of negligence against the appellant’s claim for compensation
was that at the time of delivery and management, no
deformities were manifested and the complainant was given
proper advice, which was not followed. It was argued on behalf
of the respondent that they had taken sufficient precautions,
even against ROP by mentioning in the discharge summary as
follows:
“Mother confident; Informed about alarm signs; 1) to
continue breast feeding 2) To attend post natal O.P. on
Tuesday."
9. It must, however, be noted that the discharge summary
shows that the above writing was in the nature of a scrawl in
the corner of the discharge summary and we are in agreement
with the finding of the NCDRC that the said remarks are only a
hastily written general warning and nothing more. After a stay
of 25 days in the hospital, it was for the hospital to give a clear
indication as to what was to be done regarding all possible
dangers which a baby in these circumstances faces. It is
obvious that it did not occur to the respondents to advise the
appellant that the baby is required to be seen by a paediatric
ophthalmologist since there was a possibility of occurrence of
ROP to avert permanent blindness. This discharge summary
neither discloses a warning to the infant’s parents that the
infant might develop ROP against which certain precautions
must be taken, nor any signs that the Doctors were themselves
cautious of the dangers of development of ROP. We are not
prepared to infer from ‘Informed about alarms signs’ that the
parents were cautioned about ROP in this case. We find it
unfortunate that the respondents at one stage took a stand that
the appellant did not follow up properly by not attending on a
Tuesday but claiming that the mother attended on a Wednesday
and even contesting the fact that she attended on a Wednesday.
It appears like a desperate attempt to cover up the gross
negligence in not examining the child for the onset of ROP,
which is a standard precaution for a well known condition in
such a case. In fact, it is not disputed that the Respondent
No.3 attended to and examined the baby at his private clinic
when the baby was 14-15 weeks and even then did not take
any step to investigate into the onset of ROP. The Respondent
No.4 also visited the appellant to check up the baby at the
home of the appellant and there are prescriptions issued by the
said Respondent No.4, which suggests that the baby was indeed
under his care from 4 weeks to 13 weeks.
Review of literature of ROP screening guidelines
One thing this report reveals clearly and that is that in the
present case the onset of ROP was reasonably foreseeable. We
say this because it is well known that if a particular danger
One thing this report reveals clearly and that is that in the
present case the onset of ROP was reasonably foreseeable. We
say this because it is well known that if a particular danger
could not reasonably have been anticipated it cannot be said
that a person has acted negligently, because a reasonable man
does not take precautions against unforeseeable circumstances.
Though it was fairly suggested to the contrary on behalf of the
respondents, there is nothing to indicate that the disease of ROP
and its occurrence was not known to the medical profession in
the year 1996. This is important because whether the
consequences were foreseeable or not must be measured with
reference to knowledge at the date of the alleged negligence,
not with hindsight. We are thus satisfied that we are not
looking at the 1996 accident with 2007 spectacles.
that a person has acted negligently, because a reasonable man
does not take precautions against unforeseeable circumstances.
Though it was fairly suggested to the contrary on behalf of the
respondents, there is nothing to indicate that the disease of ROP
and its occurrence was not known to the medical profession in
the year 1996. This is important because whether the
consequences were foreseeable or not must be measured with
reference to knowledge at the date of the alleged negligence,
not with hindsight. We are thus satisfied that we are not
looking at the 1996 accident with 2007 spectacles.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8065 OF 2009
V. KRISHNAKUMAR .. APPELLANT
VERSUS
STATE OF TAMIL NADU & ORS. ..RESPONDENTS
With
CIVIL APPEAL No. 5402 OF 2010
S. A. BOBDE, J.
Citation; AIR 2015 SC 2836
Dated;JULY 1, 2015
These two Civil Appeals are preferred against the
judgment of National Consumer Disputes Redressal Commission
(hereinafter referred to as the ‘NCDRC’) rendering a finding of
medical negligence against the State of Tamil Nadu, its
Government Hospital and two Government Doctors and
awarding a sum of Rs.5,00,000/- to V. Krishnakumar. Civil
1Page 2
Appeal No. 8065 of 2009 is preferred by V. Krishnakumar for
enhancement of the amount of compensation. Civil Appeal No.
5402 of 2010 is preferred by the State of Tamil Nadu and
another against the judgment of the NCDRC. As facts of both
the appeals are same, we are disposing the appeals by this
common judgment.
2. On 30.8.1996, the appellant V. Krishankumar's wife
Laxmi was admitted in Government Hospital for Women and
Children, Egmore, Chennai (hereinafter referred to as the
“Hospital”). Against the normal gestation period of 38 to 40
weeks, she delivered a premature female baby in the 29th week
of pregnancy. The baby weighed only 1250 grams at birth. The
infant was placed in an incubator in intensive care unit for about
25 days. The mother and the baby were discharged on
23.9.1996. A fact which is relevant to the issue is, that the
baby was administered 90-100% oxygen at the time of birth
and underwent blood exchange transfusion a week after birth.
The baby had apneic spells during the first 10 days of her life.
She was under the care of Respondent No.3 - Dr. S.Gopaul,
Neo-paediatrician and Chief of Neo Natology Unit of the Hospital
and Respondent No.4 - Dr. Duraiswamy of the Neo Natology
Unit of the Hospital. The Respondent No.2 is the Director of the
2Page 3
Hospital, which is established and run by the Respondent No.1 –
State of Tamil Nadu under the Department of Health.
3. The baby and the mother visited the hospital on
30.10.1996 at the chronological age of 9 weeks. Follow up
treatment was administered at the home of the appellant by
Respondent No.4, the Government Doctor, Dr. Duraiswamy
during home visits. The baby was under his care from 4 weeks
to 13 weeks of chronological age. Apparently, the only advice
given by Respondent No.4 was to keep the baby isolated and
confined to the four walls of the sterile room so that she could
be protected from infection. What was completely overlooked
was a well known medical phenomenon that a premature baby
who has been administered supplemental oxygen and has been
given blood transfusion is prone to a higher risk of a disease
known as the Retinopathy of Prematurity (hereinafter referred
to as ‘ROP’), which, in the usual course of advancement makes
a child blind. The Respondent No.3, who was also a Government
Doctor, checked up the baby at his private clinic at
Purassaiwakkam, Chennai when the baby was 14-15 weeks of
chronological age also did not suggest a check up for ROP.
4. One thing is clear about the disease, and this was not
contested by the learned counsel for the respondents, that the
disease occurs in infants who are prematurely born and who
have been administered oxygen and blood transfusion upon
birth and further, that if detected early enough, it can be
prevented. It is said that prematurity is one of the most
common causes of blindness and is caused by an initial
constriction and then rapid growth of blood vessels in the retina.
When the blood vessels leak, they cause scarring. These scars
can later shrink and pull on the retina, sometimes detaching it.
The disease advances in severity through five stages - 1, 2, 3, 4
and 5 (5 being terminal stage). Medical literature suggests that
stage 3 can be treated by Laser or Cryotherapy treatment in
order to eliminate the abnormal vessels. Even in stage 4, in
some cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease is allowed to
progress to stage 5, there is a total detachment and the retina
becomes funnel shaped leading to blindness. There is ample
medical literature on the subject. It is, however, not necessary
to refer all of it. Some material relevant to the need for check
up for ROP for an infant is:
“All infants with a birth weight less than 1500 gms or
gestational age less than 32 weeks are required to be
screened for ROP.”1
1 AIIMS Report dated 21.8.2007
Applying either parameter, whether weight or gestational
age, the child ought to have been screened. As stated earlier,
the child was 1250 gms at birth and born after 29 weeks of
pregnancy, thus making her a high risk candidate for ROP.
