A young Iamily asked the Iirm to investigate the birth oI their severely brain damaged baby.

SpeciIically, they asked us to determine the cause oI the brain damage and whether it should
have been avoided.
AIter obtaining all oI the necessary medical records Irom the obstetrician, hospital and
pediatrician (including Ietal monitoring strips, labor and delivery records and the baby's records
aIter the birth), they were evaluated, indexed and sent to several Board-CertiIied proIessors oI
obstetrics, pediatrics and neonatology. These experts were requested to provide Iormal opinions
on whether the doctors involved were negligent and caused the baby's brain damage and severe
retardation.
Our examination oI the records and the expert review revealed that the doctors were negligent
during the labor and the delivery at the hospital. During labor, the doctors used a drug called
Pitocin to artiIicially strengthen contractions and make them more IorceIul. The drug is designed
to speed the labor and delivery process but can cause stress and distress to the unborn baby.
ThereIore, the labor must be monitored very closely Ior any signs oI stress or distress. In this
case, the drug caused the baby to begin suIIering Ietal distress which was evident on the monitor
(i.e., loss oI beat-to-beat variability, bradycardia, late decelerations, etc). However, the doctors
negligently Iailed to recognize the Ietal distress and kept using the drug which caused the baby to
lose oxygen to her brain. Since the doctors negligently Iailed to stop the drug, the baby
developed a condition known as hypoxiathe ongoing loss oI oxygen to the brain causing death
oI her brain cells. In the presence oI the Ietal distress, the doctors were required to perIorm an
emergency cesarean section which would have resulted in the birth oI the baby beIore permanent
brain damage. UnIortunately, because they negligently delayed any cesarean section, the baby
suIIered massive and permanent brain damage due to a prolonged loss oI oxygen to her brain.
AIter the Iirm Iiled suit and prepared the case Ior trial, a settlement was obtained on behalI oI the
client.


4/27/2009
Maln Search

M/S Sprlng Meadows PosplLal Anr
lorums Advanced Search ulsclalmer

M/S Sprlng Meadows PosplLal Anr vs Par[ol Ahluwalla 1hrough kS Ahluwalla on 23 March
1998
ClLes 7 docs vlew All 1he Consumer roLecLlon AcL 1986 SecLlon 14 ln 1he Consumer roLecLlon AcL
1986 SecLlon 2(1)(d) ln 1he Consumer roLecLlon AcL 1986 SecLlon 2(1)(d)(ll) ln 1he Consumer
roLecLlon AcL 1986 SecLlon 2(1) ln 1he Consumer roLecLlon AcL 1986 ClLedby 33 docs vlew All
!agdlsh 8am And Crs vs SLaLe Cf Plmachal radesh And Crs on 18 !une 2007 SmL SavlLa Carg vs 1he
ulrecLor naLlonal PearL lnsLlLuLe on 12 CcLober 2004 !acob MaLhew vs SLaLe Cf un[ab Anr on 3
AugusL 2003 klshore Lal vs Chalrman Lmployees SLaLe lnsurance on 8 May 2007 SLaLe Cf Paryana
Crs vs SmL SanLra on 24 Aprll 2000

Supreme CourL of lndla
L1l1lCnL8 M/S S8lnC MLAuCWS PCSl1AL An8 vs 8LSCnuLn1 PA8!CL APLuWALlA
1P8CuCP kS APLuWALlA An8 uA1L Cl !uuCMLn1 23/03/1998

8LnCP S SACPl8 APMAu C8 A11AnAlk

AC1

PLAunC1L

!uuCMLn1 Wl1P ClvlL ALAL nC 7838 Cl 1997 ! u u C M L n 1 C8 A11AnAlk ! 1hese Lwo
appeals arlse ouL of Lhe order daLed 16Lh !une 1997 passed by Lhe naLlonal Consumer ulspuLes
8edressal Commlsslon new uelhl (herelnafLer referred Lo as Lhe Commlsslon) ln Crlglnal eLlLlon no
292 of 1994 1he PosplLal ls Lhe appellanL ln Clvll Appeal no 7708 of 1997
whlle Lhe lnsurance company ls Lhe appellanL ln Lhe oLher appeal When Lhe speclal leave appllcaLlons
ouL of whlch Lhe Lwo aforesald appeals arlse were llsLed for prellmlnary hearlng Lhe courL had lssued
noLlce llmlLed Lo Lhe award of 8s 3 lacs as compensaLlon Lo Lhe parenLs of Lhe chlld even Lhough Lhe
