1.      Heard Mr. K.S. Rama Rao, Advocate, for the complainant, Mr. Yashwant Prasad, Advocate, for OP-1 and Mr. Sudhir K. Makkar, Senior Advocate, assisted by Ms. Saumya Gupta, Advocate, for OP-2.  

2.      Ajay Kumar Anant Prasad has filed above complaint, for directing opposite parties-1 and 2 jointly and severally to pay (i) Rs.one crore with interest @25% p.a. compounded annually from 08.03.2016 till the date of realization; (ii) Rs.250000/- as litigation costs; and (iii) any other relief which is deemed fit and proper in the fact of the case.

3.      The complainant stated that his relative Ashok Kumar was residing in Kuwait. He asked him to come to Kuwait on work permit as a tailor. The complainant gave his consent and applied for passport in the month of January, 2016. Government of India issued Passport No.N-7007981 dated 20.01.2016, which was valid till 19.01.2026. After receiving passport, he underwent medical test on 20.01.2016 from Arab Medical Centre, Lucknow, Uttar Pradesh, vide serial No.AMC20160260864 and passport No.N-7007981. Medical Test Report dated 22.02.2016 showed Human Immunodeficiency Virus (H.I.V. 1 & 2) as “Negative” and the complainant was “Fit for the job”. Ashok Kumar, his relative, applied for issue of Entry Visa for the complainant with General Department of Residency Affairs, Kuwait, which was issued vide Entry Visa Reference No.176742930, Valid from 02.02.2016 to 01.05.2016 and delivered to the complainant at his residence at village Prithvikhera, Unnao. Ashok Kumar sponsored “the Work Contract for Private Servants and those in that category and employment of Kuwait” and the complainant was offered work contract as professional tailor on a salary of 250KD (Kuwait Dinar) per month, with one month vacation leave with pay per year and after rendering a service for two years, two months vacation leave and round trip ticket. The complainant approached M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3) for processing his visa, work contract for employment as a Tailor in Kuwait. After going through the documents of the complainant, OP-3 asked the complainant to deposit Rs.12000/-, which was deposited on 08.03.2016. OP-3 then asked the complainant to report Apollo Spectra Hospitals (OP-1) for medical test. The complainant visited OP-1 for medical test on 08.03.2016, where M/s. Oncquest Laboratories Ltd. (OP-2) collected his blood sample for conducting various medical tests. After test, OP-2 gave Medical Test Report on 10.03.2016, in which, OP-2 showed H.I.V. 1 & 2 Ag/Ab Combo Architect (CMIA) as “Provisionally Reactive”. On the basis of this report, OP-1 issued Medical Certificate dated 10.03.2016, showing the complainant as “Unfit”. The complainant, then visited Max Multi Speciality Hospital, Noida for his H.I.V. Test, where his blood sample was taken on 11.03.2016 and Laboratory Investigation Report was issued on 17.03.2016, which showed H.I.V. 1 & 2 Antibodies as “Negative”. In order to confirm, the report of Max Multi Speciality Hospital, the complainant went to Dr. Nalin Naag, at K-24E, Hauz Khas Enclave, New Delhi-110016, Senior Consultant, Internal Medicine, Indraprastha Apollo Hospital, Sarita Vihar, New Delhi, where his blood sample was collected on 30.03.2016 and Diagnostic Report dated 01.04.2016 showed Antibodies against H.I.V. 1 & 2 Antigen as ‘Negative’. On the basis of this report, Dr. Nalin Naag gave his opinion on 05.04.2016 as “No evidence of H.I.V. at this time”. The complainant once again got conducted Blood Test Report on 28.06.2016 from Uma Shankar Dixit, Sanyukt Chikitsalaya (Purush), Unnao, vide serial No.168878, who got H.I.V. Test conducted at ICTC District Hospital, Unnao, vide GCSAICTCUPUN002/16 3049-01 and report dated 30.06.2016 showed H.I.V. Antibodies “Negative”. Four consecutive blood test reports of the complainant showed H.I.V. Antibodies “Negative”, from which, it is proved that report and certificate dated 10.03.2016 given by opposite parties-1 and 2 are incorrect. Opposite parties-1 and 2 negligently held that the complainant as H.I.V. 1 & 2 Ag/Ab Combo Architect (CMIA) as “Provisionally Reactive” and he is “Unfit” for service. Due to incorrect reports of opposite parties-1 and 2, the complainant could not secure the job in Kuwait and opposite party-3 withheld his Entry Visa. Apart from the loss of the opportunity to earn, false report inflicted mental, physical and emotional injury to the complainant. Social image of the complainant was tarnished and he had been left alone. At that time one Kuwait Dinar was equivalent to INR 221 as such the complainant suffered a loss of Rs.1326000/- for the period of two years. The job was extendable as such, the complainant was entitled for a compensation of Rs.2/- crores for loss of income and mental agony. The complainant gave legal notice dated 17.08.2016 to the opposite parties, calling upon them to pay compensation to him. The opposite party-1 gave reply dated 22.09.2016, stating that as per report, the complainant was found H.I.V. provisionally reactive as such the certificate of ‘unfit’ was given. Opposite party-2 gave reply dated 21.12.2016, stating that blood sample of the complainant was tested as per the Guidelines issued by National AIDS Control Organization, Ministry of Health & Family Welfare, Government of India. One method showed a provisionally reactive response as mentioned in the report dated 08.03.2016. The sample was rechecked and final test report dated 10.03.2016 was “H.I.V. Non-reactive”. Alleging deficiency in service on the part of the opposite parties, the complaint was filed on 15.02.2017.

