1. By this complaint case, the complainant Subhas Chandra Sarkar, who is the father of Late Saptarshi Sarkar who committed suicide on 12/08/2010 in the Nursing Home namely Dover Medical Centre, claiming the following reliefs : -
“a) Direct the opposite parties to pay Rs.90,00,000/- (Rupees Ninety Lakhs) only as damages for the loss of the complainant’s son due to their gross medical negligence.
b) Direct the opposite parties to pay Rs.2,00,000/- (Rupees Two Lakhs) only as cost of litigation.
c ) Issue such other order or orders and/or direction or directions as this Learned State Commission may deem fit and proper.”
2. The brief facts of the case are that the complainant’s son Saptarshi Sarkar, since deceased was a mechanical engineer who had completed his B.E. from Jadavpur University with first class. After completion of B.E. he had joined in the National Thermal Power Corporation, a Govt. of India undertaking and was appointed as an Executive Trainee on 08/08/2005. After successful completion of the training, he was posted as an Engineer at the Engineering Office Complex, Sector, 25, Noida – 201 301, Uttar Pradesh. While the complainant’s son was working there, he developed a severe mental depression. He returned to Kolkata on 20/07/2008 to be with his family and for treatment. He was placed under the treatment of Dr. (Mrs.) Kanika Mitra, MD, DPM. Saptarshi Sarkar showed improvement. He was declared fit to resume his duties on 03/01/2009. Accordingly, Saptarshi Sarkar resumed his duties on 05/01/2009 at Noida. Receiving the news of his father’s sickness, Saptarshi Sarkar returned to Kolkata on 05/05/2009. While the complainant was convalescing, Saptarshi again developed severe mental depression, despite being under medication that had been prescribed by Dr. (Mrs.) Konika Mitra, then Saptarshi Sarkar was put under treatment of Dr. Jyotirindra Nag, Opposite Party No. 2, Neuro Psychiatrist on and from 03/06/2009. Meanwhile, Spatarshi Sarkar was transferred to Bhubaneswar Office where he joined on 10/05/2010 after being declared fit to resume his duty. The complainant accompanied him there. But his condition gradually turned from bad to worse and he was unmanageable at home. The complainant felt that his son’s life would be at stake, if he continued to stay at home. So, the complainant immediately consulted the Opposite Party No. 2 Doctor at his chamber on 02/08/2010 and requested him to do whatever he felt necessary, urgently to save his son’s life and cure him of his ailment. The Opposite Party No. 2 Doctor advised the complainant in writing to admit his son Saptarshi Sarkar in Dover Medical Centre ( a psychiatric nursing home). The complainant enquired from Opposite Party No. 2 Doctor whether the said nursing home was competent enough to deal with such a patient like Saptarshi Sarkar who developed suicidal tendency. The Opposite Party No. 2 assured that the nursing home he referred to was quite safe and secure.
3. Further case of the complainant is that most of the time the Opposite Party No. 2 Doctor’s mobile phone no. 9830462413 remained switched off. Pursuant to the request of the complainant, the Opposite Party No. 2 Doctor gave his wife’s mobile no. being 9831110593 for emergency contact. On 03/08/2010 in the evening, the complainant contacted Opposite Party No. 2 Doctor’s wife to convey the Opposite Party No. 2 that the complainant had been to Dover Medical Centre for observing formalities and Saptarshi Sarkar would be admitted there on the next day i.e. on 04/08/2010. Accordingly, Saptarshi Sarkar was admitted on 04/08/2010 and the message was sent to Dr. Nag about the admission. At the time of admission, the Complainant told repeatedly to one Mr. Surojit Bera, who was in charge of admission and also the sister concerned that Saptarshi Sarkar developed a tendency to commit suicide and he requested them to keep a strict vigil and special care so that he does not find any opportunity to take fatal steps. Mr. Surojit Bera informed that a special aya would be engaged for Saptarshi Sarkar at a cost of extra amount of Rs.170/- per day. After the admission, the complainant and his family members were not allowed to see Saptarshi Sarkar. However, the Complainant used to visit Dover Medical Centre to enquire about the condition of his son through the staff concerned and also in the evening at about 9.00 p.m. the complainant used to ring up the nursing home staff to know his son’s condition.
4. Further case of the complainant is that on 08/08/2010, the Complainant and his wife were allowed to meet their son Saptarshi. At 5.00 p.m. they met him for half an hour in a room on the ground floor of the said nursing home. Saptarshi was very happy to see his parents. Besides some casual talks, Saptarshi informed them that injections and medicines were administered to him.