lnsurance company has ralsed Lhe quesLlon of lLs llablllLy Lo pay Lhe compensaLlon ln quesLlon A
ComplalnL eLlLlon was flled by mlnor Par[oL Ahluwalla Lhrough hls parenLs Mrs ParpreeL Ahluwalla and
Mr kamal[lL Slngh Ahluwalla before Lhe Commlsslon alleglng LhaL Lhe mlnor was belng LreaLed aL a
nurslng Pome ln nolda ln uecember 1993 As Lhere was no lmprovemenL ln hls healLh Lhe sald mlnor
was broughL Lo M/s Sprlng Meadows PosplLal appellanL ln Clvll Appeal no 7708 of 1997 on 24Lh of
uecember 1993 ln Lhe hosplLal Lhe paLlenL was examlned by Lhe Senlor ConsulLanL aedlaLrlclan dr
romlla 8huLanl and on Lhe advlce of Lhe sald docLor Lhe paLlenL was admlLLed as an lnpaLlenL ln Lhe
hosplLal 1he docLor made Lhe dlagnosls LhaL Lhe paLlenL was sufferlng from Lyphold and lnLlmaLed Lhe
parenLs LhaL medlclnes have been prescrlbed for Lhe LreaLmenL of Lhe Lyphold fever Cn Lhe 30Lh of
uecember 1993 aL 900 am Mlss 8lna MaLLhew nurse of Lhe hosplLal asked Lhe faLher of Lhe mlnor
paLlenL Lo geL Lhe ln[ecLlon ln Larlago Lo be admlnlsLered lnLravenously Lo Lhe mlnor paLlenL 1he faLher
of Lhe mlnor chlld purchased Lhe medlclne whlch was wrlLLen down by Lhe nurse and gave lL
whereupon Lhe nurse ln[ecLed Lhe same Lo Lhe mlnor paLlenL 1he paLlenL lmmedlaLely on belng
ln[ecLed collapsed whlle sLlll ln Lhe lap of hls moLher lL was furLher alleged LhaL before admlnlsLerlng Lhe
ln[ecLlon Lhe nurse had noL made any senslLlve LesL Lo flnd ouL wheLher Lhere would be any adverse
reacLlon on Lhe paLlenL Seelng Lhe mlnor chlld collapse Lhe parenLs lmmedlaLely called for help and Lhe
8esldenL uocLor ur uhanan[ay aLLended Lhe paLlenL Sald ur uhanan[ay Lold Lhe parenLs LhaL Lhe chlld
had suffered a cardlac arresL and Lhen by manually pumplng Lhe chesL Lhe uocLor aLLempLed Lo revlve
Lhe hearLbeaL 1he hosplLal auLhorlLles Lhen summoned an AnaesLheLlsL ur Anll MehLa who arrlved
wlLhln half an hour and Lhen sLarLed a procedure of manual resplraLlon by applylng Lhe oxygen cyllnder
and manual 8esplraLor ln Lhe meanLlme ur romlla 8huLanl also reached Lhe hosplLal and Lhe mlnor
chlld was kepL on a devlce called manual 8esplraLor 1hough Lhe chlld was kepL allve on Lhe manual
venLllaLor buL Lhe condlLlon of Lhe chlld dld noL show any lmprovemenL ln course of LreaLmenL as Lhe
mlnors plaLeleLs counL fell a blood Lransfuslon was glven buL sLlll no lmprovemenL could be seen ur
mehLa Lherefore lnLlmaLed Lhe parenLs LhaL Lhe hosplLal does noL have Lhe necessary faclllLles Lo
manage Lhe mlnor chlld and Lhe should be shlfLed Lo an lnLenslve Care unlL equlpped wlLh an AuLo
8esplraLor Cn Lhe advlce of ur MehLa Lhe parenLs broughL Lhe chlld and admlLLed hlm ln Lhe aedlaLrlc
lnLenslve Care unlL of Lhe All lndla lnsLlLuLe of Medlcal
Sclence on Lhe 3rd !anuary 1994 ln Lhe lnsLlLuLe Lhe docLors examlned Lhe mlnor chlld Lhoroughly and
lnformed Lhe parenLs LhaL Lhe chlld ls crlLlcal and even lf Lhe would survlve he would llve only ln a
vegeLaLlve sLaLe as lrreparable damage had been caused Lo hls braln and Lhere was no chance of revlval
of Lhe damaged parLs 1he mlnor was Lhen kepL ln Lhe aedlaLrlc lnLenslve Care unlL of Lhe AllMS Llll
24Lh of !anuary 1994 and was LhereafLer dlscharged afLer lnformlng Lhe parenLs LhaL no useful purpose
would be served by keeplng Lhe mlnor chlld Lhere ur Anll MehLa as well as ur naresh !une[a Chlef
AdmlnlsLraLor of Sprlng Meadows PosplLal however offered Lo admlL Lhe mlnor chlld aL Lhelr hosplLal
and Lo do whaLever was posslble Lo sLablllse Lhe condlLlon of Lhe chlld and accordlngly Lhe mlnor chlld
was agaln admlLLed Lo Lhe hosplLal 1he complalnanL alleged LhaL Lhe chlld on accounL of negllgence and
deflclency on Lhe parL of Lhe hosplLal auLhorlLles suffered lrreparable damages and could survlve only as
