NCDRC Asks Surgeon & Hospital To Pay Rs 75 Lakh Compensation To Patient Who Lost Leg Due To Medical Negligence

 

The National Consumer Disputes Redressal Commission recently directed a surgeon and a hospital to jointly and severally pay a compensation of Rs 75 lakhs to a patient who lost her right leg due to negligence in surgery.

The complaint was filed against Dr. Anirban Chatterjee and Nightingale Diagnostic & Medicare Centre Private Limited, Kolkata.

The surgery was carried out in the year 2015, when the patient was aged 17 years old. The procedure was conducted after the patient developed a lump in the right gluteal region. In 2015, a procedure known as vascular embolization was performed on the patient. However, during the surgery some amount of glue slipped into the main artery of the right leg. This subsequently led to the stoppage of blood circulation in the right leg of the patient and development of gangrene. Ultimately, the patient was shifted to Ganga Ram Hospital, New Delhi. Since the condition of the leg worsened, it had to be amputated to prevent further complications. She was subsequently certified to have 90% permanent disability.

In 2017, the patient, along with her father, filed the consumer complaint seeking a compensation of over Rs. 20 crores from the hospital and the doctor.

The Commission, after examining the evidence on record, found that negligence resulted in the slippage of N-Butyl Cyanoacrylate Glue entering into the artery of her right leg leading to stoppage of blood flow and amputation of her right leg. The Commission found that no informed consent was taken from the patient regarding the inherent risks in the surgical procedure. Since the patient had an Arterio-Venous Malformation (AVM), the doctor had the duty to specifically inform her about the inherent risks, rather than take a general consent in the stereotype format.

Jaita Mitra Basu and another v. Dr.Anirben Chatterjee and another | CC NO. 2644 OF 2017

When Selection Is Based Entirely On Interview Marks, It's Reasonable To Presume Existence Of Arbitrariness & Favouritism

 

The Court opined that it was desirable to have a selection process based on a written exam and rules.

The Supreme Court recently upheld the 2016 decision of the then BJP government of Assam to cancel a select list for the recruitment process of 104 Constables in the Assam Forest Protection Force (AFPF) notified in 2014 by the then Indian National Congress government.

A bench of Justice Dipankar Datta and Justice Manmohan found that the cancellation was neither arbitrary nor disproportionate, given the anomalies in the recruitment process identified by the Principal Chief Conservator of Forest, including skewed district representation and reservation policy violations.

The Court further highlighted that the recruitment was based on interviews without any written exam and was not governed by any Rules.

“Last but not the least, having regard to present times when corruption has been held to be a walk of life by certain responsible citizens of the country, it would have been desirable if the process of recruitment of 104 Constables were conducted after framing of recruitment rules and also prescribing a written examination to keep the process absolutely above board”, the Court observed.

The Court observed –

“the Government itself felt that the selection being entirely based on interview, the same admitted an element of arbitrariness and that the assessment of candidates being based merely on the basis of marks at the interview, was reasonable for drawing a presumption of being misused for favouritism and could well be regarded as suffering from the vice of arbitrariness. In such circumstances, it is indeed difficult, if not impossible, for a court to law to substitute its decision for the one taken by the Government reasoning that the selection has not been challenged by any unsuccessful candidate.”

State of Assam & Ors. v. Arabinda Rabha & Ors.

Motor Accident Claims | 'Legal Representative' Is One Who Suffers Loss; Need Not Be Spouse, Child Or Parent Of Deceased

 

The Supreme Court recently ruled that the term 'legal representative' under the Motor Vehicle Act should not be given a narrow interpretation to exclude those persons as claimants who were dependent on the deceased's income

The Court said that if the claimants were dependent on the deceased's income, then they shall be granted compensation. A "legal representative" is one, who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent or child, the Court held, referring to precedents.

The bench comprising Justice Sanjay Karol and Justice Prashant Kumar Mishra heard the case where the Motor Accident Claims Tribunal (“MACT”), while awarding compensation, didn't consider the 24-year-old deceased-Appellants' (Father and Sister) as dependents of the deceased. The MACT held that the father was not dependent on the income of the deceased and since the father was alive, the younger sister cannot also be held as a dependent of the deceased.

The High Court upheld this part of the MACT's ruling, leading the Appellants to appeal to the Supreme Court.

Setting aside the impugned decision, the Court observed that the Court below had erred in refusing to consider the Appellants as dependents of the deceased.

Citing Gujarat SRTC v. Ramanbhai Prabhatbhai (1987) 3 SCC 234 and N. Jayasree v. Cholamandalam MS General Insurance Company Ltd. (2022) 14 SCC 712, the Court noted that proving loss of dependency alone is sufficient to claim compensation. It clarified that compensation is not limited to spouses, parents, or children but extends to all individuals affected by the deceased's death.

"In our view, the term “legal representative” should be given a wider interpretation for the purpose of Chapter XII of the MV Act and it should not be confined only to mean the spouse, parents and children of the deceased..We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realisation of compensation.",

“In our view, in furtherance of the above exposition of law, the appellant Nos.4 and 5 being the father and younger sister of the deceased, both not financially independent, would fall under the definition of legal representatives for the purpose of claiming the compensation under the Motor Vehicles Act, 1988, and they were considered as dependents upon the income of the deceased, as he was doing wholesale business of selling fruits to meet the day-to-day expenses of the family.”

