DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  17^th  day of  May, 2023 

Present      :   Sri. Vinay Menon V., President

                  :  Smt. Vidya A., Member                        

                  :  Sri. Krishnankutty N.K., Member                                Date of Filing: 8/11/2021  

                         CC/188/2021

Shabeer,

S/o.Muhammed,

Mambulli njalil (Darul Ayan),

Thrithala, Pattambi,

Palakkad.

Rep.by Power of Attorney Holder,

Jishar U                                                          -                       Complainant

                             (By Adv.A.A. Jamal)

                                                                                                Vs

1. Appolo Laboratory,

Padinjarangadi,

Angadi (PO),

Pattambi, Palakkad.

Rep.by Bhadusha C

2. Bhadusha C,

S/o.Moideenkutty C,

Chunkath House,

Angadi PO,

Kappur Panchayath,

Pattambi Taluk, Palakkad

3. Micro Health Laboratory,

MPS Tower, Arayadathpalam,

Opp.Federal Bank Tower,

Mavoor Road, Kozhikkode – 673 004

(OPs1 & 2 No representation,

 OP3 by Adv.M/s.K.A.Kailas & Shibu George)       -           Opposite parties  

O R D E R

By  Sri. Vinay Menon V., President

1. OP1  is a clinical laboratory. 2^nd Opposite party is the proprietor of OP1. 3^rd OP is a clinical laboratory whereto opposite party 1 had forwarded some samples for examination.
2. Complainant’s case, devoid of details, is that he was due to leave for UAE on 18/8/2021. On 11/8/2021 he had carried out Covid test and was found to be negative. In order to avail a certificate 72 hrs before departure he approached OP1 laboratory on 16/8/2021. Even by 17/8/2021 the result was not ready. Thereafter he received a report from OP3 showing that his samples were forwarded to OP3. Said report cited that the complainant was Covid Positive. Hence he could not undertake his travel on 18/8/2021. Thereafter he undertook further tests and found that he was negative for Covid. Therefore he stood to lose over Rs.1,85,000/- which he had to expend for air-fare. Aggrieved thereby this complaint is filed.
3. Opposite parties 1 and 2 had not filed version. There was no representation for them either.
4. O.P. 3 filed version contesting the complaint pleadings. They submitted that variations in result when tests were carried out in other laboratories can be had even when there are minor variations in the level of virus. This may depend on the sensitivity and efficiency of the equipments used for tests. The 3^rd opposite had already returned the test result of the sample taken on 16/8/2021 on 17/08/2021 itself to the 1^st O.P.
5. Pleadings and counter pleadings considered, the following issues were framed by this Commission:

1.         Whether the O.P.s had conducted the complainant’s Covid Test using approved standard kits and equipments?

2.         Whether there was any delay on the part of the opposite parties in giving the test result of the complainant?

3.         If yes, whether it caused the cancellation of complainant’s travel as alleged by him?

4.         Whether there is any deficiency in service on the part of the O.P.s?

5.         Whether the complainant is entitled to the reliefs claimed?

6.         Reliefs as to cost and compensation?

6. (i)     Complainant filed proof affidavit and marked Exts. A1 to A16.

O.P. objected to marking of Exts. A9, A11 and A12 on the ground that they were photocopies.  Since this Commission is not bound by the strait jackets of Indian Evidence Act and in the absence of a contention on the part of opposite party that these documents were forged or concocted, objections raised by the opposite parties are rejected.

   (ii)                OP3   filed proof affidavit. No documents were marked on their part.

Issue No.1                                                                                                                                                                                                                                

7.         Counter  pleadings of the 3^rd opposite party to scuttle the complainant’s case is that their result was correct and that result was availed by using equipments of very high quality and sensitivity. They also countered the plea of the complainant that the results in other laboratory were negative banking on this contention that their equipment was sensitive and identified the presence of Covid virus in very minute quantities. Ext.A4 is the result issued by the 3^rd opposite party showing the result to be positive. Collection date of sample is 17/8/2021.

 Ext.A2 is a test result availed on 11/8/2021 showing the result to be negative. Ext.A6, A7 and A8 are the results of samples collected on 17/8/2021, 18/8/2021 & 20/08/2021. These results show the result to be negative.

The opposite parties had no objection whatsoever in marking of said documents. Their only contention is that their equipment might have showed positive in view of its high sensitivity. In other words, their contention is that tests were conducted by other laboratories in sub-standard equipments.