a mere vegeLaLlve and accordlngly clalmed compensaLlon Lo Lhe Lune of 8s 28 lacs Cn behalf of Lhe
appellanLs ob[ecLlon was flled before Lhe commlsslon Laklng Lhe sLand LhaL no paymenL havlng been
made lL cannoL be sald LhaL Lhe servlces of Lhe hosplLal havlng been avalled for conslderaLlon and as
such Lhe complalnanL ls noL a consumer wlLhln Lhe deflnlLlon of Consumer ln Lhe Consumer roLecLlon
AcL 1986 lL was furLher sLaLed LhaL Lhere has been no deflclency or negllgence ln servlce on Lhe parL of
Lhe docLors of Lhe hosplLal and Lhe negllgence lf any ls on Lhe parL of Lhe nurse who mlsread Lhe
prescrlpLlon lL was also conLended LhaL lmmedlaLe sLeps have been Laken by ur uhanan[ay as Well as
dr MehLa and Lhe hosplLal auLhorlLles had summoned Lhree speclallsLs Lo examlne Lhe paLlenL lL was
furLher sLaLed LhaL Lhe paLlenL was Laken Lo Lhe All lndla lnsLlLuLe of Medlcal Sclences by Lhe parenLs for
beLLer LreaLmenL buL on belng dlscharged from Lhe lnsLlLuLe Lhe hosplLal auLhorlLles on sympaLheLlc
conslderaLlon readmlLLed Lhe chlld and are Laklng all posslble sLeps and glvlng all posslble LreaLmenL
wlLhouL any paymenL and aL no polnL of Llme Lhere has been any negllgence on Lhe parL of Lhe docLors
aLLendlng Lhe mlnor chlld ln Lhe hosplLal lL was also urged LhaL ln any evenL Lhe llablllLy Lo pay
compensaLlon would be LhaL of Lhe lnsurer Mlss 8lna MaLLhew Lhe nurse who ln[ecLed Lhe Larlago
ln[ecLlon Lo Lhe chlld who was opposlLe parLy no2 before Lhe Commlsslon fleld her ob[ecLlons sLaLlon
Lhereln LhaL she ls a quallfled nurse and had exerclsed all dlllgence and care ln dlscharglng her duLles lL
was furLher sLaLed LhaL Lhe paLlenL was under Lhe LreaLmenL of ur 8huLanl who had Lhe duLy Lo declde
Lhe course LreaLmenL and as nurse she was only worklng under her conLrol and dlrecLlon She also
sLaLed LhaL as Lhe paLenL was already Laklng larlago syrup and when Lhe docLor advlsed LhaL ln[ecLlon
should be glven
she LhoughL LhaL Lhe same larlago ln[ecLlon Lo be glven and lL was Lhe duLy of Lhe duLy of Lhe docLor Lo
glve Lhe ln[ecLlon and Lake all care 1he lnsureropposlLe no 3 whlch ls appellanL ln Clvll Appeal no
7838 of 1997 conLesLed Lhe clalm and Look Lhe defence LhaL Lhere has been no deflclency ln servlce on
Lhe parL of Lhe relnsurance company and Lhe provlslons of Lhe Consumer roLecLlon AcL could noL be
lnvoked agalnsL Lhe lnsurer Accordlng Lo Lhe lnsurer Lhe lnsurance company lssued medlcal
esLabllshmenL professlonal negllgence errors and omlsslons lnsurance pollcy and Lhe Lerms and
condlLlons of Lhe pollcy would lndlcaLe LhaL Lhe llablllLy of Lhe lnsurer lf any ls Lo Lhe exLenL of
1230000/ and noL beyond Lhe same and furLher Lhe lnsurer cannoL be made llable when Lhe llablllLy ln
quesLlon has arlsen on accounL of negllgence or dellberaLe noncompllance of any sLaLuLory provlslons
or lnLenLlonal dlsregard o Lhe lnsureds admlnlsLraLlve managemenL of Lhe need Lo Lake all reasonable
sLeps Lo prevenL Lhe clalm Accordlng Lo Lhe lnsurer Lhe nurse Mlss 8lna MaLLhew was noL a quallfled
nurse aL all and she was noL auLhorlsed Lo Lake up Lhe employmenL as a nurse noL havlng been
reglsLered wlLh any nurslng Councll of any SLaLe lL was also sLaLed L haL Lhe presenL sLaLe of affalrs of
Lhe mlnor chlld ls on accounL of negllgence of an unquallfled nurse and Lherefore Lhe lnsurer cannoL be
made llable Lo pay for any loss or damage susLalned ln course of Lhe proceedlngs before Lhe
Commlsslon Lo assess Lhe mlnors condlLlon and rehablllLaLlon requlremenL Lhe Commlsslon referred Lhe
maLLer Lo Lhe medlcal SuperlnLendenL Safdar[ung PosplLal by order daLed 28Lh !anuary 1997 and ln
pursuance Lo such order Lhe sald mlnor was examlned and a reporL was recelved by Lhe Commlsslon
