CLASS MOOT 1 5TH YEAR SEMESTER 9 – 2018

JUHI BHUTANI(1471)

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE REDRESSAL

COMMISSION AT U.T. CHANDIGARH

COMPLAINT UNDER

CONSUMER PROTECTION ACT,1986

CC/01/****/2017

UNDER SEC. 2(1)(g) OF COPRA,1986

IN THE MATTER OF SEC. 2(1)(o) of COPRA, 1986

VIKAS…………….………………………………………………COMPLAINANT

v.

DR. ABDULLA……………....…………………………………. RESPONDENTS

UPON SUBMISSION TO THE HON’BLE DISTRICT JUDGE AND HIS

COMPANIONS

MEMORANDUM ON BEHALF OF THE COMPLAINANT

1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………….…...…II

INDEX OF AUTHORITIES………………………………………..............………….….III

TABLE OF CASES……………………………………………………………...........1V-V

STATEMENT OF FACTS…………………………….......................….…...….VI

STATEMENT OF JURISDICTION…………………………………………...…....…VII

STATEMENT OF ISSUES………………………………………………………….VIII

SUMMARY OF ARGUMENT……..……………………………………………........…..IX

ARGUMENTS ADVANCED………………………………………………………….. 1-18

PRAYER…………………………………………………………………………………...19
1.WHETHER DR. ABDULA WAS DEFECIENT IN PROVIDING SERVICE TO
VIKAS?

1.1WHETHER DR. ABDULA WAS NEGLIGENT IN PERFORMING HIS DUTIES?

1.2. WHETHER COMPENSATION CAN BE CLAIMED BY VIKAS?

2
 LIST OF ABBREVIATIONS

¶ Para

¶¶ Paras

AIR All India Reporter

Art. Article

COPRA Consumer Protection Act, 1986

Ed. Edition

p. Page No.

CHD CHANDIGARH

SC Supreme Court

SCC Supreme Court Reports

SCJ Supreme Court Journal

Sec. Section

u/a Under Article

3
 INDEX OF AUTHORITIES

 STATUTES

1. The Consumer Protection Act, 1986 (Act LXVIII of 1986)

 BOOKS AND REPORTS

1.Modi, J. P, A Textbook of Medical Jurisprudence & Toxicology, (25th Ed., Lexis Nexis
Butterworths, 2016)

2.Rao, YV, Commentary on the Consumer Protection Act, 1986, (4th Ed., Thomson Reuters,
2017)

3.Ratanlal and Dhirajlal, The Law of Torts, (26th Ed., Lexis Nexis Butterworths, 2015)

 LEXICONS

1.Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)

2.Garner, Black’s Law Dictionary, (9th Ed. Thomas & West, U.S.A 1990)

 WEBSITES

 http://www.findlaw.com

 http://www.judis.nic.in

 http://www.manupatra.co.in/AdvancedLegalSearch.aspx

 http://www.scconline.com

4
 TABLE OF CASES

 Nizam Institute of Medical Sciences v Prasanth S. Dhananka and Others; Supreme

Court of India; 14 May
 2009; Bench: H.S. Bedi, B.N. Agrawal and G.S. Singhvi, JJ.; Reported in 2009
Indlaw SC 1047
 Achutro Haribhau Khowda v. State of Maharashtra (1996) 2 SCC 634
 Amar Singh v. Frances Newton Hospital and Anr. 2001;(I) CPJ 8.
 Bench: R.V. Raveendran and Lokeshwar Singh Panta, JJ.; Reported in 2009 Indlaw
SC 488;
 Dr. Akhil Kumar Jain v. Lallan Prasad. 2004;(II) CPJ 504.
 Dr. Balram Prasad and others v Dr. Kunal Saha and another; Supreme Court of India;
24 October 2013; Bench V. Gopala Gowda, C. K. Prasad, JJ.; Reported in 2013
Indlaw SC 696; (2014) 1 SCC 384; 2013
 Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(I) CPJ 153 (NC)
 Indian Medical Association v. Shantha 1995 6 SCC 651
 Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC)

