Team Code 35 Petitioners Memorial For Lime 2017.doc

TEAM CODE-35

LLOYD INTERNAL MOOT ELIMINATION (LIME – L3) 2017 MOOT COURT COMPETITION IN THE HON’BLE SUPREME COURT OF INDIA

KUNDUR GROUP OF HOSPITALS PRIVATE LIMITED

……APPELLANT

V. Mr MANINDER

…….RESPONDENT SPECIAL LEAVE APPEAL NO. ……/2017, …….2017 CLUBBED WITH

Mr MANINDER

…….APPELLANT V.

KUNDUR GROUP OF HOSPITALS PRIVATE LIMITED

……RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER TABLE OF CONTENTS 1

List of abbreviations………………………………………………………………………… 3 Index of Authorities ................................................................................................................ 4 Statement of Jurisdiction ......................................................................................................... 6 Statement of Facts .................................................................................................................... 7 Statement of Issues…………………………………………………………………………….9 Summery of Arguments ............................................................................................................10 Arguments .................................................................................................................................12 Prayer………………………………………………………………………………………......22

2

LIST OF ABBREVATIONS ABBREVIATION

DEFINITION

Art AIR H.C. i.e. ILR IJCL MLJ NPR PIL S.C. UK V. CIC

Article All India Reporter High Court Id est (That is) Indian Law Reporter Indian Journal of Constitutional Law Madras Law Review National Population Register Public Interest Litigation Supreme Court United Kingdom Versus Central Information Commission

INDEX OF AUTHORITIES

CASES CITATIONS 1.

Ms. Nisha Priya Bhatia Vs Institute of Human Behaviour and Applied Science Govt of National Capital Territory of Delhi

2.

Rajappan Vs. Sree Chitra Tirunal Institute for Medical Science and Technology [ILR2004(2)Kerala150]

3.

Kanaiyalal Ramanlal Trivedi v Dr. Satyanarayan Vishwakarma 1996; 3 CPR 24 (Guj); I (1997) CPJ 332 (Guj); 1998 CCJ 690 (Guj) 3

4.

S.A.Quereshi v Padode memorial Hospital and Research Centre II 2000. CPJ 463 (Bhopal)

5.

Dr. Shyam Kumar v Rameshbhai, Harmanbhai Kachiya 2002;1 CPR 320, I (2006) CPJ 16 (NC)

6.

Force v. M Ganeswara Rao 1998;3 CPR 251; 1998 (1) CPJ 413 (AP SCDRC)

7.

V P Shanta v. Cosmopolitan Hospitals (P) Ltd 1997;1 CPR 377 (Kerala SCDRC)

8.

Devendra Kantilal Nayak v Dr. Kalyaniben Dhruv Shah 1996;3 CPR 56; I (1997) CPJ 103; 1998 CCJ 544 (Guj)

9.

Meenakshi Mission Hospital and Research Centre v. Samuraj and Anr., I(2005) CPJ (NC)

10.

Dr. Tokugha Yeptomi V Appollo Hospital Enterprises Ltd and Anr III 1998 CPJ 132 (SC)

11.

Raghunath Raheja v Maharashtra Medical Council, AIR 1996 Bom 198

12.

Laxman Balkrishan Joshi vs. TrimbakBapuGodbole

13. CIVIL APPEAL No.692 of 2012 Advanced Medicare & Research Institute Ltd. Vs. Dr. Kunal Saha & Ors

STATUTES AND REPORTS 1.

The Constitution of India

2.

Right to Information Act, 2005

3.

Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002

4.

The Consumer Protection Act, 1986

5.

International Covenant on Civil and Political Rights.

6.

UK's Data Protection Act 1998

4

BOOKS AND JOURNALS 1.

V.N. Shukla, Constitution of India, 12th Edition 2016

2.

M P Jain, Indian Constitutional Law, 7th Edition 2016

3.

Ratanlal & Dhirajlal, The Law of Torts, 27th Edition 2016

4.

