Union Of India vs Susheela Mathai & Anr.
2010 Latest Caselaw 2634 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                           W.P. (C) 9676/2007

        UNION OF INDIA                           ..... Petitioner
                      Through: Mr. J.P. Sharma, Advocate

                           versus

        SUSHEELA MATHAI & ANR               ..... Respondents
                    Through: Mr. K.K. Aggarwal, Advocate
                    for R-1

         CORAM: JUSTICE S. MURALIDHAR


        1. Whether Reporters of local papers may be
            allowed to see the judgment?                          Yes
        2. To be referred to the Reporter or not?                 Yes
        3. Whether the judgment should be reported in Digest? Yes

                            JUDGMENT

18.05.2010

S. Muralidhar, J. (open court)

1. This is an instance of a pointless and vexatious litigation by the

Union of India („UOI‟) through its Director, Central Government

Health Scheme („CGHS‟) seeking to challenge an order dated 30 th

July 2007 made by the National Human Rights Commission

(„NHRC‟), recommending that the UOI should pay Respondent No.1

compensation of Rs. 1 lakh for the negligence of the CGHS

dispensary at Pushp Vihar, New Delhi indenting a wrong medicine

which was administered to her daughter with disastrous results. What

is a matter of concern is that the UOI admitted before the NHRC, and

before this Court as well, that the personnel at the said CGHS

dispensary were negligent and that their act "has been viewed very

seriously" by it. Yet, the UOI contends that the compensation awarded WP (Civil) No. 9676/2007 page 1 of 21 by the NHRC is „excessive‟. For Respondent No.1, a widow

undergoing the pain and trauma of having to care for her hapless

daughter, who is battling the irreversible side effects of the wrong

medicine, this litigation is the last thing that was needed to compound

her misery.

2. The travails of Respondent No. 1 Mrs. Susheela Mathai began in

1992 when her husband expired after a cardiac arrest. By 2004, her

daughter Ms. Sunita, aged 28 years, had been receiving prolonged

treatment under a specialist at the Ram Manohar Lohia Hospital

(„RML Hospital‟), New Delhi for cerebral seizure. Ms. Sunita had

been showing slow and steady improvement. On a routine

examination of Ms. Sunita on 21st February 2004, Dr. Dinkar Minz,

the Specialist at the RML Hospital prescribed a tablet „Tab Thai (75

mg)‟ along with certain other medicines. This was to be taken for two

months. Since Respondent No.1 was registered with the CGHS, she

submitted the prescription written out by Dr. Minz to the CGHS

Dispensary No. 65 at Pushp Vihar for the issue of the medicines. The

authorized chemist of the CGHS dispensary did not have the

medicine. Therefore Respondent No.1 was allowed the facility of

local purchase subject to reimbursement. Admittedly the said

medicine was wrongly indented by the Pharmacist at the CGHS

Dispensary as „Thioril-50‟ which is a Schedule-H drug instead of

„Thai (75mg)‟. When she took the indented prescription to the

chemist, M/s. Dinesh Medicos, she was given Thioril-50 as was

indented by the Pharamcist at the Pushp Vihar CGHS Dispensary. At

WP (Civil) No. 9676/2007 page 2 of 21 that stage, Respondent No. 1 had no means of doubting that this was a

mistake and a very serious one committed by the CGHS dispensary.

After Ms. Sunita had consumed the said medicine for a few days, her

condition deteriorated. She underwent severe depression and became

extremely abnormal and violent. She even failed to recognize her

immediate family members and her memory faded. Her physical

health deteriorated after consuming the said medicines.

3. The petitioner UOI sates that its records show that the same

medicine was indented by the CGHS Dispensary on 20th March and

21st April 2004 as well. According to Respondent No. 1, when she

visited the CGHS Dispensary for a third time on 21st April 2004,

Dr.Chhanda Dutta the Chief Medical Officer („CMO‟), CGHS

Dispensary No. 65, Pushpa Vihar, noted in the prescription "not clear"

against the medicine „Tab THAI (75mg)‟. Copies of these documents

have been placed on record. Respondent No. 1 states that she enquired

of the CMO why, if there was a doubt about the medicine that had

been prescribed, a different medicine was indented and asked to be

procured and administered to her daughter.