Thus, the Court considered the Appellants were dependents and awarded them compensation.

Case Title: SADHANA TOMAR & ORS. VERSUS ASHOK KUSHWAHA & ORS.

Prevention Of Corruption Act | 'Demand & Acceptance Of Bribe Not Proved In Trap Case'

 

The Supreme Court recently acquitted two government employees accused of demanding and accepting bribe after noting that the prosecution failed to prove the factum of demand and acceptance of bribe.

The Court reiterated that a presumption under Section 20 of the Prevention of Corruption Act, 1988 (“PC Act”) would not arise against the accused unless the factum of demand and acceptance of bribe is established by the prosecution.

Further, the Court stressed the importance of the independent witnesses' testimony in trap cases to ensure the credibility of the evidence i.e., if independent witnesses turn hostile or contradict the prosecution's case, it raises reasonable doubt about the accused's guilt.

The Court found this discrepancy fatal to the prosecution's case.

“PW 8 who led the trap team merely spoke of a recovery of the bribe amounts from the possession of the accused and the hands and trousers of the accused having positively reacted to the test solution. The said deposition is contrary to the statements made by the independent witnesses that some notes were found thrown on the floor. None of the officers spoke of any of the accused having taken out the notes and thrown it on the floor.”, the court observed.

"On an examination of the entire evidence, we are of the opinion that the prosecution has failed to establish beyond all reasonable doubt, the demand of bribe and its acceptance, in a trap laid by the trap team of the ACB. In that circumstance there is no question of a presumption under Section 20 arising in this case. The conviction and sentence of the accused as brought out by the Trial Court and affirmed by the High Court, hence, is set aside.”, the court added.

MADAN LAL VERSUS STATE OF RAJASTHAN

Sale Under Power Of Attorney Unaffected By Subsequent Cancellation Of PoA

 The Supreme Court has observed that sale transactions carried out on the basis of a valid Power of Attorney (PoA) cannot be sought to be set aside later on the ground that the PoA was cancelled subsequently.

Holding so, the Court affirmed an order of the Trial Court rejecting a plaint, which sought to annul certain past sale transactions on the basis of the subsequent cancellation of the PoA.

The PoA was executed by the plaintiff in the name of the first respondent on 15.10.2004. In 2018, the plaintiff filed a suit seeking to annul certain sale transactions carried out between 2004-2006 and in 2009. The plaintiff claimed that he got knowledge about the sale transactions only on 21.09.2015 and the suit was filed within the three-year limitation period from such date. The power of attorney was cancelled on 22.09.2015.

"We are clear in our minds that the cancellation does not affect the prior conveyances made which are clearly on the strength of the power conferred on the appellant. There is no contention raised as to the power of attorney having not conferred the power to enter into conveyances or that such power of attorney was executed by reason of a fraud or coercion employed on the executant. The power holder having exercised the authority conferred; to convey the properties in the name of the purchasers, the cancellation of the power of attorney will have no effect on the conveyances carried out under the valid power conferred. Nor would it confer the person who executed the power of attorney any cause of action, by virtue of a cancellation of the power conferred by a subsequent document, to challenge the valid exercise of the power when it existed."

V Ravikumar v S Kumar

S. 45 Evidence Act | Opinion Of Handwriting Expert Must Be Treated With Caution

 The Supreme Court observed that while expert evidence may not always require corroboration, courts must exercise caution when relying on expert testimony particularly the handwriting expert due to the imperfect nature of the science of identification of handwriting.

The bench comprising Justices Vikram Nath and Sandeep Mehta heard the case where the Appellant challenged his conviction under Sections 120B (criminal conspiracy), 468 (forgery for the purpose of cheating), and 471 (using a forged document as genuine) of the Indian Penal Code (IPC). The case involved the fabrication of a mark sheet used for admission to an MBBS course.

 

The prosecution relied on the testimony of a handwriting expert to prove that the handwriting on the postal cover matched the appellant's. However, the original postal cover was never exhibited as evidence, and the prosecution failed to prove its existence.

The Appellant challenged his conviction, arguing that the expert's evidence report cannot be relied upon in the absence of the original postal cover.

 

Finding merit in the Appellant's contention, the judgment authored by Justice Mehta noted that the prosecution failed to prove the existence of the disputed postal cover, which was central to the case.

The court cited the landmark case of Murari Lal v. State of M.P. (1980) 1 SCC 704, which established principles for assessing expert evidence under Section 45 of the Evidence Act. It held that while expert testimony is not inherently unreliable, it must be carefully scrutinized, with the reasoning behind the opinion thoroughly examined. Further, it held that corroboration may be necessary depending on the case, but there is no strict rule requiring expert evidence to always be corroborated.

S.306 IPC | Suicide Note Alone Insufficient For Conviction Unless Its Proved There Was Incitement By Accused Proximate To Death

 The Supreme Court on Wednesday (March 5) set aside the conviction of a man accused of committing an offence of abetment of suicide by blackmailing the deceased using compromising photographs and videos.

