NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
FIRST APPEAL NO. 341 OF
2001
(From the
order dated 7.9.2001 in
Case No.134/96
of the State Commission, Gujarat)
Smt. Hemina
Hitesh Kotak & Ors. Appellants Vs.
Dr. Ashok
Nathwani & Ors. Respondents
BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA,
PRESIDENT
HONBLE MR. JUSTICE J.K. MEHRA,
MEMBER.
MRS. RAJYALAKSHMI RAO, MEMBER
MR.
B.K. TAIMNI, MEMBER.
Quantum case of
medical negligence death of
husband and father of a minor child
finding of negligence by the State Commission award of damages of Rs.50,000
considered to be too low – case of
misdirection by State Commission compensation enhanced to
Rs.5.00 lakhs.
O R
D E R
DATED THE 13th
December, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT)
This
appeal is by the complainants seeking enhancement of the amount of compensation
awarded to them on account of death of
Hitesh Kotak caused by the negligence
of the first respondent.. First
appellant-complainant is the widow of Hitesh Kotak, second appellant is the
minor child, third is the mother. They
would be legal heirs of the deceased Hitesh Kotak. Fourth appellant is the father of the deceased and the fifth is
the National Consumer Protection Samiti, an NGO. There are four respondents.
First respondent is the doctor against
whom negligence is alleged. Respondent
Nos. 2 and 3 were employees working
under him and the fourth
respondent is the National Insurance Company Ltd. who had given cover of the
insurance to the first respondent for Rs.5.00 lakhs.
None
of the respondents have challenged the findings of negligence against the first
respondent which caused the death of
Hitesh Kotak a young man of 31 years of age.
At the time of his death Hitesh was employed in a private firm
called Ashok Buildwell and Developers
Pvt. Ltd., Nasik and was drawing a
monthly salary of Rs.4061/-. Home
taking salary was Rs.3705/- after deduction of Rs.356/-. Hitesh Kotak was an engineer. After having held that the death of Hitesh was caused due to medical
negligence of the first respondent, State Commission examined the question of
quantum of compensation. This is how
State Commission considered this aspect:
Regarding
the amount of compensation claimed by the complainant, it is an established
principle of law that compensation awarded u/s 14(1)(d) of the Consumer Protection Act must have
rational relation to the nature and extent of injury, inconvenience or physical
and mental suffering caused to the complainant by the action or omission of the opposite party. In our considered opinion the complainants have failed to prove that the deceased had a permanent
employment. On the contrary it is an
admitted fact that he was in present
job since 2 months only. The complainants
have produced only his last salary slip but it does not clarify that he was on
permanent basis and they have not produced any other evidence in this
regard. It may also be noted here that
it is the case of the complainants that the deceased was suffering from some
serious cardiac ailment. In that view
of the matter the burden is upon the
complainants to establish the life expectancy of the deceased which they failed
to prove by expert medical evidence or
any other evidence. In our considered
opinion, in the aforesaid circumstances the decision of the Honble High Court
of Gujarat in case of Ritaben and Anr.
Vs. Ahmedabad Municipal Transport Service and Anr. 2000 ACJ 153 will
hardly have any application to the
present case. It is the complainants
case that deceased Hitesh suffered from heart ailment. It is therefore clear that in all
probability he would not have lived the normal life span of life or even
reasonable span of life. The
catastrophe of termination of his life had already set in much before he was treated by the opponent no.1 doctor. In that view of the matter, this will be a fit case to award some reasonable
lump sum compensation instead of working out compensation on the basis of
either multiplier method or any other method based on working of compensation for a person of normal
health. In above view of the
matter, we are only left with an option to award reasonable lump sum
compensation. In our considered
opinion Rs.50,000 (Rupees Fifty Thousand only) with interest @ 10% p.a. will be
reasonable to meet the ends of justice. We also proposed to impose cost of this
complaint which may be quantified Rs.2000/-.
We
are sorry to observe that State Commission has totally misdirected itself. Human life
is precious. It was lost on
account of negligence in the treatment.
The age of the deceased was only
31 years. He left behind a widow, a minor child and parents. He was earning Rs.4061/- per month and had every possibility of increase in his
salary with better prospect. Persons with heart ailment do survive for a longer period than what has been
opined by the State Commission. How
long Hitesh Kotak would have
survived we do not find any answer in
the reasoning of the State Commission.
With a family of five members to
look after Hitesh Kotak must be spending over 2/3rd of his salary for their maintenance
including himself keeping apart a
certain portion of his salary exclusive for himself. Looking into the provisions of
the Motor Vehicles Act and other relevant provisions and the general law
in considering how much
harassment and loss would have
caused to the complainants on account of negligence of the first respondent, we
are of the view an award of Rs.5.00
lakhs would meet the ends of
justice.
We would, therefore, enhance the
amount of compensation from
Rs.50,000/- to Rs.5.00 lakhs.
Rest of the order of the order
of the State Commission regarding interest, cost etc. is sustained. Accordingly, we will further direct as under:
(i) The amount of Rs.5.00 lakhs
should be deposited by the 4th
respondent-Insurance Company with the State Commission within four weeks of the
receipt of this order less any amount if already deposited.
(ii) Out of the amount of Rs.5.00 lakhs, Rs..1.50 lakhs each shall be paid to Smt. Hemina
Hitesh Kotak, widow of the deceased and Smt. Bhanumati Rameshchandra Kotak,
mother of the deceased. The balance of Rs.2.00 lakhs shall be deposited
in the fixed deposit receipt in a Nationalised
Bank for the welfare of the minor
child Shivam Hiteshbhai Kotak.
State Commission shall give appropriate direction as to how
the amount of FDR will be utilized as
and when any request is made by the mother of the child.
The
appeal is accordingly allowed.
Complainants shall be entitled
to cost which we assess at Rs.5,000/- Out of the cost so realized
one-half shall be paid to the National Consumers Protection Samiti and
one-half to Smt. Hemina Hitesh Kotak,
widow of the deceased.
J
(JUSTICE D.P.
WADHWA)
PRESIDENT
J
(J.K. MEHRA)
PRESIDENT
(RAJYALAKSHMI
RAO )
MEMBER
(B.K. TAIMNI)
MEMBER