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Judgment
M. Shreesha, J.
Challenge in these Revision Petitions under Section 21 (b) of the Consumer Protection Act (in short "the Act") is to the order dated 30.09.2011 in First Appeal No. 463 of 2007, passed by the State Consumer Disputes Redressal Commission, Bihar, Patna (in short "the State Commission"). By the impugned order, the State Commission has reduced the compensation awarded by the District Consumer Disputes Redressal Forum, Gaya (In short, "The District Forum") from ₹10,00,000/- to ₹4,00,000/- to be paid by Dr. Sudhir Mohan Kanth (hereinafter referred to as "the treating Doctor") to the Complainant with costs of ₹2,000/-. Out of the said amount, ₹3,00,000/- was directed to be paid by the Oriental Insurance Company to the Complainant with default interest @9% p.a., if the amount was not paid within two months from the date of the order.
The facts material to the case are that the Complainant took his wife Bachhan Devi (hereinafter referred to as 'the Patient') to the treating Doctor for treatment of a problem in her uterus; the Doctor advised operation TAB (Total Abdominal Hysterectomy); the requisite amounts were deposited; operation was performed on 14.08.2005 at about 12-00 noon; the patient was having difficulty in breathing and an oxygen pipe was affixed. The patient did not gain consciousness till 7-00 P.M. and the Complainant was informed that he was to deposit another ₹5,000/- for a second operation to be performed on the patient.
It was averred that being helpless and keeping in view the serious condition of the patient, the Complainant signed where the treating Doctor asked him to sign. It was stated that on further enquiry, the Complainant was informed that the patient would regain consciousness after some time and thereafter, the Doctor left for his residence. It was pleaded that on 15.08.2005, the patient remained comatose and when the Complainant informed the same to the treating Doctor he was told to consult Dr. P.K. Sinha, who demanded ₹1,000/- towards fees and treated the patient at the Clinic itself, but the patient did not regain her senses till 19.08.2005. On 19.08.2005, the treating Doctor called Dr. Sharda Nand Sinha, who advised C.T. Scan of the Brain, which report showed that the patient was operated on 14.08.2005 and that the patient did not regain her senses only because more than the prescribed limit of Anaesthesia was administered.
Dr. Sharda Nand Sinha referred the patient to Rajeshwar Hospital Patna. On 19.08.2005 after paying ₹2,000/- towards bed and service charges, the Complainant took the patient who was in the comatose condition to Rajeshwar Hospital, Patna, where an ultrasound of abdomen was conducted and it was found normal. There was no improvement in the patient's condition till 03.09.2005. Thereafter, she was treated by Dr. Gauri Shanker Singh at Patna, who referred the patient to Chand Hospital, Patna. On 03.09.2005, Dr. S.M. Rohatgi of Chand Hospital treated the patient and in his prescription, he clearly wrote that large quantity of 'Ether' was used. Till 09.10.2005, the patient remained under the treatment of Dr. S.M. Rohatgi and his medicines continued. Dissatisfied with the treatment, on 10.10.2005, the Complainant took the patient to Dr. Yamuna Prasad Sinha, who further referred the patient to Dr. K.K. Sinha, Ranchi for treatment. On 17.10.2005, the Complainant arranged for some money and took the patient to Dr. K.K. Sinha. It was averred that the patient was not capable of sitting or standing or even recognizing any person and that liquid food had to be given through a pipe. A catheter pipe was also fixed for the purpose of urination and she remained hanging between life and death since 14.08.2005.
It was pleaded that the treating Doctor did not take any precautionary measures of conducting pre-investigative tests with respect to blood, urine, blood sugar etc., prior to the performance of the operation and also used large quantities of Ether on account of which the patient remained in a lifeless state. On 15.08.2005, the Blood Pressure was 130/100 and Blood Sugar was 150/100 and the patient was not in a fit condition for undergoing a Surgery, yet, the treating Doctor did not take this into consideration and performed the operation. It was averred that the Complainant spent ₹4,00,000/- for treatment of the patient by taking loan from his friends and relatives and had to run from pillar to post, but there was no improvement in the patient's condition. Hence, the Complainant approached the District Forum seeking compensation of ₹15,00,000/-, litigation expenses of ₹10,000/-, medical expenses and other reliefs.
