Hospital along with interest at the rate of 6% per
       annum from the date of the order passed by SCDRC on
 C     12.11.2014. [Paras 17-20] [1084-G-H; 1085-A-C]
             Arun Kumar Manglik v. Chirayu Medical Health and
             Medicare Private Ltd. 2019 (3) SCALE 333 ; National
             Insurance Company Limited v. Pranay Sethi and Others
             (2017) 16 SCC 680 – relied on.
 D           Kusum Sharma and Others v. Batra Hospital
             and Medical Research Centre and Others (2010) 3 SCC
             480 : [2010] 2 SCR 685 ; V. Krishnakumar v. State of
             Tamil Nadu and Others (2015) 9 SCC 388:[2015] 8
             SCR 100 – referred to.
 E                           Case Law Reference
       2019 (3) SCALE 333            relied on               Para 12
       [2010] 2 SCR 685              referred to             Para 13
       [2015] 8 SCR 100              referred to             Para 15
 F
       (2017) 16 SCC 680             relied on               Para 16
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4619
       of 2019.
             From the Judgment and Order dated 02.11.2015 of the National
 G     Consumer Disputes Redressal Commission, New Delhi in First Appeal
       No. 8 of 2015.
             Kamlesh Jain, Pradeep Kumar Yadav, Ms. C. Rubavathi,
       Ms. Richa Dhawan, V. Senthil Kumar, M. A. Chinnasamy, Advs. for the
       Appellant.
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NAND KISHORE PRASAD v. DR. MOHIB HAMIDI & OTHERS 1079


       Rajeev Sharma, T. Rajat Krishna, Advs. for the Respondents.            A
       The Judgment of the Court was delivered by
       HEMANT GUPTA, J.
      1. The challenge in the present appeal is to an order passed by the
National Consumer Disputes Redressal Commission1 on 02.11.2015                B
whereby the original Opposite Party No. 3 (Respondent No. 1 herein)
was absolved of the damages of Rs. 2,00,000/- imposed by State
Consumer Disputes Redressal Commission2 vide order dated 12.11.2014.
        2. Sanjay Kumar aged about 15 years, son of the Appellant
complained of abdominal pain, fever and haemorrhage in both eyes.             C
Initially, the Appellant had taken his son to a physician Dr. Arun Tiwari
on 08.11.1995 who advised some tests and medicines. He was advised
to consult with the specialist as well. After examining the blood report,
Dr. Arun Tiwari referred the patient to the Kurji Holy Family Hospital-
original Opposite Party No. 1 on 10.11.1995. He was taken to the Hospital
at about 8.00 PM. The recorded history of the patient is as under:            D
       “A 15 years old male patient is admitted in 3A-7 with the complaints
       of fever, pain abdomen and hemorrhage from both eyes since 5
       days.”
       3. The patient was operated upon on 11.11.1995 when the platelets
                                                                              E
count was 35000 per cubic millimeter (cu.mm) at about 11.15 AM. Before
the surgery, the patient was transfused with two units of blood and after
the surgery another two units of blood were transfused. Since the patient
was bleeding and in spite of packing of leakages, the relatives of the
patient took discharge from the Kurji Holy Family Hospital at about 2.00
PM on 13.11.1995. On the same date, the patient was admitted to Patna         F
Medical College and Hospital (PMCH) where the patient died on
16.11.1995.
      4. In consumer complaint under the Consumer Protection Act,
19863, the Appellant produced an affidavit of Dr. Hare Ram Singh, then
posted in Jharkhand State Assembly at Russian Hostel, Dhurwa, P.S.            G
Jaganathpur, District Ranchi. Dr. Hare Ram Singh opined that Bleeding
Time (BT) was 3’ 00" against normal value of 2-4 seconds and Clotting
1
  NCDRC
2
  SCDRC
3
  1986 Act                                                                    H
1080             SUPREME COURT REPORTS                           [2019] 7 S.C.R.