4.      Apollo Spectra Hospital (OP-1) filed its written version on 15.05.2017 stating that the complainant was offered work contract at Kuwait as professional tailor. The complainant approached M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3) for processing his Visa for Kuwait. M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3) advised the complainant to undergo medical, including H.I.V. test at Apollo Spectra Hospital (OP-1). The complainant visited the hospital (OP-1) on 08.03.2016 and underwent various tests including H.I.V. test at M/s. Oncquest Laboratories Ltd. (OP-2), having laboratory facilities at premises of OP-1. The test report of the complainant dated 08.03.2016 indicated H.I.V. 1 & 2 Antibody Test-1.01. Biological reference range >1.00 -Non Reactive and <1.00 –Provisionally Reactive. On 10.03.2016, the complainant once again gave samples and after laboratory tests, the report was found to be Provisionally Reactive for H.I.V. 1 & 2 Antibody Test-1.01, based on the following methods: H.I.V. 1 & 2 Ag/Ab Combo Architect (CMIA)- Provisionally Reactive. H.I.V. 1 & 2 By J > MITRA TRIDOT RAPID CARD-Non-Reactive. H.I.V. 1 & 2 Alere Rapid Card by Oncquest Lab. Final Result- Non Reactive based on (Apollo Spectra Onquest Report. Whatever Lab Reports were received by OP-1, it were shared with M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3). It was primary duty of OP-1 to share all the reports to OP-3. OP-1 followed Khadmat Medical Health Check Guidelines. These reports clearly mentioned the biological reference range. The medical test reports of Apollo Spectra, Max Hospital and Apollo Hospital were sent to Kuwait Government for final decision by M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3), who finally denied travel of the complainant. National AIDS Control Organization recommends repeat testing be undertaken after 14-28 days. First report by one method showed Provisionally Reactive. The complainant needs to follow up after 28 days and then after 3 months. OP-1 acted in accordance with his professional standard and duties, while giving relevant report. It has been denied that OP-1 gave any false report of “Provisionally Reactive” or committed deficiency in service. The complaint is liable to be dismissed.

