Team Code: J234

5th INTRA CLASS MOOT COURT

COMPETITION 2017
____________________________________________________________________________________________________________________________________________________________________________

BEFORE THE HONORABLE

SUPREME COURT OF INDIA
_____________________________________________________________________________ _______________________________________________________________________________________________

S.C. Civil Appeal No.____ of 2016

IN THE MATTER OF

SANDEEP PATIL ...APPELLANT

v.

Dr. PRADIP KUMAR CHAKRABORTY ... RESPONDENT 1

BREACH CANDY HOSPITAL …RESPONDENT 2

______________________________________________________
MEMORANDUM ON BEHALF OF THE APPELLANT
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TABLE OF CONTENTS

List of Abbreviations

Index of Authorities
 Table of Cases
 Books
 Websites
 Statutes
Statement of Jurisdiction

Statement of Facts

Summary of Arguments

Arguments Advanced

ISSUE-1
That The Charges Of Negligence Is Maintainable.

ISSUE-2
That The Doctor Was Negligent On His Part And Acted Without
Reasonable Care

ISSUE-3
That The Appellant Can Claim The Enhanced Compensation

Prayer

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LIST OF ABBREVIATIONS
AIR All India Reporter
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
v. Versus
ESR Erythrocyte Sedimentation Rate
COPRA Consumer Protection Act, 1986
Hon’ble Honorable
u/s Under Section

INDEX OF AUTHORITIES

S.no List of Cases Citation

1. Hindi Hitrashak Samiti v. UOI, 1990 (2) SCC 352.
2. MC Mehta v. Union of India, AIR 1987 SC 1086
3. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960;
4. Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295

5. Romesh Thappar v. The State of Madras, AIR 1950 SC 124.

6. Indian Medical Association v. V.P.Shantha, 1996 AIR 550, 1995

SCC (6) 651
7. Laxman Balakrishnan Joshi v. Dr Trimbak Bapu AIR 128, 1969 SCR
Godbole; (1) 206
8. Dr N.I Subrahmanyam v.Dr Krishna 1993 III C.P.J

9. Dr Ravindra Gupta & ors v. Ganga Devi 1993(3)CPR 259

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10. Dr.C.S. Subramanian v. Kumarasamy & Anr (1994) 1 MLJ 438

P.B. Desai v. State of Maharashtra & Anr CRIMINAL APPEAL NO.

12. 1432/2013

13. Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and (2009) 9 SCC
Ors
14. Smt. Rekha Gupta v. Bombay Hospital Trust and Anr 2003 (2) CPJ 160
(NCDRC).
15. Joseph Alias Pappachan v. Dr. George Moonjerly 1995 ACJ 253, AIR
1994 Ker 289
16. Mrs. Arpana Dutta v. Apollo Hospitals Enterprise 2002 ACJ 954, AIR
2000 Mad 340, (2000)
IIMLJ 772
17. Balram Prasad and Ors. v. Kunal Saha (2014) 1 SCC 384

18. Sarla Varma & Ors. v. Delhi Transport Corporation Civil appeal No. 3483
of 2008
19. Arvind Kumar Mishra v. New India Assurance Co CIVIL APPEAL NO.
5510 OF 2005
20. Raj Kumar v. Ajay Kumar & Anr. CIVIL APPEAL
NO.8981 OF 2010
21. Govind Yadav v. New India Insurance Co. Ltd., CIVIL APPEAL
No.9014 OF 2011
22. Sri Ramachandrappa v. Manager, Royal Sundaram AIR 2011 SC. 2951
Alliance Insurance
23. Ibrahim v. Raju & Ors. CIVIL APPEAL
No.8943 OF 2011
24. Laxman @ Laxman Mourya v. Divisional Manager, CIVIL APPEAL
Oriental Insurance Co. Ltd. No.9676 OF 2011
25. Kavita v. Dipak & Ors. CIVIL APPEAL NO.
5945 OF 2012
26. R.D. Hattangadi v. Pest Control 1995 AIR 755, 1995
SCC (1) 551
27. 2015 AIR (SCW) 4283
V. Krishnakumar Case