5. Further case of the complainant is that on 09/08/2010, the Complainant met Opposite Party No. 2 in the Dover Medical Centre and Opposite Party No. 2 informed that Saptarshi was well and Opposite Party No. 2 asked the Complainant not to see Saptarshi till the Opposite Party No. 2 advised them so. For the next three days, the Complainant, however, kept on enquiring how Saptarshi’s condition was and he was told by the said Mr. Surojit Bera that Saptarshi was well.
6. Further case of the complainant is that on 12/08/2010, the wife of the complainant received a call in the landline telephone from the Dover Medical Centre / Opposite Party No. 1. One sister informed her that they had a sad news that Saptarshi had committed suicide by hanging himself in the bathroom. At that time, the complainant was out of home. The wife of the Complainant informed him about the news over her mobile phone. Hearing this news, the Complainant came back home and then rushed to the Dover Medical Centre, Opposite Party No. 1 where two police personnel were found present. When the Complainant enquired how Saptarshi could get a rope to hang himself, none could give a satisfactory reply. Then the Complainant offered to clear all nursing home dues for Saptarshi’s treatment till his death. But Mr. Surojit Bera informed the Complainant that the authorities would not take any money. Then and there the Complainant tried to contact the Opposite Party No. 2 Doctor and his wife but found both the mobile phones switched off. On the same day i.e. on 12/08/2010 post mortem examination was held and thereafter the Complainant’s son’s dead body was cremated. On 13/08/2010, the Complainant and his wife again visited the Dover Medical Centre / Opposite Party No. 1 to know how the incident came out. Mr. Surojit Bera informed them that an unmanageable patient who was admitted in Saptarshi ’s room about 7/8 days ago needed to be tied up occasionally. The rope was lying in the room of Saptarshi and he used the same to hang himself. He also informed that Saptarshi committed suicide at 6.00 a.m. on 12/08/2010.
7. Further case of the Complainant is that an investigative news appeared in the ‘Anandabazar Patrika’ on 03/09/2010 on the death of the Complainant’s son.
8. Further case of the complainant is that the Dover Medical Centre Authority was bound to ensure safety of such patient at any cost. At the time of admission, it was repeatedly urged by the Complainant to ensure safety of Saptarshi Sarkar’s life as he had developed a suicidal tendency. Keeping a rope lying within the easy access of a patient with suicidal tendency is a reckless act and gross negligence on the part of the nursing home. Had the rope been removed in time Saptarshi would not have found it. On 11/08/2010 at about 9.00 p.m. when the complainant had rung up the nursing home to enquire about his son’s condition he was informed that after taking his dinner Saptarshi had dozed off in his bed.
9. Further case of the complainant is that the post mortem examination report suggests that Saptarshi committed suicide much prior to the given time as partly digested food was found in his stomach. If that be so, he remained unattended for a prolonged period of time as opposed to a momentary lapse, which is gross negligence on the part of the nursing home. Had the opposite party No. 1 Dr. Dhrubojyoti Shee and opposite party No. 2 Dr. Nag and the staff of the Nursing Home exercised due care, precious life of the complainant’s son could have been saved. These two doctors forgot their noble duty that the health and life of the complainant’s son were entrusted to their care depending on their skill and attention. They utterly failed to render to Saptarshi a full measure of service and attention.
10. Further case of the complainant is that the complainant requested the Dover Medical Centre authorities to provide him with a copy of the prescription and the medical records. They refused to receive the complainant’s first letter but when he sent them a second letter, the opposite party No. 1 Doctor informed that those records were lying with the police.
11. Further case of the complainant is that opposite party No. 1 Doctor himself did not exercise adequate care and ensure that Saptarshi did not have any access to such equipments and materials to hang himself. The opposite party No. 1 undoubtedly neglected his duty and regular visit to the room and failed to keep watch and supervise whether his assistants were performing their duties properly. Had the rope been removed after using it on a patient, Saptarshi’s life could have been saved.
12. Further case of the complainant is that opposite party No. 1 Doctor made a false G.D. entry with the Gariahat police station that Saptarshi Sarkar had hanged himself at about 6.00 a.m. while the post mortem examination report discloses that his death occurred much prior to this time.
