V. KRISHNAKUMAR vs. STATE OF TAMIL NADU &ORS.

Full Judgment Text

V. ST S. ju (h m Go aw

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 8065 OF 2009 KRISHNAKUMAR .. APPELLANT VERSUS ATE OF TAMIL NADU & ORS. ..RESPONDENTS With CIVIL APPEAL No. 5402 OF 2010 JUDGMENT JUDGMENT A. BOBDE, J. These two Civil Appeals are preferred against the dgment of National Consumer Disputes Redressal Commission ereinafter referred to as the ‘NCDRC’) rendering a finding of edical negligence against the State of Tamil Nadu, its vernment Hospital and two Government Doctors and arding a sum of Rs.5,00,000/- to V. Krishnakumar. Civil 1

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peal No. 8065 of 2009 is preferred by V. Krishnakumar for hancement of the amount of compensation. Civil Appeal No. 02 of 2010 is preferred by the State of Tamil Nadu and other against the judgment of the NCDRC. As facts of both e appeals are same, we are disposing the appeals by this mmon judgment. On 30.8.1996, the appellant V. Krishankumar's wife xmi was admitted in Government Hospital for Women and ildren, Egmore, Chennai (hereinafter referred to as the ospital”). Against the normal gestation period of 38 to 40 eeks, she delivered a premature female baby in the 29th week pregnancy. The baby weighed only 1250 grams at birth. The ant was placed in an incubator in intensive care unit for about days. The mother and the baby were discharged on .9.1996. A fact which is relevant to the issue is, that the JUDGMENT by was administered 90-100% oxygen at the time of birth d underwent blood exchange transfusion a week after birth. e baby had apneic spells during the first 10 days of her life. e was under the care of Respondent No.3 - Dr. S.Gopaul, o-paediatrician and Chief of Neo Natology Unit of the Hospital d Respondent No.4 - Dr. Duraiswamy of the Neo Natology it of the Hospital. The Respondent No.2 is the Director of the 2

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spital, which is established and run by the Respondent No.1 – ate of Tamil Nadu under the Department of Health. The baby and the mother visited the hospital on .10.1996 at the chronological age of 9 weeks. Follow up eatment was administered at the home of the appellant by spondent No.4, the Government Doctor, Dr. Duraiswamy ring home visits. The baby was under his care from 4 weeks 13 weeks of chronological age. Apparently, the only advice ven by Respondent No.4 was to keep the baby isolated and nfined to the four walls of the sterile room so that she could protected from infection. What was completely overlooked as a well known medical phenomenon that a premature baby ho has been administered supplemental oxygen and has been ven blood transfusion is prone to a higher risk of a disease own as the Retinopathy of Prematurity (hereinafter referred JUDGMENT as ‘ROP’), which, in the usual course of advancement makes child blind. The Respondent No.3, who was also a Government ctor, checked up the baby at his private clinic at rassaiwakkam, Chennai when the baby was 14-15 weeks of ronological age also did not suggest a check up for ROP. One thing is clear about the disease, and this was not ntested by the learned counsel for the respondents, that the 3

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sease occurs in infants who are prematurely born and who ve been administered oxygen and blood transfusion upon rth and further, that if detected early enough, it can be evented. It is said that prematurity is one of the most mmon causes of blindness and is caused by an initial nstriction and then rapid growth of blood vessels in the retina. hen the blood vessels leak, they cause scarring. These scars n later shrink and pull on the retina, sometimes detaching it. e disease advances in severity through five stages - 1, 2, 3, 4 d 5 (5 being terminal stage). Medical literature suggests that age 3 can be treated by Laser or Cryotherapy treatment in der to eliminate the abnormal vessels. Even in stage 4, in me cases, the central retina or macula remains intact thereby eping intact the central vision. When the disease is allowed to ogress to stage 5, there is a total detachment and the retina JUDGMENT comes funnel shaped leading to blindness. There is ample edical literature on the subject. It is, however, not necessary refer all of it. Some material relevant to the need for check for ROP for an infant is: “All infants with a birth weight less than 1500 gms or gestational age less than 32 weeks are required to be screened for ROP.”1 1 AIIMS Report dated 21.8.2007 4

