While holding the doctors of one of the government hospitals, guilty of medical negligence, NCDRC has directed Delhi Government to pay a compensation of Rs 8 lakh to the legal heirs of a person who died due to excessive dose of radiation field applied on his body during radiotherapy. Said order of the Commission was pronounced on a revision petition filed by wife and children of deceased who were dissatisfied with the compensation of Rs 5 lakh awarded by the State Commission. Another revision petition was also filed in the same matter by Delhi Government seeking reprieve from the liability to pay compensation. Earlier, the deceased had undergone an operation for removal of a malignant tumor cell of D-7 Vertebra in G.B. Pant Hospital but as he developed the same symptoms again, he was referred to Lok Nayak Jai Prakash Narain (LNJP) hospital for some tests and Radiotherapy. In LNJP, due to lack of proper monitoring and excessive heat on the affected portion of the body during Radiotherapy, he suffered paralysis below the chest and ultimately passed away. Complaint was filed before District Forum alleging medical negligence in the matter by the legal heirs. The Forum awarded Rs. 8 lakh for compensation which was later reduced to Rs. 5 lakh by the State Commission. After careful perusal of material on record, NCDRC observed that there was not only lack of proper supervision on the part of the treating doctor when the deceased was being subjected to Radiotherapy, even the dose prescribed for radiation was excessive, which was the cause of the death of the deceased. Commission noted that as the negligent doctors were on pay rolls of the government hospital, Government is liable to pay compensation. NCDRC further noted that “the deceased was employed as an Assistant Engineer in a private company; at the time of his death he was the sole bread earner in the family consisting of four members; the loss of dependency on his death at the young age of about 46 years; we are of the view that restoration of the amount of compensation of 8,00,000/- awarded by the District Forum would be just and adequate compensation”
Print Page
National Consumer Disputes Redressal
Himanchal Kumari vs The Govt. Of N.C.T. Of Delhi on 27 January, 2015
HONBLE MR. JUSTICE D.K. JAIN
PRESIDENT
HONBLE
MR. VINAY KUMAR, MEMBER
(Pronounced on 27th day of January, 2015) D.K. JAIN, J. PRESIDENT These two cross Revision Petitions under Section 21(b) of the Consumer Protection Act, 1986 (for short the Act) arise from order dated 15.09.2008 passed by the Delhi State Consumer Disputes Redressal Commission (for short the State Commission) in Appeals No. 453 of 2007 and 532 of 2007. Revision Petition No. 4191 of 2008 is by the Complainants, the legal heirs of late Sh. Ramveer Singh, who are dissatisfied with the quantum of the compensation awarded by the State Commission, whereas, RP No. 191 of 2009 is preferred by the Government of NCT of Delhi through Director of Health Services, being aggrieved by the fastening of entire liability for medical negligence on one of its hospitals, viz. Lok Nayak Jai Prakash Narain Hospital (for short LNJP Hospital), New Delhi.
2. The material facts, as emerging from the complaint, necessary for disposal of the Revision Petitions are as follows:-
On 16.12.1997, late Sh. Ramveer Singh, aged about 46 years employed as Assistant Manager (Workshop) in Indfos Industries Ltd. Ghaziabad, was admitted in G.B. Pant Hospital, New Delhi.
On 19.12.1997 he was operated for removal of a malignant tumor cell of D-7 Vertebra. He was discharged on 26.12.1997. However, he again developed the same symptoms and was admitted in the same hospital on 25.04.1998, in the unit of Dr. A.K. Singh. After another operation, on 01.05.1998, he was discharged on 08.05.1998. Dr. A.K. Singh referred him to LNJP Hospital because of availability of facility of Radiotherapy in that hospital, for removal of tumor tissues developed in the body. He was subjected to necessary tests at LNJP Hospital and his file for treatment was prepared in the Radiotherapy Department on 12.05.1998.
The therapy commenced on 25.05.1998. The affected part of the body was subjected to Radiotherapy once or twice by putting lead blocks around the affected area (D-7 Level) of the spinal cord and on rest of the days, it was conducted by putting wet cotton gauze in place of lead blocks. Due to lack of proper monitoring and excessive heat on the affected portion of the body of Ramveer Singh, he suffered paralysis below the chest and ultimately passed away on 20.10.2004.
