D.C. Malviya Since Deceased Thr Lrs vs Dr. A.H. Memom Since Deceased Thr Lrs

2024 INSC 786 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NOS. 32406-32407 OF 2017

D.C. MALVIYA (SINCE DECEASED) THR. LRS. … Petitioner(s)

VERSUS DR. A.H. MEMON (SINCE DECEASED) THR. LRS. AND OTHERS … Respondent(s)

With

SPECIAL LEAVE PETITION (CIVIL) NOS. 19478-19479 OF 2019

DR. RAJENDRA BANTHIA AND OTHERS … Petitioner(s)

VERSUS D.C. MALVIYA (DEAD) THROUGH LRS. AND OTHERS … Respondent(s)

JUDGMENT

Rajesh Bindal, J.

1. This order will dispose of a bunch of petitions as noted Signature Not Verified

above.

Digitally signed by KAVITA PAHUJA Date: 2024.10.17 10:04:08 IST Reason: Page 1 of 9

2. Special Leave Petition (Civil) Nos.32406-07 of 2017 have

been filed by Legal Representatives (for short “LRs”) of the deceased

patient seeking enhancement of compensation awarded on account of

alleged medical negligence, whereas Special Leave Petition (Civil)

Nos.19478-79 of 2019 have been filed by the doctors who have been

held liable and were directed to pay damages for deficiency in service

along with refund of treatment costs. For the sake of convenience, the

parties shall be referred to by their positions before the National

Commission1.

3. Briefly, the facts available on record are that a complaint2

was filed before the District Forum3 on 01.08.2003, by the predecessor

in interest of the petitioners before this Court in Special Leave Petition

(Civil) Nos.32406-07 of 2017, seeking compensation of ₹14,00,000/- on

account of death of his wife (late Sheela Malviya). The allegations were

of medical negligence. She was admitted in the nursing home

managed by the deceased respondent No.1 Dr. A.H. Memon, who is

now represented by his LRs, for the treatment of Nasal Polyps. On

17.08.2001 (pg. no. 17) Endoscopic Polypectomy was performed,

however, she suffered from cardiac arrest soon after completion of the

1 The National Consumer Disputes Redressal Commission at New Delhi. 2 Complaint Number 310 of 2003 3 District Consumer Disputes Redressal Forum, Raipur (Chhattisgarh).

Page 2 of 9 procedure. Since Dr. A.H. Memon’s hospital did not have ventilator

facility, she was shifted to the opposite party No. 5, Dr. Rajendra

Banthia’s nursing home on the same day. The patient was given

treatment for around 19 days at Dr. Rajendra Banthia’s nursing home,

however her condition remained critical. On 06.09.2001 (page no. G),

she was shifted to opposite party No.6, Dr. Gautam Darda’s hospital

where the patient expired on 07.09.2001.

4. The District Forum vide order dated 26.07.2006 dismissed

the complaint qua opposite party Nos.1 to 4 and 6 to 8 before it, namely;

Dr. A.H. Memon, Dr. M. Arif Memon, Dr. S. Rathi, Dr. Anil Jain, Dr. Aarti

Gautam Darda, Dr. Chandrika Sahu and Dr. Atul Tiwari.

5. The complaint was accepted only qua opposite party No.5

namely Dr. Rajendra Banthia. He was directed to refund the entire

treatment charges received by him to the tune of ₹1,20,000/-.

Additionally, ₹50,000/- was directed to be paid on account of

deficiency of service and ₹2,000/- were awarded as legal expenses.

The amount was to be paid with interest @ 9% p.a. from 17.08.2001 till

realization.

6. Aggrieved against the aforesaid order, the complainant

namely late Shri D.C. Malviya, husband of the deceased and also the

Page 3 of 9 opposite party No.5 Dr. Rajendra Banthia against whom compensation

was awarded, filed appeals4 before the State Commission5. Both the

appeals were dismissed by the State Commission vide order dated

12.10.2009.

7. Still aggrieved, both the aforesaid parties filed Revision

Petitions6 before the National Commission. The revision petition filed

by late Shri D.C. Malviya represented through his LRs, was allowed to

the extent that in addition to the relief already granted by the District

Forum, opposite party No.1 through LRs and opposite parties No. 2 to

4 were directed to pay compensation of ₹3,00,000/- jointly and

severally to the LRs of the complainant. Opposite party 7 and 8 were

directed to pay ₹50,000/- each for giving contradictory CT Scan

reports. Cost of ₹20,000/- was also directed to be paid by all opposite

parties except opposite party No.6. Opposite party No.5, Dr. Rajendra

Banthia was directed to pay compensation as awarded by District

Forum. The amount was directed to be paid within four weeks from the

date of receipt of copy of the order failing which interest @ 9% p.a. was

payable from the date of filing of complaint till the realization.

4 Appeal Number 457 of 2006 and Appeal Number 472 of 2006 5 Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur. 6 Revision Number 24 of 2010 and Revision Number 382 of 2010

Page 4 of 9

8. Aggrieved against the common order passed by the

National Commission the LRs of the complainant preferred Special

Leave Petition Nos. 32406-07 of 2017 seeking further enhancement of

compensation. Opposite party Nos. 5, 7 and 8 also preferred Special

Leave Petition (Civil) Nos.19478-79 of 2019 challenging the National

Commission’s order.

