Case: SHODA DEVI Vs. DDU/RIPON HOSPITAL SHIMLA

4. Having regard to the subject matter of this appeal, the background aspects, so far relevant for the present purpose, could be noticed, in brief, asDue to the complications that had arisen in regard to the arm of the appellant, which could not be handled by the team of doctors at DDU Hospital, she was shifted to Indira Gandhi Medical College and Hospital, Shimla (IGMCH) in a taxi arranged by her husband. In IGMCH, she was administered Brachial Plexus Block treatment immediately and, on being examined by CW-2, she was diagnosed with?acute arterial occlusion with ischemia of limb, caused by intra-arterial injection?, which ultimately resulted in CW-1 amputating her right arm above the elbow on 22.07.2006.Having thus suffered the loss of limb, the appellant, apart from filing FIR under Section 338 IPC on 27.07.2006 at Police Station, Sadar, Shimla, preferred the consumer complaint on 28.09.2006, seeking compensation with the submissions, inter alia, that after several hours of complaints, the respondent No. 2 attended on her with a team of doctors consisting of general physician and gynaecologist in a rather casual manner; that no proper service was provided to her; that she was shifted to IGMCH only in a taxi arranged by her husband; and that she suffered amputation only due to the medical negligence of the medicos and para-medicos of the respondent No. 1.The respondents filed their separate counter affidavits in opposition to the complaint so made by the appellant. The sum and substance of such counter affidavits had been that the respondents had provided services with utmost caution and care; that the appellant was to undergo a minor surgery viz., Fractional Curettage wherefore, the staff nurse administered an intravenous injection prior to the surgery; that the entire procedure lasted for about 5 minutes and the appellant cooperated during the procedure, which was conclusive of the fact that the intravenous injection was administered properly; that after being shifted to the ward, when the appellant complained about severe pain in the right forearm, she was attended at immediately but when onset of limb ischemia was confirmed, she was referred to IGMCH for further treatment as DDU Hospital was not equipped with CTVS Department; that on reaching IGMCH, immediate treatment was administered to the appellant but, despite all possible treatment, her right arm had to be amputated as gangrene had started to set in. Thus, the respondents asserted that the appellant was provided immediate and necessary treatment; and that there was no negligence and/or deficiency in their service.The appellant examined Dr. Rajneesh Pathania, Professor & Head, CTVS, IGMCH, Shimla as CW-1 who produced the case history of the appellant and pointed out that she had arrived at the hospital in emergency with a history of severe pain in the right forearm and she was diagnosed with acute limb ischemia and treatment was given on these lines; but with the onset of gangrene, the right arm was amputated under his supervision to save the life of appellant. CW-1 further stated that the reaction to an injection administered could take place irrespective of the route of administration; that severity of limb ischemia is more if the whole drug is given intra arterially and occurs one in a million; and that preventive efforts should have been taken when the complaint of pain was made at the first instance. He further stated that the treatment administered at DDU hospital was the one accepted as an initial line of treatment for management of pain in similar situations. Dr. R.G. Negi CW-2, who was the first doctor to examine the appellant in IGMCH, also made the statement in concurrence with that of CW-1. The appellant got herself examined where she denied all the suggestions put to her by the respondent but admitted that she did not complain about any pain when she was shifted from the operation theatre. It was pointed out that the medical board had assessed her permanent disablement at 80%.During the course of hearing of the matter, the State Commission made an order on 16.09.2008, expecting the Deputy Commissioner, Shimla and the Secretary Health Department to explore the possibility of extending a reasonable ex gratia payment to the appellant, looking to the nature of disablement suffered by her and her poor and rural background. In response thereto, the Senior Medical Superintendent of DDU Hospital stated by way of affidavit that a sum of Rs. 2,93,526/- was assessed in this regard; and if accepted by the appellant, the same may be conveyed to the Director Health Services. Thereafter, the State Commission examined the matter on merits; and, with reference to the evidence of the doctors as also that of the appellant, held that no case of medical negligence was proved. Hence, the State Commission rejected the complaint. But, in view of the order previously passed on 16.09.2008 and response thereto by the Government, the State Commission directed the respondent No. 1 to make ex gratia payment to the tune of Rs. 2,93,526/- to the appellant, if she was willing to accept the same.In appeal against the order of the State Commission, the appellant relied on the principle of res ipsa loquitor and also contended that the State Commission overlooked the material facts, the evidence of experts, the delay caused at each and every stage, and the continuous suffering that she had to undergo from the time of minor operation, to the amputation of her right arm and thereafter as well.The National Commission meticulously examined the evidence on record and particularly, the evidence of CW-1 Dr. Rajneesh Pathania and CW- 2 Dr. R.J. Negi as regards the cause of onset of gangrene on the appellant?s right arm as also the preventive measures which could have been, but were not, taken by the respondents. While holding it to be a clear case of medical negligence, the National Commission allowed the appeal but enhanced the compensation only to the tune of Rs. 2,00,000/-.

Reasoning: 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.