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--------------- Print Magazine --------------
  May 2016
  April 2016
CASE STUDY - by Anoop K. Kaushal

Quantum of Compensation and

Deduction for Contributory Negligence

Dr. Kunal Saha v. Dr. Sukumar Mukherjee & Ors

Original Petition No. 240 of 1999, decided by the National Consumer Disputes Redressal Commission, New Delhi on 21-10-2011.

Facts: Smt. Anuradha Saha, aged about 36 years, wife of the complainant became the unfortunate victim of "TEN" (Toxic Epidermal Necrolysis) when she along with the complainant was in India for a holiday during April-May 1998. "TEN" is a rare and deadly disease. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year, female-male ratio is 3:2. It accounts for nearly 1% of drug reactions that require hospitalization, and has a mortality rate of 25 to 70 per cent. She and the complainant although of Indian origin were settled in the United States of America. The complainant was a doctor by profession and was engaged in research on HIV/AIDS for the past fifteen years. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient upto 10-5-1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (AMRI), on 11-5-1998, where she was treated by the Opposite Parties and other doctors uptil 16-5-1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17-5-1998 by an air ambulance. She was treated in Breach Candy Hospital from 17-5-1998 evening till she breathed her last on 28-5-1998.

Complaint was filed by the complainant against the opposite parties claiming a total compensation of ` 77,07,45,000. Complainant also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.

A three-member Bench of NCDRC dismissed the complaint by an order dated 1-6-2006. Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal in the Hon'ble Supreme Court. Since the Criminal Appeal and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 7-8-2009, dismissed the Criminal Appeal but allowed the Civil Appeal filed by the complainant and set aside the order dated 1-6-2006 passed by NCDRC dismissing the complaint and remanded the matter for the limited purpose of determining the adequate compensation.

Observations : The findings given and observations made by the Supreme Court in its judgment dated 7-8-2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta .

Plea on Quantum: It was emphatically argued by the complainant that Anuradha was about 36 years of age at the time of her death and the complainant - husband about 40 years of age, the multiplier method used to determine compensation in cases of death or injury under the provisions of the Motor Vehicles Act cannot be applied in the present case and complainant is well within his rights to claim compensation equivalent to the amount which deceased would have contributed for a period of about 34 years i.e. upto the age of 70 years depending on her income. The complainant and his wife, though of Indian origin, were citizens of US at the relevant time when Anuradha met her death due to medical negligence. They were working for gain in the US and were drawing emoluments as per the standard of that country, therefore, complainant is entitled to higher compensation than what would have been granted to a similarly situated Indian citizen. Strong contentions were raised by the opposite parties about the admissibility of the statement of salary of the deceased as the admissible proof of income of the deceased.

Held: Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence/deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court. The argument of the opposite parties does not appear wholly untenable if we go strictly by the rule of admissibility of the evidence in accordance with the provisions of the Indian Evidence Act. However, the procedure provided for deciding the complaints under the Consumer Protection Act, 1986, does not enjoin upon a consumer fora like the present Commission to insist upon the strict proof of the documents in accordance with the Evidence Act. In any case no contrary material has been brought on record to assail the authenticity of this certificate. The opposite parties contended that complainant has miserably failed to establish either the education / professional qualification of the deceased or that she was drawing any regular income and if so what was her actual income which she was generating from her work of child counselling, assuming that she was engaged in such an activity. We must reject these submissions as too technical and as an attempt to thwart even the legitimate claim of the complainant particularly when nothing contrary to the above record as regards her qualification from Columbia University, graduation degree and post-graduation degree, income certificate have been brought on record. In any case, the complainant has claimed much less than what is reflected in the said statement and we have no reason to disbelieve the complainant in this behalf.

The statement of income would show that Anuradha's gross salary was $1060.72 per week and after deductions of federal tax, social security tax, her net pay was $814.03 viz. around $3000 per month and $36000 per year. We have, therefore, no hesitation to hold that the income of the deceased was $30,000 per annum before her death. Going by the judgment of Sarla Verma v. Delhi Transport Corporation , (2009) 6 SCC 121, we must add 50% to this income for her future prospects. That will bring her average salary income to $45000 per annum. Having regard to the age of Anuradha i.e. 36 years and keeping in view the multiplier laid down in the table in the case of Sarla Varma , we must apply the multiplier of 15 in the present case. After application of the said multiplier, her total income would come to $6,75,000. Having come to the conclusion that the total anticipated income of Anuradha would have been around $6,75,000, the next question is as to how much amount the deceased would have spent on herself and how much she would have contributed to her family. Bearing in mind the cost and standard of living in a country like USA and the income of the complainant, in our view the deceased would have spent at least half of the said income for her own upkeep and maintenance. Meaning thereby that she would at best have contributed a sum not exceeding $3,37,500 to her family/complainant. By applying the average exchange rate of ` 45 against a U.S. dollar, the net amount would come to ` 1,51,87,500.

On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non- pecuniary damages works out to ` 1,72,87,500 in the present case.

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