 Laxman vs. Trimback AIR 1969 SC 128

 Lucknow Development Authority v. M.K.Gupta 1994(1) SCC 234
 M. Aiyappan v. Lakshmi 2008) I CPJ 50 (NC)

 Parmanand Kataria vs. Union of India AIR 1989 SC 2039

 Pawan Verma V. Ashwini Patel (1996) 4 SC 211
 Phillips India v. Kunju Punnu AIR1973 BOM.306
 RPF Commissoner v. Kumar Joshi AOR 1998 SC 223Shiv

 Sarla Verma and Others v Delhi Transport Corporation and Another; Supreme Court
of India; 15 April 2009;
 Smiley v. Atkinson, 12 Md. App. 543, 553
 Smt. Saroj v. Ganga Ram Hospital III (2007) CPJ 189 NC

 Smt. Savitri Singh v. Dr. Ranbir PD. Singh and others. 2004;(1) CPJ 25 (Bihar)
 Turff vs. Warmann 2 C.B.N.S.740 Id at 171
 Union Of India vs Revathy on 30 November, 2010
 Vinitha Ashok v. Laxmi Hospital AIR 2001 SC 3914

STATEMENT OF FACTS

5
1. Vikas was working in a MNC as a manager. He got promotion and he was doing well in
his job. He was of 34 years and had lost half of his hair and was getting bald. He had faced
rejection of two girls for marriage.
2. Vikas saw an advertisement in newspaper regarding cure of baldness by scalp reduction
technique and the fact that it had proved successful in most cases but involved a certain
degree of risks.
3. Vikas booked an appointment with Dr. Abdula for the procedure. The doctor advised three
sittings and said there are no major risks involved in it.
4. Vikas came for the first session with his father. The doctor completed the first sitting and
he was allowed to go home.
5. While going back for the initial hours he was restless and feeling numb later the pain
increased and blood started oozing out of the stiches. Next day he saw fresh blood oozing
out from the stiches and was feeling swelling and throbbing in the head. He called the
doctor who advised him to take a painkiller and rest.
6. Next day he went to the clinic while doctor was busy with surgery and was not able to
attend him. His condition began to deteriorate and he went to another hospital after 10
days were he was informed that he had developed severe infection and his hair can’t grow
back. The doctors removed the infection by cutting the skin and draining out the pus.
7. After the surgery was done black patches were formed on his scalp and he was looking
more ugly.
8. Vikas has filed a suit for compensation against Dr. Abdula for deficiency of service and
negligence on his part.

THE COUNSEL APPROCHES THE COURT ON THE BEHALF OF THE

COMPLAINANT.

6
 STATEMENT OF JURISDICTION

The Hon’ble District Consumer Forum of CHANDIGARH has the jurisdiction in the present
matter under the following sections of the Consumer Protection Act, 1986:

1. §. 2(1) (d) which defines who is consumer and §. 2 (1) (o) define what is service. The
definition of service is not an exhaustive one, so if health service is not specifically
mentioned in the provision it has been interpreted that the provision includes such
services, in spite of existence of professional regulatory bodies.

2. Medical Services are treated as in ambit of “services” under §. 2(1) (o) of the Act.

• It is not contract of personal service as there is absence of master servant

relationship.

• Contract of service in §. 2(1) (o) cannot be confined to contracts for employment of

domestic servants only.

3. Deficiency of service under §. 2(1)(g) of the Act provides that, “deficiency” means any
fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in
force or has been undertaken to be performed by a person in pursuance of a contract
or otherwise in relation to any service.

4. Jurisdiction of the State Commission would arise u/s 17of the Act, as the compensation
where value of goods or services and compensation if any exceeds rupees twenty lakhs but
does not exceed rupees one crore.

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 ISSUES RAISED

1.WHETHER DR. ABDULA WAS DEFECIENT

IN GIVING SERVICE TO VIKAS?

1.1WHETHER DR. ABDULA WAS NEGIGENT

IN PERFORMING HIS DUTIES?
1.2. WHETHER COMPENSATION BE
CLIAMED BY VIKAS?