13. Further case of the complainant is that on 08/08/2010, opposite party No. 2 Doctor did not permit the complainant to see his son who was recuperating and who eagerly longed to see his parents. This might have caused deep frustration in the patient’s mind and drove him to take the fatal steps. Saptarshi Sarkar’s life was entrusted to opposite party No. 2 Doctor. Having undertaken the care and treatment of Saptarshi Sarkar, opposite party No. 2 Doctor should have been extremely alert and careful about the safety also. Both the opposite parties No. 1 & 2 are responsible for the death of the complainant’s son namely Saptarshi Sarkar. Both the opposite parties are squarely guilty of gross negligence that led to the death of the complainant’s son. The complainant’s son’s monthly salary at the time of death was Rs.41,000/-. He had 27 years of service left and promotions to get. His lifetime earnings by way of salary would have run into some crores of rupees. But the loss caused to the complainant is irreparable and the rude shock and mental trauma the complainant’s wife and daughter had been put to suffer and have been suffering due to the gross negligence of the opposite parties cannot be measured in terms of money. The complainant, hence, compelled to file the present case.
14. Being aggrieved by the death due to alleged negligence of the opposite parties, the complainant filed this consumer complaint before this Commission.
15. Doctor Dhrubajyoti Shee referred to as opposite party No. 1 entered appearance in this case and was contesting the case by filing written version wherein he has denied the material allegations against him. The specific case of the opposite party No. 1 is that the patient Saptarshi Sarkar had committed suicide i.e. he has expired due to his own action and as such suicide is a criminal act. The opposite party No. 1 is in no way responsible for such personal act of Saptarshi Sarkar who had killed himself, committed suicide. He informed the local police authorities about the said suicide committed by Saptarshi Sarkar. The officers of Gariahat police station visited the Dover Medical Centre, took possession of the dead body of Saptarshi Sarkar and subsequently, confiscated the relevant records etc. to initiate an investigation. The confiscated documents, materials are still in the possession of the police authorities of Gariahat Police Station. This opposite party No. 1 has not received final police report in the matter as yet, and the final police report be called for and the confiscated documents, materials, if any, be produced before the Hon’ble Commission.
16. Further case of the opposite party No. 1 is that the complainant lodged complaint before the Medical Council, West Bengal and the Department of Health, Govt. of West Bengal, Swasthya Bhavan. The final outcome of such complaint is not known to the opposite party No. 1. The patient Saptarshi Sarkar had committed suicide, so, no liability whatsoever can be shifted on the shoulder of the opposite party No. 1.
17. Further case of the opposite party No. 1 is that there is no specific instruction for any special care and caution by some specific means and others came from any quarters at the time of Saptarshi’s admission. The patient was to be treated as per specific instruction of Dr. Nag and it is subsequently stated that the patient was treated as per the advice of Dr. Nag, the patient was provided with proper medicine and food. He was treated with care and caution. There was no such instructions to keep him bound or under any sedation and under 24 hours vigilance. The unfortunate incident of suicide committed by the patient cannot be given to the colour of deficiency in service or negligence on the part of the Dover Medical Centre.
18. Further case of the opposite party No. 1 is that Saptarshi Sarkar was under proper care. On 08/08/2010, the complainant himself saw the degree of care and caution effected in the matter by the opposite party No. 1 and being satisfied raised no complaint regarding the same on the even date or soon thereafter.
19. Further case of the opposite party No. 1 is that the patient Saptarshi Sarkar was in the ward and there was a ward boy and an aya on the duty for the night on 11/12.08.2010. The declaration of the nurse sister, Ms. Mun Singh clearly established that there was adequate care and cautions in the matter and no interference of negligence and / or deficiency in service can be drawn for the unfortunate incident of suicide. Saptarshi Sarkar was a qualified and an intelligent person. He had somehow managed to procure a tape which was used to tie up the patient with convulsion at the time of administering injection so as to avoid injury to self or others and rendering proper medication.
20. Further case of the opposite party No. 1 is that a suicide cannot be prevented even by the highest degree of care and caution. Suicide is a criminal act. No third person can be blamed for the suicide committed by a person. There was absolutely no lack of care and caution.
21. Further case of the opposite party No. 1 is that Saptarshi Sarkar was lodged with other patients for companionship and better security. No rope was lying within the easy access of Saptarshi Sarkar.
22. Further case of the opposite party No. 1 is that there was no negligence whatsoever on the part of the opposite party No. 1 who had exercised adequate care and caution in the matter and a criminal act of suicide do not cast any liability on their part and / or the opposite party No. 1. So, the complaint is liable to be dismissed in limini.
23. During the pendency of this consumer case, the opposite party No. 1 Dr. Dhrubojyoti Shee passed away and his legal heir were duly substituted in this case and his legal heirs were made as opposite parties Nos. 1(a) to 1 (e).