The treating Doctor filed his Written Version stating that only because the Complainant was known to him, he had agreed to perform the operation without accepting any fees, only on payment of ₹4,500/- towards Nursing charges and medicines. The patient approached him with problems of bleeding from the uterus and her Blood Pressure was 150/100 and after an hour settled down at 130/80. All the investigations were done before the operation and Dr. M. K. Gupta, Anaesthetist took a brief history of the patient, examined her thoroughly and went through all the pathological reports prior to the operation. It was pleaded that one hour prior to the surgery, the treating Doctor administered Atropine injection to the patient along with Tetovac and Taxim intramuscularly.
Thereafter, Dr. M.K. Gupta administered O2-N2O gas for anaesthetizing the patient with pulse oxy-meter monitoring, which a prudent Doctor uses for the purpose of TAH (Total Abdominal Hysterectomy) acceptable to the medical practices. There was no alternative course or method of treatment available on that day. The operation was performed successfully at 7-00 P.M. when the patient responded well to the treatment and on the next day morning when the treating Doctor examined the patient, he found her eyes open and she was drinking water. The patient's attendant stated that her legs and hands were not responding satisfactorily and he advised them to consult Dr. P.K. Sinha. Accordingly, the patient consulted him and suitable medicines were prescribed. On 16.08.2005, when the treating Doctor did not find proper response to the treatment rendered by Dr. P.K. Sinha, he advised the Complainant to take the patient to Dr. K.K. Sinha of Ranchi, but instead of acting on that advise, the Complainant called on Dr. N. Chatterjee (Homeopath) on the plea that the waiting period was long in Dr. Sinha's Nursing Home.
On 19.08.2005, when the treating Doctor examined the patient, the Complainant complained that the patient was having fever and Dr. Sharda Nand Sinha was brought to examine the patient. Dr. Sinha advised C.T. Scan of the Brain and the report was never shown to the treating Doctor. On 31.08.2008, the ultrasound of the patient's abdomen was done and in the said ultrasound report, everything was found normal. On 03.09.2005, Dr. S.M. Rohatgi noted the case history of the patient based on the statement of the Complainant and further the said letter head says that the statement cannot be used for Medico Legal Purposes. He denied receiving/demanding ₹8,000/- from the Complainant and stated that ₹4,500/- for one week's stay was the only amount charged. He also averred that the oxygen pipe was put only as a precautionary measure to avoid further complications. All other averments made in the Complaint were denied and it was stated that there was no negligence in the treatment rendered by him and sought for dismissal of the Complaint.
The District Forum based on the evidence adduced, allowed the Complaint with the following observations:-
"Now the question is that whether the patient was given anaesthesia medicine ether by the OP during the course of operation. The averments of the OP are that this ether anaesthesia medicine was not given by him but the same was given by Anesthetist Dr. M.K. Gupta of Dhanbad by calling him. In the slip dated 14.8.05 of the OP there is no mention of Anaesthesia specialist Dr. M.K. Gupta. Whereas the OP No. 1 has himself wrote that this operation was done by general anaesthesia. As per the averments of the OP Shre M.K. Gupta was called on 14.08.2005 itself from Dhanbad for giving anaesthesia medicine to the patient. The OP has not nold that Dr. M.K. Gupta is used to call by the OP for all such operations. Alike the Complainant has averred that he on 14.08.05 took the patient to the OP for operation and in the mid of 12 noon she was operated upon. Within this short span of time it is not found feasible that Dr. M.K.Gupta was called from Dhanbad.
There is no dispute on the point that in the town there are some other Anaesthesia Doctors. What was the reason to call Dr. M.K. Gupta from Dhanbad? On this point the OP has not given any satisfactory explanation. From the Affidavit of Dr. M.K. Gupta that he has not clearly told that he had given Anaesthesia to the patient. The Complainant and witnesses of the Complainant have not admitted that Dr. M.K. Gupta was present in the clinic of the OP at the time of operation. The mention of Dr. M.K. Gupta in the slip of OP are not present. Therefore, on the basis of above factor we come to the conclusion that the OP has used Dr. M.K. Gupta in his defence. Actually in fact the Anaesthesia Ether was given by the OP himself. This is not the case of the OP that the OP is a Anaesthesia specialist and is competent to give Anaesthesia medicine. In these circumstances, the giving of anaesthesia medicine to the patient shows the carelessness and negligence of the OP.