3. Alleging medical negligence on the part of one Dr. Deepali (Opposite Party No. 2 in the complaint) and one Mrs. Suman Gupta, Technician (Opposite Party No. 3 in the complaint), a complaint (CC No. 818 of 2003) was filed in the District Consumer Disputes Redressal Forum, Central, Kashmere Gate, New Delhi (for short the District Forum) praying for a compensation of `19,25,726/- with interest @ 12% p.a. The Government of NCT was Opposite Party No. 1 in the complaint. The break up of the claim was as follows:
SCHEDULE S.No.
Particulars Amount (Rs.)
1. Salary Loss 9,00,240/-
2. Interest loss of P.F. (self) 5,040/-
3. P.F. loss & its interest loss (Company) 20,455/-
4. F.P.F. (family pension fund) loss 32,833/-
5. V.P.F. (Voluntary P.F.) interest loss 4,200/-
6. Medical Reimbursement loss 32,833/-
7. Superannuation loss with interest 55,877/-
8. L.T.A. loss 38,500/-
9. Gratuity loss 88,688/-
Total 11,78,676/-
10. Medical expenses on complt. No.2 1,02,150/-
11. Transportation 42,300/-
12. Medical expenses on complt.No.1 30,600/-
13. Loss of earning of elder son 1,00,000/-
14. Extra expenditure on attendant 72,000/-
15. Harassment & Mental agony 4,00,000/-
Total 7,47,050/-
Grand Total 19,25,726/-
4. Vide order dated 28.02.2006 the complaint was dismissed by the District Forum on the ground that the Complainants were not Consumers within the meaning of the Act. However, the said order was set aside by the State Commission, with a direction to the District Forum to decide the complaint on merits.
5. In opposition to the complaint, a common Written Version was filed on behalf of the Opposite Parties, including the LNJP Hospital. A preliminary objection to the maintainability of the complaint raised was that it was bad for non-joinder of necessary party, in as much as the treating Doctor, namely Dr. Manoj Sharma, had not been arrayed as a party to the complaint. On merits, while admitting sequence of the treatment given to the deceased at the LNJP Hospital, it was stated that it was the duty of the treating doctor and not of the said Dr. Deepali, who had joined the Radiology Department as Junior Resident just two days before the treatment and that there was absolutely no negligence of any kind on the part of Mrs. Suman Gupta, who was a fully trained technician of Radiotherapy, having an experience of about 26 years in the field.
6. On consideration of the pleadings and evidence adduced by the parties, the District Forum held that both Dr. Deepali and Mrs. Suman Gupta were callous and negligent while subjecting the deceased to Radiotherapy. Accordingly, the District Forum directed the Opposite Parties to pay to the Complainants a lump sum compensation of `8,00,000/-, which included the medical expenses, along-with a sum of `10,000/- as costs of litigation. All the Opposite Parties were made liable, jointly and severally.
7. Being aggrieved, Dr. Deepali (Appeal No. 453 of 2007) and Government of NCT alongwith Mrs. Suman Gupta (Appeal No. 532 of 2007) filed Appeals before the State Commission assailing the correctness of the order made by the District Forum.
8. On reappraisal of the material on record, the State Commission has exonerated Dr. Deepali observing thus:
Appellant Dr. Deepali Jain was a trainee doctor and had joined the hospital only two days before and the actual treating doctor was Dr. Manoj Sharma and therefore no covert or overt act of negligence was done by this doctor and therefore the question of her being the treating doctor or having administered any medicine or treatment does not arise and she has been thus unnecessarily held to be guilty of medical negligence. Whatever was done was done by doctors who have undertaken the radiotherapy and as such the hospital alone is liable.
9. As regards the allegation against Mrs. Suman Gupta, the State Commission has observed as follows:
Normally radiotherapy is conducted in the hospital by technicians and that is why there is always requirement of supervision of doctor who is treating the patient. In spite of Dr. Suman Gupta having marked the affected part of the body once or twice and thereafter she did not visit the patient during the entire course of radiotherapy, which was conducted for 38 long days and was apparently done negligently. The patient thereafter was referred to AIIMS and since the damage had already been done there was no chance of any further improvement.
