Medical Negligence Case-Anuradha Shaha Case by Supreme Court of India.

Medical Negligent  Historical Case Judgment by Supreme Court of India- Anuradha Shaha Case.

“The appellant-doctors are aggrieved by the quantum of  compensation
awarded by the National Commission and the liability fastened  upon
them for the negligence on their part and have prayed to set  aside
the same by allowing their appeals. In so far as the appellant-AMRI
Hospital is concerned,  it  has  also  questioned  the  quantum  of
compensation awarded and has prayed to reduce the same by  awarding
just and reasonable  compensation  by  modifying  the  judgment  by
allowing its appeal.

So far as the claimant is concerned, he is aggrieved by the said
judgment and the compensation awarded  which,  according  to  him,  is
inadequate, as the same is contrary to the admitted facts and law laid
down  by  this  Court  in  catena  of  cases  regarding  awarding   of
compensation in relation to the  proved  medical  negligence  for  the
death of his wife  Anuradha  Saha  (hereinafter  referred  to  as  the
‘deceased’).

The brief relevant facts and the grounds urged  on  behalf  of  the
appellant-doctors, AMRI Hospital and the claimant in  seriatim  are
adverted to in this common judgment for the  purpose  of  examining
the correctness of their  respective  legal  contentions  urged  in
their respective appeals with a view to pass  common  judgment  and
award.

Brief  necessary  and  relevant  facts  of  the  case  are  stated
        hereunder:

            The  claimant  filed  Original  Petition  No.  240  of  1999  on
09.03.1999 before the National Commission  claiming  compensation  for
Rs.77,07,45,000/- and later the same was amended by  claiming  another
sum of Rs.20,00,00,000/-.  After the case of Malay Kumar  Ganguly  Vs.
Dr. Sukumar Mukherjee[1] was remanded by this Court  to  the  National
Commission to award just and reasonable compensation to  the  claimant
by answering  the  points  framed  in  the  said  case,  the  National
Commission held  the  doctors  and  the  AMRI  Hospital  negligent  in
treating the wife of the  claimant  on  account  of  which  she  died.
Therefore, this Court directed the National  Commission  to  determine
just and reasonable compensation payable to the claimant. However, the
claimant, the appellant-Hospital and the doctors were aggrieved by the
amount of compensation awarded by the National Commission and also the
manner in which liability was apportioned amongst each of them.  While
the claimant was aggrieved by the inadequate amount  of  compensation,
the  appellant-doctors  and  the  Hospital  found  the  amount  to  be
excessive and too harsh. They further claimed that the  proportion  of
liability ascertained on each of  them  is  unreasonable.  Since,  the
appellant-Hospital and the doctors raised similar  issues  before  the
Court; we intend to produce their contentions in brief as under:

On granting the quantum of compensation based on  the  income  of  the
deceased:

. It is the claim of the learned counsel on behalf of the  appellant-
doctors and the Hospital that there is no pleading in the  petition
of the claimant that the deceased had a  stable  job  or  a  stable
income, except in paragraph 2A of the petition  which  states  that
the deceased was a Post-Graduate student and she had submitted  her
thesis. The only certificate produced by the  claimant  shows  that
she was just a graduate in Arts (English).  Further, it is urged by
the learned counsel that the document produced by the claimant –  a
computer generated sheet,  does  not  explain  for  what  work  the
remuneration, if at all was received by the deceased. Also, whether
the same was a  onetime  payment  of  stipend  or  payment  towards
voluntary work, is not explained by the claimant.  Further,  it  is
stated by the learned counsel that there  is  no  averment  in  the
petition of the claimant as to on what account the said payment was
received by the deceased and whether she has received it as a Child
Psychologist as claimed by the claimant or otherwise.

. It is also the case of the appellant-doctors and the Hospital  that
the claimant had not led any  oral  evidence  with  regard  to  the
income of the deceased and further he has not explained why just  a
single document discloses the payment made sometime in the month of
June 1988 in support of the income of the deceased when admittedly,
the couple came  to  India  in  the  month  of  March-April,  1998.
Therefore, the learned counsel for the  appellant-doctors  and  the
Hospital have urged that the said document is a vague document  and
no reliance could have been placed by the  National  Commission  on
the same to come to the conclusion that the deceased  in  fact  had
such an income to determine and award the compensation as has  been
awarded in the impugned judgment and order. From a perusal  of  the
said document, it could be ascertained that it shows just one  time
payment received for some odd jobs.  Therefore, it is contended  by
the appellant-doctors and the Hospital that the  claimant  has  not
been able to discharge his onus by adducing any  positive  evidence
in this regard before the National Commission.

. It is further contended by the learned counsel that  the  assertion
of the claimant in the petition and  in  his  evidence  before  the
National Commission that the income of the deceased was $30,000 per
annum  is  not  substantiated  by  producing  cogent  evidence.  No
appointment letter of the deceased to show that she was employed in
any organization in whatsoever capacity had been produced  nor  has
the claimant  produced  any  income  certificate/salary  sheet.  No
evidence is produced by the claimant in support of  the  fact  that
the deceased was engaged on  any  permanent  work.  No  Income  Tax
Return has been produced by the claimant to show that she had  been
paying tax or had any income in U.S.A.

. It is further submitted that even if it is assumed that the  annual
income of the deceased was $30,000 per annum, apart from  deduction
on account of tax, it is also essential for the National Commission
to ascertain the personal living expenses of the deceased which was
required to be deducted out of the annual income to  determine  the
compensation payable to the claimant.   The National Commission was
required to first ascertain the style of living  of  the  deceased-
whether it was Spartan or Bohemian to arrive the income  figure  of
$30,000 per annum.  In India, on account of style and  standard  of
living of a person, one–third of the gross income is required to be
deducted out of the annual income as laid down in the  decision  of
this Court in the case  of  Oriental  Insurance  Company  Ltd.  Vs.
Jashuben & Ors[2].

It is further contended by the learned counsel for the appellant-
doctors and the Hospital that no  yardstick  is  available  about  the
expenditure of the deceased in the U.S.A. The claimant has not adduced
any evidence in this regard.  The  evidence  given  by  the  so-called
expert, Prof. John F. Burke Jr. also does not  say  anything  on  this
score.

Even if it is assumed that the annual income of the deceased was
$30,000 per annum for which there  is  no  evidence,  25%  thereof  is
required to be deducted towards tax.  The deduction  of  tax  is  much
more as is apparent from the case reported in United  India  Insurance
Co. Ltd. & Others Vs. Patricia Jean Mahajan & Ors[3].   In  fact,  the
claimant has neither adduced any evidence in this regard  nor  has  he
produced the  relevant  statute  from  which  the  percentage  of  tax
deduction can be ascertained.

” The Civil Appeal No. 2866/2012  filed  by  the  claimant-Dr.Kunal
Saha is also partly allowed and the finding on contributory negligence
by the National Commission on the part of the claimant is  set  aside.
The direction of the National Commission to deduct 10% of the  awarded
amount of compensation on account of contributory negligence  is  also
set aside by  enhancing  the  compensation  from  Rs.1,34,66,000/-  to
Rs.6,08,00,550/- with 6% interest per  annum  from  the  date  of  the
complaint to the date of the payment to the claimant.

The AMRI Hospital is directed to comply  with  this  judgment  by
sending demand draft of the compensation awarded in this appeal to the
extent of liability imposed on it after deducting the amount, if  any,
already paid to the  claimant,  within  eight  weeks  and  submit  the
compliance report. “

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