Acharya Vinoba Bhave Rural Hospital vs Samiksha & Anr

M. Shreesha, J

Challenge in these Revision Petitions under Section 21 (b) of the Consumer Protection Act (in short "the Act") is to the common order dated 04.12.2014, passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench Nagpur (in short "the State Commission") in Appeal Nos. 477, 548 and 672 of 2008 preferred by Acharya Vinoba Bhave Rural Hospital (hereinafter referred to as "the Hospital"), New India Assurance Co. Ltd. (hereinafter referred to as "the Insurance Company") and Ku. Samiksha D/o Sachin Kokadwar (hereinafter referred to as "the Patient") respectively. By the impugned order, the State Commission has dismissed all the three Appeals confirming the order of the District Consumer Disputes Redressal Forum, Wardha (in short "the District Forum").

The facts in brief are that the Patient, aged 3 years, D/o Shri Sachin Kokadwar was taken to the Hospital on 02.03.2004 with a complaint of fever and was admitted as an indoor patient from 02.03.2004 to 05.03.2004 as she was diagnosed to be suffering from Brancho pneumonia. As the fever continued she was admitted on 11.03.2004 in another Hospital, where she was diagnosed to be having Vasico Uretery Reflex problem for which the Patient was advised to be operated for re-implantation of ureter and the said surgery was performed on 03.04.2004. Bilateral VUR was not successful and there was oozing of urine from the bladder and also from the stitches. Once again the Patient was operated on 17.04.2004, when a laparotomy was performed and it was detected that the re-implantation of left side ureter was functioning properly but the VUR problem was still persisting on the right side and therefore the right side ureter was again re-implanted. After the surgery ,the Patient was discharged on 30.04.2004 and it is averred that there was calculus in the right ureter but the same was not mentioned in the clinical notes.

The Patient continued to have oozing of urine from the bladder and she was once again shown to the surgical department on 03.05.2004, 07.05.2004 and 17.05.2004 with leakage of urine but the doctors did not take proper care. Even the stitches to the bladder was not made properly and it is averred that it was only on account of the negligent action of the Hospital and the doctors that the Patient's condition deteriorated with continuous flow of urine. The Patient was taken to Kasturba Hospital, Sewagram on 10.05.2004, where the Doctor advised to see a urologist for better treatment as the condition of the Patient became very critical. The Patient was thereafter taken to Vasant Nursing Home, Nagpur, where she was diagnosed by Dr. Suhas V. Salpekar, Senior Urologist and was operated for post operational discharge of urine from the stitches of the bladder. It is averred that at that point of time, there was severe pus formation. The urologist operated upon the Patient, opined that there was a cotton gauze, i.e. a foreign body which remained inside the bladder. It is pleaded that the cotton gauze was left by the doctors of the first Hospital, where the initial surgery was performed during re-implantation of the ureter. It is only due to the cotton gauze having been left behind that all the complications had occurred, which left a permanent black scar on the bladder. It is pleaded that the principle of 'res ipsa loquitur ' which apply to this case as thing speaks for themselves. It is further pleaded that since the vital organs of the Patient were not fully developed, there were symptoms of hernia growth and Dr. Suhas V. Salpekar has advised that the Patient should undergo a hernia operation in the coming months and the Patient though only three years old had to undergo hernia operation. The repeated operations left a permanent black scar on the operated part, which is also visible externally.

It is averred that Doctor was negligent on the following issues:

"a. The doctors of unit-1 has performed the bilateral VUR operation on 03.04.2004. The said operation could not cure the problem and the re-implantation of ureter was not successful and it gave birth to new problem of oozing of urine from bladder and that too from the stitches given during the operation.

b. It was revealed that there was calculus in right ureter, but it was nowhere mentioned in the clinical notes that whether the said calculus was removed or not.

c. That after operation, complainant had been to her home, but the oozing of urine from bladder was continued, but still non-applicant had given discharge to complainant.

d. Father of complainant had taken Ku. Samiksha to Vasant Nursing Home, Nagpur where she had been diagnosed by Senior Urologist Dr. Suhas V. Salpekar, where she was operated for post operational discharge of urine from the stitches of bladder and also for swelling of bladder. At that time the stitches as the bladder became rotten. The Urologist had operated complainant and had opened the bladder and found that cotton gauze i.e. foreign body was remained inside the bladder. The said cotton gause was left by the doctors of unit I of surgery Department of non-applicant, while conducting the 2nd re-implantation operation."

