DR. S. M. KANTIKAR, PRESIDING MEMBER

1. The instant Appeal filed against the Order of the State Commission dated 25.10.2018 in Consumer Complaint No. 246/2007, wherein the State Commission granted Rs. 20 lakh without any interest, which was much less than reasonable and just compensation. 

2. There was delay of 84 days in filing the instant appeal. For the reasons stated in the application   the delay is condoned.

3. The Appellants filed the present Appeal on three grounds:

 (A) Enhancement of the compensation from Rs. 20,00,000/- to Rs. 50,00,000/-.

(B) The interest to be awarded on the amount of compensation either from the date of surgery(06.02.2006) or from filing of the complaint before the State Commission, New Delhi(2007)  

(C) To Hold the doctor guilty and impose fine/penalty upon him.

4. We have heard the learned Counsel for the Parties. 

5. Succinctly put the chronology of proceedings of the case, we note initially, vide Order dated 14.06.2013 the State Commission held the Opposite Parties Nos. 1 and 2 guilty of medical negligence and awarded the sum of Rs. 50 lakh along with interest @ 9% p.a. from the date of surgery (06.02.2006) along with Rs. 2 lakh as litigation cost. 

6. Both the parties appealed the impugned order before this Commission; which by its Order dated 21.02.2018 remitted back the matter to the State Commission. The relevant observations of this Commission in both the appeals - F.A. No. 931 of 2016 and F.A. No. 1324 of 2016 are reproduced as below:

5.       In that view of the matter, in our opinion, the order impugned in both the Appeals is unsustainable.  In the instant case, admittedly, final arguments in the Complaint were heard by two Members – Judicial and Administrative but due to the retirement of the Administrative Member, probably to avoid fresh hearing in the case, the Judicial Member thought it advisable to pronounce the final order himself.  It needs little emphasis that the order has to be pronounced by the “Bench” as constituted by the President of the Commission to hear the case and not by a “Bench” or a Single Member, if in either of the situations, final arguments have not been heard by that Bench or the Single Member, as the case may be.  As noted above, in the present case, the final arguments in the Complaint were heard by two Members and, therefore, only those two Members were competent to pronounce the order, and not by the Member sitting singly.  This is the fundamental rule, which cannot be sacrificed at the altar of administrative convenience.   

6.       Consequently, without going into the merits of the order challenged in these two Appeals, we set aside the same as being illegal on the afore-stated ground and restore the Complaint to the Board of the State Commission for fresh adjudication on merits. 

7. After the remand, matter was heard and the State Commission awarded Rs. 20 lakh compensation with Rs.1 lakh as cost of litigation to the Complainants vide its Order dated 25.10.2018. The relevant operative paragraph is reproduced as below:

36. Keeping the principles detailed above and the facts and circumstances of the case, the age of the deceased, and other necessary and essential factors, we are of the considered view that it would be just and reasonable to award compensation of Rs. 20 Lakhs (Rupees Twenty Lakhs) to the complainants for the suffering, mental pain and agony caused. This may serve the purpose of bringing about a qualitative change in the attitude of the hospitals for providing service to the human beings as human beings. Human touch is necessary; that is their code of conduct; that is their duty and that is what is required to be implemented. Additionally an amount of Rs. One Lakh is awarded as litigation expenses and other miscellaneous charges.

8. The learned Senior Counsel for the Respondent (G.M. Modi Hospital) clarified that the hospital has not filed any Appeal and in compliance of the Order of State Commission, they have offered Rs. 20 lakh to the Complainant. However, the Complainant has not accepted the same.  He further submitted that the State Commission’s award was for the qualitative change in the attitude of the hospital for providing service as human beings. 

9. Admittedly, the Complaint was initially filed by the patient herself and during pendency of the Complaint, she expired and her husband Mr. Madhusudhan Giri as legal heir was impleaded as a Complainant. The learned Counsel for the Complainant prayed for interest on  compensation awarded by the State Commission.  He relied  on judgment of the Hon’ble Supreme Court in Balram Prasad vs. Kunal Saha   case. He brought our attention to the paragraph 129 of the said Judgement, which is reproduced as below:

129. A perusal of the operative portion of the impugned judgment of the National Commission shows that it has awarded interest at the rate of 12% per annum but only in case of default by the doctors of AMRI Hospital to pay the compensation within 8 weeks after the judgment was delivered on October 21, 2011. Therefore, in other words, the National Commission did not grant any interest for the long period of 15 years as the case was pending before the National Commission and this Court. Therefore, the National Commission has committed error in not awarding interest on the compensation awarded by it and the same is opposed to various decisions of this Court, such as in the case of Thazhathe Purayil Sarabi & Ors. Vs. Union of India & Anr. regarding payment of interest on a decree of payment this Court held as under: 

“25. It is, therefore, clear that the court, while making a decree for payment of money is entitled to grant interest at the current rate of interest or contractual rate as it deems reasonable to be paid on the principal sum adjudged to be payable and/or awarded, from the date of claim or from the date of the order or decree for recovery of the outstanding dues. There is also hardly any room for doubt that interest may be claimed on any amount decreed or awarded for the period during which the money was due and yet remained unpaid to the claimants. 

26. The courts are consistent in their view that normally when a money decree is passed, it is most essential that interest be granted for the period during which the money was due, but could not be utilised by the person in whose favour an order of recovery of money was passed. 

27. As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of the right to utilise the money due, which has been, in fact, utilised by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed. 

