NAND KISHORE PRASAD versus DR. MOHIB HAMIDI & OTHERS

Citation: [2019] 7 S.C.R. 1076 · Decided: 10-05-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Case Partly allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 7 S.C.R.
NAND KISHORE PRASAD
v.
DR. MOHIB HAMIDI & OTHERS
(Civil Appeal No. 4619 of 2019)
MAY 10, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Consumer Protection Act, 1986 – Medical Negligence –
Vicarious liability of the Hospital vis-a-vis the Operating Surgeon –
Appellant’s son-patient complained of abdominal pain, fever and
haemorrhage in both eyes – Referred by the physician to the
Hospital-original Opposite Party No.1 – He was taken to the said
Hospital where he was operated upon when the platelets count was
35000 per cubic millimeter (cu.mm) – Since the patient was bleeding,
the relatives of the patient took discharge from the Hospital and on
the same date admitted him to another Hospital where he died–
SCDRC held that the operating surgeon (respondent no.1) was
medically negligent in operating the patient when the platelets count
was so low and inter alia awarded Rs.4 lakhs as compensation to be
paid by the Hospital and Rs.2 lakhs by respondent no.1 – NCDRC
set aside the compensation awarded against respondent no.1 holding
that Rs.4 lakhs awarded against the hospital is just compensation –
On appeal, held: At the time of admission, the recorded history of
the patient was complaint of pain in abdomen, fever and
haemorrhage in both eyes for the past five days – However, there is
no evidence of critical condition of the patient to be operated upon
even with low platelet count – Surgery is not proved to be of
immediate necessity or the only life saving option to save life of a
patient who had critical platelet count – Action to operate upon the
patient cannot be said to be prudent decision – It is a case of
unreasonable decision of the Operating Surgeon to operate and
not a case of “bit negligent” so as to absolve the surgeon from the
allegation of medical negligence – Finding of NCDRC set aside to
that extent – When the SCDRC awarded Rs. 6 lakhs as compensation,
the NCDRC should not have interfered with the amount of
compensation but could apportion the amount payable by the
   [2019] 7 S.C.R. 1076
1076
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Operating Surgeon to the Hospital as the liability of Hospital to
pay the amount of compensation was vicarious as the death
occurred during the course of employment of Operating Surgeon
with the said Hospital – Entire amount of Rs.6 lakhs is payable by
the Hospital which would be just compensation in the facts and
circumstances of the present case – Enhanced compensation of Rs.2
lakhs be paid by the Hospital along with interest at the rate of 6%
per annum from the date of the order passed by SCDRC.
Partly allowing the appeal, the Court
HELD : 1.1 At the time of admission, the recorded history
of the patient was complaint of pain in abdomen, fever and
haemorrhage in both eyes for the past five days. However, there
was no evidence of critical condition of the patient to be operated
upon even with low platelet count. The surgery to remove round
worms was not proved to be of immediate necessity to save life
of a patient who had critical platelet count. In the absence of any
evidence that the surgery was the only life saving option available
at that time, the action to operate upon the patient cannot be said
to be prudent decision. In the absence of any evidence that the
surgery was the only option even with low blood platelets, the
finding of negligence of the operating surgeon cannot be ignored.
Thus, it is a case of unreasonable decision of the Operating
Surgeon to operate and not a case of “bit negligent” so as to
absolve the surgeon from the allegation of medical negligence.
Consequently, the finding of NCDRC to that extent is set aside.
In respect of amount of compensation, the NCDRC held that sum
of Rs.4,00,000/- awarded by the SCDRC against the Hospital is
just compensation. [Paras 12-15] [1081-G-H; 1082-A; E-G]
 1.2 The compensation has to be calculated on the basis of
twin criteria of age and income. But in the absence of income of
the father or family, there is no legally acceptable norm available
on record for the enhancement of compensation.  The SCDRC
awarded a sum Rs.4,00,000/- as compensation payable by the
Hospital and Rs.2,00,000/- by the Operating Surgeon. The
NCDRC found a sum of Rs. 4,00,000/- as just compensation and
absolved the Operating Surgeon from any liability. When the
SCDRC has awarded a sum of Rs. 6,00,000/- as compensation,
NAND KISHORE PRASAD v. DR. MOHIB HAMIDI & OTHERS
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SUPREME COU

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