8
 SUMMARY OF ARGUMENTS

I. WHETHER DR. ABDULA WAS DEFECIENT IN PROVIDING SERVICE?

The provisions of Consumer Protection Act, 1986 lays down the meaning of ‘service’ as service
of any description which is made available to potential users. Deficiency’ has been defined as
any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in force
or has been undertaken to be performed by a person in pursuance of a contract or otherwise in
relation to any service. In the present case Dr. Abdula was deficient in giving service as stiches
were not proper as they started oozing out the next day itself and he treated Vikas as a mere
patient were he asked him to take painkiller and rest.

1.1WHETHER DR. ABDULA WAS NEGLIGENT IN PERFORMING HIS DUTIES?

It is humbly submitted that the respondent is liable for negligence against Vikas as he owed a
duty of care to him which he breached. He failed to take reasonable care towards Vikas because
of which he has sued for compensation thereof. Negligence is breach of duty caused by the
omission to do something which a reasonable man guided by those considerations which
ordinarily regulate the conduct of human affairs wold do or a reasonable prudent man would not
do .In the present case Dr. Abdula was negligent towards his duty which he owed to Vikas.

9
 ARGUMENTS ADVANCED

1.THAT DR. ABDULA WAS DEFICIENT IN GIVING SERVICE TO VIKAS.

It is respectfully submitted to the Hon’ble Court that respondent was deficient in providing service
to my client Vikas

Deficiency according to Section 2(1)(g) of the Consumer Protection Act 1986 means any fault,
imperfection, short coming or inadequacy in quality, nature, manner of performance which is
required to be maintained under the law or has been undertaken to be performed by person in
pursuance of contract in relation to any service. The definition of service as construed in Section
2(1)(o) of the act means any service made available to any potential user1.It is now well settled that
Consumer Protection Act applies to person engaged in medical profession either as a private
practioners or government dispensaries and a patient is a consumer within the meaning of the act
and has to be awarded compensation for loss or negligence caused by the doctor.2

The general law of professional negligence is applicable to medical profession also, as it was held
in Indian Medical Association v. Shantha3.The apex Court in its judgment traced the back ground
in the light of UN resolution on Consumer protection against which Consumer Protection Act was
enacted by the Indian Parliament . In this case, service rendered by the doctor to his patient was
brought within the definition of ‘ service’ under section 2(1)(o) of the Consumer Protection Act,
1986.
In the present case Vikas had a contract for service with Dr. Abdula whereby one party undertakes
to render service to another which is professional or technical in nature and exercises professional
or technical skill based on his knowledge or discretion.4 Dr. Abdula had undertaken to give service
to Vikas by using his professional skill in which he failed thereby allowing my client to sue against
him.

In case of Vinitha Ashok v. Laxmi Hospital5 it has been demonstrated that a doctor will be liable
for negligence in respect of diagnosis and treatment in spite of body of professional approving his
conduct. The question is not whether the doctor’s conduct accords with practice of medical

1
Lucknow Development Authority v. M.K.Gupta 1994(1) SCC 234
2
Pawan Verma V. Ashwini Patel (1996) 4 SC 211
3
1995 6 SCC 651
4
Halsbury Law of England 4th Edition Vol.16,para 501
5
AIR 2001 SC 3914

10
profession but whether it confirms to the standard of reasonable care demanded by the law. In the
instant case at hand Dr. Abdula failed to confirm to reasonable standard of care as on the very next
day blood started oozing out from the stiches.

The service hired or availed of must establish that6 –

 Some manner of performance in service in question is required to be maintained.

 By law for time being in force.
 In pursuance of contract.
 In relation to service in question.
 The service hired or availed suffers from fault or imperfection or shortcoming.
 Such inadequacy is in nature and quality of performance given.
Thus in this case Dr. Abdula was deficient in providing his service as the performance did not
match with the standard laid down. The literal meaning of deficiency is incomplete, defective ,
wanted in specific quantity ,quality or in force. Deficiency may be caused because of non
performance of the promise made as to quality, nature and services of the contract. In the case of
Smt. Saroj v. Ganga Ram Hospital7 it was clearly held that every surgical operation involves
risk. When a person who is ill and is going to be treated in a hospital, no matter what care is
taken, there always exists some risk. Hereby Dr. Abdula failed as he did not inform about all the
risks to Vikas even though he asked any major risk to which doctor replied in negative 8. For
finding out deficiency in service, motive is not relevant ingredient. Act may be bona fide. But, if
it is performed negligently or if any error is committed which the ordinary skilled person would
not commit, then it is deficiency in service.9Hereby my client Vikas suffered mental agony and
pain because Dr. Abdula committed an error which an ordinary skill person would not have
committed by prescribing to eat painkiller without even seeing the condition of Vikas. 10