5. It is undisputed that the relationship of birth weight and
gestational age to ROP as reproduced in NCDRC’s order is as
follows:
“Most ROP is seen in very low-birth weight infants, and the
incidence is inversely related to birth weight and
gestational age. About 70-80% of infants with birth weight
less than 1000 gms show acute changes, whereas above
1500 gms birth weight the frequency falls to less than
10%.”
6. Again, it seems that the child in question was clearly
not in the category where the frequency was less than 10%
since the baby was below 1500 gms. In fact, it is observed by
the NCDRC in its order that the discipline of medicine reveals
that all infants who had undergone less than 29 weeks of
gestation or weigh less than 1300 gms should be examined
regardless of whether they have been administered oxygen or
not. It is further observed that ROP is a visually devastative
disease that often can be treated successfully if it is diagnosed
in time.
7. The need for a medical check up for the infant in
question was not seriously disputed by the respondents.
8. The main defence of the respondents to the complaint
of negligence against the appellant’s claim for compensation
was that at the time of delivery and management, no
deformities were manifested and the complainant was given
proper advice, which was not followed. It was argued on behalf
of the respondent that they had taken sufficient precautions,
even against ROP by mentioning in the discharge summary as
follows:
“Mother confident; Informed about alarm signs; 1) to
continue breast feeding 2) To attend post natal O.P. on
Tuesday."
9. It must, however, be noted that the discharge summary
shows that the above writing was in the nature of a scrawl in
the corner of the discharge summary and we are in agreement
with the finding of the NCDRC that the said remarks are only a
hastily written general warning and nothing more. After a stay
of 25 days in the hospital, it was for the hospital to give a clear
indication as to what was to be done regarding all possible
dangers which a baby in these circumstances faces. It is
obvious that it did not occur to the respondents to advise the
appellant that the baby is required to be seen by a paediatric
ophthalmologist since there was a possibility of occurrence of
ROP to avert permanent blindness. This discharge summary
neither discloses a warning to the infant’s parents that the
infant might develop ROP against which certain precautions
must be taken, nor any signs that the Doctors were themselves
cautious of the dangers of development of ROP. We are not
prepared to infer from ‘Informed about alarms signs’ that the
parents were cautioned about ROP in this case. We find it
unfortunate that the respondents at one stage took a stand that
the appellant did not follow up properly by not attending on a
Tuesday but claiming that the mother attended on a Wednesday
and even contesting the fact that she attended on a Wednesday.
It appears like a desperate attempt to cover up the gross
negligence in not examining the child for the onset of ROP,
which is a standard precaution for a well known condition in
such a case. In fact, it is not disputed that the Respondent
No.3 attended to and examined the baby at his private clinic
when the baby was 14-15 weeks and even then did not take
any step to investigate into the onset of ROP. The Respondent
No.4 also visited the appellant to check up the baby at the
home of the appellant and there are prescriptions issued by the
said Respondent No.4, which suggests that the baby was indeed
under his care from 4 weeks to 13 weeks.
10. The NCDRC has relied on the report dated 21.8.2007 of
the All India Institute of Medical Sciences, New Delhi
(hereinafter referred to as ‘AIIMS’). In pursuance of the order
of the NCDRC, a medical board was constituted by AIIMS
consisting of five members, of which, four are ophthalmological
specialists. The board has given the following opinion:-
"A premature infant is not born with Retinopathy of
Prematurity (ROP), the retina though immature is normal
for this age. The ROP usually starts developing 2-4 weeks
after birth when it is mandatory to do the first screening
of the child. The current guidelines are to examine and
screen the babies with birth weight<1500g and <32
weeks gestational age, starting at 31 weeks
post-conceptional age (PAC) or 4 weeks after birth
whichever is later. Around a decade ago, the guidelines in
general were the same and the premature babies were
first examined at 31-33 weeks post-conceptional age or
2-6 weeks after birth.
There is a general agreement on these above guidelines
on a national and international level. The attached
annexure explains some authoritative resources and
guidelines published in national and international
literature especially over the last decade.
However, in spite of ongoing interest world over in
screening and management of ROP and advancing
knowledge, it may not be possible to exactly predict
which premature baby will develop ROP and to what
extent and why."
Review of literature of ROP screening guidelines
One thing this report reveals clearly and that is that in the
present case the onset of ROP was reasonably foreseeable. We
say this because it is well known that if a particular danger
9
Year Source First
Screening
Who to
screen
2006 American
Academy of
Pediatrics et al.
31 wks PCA or 4
wks after birth
whichever later
<1500gms birth
weight or <32
wks GA or
higher
2003 Jalali S et al.
Indian J
Ophthalmology
31 wks PCA or
3-4 wks after
birth whichever
earlier
<1500g birth
weight or <32
wks GA or
higher
2003 Azad et al. JIMA 32 wks PCA or
4-5 wks after
birth- whichever
earlier
<1500g birth
weight or <32
wks GA or
higher
2002 Aggarwal R et.
Al Indian J.
Pediatrics
32 wks PCA or
4-6 wks after
birth whichever
earlier
<1500 gm birth
weight or <32
wks GA
1997 American
Academy of
Paediatrics et al.
31-33 wks PCA
or 4-6 wks after
birth
<1500 gm birth
weight or <28
wks GA or
higher
1996 Maheshwari R et
al. National Med.
J. India
32 wks PCA or 2
wks after birth
whichever is
earlier
<1500 gm birth
weight or <35
wks GA or
02>24 hrs
1988 Cryotherapy
ROP Group
4-6 wks after
birth
<1250 gms birth
weight
could not reasonably have been anticipated it cannot be said
that a person has acted negligently, because a reasonable man
does not take precautions against unforeseeable circumstances.
Though it was fairly suggested to the contrary on behalf of the
respondents, there is nothing to indicate that the disease of ROP
and its occurrence was not known to the medical profession in
the year 1996. This is important because whether the
consequences were foreseeable or not must be measured with
reference to knowledge at the date of the alleged negligence,
not with hindsight. We are thus satisfied that we are not
looking at the 1996 accident with 2007 spectacles.
11. It is obvious from the report that ROP starts developing
2 to 4 weeks after birth when it is mandatory to do the first
screening of the child. The baby in question was admitted for a
period of 25 days and there was no reason why the mandatory
screening, which is an accepted practice, was not done. The
report of the AIIMS (supra) states that ‘it may not be possible
to exactly predict which premature baby will develop ROP and to
what extent and why’. This in our view underscores the need
for a check up in all such cases. In fact, the screening was
never done. There is no evidence whatsoever to suggest to the
2
See Roe v. Minister of Health [1954] 2 QB 66 and the discussion in ‘Medical
Negligence’, Michael Jones, 4th Edition, Sweet & Maxwell, London 2008 at
page 270.