10. In so far as the LNJP Hospital is concerned, the State Commission has taken the view that when a patient dies or suffers injuries due to negligence of doctors at the Government Hospitals, Health Centers and Dispensaries, these Hospitals, Health Centers and Dispensaries, as the case may be, alone are liable for compensating the patient. It has been observed that:
Whenever a patient lands himself in a hospital, private or government, his direct contract is with the hospital and not with the attending staff or the doctors as there is no consideration paid to those doctors or staff individually. Moreover, a patient does not know which of the doctors or staff will attend to him.
Therefore, the direct relationship is between the patient and the hospital. Therefore, no individual doctor is liable and can be held jointly or severally liable. Even visiting doctors or consulting doctors in private hospitals are concerned, they cannot be held liable. The consumer does not avail service of such doctors individually by paying fees or consideration to those doctors directly. It is only those persons whose services are hired or availed that come within the net of service provider.
11. However, finding the compensation awarded by the District Forum to be on the higher side, the State Commission has held that a lump sum compensation of `5,00,000/-, to be paid by the LNJP Hospital, alone, shall meet the ends of justice. Hence, the present Revision Petitions.
12. We have heard Learned Counsel for the parties. Dr. Deepali appeared in person to explain her stand.
A bare perusal of the stand of the LNJP Hospital in the Appeal filed on its behalf by the Govt. of NCT, leaves no scope for any doubt that on Hospitals own showing there was gross negligence while subjecting the deceased to Radiotherapy. For the sake of ready reference, a few relevant paragraphs of the Appeal preferred by the Govt. of NCT and Mrs. Suman Gupta (Technician) (Appeal No. 532/07), assailing the order of the District Forum are extracted below:
4. That Ld.
District Forum had failed to appreciate the fact that Dr. Manoj Sharma, the consultant of the case had prescribed an excessively high dose of radiation to this patient and the treatment had not been prescribed in an appropriate manner. For delivering radiotherapy on a vertebral body a margin of a half vertebral body above and below the affected vertebra is absolutely adequate, however, the consultant (Dr. Manoj Sharma) applied a direct radiation field on the patient of a size of 13 cm by 6 cm and had delivered radiation dose of 4000 c. Gy in 20 fractions from 21.5.1998 to 22.6.1998, then he prescribed another radiation dose to the same area with a direct field size of 7 cm by 6 cm from 27.06.1998 to 11.07.1998 delivering a further dose of 16c.Gy in 8 fractions. Subsequently, from 13.7.1998 to 21.7.1998 another radiation dose of 2500 cGy in 10 fractions had been delivered by a direct field to the same area.
This crystal clearly (sic) shows that the consultant of the case had delivered a total radiation dose of 8100 c.Gy between 21.5.1998 and 21.7.1998.
5. That Ld.
District Forum had failed to appreciate the fact that this had highly exceeded the radiation tolerance of the spinal cord which is a very sensitive and vital structure of the human body.
It is further submitted that the direct radiation field applied on the body of the patient had harmed the patient to a great extent considering that such a high dose of radiation had been delivered on an unusually high area and for a tumour arising from the vertebral body the consultant should have applied a posterior-oblique wedged pair of fields to limit the radiation dose to the spinal cord.
6. That Ld.
District Forum had failed to appreciate the fact that alternatively a three field wedged technique could have saved the patient from the effect of very high dose of radiation. (sic) A relatively low dose of radiation of 3500 c.Gy in 15 daily fractions over three weeks using megavoltage radiation would have kept the tumour under control in this case. In those cases where radiotherapy is the primary treatment a relatively higher radiation dose of 50 c.Gy in 20-25 fractions over 4-5 weeks is all that is needed. However, care needs to be taken to keep the dose within the spinal cord tolerance with vertebral tumors to clarify it more. The maximum of radiation that a particular tissue/organ can tolerate is called as the tolerance dose. Exceeding this tolerance dose may result in major and sometimes fatal consequences. Although they may be resistant to immediate radiation effects, they show belated changes after a latent period of few months and it is a clear case where a patient had died due to the very high dose of radiation doses delivered to him by the direct field that may have caused radiation myelitis and there is no negligence on part of respondent no. 2 and 3 while treating the patient at this hospital.
