Order No. 23 dt. 26/12/2016
Fact of the case in brief is that due to financial crisis complainant decided to sell one of his kidneys. He approached various Doctors and expressed his desire. The complainant was keeping vigilant eye on the advertisement column of newspaper on 06.05.2010. He came across an advertisement in the Ananda Bazar Patrika which mentioned that one Sanjay Ghosh of Sector I, Salt Lake City, Kolakta was in need of a Kidney. The complainant contacted with said Sanjay Ghosh and expressed his willingness to sell a Kidney. Said Sanjay Ghosh accepted his offer and it was decided between them that necessary medical test would be done at Belle Vue Clinic ( hereinafter referred to as o.p.no.1) the complainant along with Mr. Sanjay Ghosh went to clinic of OP NO.1 amd blood sample was collected from the complainant upon being referred by Dr, A. R. Nandy. The blood report dated 02/03.06.2010 issued by o.ps showed that the complainant blood was reactive to HIV Virus. Moreover in the said Blood Report the age of the complainant was incorrectly shown as 39 years, presumably on the basis of incorrect information furnished by said Sanjay Ghosh or his family members. In some subsequent reports the age of the complainant continued to be shown as 39 years on the basis of that report. Ms Vargis, the personal Secretary of Dr A R Nandy did not disclose to the complainant that he was suffering from AIDs. Instead the complainant was told that he was suffering from a fatal disease. The said report was checked and signed by o.p. nos. 2 & 3. the complainant failed to understand the nature of the disease he was suffering from. He was advised by the well wisher to go to Woodland Nurshing Home where he showed the said report to a renowned Nephrologist Dr. Lalit Agarwal. After going through the report Dr. Agarwal revealed that the complainant was infected with AIDs. The complainant was shocked to hear this. The news that the complainant was suffering from the AIDS spread in this village. The complainant was ostracized by his society. He was even driven out of his home where he used to live with his brothers and their families. The complainant faced tremendous trauma. He lost his livelihood of supplying various articles to different shops and houses. Everyone stopped talking to him. The village Panchayat asked him to leave the village. The complainant was driven to madness and he even contemplated suicide at times. However deciding to fight against all odds, the complainant went to the School of Tropical Medicine, Kolkata for further tests.
The test done at the School of Tropical Medicine showed that the complainant was non-reactive to HIV antibodies implied that the complainant was not suffering from the AIDS. Following the blood report issued by the School of Tropical Medicine, Kolkata he felt that he earned a fresh lease of life. The complainant opted for having the same test done again at B.P.Poddar Hospital & Medical Research Ltd..The report of the said hospital also showed that the petitioner was non-reactive to HIV antibodies.
Subsequently on 17.11.2011, complainant sold one of his kidneys to Smt Durga Devi Kathuria, a resident of Rohtak, Haryana. Since her kidney transplant, Durgadevi Kathuria is keeping good health and has been able to lead a normal life. Complainant is also physically fit even after the donation of one kidney.
Complainant stated in his petition that the report of o.ps was incorrect which is clear from the subsequent reports. O.p. clinic was/is under professional obligation to give correct report, especially in such sensitive matter but in the instant case o.ps have totally failed to discharge such obligation. The complainant submitted a detailed representation before the o.ps but o.ps did not response to that. Thereafter complainant was compelled to the Director, Consumer Affairs and Fair Bussiness practices, Kolkata on 10.07.2012. On the basis of such complainant a tripartite meeting was held on 06.08.2012 but the o.p. is refused to pay any compensation. Hence the application praying for Rs.12,00,000/- for mental agony and harassment suffered by the complainant as a result of negligence and deficiency of service on the part of the o.ps along with interest and cost.
O.p. appeared before this Forum and contested the case by filing written version. In their written version o.ps denied that all materials and inter alia stated that the case is not maintainable because the complainant filed a case being CC No.474 of 2012 on self-same cause of action and the case was dismissed as withdrawn vide order dated 29.05.2013 passed by this Forum granting leave to the complainant to file a complaint afresh on the self-same cause of action. By an affidavit complainant stated that he is aged about 48 years but in Annexure A of the complaint petition it appears that his age was mentioned as 39 years as on 03.06.2010. In Annexure C i.e the report issued by School of Tropical Medicine, the age of the complainant was recorded that 39 years as on 27.06.2012. In the report dated 27.07.2011 and report dated 21.09.2010 issued by School of Topical, Medicine showed that the age of the complainant was 39 years. The report issued by B.P.Poddar it appears that age of the complainant recorded as 46 years as on November,2011. In four corners of the complaint no statement has been made stating that the o.ps made any kind of suggestion and/or prescription for the treatment saveand except issuance of blood report. It was not stated how the complainant has suffered liquidity damage or the loss of any nature. The liquidity damage and penalties can only be considered when there is actual loss and not on anticipation of loss.No document has been filed showing that the complainant has suffered any kind of loss within a period of one month ten days. Complainant obtained another report contrary to the report of the o.ps. Therefore a question of suffering in any manner whatsoever cannot and/or does not arise. Complainant has made a claim of Rs.12,00,000/- without stating the reason in any in any manner how the complainant suffered such loss within 40 days. Complainant has come up with unclean hands by giving information about his age. The complainant has made a claim for compensation in anticipation. Under the medical science a report depends on multiple factors and such factors may be changed after change of the circumstances and the result for a particular test may be a different one. No allegation has been made that the patient has suffered for such wrong report. No element or intentional latches has been mentioned. Hence the case needs to be dismissed in limini with cost.