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28. (2008) 2 SCC 1: AIR

Samira Kohli v. Dr. Prabha Manchanda
2008 SC 1385: (2008)
1 CPR 237

BOOKS

 B.M. Gandhi, Law of Torts, Eastern Book Company

 D.P. Wadhwa, Law of Consumer Protections, LexisNexis

WEBSITES

 http://www.manupatra.co.in/AdvancedLegalSearch.aspx
 https://indiankanoon.org/

STATUTES
 Consumer Protection Act, 1986
 Indian Medical Counsel Act, 1956
 Code of Medical Ethics Regulations, 2002
 The Constitution of India

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STATEMENT OF JURISDICTION

The Appellant humbly submits this memorandum in response to the appeal filed before
this Hon’able Court. The appeal invokes its jurisdiction under Sec. 23 of the COPRA. It
sets forth the facts and the laws on which the claims are based.

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STATEMENT OF FACTS

I. In March 2014, the appellant who was suffering from chronic renal failure was
referred by the Director, Health Services to the Breach Candy Hospital (respondent
no. 2), Mumbai for the purpose of a kidney transplant.
II. On May 20, 2014, Mr. Patil approached the doctor (respondent no.1), a senior
consultant at Breach Candy Hospital, with high fever. However, Mr. Patil refused
hospitalization despite the advice of the doctor. On May 29 2014, the appellant who
still had high fever agreed to get admitted into the hospital due to serious condition.

III. On May 30 2014, the respondent was investigated for ESR, which was high in
view of renal failure with anaemic infection. Urine analysis was also carried out
which showed the presence of bacteria.

IV. On June 3, 2014, the reports of urine culture and sensitivity showed a severe urinary
tract infection due to Klebsiella species (1 lac/ml) responsive only to Amakacin and
Methenamine Mandellate. The Mathemine Mandellate cannot be used in patients
suffering from renal failure. Hence, Amakacin was prescribed to the appellant for 3
days i.e. from June 5, 2014 to June 7, 2014. due to the treatment the temperature of
the appellant subsided.

V. On June 11, 2014, the appellant complained of having a slight tinnitus in the ear
while at the haemodialysis unit. The respondent no. 1 told the appellant to stop
taking the Amakacin and augmentin and also made corresponding changes in the
discharge card. The appellant continues with the medicine until June 17, 2014. Till

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this date, the appellant received haemodialysis at Breach Candy Hospital (June 14,
18, and 20, 2014) did not complained of any deafness that might have developed
during those periods.

VI. On June 25, 2014, the appellant on his own accord, got admitted to Kothari
Hospital, discharging himself from Breach Candy Hospital. Evidence showed that
the appellant did not complained of any deafness during this period and conversed
with everyone normally.

VII. On July 20, 2014, the appellant was operated upon for a transplant and on August
13, 2014, he was discharged from the Kothari Hospital.

VIII. On September 15, 2014, a complaint was filed in State Commission of Mumbai
against Respondent no. 1 and 2 claiming compensation of an amount of Rs.
50,00,000/- on grounds of medical negligence, irreparable hearing loss and mental
agony. The State Commission ordered compensation of Rs. 20,00,000 to the
appellant on 3rd August, 2015.

IX. Aggrieved by the lesser amount the appellant then went to the National
Commission where an expert opinion was also considered. Tanmay Ghosh, a doctor
at AIIMS as well as the Commission decided the matter in the appellant’s favor but
awarded lesser compensation to him i.e. Rs. 40,00,000.

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STATEMENT OF ISSUES

ISSUE-I

WHETHER THE INSTANT APPEAL BEFORE THE HON’BLE SUPREME

COURT IS MAINTAINABLE OR NOT.