The Court observed that for invoking the offence of abetment to suicide under Section 306 of IPC, the prosecution must prove instigation, conspiracy, or intentional aid with a clear mens rea to abet suicide. Mere harassment or differences are not sufficient unless there is a proximate act leading to suicide, the court said.

 

"Abetment to commit suicide involves a mental process of instigating a person or intentionally aiding a person in the doing of a thing. Without a positive proximate act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Besides, in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence,"

NI Act Allows Filing Of Cheque Dishonour Complaint At Place Of Payee Bank; Accused Can't Seek Transfer Citing Inconvenience

The Supreme Court today (March 6) ruled that a cheque dishonor complaint under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”), should be filed in the court having jurisdiction over the branch of the bank where the payee maintains an account i.e., where the cheque is presented for collection.

Taking reference to Section 142(2) introduced via the 2015 amendment to the NI Act, the Court clarified that the jurisdiction to adjudicate upon the cheque dishonor complaint lies with the court where the branch of the bank (where the payee maintains the account) is located. The 2015 amendment was brought in by the Parliament to address the confusion created by the Supreme Court's judgment in Dasrath Rupsingh Rathod v State of Maharashtra (2014) which held that the jurisdiction for cases under Section 138 is determined by the place of the bank where the cheque was drawn.

“A conjoint reading of Section 142(2)(a) along with the explanation thereof, makes the position emphatically clear that, when a cheque is delivered or issued to a person with liberty to present the cheque for collection at any branch of the bank where the payee or holder in due course, as the case may be, maintains the account then, the cheque shall be deemed to have been delivered or issued to the branch of the bank, in which, the payee or holder in due course, as the case may be, maintains the account, and the court of the place where such cheque was presented for collection, will have the jurisdiction to entertain the complaint alleging the commission of offence punishable under Section 138 of the N.I. Act. In that view of the position of law, the word 'delivered' used in Section 142(2)(a) of the N.I. Act has no significance. What is of significance is the expression 'for collection through an account'. That is to say, delivery of the cheque takes place where the cheque was issued and presentation of the cheque will be through the account of the payee or holder in due course, and the said place is decisive to determine the question of jurisdiction.”, 

No Illegality In Considering S.319 CrPC Application After Trial Based On HC's Revision Order

 

  

In a key ruling on Section 319 of Cr.P.C., the Supreme Court on Thursday (March 6) held that while the power to summon an additional accused must be exercised before the trial concludes, if a pre-trial application for summoning is rejected and the High Court, in revision, sets aside the rejection and orders reconsideration, the application cannot be dismissed solely because it was heard after the trial ends. The Court ruled that it relates back to the original pre-trial rejection order.

“What can be discerned from the aforesaid is that if the High Court passes an order in exercise of its revisional jurisdiction either setting aside or modifying the order of the Trial Court for the purpose of Section 319, the same would relate back to the original order passed by the Trial Court and substitute it to the extent of modification.”

“an order passed by the High Court in exercise of its revisional jurisdiction would relate back to the order of the Trial Court. In the present case, the Trial Court in its discretion rejected the second application filed under Section 319 before the conclusion of trial vide order dated 19.07.2010. The High Court, more than ten years after the conclusion of trial, set aside the said order and directed the Trial Court to reconsider the application under Section 319 afresh. In our considered view, such order passed by the High Court on the second application under Section 319 travels back to 19.07.2010 i.e., the date when the Trial Court rejected the said application. The effect of the order of the High Court relating back to the original order of the Trial Court is that the Trial Court cannot be considered functus officio as regards considering the application under Section 319 after the conclusion of the trial. We say so because the Trial Court, in considering the application under Section 319 after the conclusion of the trial, is merely giving effect to a revisionary order directing it to freshly consider the application which it had originally rejected.

Advocate Cannot Give Undertaking To Court Without Client's Explicit Authority

The Supreme Court recently held that given the fiduciary relationship between an advocate and a client, an advocate cannot provide an undertaking without explicit authorization from the client.

“a lawyer-client relationship is fiduciary and the former is cast in terms of agency of the latter. It is also clear that the lawyer is to respect the decision-making right of the client. It flows from this that any undertaking given to a Court cannot be without requisite authority from the client.”, the court observed.

The bench comprising Justice Pankaj Mithal and Justice Sanjay Karol heard the case where the Appellant, who were guilty of disobeying the court's injunction order, gave an undertaking in 2007 before the trial court through his lawyer stating that they would not alienate the suit property. The trial court, recording the appellant's undertaking, had extended the order on several occasions.

However, disobeying the undertaking submitted before the Court, the Appellant had alienated the suit property to some other person.

When the application under Order XXXIX Rule 2A of CPC was filed by the respondent in 2011 complaining about the Appellant's disobedience of the Court's order passed under Rules 1 & 2, the Appellant stated that they haven't authorized their lawyer to filed an undertaking which stated they would not alienate the suit's property.

Being aggrieved by the High Court's decision holding them guilty of contempt prompted the Appellants to appeal to the Supreme Court.