from Lhe Medlcal SuperlnLendenL Safdar[ung PosplLal new uelhl 1he Commlsslon also examlned
wlLnesses lncludlng ur !S nanra and ur AS Ahluwalla who LesLlfled LhaL on accounL of a medlclne
havlng been ln[ecLed Lhe mlnor suffered from cardlac arresL on accounL of whlch Lhe braln has been
damaged on Lhe basls of Lhe oral and documenLary evldence on record Lhe Commlsslon came Lo Lhe
concluslon LhaL Lhe chlld had suffered from cardlac arresL and cause of such cardlac arresL was
lnLravenous ln[ecLlon of larlago of hlgh dose 1he Commlsslon also came Lo Lhe concluslon LhaL Lhere has
been conslderable delay ln revlvlng Lhe hearL of Lhe mlnor chlld and on accounL of such delay Lhe braln
of Lhe mlnor chlld goL damaged Cn Lhe quesLlon of Lhe negllgence of servlces Lhe Commlsslon came Lo
Lhe concluslon LhaL Lhere was a clear derellcLlon of duLy on Lhe parL of Lhe nurse who was noL even a
quallfled nurse and Lhe hosplLal ls negllgenL havlng employed such unquallfled people as nurse and
havlng enLrusLed a mlnor chlld Lo her care 1he Commlsslon also came Lo Lhe concluslon LhaL ur
uhanan[ay was negllgenL ln Lhe performances of hls duLles lnasmuch as whlle ur 8huLanl had advlsed
LhaL Lhe ln[ecLlon should be
glven by Lhe docLor buL he permlLLed Lhe nurse Lo glve Lhe ln[ecLlon 1he Commlsslon ulLlmaLely came
Lo Lhe flndlng LhaL Lhe mlnor paLlenL had suffered on accounL of negllgence error and omlsslon on Lhe
parL of nurse as well as ur uhanan[ay ln renderlng Lhelr professlonal servlces and boLh of Lhem were
negllgenL ln performlng Lhelr duLles ln consequence of whlch Lhe mlnor chlld suffered and slnce Lhe
docLor and Lhe nurse were employees of Lhe hosplLal Lhe hosplLal ls responslble for Lhe negllgence of
Lhe employees and Lhe hosplLal ls llable for Lhe consequences 1he Commlsslon Lhen deLermlned Lhe
quanLum of compensaLlon and awarded 123 lacs as compensaLlon Lo Lhe mlnor paLlenL ln addlLlon Lo
Lhe aforesald sum of 8s 123 lacs Lhe Commlsslon also awarded 8s 3 lacs as compensaLlon Lo be pald
Lo Lhe parenLs of Lhe mlnor chlld for Lhe acuLe menLal agony LhaL has been caused Lo Lhe parenLs by
reason of Lhelr only son havlng been reduced Lo a vegeLaLlve sLaLe requlrlng llfe long care and aLLenLlon
Cn Lhe quesLlon of Lhe llablllLy of Lhe relnsurance company Lhe Commlsslon came Lo hold LhaL Lhe sald
lnsurance company ls llable Lo lndemnlfy Lhe amounL of 8s 1237300/ ln Lerms of Lhe pollcy on
accounL of Lhe llablllLy of Lhe hosplLal as Lhe case ls fully covered under Lhe lndemnlLy clause 1he
Commlsslon Lhen consldered Lhe quesLlon as Lo how Lhe amounL of compensaLlon should be dlsbursed
for belng spenL for Lhe welfare of Lhe chlld and Lhen lssued cerLaln dlrecLlons wlLh whlch we are noL
concerned ln Lhls appeal 1he learned counsel for Lhe appellanL appearlng for Lhe hosplLal conLended
LhaL Lhe complalnL havlng been flled by Lhe mlnor chlld who was Lhe lnpaLlenL ln Lhe hosplLal Lhrough
hls parenLs Lhe sald mlnor chlld can only be Lhe consumer and Lhe parenLs cannoL clalm any
compensaLlon under Lhe Consumer roLecLlon AcL for Lhe menLal agony Lhey have suffered and as such
Lhe award of compensaLlon Lo Lhe Lune of 8s 3 lacs ln favour of Lhe parenLs ls beyond Lhe compeLence
of Lhe Commlsslon 1he learned counsel Lhen urged LhaL under Lhe Consumer roLecLlon AcL Lhe
consumer Lo whom servlces has been provlded can make a complalnL and ln Lhe case ln hand Lhe
servlces havlng been provlded Lo Lhe mlnor paLlenL he becomes Lhe consumer and consequenLly no
compensaLlon can be awarded ln favour of Lhe parenLs of Lhe consumer and accordlng Lo Lhe learned
counsel lL ls apparenL from Lhe provlslons of SecLlon 12(1)(a) of Lhe Consumer roLecLlon AcL 1he
