Dr. Balram Prasad Vs. Dr. Kunal Saha & Ors.
[Civil Appeal No.2867 of 2012]
Advanced Medicare & Research Institute Ltd. Vs. Dr. Kunal Saha & Ors.
[Civil Appeal No.692 of 2012]
Dr. Kunal Saha Vs. Dr. Sukumar Mukherjee & Ors.
[Civil Appeal No.2866 of 2012]
Dr. Baidyanath Haldar Vs. Dr. Kunal Saha & Ors.
[Civil Appeal No.731 of 2012]
Dr. Sukumar Mukherjee Vs. Dr. Kunal Saha & Ors.
[Civil Appeal No.858 of 2012]
V. Gopala Gowda, J.
1. The Civil Appeal Nos.2867, 731 and 858 of 2012 are filed by the appellant-doctors, Civil Appeal No. 692 of 2012 is filed by the appellant-AMRI Hospital and Civil Appeal No. 2866 of 2012 is filed by the claimant-appellant - Dr. Kunal Saha (hereinafter referred to as 'the claimant'), questioning the correctness of the impugned judgment and order dated 21.10.2011 passed by the National Consumer Disputes Redressal Commission (hereinafter referred to as the 'National Commission') in Original Petition No.240 of 1999.
2. The appellant-doctors are aggrieved by the quantum of compensation awarded by the National Commission and the liability fastened upon them for the negligence on their part and have prayed to set aside the same by allowing their appeals. In so far as the appellant-AMRI Hospital is concerned, it has also questioned the quantum of compensation awarded and has prayed to reduce the same by awarding just and reasonable compensation by modifying the judgment by allowing its appeal. So far as the claimant is concerned, he is aggrieved by the said judgment and the compensation awarded which, according to him, is inadequate, as the same is contrary to the admitted facts and law laid down by this Court in catena of cases regarding awarding of compensation in relation to the proved medical negligence for the death of his wife Anuradha Saha (hereinafter referred to as the 'deceased').
3. The brief relevant facts and the grounds urged on behalf of the appellant-doctors, AMRI Hospital and the claimant in seriatim are adverted to in this common judgment for the purpose of examining the correctness of their respective legal contentions urged in their respective appeals with a view to pass common judgment and award.
4. Brief necessary and relevant facts of the case are stated hereunder: The claimant filed Original Petition No. 240 of 1999 on 09.03.1999 before the National Commission claiming compensation for Rs.77,07,45,000/- and later the same was amended by claiming another sum of Rs.20,00,00,000/-. After the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee[1] was remanded by this Court to the National Commission to award just and reasonable compensation to the claimant by answering the points framed in the said case, the National Commission held the doctors and the AMRI Hospital negligent in treating the wife of the claimant on account of which she died.
Therefore, this Court directed the National Commission to determine just and reasonable compensation payable to the claimant. However, the claimant, the appellant-Hospital and the doctors were aggrieved by the amount of compensation awarded by the National Commission and also the manner in which liability was apportioned amongst each of them. While the claimant was aggrieved by the inadequate amount of compensation, the appellant-doctors and the Hospital found the amount to be excessive and too harsh. They further claimed that the proportion of liability ascertained on each of them is unreasonable. Since, the appellant-Hospital and the doctors raised similar issues before the Court; we intend to produce their contentions in brief as under: On granting the quantum of compensation based on the income of the deceased:
5. It is the claim of the learned counsel on behalf of the appellant- doctors and the Hospital that there is no pleading in the petition of the claimant that the deceased had a stable job or a stable income, except in paragraph 2A of the petition which states that the deceased was a Post-Graduate student and she had submitted her thesis. The only certificate produced by the claimant shows that she was just a graduate in Arts (English). Further, it is urged by the learned counsel that the document produced by the claimant - a computer generated sheet, does not explain for what work the remuneration, if at all was received by the deceased. Also, whether the same was a onetime payment of stipend or payment towards voluntary work, is not explained by the claimant. Further, it is stated by the learned counsel that there is no averment in the petition of the claimant as to on what account the said payment was received by the deceased and whether she has received it as a Child Psychologist as claimed by the claimant or otherwise.
6. It is also the case of the appellant-doctors and the Hospital that the claimant had not led any oral evidence with regard to the income of the deceased and further he has not explained why just a single document discloses the payment made sometime in the month of June 1988 in support of the income of the deceased when admittedly, the couple came to India in the month of March-April, 1998. Therefore, the learned counsel for the appellant-doctors and the Hospital have urged that the said document is a vague document and no reliance could have been placed by the National Commission on the same to come to the conclusion that the deceased in fact had such an income to determine and award the compensation as has been awarded in the impugned judgment and order. From a perusal of the said document, it could be ascertained that it shows just one time payment received for some odd jobs. Therefore, it is contended by the appellant-doctors and the Hospital that the claimant has not been able to discharge his onus by adducing any positive evidence in this regard before the National Commission.
7. It is further contended by the learned counsel that the assertion of the claimant in the petition and in his evidence before the National Commission that the income of the deceased was $30,000 per annum is not substantiated by producing cogent evidence. No appointment letter of the deceased to show that she was employed in any organization in whatsoever capacity had been produced nor has the claimant produced any income certificate/salary sheet. No evidence is produced by the claimant in support of the fact that the deceased was engaged on any permanent work. No Income Tax Return has been produced by the claimant to show that she had been paying tax or had any income in U.S.A.
8. It is further submitted that even if it is assumed that the annual income of the deceased was $30,000 per annum, apart from deduction on account of tax, it is also essential for the National Commission to ascertain the personal living expenses of the deceased which was required to be deducted out of the annual income to determine the compensation payable to the claimant. The National Commission was required to first ascertain the style of living of the deceased- whether it was Spartan or Bohemian to arrive the income figure of $30,000 per annum. In India, on account of style and standard of living of a person, one-third of the gross income is required to be deducted out of the annual income as laid down in the decision of this Court in the case of Oriental Insurance Company Ltd. Vs. Jashuben & Ors[2].