 A     Time (CT) was 5’ 00" against normal value of 3-6 seconds. The affidavit
       further states that there was a second test which shows that the platelets
       decreased excessively and there were very few plasma cells present.
       There was another test conducted before surgery, showing platelets count
       as 35000 per cu. mm. Dr. Hare Ram Singh was of the opinion that to
       operate the patient with excessive low platelets count was the greatest
 B
       blunder and clear case of extreme negligence of doctors.
            5. The surgery was performed on 11.11.1995 at about 11.15 AM.
       The post-operative note of the operating team reads as under:
             “Name(s) of Operation(s) : Exp.Lap. & Extraction of R.W.
 C           Operative Findings: Numerous R.W. in the small gut with yellowish
             collection of fluid in the peritoneal cavity.
             Procedure: The abdomen was opened by midline incision above
             and below the umbilicus. The peritoneal cavity was found to
             contain yellowish fluid a small amount of which was collected
 D           and sent for c/s & biomedical examination. The small gut was
             found to contain many round worms. They were collected at one
             place and extracted out by making a nick in the gut. The wound
             was closed in layers. A rubber corrugated drain was placed in
             the peritoneal cavity. The abdomen was closed in one layer by
 E           vieryl. skin was left open.”
              6. Learned SCDRC found that the patient was haemophilic and
       not peritonitis as diagnosed by the Respondents. However, since the
       platelets count was 35000 per cu.mm against normal range of 1.5 lakhs
       to 4 lakhs per cu. mm, the Operating Surgeon was medically negligent in
 F     operating patient when the platelets count was so low. Thus, the opposite
       party was found negligent in carrying out surgery. The SCDRC awarded
       a sum of Rs. 4,00,000/- as compensation to be paid by the Kurji Holy
       Family Hospital-Opposite Party No.1 and Rs. 2,00,000/- by the Opposite
       Party No.3-Operating Surgeon with 6 percent simple interest, apart from
       Rs. 32,000/- as expenditure incurred in medical treatment and the litigation
 G     costs of Rs. 25,000/-. In appeal by the Operating Surgeon, the amount
       of compensation awarded against Operating Surgeon was set aside by
       NCDRC.
             7. The NCDRC though held the Opposite Party No. 3 wee bit
       negligent but, it found that the amount of compensation awarded by the
 H
NAND KISHORE PRASAD v. DR. MOHIB HAMIDI & OTHERS 1081
               [HEMANT GUPTA, J.]

SCDRC and paid by the Kurji Holy Family Hospital is just a proper                 A
compensation. The Operating Surgeon was warned to be careful in
future.
        8. The argument of the learned counsel for the Appellant is that it
is a case of sheer medical negligence in operating the son of the Appellant
even though he had low platelet count as 35000 cu.mm as against normal            B
platelet count of 1.5 lakhs cu.mm to 4 lakhs cu. mm.
       9. On the other hand, learned counsel for the Respondents argued
that when the patient was admitted on 10.11.1995, there was haemorrhage
in both eyes for the last five days. After admission as per the affidavit of
Dr. Hare Ram Singh, the first BT and CT test were done at about 8.55              C
pm (pg. 23 of paper book) which was quite low. The second test which
was higher than the normal bleeding and clotting time was conducted at
7.30 AM on 11.11.1995 (pg. 24 of paper book). Another test was
conducted at 9.00 AM on 11.11.1995 (pg. 25 of paper book). The last
test before the surgery was conducted at 10.30 AM.
                                                                                  D
       10. It is thus, contended that the patient was in difficult and critical
medical condition. Therefore, the option with the Surgeon was to try to
save life by removing the round worms and transfuse blood to facilitate
recovery of the patient. It was bona fide decision taken by the Operating
Surgeon in the situation in which the patient was. Therefore, performing
of surgery on 11.11.1995 at 11.15 AM is not a case of medical negligence.         E