learned counsel lasLly conLended LhaL under SecLlon 14(1) (d) of Lhe AcL Lhe Commlsslon would be
enLlLled Lo pay such amounL as compensaLlon Lo Lhe consumer for any loss or damage suffered by such
consumer and ln Lhe case ln hand Lhe mlnor chlld belng Lhe consumer Lhe Commlsslon was noL
compeLenL Lo award compensaLlon Lo Lhe parenLs for Lhe menLal agony Lhey have suffered 1he learned
counsel for Lhe lnsurer appellanL ln Lhe oLher appeal vehemenLly conLended LhaL lnsurer cannoL be
held llable Lo lndemnlfy Lhe hosplLal who ls Lhe lnsured as Lhe sald
hosplLal had employed unquallfled people Lo LreaL Lhe paLlenLs and Lhe dlrecLlon of Lhe Commlsslon LhaL
Lhe lnsurer would lndemnlfy Lhe lnsured ls unsusLalnable ln law 8uL we are noL ln a poslLlon Lo examlne
Lhls conLenLlon advanced on behalf of Lhe learned counsel appearlng for Lhe lnsurer ln vlew of Lhe
llmlLed noLlce lssued by Lhls CourL lL would noL be open for us Lo enLerLaln Lhls quesLlon for
conslderaLlon as Lhe noLlce lssued by Lhls CourL lndlcaLes LhaL only Lhe award of compensaLlon Lo Lhe
parenLs of Lhe mlnor chlld and Lhe legallLy of Lhe same can only Lhe consldered We are Lherefore
unable Lo examlne Lhe conLenLlon ralsed by Lhe learned counsel appearlng for Lhe lnsurer ln vlew of Lhe
submlsslons made by Lhe learned counsel appearlng for Lhe hosplLal Lhe followlng quesLlons arlse for
our conslderaLlon 1 1he mlnor chlld belng Lhe paLlenL who was admlLLed lnLo Lhe hosplLal for
LreaLmenL can Lhe parenLs of Lhe chlld be held Lo be consumers so as Lo clalm compensaLlon under Lhe
provlslons of Lhe Consumer roLecLlon AcL? 2 ls Lhe commlsslon under Lhe AcL enLlLled Lo award
compensaLlon Lo Lhe parenLs for menLal agony ln vlew of Lhe powers of Lhe commlsslon under SecLlon
14 of Lhe AcL? 3 Lven lf Lhe chlld as well as Lhe parenLs of Lhe chlld would come under deflnlLlon of Lhe
consumer under SecLlon 2(1) (d) of Lhe AcL wheLher compensaLlon can be awarded ln favour of boLh
Lhe consumers or compensaLlon can be awarded only Lo Lhe beneflclary of Lhe servlces rendered who ln
Lhe presenL case would be chlld who was admlLLed lnLo Lhe hosplLal? 8efore we examlne Lhe aforesald
quesLlons lL would be approprlaLe Lo noLlce Lhe scenarlo ln whlch Lhe parllamenL enacLed Lhe Consumer
roLecLlon AcL (herelnafLer referred Lo as Lhe AcL) 1he unlLed naLlons had passed a resoluLlon ln Aprll
1983 lndlcaLlng cerLaln guldellnes under whlch Lhe CovernmenL could make law for beLLer proLecLlon of
Lhe lnLeresL of Lhe consumers Such laws were necessary more ln Lhe developlng counLrles Lo proLecL
Lhe consumers from hazards Lo Lhelr healLh and safeLy and make Lhem avallable speedler and cheaper
redress Consumerlsm has been a movemenL ln whlch Lhe Lrader and Lhe consumer flnd each oLher as
adversarles 1lll lasL Lwo decades ln many developed and developlng counLrles powerful consumer
organlsaLlons have come lnLo exlsLence and such organlsaLlons have lnsLrumenLal ln deallng wlLh Lhe
consumer proLecLlon laws and ln expanslon of Lhe horlzon of such laws ln our counLry Lhe leglslaLlon ls
of recenL orlgln and lLs efflcacy has noL been crlLlcally evaluaLed whlch has Lo be done on Lhe basls of
experlence undoubLedly Lhe AcL creaLes a framework for speedy dlsposal of consumer dlspuLes and an
aLLempL has been made Lo remove Lhe exlsLlng evlls of Lhe ordlnary courL sysLem 1he AcL glves a
comprehenslve
deflnlLlon of consumer who ls Lhe prlnclpal beneflclary of Lhe leglslaLlon buL aL Lhe same Llme ln vlew of
Lhe comprehenslve deflnlLlon of Lhe Lerm consumer even a member of Lhe famlly cannoL be denled Lhe
sLaLus of consumer under Lhe AcL and ln an acLlon by any such member of Lhe famlly for any deflclency
of servlce lL wlll noL be open for a Lrader Lo Lake a sLand LhaL Lhere ls no prlvlLy of conLracL 1he