ISSUE-II
WHETHER THE DOCTOR WAS NEGLIGENT ON HIS PART AND ACTED
WITHOUT ANY REASONABLE CARE OR NOT

ISSUE- III
WHETHER THE APPELLANT CAN CLAIM FOR ENHANCED
COMPENSATION OR NOT

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SUMMARY OF ARGUMENTS

1. THAT THE INSTANT APPEAL BEFORE THE HON’BLE SUPREME COURT

IS MAINTAINABLE
The appeal by the appellant in the Supreme Court is maintainable as the full procedure
within the ambit and extension of the hierarchy of the courts has been followed and there
is no ground on which this Hon’ble Court must not take cognizance of the case.

2. THAT THE DOCTOR WAS NEGLIGENT ON HIS PART AND ACTED

WITHOUT ANY REASONABLE CARE
The respondents were totally negligent on their part and they acted in the same manner.
The counsel will prove the negligence by the following points:-
1) Breach of Duty to Care
2) Health of Patient neglected
3) Deficiency of Service under Sec 2(f) of COPRA
In addition to the above stated points, the case for the hospital has a passive liability, i.e
the vicarious liability and hence, the hospital as well as the doctor must be held liable.

3. THAT THE APPELLANT CAN CLAIM FOR ENHANCED COMPENSATION

Then counsel strongly contends that the appellant can claim enhanced compensation.

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In the present case the appellant had an irreparable hearing loss which has caused
damages for mental anguish, emotional distress, and pain and suffering. Also the ailment
impossible to be rectified would also harm and cause problems in his future and would
lead to losses. As also the appellant spent so much on his treatment and just because of
the negligent act of respondent he also spent in the trial process he has suffered mentally
and also financially and needed to be paid for the same.

ARGUMENTS ADVANCED

I. THAT THE INSTANT APPEAL BEFORE THE HON’BLE SUPREME

COURT IS MAINTAINABLE
It is submitted that the instant appeal is maintainable as there the alternative local
remedies available to the Appellant herein are not equally efficacious. Sec. 23 of the
COPRA guarantees the right to move the Supreme Court, by appropriate proceedings, for
the enforcement of the rights enumerated.
The Court has emphasized that, “this court is thus constituted the protector and guarantor
of the Rights and it cannot consistently with the responsibility so laid upon it, refuse to
entertain applications seeking protection against infringement of such rights.” 1 Violation
of a Right is sine qua non of the exercise of the rights conferred in the Constitution.2
The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights
has been interpreted broadly3 and as one that exists independent of any other remedy that
may be available.4 This is particularly true in cases of grave public importance, such as
Consumer Protection Litigation where relief may not be denied on mere technical
1
Federation of Bar Association in Karnatka v. UOI, (2000) 6 SCC 715
2
Hindi Hitrashak Samiti v. UOI, 1990 (2) SCC 352.
3
MC Mehta v. Union of India, AIR 1987 SC 1086
4
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960; Kharak Singh v. State of Uttar Pradesh, AIR 1963
SC 1295

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grounds. Consequently, it is submitted that a refusal to entertain the instant appeal would
be inconsistent with the aforesaid obligation.5
In the present case, the appellant had already exhausted all the local remedies and by the
way of hierarchy has come to the Supreme Court. The appellant had first filed the case in
the State Commission for compensation of his damaged ear from Dr. Pradip Kumar
which was a result of his negligence. The claim was filed for Rs. 50,00,000 but the
amount awarded was Rs. 20,00,000. The said awarded amount was inconsistent with the
claim of the appellant and he had further appealed to the National Commission for the
same amount. However, again his plea was turned down and he was awarded with a mere
sum of Rs. 40,00,000. Finally, he has appealed to this Hon’ble Court with a view that his
plea would be heard and justice would be awarded to him for which he has been burning
the night oil.
In addition to all of the above, it is humbly submitted to this Hon’ble Court that, The
controversy whether the medical services should or should not be covered by the
expression ‘service’ as defined in Sec. 2(1)(o) has been set at rest by the Supreme Court
in the case of Indian Medical Association v. V.P.Shantha,6 by holding that Sec. 14 (1)(d)
indicates that the compensation to be awarded is for the loss or injury suffered by the
consumer due to the negligence of the opposite party. In view of the definition of
‘deficiency’ as contained in Sec. 2(1)(g), medical practitioner must be included within the
ambit of the Act and the service rendered by them is covered under the Sec. 2(1)(o).

