Civil Appeal No.4619 of 2019

10th May 2019.

Petitioner Counsel: Ms. KAMLESH JAIN Mr. PRADEEP KUMAR YADAV Ms. C. RUBAVATHI Mr. M.A. CHINNASAMY Ms. RICHA DHAWAN Mr. S. PEER MOHAMMAD
Respondent Counsel: Mr. RAJEEV SHARMA
Act Name:

Section :

Cases Cited :

JUDGEMENT

Hemant GuptaJ. - The challenge in the present appeal is to an order passed by the National Consumer Disputes Redressal Commission [NCDRC] on 02.11.2015 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 Commission [SCDRC] vide order dated 12.11.2014.

2. Sanjay Kumar aged about 15 years son of Appellant complained of abdominal pain fever and haemorrhage in both eyes. 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

3. The patient was operated upon on 11.11.1995 when the platelets 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 Medical College and Hospital (PMCH) where the patient died on 16.11.1995.

4. In consumer complaint under the Consumer Protection Act 1986 [1986 Act]the Appellant produced an affidavit of Dr. Hare Ram Singh then posted in Jharkhand State Assembly at Russian Hostel Dhurwa P.S. Jaganathpur District Ranchi. Dr. Hare Ram Singh opined that Bleeding Time (BT) was 3 00 against normal value of 2-4 seconds and Clotting 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 blunder and clear case of extreme negligence of doctors.

5. The surgery was performed on 11.11.1995 at about 11.15 AM. The postoperative note of the operating team reads as under

Operative Findings Numerous R.W. in the small gut with yellowish collection of fluid in the peritoneal cavity.

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 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 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 SCDRC and paid by the Kurji Holy Family Hospital is just a proper 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 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 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.

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.

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 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 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 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.2019 SCC OnLine SC 197[2019 ALL SCR 1324] held as under-

13. In fact this Court in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others(2010) 3 SCC 480[2010 ALL SCR 510] 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 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 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 reported as V. Krishnakumar v. State of Tamil Nadu and Others (2015) 9 SCC 388[2015(5) ALL MR 474 (S.C.)] 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-

19. The principle of awarding compensation that can be safely relied on is restitutio in integrum. This principle has been recognised and relied on in Malay Kumar Ganguly v. Sukumar Mukherjee (2009) 9 SCC 221 and in Balram Prasad case (2014) 1 SCC 384in the following passage from the latter (Malay Kumar Ganguly case SCC p. 282para 170)

16. In a Judgment of this Court reported as National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 [2018 ALL SCR 953]a Constitution Bench 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-

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.

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 and absolved the Operating Surgeon from any liability. When the SCDRC 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 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 by SCDRC on 12.11.2014.

20. Thus the appeal is partly allowed in the manner mentioned above.

Appeal partly allowed.