Dr. R.K. Bangia, Law of Torts, 23rd edition, 2016

5.

P Ramnath Aiyar, The Major Law Lexicon, 4th Edition, 2010

6.

Clinical Anesthesiology,G Edward Morgan Jr., Maged S Mikhail Chapter 26,

DYNAMIC/OPEN SOURCE WEB LINKS 1.

https://www.colleran.com/legal-blog/what-happens-when-patient-is-given-too-much-

anesthesia/ 2.

http://accessanesthesiology.mhmedical.com/book.aspx?bookid=353

3.

https://brain-surgery.com/what-are-the-side-effects-of-brain-surgery/ STATEMENT OF JURISDICTION

1.

In the present matter, one Special Leave Petition and one Appeal have been clubbed

together. 2.

Mr. Maninder. The Petitioner in the case has filed an Appeal while Kundoor Group of

Hospitals Pvt Ltd (KGHPL) have filed Special Leave Petition under Article 136 of the Indian Constitution and and hence both have approached the Hon’ble Supreme Court.

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3.

The present memorandum sets forth the facts, contentions, and arguments in the present

case. The parties shall accept any judgements of the court as final and binding upon them, and shall execute in its entirety and in good faith.

STATEMENT OF FACTS

1.

Mr Maninder, was a student , aged 23 years, resident of Mewala district of Kundoor

State. 2.

Mr. Maninder was suffering from severe headache from the last few weeks for which he

initially went for conventional free medication, from which he did not get relief.

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3.

Being distressed, Mr. Maninder subsequently approached Kundoor Group of Hospitals

Pvt Ltd, (KGGHPL hereinafter referred as Respondent, where Dr. Krishna suggested several medical. 4.

Based on the report of the tests conducted on Mr. Maninder, he was advised to undergo

neurosurgery. Mr Maninder was further informed about the nature of problem and course of medical treatment. 5.

Mr. Maninder was informed about the expected expenditure of Rs 1,70,000/-(one lakh

and seventy thousand only) to which he and his relatives later on consented. The fees was sought in advance by KGHPL prior to the surgery. 6.

The Operation was conducted on 11.04.14 . Mr. Maninder regained consciousness on

11.04.14 after the operation. He expressed heavy discomfort and found that the lower part of the body was paralyzed. 7.

Authorities of KGHPL were informed on the same day about Mr Maninder’s condition,

who assured that the condition would improve in few days. 8.

Not finding that the condition of Mr Maninder is improving even after few days, the

relatives were force to shift Mr Maninder to Government Hospital who sought all medical and treatment records of the petitioner. 9.

The Respondent-KGHPL refused to part with medical documents in the critical time.

subsequently the Government Hospital conducted various tests and diagnosed that the paralysis of the lower part of the Maninder’s body was due to the administration of excessive anesthesia during the surgery conducted in KGHPL. 10.

Mr. Maninder was discharged after few weeks from Government Hospital and was

informed that he would not be normal after in the near future.

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11.

Mr Maninder filed the Petition in National Commission for seeking compensation of Rs

1.5 crore alleging medical negligence by KGHPL which had caused him undue hardship, mental agony, and irreparable loss restricting him to wheel chair. The National Commission gave him relief according to multiplier method. 12.

Additionally, application under RTI Act was filed by the Petitioner seeking copies of

medical records and the case sheet, which were refused by KGHPL. 20.

Owing to refusal of State Information Commission to grant request of Mr. Maninder’s

RTI application, Petitioner filed a writ petition in Kundoor HC, where KGHPL was ordered to furnish information to Mr Maninder. 22.

The Respondent-KGHPL had filed Special Leave petition in Supreme Court against the

order of High Court, While Mr. Maninder also filed an appeal against the order of National Commission seeking more compensation. 23.

Matters being related, the Hon’able Supreme Court has decided to club the two appeals.

ISSUES PRESENT BEFORE THE HON’ABLE SUPREME COURT

1.

Whether the Petitioner was entitled to seek his personal medical documents and

diagnostic reports from the Respondent- KGHPL

2.