It was held that patients aggrieved by any deficiency in the treatment, from both private
clinics and Govt. Hospitals, are entitled to seek damages under the COPRA. The
judgment of the Madras High Court was set aside by the Supreme Court. It was held:
1. Services rendered to the patient by a medical practitioner except where doctor
renders service free of charge to every patient or under a contract of personal

5
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 129; Romesh Thappar v. The State of Madras, AIR
1950 SC 124.

6
1996 AIR 550, 1995 SCC (6) 651

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service by way of consultation, diagnosis and treatment, both medicinal and

surgical, would fall under the ambit of ‘service’ as defined in Sec. 2(1)(o) of the
COPRA.
2. The fact that medical practitioners belong to the medical profession and are subject
to the disciplinary control of the Medical Counsel of India of State Medical
Counsels would not exclude the service rendered by them from the ambit of
COPRA.
3. The service rendered by a doctor was under a contract for personal service rather
than a contract of personal service and was not covered by the exclusionary clause
of the definition of service contained in COPRA.
4. A service rendered free of charge to everybody would not be service as defined
in the Act.
5. The hospitals and doctors cannot claim it to be a free service if the expenses
have been borne by an insurance company under the medical care or by one’s
employer under the service condition.

Therefore, in the instant case, even if it is contented, but not conceded that the appellant
have no locus standi, the Hon’ble Supreme Court should still consider the issue as it is of
grave importance and is violating the basic right of the appellant.

II. THAT THE DOCTOR WAS NEGLIGENT ON HIS PART

AND ACTED WITHOUT ANY REASONABLE CARE

1. There was breach of duty to care

The implied contract between the doctor and patient imposes a duty on him to treat he
patient which also imposes a corresponding obligation on him a duty to take care in the
exercise of he treatment he undertakes. The court discussed that a ‘duty to treat’ there
would be a corresponding ‘duty take care’ upon the doctor. This ‘duty to take care’

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acquires a legal character when based on a contractual relationship. Ethical ‘duty to treat’
on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of
this Code deals with ‘Obligation to the Sick’ and Clause 13 cast obligation on the part of
the doctors with the captioned “Patient must not to be neglected”. Whenever there is a
breach of the aforesaid code, the aggrieved patient or the party can file a petition before
relevant Disciplinary Committee constituted by the concerned State Medical Counsel.

The Supreme Court, while clarifying the duties of a doctor towards the patient in
Laxman Balakrishnan Joshi v. Dr Trimbak Bapu Godbole 7 ruled that a person who
holds himself ready to give medical advice and treatment undertakes that he is possessed
of skill, and knowledge for the purpose.

A doctor when consulted by a patient owes certain duties viz:

(a) a duty of care in deciding whether to undertake the case;

(b) a duty of care in deciding what treatment to give; or

(c) a duty of care in the administration of that treatment.

A breach of any of the aforesaid duties gives a right of action for negligence to the
patient. This was a case under Fatal Accidents Act, 1855. The duties which a doctor owes
to his patients came up for consideration. The Supreme Court held that a person who
holds himself out ready to give medical advice and treatment impliedly undertakes that
he is possessed of skill and knowledge for that purpose. Such a person when consulted by
a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the
case, a duty of care in deciding what treatment to be given or a duty of care in the
administration of that treatment. A breach of any of those duties gives a right of action for
negligence to the patient.

2. The Patient was neglected:

7
1969 AIR 128, 1969 SCR (1) 206

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A physician is free to choose whom he will serve. He should, however, respond to any
request for his assistance in an emergency. Once having undertaken a case, the physician
should not neglect the patient, nor should he withdraw from the case without giving
adequate notice to the patient and his family. Provisionally or fully registered medical
practitioner shall not willfully commit an act of negligence that may deprive his patient or
patients from necessary medical care.