It is stated that the Patient's father had to incur medical expenses together with traveling expenses and underwent mental agony for which, he claimed an amount of Rs. 10,00,000/-. A registered notice dated 12.04.2005 was issued to Hospital seeking compensation of the same, subsequent to which the Hospital and the doctors arranged a meeting with the Patient's father but the matter was not settled. The Patient was once again admitted on 04.09.2006 at K.E.M. Hospital, Mumbai and the treatment papers disclosed that due to problems of bilateral ureteric re-implantation there was recurrent urinary tract infection and she underwent treatment at K.E. M. Hospital, where U.S.G. was conducted on 07.09.2006, which revealed a Pelvic Calix System Dilation. It is averred that during the earlier treatment in March, 2006, there was hydronephrosis to both kidneys of grade-I on account of the infections. The left kidney got completely damaged and therefore on 08.09.2006, the Patient's kidney was removed at K.E.M. Hospital, Mumbai. After the removal of the left kidney, the histopathology test was carried out which showed that due to dilation of kidney along with accumulation of fluid to PCS was completed dilated. The ureter was thick, the lumen was narrow and the distance between the cortex and medulla shrink, which showed there was long time damage to the left kidney. The Patient's life style suffered as she was on a single kidney without being able to enjoy her childhood like normal child. The Patient's father subsequent to the legal notice claimed Rs. 10,00,000/- and have filed a Complaint before the District Forum claiming additional compensation of Rs. 10,00,000/- from the Opposite Parties, keeping in view the future expenses and the relief sought for are detailed as hereunder:

(i) hold that complainant is a consumer of non-applicant no.1 and dispute between them is a consumer dispute and there is deficiency in services on the part of non-applicant no.1;

(ii) hold that the acts and omissions on the part of Doctors of non-applicant no.1 Hospital of Surgery Department of Unit-I, amounts to gross medical negligence and as such, they along with the Hospital and the non applicant no. 2 are jointly and severally liable for the said acts;

(iii) Award Rs.10,00,000/- in favour of complainant and against the non-applicant no. 1 and 2 towards damages by way of compensation.

(iii A) Award Rs. 10,00,000/- by way of additional compensation in favour of complainant and against the non-applicant for the reasons, more specifically stated in para no. 17-A to 17-C;

(iv) award interest @ 18% p.a. on the awarded amount from the date of filing of complaint till realization of entire amount;

(v) Saddle the costs of litigation of Rs.5,000/- on the non-applicant;

(vi) grant any other relief/s, which this Hon'ble Forum think, fit and proper in the situation and the circumstances of the case."

The Hospital filed their Written Version denying all the averments made by the Patient's father that the doctor experimented on the body of the Patient and negligently treated her. It is denied that a cotton gauze was left behind in the bladder; that leaving of the cotton gauze has caused the subsequent surgeries and that a permanent black scar on the Patient's body, visible externally. It is further denied that the Patient's father incurred travel and medical expenses and that the removal of the kidney was only on account of the alleged negligent attitude of the doctors. It is averred that the Patient was admitted in April 2004 and the operation was performed, but after discharge whatever complications had arisen were treated and the Patient's parents did not bring her back to the Hospital for post operative complications, if any, and therefore the Hospital cannot be saddled with any liability. It is also stated that the Hospital is a society registered under Bombay Public Trust Act and Societies Registration Act, 1860 and that the Hospital does not have a separate legal identity. It is also averred that the Insurance Company had issued a professional indemnity policy.

The District Forum based on the evidence adduced, partly allowed the Complaint directing both the Opposite Parties to pay an amount of Rs. 1,50,000/- towards medical expenses, Rs. 6,00,000/- towards physical and mental agony with interest @ 9% p.a. from the date of Complaint till the date of realisation and Rs. 5,000/- towards costs. There was also a direction that the Opposite Party deposit the whole amount with the Forum and the Patient's guardian, i.e. her father, should invest the amount of Rs. 6,00,000/- in the name of the Patient in the nationalized Bank for a period of 5 years and afterwards in the fixed deposit from time to time till the Patient became a major and that no amount before maturity period will be withdrawn by the guardian without prior permission of the Forum.