It is further contended by the learned counsel for the appellant- doctors and the Hospital that no yardstick is available about the expenditure of the deceased in the U.S.A. The claimant has not adduced any evidence in this regard. The evidence given by the so-called expert, Prof. John F. Burke Jr. also does not say anything on this score. Even if it is assumed that the annual income of the deceased was $30,000 per annum for which there is no evidence, 25% thereof is required to be deducted towards tax. The deduction of tax is much more as is apparent from the case reported in United India Insurance Co. Ltd. & Others Vs. Patricia Jean Mahajan & Ors[3]. In fact, the claimant has neither adduced any evidence in this regard nor has he produced the relevant statute from which the percentage of tax deduction can be ascertained. The claimant was last examined by video conferencing conducted under the supervision of Justice Lokeshwar Prasad (retired Judge of Delhi High Court) as local Commissioner. The AMRI Hospital- appellant's witness Mr. Satyabrata Upadhyay was cross-examined by the claimant.
9. The claimant filed M.A. No.1327 of 2009 before the National Commission after remand order was passed by this Court in the case of Malay Kumar Ganguly (supra). The claimant now claimed enhancement of compensation at Rs.78,14,00,000/- under the heads of pecuniary damages and non-pecuniary damages. The prayer made in the application was to admit the claim for compensation along with supporting documents including the opinions of the foreign experts and further prayed for issuing direction to the appellant-doctors and the Hospital to arrange for cross-examination of the foreign experts, if they wish, through video conferencing at their expenses as directed by this Court in the remand order in Malay Kumar Ganguly's case (supra) and for fixing the matter for a final hearing as soon as possible on a firm and fixed date as the claimant himself want to argue his petition as was done before this Court, as he being the permanent resident of U.S.A.
10. The learned senior counsel appearing for the claimant on 9.2.2010 prayed for withdrawal of the application stating that he would file another appropriate application. Thereafter, on 22.2.2010 the claimant filed M.A. No.200 of 2010 seeking direction to the National Commission to permit him to produce affidavit of four foreign experts and their reports. The National Commission dismissed the same vide order dated 26.4.2010 against which special leave petition No.15070/2010 was filed before this Court which was withdrawn later on. Again, the claimant filed M.A. No.594 of 2010 before the National Commission for examination of four foreign experts to substantiate his claim through video conferencing at the expense of the appellant-doctors and the Hospital.
The National Commission vide order dated 6.9.2010 dismissed the application of the claimant for examining foreign experts. Against this order, the claimant preferred SLP (C) No.3173 of 2011 before this Court praying for permission to examine two foreign experts, namely, Prof. John F. Burke Jr. and Prof. John Broughton through video conferencing and he undertook to bear the expenses for such examination. The claimant had given up examination of other two foreign experts, namely, D. Joe Griffith and Ms. Angela Hill. Prof. John F. Burke Jr. was examined on 26.4.2011 as an Economics Expert to prove the loss of income of the deceased and the claimant relied upon an affidavit dated 21.9.2009 and his report dated 18.12.2009 wherein he has stated that if the deceased would have been employed through the age of 70, her net income could have been $3,750,213.00. In addition, the loss of service from a domestic prospective was an additional amount of $1,258,421.00.
The said witness was cross examined by the learned counsel for the doctors and AMRI Hospital. The learned Counsel for the appellant-doctors placed reliance upon the following questions and answers elicited from the above Economics Expert witness, which are extracted hereunder:-
"Q.16. Can you tell me what was the wages of Anuradha in 1997? A.16. May I check my file (permitted). I don't know.
Q.17. Are you aware whether Anuradha was an income tax payee or not? A.17. Anu and her husband were filing joint return. Q.18. Did Anu have any individual income? A.18. I don't know.
Q.19. Did Kunal Saha provide you the earning statement of Anuradha Saha, wherein her gross monthly pay was shown as $ 1060 as on 16.1.1998? A.19. I don't believe that I have that information.
Q.21. What documents have you taken into consideration of Anu's income for giving your opinion? A.21. None.
Q.22. Whether Anu was employed at the time of her death? A.22. I don't think so; I don't believe so."
11. The claimant on the other hand, had placed strong reliance upon the evidence of the Economics Expert Prof. John F. Burke to prove the income of the deceased as on the date of her death and actual income if she would have lived up to the age of 70 years as he had also examined Prof. John Broughton in justification of his claim. The learned counsel for the appellant-doctors contended that Prof. John F. Burke, who was examined through video conferencing in the presence of the Local Commissioner, has estimated the life time income of the deceased to be 5 million and 125 thousand US dollars without any supporting material. The said foreign expert witness did not know whether the deceased had any individual income. He did not know about the earning statement of the deceased produced by the claimant. He has also stated that the deceased was not employed at the time of her death.
12. The learned counsel for the appellant-doctors also submitted that the earning statement issued by Catholic Home Bureau stating the income of the deceased at $1060.72 for the period ending 15th January, 1998 cannot be relied upon for the following reasons :-
a. The earning statement was not proved in accordance with law since only the affidavit of claimant was exhibited and not the documents before Justice Lokeshwar Prasad (Retired) i.e. the Local Commissioner on 5.12.2003 during the cross- examination.
b. There is nothing to show that Anuradha Saha was under employment at Catholic Home Bureau.
c. Letter of appointment has not been annexed.
d. Federal Tax record has not been produced. The Economics expert has stated that Anuradha and the claimant were filing joint tax return.
e. It does not show weekly income of the deceased as has been treated by NCDRC.
f. Nature of appointment, even if presumed, has not been stated, i.e., whether it was temporary or permanent, contractual or casual and period of employment.
It is further submitted by the learned counsel that the evidence of Prof. John F. Burke, Jr. has not been relied upon to prove the loss of income of the deceased as it shows that the deceased was not paying income tax. Therefore, the National Commission has erred in partly allowing the claim of the claimant while computing the compensation on the basis of the earning of the deceased. On awarding compensation under the head of 'loss of consortium':
13. The learned senior counsel and other counsel for the appellant- doctors submitted that the National Commission has erred in awarding Rs.10,00,000/- towards loss of consortium. This Court in various following decisions has awarded Rs.5,000/- to Rs.25,000/- on the aforesaid account:-
Sl. No.