4. On 8th May 2004 Respondent No. 1 took her daughter for a review

to Dr. Dinkar Minz who, after examining her, diagnosed her condition

to be precarious on account of administering of the wrong medicine

„Thioril 50‟. According to Dr. Minz, Thioril-50 was a Schedule H

anti-psychotic drug used to treat schizophrenia and other psychotic

disorders. On the other hand, „Thai‟ was a brand of Thiamine a „B‟

WP (Civil) No. 9676/2007 page 3 of 21 complex group medicine. According to the UOI, on 8th May 2004 Dr.

Minz again wrote out a prescription for THAI 75 for three months. It

is claimed that thereafter the correct medicine THAI 75 was indented

for the months of May and June 2004. However, by that time

irreversible damage to Ms. Sunita‟s health had resulted on account of

the wrong medicine. Respondent No.1 states that that although

„Thioril 50‟ was stopped immediately thereafter Sunita‟s condition did

not improve. The deterioration of Sunita‟s health added to the agony

and suffering of Respondent No. 1.

5. On 30th July, 2004 Respondent No.1 sent a complaint to the District

Consumer Disputes Redressal Forum (DCDRF) (South District)

seeking compensation for the negligence of the CHGS staff in

indenting a wrong medicine. A copy was marked to the Director,

CGHS. On 14th Match 2005 she made a complaint to the NHRC

requesting that "an enquiry be got conducted and direction be issued

for taking appropriate action and payment of financial compensation

to me."

6. On 6th April 2005 the NHRC forwarded the complaint of

Respondent No.1 to the Director General, CGHS and called for an

action taken report within six weeks. A reminder was issued by the

NHRC on 20th July 2005. A third reminder was sent on 5th January

2006 to the CGHS stating that the NHRC had taken "a serious view

about the non-receipt of the report". On 6th February 2006, the

Additional Director CGHS wrote to the NHRC stating that "the

WP (Civil) No. 9676/2007 page 4 of 21 investigation is at its final stage and the outcome will be

communicated soon." On 13th June 2006 the NHRC wrote to the

Director General CGHS stating that the NHRC had taken a "very

serious view" and that if the report was not received within four

weeks the NHRC would be constrained "to invoke the provisions of

Section 13 of the Protection of Human Rights Act, 1993. (PHRA)"

7. Thereafter the Additional Director, CGHS (HQ) wrote the

following letter dated 23rd June 2006 to the NHRC:

"The Deputy Registrar (Law), National Human Rights Commission, (Law Division), Faridkot House, Copernicus Marg, New Delhi - 110 001.

Subject: Issue of wrong medicine by the CGHS Dispensary No. 65, Pushpa Vihar, Sector-I, New Delhi -

17. Ref: Case No.102/30/2005-2006/UC

Sir,

In continuation of this office letter of even No. dated 6 th February 2006 an investigation was conducted into the allegation contained in the complaint of Mrs. Susheela Mathai and forwarded by your office vide letter dated 7 th April 2006.

This matter has been examined/ investigated by senior officer and erring officials and officers have been suitably warned/ advised accordingly and given instructions to be more careful in future.

The inconvenience caused is regretted.

Yours faithfully,

Sd/-

WP (Civil) No. 9676/2007                                      page 5 of 21
                                        (Dr. Bhaskar Behera)
                                       Additional Director
                                       CGHS (HQ)"

8. The UOI has placed on record a copy of an Office Memorandum

(„OM‟) dated 22nd May 2006 issued to Shri B.R. Gautam, Pharmacist

at the CGHS Dispensary No. 65, Pushpa Vihar, Sector-1, New Delhi.

It has also placed on record a copy of the OM of the same date issued

to Dr. (Mrs.) Chhanda Dutta, CMO (Incharge), CGHS Dispensary No.

65. The OM issued to Shri B.R. Gautam reads as under:

"OFFICE MEMORANDUM

An enquiry was conducted by the complaint committee of CGHS (SZ) regarding issuance of wrong medicine to Ms Sunita d/o Mrs Susheela Mathai. The enquiry committee found you negligent while indented the medicine prescribe by Specialist Dr. Ram Manohar Lohiya Hospital, which has been viewed very seriously.

You are hereby warned to be more careful in future."

9. The OM issued to Dr. (Mrs.) Chhanda Dutta reads as under:

"OFFICE MEMORANDUM

An enquiry was conducted by the complaint committee of CGHS (SZ) regarding issuance of wrong medicine to Ms Sunita d/o Mrs Susheela Mathai. The enquiry committee observed that there is a lack of proper supervision on the part of the CMO I/o Dr. (Mrs.) Chhanda Dutta as such she has been advised be more careful in future."