Aggrieved by the said order, as aforenoted three Appeals were preferred by the Hospital, the Insurance Company and the Complainant.

The State Commission while dismissing all the three Appeals relied on the principle of res ipsa loquitur and observed as follows:

"16. It is also pertinent to note that interrogatories were submitted by the complainant to Dr. Salpekar and doctors of KEM Hospital, Mumbai, where the complainant Samiksha was treated.

It is also not disputed that after the cotton gauze was removed from the bladder of Samiksha, the problem about VUR was continued and, therefore, she was required to be taken by her father to KEM Hospital, Mumbai. It was found that her left Kidney was totally damaged and hence it was removed by surgical operation on 8/9/2007, in KEM Hospital of Mumbai. Dr. S.V. Salpekar, in reply to question No. 3 put to him, stated that if VUR is left untreated, it can have adverse effect on Kidney and it may damage the kidney. The said reply was given by him on 17/6/2006 whereas Samiksha (Complainant) was thereafter taken to KEM hospital, Mumbai on 4/9/2006 and she was then treated there from 4/9/2006 to 12/9/2006. Thus, Dr. Salpekar's opinion was prior to diagnosis of infection to the kidney in KEM hospital.

It is worthy to note that in subsequent interrogatory submitted to Doctors of KEM Hospital, Mumbai they have given reply on affidavit. They stated in an answer to question No. 4 that, "before complainant was admitted to their hospital, she was subjected to bilateral reimplantation of ureters on 3/4/2004 and then for right uretery reimplantation on 17/4/2004 and subsequently, in May, 2004,systoscopy for removal of foreign body was done at Vasant Nursing Home. As per history of Samiksha (complainant) she had multiple episodes of urinary tract infection (UTI) and after that and was admitted to KEM Hospital on 8/8/2006". Thus, it is crystal clear from the said reply of doctors of KEM Hospital that despite of previous tow operation performed in the hospital of OP No. 1, the trouble of Samiksha was continued as she was had multiple episodes of urinary tract infection after those operations. It is, therefore, proved that earlier two operations of reimplantation of ureters were done negligently by the Doctors of OP No. 1, resultantly, urinary tract infection arose.

Doctors of KEM Hospital also answered to the question No. 8A to the effect that as foreign body was found in the bladder of Samiksha, it caused urinary tract infection and inflammation. However, they could not opine the extent of damage due to that reason. In an answer to question No.11, the doctors of KEM Hospital, Mumbai stated that repeated episodes of urinary tract infection led to deterioration of kidney function.

In our view, the said answer given to question No.11 by doctors of KEM Hospital is sufficient to draw a clear inference that due to not performing properly the first and second surgical operations in the hospital of OP No. 1, and due to leaving cotton gauze i.e. a foreign body in her bladder in second operation, the repeated episodes of urinary tract infection were occurred and they caused damage to left side kidney of Samiksha (complainant). In our view, on the basis of the above opinion given by both the doctors i.e. Dr. S.V. Salpekar and doctors of KEM Hospital, Mumbai, the Forum below has rightly come to the conclusion that minor complainant Samiksha was required to bear severe pain and she also lost her left side kidney only because of the gross negligent act of the OP No.1 in performing first and second operations and in leaving cotton gauze in her bladder. The harm caused to Samiksha (compliannat) cannot be said to be side effect of any treatment given to her through an error of judgment of the doctors of the OP No.1 hospital. The conduct of the doctors of OP No.1 hospital in performing two operations and in post operative care was below the standard of reasonably competent doctor, because of which the complainant Samiksha had not only to bear severe pains for a long time but she also lost her left side kidney as discussed above. Hence we are of the considered view that compensation or Rs.1,50,000/- with interest granted by the Forum towards medical expenses and compensation of Rs. 6 lacs with interest granted for physical harm and mental agony caused to the complainant and her father, is just and proper. The decision relied on by the learned advocate of the OP No. 1 is thus not applicable to the facts and circumstances of the present case as they are totally different from those of present case discussed above."