Consumer roLecLlon AcL confers [urlsdlcLlon on Lhe Commlsslon ln respecL of maLLers where elLher
Lhere ls defecL ln goods or Lhere ls deflclency ln servlce or Lhere has been an unfalr and resLrlcLlve Lrade
pracLlce or ln Lhe maLLer of charglng of excesslve prlce 1he AcL belng a beneflclal leglslaLlon lnLended Lo
confer some speedler remedy on a consumer from belng explolLed by unscrupulous Lraders Lhe
provlslons Lhereof should recelve a llberal consLrucLlon ln Lhe case ln hand we are deallng wlLh a
problem whlch cenLres round Lhe medlcal eLhlcs and as such lL may be approprlaLe Lo noLlce Lhe broad
responslblllLles of such organlsaLlons who ln Lhe garb of dolng servlce Lo Lhe humanlLy have conLlnued
commerclal acLlvlLles and have been mercllessly exLracLlng money from helpless paLlenLs and Lhelr
famlly members and yeL do noL provlde Lhe necessary servlces 1he lnfluence exhorLed by a docLor ls
unlque 1he relaLlonshlp beLween Lhe docLor and Lhe paLlenL ls noL always equally balanced 1he
aLLlLude of a paLlenL ls polsed beLween LrusL ln Lhe learnlng of anoLher and Lhe general dlsLress of one
who ls ln a sLaLe of uncerLalnLy and such amblvalence naLurally leads L a sense of lnferlorlLy and lL ls
Lherefore Lhe funcLlon medlcal eLhlcs Lo ensure LhaL Lhe superlorlLy of Lhe docLor ls noL abused ln any
manner lL ls a greaL mlsLake Lo Lhlnk LhaL docLors and hosplLals are easy LargeLs for Lhe dlssaLlsfled
paLlenL lL ls lndeed very dlfflculL Lo ralse an acLlon of negllgence noL only Lhere are pracLlcal dlfflculLles
ln llnklng Lhe ln[ury susLalned wlLh Lhe medlcal LreaLmenL buL also lL ls sLlll more dlfflculL Lo esLabllsh Lhe
sLandard of care ln medlcal negllgence of whlch a complalnL can be made All Lhese facLors LogeLher
wlLh Lhe sheer expense of brlnglng a legal acLlon and Lhe denlal of legal ald Lo all buL Lhe pooresL
operaLe Lo llmlL medlcal llLlgaLlon ln Lhls counLry WlLh Lhe emergence of Lhe Consumer roLecLlon AcL
no doubL ln some cases paLlenLs have been able Lo esLabllsh Lhe negllgence of Lhe docLors renderlng
servlce an dln Laklng compensaLlon Lhereof buL Lhe same ls very few ln number ln recenL days Lhere has
been lncreaslng pressure on hosplLal faclllLles falllng sLandard of professlonal compeLence and ln
addlLlon Lo all Lhe ever lncreaslng complexlLy of LherapeuLlc and dlagnosLlc meLhods and all Lhls
LogeLher are responslble for Lhe medlcal negllgence 1haL aparL Lhere has been a growlng awareness ln
Lhe publlc mlnd Lo brlng Lhe negllgence of such professlonal docLors Lo llghL very ofLen ln a clalm for
compensaLlon arlslng ouL of medlcal
negllgence a plea ls Laken LhaL lL ls a case of bona flde mlsLake whlch under cerLaln clrcumsLances may
be excusable buL a mlsLake whlch would LanLamounL Lo negllgence cannoL be pardoned ln Lhe former
case a courL can accepL LhaL ordlnary human falllblllLy precludes Lhe llablllLy whlle ln Lhe laLLer Lhe
conducL of Lhe defendanL ls consldered Lo have gone beyond Lhe bounds of whaL ls expecLed of Lhe
reasonably sklll of a compeLenL docLor ln Lhe case of WhlLehouse v !ordan and anoLher 1981 1 ALL L8
267 an obsLeLrlclan had pulled Loo hard ln a Lrlal of forceps dellvery and had Lhereby caused Lhe
plalnLlffs head Lo become wedged wlLh consequenL asphyxla and braln damage 1he Lrlal [udge had held
Lhe acLlon of Lhe defendanL Lo be negllgenL buL Lhls [udgmenL had been reversed by Lord uennlng ln Lhe
CourL of Appeal emphaslslng LhaL an error of [udgmenL would noL LanLamounL Lo negllgence When Lhe
sald maLLer came before Lhe Pouse of Lords Lhe vlews of Lord uennlng on Lhe error of [udgmenL was
re[ecLed and lL was held LhaL an error of [udgmenL could be negllgence lf lL ls an error whlch would noL