10Page 11
contrary. It appears from the evidence that the ROP was
discovered when the appellant went to Mumbai for a personal
matter and took his daughter to a paediatrician, Dr. Rajiv
Khamdar for giving DPT shots when she was 4½ months. That
Doctor, suspected ROP on an examination with naked eye even
without knowing the baby’s history. But, obviously Respondent
Nos.3 and 4 the Doctors entrusted with the care of the child did
not detect any such thing at any time. The helpless parents,
after detection got the baby’s eyes checked by having the baby
examined by several doctors at several places. Traumatised and
shocked, they rushed to Puttaparthy for the blessings of Shri
Satya Sai Baba and the baby was anesthetically examined by
Dr. Deepak Khosla, Consultant, Department of Ophthalmology
at Baba Super Specialty Hospital at Puttaparthy. Dr. Khosla did
not take up the case since the ROP had reached stage 5. After
coming back from Puttaparthy, the baby was examined by Dr.
Tarun Sharma alongwith the retinal team of Shankar Netralaya,
who were also of the same opinion. The parents apparently took
the baby to Dr. Namperumal Swamy of Arvind Hospital,
Madurai, who advised against surgery, stating that the baby’s
condition was unfavourable for surgery. The appellant then
learnt of Dr. Michael Tresse, a renowned expert in Retinopathy
11Page 12
treatment for babies in the United States. He obtained a
reference from Dr. Badrinath, chief of Shankar Netralaya and
took his only child to the United States hoping for some ray of
light. The appellant incurred enormous expenses for surgery in
the United States but to no avail.
12. Having given our anxious consideration to the matter,
we find that no fault can be found with the findings of the
NCDRC which has given an unequivocal finding that at no stage,
the appellant was warned or told about the possibility of
occurrence of ROP by the respondents even though it was their
duty to do so. Neither did they explain anywhere in their
affidavit that they warned of the possibility of the occurrence of
ROP knowing fully well that the chances of such occurrence
existed and that this constituted a gross deficiency in service,
nor did they refer to a paediatric ophthalmologist. Further it
may be noted that Respondent Nos. 3 & 4 have not appealed to
this Court against the judgment of the NCDRC and have thus
accepted the finding of medical negligence against them.
Deficiency in Service
13. In the circumstances, we agree with the findings of the
NCDRC that the respondents were negligent in their duty and
were deficient in their services in not screening the child
12Page 13
between 2 to 4 weeks after birth when it is mandatory to do so
and especially since the child was under their care. Thus, the
negligence began under the supervision of the Hospital i.e.
Respondent No.2. The Respondent Nos. 3 and 4, who checked
the baby at his private clinic and at the appellant’s home,
respectively, were also negligent in not advising screening for
ROP. It is pertinent to note that Respondent Nos. 3 and 4
carried on their own private practice while being in the
employment of Respondent No. 2, which was a violation of their
terms of service.
Compensation
14. The next question that falls for consideration is the
compensation which the respondents are liable to pay for their
negligence and deficiency in service. The child called Sharanya
has been rendered blind for life. The darkness in her life can
never be really compensated for in money terms. Blindness can
have terrible consequences. Though, Sharanya may have
parents now, there is no doubt that she will not have that
protection and care forever. The family belongs to the middle
class and it is necessary for the father to attend to his work.
Undoubtedly, the mother would not be able to take Sharanya
out everywhere and is bound to leave the child alone for
13Page 14
reasonable spells of time. During this time, it is obvious that she
would require help and maybe later on in life she would have to
totally rely on such help. It is therefore difficult to imagine
unhindered marriage prospects or even a regular career which
she may have otherwise pursued with ease. She may also face
great difficulties in getting education. The parents have already
incurred heavy expenditure on the treatment of Sharanya to no
avail. It is, thus, obvious that there should be adequate
compensation for the expenses already incurred, the pain and
suffering, lost wages and the future care that would be
necessary while accounting for inflationary trends.
15. There is no doubt that in the future Sharanya would
require further medical attention and would have to incur costs
on medicines and possible surgery. It can be reasonably said
that the blindness has put Sharanya at a great disadvantage in
her pursuit for making a good living to care for herself.
16. At the outset, it may be noted that in such cases, this
court has ruled out the computation of compensation according
to the multiplier method. (See Balram Prasad vs. Kunal Saha,
(2014) 1 SCC 384 and Nizam’s Institute of Medical Sciences vs.
Prashant S. Dhananka and Others, (2009) 6 SCC 1.
14Page 15
The court rightly warned against the straightjacket approach of
using the multiplier method for calculating damages in medical
negligence cases.
Quantification of Compensation
17. The principle of awarding compensation that can be
safely relied on is restitutio in integrum. This principle has been
recognized and relied on in Malay Kumar Ganguly vs. Sukumar
Mukherjee, (2009) 9 SCC 221 and in Balram Prasad’s case
(supra), in the following passage from the latter:
“170. Indisputably, grant of compensation involving an
accident is within the realm of law of torts. It is based on
the principle of restitutio in integrum. The said principle
provides that a person entitled to damages should, as
nearly as possible, get that sum of money which would
put him in the same position as he would have been if he
had not sustained the wrong. (See Livingstone v.
Rawyards Coal Co.).”
An application of this principle is that the aggrieved person
should get that sum of money, which would put him in the same
position if he had not sustained the wrong. It must necessarily
result in compensating the aggrieved person for the financial
loss suffered due to the event, the pain and suffering undergone
and the liability that he/she would have to incur due to the
disability caused by the event.
15Page 16
Past Medical Expenses
18. It is, therefore, necessary to consider the loss which
Sharanya and her parents had to suffer and also to make a
suitable provision for Sharanya’s future.
19. The appellant - V. Krishnakumar, Sharanya’s father is
the sole earning member of a middle class family. His wife is
said to be a qualified accountant, who had to sacrifice her
career to attend to the constant needs of Sharanya. Sharanya’s
treatment and the litigation that ensued for almost two decades
has been very burdensome on account of the prolonged
physical, mental and financial hardships, which her parents had
to undergo. It appears that the total expenditure incurred by
the appellant from the date of the final verdict of the NCDRC
(27.5.2009) until December, 2013 is Rs.8,13,240/-. The
aforesaid amount is taken from the uncontroverted statement of
expenditure submitted by the appellant. The appellant has
stated that he had incurred the following expenditure for
Sharanya’s treatment, for which there is no effective counter, till
December, 2013:
Medical
Expenses
Amount Supporting
Document
a)Till December
2003
28,63,771/- Exhibit P1-P4
b)January 2004- 2,57,600/- Annexure A-8
16Page 17
October 2007
c)27.5.2009 to
December 2013
8,13,240/- I.A. No.2 of 2014 in
Civil Appeal No. 8065
of 2009
d)January 2014 –
March 2015
2,03,310/- Based on I.A. No.2 of
2014 in Civil Appeal
No. 8065 of 2009
Total (a)+(b)+(c)
+(d)
41,37,921/-
20. Since there is no reason to assume that there has been
any change in the expenditure, we have calculated the
expenditure from January 2014 to March 2015 at the same rate
as the preceding period. In addition, we also deem it fit to
award a sum of Rs. 1,50,000/- in lieu of the financial hardship
undergone particularly by Sharanya’s mother, who became her
primary caregiver and was thus prevented from pursuing her
own career. In Spring Meadows Hospital and Another v. Harjol
Ahluwalia [1998 4 SCC 39] this court acknowledged the
importance of granting compensation to the parents of a victim
of medical negligence in lieu of their acute mental agony and
the lifelong care and attention they would have to give to the
child. This being so, the financial hardship faced by the parents,
in terms of lost wages and time must also be recognized. Thus,
the above expenditure must be allowed.