7. That Ld.
District Forum had failed to appreciate the fact that Ld. District Forum had given weightage to Dr. Manoj Sharma comments on the patients file, however the same may be possibly an (sic) after thought and probably to settle some personal score against the doctor and the technician. However the same comments have not been signed by him which clearly puts a question mark on the intention behind it.
13. It was thus, a categorical stand of the Hospital/ Government that the treating doctor Dr. Manoj Sharma, had prescribed excessive dose of radiation to the deceased; a direct radiation field applied on the body of the patient had harmed the patient to a great extent; he should have applied a posterior-oblique wedge pair of fields to limit the radiation dose to the spinal cord; a three field wedged technique would have saved the patient from the effect of very high dose of radiation and it was a clear case where the deceased had died due to a very high dose of radiation by direct field, which might have caused radiation myelitis. According to the Hospital itself, there was clear negligence on the part of Dr. Manoj Sharma, the treating doctor but no negligence could be attributed either to Dr. Deepali or to Mrs. Suman Gupta. In view of the aforestated clear stand of the Hospital, accepting medical negligence on the part of the treating Doctor i.e. Dr. Manoj Sharma, it must follow as a necessary corollary that no lapse could be attributed to both Dr. Deepali (attending on the deceased for two sessions) and Mrs. Suman Gupta, Technician, as they were only following the instructions/prescription of the treating doctor, Dr. Manoj Sharma.
14. Therefore, the questions surviving for consideration are: (i) Whether non-impleadment of the treating doctor (Dr. Manoj sharma) is fatal to the very maintainability of the complaint; (ii) whether the Hospital alone could be held liable for payment of compensation for the medical negligence on the part of its treating doctor and
(iii) whether the compensation awarded by the State Commission is adequate?
15. A precise question whether non-joinder of a treating doctor or the nursing staff can result into dismissal of the claim petition fell for consideration of the Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56. Overturning the decision of this Commission where the complaint was dismissed on the ground of non-joinder of the necessary parties, as the attending doctors, against whom the medical negligence had been alleged, were not impleaded as party, the Honble Supreme Court observed as follows:-
The patients once they are admitted to such hospitals, it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it does not, then the hospital cannot take shelter under the technical ground that the surgeon concerned or the nursing staff, as the case may be, was not impleaded, and therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence.
In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution/hospital than that on the claimant. The institution is a private body and they are responsible to provide efficient service and if in discharge of their efficient service there are couple of weak links which have caused damage to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties. (Emphasis Supplied)
16. The Court finally concluded thus:-
nothing turns in not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/or hospital,. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital, which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities. (Emphasis Supplied)
17. In Cassidy Vs. Ministry of Health (1951) 2 KB 343, Lord Denning J. said that a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract for service arising in the course of the performance of their professional duties. The authority owes a duty to give proper treatment medical, surgical, nursing and the like and therefore, it may delegate the performance of that duty to those who are not its servants, it remains liable if that duty be improperly or inadequately performed by its delegates. In light of the legal principle laid down by the Honble Supreme Court, the Complaint has rightly not been summarily dismissed on the ground that the treating doctor had not been impleaded as a party.
18. We may now move to the second question. Answer to the question would not detain us for long in the light of the pleadings in the case. Specific allegations in the Complaint, relating to lack of proper care and negligence read as follows:-
4. That the Radiotherapy was conducted on the body of the deceased once or twice by putting lead blocks around the affected area (D-7 Point) of the Spinal Cord and on rest of the days it was conducted by putting only wet cotton gauges in place of Lead blocks. The Radiotherapy should be done only on the affected area of the body otherwise if any area which is not affected by tumour may become senseless if exposed to radiation because the radiation adversely affects the healthy cells of the body. Therefore, the marking of the affected area is required to be done by the concerned doctor from time to time in order to ensure that only the tumour-affected portion of the body receives radiation when the technician conducts the Radiotherapy. It is exactly for this reason that the area around the affected portion has to be covered by putting lead blocks over it so that no part other than the affected part receives radiation. The putting of lead blocks around the affected area ensures this. It is needless to say that Radiotherapy by the technician has to be applied under the regular supervision of the doctors treating the patient.
