Case: NAND KISHORE PRASAD Vs. MOHIB HAMIDI

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 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 384 , in the following passage from the latter: (Malay Kumar Ganguly case, SCC p. 282, para 170)“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. (See Livingstone v. Rawyards Coal Co (1880) LR 5 AC 25 (HL) )”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 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 Others (2017) 16 SCC 680 , 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:-“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 to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual 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 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 to multiplier has been clearly stated in Sarla Verma (2009) 6 SCC 121 and it has been approved in Reshma Kumari (2013) 9 SCC 65 . 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 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 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 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.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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.14. Thus, we find that it is a case of unreasonable decision of the Operating Surgeon to operate and not a case ofso as to absolve the surgeon from the allegation of medical negligence. Consequently, the finding of NCDRC to that extent is set aside.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.