Sudip Ahluwalia, Member

This Revision Petition has been filed against the Impugned Judgment and Order dated 15.07.2019 passed by the Ld. State Consumer Disputes Redressal Commission, Delhi in First Appeal No. 525 of 2012, whereby the compensation awarded by the Consumer Dispute Redressal Forum-VII, Delhi was enhanced from Rs. 1,00,000/- to Rs. 10,00,000/-.

2. The brief facts of the present case are that the Respondent/Complainant filed a Consumer Complaint alleging medical negligence on part of the Petitioner Hospital in the treatment of his daughter, who was suffering from End Stage Renal Disease and was undergoing dialysis. It is the case of the Respondents that on 23.12.2006, while undergoing dialysis, the Patient and the Complainant noticed that the dilator used for that procedure was not washed with water properly and even when the same was informed to the technician, he continued the dialysis. Afterwards, the patient started feeling breathlessness and eventually fainted and went into Coma. The patient then stayed in the ICU for 47 days till her death on 08.02.2007.

3. The District Forum, while observing that there was no negligence on the part of the treating doctors, nevertheless awarded a sum of Rs. 1,10,000/- as compensation, purportedly on account of deficiency attributable to the hospital staff. Aggrieved by the quantum, the Respondent preferred First Appeal before the State Commission, which enhanced the compensation to Rs. 10,00,000/-.

4. Being aggrieved by such Order steeply enhancing the compensation awarded, the Petitioners have filed the present Revision Petition. The grounds raised in the Revision Petition primarily challenge the legality and correctness of the Ld. State Commission's order, especially on the issue of enhancement of compensation. A central plank of the Petitioner's argument is that the finding of negligence is unsustainable in law because it is contrary to the expert medical opinion of the Safdarjung Hospital Medical Board dated 04.12.2010, which clearly opined that the patient was properly managed and immediate resuscitative measures were taken. The Petitioner contends that this opinion, having been sought at the instance of the Complainant and having remained unchallenged, ought to have been treated as conclusive or at least highly persuasive.

5. Another significant ground relates to jurisdictional and procedural errors, particularly the argument that the Ld. State Commission's Order is invalid for want of proper quorum, having been passed by a single member in violation of statutory requirements under the Consumer Protection Act, 1986. The Petitioner also assails the reasoning of the Ld. State Commission in treating negligence as having 'attained finality', arguing that the Ld. District Forum itself did not return a clear finding of medical negligence but only awarded compensation on a vague notion of minor deficiency. The State Commission erroneously treated this as a concluded finding of negligence and enhanced compensation to Rs. 10,00,000/-. Consequently, the enhancement of compensation from Rs. 1,10,000/- to Rs. 10,00,000/- is claimed to be arbitrary, lacking any rational basis and contrary to settled principles governing compensation, which require a nexus between proven negligence and the quantum awarded.

6. Further, the Petitioner emphasizes that the burden of proving medical negligence lies on the Complainant, which, according to them, has not been discharged through any cogent evidence or expert testimony. It is also argued that the Complainant, having accepted and encashed the amount awarded by the District Forum without protest, is estopped from seeking any enhancement. Additionally, the Petitioner has also highlighted the critical medical condition of the patient who was suffering from end-stage renal disease, to argue that the death was attributable to her underlying illness rather than any alleged deficiency in treatment. It has also been submitted that enhancement of compensation is arbitrary and contrary to settled principles, as compensation in medical negligence cases must be based on proven fault, and must bear a rational nexus to actual loss or established deficiency, neither of which has been demonstrated in the present case.

7. We have heard Ld. Counsel for both sides and perused the material available on record.

8. Admittedly, the order of the Ld. District Forum awarding compensation to the tune of Rs. 1.00 lakh was not challenged on behalf of the Petitioners. It is, however, the submission raised on behalf of the Petitioners that they cannot be disproportionately penalised for not having challenged the aforesaid Order, in compliance of which they had made the requisite payment to the Respondent/Complainant with a view to put a quietus to the Complainant's grievance.