8.         We are not willing to conclude that the result passed by O.P.3 is correct and others are wrong in the absence of cogent evidence based on the pleadings of O.P.3 alone. When the 3^rd opposite party raised a contention that their equipments were superior to other equipments used by other laboratories, it was incumbent on their part to prove their contention by cogent evidence.  The opposite party no.3 has failed to prove their contention. Thus there is deficiency in service on their part in providing with false results. Since they carried out the tests for and on behalf of the  OP1 & 2, they are also responsible to compensate the complainant.

            Issue No.2

9.         Next question pertains to the inordinate delay on the part of the O.P.s in providing with the test results.

Complaint pleading is that the complainant had provided sample on 16.08.2021. Ext. A3 is a printout of the invoice dated 16/08/2021 issued by the 1^st O.P. Its subscript reads as “Results providing Next Day after Evening”. Therefore, results would be available by the evening of 17/08/2021.

Ext. A4 is the Test Result Report dated 17/08/2021. Collection date is shown as 17/08/2021. So it seems collection and results were made on the same day itself. What happened to the samples collected on 16/08/2021 is not known.

10.       But the root question is whether there is any delay in providing the result. As already seen in the subscript in Ext. A3, result would have been provided only on 17/08/2021 after evening. Hence we can see that there is no delay in issuing the result by the 3^rd O.P. Either way, the complainant received the result on 17/08/2021.

11.       Thus we can find that there was no delay in providing the result to the complainant.

            Issue No. 3

12.       Next issue is whether the result or alleged delay precluded the complainant from the travel on 18/08/2021. From the fact and circumstances of the case it would be reasonable to come to a conclusion that the complainant could not leave for UAE because of Ext.A3 result showing the result to be positive.

Hence, this issue is found in favour of the complainant.

Issue No. 4

13.       In view of the findings in paragraphs 1 & 3 we hold that there is deficiency in service on the part of opposite parties.

            Issue Nos.5 & 6

13.       Resultantly we hold that the complainant is entitled to relief No. A and C and part of relief No. B, which we are ordering below:

1) The complainant is entitled to receive Rs.1,85,000/- together with interest @10% per annum from 18/8/2021 till date of payment.

            2)  The complainant is entitled to a compensation of Rs. 1 lakhs.

            3) The complainant is entitled to a cost of Rs.25,000/-

  4)   Opposite parties 1 to 3 are jointly and severally liable and responsible to meet the     above order.

5)  The opposite parties shall comply with this order within 45 days from the date of receipt of this order failing which the opposite parties shall pay an amount of Rs.500/- to the complainant per month or part thereof as solatium.

                  Pronounced in open court on this the 17^th  day of May, 2023.   

      Sd/-

                                                                                                Vinay Menon V

                                                      President

       Sd/-

   Vidya.A

                       Member        

       Sd/-                                             Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant :

Ext.A1 –  Original Bill dated 11/8/2021

Ext.A2 –  Copy of Covid test result 11/8/21

Ext.A3 – Print out of invoice dated 16/8/2021

Ext.A4 -  Print out of test result report dated 17/8/21  

Ext.A5 -  Cash bill bearing No.545931 dated 17/8/21

Ext.A6 - Covid Test result dated 17/8/21 from Sudarma Speciality Laboratory

Ext.A7 – Original laboratory report bearing No.891315 dated 18/8/21

Ext.A8 – Original print out of test report dated 20/8/21 from Spicehealth

Ext.A9 – Copy of  printout of plane ticket

Ext.A10 – Printout of money transfer  receipt for Rs.1,84,000/-

Ext.A11 – Copy of receipt dated 24/8/21 issued from Thrithala Police Station

Ext.A12 – Photocopy of relevant identification pages of passport.

Ext.A13 – Copy of lawyers notice issued by counsel for complainant.

Ext.A14 – Copy of lawyer’s notice issued in reply to Ext.A13 dated 11/10/21

Ext.A15 – Original of lawyer’s notice dated 20/9/21 issued in reply to Ext.A13

Ext.A16 – Copy of lawyer’s notice dated 11/10/21 issued in reply to Ext.A13

Exhibits marked on the side of the opposite party:    Nil

Court Exhibit:  Nil

Third party documents:  Nil

Witness examined on the side of the complainant: Nil

Witness examined on the side of the opposite party:  Nil

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.