9. Brief arguments raised by the learned counsel for the LRs of

the complainant seeking enhancement of compensation are that once

the deficiency in service is proved, the compensation had to be

assessed by applying the multiplier method. It was argued that

deceased patient being a housewife, her notional income should have

been taken for calculation of just and fair compensation.

9.1 It was also submitted that the National Commission did not

provide any break-up for arriving at the enhanced compensation

amount. Further, no compensation was awarded on account of future

prospects, cost of litigation and under other heads. It was also argued

that the National Commission ought to have awarded interest from the

date of filing of the complaint. It was not justified in awarding interest

only upon the opposite parties failing to pay the compensation amount

within four weeks of the date of the passing of the order.

Page 5 of 9

10. On the other hand, the learned counsel appearing for the

contesting doctors against whom damages have been awarded

submitted that it was not a case of deficiency in service as they had

provided best medical aid, advice and treatment as per the standard

medical protocols but still the patient could not survive. The amount of

compensation awarded to the LRs of the complainant should be set

aside as it will remain a scar on their professional career.

11. Heard the learned counsel for the parties and perused the

relevant record.

12. Firstly, coming to the petitions filed by the contesting

doctors. A perusal of the paper book and various orders passed by this

Court shows that notice has not been issued in the same.

13. As far as petitions filed by the LRs of the deceased

complainant are concerned, it is an admitted position that the

Endoscopic Polypectomy procedure performed on the deceased

patient was successful. It was after the procedure that the patient

suffered cardiac arrest, which led her shifting to opposite party No.5,

Dr. Rajendra Banthia’s nursing home, and subsequently to opposite

party No.6, Dr. Gautam Darda’s hospital, where she eventually died. It

Page 6 of 9 was submitted on behalf of the LRs of the deceased patient that the

opposite parties No. 1 to 4 were negligent in not conducting proper

pre-anesthetic checkup before performing the procedure.

Furthermore, it was submitted that the opposite party No. 5, Dr.

Rajendra Banthia, who is a general physician, treated the patient

without referring her to better medical facility in a timely manner. The

submissions put forth by the LRs of the deceased complainant were

duly considered by the National Commission, which after considering

the material available on record provided for additional compensation

to be paid by the opposite parties.

14. The position as it stands today after considering the reliefs

awarded by the National Commission against different parties is:

Amount awarded Towards Payable By (in ₹)

3,00,000/ (jointly Medical Expenses, Loss Opposite Party No.1 and severally) of Love and Mental (Dr. A. H. Memon Agony. through LRs) Opposite Party No. 2 (Dr. M.Arif Memon) Opposite Party No. 3 (Dr. S. Rathi) Opposite Party No. 4 (Dr. Anil Jain)

50,000/- For giving contradictory Opposite Party No.7 CT Scan Report. (Dr. Chandrika Sahu) 50,000/- For giving contradictory Opposite Party No.8 CT Scan Report. (Dr. Atul Tiwari)

Page 7 of 9 20,000/- Costs. All opposite parties except Opposite Party No.6 (Dr. Aarti Gautam Darda) 1,20,000/- (with Refund of treatment cost.

interest at 9% p.a. from 17.08.2001) 50,000/- (with Compensation for Opposite Party No.5 interest at 9% p.a. deficiency in service. (Dr. Rajendra Banthia) from 17.08.2001)

2000/- Legal Costs.

15. Out of the aforesaid parties, the opposite party No.1

through LRs and opposite party Nos. 2 to 4 have not challenged the

order. Whereas in the S.L.P. (C) Nos.19478-19479 of 2019 filed by the

opposite party No. 5 and opposite party Nos. 7 and 8, notice has not

been issued.

16. From the facts as noticed and on a perusal of the orders

passed by the different forums, better care of the patient could have

been taken but the fact remains that she did not survive. She was 51

years of age at the time of her death. The National Commission has

awarded additional compensation of ₹3,00,000/- in lumpsum to be paid

by opposite party No. 1 through LRs and opposite party Nos. 2 to 4,

along with ₹50,000/- each to be paid by opposite party No. 7 and 8,

which in our opinion seems to be reasonable and justified, hence,

deserves no further enhancement. The value of human life cannot be

Page 8 of 9 assessed in monetary terms whatsoever is awarded is a matter of

solace.

17. We find the reliefs given above are sufficient in S.L.P.(C)

Nos.32406-32407 of 2017 and hence no case is made out for grant of

leave in the instant petitions. The same are accordingly dismissed.

18. Since the amount involved in the S.L.P. (C) Nos.19478-19479

of 2019 filed by the contesting doctors is minimal, no notice was issued

by this Court. We do not find any merit in the present Special Leave

Petitions as well, which are hereby dismissed.

……………….……………..J. (MANOJ MISRA)

……………….……………..J. (RAJESH BINDAL) New Delhi October 15, 2024.

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