Civil Appeal Nos. 2867 and 2866 of 2012. Case: 1. Dr. Balram Prasad, 2. Dr. Kunal Saha Vs 1. Dr. Kunal Saha and Ors., [Alongwith Civil Appeal Nos. 692, 731 and 858 of 2012], 2. Dr. Sukumar Mukherjee and Ors.. Supreme Court
|Case Number:||Civil Appeal Nos. 2867 and 2866 of 2012|
|Party Name:||1. Dr. Balram Prasad, 2. Dr. Kunal Saha Vs 1. Dr. Kunal Saha and Ors., [Alongwith Civil Appeal Nos. 692, 731 and 858 of 2012], 2. Dr. Sukumar Mukherjee and Ors.|
|Counsel:||For Appearing Parties: Vijay Hansaria and Ramji Srinivasan, Sr. Advs., Rana Mukherjee, Daisy Hannah, Shekhar Kumar, Aseem Mehrotra, Asha Nayar, Amit Agarwal, Abhijat P. Medh, Sanjoy Kumar Ghosh, Ranjan Mukherjee, Rupali S. Ghosh, B. Sridhar, T.V. George, Rakesh Taneja, Maurya Sarkar and Dushyant Kumar, Advs. and For Respondents: Party-in-Person|
|Judges:||C.K. Prasad and V. Gopala gowda, JJ.|
|Issue:||Motor Vehicles Act, 1988 - Sections 24A, 158(6), 163A, 166; Consumer Protection Act, 1986 - Sections 12, 13, 23; Supreme Court Act, 1981 - Section 32A; Interest Act, 1978; Motor Vehicles Act, 1939; Indian Penal Code (IPC) - Section 304A; Code of Criminal Procedure (CrPC) - Section 313; Code of Civil Procedure, 1908 (CPC) - Order 41 Rule 27, ...|
|Citation:||2013 (XI) AD (SC) 169, 2014 (1) BomCR 397, 2013 (4) CDR 1041 (SC), 2013 (6) KarLJ 161, 2013 (7) MLJ 781, 2013 (4) RCR 946 (Civil), 2013 (13) SCALE 1, 2014 (1) SCC 384|
|Judgement Date:||October 24, 2013|
V. Gopala Gowda, J.
The Civil Appeal Nos. 2867, 731 and 858 of 2012 are filed by the Appellant-doctors, Civil Appeal No. 692 of 2012 is filed by the Appellant-AMRI Hospital and Civil Appeal No. 2866 of 2012 is filed by the claimant-Appellant - Dr. Kunal Saha (hereinafter referred to as 'the claimant'), questioning the correctness of the impugned judgment and order dated 21.10.2011 passed by the National Consumer Disputes Redressal Commission (hereinafter referred to as the 'National Commission') in Original Petition No. 240 of 1999.
The Appellant-doctors are aggrieved by the quantum of compensation awarded by the National Commission and the liability fastened upon them for the negligence on their part and have prayed to set aside the same by allowing their appeals. In so far as the Appellant-AMRI Hospital is concerned, it has also questioned the quantum of compensation awarded and has prayed to reduce the same by awarding just and reasonable compensation by modifying the judgment by allowing its appeal.
So far as the claimant is concerned, he is aggrieved by the said judgment and the compensation awarded which, according to him, is inadequate, as the same is contrary to the admitted facts and law laid down by this Court in catena of cases regarding awarding of compensation in relation to the proved medical negligence for the death of his wife Anuradha Saha (hereinafter referred to as the 'deceased').
The brief relevant facts and the grounds urged on behalf of the Appellant-doctors, AMRI Hospital and the claimant in seriatim are adverted to in this common judgment for the purpose of examining the correctness of their respective legal contentions urged in their respective appeals with a view to pass common judgment and award.
Brief necessary and relevant facts of the case are stated hereunder:
The claimant filed Original Petition No. 240 of 1999 on 09.03.1999 before the National Commission claiming compensation for Rs. 77,07,45,000/- and later the same was amended by claiming another sum of Rs. 20,00,00,000/-. After the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009) 9 SCC 221 was remanded by this Court to the National Commission to award just and reasonable compensation to the claimant by answering the points framed in the said case, the National Commission held the doctors and the AMRI Hospital negligent in treating the wife of the claimant on account of which she died. Therefore, this Court directed the National Commission to determine just and reasonable compensation payable to the claimant. However, the claimant, the Appellant-Hospital and the doctors were aggrieved by the amount of compensation awarded by the National Commission and also the manner in which liability was apportioned amongst each of them. While the claimant was aggrieved by the inadequate amount of compensation, the Appellant-doctors and the Hospital found the amount to be excessive and too harsh. They further claimed that the proportion of liability ascertained on each of them is unreasonable. Since, the Appellant-Hospital and the doctors raised similar issues before the Court; we intend to produce their contentions in brief as under:
On granting the quantum of compensation based on the income of the deceased:
It is the claim of the learned Counsel on behalf of the Appellant-doctors and the Hospital that there is no pleading in the petition of the claimant that the deceased had a stable job or a stable income, except in paragraph 2A of the petition which states that the deceased was a Post-Graduate student and she had submitted her thesis. The only certificate produced by the claimant shows that she was just a graduate in Arts (English). Further, it is urged by the learned Counsel that the document produced by the claimant - a computer generated sheet, does not explain for what work the remuneration, if at all was received by the deceased. Also, whether the same was a onetime payment of stipend or payment towards voluntary work, is not explained by the claimant. Further, it is stated by the learned Counsel that there is no averment in the petition of the claimant as to on what account the said payment was received by the deceased and whether she has received it as a Child Psychologist as claimed by the claimant or otherwise.