From the perusal of slip of the OP, it is found that before the operation, the OP did not get the patient to go through all pathological tests and without any pathological report this operation was done. However, the OP has filed the blood and urea report of patient of dated 14.08.2005, but on this report there is no signature of any specialist and in support of these reports there is no affidavit too. The complainant has averred in his affidavit that this operation was done by the OP without any pathological reports. Therefore, this fact is proved that the OP in hurriness without any pathological tests performed the operation upon the patient. This also shows the medical negligence of the OP.
Keeping in view the above facts and circumstances and condition of patient and the expenses incurred on the treatment we come to the conclusion that the complainant is eligible to receive ₹10,00,000/- towards compensation and ₹2,000/- towards litigation expenses. Alike the OP No.2 has told that the OP No.1 has insured for compensation of ₹3,00,000/- from the OP No. 2 therefore, out of the above said awarded amount ₹3 lakhs shall be payable by OP No.2 and balance amount of ₹7 lakhs and litigation expenses of ₹2000/- shall be paid by OP No.1 to the Complainant".
Aggrieved by the said order, the treating Doctor preferred an Appeal No. 463/2007 before the State Commission, which allowed the Appeal in part and modified the order of the District Forum, reducing the compensation from ₹10,00,000/- to ₹4,00,000/-, out of which ₹3,00,000/- was to be paid by the Insurance Company and the balance by the treating Doctor together with costs of ₹2,000/- and default interest @9% p.a., if the amount was not paid within two months from the date of order. The State Commission, while concurring with the finding of the District Forum regarding the aspect of the 'Medical Negligence' reasoned as follows:-
"15. Now, the point is whether the anaesthesia given to the patient before operation was in excess amount or not? We have gone through all the relevant documents and the prescription of various leading doctors, which are on the record. All the medical prescriptions indicate to the fact that the patient, who came in full consciousness, did not regain her consciousness after the operation and never recovered of that situation till her death. We do not find any noting of the history of the patient or pathological test prescribed by the doctor before a surgery, which is an essential and important factor in a case of major surgery. In view of the above observation, we find that the appellant-doctor failed to take pre-operative measures and precaution so as to ascertain the amount of dose rather failed to assess the tolerance capacity of the patient to the anaesthesia. A doctor is expected to take an ordinary care prior to operation, which was not taken rather the appellant seems to have acted negligently, which caused major damage to the patient health making her paralyzed for the whole life.
Therefore, in the present facts and circumstances of this case, no more evidence is required to be adduced by the respondent as the negligence apparent on the face of the record. It is well settled law that when there is negligence apparent on the face of the case and speaks themselves, no expert evidence or opinion is required, even if bonafide act is performed negligently by skilled person then too it also amounts to deficiency in service. In the light of ruling referred by the respondent laid down by the Hon'ble Apex Court, we feel that no expert evidence is required in the present case. We agree to the view taken by the learned District Forum that the appellant was negligent in providing medical services to the patient.
Having held the appellant guilty of medical negligent, the compensation awarded by the District Forum seems to be on higher slab, which needs to be reduced. As per the provision, award is not only value of goods and services but also to compensate a consumer for injustice suffered by him.
However, under Consumer Law compensation paid for medical negligence is neither punishment nor reward. But it is assessment of compensation for the injury sustained or death and not as a punishment for wrong to make suffer".
Dissatisfied by the order of the State Commission, both the treating Doctor and the Complainant have preferred Revision Petition Nos. 166 of 2012 and 359 of 2012 respectively. It is the case of the Doctor that the State Commission failed to take into consideration that the Anaesthetist Dr. M.K. Gupta, whose Affidavit was on the record before the District Forum, examined the patient and found her fit for Anaesthesia and thereafter, administered the appropriate dose; that the treating Doctor performed TAH with all due care and caution; that Dr. Gupta administered the Anaesthesia as per the practice acceptable by the medical profession; that Expert's opinion was not taken by both the fora below before holding the treating Doctor liable and lastly that the treatment rendered by him was in consonance with the standards of medical practices.