5. That the opposite party No. 2 marked the affected part of the body of the deceased only once or twice and thereafter she never put any marks on his body and she never came to the deceased during entire course of the Radiotherapy treatment to check up its focus or to supervise the work of the opposite party No. 3 in the process, whereas opposite party No. 2 was obliged to monitor/supervise the Radiotherapy given to the deceased.
6. That the Radiotherapy was conducted on the deceased for 38 days. The therapy was applied most negligently and against specific instructions on the point as stated above by the opposite party No. 3, who is not even a trained technician for imparting Radiotherapy. The deceased was not aware about this fact. As a result of extremely negligent application of Radiotherapy, the legs of the patient became lame, numb and senseless. The deceased took treatment at L.N.J.P. and G.B. Pant Hospitals and also he was referred to the All India Institute of Medical Sciences (AIIMS), New Delhi during the course of the treatment. But there was no improvement.
19. A common response on behalf of the Opposite Parties to the said paragraphs, was as under:
3. The treatment in the cobalt room is delivered by the technicians as per prescriptions of the treating doctors.
In case of any doubt, technician takes the advice of the treating doctor. As far as supervision is concerned, it is the duty of the treating doctor to supervise as required. The resident doctors themselves are students and cannot supervise.
4. In reply to para 4, it is submitted that the reply given in preceding para be read as part of this para also, contents of which are not being repeated herein for the sake of brevity. However, it is further submitted that it is the duty of the treating doctor and not the respondent no. 2, who is a junior resident doctor and joined the department only two days before the treatment i.e. on 23.05.1998 and the treatment was started on 25.05.1998. All the allegations levelled against the respondents in the para under reply are absolutely wrong and vehemently denied.
5. That the contents of para 5 of the complaint are wrong and denied. It is wrong and denied that the therapy was applied most negligently and against specific instructions on the point as stated above by the respondent no. 3, as alleged. In this regard, it is submitted that there is absolutely no negligence of any kind on the part of the respondent, who is fully trained technician of Radiotherapy, having experience of 26 years in the field. The allegations levelled in the para under reply are baseless, hence wrong and denied.
6. In reply to para 6, it is submitted that the remarks given by Dr. Manoj Sharma on 10.11.1998, in which he has recorded the statement of patient is only for hearsay and cannot be an evidence in Court of Law. It seems that the complainant has gathered some wrong information to implicate the answering respondents to make easy money. The recording of Dr. ManoJ Sharma is after almost of four months completion of Radiotherapy, which ended on 24.07.1998. (sic) If the patient was so learned, then he should have reported the matter during the treatment i.e. from 25.05.1998 to 24.07.1998, (sic) therefore, on the face of it, it appears to be after-thought, with malafide intentions and without any basis.(Emphasis supplied)
20. It is clear from the afore-extracted pleadings that while strongly denying the allegation of negligence on the part of Dr. Deepali and Mrs. Suman Gupta, on the plea that the former had joined the department as Junior Resident Doctor only two days before the treatment had started and the latter was a trained technician in Radiotherapy, having an experience in the field for over 26 years, it was stated that treatment in the cobalt room is given as per the prescription of the treating doctors and it was the duty of the treating doctor (Dr. Manoj Sharma) to supervise the treatment. Certain doubts on the propriety etc. of remarks of Dr. Manoj Sharma, on the orders dated 10.11.1998 were also raised. A bare reading of the said paragraphs, coupled with Hospitals specific stand in its Appeal before the State Commission, extracted in paragraph 13 (supra), clearly shows that, according to the Hospital itself, there was not only lack of proper supervision on the part of the treating doctor when the deceased was being subjected to Radiotherapy, even the dose prescribed for radiation was excessive, which was the cause of the death of late Shri Ramveer Singh. In other words, on Hospitals own showing its doctor was negligent in treating the deceased and, therefore, in the light of the legal position, as noted above, LNJP Hospital, who had Dr. Manoj Sharma on its pay rolls, is liable for the negligence of the said doctor, notwithstanding the fact that the Complainants had not alleged any kind of medical negligence on his part. As noted supra, LNJP Hospital owed a duty to give proper treatment to the deceased be it in prescription or in therapy, and as, according to it, the treatment given by its doctor, was improper, liability to pay compensation can be fastened on it alone. We hold accordingly.