21. We accordingly direct that the above amount i.e.
Rs.42,87,921/- shall be paid by the Respondent Nos.1 to 4. In
addition, interest at the rate of 6% p.a. shall be paid to the
appellant from the date of filing of the petition before the
NCDRC till the date of payment.
Future Medical Expenses
22. Going by the uncontroverted statement of expenditure
for the period from the final verdict of the NCDRC to December,
2013, the monthly expenditure is stated to be Rs. 13,554/-,
resulting in an annual expenditure of Rs. 1,62,648/-. Having
perused the various heads of expenditure very carefully, we
observe that the medical costs for Sharanya’s treatment will not
remain static, but are likely to rise substantially in the future
years. Sharanya’s present age is about 18 ½ years. If her life
expectancy is taken to be about 70 years, for the next 51 years,
the amount of expenditure, at the same rate will work out to Rs.
82,95,048/-. It is therefore imperative that we account for
inflation to ensure that the present value of compensation
awarded for future medical costs is not unduly diluted, for no
fault of the victim of negligence. The impact of inflation affects
us all. The value of today’s rupee should be determined in the
future. For instance, a sum of Rs. 100 today, in fifteen years,
18Page 19
given a modest 3% inflation rate, would be worth only
Rs.64.13. In Wells v. Wells3
the House of Lords observed that
the purpose of awarding a lump sum for damages for the costs
of future care and loss of future earnings was to put the plaintiff
in the same financial position as if the injury had not occurred,
and consequently the courts had the difficult task of ensuring
that the award maintained its value in real terms, despite the
effect of inflation.
Apportioning For Inflation
23. Inflation over time certainly erodes the value of money.
The rate of inflation (Wholesale Price Index-Annual Variation) in
India presently is 2 percent4
as per the Reserve Bank of India.
The average inflationary rate between 1990-91 and 2014-15 is
6.76 percent as per data from the RBI. In the present case we
are of the view that this inflationary principle must be adopted
at a conservative rate of 1 percent per annum to keep in mind
fluctuations over the next 51 years.
The formula to compute the required future amount is
calculated using the standard future value formula:-
FV = PV x (1+r)n
PV = Present Value
r = rate of return
3
[1999] 1 A.C. 345.
4 Handbook of Statistics, Reserve Bank of India
19Page 20
n = time period
Accordingly, the amount arrived at with an annual inflation rate
of 1 percent over 51 years is Rs.1,37,78,722.90 rounded to
Rs.1,38,00,000/-.
Comparative law
24. This Court has referred to case law from a number of
other major common law jurisdictions on the question of
accounting for inflation in the computation of awards in medical
negligence cases. It is unnecessary to discuss it in detail. It is
sufficient to note that the principle of apportioning for
inflationary fluctuations in the final lump sum award for
damages has been upheld and applied in numerous cases
pertaining to medical negligence. In the United States of
America, most states, as in Ireland and the United Kingdom,
require awards for future medical costs to be reduced to their
present value so that the damages can be awarded in the form
of a one-time lump sum. The leading case in the United States,
which acknowledges the impact of inflation while calculating
damages for medical negligence was Jones & Laughlin Steel
Corporation v. Pfeifer5
, wherein that court recognized the
propriety of taking into account the factors of present value and
inflation in damage awards. Similarly, in O'Shea v Riverway
5
(1983) 462 US 523
20Page 21
Towing Co.6
, Posner J., acknowledged the problem of personal
injury victims being severely undercompensated as a result of
persistently high inflation.
In Taylor v. O’ Connor7
, Lord Reid accepted the importance of
apportioning for inflation:
“It will be observed that I have more than once
taken note of present day conditions - in particular
rising prices, rising remuneration and high rates of
interest. I am well aware that there is a school of
thought which holds that the law should refuse to
have any regard to inflation but that calculations
should be based on stable prices, steady or slowly
increasing rates of remuneration and low rates of
interest. That must, I think, be based either on an
expectation of an early return to a period of stability
or on a nostalgic reluctance to recognise change. It
appears to me that some people fear that inflation
will get worse, some think that it will go on much as
at present, some hope that it will be slowed down,
but comparatively few believe that a return to the
old financial stability is likely in the foreseeable
future. To take any account of future inflation will
no doubt cause complications and make estimates
even more uncertain. No doubt we should not
assume the worst but it would, I think, be quite
unrealistic to refuse to take it into account at all.”
In the same case Lord Morris of Borth-y-Gest also upheld the
principle of taking into account future uncertainties. He
observed:
“It is to be remembered that the sum which is
awarded will be a once-for-all or final amount which
6
(1982) 677 F.2d 1194, at 1199 (7th Cir)
7
[1971] A.C. 115
21Page 22
the widow must deploy so that to the extent
reasonably possible she gets the equivalent of what
she has lost. A learned judge cannot be expected to
prophesy as to future monetary trends or rates of
interest but he need not be unmindful of matters
which are common knowledge, such as the
uncertainties as to future rates of interest and
future levels of taxation. Taking a reasonable and
realistic and common-sense view of all aspects of
the matter he must try to fix a figure which is
neither unfair to the recipient nor to the one who
has to pay. A learned judge might well take the
view that a recipient would be ill-advised if he
entirely ignored all inflationary trends and if he
applied the entire sum awarded to him in the
purchase of an annuity which over a period of years
would give him a fixed and predetermined sum
without any provision which protected him against
inflationary trends if they developed.”
More recently the Judicial Committee of the UK Privy Council in
Simon v. Helmot8
has unequivocally acknowledged the principle,
that the lump sum awarded in medical negligence cases should
be adjusted so as to reflect the predicted rate of inflation.
25. Accordingly, we direct that the said amount i.e.
Rs.1,38,00,000/- shall be paid, in the form of a Fixed Deposit,
in the name of Sharanya. We are informed that the said amount
would yield an approximate annual interest of Rs. 12,00,000/-.
26. We find from the impugned order of the NCDRC that the
compensation awarded by that Forum is directed to be paid only
by Respondent Nos. 1 and 3 i.e. the State of Tamil Nadu and Dr.
S. Gopaul, Neo-pediatrician, Government Hospital for Women &
8
[2012] UKPC 5
22Page 23
Children, Egmore, Chennai. No reason has been assigned by
the Forum for relieving Respondent Nos.2 and 4. Dr.
Duraiswami, Neo Natology Unit, Government Hospital for
Women & Children, Egmore, Chennai, who also treated
Sharanya during the course of his visits to the house of the
appellant.
27. It is settled law that the hospital is vicariously liable for
the acts of its doctors vide Savita Garg vs. National Heart
Institute, (2004) 8 SCC 56, also followed in Balram Prasad’s
case (supra). Similarly in Achutrao Haribhau Khodwa v. State
of Maharashtra, (1996) 2 SCC 634 this court unequivocally held
that the state would be vicariously liable for the damages which
may become payable on account of negligence of its doctors or
other employees. By the same measure, it is not possible to
absolve Respondent No. 1, the State of Tamil Nadu, which
establishes and administers such hospitals through its
Department of Health, from its liability.
23Page 24
Apportionment of Liability
28. In the circumstances, we consider it appropriate to
apportion the liability of Rs. 1,38,00,000/- among the
respondents, as follows:
a) Rs. 1,30,00,000/- shall be paid by Respondent Nos.