In "P.B. Desai Versus State of Maharashtra and Another" (2013) 15 SCC 481 : 2013 SCC Online SC 840, Hon'ble Supreme Court has discussed in detail the 'duty to treat' and the 'duty to take care' of a doctor towards his patient and observed as follows:-
"when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief:
(a) to continue to treat, except under certain circumstances when doctor can abandon his patient;
(b) to take reasonable care of his patient;
(c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, "Medicine is not an exact science. I shall use my experience and best judegment and you take the risk that I may be wrong. I guarantee nothing."-
(d) Not to undertake any procedure beyond his control: This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating a complicated case.
(e) Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.
Once, it is found that there is 'duty to treat' there would be a corresponding 'duty to take care' upon the doctor qua/his patient.
"When reasonable care, expected of the medical professional, is not rendered and the action on the part of the medical practitioner comes within the mischief of negligence, it can be safely concluded that the said doctor -did not perform his duty properly which was expected of him under the law and breached his duty to take care of the patient. Such a duty which a doctor owes to the patient and if not rendered appropriately and when it would amount to negligence is lucidly narrated by this Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre and Others; (2010) 3 SCC 480. The relevant discussions therefrom are reproduced hereinbelow:
"45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:
Negligence.-Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."
A perusal of the treatment record does not anywhere state the pre-investigative tests which were conducted prior to the surgery, except for monitoring the Blood Pressure and Pulse rate, especially when the patient had approached the Doctor with bleeding P.I.V. (MENORRHAGIA). It is an admitted fact that the surgery of Total Abdominal Hysterectomy (TAH) was performed on 14.08.2005. The treatment record shows that the Blood Sugar, Serum Creatinine and other tests were performed only on 15.08.2005, which is subsequent to the performance of the surgery, by which time the patient was in an unconscious state. In fact the C.T. Scan of the Brain conducted on 19.08.2005, five days after the date of the surgery, clearly shows that the patient was unconscious since the date of surgery. It is the case of the treating Doctor that this C.T. Scan did not evidence any lesions and also was within normal limits. However, the fact remains that the patient never recovered from the surgery and never regained consciousness. The ultrasound of the whole abdomen done on 31.08.2005 also showed normal results. In fact this establishes that the patient never had any abnormalities either in the brain or in the abdomen to be considered a high-risk patient. It is an admitted fact that the Complainant had to run from pillar to post and visited the following Doctors, for further treatment of the patient:-
Name of the Doctor Date
Dr. P.K. Sinha 15.08.2005
Dr. Sharda Nand Sinha 19.08.2005
Rajeshwar Hospital, Patna 19.08.2005
Dr. Gauri Shanker Singh&
Dr. Rahul Kumar 03.09.2005
Dr. S.M. Rohatgi 03.09.2005
Dr. S.N. Arun, Physiotherapist 04.10.2005
Dr. Yamuna Prasad Sinha 10.10.2005
Dr. K.K. Sinha 17.10.2005
Dr.Pande Rajeshwari Prasad 08.03.2006
Patanjali Yogpeeth, Haridwar 03.12.2007
On 03.09.2005, almost three weeks after the surgery, the patient's history was recorded by Dr. Rahul Kumar, M.D. General Medicine, who opined that the patient has been unconscious ever since hysterectomy. Dr. S.M. Rohatgi, Consultant Neurosurgeon of Sahyog Hospital recorded his diagnosis as follows:-
"Dr. S.M. Rohatgi
MBBS (CAL.)M.S.(PGI)
CONSULTANT NEUROSURGEON
Regd.No.38913 to 1981,
"Sahyog Hospital, Ph. 2202046
(10:30-12:30P.M. and 7:00-8:00P.M.)
(Not to be used for Medico Legal Purpose)
Date: 3.9.2005
Smt. Bachan Devi 50 yrs.