10. After examining the response of the CGHS, the NHRC on 8th

August 2006 directed a show cause notice to be issued to the CGHS

WP (Civil) No. 9676/2007 page 6 of 21 why recommendation should not be made for payment of interim

compensation under Section 18 (3) PHRA. Consequent thereto on 13th

September 2006 a show cause notice was issued to the Director,

CGHS. The said notice inter alia stated that "the report submitted by

the Additional Director, CGHS admits of negligence in indenting and

issuing wrong medicine vis-a-vis the one prescribed by the specialist

at RML Hospital. Such negligence endangered the life of the daughter

of the complainant and she remained under treatment for the effects of

the wrong medicine thereafter. This is a case of serious violation of

human rights."

11. In response to the said notice, the Additional Director CGHS

replied on 9th January 2007 stating that the omission on the part of the

employee was not intentional and he had been warned accordingly. It

was stated: "Humble apology is tendered with a request to drop the

case."

12. The matter was thereafter heard by the NHRC on 30th July 2007

and it passed the following order:

"Additional Director, CGHS admitted vide letter dated 23rd June 2006 that a wrong medicine had been indented and given to the patient. Therefore, the Commission vide proceedings dated 8th June (sic August) 2006 issued notice to Director, CGHS under Section 18 (3) of the Protection of Human Rights Act 1993.

Director, CGHS responded to the show-cause notice vide communication dated 9th January 2007 and pleaded that the omission and commission on the part of the WP (Civil) No. 9676/2007 page 7 of 21 concerned employee was inadvertent and unintentional. He tendered an apology and requested the Commission to drop the case.

Realization of mistake and tender of apology by CGHS cannot bring relief to the complainant whose daughter had to pass through a trauma as a result of administration of wrong medicine. The girl has still not fully recovered. The complainant being a working cannot leave her daughter unattended at home and she has apprised the Commission of her decision to admit her daughter in a hostel for mentally retarded persons at Ahmedabad. She has also produced many cash memos and vouchers showing the expenses which she had incurred on medicines and investigations after deterioration in the health of her daughter. She has produced investigation reports and she states that the corresponding vouchers were torn by her daughter in a fit of anger.

Considering all the circumstances, the Commission is of the opinion that the complainant should be appropriately compensated for the expenses incurred by her and also for the suffering she and her daughter had to pass through. Therefore, the Commission recommends to Director, CGHS to pay an amount of Rs. one lakh as monetary relief to the complainant. Compliance report along with proof of payment be submitted within eight weeks." (emphasis supplied)

13. The above order dated 30th July 2007 was communicated to the

UOI by a letter dated 25th August 2007. It is the said order that has

been challenged by the UOI in this petition which was filed on 19th WP (Civil) No. 9676/2007 page 8 of 21 December 2007. On 7th January 2008 the following order was passed

by this Court:

"WP(C) 9676/2007

Subject to the Petitioner paying a sum of Rs.15,000/- on account of litigation expenses within a period of two weeks from today to the Respondents and filing proof thereof in the Registry, issue notice to the Respondents to show cause as to why the rule nisi be not issued, returnable on 19th March 2008.

CM No. 18242/2007 Notice, returnable on 19th March 2008. Subject to the awarded amount being deposited in this Court within a period of four weeks from today, there shall be a stay of the effect and operation of the impugned order dated 25th August 2007.

The amount as and when deposited by the Petitioner shall be kept in a fixed deposit receipt initially for a period of six months. The fixed deposit receipt shall be kept renewed by the Registry from time to time till further orders of this Court.

Dasti."

14. Thereafter, the compensation amount was deposited in this Court

by the UOI. The Respondent No.1 availed of the services of Mr.

K.K.Agarwal, a panel lawyer of the High Court Legal Services

Committee.

15. On 2nd December 2009 the following order was passed by this

Court:

"The admitted position in the present case is that Ms.

WP (Civil) No. 9676/2007 page 9 of 21 Sunita Mathai was administered medicine THIORIL-50 instead of THAI (75 mg). It is a case of the Respondents that because of wrong medicine THIORIL -50 Ms. Sunita Mathai went into depression and became very abnormal/violent.

The Director, All India Institute of Medical Sciences will ask Head of the Department, Neurology to examine and furnish a report whether administration and use of medicine THIORIL -50 for a period of eight days/two months can have adverse impact on a patient, who is suffering from seizure/schizophrenia. The HOD, Neurology is requested to submit his report within a period of two months.

Counsel for the Petitioner will verify in the Registry and get his application placed on record. If required, the Petitioner may file a new application after signatures and verification.