1 and 2 jointly and severally i.e. The State of Tamil Nadu and
the Director, Government Hospital for Women & Children,
Egmore, Chennai; and
b) Rs. 8,00,000/- shall be paid by Respondent Nos. 3
and 4 equally i.e. Rs. 4,00,000/- by Dr. S. Gopaul, Neopediatrician,
Government Hospital for Women & Children,
Egmore, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e.
Dr. Duraisamy, Neo Natology Unit, Government Hospital for
Women & Children, Egmore, Chennai.
The above mentioned amount of Rs. 1,38,00,000/- shall be paid
by Respondent Nos. 1 to 4 within three months from the date of
this Judgment otherwise the said sum would attract a penal
interest at the rate of 18% p.a.
29. Further, we direct that the amount of Rs. 42,87,921/- in
lieu of past medical expenses, shall be apportioned in the
following manner:
24Page 25
a) Respondent Nos. 1 and 2 are directed to pay
Rs. 40,00,000/- jointly, alongwith interest @ 6% p.a. from the
date of filing before the NCDRC; and
b) Respondent Nos. 3 and 4 are directed to pay
Rs. 2,87,921/- in equal proportion, alongwith interest @ 6%
p.a. from the date of filing before the NCDRC.
30. In the event the Respondent Nos. 1 and 3 have made
any payment in accordance with the award of the NCDRC, the
same may be adjusted.
31. Accordingly, Civil Appeal No. 8065 of 2009 is allowed in
the above terms and Civil Appeal No. 5402 of 2010 is
dismissed. No costs.
..………………………….…..........…..J.
[JAGDISH SINGH KHEHAR]
…...................................………J.
[S.A. BOBDE]
NEW DELHI,
JULY 1, 2015
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8065 OF 2009
V. KRISHNAKUMAR .. APPELLANT
VERSUS
STATE OF TAMIL NADU & ORS. ..RESPONDENTS
With
CIVIL APPEAL No. 5402 OF 2010
S. A. BOBDE, J.
Citation; AIR 2015 SC 2836
Dated;JULY 1, 2015
These two Civil Appeals are preferred against the
judgment of National Consumer Disputes Redressal Commission
(hereinafter referred to as the ‘NCDRC’) rendering a finding of
medical negligence against the State of Tamil Nadu, its
Government Hospital and two Government Doctors and
awarding a sum of Rs.5,00,000/- to V. Krishnakumar. Civil
1Page 2
Appeal No. 8065 of 2009 is preferred by V. Krishnakumar for
enhancement of the amount of compensation. Civil Appeal No.
5402 of 2010 is preferred by the State of Tamil Nadu and
another against the judgment of the NCDRC. As facts of both
the appeals are same, we are disposing the appeals by this
common judgment.
2. On 30.8.1996, the appellant V. Krishankumar's wife
Laxmi was admitted in Government Hospital for Women and
Children, Egmore, Chennai (hereinafter referred to as the
“Hospital”). Against the normal gestation period of 38 to 40
weeks, she delivered a premature female baby in the 29th week
of pregnancy. The baby weighed only 1250 grams at birth. The
infant was placed in an incubator in intensive care unit for about
25 days. The mother and the baby were discharged on
23.9.1996. A fact which is relevant to the issue is, that the
baby was administered 90-100% oxygen at the time of birth
and underwent blood exchange transfusion a week after birth.
The baby had apneic spells during the first 10 days of her life.
She was under the care of Respondent No.3 - Dr. S.Gopaul,
Neo-paediatrician and Chief of Neo Natology Unit of the Hospital
and Respondent No.4 - Dr. Duraiswamy of the Neo Natology
Unit of the Hospital. The Respondent No.2 is the Director of the
2Page 3
Hospital, which is established and run by the Respondent No.1 –
State of Tamil Nadu under the Department of Health.
3. The baby and the mother visited the hospital on
30.10.1996 at the chronological age of 9 weeks. Follow up
treatment was administered at the home of the appellant by
Respondent No.4, the Government Doctor, Dr. Duraiswamy
during home visits. The baby was under his care from 4 weeks
to 13 weeks of chronological age. Apparently, the only advice
given by Respondent No.4 was to keep the baby isolated and
confined to the four walls of the sterile room so that she could
be protected from infection. What was completely overlooked
was a well known medical phenomenon that a premature baby
who has been administered supplemental oxygen and has been
given blood transfusion is prone to a higher risk of a disease
known as the Retinopathy of Prematurity (hereinafter referred
to as ‘ROP’), which, in the usual course of advancement makes
a child blind. The Respondent No.3, who was also a Government
Doctor, checked up the baby at his private clinic at
Purassaiwakkam, Chennai when the baby was 14-15 weeks of
chronological age also did not suggest a check up for ROP.
4. One thing is clear about the disease, and this was not
contested by the learned counsel for the respondents, that the
disease occurs in infants who are prematurely born and who
have been administered oxygen and blood transfusion upon
birth and further, that if detected early enough, it can be
prevented. It is said that prematurity is one of the most
common causes of blindness and is caused by an initial
constriction and then rapid growth of blood vessels in the retina.
When the blood vessels leak, they cause scarring. These scars
can later shrink and pull on the retina, sometimes detaching it.
The disease advances in severity through five stages - 1, 2, 3, 4
and 5 (5 being terminal stage). Medical literature suggests that
stage 3 can be treated by Laser or Cryotherapy treatment in
order to eliminate the abnormal vessels. Even in stage 4, in
some cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease is allowed to
progress to stage 5, there is a total detachment and the retina
becomes funnel shaped leading to blindness. There is ample
medical literature on the subject. It is, however, not necessary
to refer all of it. Some material relevant to the need for check
up for ROP for an infant is:
“All infants with a birth weight less than 1500 gms or
gestational age less than 32 weeks are required to be
screened for ROP.”1
1 AIIMS Report dated 21.8.2007
Applying either parameter, whether weight or gestational
age, the child ought to have been screened. As stated earlier,
the child was 1250 gms at birth and born after 29 weeks of
pregnancy, thus making her a high risk candidate for ROP.
5. It is undisputed that the relationship of birth weight and
gestational age to ROP as reproduced in NCDRC’s order is as
follows:
“Most ROP is seen in very low-birth weight infants, and the
incidence is inversely related to birth weight and
gestational age. About 70-80% of infants with birth weight
less than 1000 gms show acute changes, whereas above
1500 gms birth weight the frequency falls to less than
10%.”
6. Again, it seems that the child in question was clearly
not in the category where the frequency was less than 10%
since the baby was below 1500 gms. In fact, it is observed by
the NCDRC in its order that the discipline of medicine reveals
that all infants who had undergone less than 29 weeks of
gestation or weigh less than 1300 gms should be examined
regardless of whether they have been administered oxygen or
not. It is further observed that ROP is a visually devastative
disease that often can be treated successfully if it is diagnosed
in time.
7. The need for a medical check up for the infant in
question was not seriously disputed by the respondents.
8. The main defence of the respondents to the complaint
of negligence against the appellant’s claim for compensation
was that at the time of delivery and management, no
deformities were manifested and the complainant was given
proper advice, which was not followed. It was argued on behalf
of the respondent that they had taken sufficient precautions,
even against ROP by mentioning in the discharge summary as
follows:
“Mother confident; Informed about alarm signs; 1) to
continue breast feeding 2) To attend post natal O.P. on
Tuesday."