The general view of the physician-patient relationship is based on the assumption that the
physician knowledge is superior to that of the patient.11 In the instant case Dr. Abdula asked
Vikas whether he was aware of the risks to which Vikas answered in positive and asked about any
major risks to which the respondent denied hereby colluding the fact that he did not provide

6
RPF Commissoner v. Kumar Joshi AOR 1998 SC 223Shiv
7
III (2007) CPJ 189 NC
8
Factsheet line
9
Supra at 6
10
Factsheet line
11
East 60, 103 Eng. Rep. 926' (K.B. 1809). Fleming James Jr, Contributory Negligence, 62 Yale L.J. 691-735
(1953). http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4112&context=fss_papers

11
adequate knowledge regarding the procedure to Vikas even though being superior in knowledge
to him.

There existed a fiduciary relationship between my client and Dr. Abdula as he assured him of his
hair growing back. Fiduciary duty is the highest standard of care at either equity or law12. A
fiduciary is expected to be extremely loyal to the person to whom he owes the duty such that there
must be no conflict of duty between fiduciary and principal, and the fiduciary must not profit
from his position as a fiduciary According to the fiduciary duty-

 Duty of Care: The fiduciary owes a duty of care toward the principal. This means they are
legally required to be educated and informed about the laws and issues regarding the
procedures, conditions, and surgeries they are administering. If they are not adequately
informed, they may not be legally liable if they did not have enough time to obtain the
relevant information13
 Duty of Loyalty: The fiduciary must remain loyal to the principal’s interests over his or
her own. In the medical field, this could mean the doctor must not prescribe any
procedures or medications that are not in the best interest of the patient. Hereby doctor
prescribed only a painkiller for blood oozing out of stiches which is not in best interests of
justice.
Dr. Abdula had assured Vikas that his hair will grow back but it is the result of clear
negligence and the failure of operation itself which is prima facie proof of negligence and
improper performance of operation due to lack of required precision assured 14 and
required to be performed15A surgeon cannot and does not guarantee that the result of the
surgery would invariably be beneficial much less to the extent of 100% for the person operated
upon. The only assurance which such a professional can give or can be understood to have given
by implication is that he is possessed of the reasonable skill, in that branch of profession, which
he is practicing and while undertaking the performance of the task entrusted to him, he would be
exercising his skill, with reasonable competence.16 Hereby in the instant case Dr. Abdula assured
my client that his hair will grow back and my client acted on such assurance and agreed to the
procedure.

12
Turff vs. Warmann 2 C.B.N.S.740 Id at 171
13
Smiley v. Atkinson, 12 Md. App. 543, 553
14
Oxford dictionary defines assurance as ‘a positive declaration intended to give
confidence’tps://en.oxforddictionaries.com/definition/assurance last visited on 30th August 2018.
15
Union Of India vs Revathy on 30 November, 2010
16
Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC)

12
Thus it is humbly submitted by the counsel for the complainant that Dr. Abdula should be held
liable for deficiency of service

1.1Dr. ABDULA WAS MEDICALLY NEGLIGENT IN PERFORMING HIS

DUTIES

It is submitted before the Hon’ble court that the respondent is guilty of medical negligence.