Case Law
Amount
1.
Santosh Devi v. National Insurance Co. Ltd.,(2012) 6 SCC 421
Rs.10,000
2.
New India Assurance Company Limited v. Yogesh Devi, (2012) 3 SCC 613
Rs.10,000
3.
National Insurance Company Limited v. Sinitha, (2012) 2 SCC 356
Rs.5,000
4.
Sunil Sharma v. Bachitar Singh, (2011) 11 SCC 425
Rs.25,000
5.
Pushpa v. Shakuntala, (2011) 2 SCC 240
Rs.10,000
6.
Arun Kumar Agrawal v. National Insurance Company Limited, (2010) 9 SCC 218
Rs.15,000
7.
Shyamwati Sharma v. Karam Singh, (2010) 12 SCC 378
Rs.5,000
8.
Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422 in Sarla Dixit v. Balwant Yadav
Rs.15,000
9.
Raj Rani v. Oriental Insurance Company Limited, (2009) 13 SCC 654
Rs.7,000
10.
Sarla Verma v. Delhi Transport Corporation,(2009) 6 SCC 121
Rs.10,000
11.
Rani Gupta v. United India Insurance Company Limited, (2009) 13 SCC 498
Rs.25,000
12.
National Insurance Company Limited v. Meghji Naran Soratiya, (2009) 12 SCC 796
Rs.10,000
13.
Oriental Insurance Company Limited v. Angad Kol, (2009) 11 SCC 356
Rs.10,000
14.
Usha Rajkhowa v. Paramount Industries, (2009) 14 SCC 71
Rs.5,000
15.
Laxmi Devi v. Mohammad. Tabbar, (2008) 12 SCC 165
Rs.5,000
16.
Andhra Pradesh State Road Transport Corporation v. M. Ramadevi, (2008) 3 SCC 379
Rs.5,000
17.
State of Punjab v. Jalour Singh, (2008) 2 SCC 660
Rs.5,000
18.
Abati Bezbaruah v. Dy. Director General, Geological Survey of India, (2003) 3 SCC 148
Rs.3,000
19.
Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, (2001) 5 SCC 175
Rs.5,000
20.
Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179
Rs.15,000
21.
G.M., Kerala SRTC v. Susamma Thomas, (1994)2 SCC 176
Rs.15,000
22.
National Insurance Co. Ltd. v. Swaranlata Das, 1993 Supp (2) SCC 743
Rs.7,500
14. Further, the senior counsel and other counsel for the appellant- doctors contended that the case of Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors.[4] relied upon by the claimant is misconceived as that case relates to the continuous pain and suffering of the victim, who had lost control over his lower limb and required continuous physiotherapy for rest of his life. It was not the amount for loss of consortium by the husband or wife. Hence, it is submitted by them that the National Commission erred in granting Rs.10 lakhs under the head of 'loss of consortium'. On the objective and pattern of payment of compensation cases:
15. It is further contended by the learned counsel for the appellant- doctors that the compensation awarded by the National Commission should be meant to restore the claimant to the pre-accidental position and in judging whether the compensation is adequate, reasonable and just, monetary compensation is required to be arrived at on the principle of restitutio-in-integram. The National Commission while calculating the just monetary compensation, the earnings of the claimant who himself is a doctor, is also required to be taken into consideration.
Regarding the contention of the claimant that in allowing compensation the American standard is required to be applied, it has not been disclosed before the Commission as to what is the American standard. On the contrary, the National Commission was directed by this Court to calculate the compensation in the case as referred to in Malay Kumar Ganguly's case (supra) and on the basis of the principles laid-down by this Hon'ble Court in various other judgments. The two judgments which have been referred to in Malay Kumar Ganguly's case (supra) are Oriental Insurance Company Ltd. Vs. Jashuben & Ors. (supra) and R.K. Malik Vs. Kiran Pal[5], where this Court has not directed assessment of compensation according to American standard. Therefore, the contention of the claimant that compensation has to be assessed according to American standard is wholly untenable in law and the same is liable to be rejected.
16. Further, it is contended by the senior counsel and other counsel for the appellant-doctors and Hospital that the reliance placed by the claimant upon the decision of this Court reported in Patricia Jean Mahajan's case (supra) clearly shows that the multiplier method applicable to claim cases in India was applied after taking note of contribution by the deceased for his dependants. The said case is a clear pointer to the fact that even if a foreigner dies in India, the basis of calculation has to be applied according to Indian Standard and not the American method as claimed by the claimant.
17. Further, the word 'reasonable' implies that the appellant-doctors and AMRI Hospital cannot be saddled with an exorbitant amount as damages - which cannot either be treated as an obvious or natural though not foreseeable consequence of negligence.
18. Further, the learned senior counsel has placed reliance on the judgment of this Court in Nizam Institute of Medical Sciences (supra) wherein this Court enhanced the original compensation awarded to the claimant-victim who had been paralyzed due to medical negligence from waist down, under the heads: requirement of nursing care; need for driver-cum-attendant, as he was confined to a wheel chair; and he needed physiotherapy. In the present case, the negligence complained of is against the doctors and the Hospital which had resulted in the death of the wife of the claimant. In that case, the extent of liability ought to be restricted to those damages and expenses incurred as a direct consequence of the facts complained of, while setting apart the amount to be awarded under the head 'loss of dependency'. The relevant portion of the aforesaid judgment of this Court in the Nizam's Institute of Medical Sciences is quoted hereunder: "............. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned." (paragraph 88)
19. It is further contended by the learned senior counsel and other counsel for the appellant-doctors that the claimant failed to produce any document by taking recourse to Order XLI Rule 27 of Code of Civil Procedure and Order LVII of Supreme Court Rules to justify his claims of approximately an additional amount of Rs.20 crores including the cost of filing of the claim for compensation to the amount of compensation demanded for medical negligence which is a far-fetched theory and every negative happening in the claimant's life post-death of his wife Anuradha Saha cannot be attributed as the consequence due to medical negligence. Therefore, the enhancement of compensation as prayed for by the claimant stood rightly rejected by the National Commission by recording reasons. Therefore, this Court need not examine the claim again. On the use of multiplier method for determining compensation :
20. It is contended by the senior counsel and other counsel for the appellants that the multiplier method has enabled the courts to bring about consistency in determining the loss of dependency more particularly, in cases of death of victims of negligence, it would be important for the courts to harmoniously construct the aforesaid two principles to determine the amount of compensation under the heads: expenses, special damages, pain and suffering.