Address : Manpur Gaya
Ref: by Dr. Q. Muzaffar, Thanks for referral
Symptomatic since 14.8.05
Asymptomatic before that except for DUB, Br.Asthma
Onset : sudden
Course : static
Informant : son
Reliability : Good
U. consciousness
Restlessness ----. Underwent Abdominal Hysterectomy at Gaya ↓ Ether
. Did not wake up after the surgery
. No details available
. As she remained unconscious she was brought to
Rajeshwar Hospital Patna, where she remained under C/o
Dr. Rajan Kumar
. Has been brought here from RH for further Rx
. Has developed bed sore
. Keeps on putting out tongue
. Shows shaking of LOL
. Lately seen to be weeping off & on
. Not possible to communicate
. Kept on indwelling catheter & NCT feeds
. Developed repeated UTI
C/o Past Illness: Not a known C/o DM Kochs HTN CAD
Known o/o Br. Asthma
R/H : HW
No drug allergy
No habits
F/H Nil relevant
Middle Aged
Afebrile
Over Weight
No neck nodes
No pallor idem pedal edema
Chest clear
Abd. Soft scar of injury
BP 130/80
PR 80/m Reg
No NC marks
Bed sores
N/E HMF- Keeps eyes open, non-communicable, does not follow commands
To pain shows flexion of RL ½
Shows shaking movements of LUL
Speech No verbal output
Gait: bed ridden
Posture Supine
Cr.Nvs. Pearl
EOM
No facial weakness
Constantly pouting the tongue
Motor system < L hemiparesis go 3/5
SChiny system; Intact
DTRs Attire ↑↑ plantan
No lobar cerebellar meningeal signs.
Head Neck Spine NAD
Sphincter- on catheter
▲ . Hypoxic Encephalopathy? Rt. Frontal Ischemia
. Br. Asthma
. Bed sore
............................"
The pitiable state of the patient subsequent to the Surgery is seen from the discharge summary, the reports, and the treatment rendered in various hospitals. The pathetic condition of the patient is evidenced in the aforenoted treatment record and discharge summary of Dr. S.M. Rohatgi. The contention of the treating Doctor that the letter head of Dr. Rohatgi cannot be used for Medico Legal Purposes, and therefore, the prescription cannot be relied upon, is completely unsustainable on the ground that both the Fora below have rightly relied on not merely the prescription but also the entire treatment record and the Discharge Summary given by Dr. Rohatgi.
It is evident that the patient was lying in 'comatose state' with bed sores and despite a plethora of blood chemistry investigations and hospitalization, she never regained consciousness. The prescription of Dr. K.K. Sinha dated 17.10.2005 shows that the patient had hypoxia. The E.E.G. conducted on 18.10.2005, advised by Dr. K. K. Sinha showed abnormality suggestive of "diffuse encephalopathy involving entire brain". Therefore, it can be safely construed that it was only because of the complications that arose subsequent to TAH that the patient had never recovered despite the best efforts made by several aforenoted Doctors.
The contention of the treating Doctor that the Anaesthesia was given by Dr. M.K. Gupta of Dhanbad, who reached his Nursing Home on 14.08.2005 and administered Anaesthesia, is not supported by any documentary evidence, especially in the 'medical records'. Dr. M.K. Gupta filed an Affidavit that he found the patient fit for General Anaesthesia and administered 02-N2O + muscle relaxant and during the operation, all the vital signs of the patient were within normal limits. This Affidavit is silent about the time when he reached the Nursing Home and whether the test dose of Anaesthesia was given, and does not mention anything about the post-operative complications which the patient had developed. Both the fora below have rightly reasoned that it was improbable that Dr. M. K.Gupta had come from Dhanbad to administer Anaesthesia, when the patient was operated in the mid-day at 12-00 noon. The 'duty of care' as laid down by the Hon'ble Apex Court in "P.B. Desai Versus State of Maharashtra and Another(supra)" has not been undertaken in this case and we hold that the doctor did not perform his duty which was expected from him under the common Medical Parlance. We are of the considered view that this amounts to negligence. Moreover, the operation notes do not evidence either the notings by Dr. M.K. Gupta or the dosage of Anaesthesia that was given. We find no reason to disbelieve the final diagnosis given by Dr. S.M. Rohatgi on 13.09.2005, wherein he opined that post anaesthesia, the patient developed hypoxia brain injury. It is relevant to note here that the patient died during the pendency of the Complaint before the District Forum.
For the aforenoted reasons, the Revision Petition No. 166 of 2012 preferred by the treating Doctor is dismissed.
We address ourselves as to whether the Complainant is entitled for any enhancement, as the State Commission had reduced the amount of compensation awarded by the District Forum.