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Applying either parameter, whether weight or gestational e, the child ought to have been screened. As stated earlier, e child was 1250 gms at birth and born after 29 weeks of egnancy, thus making her a high risk candidate for ROP. It is undisputed that the relationship of birth weight and stational age to ROP as reproduced in NCDRC’s order is as llows: “Most ROP is seen in very low-birth weight infants, and the incidence is inversely related to birth weight and gestational age. About 70-80% of infants with birth weight less than 1000 gms show acute changes, whereas above 1500 gms birth weight the frequency falls to less than 10%.” Again, it seems that the child in question was clearly t in the category where the frequency was less than 10% nce the baby was below 1500 gms. In fact, it is observed by e NCDRC in its order that the discipline of medicine reveals JUDGMENT at all infants who had undergone less than 29 weeks of station or weigh less than 1300 gms should be examined gardless of whether they have been administered oxygen or t. It is further observed that ROP is a visually devastative sease that often can be treated successfully if it is diagnosed time. The need for a medical check up for the infant in estion was not seriously disputed by the respondents. 5

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The main defence of the respondents to the complaint negligence against the appellant’s claim for compensation as that at the time of delivery and management, no formities were manifested and the complainant was given oper advice, which was not followed. It was argued on behalf the respondent that they had taken sufficient precautions, en against ROP by mentioning in the discharge summary as llows: “Mother confident; Informed about alarm signs; 1) to continue breast feeding 2) To attend post natal O.P. on Tuesday." It must, however, be noted that the discharge summary ows that the above writing was in the nature of a scrawl in e corner of the discharge summary and we are in agreement th the finding of the NCDRC that the said remarks are only a stily writteJn gUeneDralG waMrninEg aNnd Tnothing more. After a stay 25 days in the hospital, it was for the hospital to give a clear dication as to what was to be done regarding all possible ngers which a baby in these circumstances faces. It is vious that it did not occur to the respondents to advise the pellant that the baby is required to be seen by a paediatric hthalmologist since there was a possibility of occurrence of P to avert permanent blindness. This discharge summary 6

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ither discloses a warning to the infant’s parents that the ant might develop ROP against which certain precautions ust be taken, nor any signs that the Doctors were themselves utious of the dangers of development of ROP. We are not epared to infer from ‘Informed about alarms signs’ that the rents were cautioned about ROP in this case. We find it fortunate that the respondents at one stage took a stand that e appellant did not follow up properly by not attending on a esday but claiming that the mother attended on a Wednesday d even contesting the fact that she attended on a Wednesday. appears like a desperate attempt to cover up the gross gligence in not examining the child for the onset of ROP, hich is a standard precaution for a well known condition in ch a case. In fact, it is not disputed that the Respondent .3 attended to and examined the baby at his private clinic JUDGMENT hen the baby was 14-15 weeks and even then did not take y step to investigate into the onset of ROP. The Respondent .4 also visited the appellant to check up the baby at the me of the appellant and there are prescriptions issued by the id Respondent No.4, which suggests that the baby was indeed der his care from 4 weeks to 13 weeks. 7

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. The NCDRC has relied on the report dated 21.8.2007 of e All India Institute of Medical Sciences, New Delhi ereinafter referred to as ‘AIIMS’). In pursuance of the order the NCDRC, a medical board was constituted by AIIMS nsisting of five members, of which, four are ophthalmological ecialists. The board has given the following opinion:- "A premature infant is not born with Retinopathy of Prematurity (ROP), the retina though immature is normal for this age. The ROP usually starts developing 2-4 weeks after birth when it is mandatory to do the first screening of the child. The current guidelines are to examine and screen the babies with birth weight<1500g and <32 weeks gestational age, starting at 31 weeks post-conceptional age (PAC) or 4 weeks after birth whichever is later. Around a decade ago, the guidelines in general were the same and the premature babies were first examined at 31-33 weeks post-conceptional age or 2-6 weeks after birth. There is a general agreement on these above guidelines on a national and international level. The attached annexure explains some authoritative resources and guidelines published in national and international literature especially over the last decade. JUDGMENT However, in spite of ongoing interest world over in screening and management of ROP and advancing knowledge, it may not be possible to exactly predict which premature baby will develop ROP and to what extent and why." Review of literature of ROP screening guidelines 8