21. In Sarla Verma's case (supra), this Court, at Paragraphs 13 to 19, held that the multiplier method is the proper and best method for computation of compensation as there will be uniformity and consistency in the decisions. The said view has been reaffirmed by this Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., Civil Appeal No.4646 of 2009 decided on April 2, 2013.
22. It is further submitted by the learned counsel that in capitalizing the pecuniary loss, a lesser multiplier is required to be applied inasmuch as the deceased had no dependants. In support of his contention, reliance is placed upon the decision of this Court reported in Patricia Mahajan's case (supra) in which this Court having found a person who died as a bachelor, held that a lesser multiplier is required to be applied to quantify the compensation.
23. It is further contended by the senior counsel and other counsel for the appellant-doctors that in Susamma Thomas (supra) this Court has observed that "in fatal accident cases, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death". This means that the court while awarding damages in a fatal accident case took into account the pecuniary loss already suffered as a result of the negligence complained of, and the loss of dependency based on the contributions made by the deceased to the claimant until her death.
While the former may be easily ascertainable, the latter has been determined by the National Commission by using the multiplier method and in respect of the use of the multiplier method for the purpose of calculating the loss of dependency of the claimant, in paragraph No. 16 of the aforesaid judgment this Hon'ble Court observed as follows: "16. It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage there from towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific...."
24. In Sarla Verma's case (supra) this Court sought to define the expression 'just compensation' and opined as under: "16.....Just Compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. 17. Assessment of compensation though involving certain hypothetical considerations should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision-making process and the decisions. While it may not be possible to have mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation." (Emphasis laid by this Court)
25. It was also contended by the learned counsel for the appellant- doctors that apart from accident cases under the Motor Vehicles Act, 1988, the multiplier method was followed in Lata Wadhwa & Ors. Vs. State of Bihar[6] by a three Judge Bench of this Court, which is a case where devastating fire took place at Jamshedpur while celebrating the birth anniversary of Sir Jamshedji Tata. Even in M.S. Grewal & Anr. Vs. Deep Chand Sood and Ors.[7], the multiplier method was followed wherein school children were drowned due to negligence of school teachers. In the Municipal Corporation of Delhi Vs. Uphaar Tragedy Victims Association & Ors.[8] the multiplier method was once again followed where death of 59 persons took place in a cinema hall and 109 persons suffered injury.
26. Therefore, it is contended by the senior counsel and other counsel for the appellant-doctors that multiplier method should be used while awarding compensation to the victims because it leads to consistency and avoids arbitrariness. On contributory negligence by the claimant
27. The learned senior counsel and other counsel for the appellant- doctors submitted that the National Commission in the impugned judgment should have deducted 25% of the compensation amount towards contributory negligence of the claimant caused by his interference in the treatment of the deceased. Instead, the National Commission has deducted only 10% towards the same. According to the learned senior counsel and other counsel for the appellants, the National Commission erred in not adhering to the tenor set by this Court while remanding the case back to it for determining the compensation to arrive at an adequate amount which would also imply an aspect of contributory negligence, individual role and liability of the Hospital and the doctors held negligent. Therefore, this Court is required to consider this aspect and deduct the remaining 15% out of the compensation awarded by the National Commission towards negligence by the claimant. On enhancement of compensation claimed by the claimant :
28. The learned senior counsel and other counsel for the appellant- doctors and the Hospital contended that enhanced claim of the claimant in his appeal is without any amendment to the pleadings and therefore, is not maintainable in law. The claimant in his written submission filed during the course of arguments in July, 2011 before the National Commission, has made his claim of Rs.97,56,07,000/- which the National Commission has rightly rejected in the impugned judgment holding that it was legally impermissible for it to consider that part of the evidence which is strictly not in conformity with the pleadings in order to award a higher compensation as claimed by the claimant. In justification of the said conclusion and finding of the National Commission, the learned counsel have placed reliance upon the principle analogous to Order II Rule 2 of C.P.C., 1908 and further contended that the claimant who had abandoned his claim now cannot make new claims under different heads.
Further, it is submitted by Mr. Vijay Hansaria, the learned senior counsel on behalf of AMRI Hospital that though the claimant had filed an application on 9.11.2009 in M.A. No.1327 of 2009 for additional claim; the said application was withdrawn by him on 9.2.2010. Therefore, his claim for enhancing compensation is not tenable in law. In support of the said contention, he has placed reliance upon the judgment of this Court in National Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad[9], wherein it is stated by this Court that the pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. In support of the said proposition of law, reliance was also placed upon other judgment of this Court in Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria[10], wherein this Court, at paragraph 61, has held that :- "in civil cases, pleadings are extremely important for ascertaining title and possession of the property in question." The said view of this Court was reiterated in A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandavana Paripalanai Sangam[11],
29. Further, the learned senior counsel for the appellant-doctors and AMRI Hospital placed reliance upon the provisions of the Consumer Protection Act, 1986 and the Motor Vehicles Act, 1988 to urge that though the Consumer Courts have pecuniary jurisdiction for deciding the matters filed before it whereby the pecuniary jurisdiction of the District Forum is Rs.20 lakhs, State Commission is from Rs.20 lakhs to Rs.1 crore, whereas for National Commission, it is above Rs.1 crore, the Motor Accident Claims Tribunal have unlimited jurisdiction. In the Consumer Protection Act, 1986 there is a provision for limitation of 2 years for filing of complaint under Section 24-A of the Act and there is no limitation prescribed in the Motor Vehicles Act, 1988.
30. Sections 12 and 13 of the Consumer Protection Act, 1986 provide as to how the complaint has to be made and the procedure to be followed by the claimant for filing the complaint. Rule 14(c) of the Consumer Protection Rules, 1987 and the Consumer Protection Regulations, 2005 require the complainant to specify the relief which he claims. The filing of the complaint/appeal/revision is dealt with Consumer Protection Regulations, 2005. Under the Motor Vehicles Act, 1988, a victim or deceased's legal representative does not have to specify the amount claimed as held by this Court in the case of Nagappa Vs. Gurudayal Singh[12].
