Case: SHODA DEVI Vs. DDU/RIPON HOSPITAL SHIMLA

used as it was a one-time prick for the procedure, yet it should have been used to prevent mishaps. We find no infirmity in the findings of the National Commission, in so far the issue of medical negligence is concerned. However, after having recorded clear findings on medical negligence and after taking note of the aforementioned directions of the State Commission regarding ex gratia payment, the National Commission considered it proper to award to the appellant an additional compensation to the tune of Rs. 2,00,000/-. The question is: as to whether the amount so awarded to the appellant is that of just and reasonable compensation? 15. As regards the quantum of compensation in such cases, it is noticed that in the case of Alfred Benddict v. Manipal Hospital: (2015) 11 SCC 423 , where, for the reason of medical negligence, a 2-year-old girl developed gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life-long suffering, be it her education or marriage prospects, awarded a lump sum of Rs. 20,00,000/- as compensation. Likewise, in the case of Nizams Institute of Medical Sciences (supra), where the complainant had suffered paraplegia as an outcome of the surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while quantifying compensation in such cases. This Court, inter alia, observed as under:-?90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. 91. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself. 92. Mr. Tandale, the learned counsel for the respondent has, further submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.?16. In the ultimate analysis, the requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to the victim, while keeping in view the pecuniary damages as also the non- pecuniary damages like pain and suffering and loss of amenities of life. 16.1 On the facts that have come on record, it appears that the appellant was 45 years of age when she suffered the medical negligence and consequences thereof, leading to amputation of her right arm. It is also apparent that the appellant comes from a very poor and rural background and is covered under Integrated Rural Development Programme. The National Commission, even after finding this one to be a case of medical negligence leading to amputation of right arm, quantified the amount of compensation only at Rs. 2,00,000/-. Even if the ex gratia proposed before the State Commission and the amount awarded by the National Commission are taken together, the total compensation to the appellant comes to Rs. 4,93,526/- only. 16.2 We are constrained to observe that the National Commission, even after appreciating the troubles and trauma as also disablement and disadvantage suffered by the appellant, had been too restrictive in award of compensation. Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation (of course, after having regard to all the attending circumstances). 16.3 Such granting of reasonability higher amount of compensation in the present case appears necessary to serve dual purposes: one, to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and second, to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity. We are impelled to make these observations in the context of an uncomfortable fact indicated on record that when the appellant was writhing in pain, she was not immediately attended at and was snubbed with the retort that ‘the people from hilly areas make unnecessary noise?. Such remarks, obviously, added insult to the injury and were least expected of the professionals on public duties. 16.4. Apart from the above, when the appellant is shown to be a poor lady from rural background, her contribution in ensuring the family meeting both ends also deserves due consideration. With her disablement and reduced contribution, the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to the appellant and to her family.

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

Explanation:
1[ds]13. Having heard learned counsel for the parties and having examined the record, we are clearly of the view of that while the findings on medical negligence on the part of the respondents do not call for any interference, a clear case for enhancement of the amount of compensation is made out.On perusing the order of the State Commission, it is but apparent that the State Commission though recorded that with the onset of gangrene, amputation of the right arm of the appellant was carried out with a view to save her life but dismissed the complaint on rather untenable grounds like that the surgery would not have been successful if sedation was not complete and proper; and that the appellant was referred to another hospital for more effective treatment after all the efforts at the respondent hospital were exhausted. In appeal, the National Commission minutely examined the evidence on record and concluded on the medical negligence of respondents for several counts such as: not providing or making arrangements for an ambulance for proper shifting of the appellant; not attending on the appellant at the first instance on her complaint about unbearable pain and the delay having aggravated the ischemic process; and though cannula was not used as it was a one-time prick for the procedure, yet it should have been used to prevent mishaps. We find no infirmity in the findings of the National Commission, in so far the issue of medical negligence is concerned. However, after having recorded clear findings on medical negligence and after taking note of the aforementioned directions of the State Commission regarding ex gratia payment, the National Commission considered it proper to award to the appellant an additional compensation to the tune of Rs. 2,00,000/-.As regards the quantum of compensation in such cases, it is noticed that in the case of Alfred Benddict v. Manipal Hospital: (2015) 11 SCC 423 , where, for the reason of medical negligence, a 2-year-old girl developed gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life-long suffering, be it her education or marriage prospects, awarded a lump sum of Rs. 20,00,000/- as compensation. Likewise, in the case of Nizams Institute of Medical Sciences (supra), where the complainant had suffered paraplegia as an outcome of the surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while quantifying compensation in such cases.In the ultimate analysis, the requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to the victim, while keeping in view the pecuniary damages as also the non- pecuniary damages like pain and suffering and loss of amenities ofOn the facts that have come on record, it appears that the appellant was 45 years of age when she suffered the medical negligence and consequences thereof, leading to amputation of her right arm. It is also apparent that the appellant comes from a very poor and rural background and is covered under Integrated Rural Development Programme. The National Commission, even after finding this one to be a case of medical negligence leading to amputation of right arm, quantified the amount of compensation only at Rs. 2,00,000/-. Even if the ex gratia proposed before the State Commission and the amount awarded by the National Commission are taken together, the total compensation to the appellant comes to Rs. 4,93,526/-We are constrained to observe that the National Commission, even after appreciating the troubles and trauma as also disablement and disadvantage suffered by the appellant, had been too restrictive in award of compensation. Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation (of course, after having regard to all the attendingApart from the above, when the appellant is shown to be a poor lady from rural background, her contribution in ensuring the family meeting both ends also deserves due consideration. With her disablement and reduced contribution, the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to the appellant and to her family.