9. It must, however, be noted that the discharge summary
shows that the above writing was in the nature of a scrawl in
the corner of the discharge summary and we are in agreement
with the finding of the NCDRC that the said remarks are only a
hastily written general warning and nothing more. After a stay
of 25 days in the hospital, it was for the hospital to give a clear
indication as to what was to be done regarding all possible
dangers which a baby in these circumstances faces. It is
obvious that it did not occur to the respondents to advise the
appellant that the baby is required to be seen by a paediatric
ophthalmologist since there was a possibility of occurrence of
ROP to avert permanent blindness. This discharge summary
neither discloses a warning to the infant’s parents that the
infant might develop ROP against which certain precautions
must be taken, nor any signs that the Doctors were themselves
cautious of the dangers of development of ROP. We are not
prepared to infer from ‘Informed about alarms signs’ that the
parents were cautioned about ROP in this case. We find it
unfortunate that the respondents at one stage took a stand that
the appellant did not follow up properly by not attending on a
Tuesday but claiming that the mother attended on a Wednesday
and even contesting the fact that she attended on a Wednesday.
It appears like a desperate attempt to cover up the gross
negligence in not examining the child for the onset of ROP,
which is a standard precaution for a well known condition in
such a case. In fact, it is not disputed that the Respondent
No.3 attended to and examined the baby at his private clinic
when the baby was 14-15 weeks and even then did not take
any step to investigate into the onset of ROP. The Respondent
No.4 also visited the appellant to check up the baby at the
home of the appellant and there are prescriptions issued by the
said Respondent No.4, which suggests that the baby was indeed
under his care from 4 weeks to 13 weeks.
10. The NCDRC has relied on the report dated 21.8.2007 of
the All India Institute of Medical Sciences, New Delhi
(hereinafter referred to as ‘AIIMS’). In pursuance of the order
of the NCDRC, a medical board was constituted by AIIMS
consisting of five members, of which, four are ophthalmological
specialists. The board has given the following opinion:-
"A premature infant is not born with Retinopathy of
Prematurity (ROP), the retina though immature is normal
for this age. The ROP usually starts developing 2-4 weeks
after birth when it is mandatory to do the first screening
of the child. The current guidelines are to examine and
screen the babies with birth weight<1500g and <32
weeks gestational age, starting at 31 weeks
post-conceptional age (PAC) or 4 weeks after birth
whichever is later. Around a decade ago, the guidelines in
general were the same and the premature babies were
first examined at 31-33 weeks post-conceptional age or
2-6 weeks after birth.
There is a general agreement on these above guidelines
on a national and international level. The attached
annexure explains some authoritative resources and
guidelines published in national and international
literature especially over the last decade.
However, in spite of ongoing interest world over in
screening and management of ROP and advancing
knowledge, it may not be possible to exactly predict
which premature baby will develop ROP and to what
extent and why."
Review of literature of ROP screening guidelines
One thing this report reveals clearly and that is that in the
present case the onset of ROP was reasonably foreseeable. We
say this because it is well known that if a particular danger
9
Year Source First
Screening
Who to
screen
2006 American
Academy of
Pediatrics et al.
31 wks PCA or 4
wks after birth
whichever later
<1500gms birth
weight or <32
wks GA or
higher
2003 Jalali S et al.
Indian J
Ophthalmology
31 wks PCA or
3-4 wks after
birth whichever
earlier
<1500g birth
weight or <32
wks GA or
higher
2003 Azad et al. JIMA 32 wks PCA or
4-5 wks after
birth- whichever
earlier
<1500g birth
weight or <32
wks GA or
higher
2002 Aggarwal R et.
Al Indian J.
Pediatrics
32 wks PCA or
4-6 wks after
birth whichever
earlier
<1500 gm birth
weight or <32
wks GA
1997 American
Academy of
Paediatrics et al.
31-33 wks PCA
or 4-6 wks after
birth
<1500 gm birth
weight or <28
wks GA or
higher
1996 Maheshwari R et
al. National Med.
J. India
32 wks PCA or 2
wks after birth
whichever is
earlier
<1500 gm birth
weight or <35
wks GA or
02>24 hrs
1988 Cryotherapy
ROP Group
4-6 wks after
birth
<1250 gms birth
weight
could not reasonably have been anticipated it cannot be said
that a person has acted negligently, because a reasonable man
does not take precautions against unforeseeable circumstances.
Though it was fairly suggested to the contrary on behalf of the
respondents, there is nothing to indicate that the disease of ROP
and its occurrence was not known to the medical profession in
the year 1996. This is important because whether the
consequences were foreseeable or not must be measured with
reference to knowledge at the date of the alleged negligence,
not with hindsight. We are thus satisfied that we are not
looking at the 1996 accident with 2007 spectacles.
11. It is obvious from the report that ROP starts developing
2 to 4 weeks after birth when it is mandatory to do the first
screening of the child. The baby in question was admitted for a
period of 25 days and there was no reason why the mandatory
screening, which is an accepted practice, was not done. The
report of the AIIMS (supra) states that ‘it may not be possible
to exactly predict which premature baby will develop ROP and to
what extent and why’. This in our view underscores the need
for a check up in all such cases. In fact, the screening was
never done. There is no evidence whatsoever to suggest to the
2
See Roe v. Minister of Health [1954] 2 QB 66 and the discussion in ‘Medical
Negligence’, Michael Jones, 4th Edition, Sweet & Maxwell, London 2008 at
page 270.
10Page 11
contrary. It appears from the evidence that the ROP was
discovered when the appellant went to Mumbai for a personal
matter and took his daughter to a paediatrician, Dr. Rajiv
Khamdar for giving DPT shots when she was 4½ months. That
Doctor, suspected ROP on an examination with naked eye even
without knowing the baby’s history. But, obviously Respondent
Nos.3 and 4 the Doctors entrusted with the care of the child did
not detect any such thing at any time. The helpless parents,
after detection got the baby’s eyes checked by having the baby
examined by several doctors at several places. Traumatised and
shocked, they rushed to Puttaparthy for the blessings of Shri
Satya Sai Baba and the baby was anesthetically examined by
Dr. Deepak Khosla, Consultant, Department of Ophthalmology
at Baba Super Specialty Hospital at Puttaparthy. Dr. Khosla did
not take up the case since the ROP had reached stage 5. After
coming back from Puttaparthy, the baby was examined by Dr.
Tarun Sharma alongwith the retinal team of Shankar Netralaya,
who were also of the same opinion. The parents apparently took
the baby to Dr. Namperumal Swamy of Arvind Hospital,
Madurai, who advised against surgery, stating that the baby’s
condition was unfavourable for surgery. The appellant then
learnt of Dr. Michael Tresse, a renowned expert in Retinopathy
11Page 12
treatment for babies in the United States. He obtained a
reference from Dr. Badrinath, chief of Shankar Netralaya and
took his only child to the United States hoping for some ray of
light. The appellant incurred enormous expenses for surgery in
the United States but to no avail.
12. Having given our anxious consideration to the matter,
we find that no fault can be found with the findings of the
NCDRC which has given an unequivocal finding that at no stage,
the appellant was warned or told about the possibility of
occurrence of ROP by the respondents even though it was their
duty to do so. Neither did they explain anywhere in their
affidavit that they warned of the possibility of the occurrence of
ROP knowing fully well that the chances of such occurrence
existed and that this constituted a gross deficiency in service,
nor did they refer to a paediatric ophthalmologist. Further it
may be noted that Respondent Nos. 3 & 4 have not appealed to
this Court against the judgment of the NCDRC and have thus
accepted the finding of medical negligence against them.