31. Under Section 158(6) of the Motor Vehicles Act, 1988, the report forwarded to the Claims Tribunal can be treated as an application for compensation even though no claim is made or specified amount is claimed whereas under the Consumer Protection Act, a written complaint specifying the claim to be preferred before the appropriate forum within the period of limitation prescribed under the provision of the Act is a must.
32. Under Section 163-A of the Motor Vehicles Act, 1988 a claimant is entitled to compensation under the structured formula even without negligence whereas no such provision exists under the Consumer Protection Act.
33. In this regard, the learned senior counsel and other counsel for the appellant-doctors and Hospital placed reliance upon the judgment of this Court in the case of Ibrahim Vs. Raju.[13] and submitted that the said case does not apply to the fact situation for two reasons, namely, it was a case under the Motor Vehicles Act, 1988, whereas this case involves the Consumer Protection Act. Secondly, this Court in the previous case, enhanced the compensation observing that due to financial incapacity the claimant could not avail the services of the competent lawyer, which is not the case in hand, in as much as the claimant had hired the services of an advocate who is Bar-at-Law and the President of the Supreme Court Bar Association.
34. Further, the learned counsel for the appellant-doctors placed reliance upon the judgment of this Court in the case of Sanjay Batham Vs. Munnalal Parihar[14], which is a case under the Motor Vehicles Act, 1988. This Court enhanced the compensation following the judgment in Nagappa's case (supra). The learned counsel also placed reliance upon the judgment of this Court in Nizam Institute's case (supra) where the complainant had made a claim of Rs.7.50 crores. This Court enhanced the compensation from Rs.15.50 lakhs to Rs.1 crore. But, the Nizam Institute's case is not a case for the proposition that a claimant can be awarded compensation beyond what is claimed by him. On the other hand, it was a case of peculiar facts and circumstances since the claimant had permanent disability which required constant medical attention, medicines, services of attendant and driver for himself.
The cases referred to by the claimant regarding medical negligence in his written submission are distinguishable from the present case and in none of these cases upon which reliance has been placed by the claimant, this Court has awarded compensation beyond what is claimed. Therefore, the reliance placed upon the aforesaid judgments by the claimant does not support his claim and this Court need not accept the same and enhance the compensation as has been claimed by him since he is not entitled to the same. Death of the claimant's wife due to cumulative effect of negligence :
35. This Court vide its judgment in Malay Kumar Ganguly's case (supra) has held that: "186. A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned. Negligence on the part of each of the treating doctors as also the hospital may have been the contributing factors to the ultimate death of the patient. But, then in a case of this nature, the court must deal with the consequences the patient faced, keeping in view the cumulative effect. In the instant case, negligent action has been noticed with respect to more than one respondent.
A cumulative incidence, therefore, has led to the death of the patient." The two words "may" and "cumulative incidence" in the abovesaid observations of this Court is relevant for determining the quantification of compensation. It is submitted that this Court is also not sure that the negligence solely has contributed to the death of the claimant's wife. At the most, this Court is of the view that the negligence may have contributed to the death of the claimant's wife. The incidences leading to or contributing to the death of the deceased are:
i. Disease TEN itself is a fatal disease which has very high mortality rate.
ii. TEN itself produces septicemic shock and deceased Anuradha died because of such consequence.
iii. No direct treatment or treatment protocol for TEN.
iv. Negligence of many in treating deceased Anuradha.
v. Contributory negligence on the part of Dr.Kunal Saha and his brother.
Furthermore, it is observed factually that lethal combination of Cisapride and Fluconazole had been used for a number of days at Breach Candy Hospital during her stay which leads to cardiac arrest. Therefore, the National Commission ought to have considered different incidences as aforesaid leading to the death of the claimant's wife so as to correctly apportion the individual liability of the doctors and the AMRI Hospital in causing the death of the wife of the claimant.
36. Further, with regard to the liability of each of the doctors and the AMRI Hospital, individual submissions have been made which are presented hereunder: Civil Appeal No. 692/2012
37. It is the case of the appellant-AMRI Hospital that the National Commission should have taken note of the fact that the deceased was initially examined by Dr. Sukumar Mukherjee and the alleged medical negligence resulting in the death of the deceased was due to his wrong medication (overdose of steroid). Therefore, the Hospital has little or minimal responsibility in this regard, particularly, when after admission of the deceased in the Hospital there was correct diagnosis and she was given best possible treatment. The National Commission erred in apportioning the liability on the Hospital to the extent of 25% of the total award. This Court in the earlier round of litigation held that there is no medical negligence by Dr. Kaushik Nandy, the original respondent No.6 in the complaint, who was also a doctor in the appellant-Hospital.
38. Further, the learned senior counsel for the AMRI Hospital submitted that the arguments advanced on behalf of the appellants- doctors Dr. Balram Prasad in C.A. No.2867/2012, Dr. Sukumar Mukherjee in C.A. No.858/2012 and Dr. Baidyanath Haldar in C.A. 731/2012 with regard to percentage, on the basis of costs imposed in paragraph 196 of the judgment in the earlier round of litigation is without any basis and further submitted that under the heading - 'Individual Liability of Doctors' findings as to what was the negligence of the doctors and the appellant AMRI Hospital is not stated. If the said findings of the National Commission are considered, then it cannot be argued that the appellant AMRI Hospital should pay the highest compensation. Further, the learned senior counsel rebutted the submission of the claimant contending that since he had himself claimed special damages against the appellant-doctors, the Hospital and Dr. Abani Roy Choudhary in the complaint before the National Commission, therefore, he cannot now contend contrary to the same in the appeal before this Court. CIVIL APPEAL NO. 858 OF 2012
39. It is the case of the appellant- Dr. Sukumar Mukherjee that the National Commission while apportioning the liability of the appellant, has wrongly observed that : "Supreme Court has primarily found Dr.Sukumar Mukherjee and AMRI hospital guilty of negligence and deficient in service on several counts. Therefore, going by the said findings and observations of Supreme Court we consider it appropriate to apportion the liability of Dr. Sukumar Mukherjee and AMRI hospital in equal proportion, i.e. each should pay 25% i.e. 38,90,000/- of the awarded amount of 1,55,60,000/-."