       11. It is contented that the affidavit of Dr. Hare Ram Singh is in
respect of reports immediately before the surgery but there is no report
in respect of the medical condition of the patient at the time of his
admission to the Kurji Holy Family Hospital. Therefore, the affidavit of
Dr. Hare Ram Singh is not the complete evidence as without reporting              F
about the condition of the patient at the time of admission, it is not possible
for another doctor to report whether the action of Operating Surgeon
was negligent or not.
       12. At the time of admission, the recorded history of the patient is
complaint of pain in abdomen, fever and haemorrhage in both eyes for              G
the past five days. However, there is no evidence of critical condition of
the patient to be operated upon even with low platelet count. The surgery
to remove round worms is not proved to be of immediate necessity to
save life of a patient who had critical platelet count. In the absence of
any evidence that the surgery was the only life saving option available at
                                                                                  H
1082             SUPREME COURT REPORTS                              [2019] 7 S.C.R.


 A     that time, the action to operate upon the patient cannot be said to be
       prudent decision. This Court recently in Arun Kumar Manglik v.
       Chirayu Medical Health and Medicare Private Ltd. 4 held as under:-
              “53. In the practice of medicine, there could be varying
              approaches to treatment. There can be a genuine difference of
 B            opinion. However, while adopting a course of treatment, the
              medical professional must ensure that it is not unreasonable. The
              threshold to prove unreasonableness is set with due regard to the
              risks associated with medical treatment and the conditions under
              which medical professionals function. This is to avoid a situation
              where doctors resort to ‘defensive medicine’ to avoid claims of
 C            negligence, often to the detriment of the patient. Hence, in a
              specific case where unreasonableness in professional conduct has
              been proven with regard to the circumstances of that case, a
              professional cannot escape liability for medical evidence merely
              by relying on a body of professional opinion.”
 D            13. In fact, this Court in Kusum Sharma and Others v. Batra
       Hospital and Medical Research Centre and Others5, held that the
       “Doctors in complicated cases have to take chance even if the rate of
       survival is low. The professional should be held liable for his act or omission,
       if negligent; is to make life safer and to eliminate the possibility of
 E     recurrence of negligence in future”. But, in the absence of any evidence
       that the surgery was the only option even with low blood platelets, the
       finding of negligence of the operating surgeon cannot be ignored.
             14. Thus, we find that it is a case of unreasonable decision of the
       Operating Surgeon to operate and not a case of “bit negligent” so as to
 F     absolve the surgeon from the allegation of medical negligence.
       Consequently, the finding of NCDRC to that extent is set aside.
              15. In respect of amount of compensation, the NCDRC held that
       sum of Rs.4,00,000/- awarded by the SCDRC against the Hospital is
       just compensation. The appellant relies upon judgment of this court
 G     reported as V. Krishnakumar v. State of Tamil Nadu and Others6 to
       claim enhanced amount of compensation. In the said case of medical
       negligence at the time of delivery of a baby girl born to middle class
       family, this Court held as under:-
       4
         2019 SCC OnLine SC 197
       5
         (2010) 3 SCC 480
 H     6
         (2015) 9 SCC 388
NAND KISHORE PRASAD v. DR. MOHIB HAMIDI & OTHERS 1083
               [HEMANT GUPTA, J.]

       “19. The principle of awarding compensation that can be safely           A
       relied on is restitutio in integrum. This principle has been
       recognised and relied on in Malay Kumar Ganguly v. Sukumar
       Mukherjee 7 and in Balram Prasad case8, in the following passage
       from the latter: (Malay Kumar Ganguly case, SCC p. 282, para
       170)
                                                                                B
          “170. Indisputably, grant of compensation involving an accident
          is within the realm of law of torts. It is based on the principle
          of restitutio in integrum. The said principle provides that a
          person entitled to damages 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.              C
          (See Livingstone v. Rawyards Coal Co9)”
       An application of this principle is that the aggrieved person should
       get that sum of money, which would put him in the same position
       if he had not sustained the wrong. It must necessarily result in
       compensating the aggrieved person for the financial loss suffered        D
       due to the event, the pain and suffering undergone and the liability
       that he/she would have to incur due to the disability caused by the
       event.”
       16. In a Judgment of this Court reported as National Insurance
Company Limited v. Pranay Sethi and Others10, a Constitution Bench              E
has laid down parameters for the grant of compensation in respect of
claims arising out of Motor Vehicular accidents as just compensation
has to be determined on the foundation of fairness, reasonableness and
equitability on acceptable legal standard because such determination can
never be in arithmetical exactitude. The Court held as under:-                  F
       “55. Section 168 of the Act deals with the concept of “just
       compensation” and the same has to be determined on the
       foundation of fairness, reasonableness and equitability on
       acceptable legal standard because such determination can never
       be in arithmetical exactitude. It can never be perfect. The aim is       G
       to achieve an acceptable degree of proximity to arithmetical
       precision on the basis of materials brought on record in an individual
7
  (2009) 9 SCC 221
8
  (2014) 1 SCC 384
9
  (1880) LR 5 AC 25 (HL)
10
   (2017) 16 SCC 680                                                            H
1084                SUPREME COURT REPORTS                            [2019] 7 S.C.R.