Whether there was Medical Negligence on behalf of the Respondent.

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3.

Whether the meagre compensation awarded by the National Consumer Commission is

highly disproportionate to the injuries and mental agony suffered by the Petitioner and if Yes, Whether the Petitioner is entitled to the relief of Rs 1.5 Cr compensation on the ground of severe disability suffered by the Claimant owing to the medical negligence of KGHPL.

SUMMARY OF ARGUMENTS

1.

The Petitioner is a Citizen of India and thus has an in-defeasible right to obtain

information pertaining to his own treatment in terms of right to have his medical records, which is rooted in articles 19 and 21 of the constitution of India, and Respondent-hospital authorities,

9

have a duty to provide the same under the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.

2.

The present Special Leave Petition filed by the Petitioner against the judgement of

Hon`ble High Court of Delhi is devoid of merits and is thus liable to be dismissed forthwith. The Hon`ble High Court of Kundoor has interpreted the provisions and intention article 19 and 21 of the constitution and has allowed the writ of the Respondent under article 226 thereby directing the Petitioner to supply the information of personal medical reports.

3.

The Petitioner wanted to avail the services of the Hospital and thus had paid the fee and

other charge to the Hospital concerned on account of his personal treatment and was thus well covered under the provisions of of Section 2(d) of Consumer Protection Act 1986.

4.

It is a matter of fact by the tests conducted in the Government Hospital that the paralysis

of the lower part of the Petitioner`s body was due to the administration of excessive anesthesia during the operation conducted in the Hospital with the further diagnose that the Petitioner would not be normal in the near future, therefore, the Respondent Doctor had committed an act of gross negligence in the treatment of the Petitioner

5.

The Patient in the present case has suffered severe disability owing to the medical

negligence by the Hospital/Doctor and it is settled by law that the Medical negligence by doctors and hospitals must be held liable for the deficiency in services, as provided in the consumer laws in India and the victim must be compensated proportionately to the sufferings faced by the

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victim. That the whole family was dependent upon the victim who was a 23 year old boy and likely to be the bread earner of the family and after the present medical negligence of the Doctor/Hospital, the whole family has been put to irreparable losses, financial crisis and severe mental agony and thus the victim is eligible and entitled to an adequate compensation valued at Rs.1.5 Crore which is completely justified in the given facts and circumstances of the case.

6.

The meagre amount of compensation awarded by the national Commission is highly

disproportionate to the grave sufferings faced by the Petitioner. The method and basis of computation of compensation applied by the national commission was highly incorrect and without appreciating the relevant facts of the sufferings of the victim and the family circumstances of the victim`s family. The petitioners family has been put to undue hardship, mental agony, and irreparable losses. The quantum of the compensation, thus, need to be calculated by keeping all the relevant facts in the mind which would quantify to Rs.1.5 Crore in the given facts and circumstances of the case

DETAILED ARGUMENTS

1.

Whether the Petitioner was entitled to seek his personal medical documents and

diagnostic reports from the respondent. (a)

The Petitioner is a Citizen of India and thus has an in-defeasible right to obtain

information pertaining to his own treatment in terms of the provision in articles 19 and 21 of constitution of India.

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(b)

Article 19(1) and 19(2) of the International Covenant on Civil and Political

Rights declares that every one shall have the right to hold opinions without interference, and every one shall have the right to freedom of expression, and this right shall include freedom to seek, receive and impart information of ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. It needs to be noted that India is a signatory to the aforesaid convention..... Right to hold opinions and to receive information and ideas without interference embodied in the Covenant is concomitant to the right to freedom of speech and expression which includes right to free flow of information. Since ancient times we have allowed noble thoughts to come from all sides [Rig Veda]. This has helped in forming, building, strengthening, nurturing, replenishing and recreating opinions and beliefs of an individual...... Reading Article 19(1)(a) along with the Covenant, it must be recognised that right to freedom of speech and expression includes freedom to seek, receive and impart information of ideas. It seems to us that freedom to hold opinions, ideas, beliefs

and

freedom

of

thought,

etc.,

which

is

also

enshrined

in

Preamble to the Constitution, is part of freedom of speech and expression. (c)