At this juncture, we find it appropriate to rely upon the observations made by the Hon'ble Supreme Court regarding the computation of compensation in V. Krishnakumar vs State Of Tamil Nadu & Ors. [(2015) 9 SCC 388]; [2015 SCC online SC 584]. The Hon'ble Apex Court has ruled out computation of compensation amount based on the multiplier method. The Court warned against the straightjacket approach of using the multiplier method for calculating damages in medical negligence cases, observing thus:
"Quantification of Compensation
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 and in Balram Prasad's case, in the following passage from the latter: (Malay Kumar Ganguly case, SCC p. 282, para 170)
"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".
In Mehmet v. Perry, (1977) 2 All ER 529 (DC), the pecuniary value of a wife's services were assessed and granted under the following heads: -
(a) Loss to the family of the wife's housekeeping services.
(b) Loss suffered by the children of the personal attention of their mother, apart from housekeeping services rendered by her.
(c) Loss of the wife's personal care and attention, which the husband had suffered, in addition to the loss of her housekeeping services.
Taking into consideration the mental and physical agony undergone by the Complainant in taking the patient to several Doctors and running from pillar to post with the patient who was in 'comatose state' for a long period of time, we are of the considered view that the State Commission has erred in reducing the compensation from ₹10,00,000/- to ₹4,00,000/-. It is pertinent to note that the patient had died during the pendency of the Complaint after having suffered for an inordinate long period of time in a pitiable and pathetic condition as can be seen from the hospital treatment records. The Complainant has also lost the love and affection of his wife, who was only 50 years' old. It is also pleaded that she was a mother of three children, who were unmarried at the time of filing of the Complaint. Though, the principle of restitution in integrum 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, in the instant case as the patient had died, the Complainant can never be put in the same position.
In Balram Prasad vs Kunal Saha (2014) 1SCC 384, it was held as follows:-
It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother.
While estimating the 'services' of the housewife, a narrow meaning should not be given to the meaning of the word 'services' but it should be construed broadly and one has to take into account the loss of 'personal care and attention' by the deceased to her children, as a mother and to her husband, as a wife.
The loss of companionship, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately.
By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years.
Under the heading of loss due to pain and suffering and loss of amenities of the wife of the claimant, Kemp and Kemp write as under:
"The award to a plaintiff of damages under the head "pain and suffering" depends as Lord Scarman said in Lim Poh Choo v. Camden and Islington Area health Authority, "upon the claiamant's personal awareness of pain, her capacity of suffering. Accordingly, no award is appropriate if and in so far as the claimant has not suffered and is not likely to suffer pain, and has not endured and is not likely to endure suffering, for example, because he was rendered immediately and permanently unconscious in the accident. By contrast, an award of damages in respect of loss of amenities is appropriate whenever there is in fact such a loss regardless of the claimant's awareness of the loss."
Moreover, while deciding the quantum of the compensation, to be awarded, we find it relevant to rely on the observation made by the Hon'ble Supreme Court in "Balram Prasad vs Kunal Saha (supra)".
Having regard to the circumstances of the Complainant including his age, the deprivation he had to suffer, the loss of companionship, care and protection which the Complainant and the children are entitled to get, the loss of consortium and the pain and suffering undergone by the Complainant and his family, we are of the considered view that the amount awarded by the District Forum, i.e., compensation of ₹10,00,000/- deserves to be paid to the Complainant, to meet the ends of justice. We also find it a fit case to award costs of ₹50,000/-.
In the result, the Revision Petition No. 359 of 2012 preferred by the Complainant is allowed and the amount of compensation is enhanced to ₹10,00,000/- as awarded by the District Forum, out of which, ₹3,00,000/- shall be paid by the Insurance Company and the balance amount shall be paid by the treating Doctor, within eight weeks from the date of receipt of this order, failing which, the amount shall attract interest @9% p.a. from the date of filing the Complaint, till the date of realization, together with costs of ₹50,000/-. Needless to add that the amount deposited before the District Forum vide order of this Commission on 05.09.2012, with the liberty to the Complainant to withdraw the deposited amount on furnishing restitution security to the satisfaction of the District Forum, shall be adjusted in the aforenoted amount.
Revision Petition No. 166 of 2012 is dismissed and Revision Petition No. 359 of 2012 is allowed to the extent indicated above.