The practitioner must bring to his task a reasonable degree of skill and knowledge and
must exercise a reasonable degree of care. Neither the very highest nor a very low degree
of care and competence judged in the light of the particular circumstances of each case is
what the law requires. The doctor no doubt has discretion in choosing treatment which he
proposes to give to the patient and such discretion is relatively ampler in cases of
emergency. In this case, the death of patient was caused due to shock resulting from
reduction of the fracture attempted by doctor without taking the elementary caution of
giving anesthetic to the patient. The criminal negligence or liability under criminal law
was not an issue before the Court as it did not arise and hence was not considered.

Liability of doctor for negligence for mere error of judgment: The courts and consumer
fora have adopted an approach of extreme caution in determining medical malfeasance.

In Dr N.I Subrahmanyam v Dr Krishna8 the National Consumer Disputes Redressal

Commission held the doctor guilty of negligence merely because in a matter of opinion
he made an error of judgement.

The Supreme Court in Laxman v Trimbclk9 ruled that the doctor has discretion in
choosing treatment which he proposes to give to the patient and such discretion is
relatively greater in cases of emergency.

In Dr Ravindra Gupta & ors v. Ganga Devi10 it was held that a mistaken diagnosis is not
necessarily a negligent diagnosis

8
(1993) III C.P.J.
9
1969 AIR 128, 1969 SCR (1) 206
10
1993 (3) CPR 259

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3. Deficiency of Service

Deficiency means inadequacy to the quality or state of being deficient, an amount that is
lacking or inadequate, a shortage of substances necessary to health.

Deficiency in medical services gives the patient as a consumer the right to claim
compensation.

Sec. 2(f) defines

“deficiency” as follows; deficiency” means any fault imperfection, short coming or

inadequacy in the quality, nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in relation to any service.

The counsel sincerely advocates that in the case of Samira Kohli v. Dr. Prabha
Manchanda,11 the court held that medical negligence is covered under the ambit of
service u/s 2(f) of COPRA.

In Dr.C.S. Subramanian v. Kumarasamy & Anr.,12, a Division Bench of the Madras

High Court has, however, taken a different view. It has been held that the services
rendered to a patient by a medical practitioner or by a hospital by way of diagnosis and
treatment, both medicinal and surgical, would not come within the definition of 'service'
under Sec. 2(1)(o) of the Act and a patient who undergoes treatment under a medical
practitioner or a hospital by way of diagnosis and treatment, both medical and surgical,
cannot be considered to be a `consumer' within the meaning of Sec. 2(1)(d) of the Act;
but the medical practitioners or hospitals undertaking and providing paramedical services
of all kinds and categories cannot claim similar immunity from the provisions of the Act
and that they would fall, to the extent of such para-medical services rendered by them,
within the definition of `service' and a person availing of such service would be a
`consumer' within the meaning of the Act.

11
(2008) 2 SCC 1: AIR 2008 SC 1385: (2008) 1 CPR 237
12
(1994) 1 MLJ 438

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Indian Medical Association v. V.P. Shantha and Ors.,13 is a three-Judge Bench decision.
The principal issue which arose for decision by the Court was whether a medical
practitioner renders 'service' and can be proceeded against for 'deficiency in service'
before a forum under the COPRA , 1986. The Court dealt with how a 'profession' differs
from an 'occupation' especially in the context of performance of duties and hence the
occurrence of negligence. The Court noticed that medical professionals do not enjoy
any immunity from being sued in contract or tort (i.e. in civil jurisdiction) on the
ground of negligence. In devising a rational approach to professional liability which
must provide proper protection to the consumer while allowing for the factors mentioned
above, the approach of the Courts is to require that professional men should possess a
certain minimum degree of competence and that they should exercise reasonable
care in the discharge of their duties. In general, a professional man owes to his client
a duty in tort as well as in contract to exercise reasonable care in giving advice or
performing services.