The Medical Council of India has imposed an obligation on Hospitals as per the

regulations notified on 11th March 2002, amended up to December 2010 to maintain the medical record and provide patient access to it. These regulations were made in exercise of the powers conferred under

section 20A read with section 33(m)

of

the

Indian Medical Council Act, 1956 (102 of 1956), by the Medical Council of India, with the previous approval of the Central Government, relating to the Professional Conduct, Etiquette and Ethics for

registered medical practitioners, namely: Maintenance of

Medical Records: 1.3.1. Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of three years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3.

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1.3.2. If

any

request

is

made

for

medical

records

either

by

the

patients/authorised attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours. (d)

Hon'ble Kerala High Court recognizing the above principle in Rajappan Vs. Sree

Chitra Tirunal Institute for Medical Science and Technology1 had observed that : ".....Appendix

3

referred

to

in

regulations

1.3.1

provides

for

information, among other things, pertaining to diagnosis, investigations advised with reports, diagnosis after investigation, and advice. Therefore it is obvious from the appendix that what is to be given is the full details about the patient, namely, the findings pertaining to the deceased. That is the diagnosis and the periodical advice for treatment. As and when diagnosis is made the treatment will be advised by the doctor to the nursing staff in the case sheet

itself. Therefore the case sheet will show the

progressive testing, diagnosis and treatment

given to the patient. The details to be

furnished in Appendix 3 are of comprehensive in nature and should contain the diagnosis and treatment given to the patient during the period,

the

patient

was

under

treatment. Regulation 1.3.1 has to be read with regulation 1.3.2 which makes it mandatory that any patient requesting for medical records should be furnished copies of "documents" within 72 hours from the date of demand. In other words, the patient's right to receive documents pertaining to

his/her treatment is recognized by the Regulations.

The documents referred to in Regulation 1.3.2 necessarily have to be the entire case sheet maintained in the

hospital which contains the result of diagnosis and

treatment administered, the summary of which is provided in Appendix 3. Therefore the petitioner is entitled to photocopies of the entire case sheet and the respondents cannot decline to give the same by stating that the details are available in Appendix 3 furnished, which they are willing to furnish." Kerala High Court further observed that:

1

in Rajappan Vs. Sree Chitra Tirunal Institute for Medical Science and Technology [ILR2004(2)Kerala150]

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It is also to be noticed that Regulations do not provide any immunity for any medical record to be retained by any medical practitioner of the hospital from being given to the patient. On the other hand it is expressly provided that a patient should be given medical records in Appendix 3 with supporting documents. Therefore in the absence of any immunity either under the Regulations or under any other law, the respondent Hospital is

bound

to

give

photocopies

of

the

entire

documents

of

the

patient.

Standing counsel for the Respondent Hospital submitted that the documents once furnished will be used as evidence against the hospital and against the doctors concerned. I do not think this apprehension will justify for claiming immunity against furnishing the documents. If proper service was rendered in the course of treatment, I see no reason why the hospital, or staff, or doctors should be apprehensive of any litigation. A patient or victim's relative is entitled to know whether proper medical care was rendered to the patient entrusted with the hospital, which will be revealed from case sheet and medical records. There should be absolute transparency with regard to the treatment of a patient and a patient or victim's relative is entitled to get copies of medical records. This is recognized by the Medical Council Regulations and therefore petitioner is entitled to have copies of the entire medical records of his daughter which should be furnished in full. (e)

Case Law as to Right of information of Patients : (i)

There are several decisions by the High Courts and Consumer

Commissions establishing the right of patient to information and duty of the Hospitals to provide the same. In Kanaiyalal Ramanlal Trivedi v Dr. Satyanarayan Vishwakarma2, the hospital and doctor were held guilty of deficiency in service as case records were not produced before the court to refute the allegation of a lack of standard care. (ii)

If hospital takes up a plea of record destroyed, it was held that it could be

a case of negligence. In S.A.Quereshi v Padode memorial Hospital and 2

Kanaiyalal Ramanlal Trivedi v Dr. Satyanarayan Vishwakarma 1996; 3 CPR (Guj); I (1997) CPJ 332 (Guj); 1998 CCJ 690 (Guj)

14

24

Research Centre 3 it was held that the plea of destroying the case sheet as per the general practice of the hospitals appeared to the court as an attempt to suppress certain facts that are likely to be revealed from the case sheet.