No human being is infallible and in the present day of science even the most eminent specialist
may be at fault in detecting the true nature of the diseased condition. A practioner can only be
liable when the if his mistake of such a nature as to imply absence of reasonable skill and care on
his part regard being had to ordinary level of skill in the practioner. 17 In current forensic science
negligence has three meanings18-
 A state of mind which is opposed to intention.
 Careless conduct
 Breach of duty to take care that is imposed by common or statute law.
The essential components of negligence are as follows-
 The existence of duty to take care which is owed by the defendant to the complainant.
 Failure to attain standard of care prescribed by law, thereby committing breach of duty
 Damage which is both casually connected with breach and recognised by law, has been
suffered by the complainant.
A person who holds himself ready to give medical advice or treatment impliedly undertakes that
he is possessed of the skill and knowledge for the purpose.19 Such a person who is consulted by
the patient owes him certain duties namely a duty of care in deciding what treatment to give and
duty of care in administration of treatment. A breach of any of these duties will support an action
for negligence by the patient.20 A mistake by medical practioner which no reasonably competent
and careful practioner would have committed is a negligent one.21
Dr. Abdula was medically negligent in providing post operative care as on the day of first sitting
itself blood had started oozing from the stiches and he advised only a painkiller for the same. In

17
Phillips India v. Kunju Punnu AIR1973 BOM.306
18
Charlesworth and Percy on negligence (10th ed.) para 1.01
19
Halsbury law of England (3rd ed.) VOL.26 PP-17-18
20
Ibid at 23
21
Achutro Haribhau Khowda v. State of Maharashtra (1996) 2 SCC 634

13
 case of M. Aiyappan v. Lakshmi22 Complainant approached the opposite party with complaint of
abdominal pain and surgery was conducted for removal of stones. Complainant’s condition
deteriorated after surgery and opposite party did not proper steps to attend to the problem and
condition worsened requiring treatment in another hospital. Deficiency was proved and
compensation was awarded.
In some cases, however, though a doctor-patient relationship is not established, the courts have
imposed a duty upon the doctor. In the words of the Supreme Court “every doctor, at the
governmental hospital or elsewhere, has a professional obligation to extend his services with due
expertise for protecting life”23 The doctor, in other words, does not have to adhere to the highest
or sink to the lowest degree of care and competence in the light of the circumstance. A doctor,
therefore, does not have to ensure that every patient who comes to him is cured. He has to only
ensure that he confers a reasonable degree of care and competence.24
The liability of a doctor arises not when the patient has suffered any injury, but when the injury has
resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other
words, the doctor is not liable for every injury suffered by a patient. 25 He is liable for only those
that are a consequence of a breach of his duty. Hence, once the existence of a duty has been
established, the plaintiff must still prove the breach of duty and the causation. It is pertinent to note
that the liability has arisen as injury was caused in post operative care of Vikas.

The Hon’ble Supreme Court of India in Kusum Sharma v. Batra Hospital26said that negligence is
the breach of a duty to do something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs, would do, or doing something which a
prudent and reasonable man would not do.
According to the facts of the case it is clear that the doctor acted negligently. Vikas called the
doctor and informed that the blood is oozing out and he only advised a painkiller and asked him to
come in the evening and did not treat him on priority basis.
In order to determine whether there is a duty of care, most of the recent cases rely on the
basic test established by the judgment of Caparo Industries Plc v. Dickman27 In the case it
was held that certain conditions must be satisfied before liability can be considered.
 The person who is accused must have committed an act of omission or commission;

22
(2008) I CPJ 50 (NC)
23
Parmanand Kataria vs. Union of India AIR 1989 SC 2039
24
Laxman vs. Trimback AIR 1969 SC 128
25
Smt. Savitri Singh v. Dr. Ranbir PD. Singh and others. 2004;(1) CPJ 25 (Bihar)
26
(2010) 3 SCC 480
27
(1990) 1 All ER 568

14
  This act must have been in breach of the person’s duty; and
 This must have caused harm to the injured person.
It is evident from the facts of the case that the defendant failed to fulfil the above-mentioned
requirements

In this case, complainant believes that the conduct of defendant has caused damages to him. For
making the defendant liable, it must be shown that the particular acts of the defendant constituted
the cause of the damages suffered by complainant.28 Two requirements need to be satisfied to
establish the existence of causation.
 Firstly, the conduct of the defendant was the cause in fact.
 Secondly, defendant is responsible for the probable consequence
Hereby in the instant case it is submitted to the Hon’ble court that Dr. Abdula had fulfilled both
the conditions thereby making him liable.