5.      M/s. Oncquest Laboratories Ltd. (OP-2) filed its written reply on 15.05.2017 stating that it is a leading super specialized diagnostic laboratories in the country, accredited by the College of American Pathology and National Accreditation Board for Hospital. OP-2 utilizes the finest equipment and leading technology along with adhering to all mandatory standard practices and protocols prescribed for the tests, as a result of which, OP-2 as acquired a remarkable reputation and goodwill. OP-2 is known for its excellence in Molecular and Clinical Diagnostics with more than 33 laboratories, 200 collection centres and 1300 business associates partners across the country. OP-2 provides pathology services to OP-1 and is operating a Collection Centre and a Testing Selected Basic Parameter in the premises of OP-1 under a business arrangement. All other tests are performed at main lab of OP-2, situated at its registered office address. National AIDS Control Organization (NACO) has issued guidelines for HIV test. The guidelines provide for “Strategy 3” procedure to be followed to ensure that the test results are accurate. NACO guidelines also prescribed a HIV Test Report Format as in Annexure-3 of the said guidelines, which requires to provide details of all the tests so that the test requisitioning authority receives the most accurate information and the HIV test report form in which such information is finally relayed to the patient by the competent authority. The guidelines in Chapter 5 titled as “National Strategies and Algorithms for HIV Testing” state that HIV testing strategies involve a logical sequence for performing two or more tests, one after the other (serial) to arrive at a conclusion on the HIV status of a person being tested. A testing algorithm refers to the combination and sequence of specific tests that are used to fulfil the testing strategy. The apparent rationale behind such a detailed testing and reporting guidelines is the social and medical implications associated with someone being declared HIV positive. At present test are conducted strictly in conformity of NACO Guidelines. The complainant was referred by OP-1 for HIV 1 & 2 tests. OP-2 took blood sample of the complainant on 08.03.2016. The sample was registered as per the standard protocol and a lab registration ID was generated. OP-2 conducted blood tests as per guidelines of NACO. HIV 1 & Ag/Ab Combo Architect (CMIA) test to which the sample was tested showed as “Provisionally Reactive”. According to the prescribed protocol of Strategy-3, OP-2 continued to conduct more tests, namely J MITRA TRIDOT RAPID CARD and Alere RAPID CARD to which the complainant was showed as “Non-Reactive”. Hence the final results states “Non-Reactive”. All the three tests are based on different testing principles/technology. The Test Report was prepared in accordance with the HIV Report Format as prescribed in Annexure-3 of the NACO guidelines. The NACO guidelines provide for the specimen is subjected to one test for HIV reactivity and if it is non-reactive, the specimen is considered to be free of HIV. However, if the specimen is reactive, it is subjected to a second test, which utilises a system different from the first one i.e. the principle of the test and/or the antigen used is different. If the second test also gives a positive report, the specimen is subjected to third test. Only on positive confirmation of the third reactive test, a specimen is reported as positive. The Architect HIV Ag/Ab Combo Assay is a chemiluminescent microparticle immunoassay (CMIA) and the same is a highly sensitive test which has a claimed sensitivity of 100% and a specificity of 99.62%. Even the NACO Guidelines state that tests with high sensitivity may show a few false positives but will not miss any true positive. The final report dated 10.03.2017 further explains that three different methods/kits were used. It further states that NACO recommends a repeat testing undertaken after 14-28 days. It is specifically stated in the ‘comment’ portion of the report that “As false positive result can occur due to certain cross-reacting antibodies, all positive cases are advised a repeat test using another methodology. It is further specifically stated that Supplemental test like Western Blot and confirmation by molecular technique (RT-PCR) is mandatory before pronouncing the patient positive for HIV 1 & 2. The report also states that test values vary depending on the assay method used. It is pertinent to mention that the report is prepared and information furnished therein in accordance with the guidelines prescribed in this behalf by NACO. Test Report was submitted in a sealed envelope only to the designated authorities of OP-1. OP-2 adhered to all the confidentiality principles as is mandated in HIV test results, being socially, mentally and physically sensitive. OP-2 has no knowledge in respect of Medical Certificate prepared by OP-1 declaring his as “Unfit”. There is no deficiency in service by OP-2 and the complaint is liable to be dismissed against it.

6.      M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3) filed its written reply on 26.04.2017 stating that it has been authorised by Ministry of Health, Government of Kuwait to manage and operate the process of medical examination and screening of expatriates bound from Republic of India to State of Kuwait. It used to conduct screening pertaining to the medical fitness and the health of the person intending to go to Kuwait as expatriates or visit to State of Kuwait from Republic of India. Ministry of Health of Kuwait Government has prescribed stringent norms for screening of the expatriates of the State of Kuwait, in which a set of criteria for testing and declaring the medical fitness status has been given. The complainant wanted to go to Kuwait voluntarily approached OP-3 and deposited Rs.12000/- for his screening of medical fitness. OP-3 referred the complainant to OP-1 for medical test. On undergoing screening/medical examination, it was noticed that the complainant was Provisionally Reactive. As per norms of Ministry of Health of Kuwait Government and based on which is the medical guidelines followed by OP-1, only person with HIV Non-Reactive is declared “Fit” and all borderline cases are considered as “Unfit”. The person, having the aforementioned HIV Provisionally Reactive, falls within the category of the persons, who cannot be passed in the screening/medical examination.  As the complainant was found unfit, his process fee of Rs.12000/- was returned to him on 20.06.2016. Therefore, the complaint qua OP-3 is not maintainable and is liable to be dismissed.