The

opposite party was found negligent as he should have retained the case records until the disposal of the complaint.

Explaining the consequences of denial of

medical record, it was held that an adverse inference could be drawn from that. In case of Dr. Shyam Kumar v Rameshbhai, Harmanbhai Kachiya 4. The National Commission said

that

not

producing

medical

records

to

the

patient

prevents the complainant from seeking an expert opinion and it is the duty of the person in possession of the medical records to produce it in the court and adverse inference could be drawn for not producing the records. (iii)

On the point of negligence AP state commission said in case

of Force v. M Ganeswara Rao (1998)

5

that there was negligence as the

case sheet did not contain a proper history, history of prior treatment and investigations, and even the consent papers were missing. In V P Shanta v. Cosmopolitan Hospitals (P) Ltd6 the State Commission held that failure to deliver Xray films is deficient service. The patient and his attendants were deprived of their right to be informed of the nature of injury sustained. (iv)

In Devendra Kantilal Nayak v Dr. Kalyaniben Dhruv Shah 1996 7 the State

Commission disbelieved the evidence of the surgeon because only photocopies were produced to substantiate the evidence without any plausible explanation regarding the absence of the original. National Commission in case of Meenakshi Mission Hospital and Research Centre v. Samuraj and Anr., I(2005) 8 held 3

S.A.Quereshi v Padode memorial Hospital and Research Centre II 2000. CPJ 463 (Bhopal) 4 Dr. Shyam Kumar v Rameshbhai, Harmanbhai Kachiya 2002;1 CPR 320, I (2006) CPJ 16 (NC) 5 Force v. M Ganeswara Rao 1998;3 CPR 251; 1998 (1) CPJ 413 (AP SCDRC) 6 V P Shanta v. Cosmopolitan Hospitals (P) Ltd 1997;1 CPR 377 (Kerala SCDRC) 7 ) In Devendra Kantilal Nayak v Dr. Kalyaniben Dhruv Shah 1996;3 CPR 56; I (1997) CPJ 103; 1998 CCJ 544 (Guj) 8 Meenakshi Mission Hospital and Research Centre v. Samuraj and Anr., I(2005) CPJ (NC)

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that the hospital was guilty of negligence on the ground that the name

of

the

anesthetist

was

not

mentioned

in

the operation notes

though anesthesia was administered by two anesthetists. There were two progress cards about the same patient on two separate papers that were produced in court. In Dr. Tokugha Yeptomi V Appollo Hospital Enterprises Ltd and Anr III 1998 9it was held that not maintaining confidentiality of patient information could be an issue of medical negligence. In this case the HIV status of a patient was made known to others without the consent of the patient. These decisions establish the right of the patient and obligation of hospitals or medical institutions to give medical records. (v)

In Raghunath Raheja v Maharashtra Medical Council 10, Bombay High

Court upheld the right of patient to medical record very emphatically. Judges M Shah and A Savanth stated:"We are of the view that when a patient or his near relative demands from the Hospital or the doctor the copies of the case papers, it is necessary for the Hospital authorities and the doctors concerned to furnish copies of such case papers to the patient or his near relative. In our view, it would be necessary for the Medical

Council

to

ensure

that necessary directions are given to all the

Hospitals and the doctors calling upon then to furnish the copies of the case papers and all the relevant documents pertaining to the patient hospitals

and

the

doctors

may

be

justified,

in

concerned.