List again on 25th February 2010."

16. When the report from the AIIMS was not forthcoming this Court

passed the following order on 25th February 2010:

"1. A reminder be sent to the Director, All India Institute of Medical Sciences („AIIMS‟). In addition to that the Standing counsel for the AIIMS in the High Court will also be given a copy of the earlier order passed by this Court with the request to the Director, AIIMS to expedite the report sought for by this Court.

2. A copy of this order be sent to the Director, AIIMS within three days.

3. List on 12th May 2010."

WP (Civil) No. 9676/2007 page 10 of 21

17. Pursuant to the above order the AIIMS communicated to this

Court the comments of Professor Madhuri Behari, HOD Neurology,

AIIMS. Her note reads as under:

"Thioril is chemically thioridazine used in cases of bipolar disorders and schizophrenia. Common side effects are constipation, decreased sweating, dizziness, drowsiness, dryness of mouth, nasal congestion. Less common side effects are change in menstrual period, decreased sexual ability, skin rash, itching, sun burns and swelling and pain in breasts.

Rare side effects are: It can precipitate convulsions or seizures, fast breathing, fast pulse, changes in blood pressure, pale skin and tiredness.

Other side effects are: abnormal movements of face, tongue, jaw, cheek etc. It should be used with caution in people with epilepsy." (emphasis supplied)

18. This Court has heard the submissions of Mr. J.P. Sharma, learned

counsel appearing for the Petitioner and Mr. K.K. Aggarwal, learned

counsel for Respondent No. 1.

19. Mr. Sharma learned counsel for the UOI first submitted that the

Respondent No.1 had in her complaint before the NHRC suppressed

the fact that she had already approached the DCDRF for relief under

the Consumer Protection Act, 1986 (CPA). Therefore in terms of

Section 36 PHRA, the NHRC could not have entertained her

complaint as long as her complaint before the DCDRF was pending.

Secondly, although it was not disputed that the CGHS Dispensary at

WP (Civil) No. 9676/2007 page 11 of 21 Pushp Vihar was found to have been negligent by the inquiry

conducted by the CGHS itself, the burden was on Respondent No. 1 to

establish the „causal link‟ between the administering of „Thioril 50‟ to

Ms. Sunita on account of the wrong indenting by the CGHS

Dispensary and the present condition of Ms. Sunita. He pointed out

that Respondent No.1 herself had made the local purchase of the

medicine and therefore could not be said to be unaware of the wrong

medicine. He placed considerable reliance on the decision of the

Supreme Court in C.P. Sreekumar (Dr.) MS (Ortho) v. S.

Ramanujam (2009) 7 SCC 130 and in particular the passage where

the court cautioned about "too much suspicion about negligence of

attending doctors". It was next submitted by Mr. Sharma that the

compensation awarded by the NHRC in this case was "excessive" and

this was one of the deserving cases which required interference by this

Court.

20. On the other hand, Mr. K.K. Aggarwal, learned counsel for the

Respondent No. 1, supported the impugned order of the NHRC. He

submitted that Respondent No. 1 was not pursuing her complaint

before the consumer forum. He pointed out that in any event the case

before the NHRC proceeded entirely on the admission of the CGHS

that its staff had been negligent. He also referred to the decision of the

Supreme Court in Spring Meadows Hospital v. Harjot Ahluwalia

through K.S. Ahluwalia AIR 1998 SC 1801 and submitted that in

cases of administration of wrong medicine exemplary damages was

called for.

WP (Civil) No. 9676/2007 page 12 of 21

21. This Court finds that before the NHRC the UOI did not raise the

points it has raised before this Court. In particular, it did not object to

the jurisdiction of the NHRC to deal with the complaint of

Respondent No.1. Even otherwise, the objection is not well founded.

Section 36 PHRA states that the NHRC shall not enquire into a matter

which is pending before any other Commission. In fact in the present

case, the enquiry by the committee constituted by the CGHS had itself

substantiated the complaint of Respondent No.1. Consequently, there

was no occasion for the NHRC to conduct an enquiry under Section

13 PHRA. In fact the NHRC only examined the question of making a

recommendation for grant of interim compensation. Since the

complaint before the NHRC proceeded entirely on the admission of

negligence by the CGHS, thus obviating any enquiry by the NHRC,

the objection of the UOI to the jurisdiction of the NHRC with

reference to Section 36 of PHRA is without merit.