24. Doctor Jyotirindra Nag hereinafter as referred to opposite party No. 2 is the treating doctor of deceased Saptarshi Sarkar who filed written version that the complaint is not maintainable in law and is liable to be dismissed. The specific case of the opposite party No. 2 Doctor is that from the available prescription dated 02/08/2010 it is evident that Saptarshi Sarkar was brought to the chamber of the opposite party No. 2 by his father who gave a short history for his son’s illness which was chronic in nature and clinically described as Schizophrenia which is a major mental disease from which the patient was suffering from November, 2007. Self inflicted injuries were conducted on the person of the patient and he used to consume alcohol and used to refuse to consume any medicine. This opposite party No. 2 had no knowledge or he was not informed about the medicines which Saptarshi used to take and under whose prescription and what dosage he used to take. The patient had a major symptom of psychiatric illness.
25. Further case of the opposite party No. 2 is that the patient becomes incapable of leading a normal life or carrying on his work, duties, job and even cannot cope with his social and his family life and to get relief thinks to commit suicide. The opposite party No. 2 after examination the patient, advised certain investigations and 24 hours close watch at home and prescribed certain drugs. On being repeatedly asked by the father of the patient to admit him in any hospital, the patient was admitted in that nursing home. Since the father of the patient expressed his inability to keep the patient at home, he wanted to shift his son to any nursing home, and hence this opposite party agreed to get his son admitted in the Dover Medical Centre where the opposite party visits at times, if any patient is admitted and calls him. It is a blatant lie of the complainant that this opposite party assured him that the nursing home is quite safe and secure. This opposite party is not the owner of the nursing home. Hence, the question of giving assurance of safety and security of a nursing home is false and is a blatant lie. The telephone number as referred 9830462413 is never the telephone number of this opposite party and the admission by the complainant that the opposite party had given a telephone number of his wife for emergency contact goes to establish the concern and the care of the patient by the opposite party, not his negligence, carelessness or any deficiency in service.
26. Further case of the opposite party No. 2 is that as a phychiatric Doctor, the opposite party has obviously advised for a close watch on a patient for 24 hours, but it is not expected that when a patient enters the bathroom to ease himself, he will be accompanied by a nurse or attendant inside the bathroom. He has examined the patient from time to time, assessed his clinical manifestation and symptoms and instructed the nursing home staff to do the necessaries for the treatment, but it cannot be expected nor it is possible or viable for any psychiatrist to stay by the side of a patient for 24 hours and to keep a close vigil on the patient and that to accompany the patient even inside the bathroom when he would be easing himself or to take his bath. This opposite party is in total dark regarding any rope by which Saptarshi Sarkar allegedly committed suicide as because this opposite party never advised the nursing home authorities to chain Saptarshi with rope. It is a blatant lie that after the death of Saptarshi, the telephone of opposite party No. 2 was switched off. Hence, the opposite party No. 2 has prayed for to drop the proceedings.
27. On behalf of the complainant, the complainant himself has filed evidence through affidavit. He has also given reply against the questionnaire set forth by the opposite parties. Both the opposite parties No. 1 & 2 have also tendered evidence through affidavit.
28. The complainant and the opposite party No. 2 have also filed brief notes of arguments in support of their respective cases.
29. Upon hearing both sides and on perusal of the pleadings of both sides the following issues were framed for proper adjudication of the case.
ISSUES
i) Is the consumer case maintainable ?
ii) Are the opposite parties guilty of deficiency in service as alleged by the complainant ?
iii) Is the complainant entitled to get any relief and / or reliefs as prayed for ?
DECISIONS WITH REASONS
Issue No. 1
This issue is taken up first for consideration.
This issue has not been pressed by the Learned Lawyers appearing for the parties at the time of hearing arguments.
So, this issue is decided in favour of the complainant and against the opposite parties.
Issue No. 2 & 3
These two issues are taken up together for consideration for the sake of gravity and their inter-relatedness.
None appeared on behalf of the opposite party No. 1 to argue this case. Learned Advocate appearing for the opposite party No. 2 has urged that the complainant has totally failed to prove the case. She has further argued that there was no negligence on the part of the opposite party No. 2. The complainant is not entitled to get any compensation. So, the complaint case should be dismissed with compensatory cost.
30. On the other hand, the complainant in person has urged that the complaint case is maintainable and the complainant has been able to prove the complaint case. So, the complaint case should be allowed.