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Year Source First Who to Screening screen 2006 American 31 wks PCA or 4 <1500gms birth Academy of wks after birth weight or <32 Pediatrics et al. whichever later wks GA or higher 2003 Jalali S et al. 31 wks PCA or <1500g birth Indian J 3-4 wks after weight or <32 Ophthalmology birth whichever wks GA or earlier higher 2003 Azad et al. JIMA 32 wks PCA or <1500g birth 4-5 wks after weight or <32 birth- whichever wks GA or earlier higher 2002 Aggarwal R et. 32 wks PCA or <1500 gm birth Al Indian J. 4-6 wks after weight or <32 Pediatrics birth whichever wks GA earlier 1997 American 31-33 wks PCA <1500 gm birth Academy of or 4-6 wks after weight or <28 PaeJdiatUricsD et aGl. MbirtEh NT wks GA or higher 1996 Maheshwari R et 32 wks PCA or 2 <1500 gm birth al. National Med. wks after birth weight or <35 J. India whichever is wks GA or earlier 02>24 hrs 1988 Cryotherapy 4-6 wks after <1250 gms birth ROP Group birth weight ne thing this report reveals clearly and that is that in the esent case the onset of ROP was reasonably foreseeable. We y this because it is well known that if a particular danger 9

Year	Source	First<br>Screening
2006	American<br>Academy of<br>Pediatrics et al.	31 wks PCA or 4<br>wks after birth<br>whichever later
2003	Jalali S et al.<br>Indian J<br>Ophthalmology	31 wks PCA or<br>3-4 wks after<br>birth whichever<br>earlier
2003	Azad et al. JIMA	32 wks PCA or<br>4-5 wks after<br>birth- whichever<br>earlier
2002	Aggarwal R et.<br>Al Indian J.<br>Pediatrics	32 wks PCA or<br>4-6 wks after<br>birth whichever<br>earlier
1997	American<br>Academy of<br>PaeJdiatUricsD et aGl.	31-33 wks PCA<br>or 4-6 wks after<br>MbirtEh NT
1996	Maheshwari R et<br>al. National Med.<br>J. India	32 wks PCA or 2<br>wks after birth<br>whichever is<br>earlier
1988	Cryotherapy<br>ROP Group	4-6 wks after<br>birth

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uld not reasonably have been anticipated it cannot be said at a person has acted negligently, because a reasonable man es not take precautions against unforeseeable circumstances. ough it was fairly suggested to the contrary on behalf of the spondents, there is nothing to indicate that the disease of ROP d its occurrence was not known to the medical profession in e year 1996. This is important because whether the nsequences were foreseeable or not must be measured with ference to knowledge at the date of the alleged negligence, t with hindsight. We are thus satisfied that we are not oking at the 1996 accident with 2007 spectacles.2 . It is obvious from the report that ROP starts developing to 4 weeks after birth when it is mandatory to do the first reening of the child. The baby in question was admitted for a riod of 25 days and there was no reason why the mandatory JUDGMENT reening, which is an accepted practice, was not done. The port of the AIIMS (supra) states that ‘it may not be possible exactly predict which premature baby will develop ROP and to hat extent and why’. This in our view underscores the need r a check up in all such cases. In fact, the screening was ver done. There is no evidence whatsoever to suggest to the 2 See Roe v. Minister of Health [1954] 2 QB 66 and the discussion in ‘Med Negligence’, Michael Jones, 4th Edition, Sweet & Maxwell, London 2008 page 270. 10