28. The only question to be decided is since when is such interest payable on such a decree. Though, there are two divergent views, one indicating that interest is payable from the date when claim for the principal sum is made, namely, the date of institution of the proceedings in the recovery of the amount, the other view is that such interest is payable only when a determination is made and order is passed for recovery of the dues. However, the more consistent view has been the former and in rare cases interest has been awarded for periods even prior to the institution of proceedings for recovery of the dues, where the same is provided for by the terms of the agreement entered into between the parties or where the same is permissible by statute.”

10. The Counsel further relied upon the decision of this Commission Yashumati Devi & Ors V Christian Medical College,Vellore     which observed as below: 

34. It is also an established law that under the Act, the consumer fora has jurisdiction to award compensation depending upon established facts and the circumstances of the case. While dealing with such contention in Charan Singh vs. Healing Touch Hospital & Ors. (2000) 7 SCC 668, their Lordships observed that the consumer Forums are required to make an  attempt to serve the purpose of recompensating the individual but which also at the same time aims to bring about the qualitative change in the attitude of service provider. It was observed as under:-

"It is not merely the alleged harm or mental pain, agony or physically discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue - it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence."

 

11. The learned Senior Counsel for Opposite Parties submitted that the complainant has not made any ground in his pleadings for the quantum of compensation. He just vaguely claimed Rs. 50 lakh as compensation for alleged negligence and deficiency in service on the part of the Opposite Parties.   Even, in the instant Appeal, Complainant has not pleaded anything to strengthen his claim.  

12. It is pertinent to note that, the State Commission awarded the compensation for the qualitative change. On perusal of the DMC report, the medical record and the Order of the State Commission we note that to claim the CGHS benefit, about bowel resection was mentioned by the Opposite Parties, though it was not done. Under CGHS there was no package available for CBD exploration. The DMC held that the Surgeon was negligent who ignored the HPE report, thus missed the diagnosis of malignancy, ultimately resulted delay in treatment of malignancy.  We have perused the statement of Dr. Anup Panigrahi recorded before MCI. The   Ethics Committee of MCI, sought opinion from Dr. M.C. Mishra   the Professor and Head of Department of general surgery at AIIMS. He opined that the patient unfortunately suffered cancer of gall bladder but the hospital/doctors created an emergency situation to get benefit under CGHS recognised hospital, though the Surgery was elective. Therefore, he suggested, for making emergency case the hospital and doctors and the patient/husband be reprimanded. The surgeon and hospital must be warned serious action if they found in indulging practice.  The Ethics Committee of MCI held liable Dr. A.K. Panigrahi for medical negligence.

13. We further note that, the DMC has made strong observations on  the patient management  in G.M. Modi Hospital as it was in very lackadaisical manner. The hospital had  inadequate manpower, lack of coordination, no proper record keeping of in-ward and outward (dispatch) of specimen of histo-path. The operative findings and the follow-up advice were not recorded properly. Thus, the hospital ignored all treatment protocols and the surgeon blandly violated the standard norms.  Though, in this case the operated specimen was handed over to the patient’s relative for HPE examination but Dr. Panigrahi did not bother to see/know about the report. However, the patient relatives denied about receipt of any specimen. As per the NABH standard operating procedure (SOP), it is the responsibility of operating surgeon to send the surgical specimen for HPE. It is unfortunate that subsequently the patient developed metastasis in liver and other parts of body and she lost the chance of early cancer therapy. In our considered view it was ‘negligence per se’ of the hospital and the treating surgeon Dr.Panigrahi. The DMC further observed that only CBD exploration was done to claim money from CGHS though admittedly laparoscopic small bowel resection was not done but it was mentioned in discharge summery. The DMC removed the name of Dr. A.K. Panigrahi for 12 weeks from the State Medical register.  

14. In negligence cases, one must prove that there was a duty, that duty was breached, and the breach of that duty caused damages. Negligence per se is not a separate cause of action from negligence suits.  Negligence per se, however, assumes the duty because of public policy or law. “Negligence per se” is defined by the legal field as “negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behaviour standards that it is negligent on its face.”

15. Adverting to the question of quantum of compensation in the medical negligence cases, the principle laid down by the Constitution Bench in the case of   Lata Wadhwa v State of Bihar   and in National Insurance Company Ltd. v Pranay Sethi .   In the instant case, the Surgeon failed in his duty of care and it was not a reasonable standard of practice, thus he was negligent. The State Commission ignored the medical negligence of the Surgeon; and for the qualitative change awarded Rs.20 lakh as compensation.  In our view, the medical negligence is attributed to the doctor and hospital, therefore, the Complainant deserves the compensation. Accordingly, we modify the Order of State Commission that Rs. 20 lakh to be paid as just and fair   compensation for the medical negligence causing death of the patient. We further endorse the view taken by State Commission for the need of qualitative change in functioning of hospital, therefore, the Hospital shall pay Rs.5 lakh more to the Complainant. It is evident that, the incident occurred in year 2005, the Complaint was filed in year 2007  and we are in 2022 beyond 1 ½ decade. Thus as discussed above (para 8 & 9)  the Complainant deserves interest on the total quantum of award.  

16. To conclude, the impugned Order is modified to the extent that the treating Surgeon was liable for medical negligence; as well, the hospital is vicariously liable.  The hospital needs qualitative change and systemic improvement also. Therefore, on the basis of foregoing discussion, the OP/Respondents No.1 and 2 shall pay jointly and severally total compensation of Rs.25 lakh with interest of 6% per annum from the date of filing of the Complaint to the Complainant within 6 weeks from today, failing which it will attract interest @ 9% per annum till its realisation. The cost of litigation shall remain to Rs.1 lakh only.

The First Appeal is partly allowed.