3. Whether Personal Attention by Doctor is necessary

In P.B. Desai v. State of Maharashtra & Anr., 14 Dr. Desai suggested operating their
patient contrary to the opinion of doctors in the USA, the court held that “decisional shift
is taken by a doctor is against the line of renowned doctor who had earlier treated the
patient, that doctor must exercise required personal attention to the patient during the
operation.”

As it happened in this case there was lack of attention of the respondent towards the
appellant. Thus this could contribute to a negligent act.

In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors15

13
(1995) 6 SCC 651
14
CRIMINAL APPEAL NO. 1432/2013

15
(2009) 9 SCC

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the Supreme Court discussed that the patients by and large are ignorant about the disease
or side or adverse affect of a medicine and ordinarily the patients are to be informed
about the admitted risk including risks in taking any medicine.

4. The hospital is vicariously liable

The Counsel contends that the hospital is also to be made a party in the suit.

All professionals engaged in the medical field; doctors, nurses, hospitals etc. are
responsible for the health, safety and well-being of their patients and are expected to
provide a high quality of care to them. However, some medical practitioners and health
care providers fail to live up to this responsibility towards their patients and do not
provide them with the required standard responsibility of care and attention, thus
resulting in severe complications to the life of the patient. Indian hospitals have been held
liable for their services- rather lack of services- individually or vicariously and hence,
they can be sued for negligence. The liability of a hospital in cases of medical negligence
could be direct or vicarious. Direct liability in this sense would mean a deficiency in the
services provided by the hospital thus making it unsafe and not suitable for treatment.
Vicarious liability, on the other hand, would refer to the liability of the hospital as an
employer for the negligent acts of its employees.

In the case at hand, the liability of the hospital is vicarious as the Respondent no. 1,
(Doctor) was acting as an agent of the hospital.

The employer is responsible not only for his acts and omissions but also for those of his
employees, as long as such acts occur within the course and scope of employment. This
liability is based upon the maxims “Respondent Superior” which means “Let The
Master Answer” and “Qui Facit Per Alium Facit Per Se” which means “He Who Acts
Through Another Does The Act Himself.”

An exception to the above principle is seen in the “borrowed servant doctrine” according
to which the employer shall not be liable for acts of an employee when that employee is
working under the direct supervision of another employer.

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For example, when a surgeon employed by one hospital visits another for conducting a
surgery, the other hospital where the surgery is performed would be seen liable for the
acts of the surgeon.

However, in present times most doctors are not employees of the hospital and are
independent contractors instead. Whether or not a doctor is an employee of the hospital
would depend on upon the nature of his/her relationship with the hospital.

But a hospital cannot escape its liability by merely saying that it cannot suo- moto
perform any operation or amputation and that it provided only infrastructural facilities,
nursing services, support staff, technicians. The hospital is not only responsible for the
staff it provides but also for independent contractors such as anesthetists/surgeons or
doctors in some cases–who admit or operate a particular case as held in the case of Smt.
Rekha Gupta v. Bombay Hospital Trust and Anr.16

Quoting an extremely relevant paragraph form the case of, Joseph Alias Pappachan v.
Dr. George Moonjerly:17

“persons who run hospitals are in law under the same duty as the humblest doctor:
whenever they accept a patient for treatment, they must use reasonable care and skill to
ease him of his ailment. The hospital authorities cannot, of course, do it by themselves;
they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel.
They must do it by the staff which they employ; and if their staff are negligent in giving
treatment, they are just as liable for that negligence as anyone else who employs others
to do his duties for him.”

Hence, the Counsel contends that that the hospital should be held vicarious liable as all
the ingredients of Vicarious Liability, that are as follows are complied with:-

16
2003 (2) CPJ 160 (NCDRC).
17
1995 ACJ 253, AIR 1994 Ker 289

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1. Payment of Wages or Remuneration by Master: In the present case, the doctor

was acting as an agent of the Aspatal, he was being paid by the hospital who was
it’s employer and was also applying his expertise on the cases provided by the
hospital to the doctor.
2. Master’s right to control method of doing work : The hospital was the employer
of the respondent no 2 and he had the upper hand to make the agent he had
appointed to work for him. Therefore, the hospital had full right over the
operations of the doctor and also on the case that were provided to the doctor.
Hence, the Counsel advocates that the respondent no. 2 had full authority over the
methods that were used by the doctor too.
3. Master’s right of suspension or dismissal : As the clause 2 of the above stated
ingredient is completed, the 3rd clause gets it’s intact and comprehensive.