31. Having heard the Learned Advocate appearing for opposite party No. 2 and the complainant in person and on perusal of the materials on record, we find that it is an admitted position that the complainant’s son Saptarshi Sarkar, aged 33 years, a B.E. (Mechanical) was working as an Engineer with the National Thermal Power Corporation in Uttar Pradesh, later in Bhubaneswar, Odisha and was under medical treatment of Dr. (Mrs.)Kanika Mitra, and the son of the complainant showed improvement and accordingly, Saptarshi Sarkar resumed his duty on 05/01/2009. It is also an admitted position that on 02/08/2010, Saptarshi Sarkar was brought to the chamber of opposite party No. 2 by his father and Saptarshi was examined by Opposite Party No. 2 Doctor. It is also an admitted position that opposite party No. 2 after examination of Saptarshi Sarkar, advised Saptarshi for admission in the Dover Medical Centre ( a psychiatric nursing home). It is also an admitted position that Saptarshi Sarkar developed suicidal tendency. It is also an admitted position that Saptarshi Sarkar was admitted on 04/08/2010 at the Dover Medical Centre and the message was sent to the opposite party No. 2 about the admission. It is also an admitted position that Saptarshi Sarkar developed tendency to commit suicide and as such the complainant told to Mr. Surojit Bera who was in charge of admission about such tendency to commit suicide by Saptarshi Sarkar. It is also an admitted position that on 08/08/2010, the complainant and his wife were allowed to meet with their son Saptarshi Sarkar and at 5.00 p.m. they met Saptarshi Sarkar for half an hour in a room on the ground floor of the Dover Medical Centre. It is also an admitted position that on 09/08/2010 the complainant met Dr. Nag i.e. opposite party No. 2 in the Dover Medical Centre and the opposite party No. 2 informed that Saptarshi Sarkar was well. It is also an admitted position that on 12/08/2010 at 6.00 a.m. Saptarshi Sarkar had committed suicide by hanging himself in the bathroom with the rope which was lying in the room of Saptarshi Sarkar.
32. The overwhelming evidence on record makes it abundantly clear that Saptarshi Sarkar, an unmanageable patient was admitted in the Dover Medical Centre and in Saptarshi’s room another patient was admitted about 7/8 days ago needed to be tied up occasionally. The said rope was lying in the room of Saptarshi Sarkar and he used the same to hang himself. At the time of admission it was repeatedly told by the complainant to ensure safety of Saptarshi’s life as he had developed a suicidal tendency. Though Saptarshi Sarkar, an unmanageable patient was admitted in the said nursing home / hospital and in the room of Saptarshi the said rope had not been removed in time. If the said rope had been removed then Saptarshi would not have found it and the said untoward incident would not have happened. The opposite party No. 1 & 2 have not denied on oath that the rope was not lying in the room of Saptarshi and that Saptarshi did not use the same to hang himself. Rather they admitted that an unmanageable patient who was admitted in Saptarshi’s room about 7/8 days ago needed to be tied up occasionally and the rope was lying in the room of Saptarshi and that Saptarshi used the same to hang himself. We fail to understand as to how the opposite party No. 1 and opposite party No. 2 allowed to keep the rope in the room of said Saptarshi where he was admitted, knowing fully well that Saptarshi Sarkar was developed suicidal tendency.
33. From the above, it may clearly be concluded that the opposite party No. 1 nursing home and the opposite party No. 2 Doctor committed utter negligence and caused Saptarshi’s death while he was in their custody for care and treatment. The opposite party No. 1 himself did not exercise adequate care and ensure that Saptarshi did not have any access to such equipments and materials to hang himself. It may also be concluded that the opposite party No. 1 and the opposite party No. 2 neglected their duties and regular visits to the room and failed to keep a watch and supervise whether his assistants were performing their duties properly. Had the rope been removed after using it on a patient, Saptarshi’s life could have been saved. Evidently, Saptarshi’s life was entrusted to Dr. Jyotirindra Nag under whose treatment and advice Saptarshi was admitted to the Dover Medical Centre. Having undertaken the care and treatment of Saptarshi, but the opposite party No. 2 did not care the patient properly.