Reasonable degree of care and skill means that the degree of care and competence that an
“ordinary competent member of the profession who professes to have those skills would
exercise in the circumstance in question.” At this stage, it may be necessary to note the
distinction between the standard of care and the degree of care. The standard of care is a
constant and remains the same in all cases. 29It is the requirement that the conduct of the doctor
be reasonable and need not necessarily conform to the highest degree of care or the lowest
degree of care possible. The degree of care is a variable and depends on the circumstance. It is
used to refer to what actually amounts to reasonableness in a given situation.30

Thus, though the same standard of care is expected from a generalist and a specialist, the degree
of care would be different. In other words, both are expected to take reasonable care but what
amounts to reasonable care with regard to the specialist differs from what amount of reasonable
care is standard for the generalist. 31

In fact, the law expects the specialist to exercise the ordinary skill of this specialty and not of any
ordinary doctor thus Dr. Abdula prescribing a normal painkiller for the pain suffered by my client

28
Dr. Akhil Kumar Jain v. Lallan Prasad. 2004;(II) CPJ 504.
29
Amar Singh v. Frances Newton Hospital and Anr. 2001;(I) CPJ 8.
30
Supra at 32
31
Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(I) CPJ 153 (NC)

15
 is exercising the skill of a generalist.
In a recent case Dr.Batra v. Harjot Singh32 Undoubtedly, the District Forum rightly held that the
big advertisements in the newspapers and magazines were misguiding and the doctors seemed to
be more of salesmen and treated patients as if they were helping them for charity. In fact, the
logical inference from such advertisements, which are against Etiquette and code of Ethics
Regulations 1982, is that the same were given not to treat the patients but to dupe the
consumers/patients.

Thus the counsel for complainant humbly submits that Dr. Abdula was liable for medical
negligence.

1.2THAT COMPENSATION CAN BE CLAIMED BY VIKAS .

According to section 14 of the Consumer Protection Act 1986 indicates the reliefs that can be
granted on complaint filed. They are as follows-
 Return of the charges paid by the complainant
 Payment of amount of money to be awarded as compensation to the consume for loss o
injury suffered due to negligence of the opposite party.
 Removal of defects or deficiency of service in question.

Medical negligence by doctors and hospitals, once established by the trial court, very well
conveys that the conduct of the medical professionals – doctors, hospital administration, other
hospital staff, etc. – was not up to the mark and hence, they must be held liable for deficiency in
service33, as entailed in the consumer law in India. What was the degree of this deficiency
depends on the degree of negligence, which can either be slight, normal, or gross. If the
negligence was gross, it almost borders with intentional conduct which may be even penalised
under the criminal law of the country, however, under the civil law for award of compensation,
the quantum has to be determined by the consumer courts. By no stretch of imagination, the court
should award a paltry sum for gross negligence. And, the same is true the other way round –
exemplary compensation need not be awarded in case of slight or normal negligence
Just compensation is adequate compensation which is fair and equitable, on the facts and

32
(2013) III SCRF U.T. Chandigarh
33
Davies and Another, Appellants v. Powell Duffryn Associated Collieries, Limited Respondents; House of
Lords; 27 April 1942; Reported in [1942] A.C. 601; Bench: Lord Russell of Killowen , Lord Macmillan , Lord
Wright , Lord Porter and Lord Clauson