(Emphasis Supplied)

Heard all parties at length.

Learned Counsel appearing for the Hospital submitted that the State Commission has relied on the opinion expressed by KEM Hospital; that the opinion of Dr. Salpekar, who treated the Patient immediately after the surgery ought to be taken into consideration; that the Patient was never brought to the Hospital after removal of cotton gauze, she was suffering from any kind of infection; that it was an infection which led to the removal of kidney in the year 2007, when the cotton gauze was found in May, 2004; that the State Commission failed to take into consideration that the bills of the Patient was not more than 50,000/- but erroneously granted Rs. 1,50,000/-; that the doctors opinion were all one sided and the medical experts were not cross examined; that the Patient was suffering from congenital problem of VUR which necessitated the kidney removal at the age of 6 years which has no nexus to the alleged cotton gauze, which remained in the bladder till May, 2004 and that the awarding interest @ 9% p.a. by both the fora below is excessive. Learned Counsel in his oral submissions stated that after amendment of the Complaint, the compensation prayed for was Rs. 20,00,000/- and above and therefore, the District Forum did not have pecuniary jurisdiction to entertain the same.

For better understanding of the case the chronological list of events as averred by the Complainant is detailed as hereunder:

03.03.2014

The Patient was taken to the Hospital for Complaint of fever and was admitted as inpatient from 02.03.2004 to 05.03.2004 diagnosed to be suffering from Brancho Pneumonia.

11.03.2004

As the fever continued she was once again admitted on 11.03.2004 and the doctors diagnosed the Patient to be suffering from Vasico Uretery Reflex problem (VUR) coupled with cystitis. Hydronephrosis and hydroureter problems.

03.04.2004

Bilateral VUR operation was conducted, the reimplantation of uretery was not successful and there was continuous oozing of urine from the bladder and the stitches.

17.01.2004

One more operation was conducted on the Patient opening the abdominal cavity and it was diagnosed that VUR was persisting with the right side and second reimplantation of right side ureter was done.

April, 2004

Flow of urine from the stitches and the bladder continued.

30.04.2004

The Complainant was discharged and she was called for post-operative care on 03.05.2004, 07.05.2004 and 10.05.2004, during which time the oozing continued.

May,2004

It Was at Vasant Nursing Home, Nagpur that A Senior Urologist Dr. Suhas V. Salpekar, operated upon the Patient and diagnosed that a cotton gauze i.e. a foreign body was found inside the bladder.

29.08.2005

The Complainant filed a Complaint before the District Forum.

08.09.2006

Kidney of the Patient was removed at KEM Hospital.

21.02.2007

The Complaint was amended seeking compensation of Rs. 20,00,000/-

It is averred that after issuance of notice the Hospital filed their reply denying all the averments. Learned Counsel appearing for the Complainant vehemently contended that the Patient's condition worsened and subsequent to the filing of the Complaint i.e. on 04.09.2006, the Patient was admitted to KEM Hospital, Mumbai with recurrent urinary tract infection leading to infection in the kidney and which led to removal of the left kidney on 08.09.2006. Learned Counsel appearing for the Complainant vehemently contended that it was only on account of leaving of cotton gauze, admitted by Dr. S.V. Salpekar, that led to all the subsequent infection and finally failure of the kidney of a child, who was 6 years old, robbing the child of her childhood. On 21.02.2007, the Complainant was amended seeking additional compensation of Rs. 10,00,000/- on account of the subsequent events of kidney removal and the future expenses.

The brief fact that falls for consideration is whether the Hospital in negligent in the Treatment of the Patient and if there is any evidence on record to establish that during the second re-implantation the cotton gauze i.e. foreign body was left behind and whether this had led to the removal of the kidney of the Patient.