In the celebrated judgment of, Mrs. Arpana Dutta v. Apollo Hospitals Enterprise 18
the court held that:-

"Now large number of private hospitals, nursing homes and clinics have emerged. In
view of the good reputation they have built, patients go there for treatment in large
numbers. These hospitals provide the medical treatment to those patients through
doctors employed by them or by doctors who work there on some arrangement.
These hospitals raise the bills for the medical treatment provided to those patients. In
the circumstances, if the patient suffers injury due to negligence of the doctors
provided in those negligence, the hospitals would be equally liable for damages, on
the principles of vicarious liability or on the principles analogous
to vicarious liability. When these hospitals provide these doctors to the patients and
when they make the bill and collect the fees for the medical treatment given in
those hospitals, these hospitals cannot shove of their responsibility and liability to pay
compensation for the damages suffered by the patients due to the negligence to the
doctors provided by these very hospitals."

Therefore, the Counsel advocates that the issue stated above must be approved of.

18
2002 ACJ 954, AIR 2000 Mad 340, (2000) IIMLJ 772

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ISSUE- III
THAT THE APPELLANT CAN CLAIM THE ENHANCED COMPENSATION

In the present case the appellant had an irreparable hearing loss which has caused
damages for mental anguish, emotional distress, and pain and suffering. Also the ailment
impossible to be rectified would also harm and cause problems in his future and would
lead to losses. As also the appellant spent so much on his treatment and just because of
the negligent act of respondent he also spent in the trial process he has suffered mentally
and also financially and needed to be paid for the same.

In the case of Balram Prasad and Ors. Vs. Kunal Saha 19 , the method of compensation
was discussed. No doubt that the compensation in medical negligence cases has to be
just and adequate. Due to the changing scenario of medical advancement and expectation
of the patients/ people, it's legitimately expected by the patients or their attendants that
the doctor or hospital need to be accountable to a certain degree. If the hospital is having
super specialty facilities, higher level of treatment facilities and cost of treatment; there
will be higher expectations of treatment and care. It is true that compensation cannot be
calculated in a perfect mathematical sense, cannot be precise and accurate, but has to
be within certain broad guidelines, and within certain broad parameters. We have to
consider compensation including loss of income and employment, as well as damages
for mental anguish, emotional distress, and pain and suffering. It was observed by the
Supreme Court in Sarla Varma & Ors. v. Delhi Transport Corporation, 20 decided on
15.4.2009.

“While it may not be possible to have mathematical precision or identical

awards, in assessing compensation, same or similar facts should lead to awards in the

19
(2014) 1 SCC 384
20
civil appeal No. 3483 of 2008

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same range. When the factors/inputs are the same, and the formula/legal principles
are the same, consistency and uniformity, and not divergence and freakiness,
should be the result of adjudication to arrive at just compensation.”

The next question that falls for consideration is the compensation which the respondents
are liable to pay for their negligence and deficiency in service. It is, thus, obvious that
there should be adequate compensation for the expenses already incurred, the pain and
suffering. Thus, as the appellant suffered irreparable hearing loss i.e. it was impossible to
cure his deafness thus it is now important to pay him for his current and future loss that
would occur due to his ailment. Thus compensation awarded by the national commission
that was 40,00,000 which was 10,00,000 less than the demanded compensation should be
increased to 50,00,000 ie the appellant should be paid the full amount as his losses were
irreparable and being aggrieved he should be compensated.