40. It is submitted by the learned counsel for the appellant - Dr. Sukumar Mukherjee that scrutiny of the judgment in Malay Kumar Ganguly's case (supra) will show that at no place did the Hon'ble Supreme Court made any observation or recorded any finding that the appellant Dr. Mukherjee and the Hospital are primarily responsible. On the contrary, under the heading "Cumulative Effect of Negligence" under paras 186 and 187, this Hon'ble Court has held as under: "186. A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned.
Negligence on the part of each of the treating doctors as also the hospital may have been contributing factors to the ultimate death of the patient. But, then in a case of this nature, the court must deal with the consequences the patient faced keeping in view the cumulative effect. In the instant case, negligent action has been noticed with respect to more than one respondent. A cumulative incidence, therefore, has led to the death of the patient. 187. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondent. In such a scenario finding of medical negligence under Section 304-A cannot be objectively determined."
41. It is further submitted by the learned counsel for the appellant- Dr. Sukumar Mukherjee that the wife of the claimant was suffering from rash/fever from April 1998, she was seen by the appellant- Dr.Sukumar Mukherjee only on three occasions before his pre- planned visit to the U.S.A. for attending a medical conference i.e. on 26.4.1998, 7.5.1998 and on the night of 11.5.1998 and then the appellant-Dr.Mukherjee left India for USA and returned much after the demise of the claimant's wife. On her first examination on 26.4.1998 the appellant suggested a host of pathological tests. The patient was requested to visit the Doctor with these reports. No drugs were prescribed by the appellant-Dr.Mukherjee at this examination.
On 7.5.1998, Anuradha Saha walked into the clinic of the appellant-Dr.Mukherjee at 9.30 p.m. and reported that she was uncomfortable because she had consumed food of Chinese cuisine. The appellant-Dr.Mukherjee noticed that there was a definite change in the nature of the rash. Based on the information furnished and the status and condition of the patient, she was diagnosed to be suffering from allergic vasculitis and the appellant-Dr.Mukherjee commenced treating the patient with Depomedrol, which is a drug belonging to the family of steroids.
The appellant-Dr.Mukherjee recommended Depomedrol 80 mg.IM twice daily for 3 days to be reconsidered after Anuradha Saha was subject to further review. Depomedrol is very much indicated in Vasculitis (USPDI 1994): "Depomedrol is anti-inflammatory, anti- allergic drug. Therefore, it is Doctor's judgment to use the drug." The appellant-Dr.Mukherjee administered one injection of Depomedrol on the night of 7.5.1998. He did not administer any other injections to the deceased thereafter. It is further submitted that much higher dose of Depomedrol have been recommended in USPDI 1994 and CDRom Harisons Principles of Medicine 1998 in by pass skin diseases like multiple sclerosis with a dose of 177.7 mg daily for 1 week and 71 mg on every other day for one month.
42. On 11.5.1998 when the appellant-Dr.Mukherjee examined Anuradha Saha at the AMRI Hospital prior to his departure to U.S.A., he prescribed a whole line of treatment and organized reference to different specialists/consultants. He recommended further pathological tests because on examining the patient at the AMRI, he noticed that she had some blisters which were not peeled off. There was no detachment of skin at all. He also requested in writing the treating consultant physician of AMRI Dr. Balram Prasad, MD to organize all these including referral to all specialists. The appellant-Dr.Mukherjee suspected continuation of allergic Vasculitis in aggravated form and prescribed steroids in a tapering dose on 11.5.1998 and advised other tests to check infection and any immuno abnormalities.
It is stated that the appellant-Dr.Mukherjee did not examine the patient thereafter and as aforementioned, he left on a pre-arranged visit to U.S.A. for a medical conference. No fees were charged by the appellant- Dr.Mukherjee. It is further submitted that before the appellant- Dr.Mukherjee started the treatment of the deceased, Dr.Sanjoy Ghose on 6.5.1998 treated her and during the period of treatment of the appellant-Dr. Mukherjee from 7.5.1998 to 11.5.1998, on 9.5.1998 Dr.Ashok Ghosal (Dermatologist) treated Anuradha Saha. These facts were not stated in the complaint petition and concealed by the claimant. To this aspect, even this Hon'ble Court has also recorded a finding in the case referred to supra that the patient was also examined by two consultant dermatologists Dr.A.K. Ghosal and Dr. S. Ghosh who diagnosed the disease to be a case of vasculitis.
43. It is further submitted by the learned counsel for the appellant- Dr. Mukherjee that the cause of death as recorded in the death certificate of the deceased is "septicemic shock with multi system organ failure in a case of TEN leading to cardio respiratory arrest". Blood culture was negative prior to death. There was no autopsy to confirm the diagnosis at Breach Candy Hospital, Mumbai. Dr. Udwadia observed on 27.5.1998 that the patient has developed SIRS in absence of infection in TEN.
The patient expired on 28.5.1998 and the death certificate was written by a junior doctor without the comments of Dr. Udwadia. It is submitted by the learned counsel that there is neither any allegation nor any finding by this Court that the doctors of the AMRI Hospital had contributed to septicemia. The mere finding that the patient was not properly dressed at AMRI Hospital where she stayed for only 6 days of early evocation of the disease do not justify contribution to septicemic shock of the deceased. Further, there is no record to show that at AMRI Hospital the skin of the patient had peeled out thereby leading to chance of developing septicemia.
On the other hand, it is a fact borne out from record that the patient was taken in a chartered flight to Breach Candy Hospital, Bombay against the advice of the doctors at Kolkata and further nothing is borne out from the records as what precaution were taken by the claimant while shifting the patient by Air to Breach Candy Hospital thereby leading to the conclusion that during the travel by chartered flight she might have contracted infection of the skin leading to septicemia.