Deficiency in Service
13. In the circumstances, we agree with the findings of the
NCDRC that the respondents were negligent in their duty and
were deficient in their services in not screening the child
12Page 13
between 2 to 4 weeks after birth when it is mandatory to do so
and especially since the child was under their care. Thus, the
negligence began under the supervision of the Hospital i.e.
Respondent No.2. The Respondent Nos. 3 and 4, who checked
the baby at his private clinic and at the appellant’s home,
respectively, were also negligent in not advising screening for
ROP. It is pertinent to note that Respondent Nos. 3 and 4
carried on their own private practice while being in the
employment of Respondent No. 2, which was a violation of their
terms of service.
Compensation
14. The next question that falls for consideration is the
compensation which the respondents are liable to pay for their
negligence and deficiency in service. The child called Sharanya
has been rendered blind for life. The darkness in her life can
never be really compensated for in money terms. Blindness can
have terrible consequences. Though, Sharanya may have
parents now, there is no doubt that she will not have that
protection and care forever. The family belongs to the middle
class and it is necessary for the father to attend to his work.
Undoubtedly, the mother would not be able to take Sharanya
out everywhere and is bound to leave the child alone for
13Page 14
reasonable spells of time. During this time, it is obvious that she
would require help and maybe later on in life she would have to
totally rely on such help. It is therefore difficult to imagine
unhindered marriage prospects or even a regular career which
she may have otherwise pursued with ease. She may also face
great difficulties in getting education. The parents have already
incurred heavy expenditure on the treatment of Sharanya to no
avail. It is, thus, obvious that there should be adequate
compensation for the expenses already incurred, the pain and
suffering, lost wages and the future care that would be
necessary while accounting for inflationary trends.
15. There is no doubt that in the future Sharanya would
require further medical attention and would have to incur costs
on medicines and possible surgery. It can be reasonably said
that the blindness has put Sharanya at a great disadvantage in
her pursuit for making a good living to care for herself.
16. At the outset, it may be noted that in such cases, this
court has ruled out the computation of compensation according
to the multiplier method. (See Balram Prasad vs. Kunal Saha,
(2014) 1 SCC 384 and Nizam’s Institute of Medical Sciences vs.
Prashant S. Dhananka and Others, (2009) 6 SCC 1.
14Page 15
The court rightly warned against the straightjacket approach of
using the multiplier method for calculating damages in medical
negligence cases.
Quantification of Compensation
17. The principle of awarding compensation that can be
safely relied on is restitutio in integrum. This principle has been
recognized and relied on in Malay Kumar Ganguly vs. Sukumar
Mukherjee, (2009) 9 SCC 221 and in Balram Prasad’s case
(supra), in the following passage from the latter:
“170. Indisputably, grant of compensation involving an
accident is within the realm of law of torts. It is based on
the principle of restitutio in integrum. The said principle
provides that a person entitled to damages should, as
nearly as possible, get that sum of money which would
put him in the same position as he would have been if he
had not sustained the wrong. (See Livingstone v.
Rawyards Coal Co.).”
An application of this principle is that the aggrieved person
should get that sum of money, which would put him in the same
position if he had not sustained the wrong. It must necessarily
result in compensating the aggrieved person for the financial
loss suffered due to the event, the pain and suffering undergone
and the liability that he/she would have to incur due to the
disability caused by the event.
15Page 16
Past Medical Expenses
18. It is, therefore, necessary to consider the loss which
Sharanya and her parents had to suffer and also to make a
suitable provision for Sharanya’s future.
19. The appellant - V. Krishnakumar, Sharanya’s father is
the sole earning member of a middle class family. His wife is
said to be a qualified accountant, who had to sacrifice her
career to attend to the constant needs of Sharanya. Sharanya’s
treatment and the litigation that ensued for almost two decades
has been very burdensome on account of the prolonged
physical, mental and financial hardships, which her parents had
to undergo. It appears that the total expenditure incurred by
the appellant from the date of the final verdict of the NCDRC
(27.5.2009) until December, 2013 is Rs.8,13,240/-. The
aforesaid amount is taken from the uncontroverted statement of
expenditure submitted by the appellant. The appellant has
stated that he had incurred the following expenditure for
Sharanya’s treatment, for which there is no effective counter, till
December, 2013:
Medical
Expenses
Amount Supporting
Document
a)Till December
2003
28,63,771/- Exhibit P1-P4
b)January 2004- 2,57,600/- Annexure A-8
16Page 17
October 2007
c)27.5.2009 to
December 2013
8,13,240/- I.A. No.2 of 2014 in
Civil Appeal No. 8065
of 2009
d)January 2014 –
March 2015
2,03,310/- Based on I.A. No.2 of
2014 in Civil Appeal
No. 8065 of 2009
Total (a)+(b)+(c)
+(d)
41,37,921/-
20. Since there is no reason to assume that there has been
any change in the expenditure, we have calculated the
expenditure from January 2014 to March 2015 at the same rate
as the preceding period. In addition, we also deem it fit to
award a sum of Rs. 1,50,000/- in lieu of the financial hardship
undergone particularly by Sharanya’s mother, who became her
primary caregiver and was thus prevented from pursuing her
own career. In Spring Meadows Hospital and Another v. Harjol
Ahluwalia [1998 4 SCC 39] this court acknowledged the
importance of granting compensation to the parents of a victim
of medical negligence in lieu of their acute mental agony and
the lifelong care and attention they would have to give to the
child. This being so, the financial hardship faced by the parents,
in terms of lost wages and time must also be recognized. Thus,
the above expenditure must be allowed.
21. We accordingly direct that the above amount i.e.
Rs.42,87,921/- shall be paid by the Respondent Nos.1 to 4. In
addition, interest at the rate of 6% p.a. shall be paid to the
appellant from the date of filing of the petition before the
NCDRC till the date of payment.
Future Medical Expenses
22. Going by the uncontroverted statement of expenditure
for the period from the final verdict of the NCDRC to December,
2013, the monthly expenditure is stated to be Rs. 13,554/-,
resulting in an annual expenditure of Rs. 1,62,648/-. Having
perused the various heads of expenditure very carefully, we
observe that the medical costs for Sharanya’s treatment will not
remain static, but are likely to rise substantially in the future
years. Sharanya’s present age is about 18 ½ years. If her life
expectancy is taken to be about 70 years, for the next 51 years,
the amount of expenditure, at the same rate will work out to Rs.
82,95,048/-. It is therefore imperative that we account for
inflation to ensure that the present value of compensation
awarded for future medical costs is not unduly diluted, for no
fault of the victim of negligence. The impact of inflation affects
us all. The value of today’s rupee should be determined in the
future. For instance, a sum of Rs. 100 today, in fifteen years,
18Page 19
given a modest 3% inflation rate, would be worth only
Rs.64.13. In Wells v. Wells3
the House of Lords observed that
the purpose of awarding a lump sum for damages for the costs
of future care and loss of future earnings was to put the plaintiff
in the same financial position as if the injury had not occurred,
and consequently the courts had the difficult task of ensuring
that the award maintained its value in real terms, despite the
effect of inflation.