At the outset, we address ourselves to the oral submission of the learned Counsel appearing for the Hospital that subsequent to the amendment made in the Complaint, the District Forum did not have pecuniary jurisdiction to entertain the same. It is observed from the record that initially, the Complaint was filed on 29.08.2005 and admittedly with the subsequent developments i.e. removal of the kidney on 08.09.2006, an amendment was sought for on 21.02.2007 seeking an additional compensation of Rs. 10,00,000/-. The District Forum allowed the application and thereafter the order was pronounced on 16.04.2008. It is pertinent to mention that after the Application for amendment was allowed, the Opposite Parties did not take any steps to challenge the said amendments before the State commission apart from not exercising their legal right at that point of time, it is relevant to mention that even in their grounds of Appeal before the State Commission the said issue was not raised. Even in the grounds of Revision Petition preferred before this Commission, there is no whisper of any such statement that after the amendment the District forum did not have pecuniary jurisdiction to entertain the Complaint. It was only during oral arguments submitted by the learned Counsel appearing for the Hospital that for the very first time the issue of pecuniary jurisdiction was raised. Additionally, the principal amount prayed for in the Complaint is Rs. 20,00,000/-. We find it a fit case to place reliance on the principle laid down by the Hon'ble Supreme Court in Treaty Construction and Anr. Vs. Rubi Tower Co-op. Housing Society Ltd. , 2019 SCC OnLine SC 884 , wherein the Hon'ble Apex Court has observed that issue of pecuniary jurisdiction should be raised at the threshold and noted as follows:

"The contention on the part of appellants as regards pecuniary jurisdiction has only been noted to be rejected. The National Commission has observed, and rightly so, that such a plea was not specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection as regards pecuniary jurisdiction could not have been countenanced before the National Commission. We find no error in the National Commission rejecting this plea as being wholly untenable at the given stage."

Hence this contention of pecuniary jurisdiction raised at this belated stage is not accepted.

Though the Hospital has filed Written Version baldly denying all averments, the treatment record evidences that the doctors of the first Opposite Party Hospital performed the initial surgery on 11.03.2004 and the second surgery on 17.04.2004 for re-implantation of the ureter. We find it a fit case to place reliance on the principle laid down by the Hon'ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56, in which it has been observed that the onus shifts on the treating Doctor and the Hospital to explain as to the exact line of treatment rendered.

The Hon'ble Supreme Court in Dr. S.K. Jhunjhunwala Vs. Mrs. Dhanwanti Kumari & Anr. (2019) 2 SCC 282, has observed that negligence has to be decided on the touch stone whether the treating Doctor has exhibited reasonable degree of care and adhered to the normal practice of medical parlance. Since the formulation of the Bolam test, English Courts have formulated a significantly nuanced doctrine pertaining to the standard of care. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-

"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 cases, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.

(Emphasis Supplied)

The Hon'ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, case has preferred Bolitho test to Bolam test. The Supreme Court redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The decision also says that the court should take into account patient's legitimate expectations from the hospital or the concerned specialist doctor.

Before the District Forum Dr. S.V. Salpekar had answered the questionnaire, which evidences that on 14.05.2004, he had seen the Patient and stated that when the Patient had initially seen him, she had watery discharge from the supra pubic wound and that he had performed Cystoscopy and removed the foreign body. During Cystoscopy he had found a foreign body in the lumen of the bladder which was removed with the forceps. He further submitted that he had last seen the Patient on 02.07.2004, but could not recollect that the Patient had developed incisional hernia.

At this juncture, we also find it relevant to reproduce the deposition of Dr. Abhay Gupta, Department of Pediatric Surgery KEM Hospital, which reads as under:

Q.3. What is the treatment of choice for V.U.R. problem?

Ans. The treatment for VUR in each child is individualized and taken into account the child's gender, reflux grade, age, presentation (UTI, screening, antenatal diagnosis), renal status at beginning of therapy, compliance with treatment, likelihood of reflux resolution as well as parent and child preferences.

Indication for surgery include break through urinary tract infections despite prophylactic antibiotics because of non compliance, persistent high grade reflux, congenital anomalies of the VUJ, new renal scars and persistent dilating reflux in girls.

Q.4 what was the condition of Ku. Samiksha previous to her admission of your Hospital?

Ans. As per the details obtained from her previous discharge cards, Pt. was subjected to bilateral reimplantation of ureters on 03.04.04 and on 17.04.04 reexploration with ® ureteric reimplantation and subsequently in May 2004 Cystoscopy with removal of foreign body done at Vasant Nursing Home. As per history of patient, Pt. had multiple episodes of urinary tract infections after that and was admitted to K.E.M. Hospital on 08.08.2006.