Decision with reason : -
We have gone through the pleadings of the parties along with materials on record . Upon careful scrutiny of the record we have observed that when the complainant went to o.p.1 to sell one of his kidney to one Mr Sanjay Ghosh the blood sample was collected by o.ps on 02/03rd June,2010. That blood report showed that the complainant’s blood was reactive to HIV virus. Ultimately he could not sell his kidney since the blood report of the complainant showed that the complainant was suffering from AIDS. When the complainant came to his village he was ostracized from his society. He was even driven out of his home where he used to live with his brothers and their families. The village Panchayat asked him to leave the village. If any one all on a sudden gets a report that he or she is suffering from HIV, AIDS then it would be imaginable how much mental trauma he or she can face. Complainant is a resident of a village, therefore it is easily understood that how much mental trauma he faced following the blood report conducted by o.ps.
In their w/v at first o.ps objected the case is not maintainable since complainant filed the case being no.CC/474/2012 and that case was dismissed as withdrawn vide order dated 29.05.2013 passed by this Forum. But that case was dismissed as withdrawn by granting leave to the complainant to file a complaint afresh on the self-same cause of action. So this objection mentioned in the w.v. filed by o.ps cannot be tenable in the eye of law.
In their w/v o.ps next objection is that the age of the complainant was mentioned as 39 years as on 03.06.2010 but other record shows that the age of the complainant was 46 years as on November,2011. The age was recorded in the report issued by the o.ps was wrong not due to the wrongful act of the complainant. It might be recorded based on the version of Mr. Sanjay Ghosh or the staff of the o.ps whatsoever. The serology report dated 2/3-06/2010 issued by o.ps clearly showed that the result of the anti HIV I/II of the complainant was reactive. Moreover it was mentioned in the said report that it was checked thrice. The plea taken by the o.ps that what amount of monetary loss has been suffered by the complainant is not at all acceptable since the mental trauma and harassment due to the wrong report of the o.ps cannot be determined in monetary terms . Moreover in para-6 of the w/v o.ps stated that they did not give any kind of suggestion and/or prescription for the treatment but it was the duty of o.p. no.1 to give suggestion to the complainant for further treatment . From the w/v it is clear that o.ps have acted in negligent manner. The complainant is an ordinary person and maintaining his livelihood by supplying various articles to shops and houses. When complainant made a representation along with reports of School of Topical Medicine and B.P.Poddar Hospital before o.p. no.1,the o.ps did not bother for giving wrong report to such an ordinary person of our society. They gave the importance that the age of the complainant was written wrongly without giving any cogent reason for issuance of wrong report. Moreover no scrap of papers has been filed by the o.ps wherefrom it can be revealed that o.ps made any enquiry against the issuance of wrong serology report of the complainant. There might be mistake on the part of the o.p. nos. 2 and 3 who signed the report or there may be any defect in the kit used. But o.p.1 did not take any initiative to find out the cause of making such wrong serology report of the complainant. The serology report of School of Topical Medicines showed that the complainant was non-reactive to HIV antibodies. The report of the B.P.Poddar Hospital also showed that the complainant was non-active to HIV antibodies thus confirming the report of School of Topical Medicines.
Apart from, this on 17.11.2011 complainant sold one of his kidneys to Mrs Durga Devi Kathuria who is keeping good health and has been able to lead normal life which is confirmed by a certificate issued by Durga Devi Kathuria on 29.09.2012 which is annexed with the complaint petition as Annexure F .
It is clear that the report of the o.ps was incorrect from the subsequent report issued by School of Topical Medicine and B.P.Poddar and the fact is that both the complainant and the donee of his kidney have been keeping absolutely normal health.
O.ps did not take any initiative by admitting their fault of making wrong serology report – which report is so sensitive one. If any one is advised with HIV AIDS positive we can imagine that the life of that person will be shattered suddenly and how much mental trauma and sufferings he or she can face. We cannot erase the sufferings and trauma of the complainant which was suffered for the negligent act of the o.ps but we can compensate the complainant in monetary terms to heal his damage to some extent.
In view of the above we find deficiency of service on the part of the o.ps ande as such the complainant is entitled to get relief.
Hence the complaint petition succeeds.
Hence, ordered
That the case no.412/2013 is allowed on contest without cost. O.ps are hereby directed to pay compensation of Rs.10,000/- and cost of Rs. 10,000/- within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