22. The UOI also did not urge before the NHRC that the burden was

on Respondent No.1 to prove the negligence of the CGHS by

establishing the causal link between the indenting by the CGHS of the

wrong medicine and the present condition of Ms. Sunita. On the

contrary, the CGHS informed the NHRC that its own enquiry had

established that the CGHS Dispensary at Pushp Vihar was negligent

in indenting the wrong medicine. The OM issued to Shri Gautam,

Pharmacist stated that he was found „negligent‟ in indenting the

medicine prescribed by Specialist, RML Hospital. The OM issued to

the CMO stated that there was a "lack of supervision on the part of the

WP (Civil) No. 9676/2007 page 13 of 21 CMO (Incharge) Dr. Dutta." Both OMs referred to the fact that "an

enquiry was conducted by the Complaint Committee of CGHS (SZ)

regarding issuance of wrong medicine to Ms. Sunita daughter of Mrs.

Susheela Mathai." With the CGHS having informed the NHRC by

23rd June 2006 that "this matter has been examined/investigated by

senior officer and erring officials and officers have been suitably

warned/advised" it is not open to the UOI to now contend that

Respondent No. 1 is required to establish a "causal link" and prove

negligence on the part of the CGHS.

23. The impugned order of the NHRC notes that the only submission

made by the Director, CGHS in response to the show-cause notice

issued to it by the NHRC was an admission that "the omission and

commission on the part of the concerned employee was inadvertent

and unintentional." The Director, CGHS tendered a "humble apology"

and requested the Commission "to drop the case." In the

circumstances, it is inconceivable why the Respondent No. 1 should

thereafter be required to prove negligence of the CGHS all over again.

Consequently, the reliance placed by the learned counsel for the UOI

upon the decision in C.P. Sreekumar (Dr.) MS (Ortho) v. S.

Ramanjam is misplaced.

24. In the face of the above uncontestable position, it is surprising that

the UOI has come up with untenable pleas in this petition. Referring

to the fact that Respondent No. 1 had been given the authority to make

a local purchase of the medicine indented from the market, subject to

WP (Civil) No. 9676/2007 page 14 of 21 reimbursement, the UOI in its rejoinder contends that when

Respondent No.1 "again presented the aforesaid prescription on 21st

April 2004 and this time she would be in better know of the medicine

by its label etc. being educated understanding the difference between

Thai 50 - Thioril 75, by the wrapper etc. as she has herself to

administer the medicine as admitted by the Respondent No.1." In the

first place no such point was urged before the NHRC. In fact the

CGHS itself informed the NHRC that its Complaint Committee had

found that the CGHS Dispensary at Pushp Vihar had been negligent in

indenting the wrong medicine. Secondly, the fact is that unless a

medicine, that is not available in the authorized clinic of the CGHS, is

indented by the CGHS dispensary, local purchase of such medicine

from the market is not permitted. The crucial part therefore was of

indenting the medicine, which was done by the Pharmacist at the

CGHS Dispensary. Obviously, a lay person like Respondent No.1

cannot be expected to know if what has been indented is the correct

medicine or not. She would obviously trust the Pharmacist to know

his job. It makes no difference if the person who is given such

prescription is educated or not. Even a lay educated person is unlikely

to be able to discern the difference between „Thai‟ and Thiroil.

Sometimes „equivalent‟ medicines are administered. This is therefore

entirely the responsibility of the CGHS. Its attempt at placing the

blame on Respondent No.1 deserves to be deprecated.

25. The last submission made by Mr. Sharma, the learned counsel for

the Petitioner, is that the compensation of Rs. 1 lakh awarded to

WP (Civil) No. 9676/2007 page 15 of 21 Respondent No.1 by the NHRC was excessive. It is stated by learned

counsel for the Petitioner that since Ms. Sunita was a chronic patient

of cerebral seizure for more than six months "it is not established that

the condition of the patient has worsened, if at all, by the

administration of wrong medicine."

26. Administering a wrong medicine to an otherwise healthy person

which results in an irreversible deterioration of such person‟s health is

far too serious a violation of that person‟s right to life under Article 21

of the Constitution. As pointed out by the NHRC, it is indeed a grave

violation of the human rights of such person.