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ntrary. It appears from the evidence that the ROP was scovered when the appellant went to Mumbai for a personal atter and took his daughter to a paediatrician, Dr. Rajiv amdar for giving DPT shots when she was 4½ months. That ctor, suspected ROP on an examination with naked eye even thout knowing the baby’s history. But, obviously Respondent s.3 and 4 the Doctors entrusted with the care of the child did t detect any such thing at any time. The helpless parents, ter detection got the baby’s eyes checked by having the baby amined by several doctors at several places. Traumatised and ocked, they rushed to Puttaparthy for the blessings of Shri tya Sai Baba and the baby was anesthetically examined by . Deepak Khosla, Consultant, Department of Ophthalmology Baba Super Specialty Hospital at Puttaparthy. Dr. Khosla did t take up the case since the ROP had reached stage 5. After JUDGMENT ming back from Puttaparthy, the baby was examined by Dr. run Sharma alongwith the retinal team of Shankar Netralaya, ho were also of the same opinion. The parents apparently took e baby to Dr. Namperumal Swamy of Arvind Hospital, adurai, who advised against surgery, stating that the baby’s ndition was unfavourable for surgery. The appellant then arnt of Dr. Michael Tresse, a renowned expert in Retinopathy 11

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eatment for babies in the United States. He obtained a ference from Dr. Badrinath, chief of Shankar Netralaya and ok his only child to the United States hoping for some ray of ht. The appellant incurred enormous expenses for surgery in e United States but to no avail. . Having given our anxious consideration to the matter, e find that no fault can be found with the findings of the CDRC which has given an unequivocal finding that at no stage, e appellant was warned or told about the possibility of currence of ROP by the respondents even though it was their ty to do so. Neither did they explain anywhere in their fidavit that they warned of the possibility of the occurrence of P knowing fully well that the chances of such occurrence isted and that this constituted a gross deficiency in service, r did they refer to a paediatric ophthalmologist. Further it JUDGMENT ay be noted that Respondent Nos. 3 & 4 have not appealed to is Court against the judgment of the NCDRC and have thus cepted the finding of medical negligence against them. eficiency in Service . In the circumstances, we agree with the findings of the CDRC that the respondents were negligent in their duty and ere deficient in their services in not screening the child 12

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tween 2 to 4 weeks after birth when it is mandatory to do so d especially since the child was under their care. Thus, the gligence began under the supervision of the Hospital i.e. spondent No.2. The Respondent Nos. 3 and 4, who checked e baby at his private clinic and at the appellant’s home, spectively, were also negligent in not advising screening for P. It is pertinent to note that Respondent Nos. 3 and 4 rried on their own private practice while being in the ployment of Respondent No. 2, which was a violation of their rms of service. mpensation . The next question that falls for consideration is the mpensation which the respondents are liable to pay for their gligence and deficiency in service. The child called Sharanya s been rendered blind for life. The darkness in her life can JUDGMENT ver be really compensated for in money terms. Blindness can ve terrible consequences. Though, Sharanya may have rents now, there is no doubt that she will not have that otection and care forever. The family belongs to the middle ass and it is necessary for the father to attend to his work. doubtedly, the mother would not be able to take Sharanya t everywhere and is bound to leave the child alone for 13

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asonable spells of time. During this time, it is obvious that she ould require help and maybe later on in life she would have to tally rely on such help. It is therefore difficult to imagine hindered marriage prospects or even a regular career which e may have otherwise pursued with ease. She may also face eat difficulties in getting education. The parents have already curred heavy expenditure on the treatment of Sharanya to no ail. It is, thus, obvious that there should be adequate mpensation for the expenses already incurred, the pain and ffering, lost wages and the future care that would be cessary while accounting for inflationary trends. . There is no doubt that in the future Sharanya would quire further medical attention and would have to incur costs medicines and possible surgery. It can be reasonably said at the blindness has put Sharanya at a great disadvantage in JUDGMENT r pursuit for making a good living to care for herself. . At the outset, it may be noted that in such cases, this urt has ruled out the computation of compensation according the multiplier method. (See Balram Prasad vs. Kunal Saha, 014) 1 SCC 384 and Nizam’s Institute of Medical Sciences vs. ashant S. Dhananka and Others, (2009) 6 SCC 1. 14