have been made by a reasonably compeLenL professlonal man acLlng wlLh ordlnary care Lord lraser
polnLed ouL Lhus 1he Lrue poslLlon ls LhaL an error of [udgmenL may or may noL be negllgenL lL
depends on Lhe naLure of Lhe error lf lL ls one LhaL would noL have been made by a reasonably
compeLenL professlonal man professlon Lo have Lhe sLandard and Lype of sklll LhaL Lhe defendanL holds
hlmself ouL as havlng and acLlng wlLh ordlnary care Lhen lL ls negllgence lf on Lhe oLher hand lL ls an
error LhaL such a man acLlng wlLh ordlnary care mlghL have made Lhen lL ls noL negllgence Cross
medlcal mlsLake wlll always resulL ln a flndlng of negllgence use of wrong drug or wrong gas durlng Lhe
course of anaesLheLlc wlll frequenLly lead Lo Lhe lmposlLlon of llablllLy and ln some slLuaLlons even Lhe
prlnclple of 8es lpsa loqulLur can be applled Lven delegaLlon of responslblllLy Lo anoLher may amounL Lo
negllgence ln cerLaln clrcumsLances A consulLanL could be negllgenL where he delegaLes Lhe
responslblllLy Lo hls [unlor wlLh Lhe knowledge LhaL Lhe [unlor was lncapable of performlng of hls duLles
properly We are lndlcaLlng Lhese prlnclples slnce ln Lhe case ln hand cerLaln argumenLs had been
advanced ln Lhls regard whlch wlll be dealL wlLh whlle answerlng Lhe quesLlon posed by us CuesLlon
nos 1 and 3 are lnLerllnked and Lherefore Lhey are dlscussed LogeLher 1he answer Lo boLh Lhese
quesLlons would depend upon an lnLerpreLaLlon of Lhe
expresslon consumer ln SecLlon 2(1)(d) of Lhe AcL SecLlon 2(1)(d) ls exLracLed herelnbelow ln exLenso
2(1)(d) Consumer means any person who (l) buys any goods for a conslderaLlon whlch has been pald
or promlsed or parLly pald an parLly promlsed or under any sysLem of deferred paymenL and lncludes
any user of such goods oLher Lhan Lhe person who buys such goods for conslderaLlon pald or promlsed
or parLly pald or parLly promlsed or under any sysLem of deferred paymenL when such use ls made wlLh
Lhe approval of such person buL does noL lnclude a person who obLalns such goods for resale or for any
commerclal purpose or (ll) hlres or avalls of any servlces of ra conslderaLlon whlch has been pald or
promlsed or parLly pald and pald or promlsed or parLly pald and parLly promlsed or under any sysLem of
deferred paymenL and lncludes any beneflclary of such servlces oLher Lhan Lhe person who hlres or
avalls of Lhe servlces for conslderaLlon pald or promlsed or parLly pald and parLly promlsed or under
any sysLem of deferred paymenL when such servlces are avalled or wlLh Lhe approval of Lhe flrsL
menLloned person LxplanaLlon lor Lhe purpose of subclause (l) commerclal purpose does noL
lnclude use by a consumer of goods boughL and used by hlm excluslvely for Lhe purpose of earnlng hls
llvellhood by means of selfemploymenL ln Lhe presenL case we are concerned wlLh clause (ll) of
SecLlon 2(1)(d) ln Lhe sald clause a consumer would mean a person who hlres or avalls of Lhe servlces
and lncludes any beneflclary of such servlces oLher Lhan Lhe person who hlres or avalls of Lhe servlces
When a young chlld ls Laken Lo a hosplLal by hls parenLs and Lhe chlld ls LreaLed by Lhe
docLor Lhe parenLs would come wlLhln Lhe deflnlLlon of consumer havlng hlred Lhe servlces and Lhe
young chlld would also become a consumer under Lhe lncluslve deflnlLlon belng a beneflclary of such
servlces 1he deflnlLlon clause belng wlde enough Lo lnclude noL only Lhe person who hlres Lhe servlces
buL also Lhe beneflclary of such servlces whlch beneflclary ls oLher Lhan Lhe person who hlres Lhe
servlces Lhe concluslon ls lrreslsLlble LhaL boLh Lhe parenLs of Lhe chlld as well as Lhe chlld would be
consumer wlLhln Lhe meanlng of SecLlon 2(1)(d)(ll) of Lhe AcL and as such can clalm compensaLlon under
