HEMINA HITESH KOTAK vs ASHOK NATHWANI

THIS appeal is by the complainants seeking enhancement of the amount of compensation awarded to them on account of death of Hitesh Kotak caused by the negligence of the first respondent. First appellant-complainant is the widow of Hitesh Kotak, second appellant is the minor child, third is the mother. They would be legal heirs of the deceased Hitesh Kotak. Fourth appellant is the father of the deceased and the fifth is the National Consumer Protection Samiti, an NGO.

THERE are four respondents. First respondent is the doctor against whom negligence is alleged. Respondent Nos. 2 and 3 were employees working under him and the fourth respondent is the National Insurance Company Ltd. who had given cover of the insurance to the first respondent for Rs. 5 lakhs. None of the respondents have challenged the findings of negligence against the first respondent which caused the death of Hitesh Kotak a young man of 31 years of age. At the time of his death Hitesh was employed in a private firm called Ashok Buildwell and Developers Pvt. Ltd., Nasik and was drawing a monthly salary of Rs. 4,061/-. Home taking salary was Rs. 3,705/- after deduction of Rs. 356/-. Hitesh Kotak was an engineer. After having held that the death of Hitesh was caused due to medical negligence of the first respondent, State Commission examined the question of quantum of compensation. This is how State Commission considered this aspect : "Regarding the amount of compensation claimed by the complainant, it is an established principle of law that compensation awarded under Section 14(1)(d) of the Consumer Protection Act must have rational relation to the nature and extent of injury, inconvenience or physical and mental suffering caused to the complainant by the action or omission of the opposite party. In our considered opinion the complainants have failed to prove that the deceased had a permanent employment. On the contrary it is an admitted fact that he was in present job since 2 months only. The complainants have produced only his last salary slip but it does not clarify that he was on permanent basis and they have not produced any other evidence in this regard. It may also be noted here that it is the case of the complainants that the deceased was suffering from some serious cardiac ailment. In that view of the matter the burden is upon the complainants to establish the life expectancy of the deceased which they failed to prove by expert medical evidence or any other evidence. In our considered opinion, in the aforesaid circumstances the decision of the Hon''ble High Court of Gujarat in Case of Ritaben v. Ahmedabad Municipal Transport Service, 2000 ACJ 153, will hardly have any application to the present case. It is the complainant''s case that deceased Hitesh suffered from heart ailment. It is, therefore, clear that in all probability he would not have lived the normal life span of life or even reasonable span of life. The catastrophe of termination of his life had already set in much before he was treated by the opponent No. 1-doctor. In that view of the matter, this will be a fit case to award some reasonable lump sum compensation instead of working out compensation on the basis of either multiplier method or any other method based on working of compensation for a person of normal health. In above view of the matter, we are only left with an option to award reasonable lump sum compensation. In our considered opinion Rs. 50,000/- (Rupees fifty thousand only) with interest at the rate of 10 per cent per annum will be reasonable to meet the ends of justice. We also proposed to impose cost of this complaint which may be quantified Rs. 2,000/-."

We are sorry to observe that State Commission has totally misdirected itself. Human life is precious. It was lost on account of negligence in the treatment. The age of the deceased was only 31 years. He left behind a widow, a minor child and parents. He was earning Rs. 4,061/- per month and had every possibility of increase in his salary with better prospect. Person with heart ailment do survive for a longer period than what has been opined by the State Commission. How long Hitesh Kotak would have survived we do not find any answer in the reasoning of the State Commission. With a family of five members to look after Hitesh Kotak must be spending over 2/3rd of his salary for their maintenance including himself keeping apart a certain portion of his salary exclusive for himself. Looking into the provisions of the Motor Vehicles Act and other relevant provisions and the general law in considering how much harassment and loss would have caused to the complainants on account of negligence of the first respondent, we are of the view an award of Rs. 5 lakhs would meet the ends of justice.

WE would, therefore, enhance the amount of compensation from Rs. 50,000/- to Rs. 5 lakhs. Rest of the order of the State Commission regarding interest, cost etc. is sustained. Accordingly, we will further direct as under : (i) The amount of Rs. 5 lakhs should be deposited by the 4th respondent-Insurance Company with the State Commission within four weeks of the receipt of this order less any amount if already deposited.

(ii) Out of the amount of Rs. 5 lakhs, Rs. 1.50 lakh each shall be paid to Smt. Hemina Hitesh Kotak, widow of the deceased and Smt. Bhanumati Rameshchandra Kotak, mother of the deceased. The balance of Rs. 2 lakhs shall be deposited in the fixed deposit receipt in a Nationalised Bank for the welfare of the minor child Shivam Hiteshbhai Kotak. State Commission shall give appropriate direction as to how the amount of FDR will be utilised as and when any request is made by the mother of the child.

The appeal is accordingly allowed. Complainants shall be entitled to cost which we assess at Rs. 5,000/-. Out of the cost so realised one-half shall be paid to the National Consumers Protection Samiti and one-half to Smt. Hemina Hitesh Kotak, widow of the deceased. Appeal allowed.