It is also the case of the Appellant-doctors and the Hospital that the claimant had not led any oral evidence with regard to the income of the deceased and further he has not explained why just a single document discloses the payment made sometime in the month of June 1988 in support of the income of the deceased when admittedly, the couple came to India in the month of March-April, 1998. Therefore, the learned Counsel for the Appellant-doctors and the Hospital have urged that the said document is a vague document and no reliance could have been placed by the National Commission on the same to come to the conclusion that the deceased in fact had such an income to determine and award the compensation as has been awarded in the impugned judgment and order. From a perusal of the said document, it could be ascertained that it shows just one time payment received for some odd jobs. Therefore, it is contended by the Appellant-doctors and the Hospital that the claimant has not been able to discharge his onus by adducing any positive evidence in this regard before the National Commission.
It is further contended by the learned Counsel that the assertion of the claimant in the petition and in his evidence before the National Commission that the income of the deceased was $ 30,000 per annum is not substantiated by producing cogent evidence. No appointment letter of the deceased to show that she was employed in any organization in whatsoever capacity had been produced nor has the claimant produced any income certificate/salary sheet. No evidence is produced by the claimant in support of the fact that the deceased was engaged on any permanent work. No Income Tax Return has been produced by the claimant to show that she had been paying tax or had any income in U.S.A.
It is further submitted that even if it is assumed that the annual income of the deceased was $ 30,000 per annum, apart from deduction on account of tax, it is also essential for the National Commission to ascertain the personal living expenses of the deceased which was required to be deducted out of the annual income to determine the compensation payable to the claimant. The National Commission was required to first ascertain the style of living of the deceased- whether it was Spartan or Bohemian to arrive the income figure of $ 30,000 per annum. In India, on account of style and standard of living of a person, one-third of the gross income is required to be deducted out of the annual income as laid down in the decision of this Court in the case of Oriental Insurance Co. Ltd. v. Jashuben and Ors. (2008) 4 SCC 162.
It is further contended by the learned Counsel for the Appellant-doctors and the Hospital that no yardstick is available about the expenditure of the deceased in the U.S.A. The claimant has not adduced any evidence in this regard. The evidence given by the so-called expert, Prof. John F. Burke Jr. also does not say anything on this score.
Even if it is assumed that the annual income of the deceased was $ 30,000 per annum for which there is no evidence, 25% thereof is required to be deducted towards tax. The deduction of tax is much more as is apparent from the case reported in United India Insurance Co. Ltd. and Ors. v. Patricia Jean Mahajan and Ors. (2002) 6 SCC 281. In fact, the claimant has neither adduced any evidence in this regard nor has he produced the relevant statute from which the percentage of tax deduction can be ascertained.
The claimant was last examined by video conferencing conducted under the supervision of Justice Lokeshwar Prasad (retired Judge of Delhi High Court) as local Commissioner. The AMRI Hospital-Appellant's witness Mr. Satyabrata Upadhyay was cross-examined by the claimant.
The claimant filed M.A. No. 1327 of 2009 before the National Commission after remand order was passed by this Court in the case of Malay Kumar Ganguly (supra). The claimant now claimed enhancement of compensation at Rs. 78,14,00,000/- under the heads of pecuniary damages and non-pecuniary damages.
The prayer made in the application was to admit the claim for compensation along with supporting documents including the opinions of the foreign experts and further prayed for issuing direction to the Appellant-doctors and the Hospital to arrange for cross-examination of the foreign experts, if they wish, through video conferencing at their expenses as directed by this Court in the remand order in Malay Kumar Ganguly's case (supra) and for fixing the matter for a final hearing as soon as possible on a firm and fixed date as the claimant himself want to argue his petition as was done before this Court, as he being the permanent resident of U.S.A.
The learned senior counsel appearing for the claimant on 9.2.2010 prayed for withdrawal of the application stating that he would file another appropriate application. Thereafter, on 22.2.2010 the claimant filed M.A. No. 200 of 2010 seeking direction to the National Commission to permit him to produce affidavit of four foreign experts and their reports. The National Commission dismissed the same vide order dated 26.4.2010 against which special leave petition No. 15070/2010 was filed before this Court which was withdrawn later on. Again, the claimant filed M.A. No. 594 of 2010 before the National Commission for examination of four foreign experts to substantiate his claim through video conferencing at the expense of the Appellant-doctors and the Hospital. The National Commission vide order dated 6.9.2010 dismissed the application of the claimant for examining foreign experts. Against this order, the claimant preferred SLP (C) No. 3173 of 2011...
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