It is further submitted by the learned counsel for the appellant- Dr. Sukumar Mukherjee that the fact that the disease TEN requires higher degree of care since there is no definite treatment, such high degree of care will be relatable to comfort but not definitely to septicemia that occurred at Breach Candy Hospital. Hence, negligence has to be assessed for damages for failure to provide comfort to the patient and not a contributory to septicemia shock suffered by the deceased.
44. It is submitted by the learned counsel for appellant-Dr. Sukumar Mukherjee that there is no finding or allegation that the drug Depomedrol prescribed by the appellant-Dr.Mukherjee caused the disease TEN. The appellant advised a number of blood tests on 11.5.98 in AMRI Hospital to detect any infection and immune abnormality due to steroids and to foresee consequences. It is further submitted that Breach Candy Hospital records show that the patient was haemo-dynamically stable. Even Dr.Udwadia of Breach Candy Hospital on 17.5.1998 doubted with regard to the exact disease and recorded the disease as TEN or Steven Johnson Syndrom. Therefore, the National Commission ought to have considered different incidences as aforesaid leading to the death of the claimant's wife and the quantum of damages shall have to be divided into five parts and only one part shall be attributed to the negligence of the appellant-Dr.Mukherjee. Civil Appeal No. 2867 of 2012
45. It is the case of Dr. Balram Prasad-appellant in Civil Appeal No. 2867 of 2012 that on 11.05.1998, Dr. Sukumar Mukherjee, before leaving for U.S.A., attended the patient at the AMRI Hospital at 2.15 p.m. and after examining the deceased, issued the second and last prescription on the aforesaid date without prescribing anything different but re-assured the patient that she would be fine in a few weeks' time and most confidently and strongly advised her to continue with the said injection for at least four more days. This was also recorded in the aforesaid last prescription of the said date. Further, it is stated that without disclosing that he would be out of India from 12.05.1998, he asked the deceased to consult the named Dermotologist,
Dr. B.Haldar @ Baidyanath Haldar, the appellant in Civil Appeal No. 731 of 2012, and the physician Dr. Abani Roy Chowdhury in his last prescription on the last visit of the deceased. Most culpably, he did not even prescribe I.V. Fluid and adequate nutritional support which was mandatory in that condition. Dr. Haldar took over the treatment of the deceased as a Dermatologist Head and Dr. Abani Roy Chowdhury as Head of the Medical Management from 12.05.1998 with the positive knowledge and treatment background that the patient by then already had clear intake of 880 mg of Depomedrol injection as would be evident from AMRI's treatment sheet dated 11.05.1998.
46. It is further stated by the claimant in the complaint lodged before National Commission that it contained specific averments of negligence against the appellant-doctors. The only averment of alleged negligence was contained in paragraph 44 of the complaint which reads as under: "44. That Dr. Balram Prasad as attending physician at AMRI did do nothing better. He did not take any part in the treatment of the patient although he stood like a second fiddle to the main team headed by the opposite party No. 2 and 3. He never suggested even faintly that AMRI is not an ideal place for treatment of TEN patient; on the converse, he was full of praise for AMRI as an ideal place for the treatment of TEN patients knowing nothing how a TEN patient should be treated."
47. The claimant has also placed strong reliance upon the answer given by him to question No. 26 in his cross examination which reads thus: "Q.No.26. Dr. Prasad says that Depomedrol dose according to the treatment sheet of the AMRI Hospital, he made a specific suggestion that the dose should be limited to that particular day only. Is it correct? Ans. It is all matter of record. Yeah, he said one day in AMRI record."
48. Though, the appellant-Dr. Balram Prasad was accused in the criminal complaint lodged by the claimant he was neither proceeded against as an accused in the criminal complaint nor before the West Bengal Medical Council but was named as a witness. Further, it is stated by the claimant that he urged before the National Commission as well as before this Court in unequivocal terms that the bulk of the compensation awarded would have to be in the proportion of 80% on the AMRI Hospital, 15% on Dr. Sukumar Mukherjee and balance between the rest. Despite the aforesaid submission before the National Commission, the claimant claims that it has erred in awarding the proportion of the liability against each of the appellant-doctors in a manner mentioned in the table which is provided hereunder:
Name of The Party
Amount to be Paid
Dr. Sukumar Mukherjee
Compensation:Rs.38,90,000
Cost of litigation:1,50,000
Dr. Baidyanath Haldar
Compensation:Rs.25,93,000
Cost of litigation: Rs.1,00,000
Dr. Abani Roy Chowdhury (since deceased) (claim foregone)
Compensation: 25,00,000
AMRI Hospital
Compensation: Rs.38,90,000
Cost of litigation: Rs.1,50,000
Dr. Balram Prasad
Compensation: Rs.25,93,000
Cost of litigation: Rs.1,00,000
49. The appellant-Dr. Balram Prasad in Civil Appeal No.2867/2012 contends that he was the junior most attending physician attached to the Hospital, he was not called upon to prescribe medicines but was only required to continue and/or monitor the medicines prescribed by the specialist in the discipline. But realizing the seriousness of the patient, the appellant had himself referred the patient to the three specialists and also suggested for undertaking a skin biopsy.
The duty of care ordinarily expected of a junior doctor had been discharged with diligence by the appellant. It is further contended that in his cross-examination before the National Commission in the enquiry proceeding, the claimant himself has admitted that the basic fallacy was committed by three physicians, namely, Dr. Mukherjee, Dr. Haldar and Dr. Roy Chowdhury. The above facts would clearly show that the role played by the appellant-Doctors in the treatment of the deceased was only secondary and the same had been discharged with reasonable and due care expected of an attending physician in the given facts and circumstances of the instant case.
50. In the light of the above facts and circumstances, the contention of the claimant that the death of the claimant's wife was neither directly nor contributorily relatable to the alleged negligent act of the appellant- Dr. Balram Prasad, it is most respectfully submitted that the National Commission was not justified in apportioning the damages in the manner as has been done by the National Commission to place the appellant on the same footing as that of Dr. Baidyanath Haldar, who was a senior doctor in-charge of the management/treatment of the deceased.