16
circumstances of the case,34 to make good the loss suffered as a result of the wrong, as far as
money can do so, by applying the well settled principles relating to award of compensation. It is
not intended to be a bonanza, largesse or source of profit.
For calculation of compensation the multiplier method is used by the courts but they are used in
motor vehicle accidents. In the Nizam Institute case, the Supreme Court did not apply the
multiplier method. In 1990, twenty-year old Prasant S. Dhananka, a student of engineering, was
operated upon at the Nizam Institute of Medical Sciences, Hyderabad. Due to medical negligence
of the hospital, Prasant was completely paralysed.35 Compensation was claimed, and the matter
finally reached the Supreme Court. The court did not apply the multiplier method and awarded a
compensation of Rs. 1 crore plus interest. The court observed:
“Mr. Tandale, the learned counsel for the respondent had, further, submitted that the proper
method for determining compensation would be the multiplier method. We find absolutely no
merit in this plea.The kind of damage that the complainant has suffered, the expenditure that he
has incurred and is likely to incur in the future and the possibility that his rise in his chosen field
would now be restricted, are matters which cannot be taken care of under the multiplier method”
The Supreme Court rejected the multiplier method in this case and provided an illustration to
show how useless the method can be for medical negligence cases. The court wrote:
“The multiplier method was provided for convenience and speedy disposal of no fault motor
accident cases. Therefore, obviously, a "no fault" motor vehicle accident should not be compared
with the case of death from medical negligence under any condition. The aforesaid approach in
adopting the multiplier method to determine the just compensation would be damaging for society
for the reason that the rules for using the multiplier method to the notional income of only
Rs.15,000/- per year would be taken as a multiplicand. In case, the victim has no income then a
multiplier of 18 is the highest multiplier used under the provision of Ss. 163 A of the Motor
Vehicles Act read with the Second Schedule.Therefore, if a child, housewife or other non-
working person fall victim to reckless medical treatment by wayward doctors, the maximum
pecuniary damages that the unfortunate victim may collect would be only Rs.1.8 lakh.
It is stated in view of the aforesaid reasons that in today's India, Hospitals, Nursing Homes and
doctors make lakhs and crores of rupees on a regular basis. Under such scenario, allowing the
multiplier method to be used to determine compensation in medical negligence cases would not

34
Sarla Verma and Others v Delhi Transport Corporation and Another; Supreme Court of India; 15 April 2009;
Bench: R.V. Raveendran and Lokeshwar Singh Panta, JJ.; Reported in 2009 Indlaw SC 488;
35
Nizam Institute of Medical Sciences v Prasanth S. Dhananka and Others; Supreme Court of India; 14 May
2009; Bench: H.S. Bedi, B.N. Agrawal and G.S. Singhvi, JJ.; Reported in 2009 Indlaw SC 1047

17
 have any deterrent effect on them for their medical negligence but in contrast, this would
encourage more incidents of medical negligence in India bringing even greater danger for the
society at large.”
On the basis of this discussion, the Supreme Court enhanced the multiplier to 30 and observed:
“…Therefore, estimating the life expectancy of a healthy person in the present age as 70 years, we
are inclined to award compensation accordingly by multiplying the total loss of income by 30”36

My client Vikas opts for compensation as relief paid to him. The amount demanded by him
depends upon-

1. His earning capacity as he works in a MNC37

2. Mental agony and harassment suffered by him due to the black spots which happened after
the infection spread.
3. The fees for the sitting to the doctor for his treatment and the physical pain undergone by
him.
4. The medical expenses paid to another hospital for treatment of his infection and removal
of pus.

Thus considering the fact that he works in a MNC his income will be above the taxable income
that is 2.5 lakhs so going by that formula 2.5 lakhs multiplied by 30 =75 Lakhs and for mental
harassment and agony 1 lakh so in all my client asks for a compensation of 78 lakhs from the Dr.
Abdula.

36
Dr. Balram Prasad and others v Dr. Kunal Saha and another; Supreme Court of India; 24 October 2013;
Bench V. Gopala Gowda, C. K. Prasad, JJ.; Reported in 2013 Indlaw SC 696; (2014) 1 SCC 384; 2013
37
Factsheet line 1

18
 PRAYER

In the light of the issues raised, arguments advanced and authorities cited it is most humbly
and respectfully prayed before the Hon'ble Court that it may graciously be pleased to
adjudge and declare that:

1. That there was negligence on part of Dr. Abdula

2. That there be an order for damages of 78 Lakhs in favour of the complainant.

AND/OR

Pass any other appropriate order, which this Honorable Court may deem fit in light of
Justice, Equity and Good Conscience.

And for this act of Kindness, the Counsel for complainant as in duty bound shall forever
pray.

Place: Chandigarh

Dated: 4th September 2018 Sd-

Counsel for complainant

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