7.      The complainant filed Rejoinders to the written replies filed by the respective opposite parties, Affidavit of Evidence of Ajay Kumar Anant Prasad and documentary evidence. OP-1 filed Affidavit of Evidence, Affidavit of Admission/Denial of the documents of Ajit Kumar and documentary evidence. Opposite Party-2 filed Affidavit of Evidence, Affidavit of Admission/Denial of the documents of Dr. Partha Roy and documentary evidence. Opposite party-3 filed Affidavit of Evidence, Affidavit of Admission/Denial of the documents of Mrs. Alka Dabas and documentary evidence. All the parties filed short synopsis of the arguments and argued at length.

8.      We have considered the arguments of the counsel for the parties and examined the record. M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3) was authorised by Ministry of Health, Government of Kuwait to manage and operate the process of medical examination and screening of the expatriates from Republic of India to State of Kuwait. M/s Khadamat Integrated Solutions Pvt. Ltd. entered into an agreement dated 05.02.2015 and supplementary agreement dated 28.09.2015 with Apollo Health and Lifestyle Limited for carrying out medical examination of the persons referred by it as per norms prescribed by Government of Kuwait. Apollo Spectra Hospitals (OP-1) is a group of hospitals of Apollo Health and Lifestyle Limited. M/s. Oncquest Laboratories Ltd. (OP-2) is a specialized diagnostic laboratory, accredited by the College of American Pathology and National Accreditation Board for Hospital. Apollo Spectra Hospitals (OP-1) entered into an agreement of September, 2015 with M/s. Oncquest Laboratories Ltd. for providing pathological service.

9.      The complainant was offered work contract as professional tailor on a salary of 250KD (Kuwait Dinar) per month, with one month vacation leave with pay per year and after rendering a service for two years, two months vacation leave and round trip ticket. The complainant obtained Passport No.N-7007981 dated 20.01.2016, valid till 19.01.2026 and Entry Visa Reference No.176742930, valid from 02.02.2016 to 01.05.2016 for going to Kuwait. The complainant approached M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3) for processing his Visa and screening his medical condition and deposited Rs.12000/- on 08.03.2016. OP-3 sent the complainant to Apollo Spectra Hospitals (OP-1) for medical test, where OP-2 took blood sample of the complainant on 08.03.2016. As per OP-2, it conducted blood tests as per guidelines of NACO. HIV 1 & Ag/Ab Combo Architect (CMIA) test to which the sample was tested showed as “Provisionally Reactive”. According to the prescribed protocol of Strategy-3, OP-2 continued to conduct more tests, namely J MITRA TRIDOT RAPID CARD and Alere RAPID CARD to which the complainant was showed as “Non-Reactive”. Hence the final results states “Non-Reactive” in the Test Report dated 10.03.2016. All the three tests are based on different testing principles/technology. The Test Report was prepared in accordance with the HIV Report Format as prescribed in Annexure-3 of the NACO guidelines. The NACO guidelines provide for the specimen is subjected to one test for HIV reactivity and if it is non-reactive, the specimen is considered to be free of HIV. However, if the specimen is reactive, it is subjected to a second test, which utilises a system different from the first one i.e. the principle of the test and/or the antigen used is different. If the second test also gives a positive report, the specimen is subjected to third test. Only on positive confirmation of the third reactive test, a specimen is reported as positive. The Architect HIV Ag/Ab Combo Assay is a chemiluminescent microparticle immunoassay (CMIA) and the same is a highly sensitive test which has a claimed sensitivity of 100% and a specificity of 99.62%.

10.    As per OP-1, the test report of the complainant dated 08.03.2016 indicated H.I.V. 1 & 2 Antibody Test-1.01. Biological reference range >1.00 -Non Reactive and <1.00 –Provisionally Reactive. On 10.03.2016, the complainant once again gave samples and after laboratory tests, the report was found to be Provisionally Reactive for H.I.V. 1 & 2 Antibody Test-1.01, based on the following methods: H.I.V. 1 & 2 Ag/Ab Combo Architect (CMIA)- Provisionally Reactive. H.I.V. 1 & 2 By J > MITRA TRIDOT RAPID CARD-Non-Reactive. H.I.V. 1 & 2 Alere Rapid Card by Oncquest Lab. Final Result- Non Reactive based on (Apollo Spectra Onquest Report. Whatever Lab Reports were received by OP-1, it were shared with M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3). It was primary duty of OP-1 to share all the reports to OP-3. OP-1 followed Khadmat Medical Health Check Guidelines. As per OP-3 Ministry of Health of Kuwait Government has prescribed stringent norms for screening of the expatriates of the State of Kuwait, in which a set of criteria for testing and declaring the medical fitness status has been given. As per norms of Ministry of Health of Kuwait Government and based on which is the medical guidelines followed by OP-1, only person with HIV Non-Reactive is declared “Fit” and all borderline cases are considered as “Unfit”.