51. The learned senior counsel for the appellant-Dr. Balram Prasad further urged that the National Commission has also erred in not taking into account the submissions of the claimant that 80% of the damages ought to have been levied on the Hospital, 15% on Dr. Sukumar Mukherjee and the balance between the rest. It is urged that the proportion of the compensation amount awarded on the appellant is excessive and unreasonable which is beyond the case of the claimant himself. CIVIL APPEAL NO. 731 OF 2012
52. The learned counsel Mr. Ranjan Mukherjee appearing on behalf of the appellant in this appeal has filed the written submissions on 15.4.2013. He has reiterated his submission in support of his appeal filed by the said doctor and has also adopted the arguments made in support of the written submissions filed on behalf of the other doctors and AMRI Hospital by way of reply to the written submissions of the claimant. Further, he has submitted that the appellant Dr. Baidyanath Haldar is about 80 years and is ailing with heart disease and no more in active practice. Therefore, he requested to set aside the liability of compensation awarded against him by allowing his appeal. All the doctors and the Hospital urged more or less the same grounds. Civil Appeal No. 2866 of 2012
53. This appeal has been filed by the claimant. It is the grievance of the claimant that the National Commission rejected more than 98% of the total original claim of Rs.77.7 crores which was modified to Rs.97.5 crores later on by adding "special damages" due to further economic loss, loss of employment, bankruptcy etc. suffered by the claimant in the course of 15-year long trial in relation to the proceedings in question before the National Commission and this Court. The National Commission eventually awarded compensation of only Rs.1.3 crores after reducing from the total award of Rs.1.72 crores on the ground that the claimant had "interfered" in the treatment of his wife and since one of the guilty doctors had already expired, his share of compensation was also denied.
54. Therefore, the present appeal is filed claiming the just and reasonable compensation urging the following grounds:
a. The National Commission has failed to consider the pecuniary, non-pecuniary and special damages as extracted hereinbefore.
b. The National Commission has made blatant errors in mathematical calculation while awarding compensation using the multiplier method which is not the correct approach.
c. The National Commission has erroneously used the multiplier method to determine compensation for the first time in Indian legal history for the wrongful death caused by medical negligence of the appellant-doctors and the AMRI Hospital.
d. The National Commission has reinvestigated the entire case about medical negligence and went beyond the observations made by this Court in Malay Kumar Ganguly's case (supra) by holding that the claimant is also guilty for his wife's death.
e. The National Commission has failed to grant any interest on the compensation though the litigation has taken more than 15 years to determine and award compensation.
f. The National Commission has failed to consider the devaluation of money as a result of "inflation" for awarding higher compensation that was sought for in 1998.
g. It is also vehemently contended by the claimant that the National Commission has made blatant and irresponsible comment on him stating that he was trying to "make a fortune out of a misfortune." The said remark must be expunged.
55. The appellant-doctors and the AMRI Hospital contended that the compensation claimed by the claimant is an enormously fabulous amount and should not be granted to the claimant under any condition. This contention ought to have been noticed by the National Commission that it is wholly untenable in law in view of the Constitution Bench decision of this Court in the case of Indian Medical Association Vs. V.P. Shantha & Ors[15], wherein this Court has categorically disagreed on this specific point in another case wherein "medical negligence" was involved. In the said decision, it has been held at paragraph 53 that to deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice to the claimant.
56. Further, in a three Judge Bench decision of this Court in Nizam Institute's case(supra) it has been held that if a case is made out by the claimant, the court must not be chary of awarding adequate compensation. Further, the claimant contends that this Court has recently refused to quash the defamation claim to the tune of Rs.100 crores in Times Global Broadcasting Co. Ltd. & Anr. Vs. Parshuram Babaram Sawant [SLP (Civil) No(s) 29979/2011 decided on 14-11-2011], suggesting that in appropriate cases, seemingly large amount of compensation is justified.
57. The claimant further urged that this is the fundamental principle for awarding "just compensation" and this Court has categorically stated while remanding the case back to the National Commission that the principle of just compensation is based on "restitutio in integrum", i.e. the claimant must receive the sum of money which would put him in the same position as he would have been if he had not sustained the wrong. It is further contended that the claimant had made a claim referred to supra under specific headings in great detail with justification for each of the heads.
Unfortunately, despite referring to judicial notice and the said claim-table in its final judgment, the National Commission has rejected the entire claim on the sole ground that since the additional claim was not pleaded earlier, none of the claims made by the claimant can be considered. Therefore, the National Commission was wrong in rejecting different claims without any consideration and in assuming that the claims made by the claimant before the Tribunal cannot be changed or modified without prior pleadings under any other condition.
The said view of the National Commission is contrary to the numerous following decisions of this Court which have opined otherwise:- Ningamma and Anr. Vs. United India Insurance Company Ltd.[16], Malay Kumar Ganguly's case referred to supra, Nizam Institute's case (supra), Oriental Insurance Company Ltd. Vs. Jashuben & Ors. (supra), R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors[17], Raj Rani & Ors Vs. Oriental Insurance Company Ltd. & Ors[18]., Laxman @ Laxman Mourya Vs. Divisional Manager Vs. Oriental Insurance Co. Ltd. & Anr.[19] and Ibrahim Vs. Raju & Ors. (supra).
58. The claimant has further argued that the just compensation for prospective loss of income of a student should be taken into consideration by the National Commission. In this regard, he has contended that this Court while remanding the case back to the National Commission only for determination of quantum of compensation, has made categorical observations that compensation for the loss of wife to a husband must depend on her "educational qualification, her own upbringing, status, husband's income, etc." In this regard, in the case of R.K. Malik & Anr. (supra) (paragraphs 30-32) this Court has also expressed similar view that status, future prospects and educational qualification must be judged for deciding adequate compensation.
It is contended by the claimant that it is an undisputed fact that the claimant's wife was a recent graduate in Psychology from a highly prestigious Ivy League School in New York who had a brilliant future ahead of her. Unfortunately, the National Commission has calculated the entire compensation and prospective loss of income solely based on a pay receipt of the victim showing a paltry income of only $ 30,000 per year, which she was earning as a graduate student.
This was a grave error on the part of the National Commission, especially, in view of the observations made by this Court in th