The

demanding necessary

charges for supplying the copies of such documents to the patient or the near relative. We, therefore, direct the first respondent Maharashtra Medical Council to issue necessary circulars in this behalf to all the hospitals and doctors in the State of Maharashtra. We do not think that thet hospitals or the doctors can claim any secrecy! or any confidentiality in the matter of copies of the case 9

Dr. Tokugha Yeptomi V Appollo Hospital Enterprises Ltd Anr III 1998 CPJ 132 (SC) 10 Raghunath Raheja v Maharashtra Medical Council, AIR 1996 Bom 198

16

and

papers relating to the patient. These must demand,

subject

to

payment

of

be usual

made

available

charges.

to

him

If necessary,

on the

Medical Council may issue a pressnote in this behalf giving it wide publicity in all the media." Transformation of ethical norm into right to medical records (f).

Medical ethics internationally is governed by the principle of autonomy, which

recognizes the rights of individuals to selfdetermination. Autonomy is rooted in society's respect for individuals' ability to make informed decisions about personal matters. It is an important social value which has shifted to define medical quality in terms of outcomes that

are

important

to

the

patient

rather

than

medical

professionals.

The

respect for autonomy is the basis for informed consent and advance directives. (g).

The Patients are capable of electing to make their own medical decisions, or can

delegate decisionmaking authority to another party. Only if the patient is incapacitated, laws around the world designate different processes for obtaining informed consent, typically by having a person appointed by the patient or their next of kin make decisions for them. Thus the value of informed consent is closely related to the values of autonomy and truth telling. (h).

The

reason

for

"ethical

conflicts"

in

medical

ethics

is

lack

of

communication. Communication breakdowns between patients and their healthcare team, between family members, or between members of the medical community, can all lead to disagreements and strong feelings. These breakdowns should be remedied, and many

apparently insurmountable "ethics" problems can be solved with open lines of

communication. The Patient has to be communicated all the information about his or her medical treatment, which is now being recognized as a right guaranteed by various statutes rather than leaving it at the level of a mere ethical norm. (i)

The UK's Data Protection Act 1998 gives an individual a right of access to

17

information held about him. The Access to Health Records Act 1990 gave access to a patient's medical records in noncomputerized form, while Data Protection Act 1998 Act gives access to both electronic and nonelectronic records. The 1990 Act is still relevant to be in force relating to access to a patient's medical records after his death. (j)

In Ms. Nisha Priya Bhatia vs Government Of NCT Of Delhi 11 on 23 July, 2014

para 29 of the decision following was held:…………….. The Commission is of the view that the patient's right to obtain his medical record is not only protected under RTI Act, but also under the regulation of Indian Medical Council, which is based on world medical ethics, and also as a 'consumer' under Consumer Protection Act, 1986 as explained above. It is the duty of the doctor/Hospital to develop a mechanism whereby the copy of patients medical record from his joining to his

discharge be provided to him or his legal

representative even without him asking as a matter of routine procedure at the time of discharge

as

directed

by

Bombay

High

Court

in

above

referred

case………………………….. 2.

Whether the claim of Medical Negligence is factually correct (a)

The Respondent had demonstrated gross negligence in carrying out treatment of

the Petitioner as the Petitioner was administered with the excess amount of Anaesthesia during the course of operation which led to the paralysis of the lower part of the petitioner`s body and thus it is established and proven fact that the Respondent-Hospital authorities have acted negligently and irresponsibly and have made themselves liable to pay adequate compensation of Rs. 1.5 crore to the Petitioner herein. (b)

It is pertinent to mention that When a medical practitioner attends to his patient ,

he owes him the duty of care. A duty of care in deciding what treatment to give and a duty of care in the administration of the treatment. The Punjab and Haryana high court 11

Ms. Nisha Priya Bhatia v. Institute of Human Behaviour and Allied Sciences, GNCT 23 Jul 2014, CIC