27. The UOI ought not to be permitted to advance the above

submission about „excessive‟ compensation when its own Complaint

Committee has held its staff to be negligent in administering a wrong

medicine. The report of Professor Madhuri Behari, HOD, Neurology,

AIIMS confirms that there are serious side effects that can ensure if

„Thioril‟ is administered. The rare side effects include "convulsions or

seizures, fast breathing, fast pulse, changes in blood pressure, pale

skin and tiredness." The report confirms that Thioril is a Schedule H

drug meant for treating psychotic disorders and is not meant to be

casually prescribed and administered. Respondent No. 1 went from

the CGHS dispensary to the chemist‟s shop to buy the medicine in the

trust that what was indented by the CGHS was safe and appropriate

for being administered to her daughter. That trust was belied when a

wrong medicine was indented. Ms. Sunita continues to battle the

WP (Civil) No. 9676/2007 page 16 of 21 irreversible and deleterious effects such administration of wrong

medicine has had on her health.

28. The gravity of the problem of administering a wrong medicine

was noticed by the Supreme Court in Spring Meadows Hospital v.

Harjot Ahluwalia. There the nurse of a private hospital had asked the

father of a two-year old child to get an injection, Lariago, as written

down by her after noting, albeit incorrectly, the name of the medicine

as prescribed by the treating doctor. The minor child when injected

with the said drug instantly collapsed and was ultimately reduced to a

vegetative state. The National Consumer Disputes Redressal

Commission (NCDRC) while holding the doctor and the nurse

negligent also found the hospital to be vicariously liable. It awarded

compensation of Rs.12.5 lakhs to the minor child and Rs.5 lakhs to

the parents of the child for the "acute mental agony...by reason of

their only son having been reduced to a vegetative state requiring life-

long care and attention." The Supreme Court affirmed the judgment

of the NCDRC and observed:

"9. .....The influence exhorted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise WP (Civil) No. 9676/2007 page 17 of 21 an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country.

In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever-increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably (sic) skill of a competent doctor.

10. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his WP (Civil) No. 9676/2007 page 18 of 21 junior with the knowledge that the junior was incapable of performing of his duties properly." (emphasis supplied)

29. In the above case it was urged by the hospital that it took the

initiative in getting the child subsequently treated at AIIMS without

payment and therefore the award of damages for mental agony to the

parents was unjustified. Rejecting the said contention, the Supreme

Court observed in para 14 as under:

"We, however, fail to appreciate this argument advanced on behalf of the learned counsel for the appellants inasmuch as the mental agony of the parents will not be dismissed in any manner merely seeing the only child living in a vegetative state on account of negligence of the hospital authorities on a hospital bed. The agony of the parents would remain so long as they remain alive and the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents." (emphasis supplied)

30. More recently, in Post Graduate Institute of Medical Education

and Research, Chandigarh v. Jaspal Singh (2009) 7 SCC 330 the

Supreme Court affirmed the compensation awarded by a consumer

forum for the mistake committed by the attending doctors and staff of

the PGI Institute at Chandigarh in transfusing the wrong blood group

resulting in the death of a patient. Although the above decisions were

rendered in the context of the CPA, this Court finds them to be

equally applicable in the facts of the present case which is one of clear

admission by UOI of the negligence on part of its CGHS dispensary in

WP (Civil) No. 9676/2007 page 19 of 21 indenting a wrong medicine based on the conclusions of its own

Complaints Committee which enquired into the matter. In the

circumstances, the award of Rs. 1 lakh as compensation can only be

termed as a „token‟ reparation. This Court therefore fails to appreciate

why the UOI had to file the present writ petition to challenge the

award by the NHRC of such relatively modest compensation to

Respondent No.1.

31. This Court is constrained to observe that this is a vexatious

litigation needlessly pursued by the UOI. Instead of accepting the

finding of NHRC and agreeing to pay the „token‟ compensation

awarded to Respondent No.1, the UOI has dragged her to this Court,

thus prolonging her agony and preventing her from getting the

compensation amount for over two years. The petition therefore

deserves to be dismissed with exemplary costs.

32. This Court accordingly orders that:

(i) The present petition is dismissed.

(ii) The sum of Rs. 1 lakh deposited by UOI in this Court

together with interest accrued thereon will also be disbursed by

the Registry to Respondent No. 1 forthwith upon proper

identification.

(iii) The UOI will, within four weeks from today, pay

Respondent No. 1 costs of this petition which are quantified at

Rs. 1 lakh.

(iv) A certified copy of this order shall be delivered to the

WP (Civil) No. 9676/2007 page 20 of 21 Director, CGHS within five days for compliance.

33. The petition is accordingly disposed of with the above directions.

S. MURALIDHAR, J.

MAY 18, 2010
rk




WP (Civil) No. 9676/2007                                   page 21 of 21