Apportioning For Inflation
23. Inflation over time certainly erodes the value of money.
The rate of inflation (Wholesale Price Index-Annual Variation) in
India presently is 2 percent4
as per the Reserve Bank of India.
The average inflationary rate between 1990-91 and 2014-15 is
6.76 percent as per data from the RBI. In the present case we
are of the view that this inflationary principle must be adopted
at a conservative rate of 1 percent per annum to keep in mind
fluctuations over the next 51 years.
The formula to compute the required future amount is
calculated using the standard future value formula:-
FV = PV x (1+r)n
PV = Present Value
r = rate of return
3
[1999] 1 A.C. 345.
4 Handbook of Statistics, Reserve Bank of India
19Page 20
n = time period
Accordingly, the amount arrived at with an annual inflation rate
of 1 percent over 51 years is Rs.1,37,78,722.90 rounded to
Rs.1,38,00,000/-.
Comparative law
24. This Court has referred to case law from a number of
other major common law jurisdictions on the question of
accounting for inflation in the computation of awards in medical
negligence cases. It is unnecessary to discuss it in detail. It is
sufficient to note that the principle of apportioning for
inflationary fluctuations in the final lump sum award for
damages has been upheld and applied in numerous cases
pertaining to medical negligence. In the United States of
America, most states, as in Ireland and the United Kingdom,
require awards for future medical costs to be reduced to their
present value so that the damages can be awarded in the form
of a one-time lump sum. The leading case in the United States,
which acknowledges the impact of inflation while calculating
damages for medical negligence was Jones & Laughlin Steel
Corporation v. Pfeifer5
, wherein that court recognized the
propriety of taking into account the factors of present value and
inflation in damage awards. Similarly, in O'Shea v Riverway
5
(1983) 462 US 523
20Page 21
Towing Co.6
, Posner J., acknowledged the problem of personal
injury victims being severely undercompensated as a result of
persistently high inflation.
In Taylor v. O’ Connor7
, Lord Reid accepted the importance of
apportioning for inflation:
“It will be observed that I have more than once
taken note of present day conditions - in particular
rising prices, rising remuneration and high rates of
interest. I am well aware that there is a school of
thought which holds that the law should refuse to
have any regard to inflation but that calculations
should be based on stable prices, steady or slowly
increasing rates of remuneration and low rates of
interest. That must, I think, be based either on an
expectation of an early return to a period of stability
or on a nostalgic reluctance to recognise change. It
appears to me that some people fear that inflation
will get worse, some think that it will go on much as
at present, some hope that it will be slowed down,
but comparatively few believe that a return to the
old financial stability is likely in the foreseeable
future. To take any account of future inflation will
no doubt cause complications and make estimates
even more uncertain. No doubt we should not
assume the worst but it would, I think, be quite
unrealistic to refuse to take it into account at all.”
In the same case Lord Morris of Borth-y-Gest also upheld the
principle of taking into account future uncertainties. He
observed:
“It is to be remembered that the sum which is
awarded will be a once-for-all or final amount which
6
(1982) 677 F.2d 1194, at 1199 (7th Cir)
7
[1971] A.C. 115
21Page 22
the widow must deploy so that to the extent
reasonably possible she gets the equivalent of what
she has lost. A learned judge cannot be expected to
prophesy as to future monetary trends or rates of
interest but he need not be unmindful of matters
which are common knowledge, such as the
uncertainties as to future rates of interest and
future levels of taxation. Taking a reasonable and
realistic and common-sense view of all aspects of
the matter he must try to fix a figure which is
neither unfair to the recipient nor to the one who
has to pay. A learned judge might well take the
view that a recipient would be ill-advised if he
entirely ignored all inflationary trends and if he
applied the entire sum awarded to him in the
purchase of an annuity which over a period of years
would give him a fixed and predetermined sum
without any provision which protected him against
inflationary trends if they developed.”
More recently the Judicial Committee of the UK Privy Council in
Simon v. Helmot8
has unequivocally acknowledged the principle,
that the lump sum awarded in medical negligence cases should
be adjusted so as to reflect the predicted rate of inflation.
25. Accordingly, we direct that the said amount i.e.
Rs.1,38,00,000/- shall be paid, in the form of a Fixed Deposit,
in the name of Sharanya. We are informed that the said amount
would yield an approximate annual interest of Rs. 12,00,000/-.
26. We find from the impugned order of the NCDRC that the
compensation awarded by that Forum is directed to be paid only
by Respondent Nos. 1 and 3 i.e. the State of Tamil Nadu and Dr.
S. Gopaul, Neo-pediatrician, Government Hospital for Women &
8
[2012] UKPC 5
22Page 23
Children, Egmore, Chennai. No reason has been assigned by
the Forum for relieving Respondent Nos.2 and 4. Dr.
Duraiswami, Neo Natology Unit, Government Hospital for
Women & Children, Egmore, Chennai, who also treated
Sharanya during the course of his visits to the house of the
appellant.
27. It is settled law that the hospital is vicariously liable for
the acts of its doctors vide Savita Garg vs. National Heart
Institute, (2004) 8 SCC 56, also followed in Balram Prasad’s
case (supra). Similarly in Achutrao Haribhau Khodwa v. State
of Maharashtra, (1996) 2 SCC 634 this court unequivocally held
that the state would be vicariously liable for the damages which
may become payable on account of negligence of its doctors or
other employees. By the same measure, it is not possible to
absolve Respondent No. 1, the State of Tamil Nadu, which
establishes and administers such hospitals through its
Department of Health, from its liability.
23Page 24
Apportionment of Liability
28. In the circumstances, we consider it appropriate to
apportion the liability of Rs. 1,38,00,000/- among the
respondents, as follows:
a) Rs. 1,30,00,000/- shall be paid by Respondent Nos.
1 and 2 jointly and severally i.e. The State of Tamil Nadu and
the Director, Government Hospital for Women & Children,
Egmore, Chennai; and
b) Rs. 8,00,000/- shall be paid by Respondent Nos. 3
and 4 equally i.e. Rs. 4,00,000/- by Dr. S. Gopaul, Neopediatrician,
Government Hospital for Women & Children,
Egmore, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e.
Dr. Duraisamy, Neo Natology Unit, Government Hospital for
Women & Children, Egmore, Chennai.
The above mentioned amount of Rs. 1,38,00,000/- shall be paid
by Respondent Nos. 1 to 4 within three months from the date of
this Judgment otherwise the said sum would attract a penal
interest at the rate of 18% p.a.
29. Further, we direct that the amount of Rs. 42,87,921/- in
lieu of past medical expenses, shall be apportioned in the
following manner:
24Page 25
a) Respondent Nos. 1 and 2 are directed to pay
Rs. 40,00,000/- jointly, alongwith interest @ 6% p.a. from the
date of filing before the NCDRC; and
b) Respondent Nos. 3 and 4 are directed to pay
Rs. 2,87,921/- in equal proportion, alongwith interest @ 6%
p.a. from the date of filing before the NCDRC.
30. In the event the Respondent Nos. 1 and 3 have made
any payment in accordance with the award of the NCDRC, the
same may be adjusted.
31. Accordingly, Civil Appeal No. 8065 of 2009 is allowed in
the above terms and Civil Appeal No. 5402 of 2010 is
dismissed. No costs.
..………………………….…..........…..J.
[JAGDISH SINGH KHEHAR]
…...................................………J.
[S.A. BOBDE]
NEW DELHI,
JULY 1, 2015
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