In Arvind Kumar Mishra v. New India Assurance Co. 21, wherein this Court has
calculated quantum of compensation based on ‘reasonable’ assumption about prospective
loss as to how much an Engineering student from BIT might have earned in future even
in the absence of any expert’s opinion. The principles of this case were followed in many
other cases namely, Raj Kumar v. Ajay Kumar & Anr.,22 Govind Yadav v. New India
Insurance Co. Ltd.,23 Sri Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance,24 Ibrahim v. Raju & Ors. (supra),25 Laxman @ Laxman Mourya v.
Divisional Manager, Oriental Insurance Co. Ltd. (supra)26 and Kavita v. Dipak & Ors.27

21
CIVIL APPEAL NO. 5510 OF 2005
22
CIVIL APPEAL NO.8981 OF 2010
23
CIVIL APPEAL No.9014 OF 2011
24
CIVIL APPEAL NO.6481 OF 2011
25
CIVIL APPEAL No.8943 OF 2011
26
CIVIL APPEAL No.9676 OF 2011
27
CIVIL APPEAL NO. 5945 OF 2012

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In Malay Kumar Ganguly’s case, this Court by placing reliance on the decision of this
Court in R.D. Hattangadi v.Pest Control Ltd.,28 made observation while remanding
back the matter to National Commission solely for the determination of quantum of
compensation, that compensation should include “loss of earning of profit up to the date
of trial” and that it may also include any loss “already suffered or is likely to be
suffered in future”. Rightly, the claimant has contended that when original complaint
was filed soon after the death of his wife in 1998, it would be impossible for him to file a
claim for “just compensation” for the pain that the claimant suffered in the course of the
15 years long trial.

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.

The counsel further contends that with respect to the fundamental principle for awarding
just and reasonable compensation, this Court in Malay Kumar Ganguly’s case (supra)
has categorically stated while remanding this case back to the National Commission that
the principle for just and reasonable compensation is based on ‘restitutio in integrum’
that is, the claimant must receive sum of money which would put him in the same
position as he would have been if he had not sustained the wrong.

Broad principles and the formula devised in V. Krishnakumar Case29, we advert to the
question of adequate compensation for the medical expenses incurred, financial hardship
on account of loss of future earnings and care and inflation, etc. suffered by the family of
the Patient. The deceased was about 42 years of age at the time of death, working in the
police department. As per the salary pay slip of deceased, his gross salary was
Rs.21,000/- per month. The deceased left behind the unmarried daughter and her son, a
student of engineering and her old mother as dependents. Considering the age of
retirement as 60 years, his remaining service was almost 18 years. With the application of
28
1995 AIR 755, 1995 SCC (1) 551
29
2015 AIR (SCW) 4283

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formula used in V.Krishnakumar’s Case, total loss of income would be

Rs.47,02,294.95/-. No doubt, it is an admitted fact that, the medical expenses were not
covered under Govt’s Arogya Bhadrata Scheme, therefore, the complainant is not entitled
to receive the medical expenses. In the view of above discussion, we deem it imperative
to enhance the quantum of compensation. Accordingly, the compensation amount of 10
lacs is increased to Rs 47 lacs.

We, therefore, in the light of the facts and circumstances, request this Hon'ble Court to
direct him to pay an enhanced compensation of Rs. 2 Crores out of which the previous
amount of Rs. 50, 00,000 is to be paid with an interest of 6% p.a to the claimant in lieu
of his negligence and we sincerely hope that he upholds his integrity as a doctor in the
future and not be casual about his patients.

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PRAYER

In the light of issues raised, arguments advanced and authorities cited, the Counsel for the
respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:
1. That the doctor and the hospital should be held liable for the medical negligence.
2. That the respondents must be made liable to pay any enhanced compensation of
Rs. 2 Crores, out of which Rs. 50, 00,000 should be paid with an interest of 6%
per annum for the period of the first initiation of the suit to the said appellant.
3. That the hospital and the doctor are liable to pay the enhanced compensation to
the appellant.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity, and Good
Conscience.

All of which is mostly humbly and respectfully submitted

Place: Delhi S/d_____________________

Date : 5th April 2017 COUNSEL for APPELLANT

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