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e court rightly warned against the straightjacket approach of ing the multiplier method for calculating damages in medical gligence cases. uantification of Compensation . The principle of awarding compensation that can be fely relied on is restitutio in integrum. This principle has been cognized and relied on in Malay Kumar Ganguly vs. Sukumar ukherjee, (2009) 9 SCC 221 and in Balram Prasad’s case upra), in the following passage from the latter: “170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co.).” application of this principle is that the aggrieved person JUDGMENT ould get that sum of money, which would put him in the same sition if he had not sustained the wrong. It must necessarily sult in compensating the aggrieved person for the financial ss suffered due to the event, the pain and suffering undergone d the liability that he/she would have to incur due to the sability caused by the event. 15

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st Medical Expenses<br>. It is, therefore, necessary to consider the loss which<br>aranya and her parents had to suffer and also to make a<br>itable provision for Sharanya’s future.<br>. The appellant - V. Krishnakumar, Sharanya’s father is<br>e sole earning member of a middle class family. His wife is<br>id to be a qualified accountant, who had to sacrifice her<br>reer to attend to the constant needs of Sharanya. Sharanya’s<br>eatment and the litigation that ensued for almost two decades<br>s been very burdensome on account of the prolonged<br>ysical, mental and financial hardships, which her parents had<br>undergo. It appears that the total expenditure incurred by<br>e appellant from the date of the final verdict of the NCDRC<br>7.5.2009) until December, 2013 is Rs.8,13,240/-. The<br>oresaid amJounUt isD takGen MfroEm tNhe uTncontroverted statement of<br>penditure submitted by the appellant. The appellant has<br>ated that he had incurred the following expenditure for<br>aranya’s treatment, for which there is no effective counter, til<br>cember, 2013:
Medical Am<br>Expenses	ount	Supporting<br>Document
a)Till December 28<br>2003	,63,771/-	Exhibit P1-P4
b)January 2004- 2,5	7,600/-	Annexure A-8
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October 2007
c)27.5.2009 to 8,1<br>December 2013	3,240/-	I.A. No.2 of 2014 in<br>Civil Appeal No. 8065<br>of 2009
d)January 2014 – 2,0<br>March 2015	3,310/-	Based on I.A. No.2 of<br>2014 in Civil Appeal<br>No. 8065 of 2009
Total (a)+(b)+(c) 41<br>+(d)	,37,921/-
. Since there is no reason to assume that there has been<br>y change in the expenditure, we have calculated the<br>penditure from January 2014 to March 2015 at the same rate<br>the preceding period. In addition, we also deem it fit to<br>ard a sum of Rs. 1,50,000/- in lieu of the financial hardship<br>dergone particularly by Sharanya’s mother, who became her<br>imary caregiver and was thus prevented from pursuing her<br>n career. In Spring Meadows Hospital and Another v. Harjol<br>luwalia [1998 4 SCC 39] this court acknowledged the<br>JUDGMENT<br>portance of granting compensation to the parents of a victim<br>medical negligence in lieu of their acute mental agony and<br>e lifelong care and attention they would have to give to the<br>ild. This being so, the financial hardship faced by the parents,<br>terms of lost wages and time must also be recognized. Thus,<br>e above expenditure must be allowed.<br>17

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. We accordingly direct that the above amount i.e. .42,87,921/- shall be paid by the Respondent Nos.1 to 4. In dition, interest at the rate of 6% p.a. shall be paid to the pellant from the date of filing of the petition before the CDRC till the date of payment. ture Medical Expenses . Going by the uncontroverted statement of expenditure r the period from the final verdict of the NCDRC to December, 13, the monthly expenditure is stated to be Rs. 13,554/-, sulting in an annual expenditure of Rs. 1,62,648/-. Having rused the various heads of expenditure very carefully, we serve that the medical costs for Sharanya’s treatment will not main static, but are likely to rise substantially in the future ars. Sharanya’s present age is about 18 ½ years. If her life pectancy is taken to be about 70 years, for the next 51 years, JUDGMENT e amount of expenditure, at the same rate will work out to Rs. ,95,048/-. It is therefore imperative that we account for lation to ensure that the present value of compensation arded for future medical costs is not unduly diluted, for no ult of the victim of negligence. The impact of inflation affects all. The value of today’s rupee should be determined in the ture. For instance, a sum of Rs. 100 today, in fifteen years, 18

