Case: Jaswinder Singh &amp; Another Vs. Santokh Nursing Home &amp; Others

a foreign body, like a mop was left inside the abdomen of the deceased at the time of surgery conducted by Dr. Rashmi Jain. It is true that in such a surgical procedure, the surgeon is assisted by other doctor and paramedical staff like nurses, etc. who also owe a duty to count the mops used during the surgical procedure to ensure that all the mops/swabs so used had been retrieved before the operated organ is sutured. However, the surgeon cannot be abjure of his/her overall responsibility even in that behalf and cannot be allowed to take the plea that it was not his/her concern to ensure that no mop/swab was left in the abdomen. The pieces of mop/swab left inside the abdomen of the patient had led to infection and septicaemia which ultimately led to her death despite the best possible treatment the patient could be given in other upgraded hospital. The State Commissioner was therefore, fully justified in holding the nursing home as well as Dr. Rashmi Jain guilty of negligence and deficiency in service in giving the medical treatment to the deceased. The said finding is based on correct appreciation of evidence and material placed on record and calls for no interference from this commission. This finding also finds some support from the recent judgment of the Hon’ble Supreme Court in Martin F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1 : (2009) 1 SCC (Civ) 735 : (2009) 1 SCC (Cri) 958 : (2009) 1 CPJ 32”. 6. The national Commission then considered the question whether the compensation awarded by the State Commission was excessive, took cognizance of the assertion made before it that the deceased was not generating any income by practising any occupation for gain and she was merely a homemaker and reduced the amount of compensation to Rs.8,00,000/-. 7. Shri Himanshu Gupta, learned counsel for the appellants argued that the impugned order Santokh Nursing Home v. Jaswinder Singh, First Appeal No. 506 of 2005 order dated 7-7-2009 (NC), is liable to be set aside because the National Commission has not assigned cogent reasons for reducing the amount of compensation by Rs.4,34,414.50. The learned counsel submitted that the particular perception entertained by the members of the National Commission about the value of the services rendered by a housewife could not be made basis for reducing the amount of compensation awarded by the State Commission. 8. Shri Rajiv Kataria, learned counsel appearing for respondent 3 argued that the National Commission did not commit any error by reducing the amount of compensation because the appellants did not produce any evidence to show that the deceased was gainfully employed. He further argued that the State Commission committed grave error by applying the multiplier of 13 ignoring that the deceased was fifty years old at the time of surgery and death.9. The learned counsel for Respondent 1 and 2 submitted that the hospital was insured with Respondent 4 and the insurance company has already paid a sum of Rs.5,00,000/-. 10. We have considered the submissions of the learned counsel and carefully perused the record. 11. In our view, the National Commission committed serious error by reducing the amount of compensation by assuming that the award made by the State Commission was on higher side. The mere fact that the deceased was a homemaker was not sufficient to deny adequate compensation to the appellants in lieu of the services rendered by her see Arun Kumar Agrawal v. National Insurance Co. Ltd. (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664 : (2010) 3 SCC (Cri) 1313. In that case, this court considered the questions whether compensation could be awarded keeping in view the gratuitous services rendered by a housewife, referred to several precedents including some judgments of the English courts and held: (SCC pp.237-38, paras 26-27) “26. In India the courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother. In that context, the term ‘services’ is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like grand-mother may volunteer to render some of the services to the family which the deceased was giving earlier”. 12. By applying the ratio of the aforesaid judgment in Arun Kumar Case (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664 : (2010) 3 SCC (Cri) 1313 to the facts of this case, we hold that the National Commission committed grave error by reducing the amount of compensation determined by the State Commission.

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

Explanation:
1[ds]In India the courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother. In that context, the termis required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like grand-mother may volunteer to render some of the services to the family which the deceased was giving