9. Ld. Counsel has further emphasized that the Ld. District Forum in the aforesaid Order did not observe anywhere that there was any negligence or culpable omission on the part of any of the Doctors who were associated with the Deceased's treatment. On the contrary, the Ld. District Forum had specifically observed, inter alia -

                   "As far as trouble in kidney is concerned, it is very serious decease (sic) and it can only be cured upto some extent only due to transplant but there is no any evidence on the record that complainant has arrange any kidney of his relation for transplant of the kidney of the patient. Though, as per records, the doctors of the OP hospital has given advised to the complainant for transplant of the kidney. The seriousness of the kidney of deceased as well as the advised of transplant of the same is also proved by the fact that complainant was getting treatment regular from the OP hospital from 14.6.05 to till death to her kidney problem and the kidney problem treatment was given to her continuously. Therefore, the patient died due to her kidney problem which was not cured even after best efforts of the concerned doctors of the OP hospital but however some negligence have been committed by the Technician or staff of the OP hospital, when the patient was on dialysis in inserting fistula in the arm of the patient which may be of re- used. Therefore, in these circumstances, it appears that the patient was not died due to re-used of fistula needle because it was in the beginning and thereafter she was alive at least 47 days, when she was in ICU. Which shows that the doctors has made their best efforts to cure the patient as they have transferred her to ICU and take care as required. Therefore, in these circumstances, when there is no proof that the kidney failure or other complications accrued during the ICU on the dialysis due to negligence of the concerned doctors, it cannot be said that the death of the patient was caused due to negligence of the doctors. Though, some minor negligence have been committed by the technician as well as staff of the OP hospital in treatment on the dialysis because Sh. Ahmed has not denied the allegations on affidavit as made by the complainant. Moreover, when the patient is in acute condition just before the death, many complications occurred which is beyond the control."

10. In fine, the compensation awarded to the Respondent/Complainant was on the ground that there might have been some negligence on the part of the Technician or staff of the Hospital in inserting a Fistula in the arm of the Patient which might have been a reused one.

11. In this regard, it would appropriate to refer to the Report submitted by the Medical Board of the Safdarjang Hospital and VMMC, New Delhi, whose opinion had been sought at the instance of the Respondent/Complainant himself. The relevant extracts of such Report are set out as below -

                   "It appears that within five minutes of starting dialysis the patient had acute circulatory failure. The possibilities are as under:-

                   1. Hyperkalaemia causing sudden cardiac arrest. However sr K+6 was not alarmingly high to have caused it.

                   2. Acute LVF with severe pulmonary oedema and cardiac arrest.

                   3. Acute anaphylactic reaction- first use Kidney/reuse of fistula needle or other items directly from cidex without having washed it properly as alleged by the attendants of the patient.

                   4. Pulmonary embolism.

                   After having evaluated the BHT and progress report it appears that immediate steps to resuscitate Anju were taken at Inderprastha Apollo Hospital, New Delhi."

12. It is, therefore, seen that the "Acute Anaphylactic" reaction could have been one among the four possible factors causing acute circulatory failure of the deceased patient. There was nothing in the aforesaid report that this could have been the only reason for the collapse and subsequent death of the patient after 47 days, since she was in advanced stages of a renal disease, as admittedly, she had been taking dialysis at the Appellant Hospital itself for 1 ½ years prior to the relevant date of 23.12.2006, and that her first dialysis had been conducted in the Hospital on 22.6.2005. With such serious health issues and occurrence of her death 47 days later after she had remained in the ICU, the possibility of any one or more of the remaining three factors identified by the Medical Board cannot be altogether discarded.

13. To that extent, the approach of the Ld. State Commission in enhancing the amount of compensation 10 times from that awarded by the Ld. District Forum would ex facie appear to be punitive as well as excessive in nature. At the same time, the compensation awarded by the Ld. District Forum to the tune of Rs. 1.00 lakh only on account of the physical and mental harassment of the Complainant would also appear to be meagre.

14. After a careful consideration of all surrounding facts and circumstances, we allow this Revision Petition by modifying the impugned Orders passed by both the Ld. Fora below to the extent that the Respondent/Complainant is found entitled to a lumpsum compensation on account of physical, mental harassment and trauma to the tune of Rs. 5.00 lakhs alongwith simple interest @ 6% p.a. from the date of the Order passed by the District Forum. Further, additional litigation costs to the tune of Rs. 40,000/- are also awarded in favour of the Respondent.

15. The impugned Order of the Ld. State Commission accordingly stands modified.

16. The Petitioners are directed to make the payment(s) as directed above, within two months from the date of this Order. Any delay in making such payment within the time specified shall result in enhanced interest @ 9% p.a., till the date of final realisation.

17. Pending application(s), if any, also stand disposed off as having been rendered infructuous.