 A              case. The conception of “just compensation” has to be viewed
                through the prism of fairness, reasonableness and non-violation
                of the principle of equitability. In a case of death, the legal heirs of
                the claimants cannot expect a windfall. Simultaneously, the
                compensation granted cannot be an apology for compensation. It
                cannot be a pittance. Though the discretion vested in the tribunal
 B
                is quite wide, yet it is obligatory on the part of the tribunal to be
                guided by the expression, that is, “just compensation”. The
                determination has to be on the foundation of evidence brought on
                record as regards the age and income of the deceased and
                thereafter the apposite multiplier to be applied. The formula relating
 C              to multiplier has been clearly stated in Sarla Verma11 and it has
                been approved in Reshma Kumari12. The age and income, as stated
                earlier, have to be established by adducing evidence. The tribunal
                and the courts have to bear in mind that the basic principle lies in
                pragmatic computation which is in proximity to reality. It is a well-
                accepted norm that money cannot substitute a life lost but an
 D
                effort has to be made for grant of just compensation having
                uniformity of approach. There has to be a balance between the
                two extremes, that is, a windfall and the pittance, a bonanza and
                the modicum. In such an adjudication, the duty of the tribunal and
                the courts is difficult and hence, an endeavour has been made by
 E              this Court for standardisation which in its ambit includes addition
                of future prospects on the proven income at present. As far as
                future prospects are concerned, there has been standardisation
                keeping in view the principle of certainty, stability and consistency.
                We approve the principle of “standardisation” so that a specific
                and certain multiplicand is determined for applying the multiplier
 F
                on the basis of age.”
              17. Thus, the compensation has to be calculated on the basis of
       twin criteria of age and income. But in the absence of income of the
       father or family, there is no legally acceptable norm available on record
       for the enhancement of compensation.
 G
             18. The SCDRC has awarded a sum Rs.4,00,000/- as
       compensation payable by the Hospital and Rs.2,00,000/- by the Operating
       Surgeon. The NCDRC found a sum of Rs. 4,00,000/- as just compensation
       11
            (2009) 6 SCC 121
       12
 H          (2013) 9 SCC 65
NAND KISHORE PRASAD v. DR. MOHIB HAMIDI & OTHERS 1085
               [HEMANT GUPTA, J.]

and absolved the Operating Surgeon from any liability. When the SCDRC         A
has awarded a sum of Rs. 6,00,000/- as compensation, the NCDRC
should not have interfered with the amount of compensation but could
apportion the amount of compensation payable by the Operating Surgeon
to the Hospital as the liability of Hospital to pay the amount of
compensation is vicarious as the death has occurred during the course
                                                                              B
of employment of Operating Surgeon with the said Hospital.
       19. Therefore, we find that the entire amount of Rs.6,00,000/- is
payable by the Hospital which would be just compensation in the facts
and circumstances of the present case. The enhanced amount of
compensation of Rs.2,00,000/- shall be paid by the Hospital along with
interest at the rate of 6% per annum from the date of the order passed        C
by SCDRC on 12.11.2014.
      20. Thus, the appeal is partly allowed in the manner mentioned
above.
                                                                              D
Divya Pandey                                         Appeal partly allowed.




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