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ven a modest 3% inflation rate, would be worth only .64.13. In Wells v. Wells3 the House of Lords observed that e purpose of awarding a lump sum for damages for the costs future care and loss of future earnings was to put the plaintiff the same financial position as if the injury had not occurred, d consequently the courts had the difficult task of ensuring at the award maintained its value in real terms, despite the fect of inflation. pportioning For Inflation . Inflation over time certainly erodes the value of money. e rate of inflation (Wholesale Price Index-Annual Variation) in dia presently is 2 percent4 as per the Reserve Bank of India. e average inflationary rate between 1990-91 and 2014-15 is 76 percent as per data from the RBI. In the present case we e of the view that this inflationary principle must be adopted JUDGMENT a conservative rate of 1 percent per annum to keep in mind ctuations over the next 51 years. e formula to compute the required future amount is lculated using the standard future value formula:- FV = PV x (1+r)n PV = Present Value r = rate of return 3 [1999] 1 A.C. 345. 4 Handbook of Statistics, Reserve Bank of India 19

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n = time period cordingly, the amount arrived at with an annual inflation rate 1 percent over 51 years is Rs.1,37,78,722.90 rounded to .1,38,00,000/-. mparative law . This Court has referred to case law from a number of her major common law jurisdictions on the question of counting for inflation in the computation of awards in medical gligence cases. It is unnecessary to discuss it in detail. It is fficient to note that the principle of apportioning for lationary fluctuations in the final lump sum award for mages has been upheld and applied in numerous cases rtaining to medical negligence. In the United States of merica, most states, as in Ireland and the United Kingdom, quire awards for future medical costs to be reduced to their JUDGMENT esent value so that the damages can be awarded in the form a one-time lump sum. The leading case in the United States, hich acknowledges the impact of inflation while calculating mages for medical negligence was Jones & Laughlin Steel rporation v. Pfeifer5, wherein that court recognized the opriety of taking into account the factors of present value and lation in damage awards. Similarly, in O'Shea v Riverway 5 (1983) 462 US 523 20

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wing Co.6, Posner J., acknowledged the problem of personal ury victims being severely undercompensated as a result of rsistently high inflation. Taylor v. O’ Connor7, Lord Reid accepted the importance of portioning for inflation: “It will be observed that I have more than once taken note of present day conditions - in particular rising prices, rising remuneration and high rates of interest. I am well aware that there is a school of thought which holds that the law should refuse to have any regard to inflation but that calculations should be based on stable prices, steady or slowly increasing rates of remuneration and low rates of interest. That must, I think, be based either on an expectation of an early return to a period of stability or on a nostalgic reluctance to recognise change. It appears to me that some people fear that inflation will get worse, some think that it will go on much as at present, some hope that it will be slowed down, but comparatively few believe that a return to the old financial stability is likely in the foreseeable future. To take any account of future inflation will no doubt cause complications and make estimates JUDGMENT even more uncertain. No doubt we should not assume the worst but it would, I think, be quite unrealistic to refuse to take it into account at all.” the same case Lord Morris of Borth-y-Gest also upheld the inciple of taking into account future uncertainties. He served: “It is to be remembered that the sum which is awarded will be a once-for-all or final amount which 6 (1982) 677 F.2d 1194, at 1199 (7th Cir) 7 [1971] A.C. 115 21