11.    Present complaint has been filed on the allegations that OP- 2 gave false medical test report of H.I.V. 1 & 2 Ag/Ab Combo Architect (CMIA) as “Provisionally Reactive”, on the basis of which, OP-1 held that the complainant as “Unfit” for service. Due to incorrect reports of OP-1 and 2, the complainant could not secure the job in Kuwait and OP-3 withheld his Entry Visa, resulting in financial loss. Apart from the loss of the opportunity to earn, false report inflicted mental, physical and emotional injury to the complainant. Social image of the complainant was tarnished and he had been left alone. In order to prove the allegation that the medical report given by OP-2 was incorrect, the complainant has filed Medical Report dated 22.02.2016 of Arab Medical, Medical Report dated 17.03.2016 of Max Hospital, Medical Report dated 01.04.2016 of Apollo Hospital and Medical Report dated 28.06.2016 of ICTC District Hospital, Unnao, in which, HIV report of the complainant was found as negative.  

12.    The OPs produced National Guidelines for HIV Testing, 2015 issued by NACO.  First step of testing in serological test and second step is screening test HIV 1 & Ag/Ab Combo Architect (CMIA) test to which the sample was tested showed as “Provisionally Reactive”. According to the prescribed protocol of Strategy-3, OP-2 continued to conduct more tests, namely J MITRA TRIDOT RAPID CARD and Alere RAPID CARD to which the complainant was showed as “Non-Reactive”. Hence the final results states “Non-Reactive” in the Test Report dated 10.03.2016. All the three tests are based on different testing principles/ technology. The Test Report was prepared in accordance with the HIV Report Format as prescribed in Annexure-3 of the NACO guidelines. The NACO guidelines provide for the specimen is subjected to one test for HIV reactivity and if it is non-reactive, the specimen is considered to be free of HIV. However, if the specimen is reactive, it is subjected to a second test, which utilises a system different from the first one i.e. the principle of the test and/or the antigen used is different. If the second test also gives a positive report, the specimen is subjected to third test. Only on positive confirmation of the third reactive test, a specimen is reported as positive. The Architect HIV Ag/Ab Combo Assay is a chemiluminescent microparticle immunoassay (CMIA) and the same is a highly sensitive test which has a claimed sensitivity of 100% and a specificity of 99.62%. As per OP-1, The test report of the complainant dated 08.03.2016 indicated H.I.V. 1 & 2 Antibody Test-1.01. Biological reference range >1.00 -Non Reactive and <1.00 –Provisionally Reactive. On 10.03.2016, the complainant once again gave samples and after laboratory tests, the report was found to be Provisionally Reactive for H.I.V. 1 & 2 Antibody Test-1.01, based on the following methods: H.I.V. 1 & 2 Ag/Ab Combo Architect (CMIA)- Provisionally Reactive. H.I.V. 1 & 2 By J > MITRA TRIDOT RAPID CARD-Non-Reactive. H.I.V. 1 & 2 Alere Rapid Card by Oncquest Lab. Final Result- Non Reactive based on (Apollo Spectra Onquest Report. Whatever Lab Reports were received by OP-1, it were shared with M/s Khadamat Integrated Solutions Pvt. Ltd. (OP-3). It was primary duty of OP-1 to share all the reports to OP-3. OP-1 followed Khadmat Medical Health Check Guidelines. As per OP-3 Ministry of Health of Kuwait Government has prescribed stringent norms for screening of the expatriates of the State of Kuwait, in which a set of criteria for testing and declaring the medical fitness status has been given. As per norms of Ministry of Health of Kuwait Government and based on which is the medical guidelines followed by OP-1, only person with HIV Non-Reactive is declared “Fit” and all borderline cases are considered as “Unfit”.

13.    Only for the reasons that in subsequent test HIV was found “Non Reactive”, it cannot be said that OP-2 committed negligence in screening test.  So far as OP-1 and 3 are concerned they had followed the guidelines of Ministry of Health, Government of Kuwait. As the complainant had to go to Kuwait as such he had to be screened as per guideline of Kuwait. In view of the aforesaid discussions, we do not find any negligence on the part of the opposite parties.

O R D E R

In view of the aforesaid discussions, the complaint is dismissed.