Q.5 Whether re-implantation is the only solution of V.U.R. Problem and what is the re-implantation surgery and how it cures the V.U.R. problem?

Ans. Reimplantation is one of the surgical options for V.U.R. In reimplantation surgery, the ureter is reimplanted at another site in the bladder by creating longer muscular tunnel and thereby controlling V.U.R.

Q.7. After re-implantation surgery what are the causes behind oozing urine/ watery discharge from the stitches, whether it occurs after such type of surgery?

Ans. The causes could be due infection of due to stich disruption in bladder.

Q.8. could there be any medical purpose for leaving Foreign Body (F.B.) in bladder?

Ans. No."

(Emphasis supplied)

From the aforenoted deposition it is evident that the Patient after undergoing bilateral re-implantation of ureter on 03.04.2004 and 17.04.2004, re-exploration with right ureteric re-implantation and subsequently in May 2004 a Cystoscopy with removal of the cotton gauze, had multiple episodes of urinary tract infection and was admitted with this problem to KEM Hospital, Mumbai on 08.08.2006. The deposition of Dr. Suhas V. Salpekar read with the deposition of the doctors of KEM Hospital and the Hospital treatment record, we are of the considered view that a cotton gauze was indeed left behind during the re-implantation surgery performed in the Hospital, which was later removed in May, 2004 by performing a Cystoscopy. We find it a fit case to apply the principle of res ipsa loquitur i.e. the things appears as they are. The Hon'ble Supreme court in Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors., 1996 (2) SCC 634, has applied the doctrine of res ipsa loquitur and has observed as follows:

"It is true that in a number of cases when foreign bodies are left inside the body of a human being either deliberately, as in the case of orthopaedic operations, or accidentally no harm may befall the patient, but it also happens that complications can arise when the doctor acts without due care and caution and leaves a foreign body inside the patient after performing an operation and it suppurates. The formation of pus leaves no doubt that the mop left in the abdomen caused it, and it was the pus formation that caused all the subsequent difficulties. There is no escape from the conclusion that the negligence in leaving the mop in Chandrikabai's abdomen during the first operation led, ultimately, to her death. But for the fact that a mop was left inside the body, the second operation on 19th July, 1963 would not have taken place. It is the leaving of that mop inside the abdomen of Chandrikabai which led to the development of peritonitis leading to her death."

Having concluded that a cotton gauze was indeed left behind during the re-implantation surgery, we are of the considered view that the contention of the learned Counsel appearing for the Hospital that there is no nexus between the cotton gauze and the subsequent urinary tract infection, which ultimately led to kidney removal, is unsustainable. The fact remains that the Patient was treated for urinary tract infection at KEM Hospital, Mumbai and the treatment record evidences that the left kidney was affected on account of dilation, accumulation of fluid in the pelvic calyx system. During her treatment DMSA and DPTA were carried out functional tests evidence that the left kidney was completely damaged and therefore was removed on 08.09.2006. In the instant case also only on account of leaving of cotton gauze in the bladder recurrent infections had occurred which ultimately led to the dilation of the kidney and the removal of the kidney and the aforenoted judgement Achutrao Haribhau Khodwa (Supra) squarely apples to the facts of this case.

Leaving of the cotton gauze is per se negligence and we do not find any illegality or infirmity in the concurrent finding of both the fora below with respect to negligence on behalf of the Hospital in the treatment of the Patient.

The Insurance Company preferred Revision Petition No. 905 of 2015 stating that the hospital was insured with the Insurance Company for the relevant period for a total amount of Rs. 20,00,000/- limiting to an amount of Rs. 6,66,667/- for any one accident during the year. Though the learned Counsel contended that the name of the insured is Jawahar Lal Nehru Medical College and that this Hospital is a trust and its name does not figure in the insured, we place reliance on the admission made by the Insurance Company in para 7 of their Written Version that the Hospital was indeed covered by the policy.

Hence, all the concurrent findings of both the bora below against the Insurance Company is confirmed.