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the widow must deploy so that to the extent reasonably possible she gets the equivalent of what she has lost. A learned judge cannot be expected to prophesy as to future monetary trends or rates of interest but he need not be unmindful of matters which are common knowledge, such as the uncertainties as to future rates of interest and future levels of taxation. Taking a reasonable and realistic and common-sense view of all aspects of the matter he must try to fix a figure which is neither unfair to the recipient nor to the one who has to pay. A learned judge might well take the view that a recipient would be ill-advised if he entirely ignored all inflationary trends and if he applied the entire sum awarded to him in the purchase of an annuity which over a period of years would give him a fixed and predetermined sum without any provision which protected him against inflationary trends if they developed.” ore recently the Judicial Committee of the UK Privy Council in mon v. Helmot8 has unequivocally acknowledged the principle, at the lump sum awarded in medical negligence cases should adjusted so as to reflect the predicted rate of inflation. . Accordingly, we direct that the said amount i.e. JUDGMENT .1,38,00,000/- shall be paid, in the form of a Fixed Deposit, the name of Sharanya. We are informed that the said amount ould yield an approximate annual interest of Rs. 12,00,000/-. . We find from the impugned order of the NCDRC that the mpensation awarded by that Forum is directed to be paid only Respondent Nos. 1 and 3 i.e. the State of Tamil Nadu and Dr. Gopaul, Neo-pediatrician, Government Hospital for Women & 8 [2012] UKPC 5 22

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ildren, Egmore, Chennai. No reason has been assigned by e Forum for relieving Respondent Nos.2 and 4. Dr. raiswami, Neo Natology Unit, Government Hospital for omen & Children, Egmore, Chennai, who also treated aranya during the course of his visits to the house of the pellant. . It is settled law that the hospital is vicariously liable for e acts of its doctors vide Savita Garg vs. National Heart stitute, (2004) 8 SCC 56, also followed in Balram Prasad’s se (supra). Similarly in Achutrao Haribhau Khodwa v. State Maharashtra, (1996) 2 SCC 634 this court unequivocally held at the state would be vicariously liable for the damages which ay become payable on account of negligence of its doctors or her employees. By the same measure, it is not possible to solve Respondent No. 1, the State of Tamil Nadu, which JUDGMENT tablishes and administers such hospitals through its partment of Health, from its liability. 23

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pportionment of Liability . In the circumstances, we consider it appropriate to portion the liability of Rs. 1,38,00,000/- among the spondents, as follows: Rs. 1,30,00,000/- shall be paid by Respondent Nos. and 2 jointly and severally i.e. The State of Tamil Nadu and e Director, Government Hospital for Women & Children, more, Chennai; and Rs. 8,00,000/- shall be paid by Respondent Nos. 3 d 4 equally i.e. Rs. 4,00,000/- by Dr. S. Gopaul, Neo- diatrician, Government Hospital for Women & Children, more, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e. . Duraisamy, Neo Natology Unit, Government Hospital for omen & Children, Egmore, Chennai. e above mentioned amount of Rs. 1,38,00,000/- shall be paid JUDGMENT Respondent Nos. 1 to 4 within three months from the date of is Judgment otherwise the said sum would attract a penal terest at the rate of 18% p.a. . Further, we direct that the amount of Rs. 42,87,921/- in u of past medical expenses, shall be apportioned in the llowing manner: 24

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a) Rs da b) Rs p. 30 an sa 3 th d NE JU

Respondent Nos. 1 and 2 are directed to pay . 40,00,000/- jointly, alongwith interest @ 6% p.a. from the te of filing before the NCDRC; and Respondent Nos. 3 and 4 are directed to pay . 2,87,921/- in equal proportion, alongwith interest @ 6% a. from the date of filing before the NCDRC. . In the event the Respondent Nos. 1 and 3 have made y payment in accordance with the award of the NCDRC, the me may be adjusted. 1. Accordingly, Civil Appeal No. 8065 of 2009 is allowed in e above terms and Civil Appeal No. 5402 of 2010 is ismissed. No costs. ..………………………….…..........…..J. [JAGDISH SINGH KHEHAR] JUDGMENT …...................................………J. [S.A. BOBDE] W DELHI, LY 1, 2015 25

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