Lhe AcL So far as Lhe second quesLlon ls concerned Lhe conLenLlon of Lhe learned counsel for Lhe
appellanL ls LhaL SecLlon 14 belng Lhe provlslon auLhorlslng Lhe Commlsslon Lo pass approprlaLe orders
under one or more of Lhe clauses (a) Lo (l) and clause (d) alone belng Lhe provlslon for award of
compensaLlon Lhe Commlsslon ls enLlLled Lo award compensaLlon Lhe Commlsslon ls enLlLled Lo award
compensaLlon for any loss or ln[ury suffered by Lhe consumer due Lo Lhe negllgence of Lhe person
whose servlces had been hlred and LhaL belng Lhe poslLlon lL would be open for Lhe Commlsslon Lo
award compensaLlon Lo Lhe mlnor chlld who has suffered ln[ury and noL Lhe parenLs ln oLher words Lhe
learned counsel urged LhaL clause (d) of SecLlon 14 may noL be lnLerpreLed enabllng Lhe Commlsslon Lo
award compensaLlon boLh Lo Lhe mlnor chlld and hls parenLs We see absoluLely no force ln Lhe
aforesald conLenLlon lnasmuch as Lhe Commlsslon would be enLlLled Lo award compensaLlon under
clause (d) Lo a consumer for any loss or ln[ury suffered by such consumer due Lo Lhe negllgence of Lhe
opposlLe parLy lf Lhe parenLs of Lhe chlld havlng hlred Lhe servlces of Lhe hosplLal are consumer wlLhln
Lhe meanlng of SecLlon 2(1)(d)(ll) and Lhe chlld also ls consumer belng a beneflclary of such servlces
hlred by hls parenLs ln Lhe lncluslve deflnlLlon ln SecLlon 2(1)(d) of Lhe AcL Lhe Commlsslon wlll be fully
[usLlfled ln awardlng compensaLlon Lo boLh of Lhem for Lhe ln[ury each one of Lhem has susLalned ln Lhe
case ln hand Lhe Commlsslon has awarded compensaLlon ln favour of Lhe mlnor chlld Laklng lnLo
accounL Lhe cosL of equlpmenLs and Lhe recurrlng expenses LhaL would be necessary for Lhe sald mlnor
chlld who ls merely havlng a vegeLaLlve llfe 1e compensaLlon awarded ln favour of Lhe parenLs of Lhe
mlnor chlld ls for Lhelr acuLe menLal agony and Lhe llfe long care and aLLenLlon whlch Lhe parenLs would
have Lo besLow on Lhe mlnor chlld 1he award of compensaLlon ln respecL of respecLlve consumers are
on dlfferenL head We see no lnflrmlLy wlLh Lhe order of Lhe Commlsslon awardlng dlfferenL amounL of
compensaLlon on dlfferenL head boLh belng consumers under Lhe AcL Accordlngly Lhe Commlsslon ln
our consldered oplnlon rlghLly awarded compensaLlon ln favour of L he parenLs ln addlLlon Lo Lhe
compensaLlon ln favour of Lhe parenLs ln addlLlon Lo Lhe compensaLlon ln favour of Lhe mlnor chlld
1he learned counsel for Lhe appellanLs ln course of hls argumenL has conLended LhaL noL only Lhe
hosplLal auLhorlLles had lmmedlaLely on Lhelr own Laken Lhe asslsLance of several speclallsLs Lo LreaL Lhe
chlld buL also even afLer Lhe chlld was dlscharged from Lhe All lndla lnsLlLuLe of Medlcal Sclences
humanlLarlan approach has been Laken by Lhe hosplLal auLhorlLles and chlld has been Laken care of by
Lhe hosplLal even wlLhouL charglng any money for Lhe servlces rendered and consequenLly ln such a
slLuaLlon Lhe award of damages for menLal agony Lo Lhe parenLs ls wholly un[usLlfled We however fall
Lo appreclaLe Lhls argumenL advanced on behalf of Lhe learned counsel for Lhe appellanLs lnasmuch as
Lhe menLal agony of Lhe parenL wlll noL be dlsmlssed ln any manner merely seelng Lhe only chlld llvlng a
vegeLaLlve sLaLe on accounL of negllgence of Lhe hosplLal auLhorlLles on a hosplLal bed 1he agony of Lhe
parenLs would remaln so long as Lhey remaln allve and Lhe socalled humanlLarlan approach of Lhe
hosplLal auLhorlLles ln no way can be consldered Lo be a facLor ln denylng Lhe compensaLlon for menLal
agony suffered by Lhe parenLs ln Lhe premlses as aforesald Lhe conLenLlons ralsed by Lhe learned
counsel appearlng for Lhe appellanLs havlng falled Lhe appal falls and ls dlsmlssed Accordlngly boLh Lhe
appeals are dlsmlssed wlLh cosLs of 8s 3000/