Now we address ourselves to the Revision Petition preferred by the Complainant seeking enhancement of compensation awarded by both the fora below. We find force in the contention of the learned Counsel appearing for the Complainant that the Patient was only 6 years old, when she lost her kidney and had suffered physical and mental agony from 2004 onwards with recurrent infections on account of the cotton gauze having left behind. It is an admitted fact that the Patient, 6 years old child had lost her kidney and the Hospital treatment record shows that the child was in and out of Hospitals having undergone several surgeries between the period 2004 till 2006. The Deposition of the Doctors shows that even in the future, the child may be subject to various complications including hernia which may arise out of the procedures which the child was subject to. Apart from this, the fact remains that the child has only one kidney and her definitely restricted her life style with respect to physical movements in many aspects. The Hon'ble Supreme Court, while discussing the aspect of compensation in Lata Wadhwa & Ors. Vs. State of Bihar, (2001) 8 SCC 197 , Malay Kumar Ganguly v Sukumar Mukherjee (2009) III SCC 663 and in Arun Kumar Manglik Vs. Chirayu Health And Medicare Private Limited & Anr., 2019 (3) SCALE 333, has laid down that compensation should be awarded based on the principle of restitutio in integrum.

At this juncture, we find it a fit case to place reliance on the judgement of the Hon'ble Supreme Court in V. Krishnakumar Vs State of Tamil Nadu & Ors. (2015) 9 SCC 388. The Apex Court has laid down as follows:

"20. .......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.....

Future Medical Expenses

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, given a modest 3% inflation rate, would be worth only Rs.64.13. In Wells v. Wells[3] 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

Inflation over time certainly erodes the value of money. The rate of inflation (Wholesale Price Index-Annual Variation) in India presently is 2 percent [4] 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

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/-."

The aforenoted judgement squarely applies to this case where the child is only 6 years old and even if her life expectancy is taken to be 70 years for the next 60 plus years the expenditure, which the Appellant has to incur apart from the mental agony cannot be undermined. In fact the Hon'ble Supreme Court has also taken into consideration the aspect of inflation for future expenses. In the instant case also the Complainant has categorically stated in para 17 b and c of the Complaint that the additional Rs. 10,00,000/- is being claimed towards compensation to meet the medical expenses and future loss. Apart from this, at the cost of repetition, the Patient has lost some of the joy of enjoying her childhood and is deprived of wholesome physical activity on account of having only one kidney. For all the aforenoted reasons and keeping in view the decisions of the Hon'ble Supreme Court, we are of the view that Revision Petition No. 1361 of 2015 filed by the Complainant be partly allowed and the compensation be enhanced from Rs. 6,00,000/- to Rs. 18,00,000/- while setting aside the interest @ 9% p.a. awarded by the Fora below. This amount of Rs. 18,00,000/- is exclusive of medical expenses of Rs. 1,50,000/-. awarded by the Fora below. Apart from taking into consideration the Patient's condition and the medical expenses incurred, this amount of Rs. 18,00,000/- is awarded as a lump sum compensation. It is relevant to mention that the Complainant had prayed for an amount of Rs. 20,00,000/- only. Further, the aspect of inflation as held by the Hon'ble Supreme Court in V. Krishnakumar (supra) needs to be taken into consideration.

In the result, Revision Petitions No. 251 of 2015 and 905 of 2015 preferred by the Hospital and the Insurance Company are dismissed and Revision Petition No. 1361 of 2015 filed by the Complainant is allowed in part modifying the order of the State Commission to the extent indicated above.

Needless to add, the amount covered by the policy shall be paid by the Insurance Company and the balance shall be paid by the Hospital. Initially an amount of Rs. 5,00,000/- from the amount of Rs. 7,50,000/- deposited by the Hospital in this Commission shall stand released to the Patient's father Shri Sachin Kokadwar and the balance amount with the interest accrued together with the remaining amount shall be deposited in the executing court which shall place the same in a fixed deposit for a period of 5 years to be renewed till the Patient (who is a minor) attains the age of majority and thereafter it shall be released with the interest accrued to the Patient Ku. Samiksha. We also award costs of Rs. 10,000/- to be paid to the Complainant by the Hospital.

Time for compliance four weeks, failing which, the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realization.