21. Time to advert to the third question, viz, the adequacy of compensation. As stated above, in their Complaint, the Complainants had claimed a total compensation of `19,25,726/- under various heads. As against this, the District Forum awarded a lump sum compensation of `8,00,000/- . The Complainants seemed to have resiled to their fate and accepted the said compensation, inasmuch as they did not approach the next Forum for enhancement.
However, the said award having been challenged by the Opposite Parties, the State Commission reduced the compensation to a lump sum amount of `5,00,000/-, which order is under challenge by both the parties.
22. In Reshma Kumar and Ors. Vs. Madan Mohan and Anr. (2009) 13 SCC 422, the Honble Supreme Court, reiterated that the compensation awarded under the Act should be just. The Court also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the said judgment read as follows:-
26. The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
27. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
47. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefore.
23. In this regard the following observations of the Supreme Court in Nizams Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors. (2009) 6 SCC 1 may also be noticed:-
We must emphasize that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.
24. Recently in Balram Prasad Vs. Kunal Shah and Ors. (2014) 1 SCC 384, the Honble Supreme Court has again emphasized that it is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation.
25. In the instant case, in addition to the loss of salary, Provident Fund, Family Pension etc. which the deceased would have been entitled to, the Complainants had also claimed compensation under several other specific heads viz. medical expenses, loss of earning of the elder son, harassment and mental agony etc. However, unfortunately hardly any evidence/material was brought on record by the Complainants in support of their claims under different heads. No documents worth its name, indicating the present earnings of the deceased, his future prospects, pay scales, pensionary benefits etc. were filed by the Complainants. Only bald assertions regarding average monthly expenditure of `800/- and his elder son leaving studies in order to support the family on the demise of his father were made in the complaint. Under the circumstances, exercise to determine adequate compensation becomes difficult and leaves hardly any option but to apply a rule of thumb measure. Precisely, for this reason, the District Forum awarded a lump sum compensation of `8,00,000/-, which included the medical expenses and by the same standard the State Commission reduced it to `5,00,000/-. Under the given circumstances, bearing in mind the fact that: the deceased was employed as an Assistant Engineer in a private company; at the time of his death he was the sole bread earner in the family consisting of four members; the loss of dependency on his death at the young age of about 46 years; loss on account of future prospects; the level of devaluation of money each year, we are of the view that restoration of the amount of compensation of `8,00,000/-, awarded by the District Forum as far back as in the year 2007, would be just and adequate compensation. We order accordingly.
26. Resultantly, Revision Petition No. 4191/2008 by the Complainants is allowed and Revision Petition No. 191/2009 by the Government of NCT of Delhi is dismissed. Vide order dated 07.08.09, passed by this Commission in M.A. No.555 of 2009 in R.P.No.191/09, the Respondents/Complainants were granted liberty to withdraw the 50% of the total decretal amount awarded by the State Commission which was deposited with the District Forum in terms of our order dated 02.02.09. We direct that the balance amount of compensation shall be paid by the Government of NCT, Delhi by means of a demand draft in favour of Smt. Himanchal Kumari, wife of the deceased, within four weeks from the date of receipt of a copy of this order, failing which it would attract interest @ 9% p.a. from the date of the complaint till realization. The Complainants shall also be entitled to costs, quantified at `25,000/-.
27. Both the Revision Petitions stands disposed of.
..
(D.K.
JAIN, J.) PRESIDENT ..
(VINAY KUMAR) MEMBER ar/yd
No comments:
Post a Comment