34. Considering the evidence on both sides, relevant documents, it is evident that Saptarshi Sarkar was admitted to the Dover Medical Centre i.e. opposite party No. 1 Nursing Home / Hospital under the treatment of opposite party No. 2 Dr. Nag. In the opposite party No. 1 Nursing Home / Hospital an unmanageable patient who was admitted in Saptarshi’s room about 7/8 days ago needed to be tied up occasionally. The rope was lying in the room of Saptarshi and Saptarshi used the same to hang himself. It is also in evidence that the Nursing Home / Hospital authorities did not remove the said rope from the room of Saptarshi and the opposite party No. 2 Doctor also did not direct the Dover Medical Centre authorities to remove the same from the room of Saptarshi though Saptarshi was a psychiatric patient and he had a tendency to commit suicide. It was the duty of Dr. Nag to make attention about the room where Saptarshi was admitted.
35. Under the facts and circumstances, it may clearly be concluded that the opposite party No. 1 Nursing Home and Dr. Nag were not alert and careful about the safety and security of the patient namely Saptarshi Sarkar though Saptarshi’s life was entrusted to Dr. J. Nag under whose instruction Saptarshi was admitted to the Dover Medical Centre.
36. It is in evidence that the complainant approached the opposite party No. 1 Medical Centre and requested them to provide him with a copy of the prescription and medical records, but they refused to receive the complainant’s first letter but when second letter was sent, Dr. Dhrubojyoti Shee informed that those records were lying with the police. This conduct of the opposite party No. 1 Medical Centre shows that the opposite party No. 1 made an attempt to buy time and denied the complainant of having the copies of the relevant documents relating to the treatment of the complainant’s son namely Saptarshi Sarkar in the Dover Medical Centre. Thus it was a deficiency in service.
37. It is also in evidence on record that after the death of his son, the complainant tried to contact the opposite party No. 2 Doctor and his wife but their mobile phones were kept switched off. This fact proves that it was a deficiency in service.
38. Learned Advocate appearing for the opposite party No. 2 has urged that the opposite party No. 2 is not liable for the death of the patient. He has further urged that the opposite party No. 2 had provided telephone number of himself and his wife for emergency contact, this shows that the opposite party No. 2 took due care for the patient and there was no negligence or deficiency in service. We fail to accept such submission as we have already decided in our foregoing paras that both the opposite parties No. 1 & 2 are liable for the death of the patient as they did not ensure adequate safety measures at the opposite party No. 1 Medical Centre, despite being aware of the suicidal tendency of the patient.
39. We would like to rely upon the case reported in (1996) 2 SCC 634 (Achyut Rao Haribhau Khodwa Vs. State of Maharashtra), their Lordships observed that in cases where the Doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in tort would be maintainable. Their Lordships further observed that if the doctor had taken proper precautions and despite that if the patient does not survive then the court should be very slow in attributing negligence on the part of the doctor. It was held “A medical practitioner has various duties towards his patient and he must act with a reasonable degree of his skill and knowledge and must exercise as reasonable degree of care”. In the instant case, we find that the opposite parties are liable for the acts of omission.
40. The patient’s duty of care starts from the time of admission. The responsibility of care is on treating doctor and hospital till the patient’s discharge from the hospital. Therefore, it appears to us that both the opposite parties No. 1 & 2 are responsible for the death of Saptarshi Sarkar.
41. We are of the considered view that, the complainant discharged the initial burden of proving medical negligence; but there was no rebuttal by the doctors adducing proper evidence. We rely upon the decision of the Hon’ble Supreme Court in the case of Nizam Institute of Medical Sciences Vs. Prasanth S Dhanaka 2009 INDLAW SC 1047 in which it was held as follows :-
“In a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital, or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care and diligence”.
42. On the basis of the discussion above, we hold that there is merit in the instant case, so, the complaint case should be allowed.
43. In the instant case, the complainant claimed Rs.90,00,000/- (Rupees ninety lakh) only as damages for the loss of complainant’s son due to the gross medical negligence of the opposite parties and Rs.2,00,000/- (Rupees two lakh) only as cost of litigation on the basis that the deceased was 33 years old and being a mechanical engineer of National Thermal Power Corporation, he was having further 27 years of service and he used to get salary @Rs.41,000/- per month. The promotional prospects were very high. Thus we are of the considered view that the complainant is entitled to get Rs.50,00,000/- (Rupees fifty lakh) only in the interest of justice which is just and proper compensation.
44. On the basis of foregoing discussion the opposite parties No. 1(a) to 1(e) and opposite party No. 2 are directed to pay a total sum of Rs.50 lakh ( Rs. 25 lakh by the substituted opposite party Nos. 1(a) to 1(e) and Rs.25 lakh by the opposite party No. 2).
45. The opposite parties shall pay the awarded amount within four weeks from the date of passing of this order. The delay beyond four weeks shall attract interest @ 9% per annum till its realization.