18

observed in the case of Doctor Laxman Balkrishan Joshi vs. Trimbak Bapu Godbole that the petitioner must bring to his task a reasonable skill and knowledge and must exercise a reasonable degree of care. Neither very highest nor very low degree of care and competence judged in the light of particular circumstances of each case is what the law requires. The doctor has also to choose the quality and amount of Medicare to be provided to the patient. (c)

It is also submitted that the Respondents failed to provide the Petitioner medical

documents which were necessary for second opinion for further treatment which might have helped patient recover part of his loss suffered, thus taking away a very valuable opportunity at the right time. The act to deny medical documents necessary for further treatment was deliberate and malafide. (d)

In the light of the aforesaid, the doctor have completely failed to take due care and

diligence towards the patient and due to administration of excessive anesthesia during the operation made the Petitioner disable for his whole life and thus there arises a medical negligence on the part of the Respondent. 3.

Whether the meagre compensation awarded by the National Consumer Commission

is highly disproportionate to the injuries and mental agony suffered by the Petitioner and if Yes, Whether the Petitioner is entitled to the relief of Rs 1.5 Cr compensation on the ground of severe disability suffered by the Claimant owing to the medical negligence of KGHPL (a)

The Patient in the present case has suffered severe disability owing to the medical

negligence by the Hospital/Doctor and it is settled by law that the Medical negligence by doctors and hospitals must be held liable for the deficiency in services, as provided in the consumer laws in India and the victim must be compensated proportionately to the sufferings faced by the victim. That the victim in the present case was the young male member of 23 years and possible heir for the whole family members on whom whole family would have dependent upon. The earnings of the victim and after the present medical negligence of the Doctor/Hospital, the whole family has been put to irreparable losses, financial crisis and severe mental agony and thus the victim is eligible and entitled to an adequate compensation valued at Rs.1.5 Crore which is completely justified in the 19

given facts and circumstances of the case. (b)

9.2

This Hon`ble Court has allowed the compensation of Rupees more than

Six Crore in the case of Medical negligence in CIVIL APPEAL No.692 of 2012 Advanced Medicare & Research Institute Ltd. Vs. Dr. Kunal Saha & Ors. The relevant part of the judgement is being reproduced hereinafter:153. The Civil Appeal No. 2866/2012 filed by the claimant-Dr.Kunal Saha is also partly allowed and the finding on contributory negligence by the National Commission on the part of the claimant is set aside. The direction of the National Commission to deduct 10% of the awarded amount of compensation on account of contributory negligence is also set aside by enhancing the compensation from Rs.1,34,66,000/- to Rs.6,08,00,550/- with 6% interest per annum from the date of the complaint to the date of the payment to the claimant. (c)

The meagre amount of compensation awarded by the national Commission is

highly disproportionate to the grave sufferings faced by the Petitioner. The method and basis of computation of compensation applied by the national commission was highly incorrect and without appreciating the relevant facts of the sufferings of the victim and the family circumstances of the victim`s family. The petitioner’s family has been put to undue hardship, mental agony, and irreparable losses. The quantum of the compensation, thus, need to be calculated by keeping all the relevant facts in the mind which would quantify to Rs.1.5 crore in the given facts and circumstances of the case

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CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, IN THE LIGHT OF FACTS STATED, QUESTIONS PRESENTED, ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT IS MOST RESPECTFULLY PRAYED THAT THIS HON’BLE COURT MAY KINDLY BE GRACIOSULY PLEASED TO ADJUDGE AND DECLARE THE FOLLOWING:(a)

The Judgement of the Hon`ble High Court of Kundoor ordering Respondent to provide information and medical reports to Petitioner may please be upheld.

(b)

The compensation awarded by the Hon`ble National Consumer Forum is highly meagre and disproportionate to the gravity of the injuries suffered by the petitioner-Mr. Maninder and the same may be enhanced to Rs.1.5 Crore in the given facts and circumstances of the case.

.(c)

And to pass any such other order, discretion & judgment as this hon’ble court may deem fit in the interest of justice, equity and good conscience.

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All of which is respectfully submitted Sd/- ______________________ Place:

COUNSEL FOR THE RESPONDENT

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