HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER

These Appeals bearing No. A/101/2017 and A/87/2017 u/s 15 of the Consumer Protection Act, 1986 have been filed by the OPs and the Complainant respectively assailing the identical judgment and order bearing No. 23 dated 26.12.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I in connection with the Complaint Case No. CC/13/412, directing the OPs to pay to the Complainant, within 30 days from the date of the order, Rs. 10,000/- as compensation and Rs. 10,000/- as litigation cost, failing which the OPs shall be liable to pay interest @ 10% per annum for the entire period of default.

Both the Appeals having been directed against the identical order those are being disposed of by this common order.

The brief facts of the case, as emerging from the materials on records, are that the Complainant with an intention to donate his kidney got HIV test before donation from the OPs, the report dated 02/03.06.2010 of which showed ‘HIV reactive’ implying thereby that the Complainant was suffering from AIDS.  After such report, the Complainant having suffered from trauma and excommunication in the neighbourhood approached the School of Tropical Medicine and B.P.Poddar Hospital & Medical Research Ltd. for his HIV test further  the concerned reports dated 21.9.2010 and 15.7.2010 and 18.11.2011 of which  showed ‘HIV non-reactive’ and the second reported dated 13.7.2010 of the OP No. 1-Hospital also shows ‘HIV non-reactive’.  After such series of non-reactive reports the Complainant donated his kidney on 17.11.2011 and after such donation the donee was leading normal life as is confirmed by a certificate dated 29.5.2012 to this effect.  It is alleged in the petition of complaint that the OPs having failed to discharge their obligatory  duties carefully and properly, as is evident from HIV reactive report dated 02/03.06.2010, the Complainant had to suffer harassment, mental trauma and social stigma.  With the aforesaid factual background the Complainant moved the Complaint concerned before the Ld. District Forum which passed the order in the aforesaid manner.  Aggrieved by such order the OPs have preferred the  Appeal bearing No. A/101/2017 and the Complainant has preferred the Appeal bearing No. A/87/2017.

The Ld. Advocate for the OPs, filing BNA, submits, in the very beginning,  that as previously a Complaint Case bearing No. CC/12/474 with same cause of action and same parties was filed before the Ld. District Forum and the Ld. District Forum dismissed the same as ‘withdrawn’ by order dated 29.5.2013, so the instant case filed with the same cause of action and same parties should be dismissed the same being not maintainable.

The Ld. Advocate continues that the Ld. District Forum passed the order impugned ignoring the report No. C/80-2013 dated 30.12.2015 of West Bengal Medical Council, which, as an expert, reported that there is no deficiency in service on the part of the Clinic as also the doctors.

The Ld. Advocate adds that the Ld. District Forum did not consider as to how the Complainant was entitled to compensation.

The Ld. Advocate concludes that in view of the aforesaid submission the Appeal bearing No. A/101/2017 should be allowed and the Appeal bearing No. A/87/2017 be dismissed and  the order impugned be set aside and the Complaint be dismissed.

On the other hand, the Ld. Advocate for the Complainant submits that as the Complaint Case bearing No. CC/12/474 was withdrawn being not decided on merit by the Ld. District Forum and the present Complaint Case concerned was filed following liberty allowed by the Ld. District Forum, so the present Complaint Case concerned is maintainable.

The Ld. Advocate further submits that the reports of School of Tropical Medicine, B.P. Poddar Hospital & Medical Research Ltd. and the second report of the OP No. 1-Clinic to the effect “HIV non-reactive” indisputably establish the breach of obligatory duty of the  OPs and lack of reasonable and proper care on behalf of them as well.

The Ld. Advocate adds that incorrectness of the report dated 02/03.06.2010 of the OP No. 1-Clinic is also substantiated by the fact of leading normal life of the donee.

The Ld. Advocate continues that the compensation awarded by the Ld. District Forum does not appear to be reasonable in view of the degree of mental agony, harassment and social stigma of the Complainant in his neighbourhood and accordingly, prays for an enhancement of the amount of compensation.

The Ld. Advocate concludes that in view of the aforesaid submission the Appeal bearing No. A/101/2017 should be dismissed and the Appeal bearing No. A/87/2017 be allowed and the amount of compensation as awarded should be enhanced to a reasonable extent.

Heard both the sides, considered their respective submission and perused the materials on records.

The reports dated 21.9.2010 and 15.7.2010 of School of Tropical Medicine, the report dated 18.11.20111 of B.P.Poddar Hospital & Medical Research Ltd. and the second report dated 13.7.2010 of the OP No. 1 to the effect of “HIV non-reactive” clearly establish that the report dated 02/03.06.2010 of the OPs  to the effect “HIV reactive” was incorrect and such incorrect report on behalf of the OPs clearly establishes that the OPs did not take due care and did not discharge their duties with proper skill and care as the test in question demanded and absence of proper skill and care in discharging duties unambiguously establishes the deficiency in service on the part of the OPs.

In this context, reliance is placed on a decision of the Hon’ble National Commission in Chandigarh Clinical Laboratory Vs. Jagjeet Kaur, reported in IV (2007) CPJ 157 NC, wherein it was held, “whether harm came to the patient or nor would not be a criteria.  It is the failure on the part of the Petitioner to take due care to return a correct finding, that is at the heart of issue and in which the Petitioner completely failed.”  The aforesaid absence of due care on behalf of the OPs amounts to violation of the professional conduct and ethics as laid down in Page-7.7 of the India Medical Council (Professional conduct, etiquette and ethics) Regulation 2002.

The aforesaid facts, evidence on records and the decision of the Hon’ble National Commission clearly indicate deficiency in providing reasonable and careful service on the part of the OPs.

The compensation awarded by the Ld. District Forum appears to be unreasonable in view of the degree of mental agony, harassment and social stigma the Complainant has to face in the neighbourhood and hence, the amount of compensation requires enhancement to a reasonable extent.

Consequently, the Appeal bearing No. A/101/2017 is dismissed and the Appeal bearing No. A/87/2017 is allowed and the impugned order is modified to the following extent:

The amount of compensation is enhanced to Rs. 1,00,000/- (Rupees one lakh only).  Other aspects of the impugned order shall remain unaltered.

Both the Appeals bearing No. A/101/2017 and A/87/2017 are disposed of by this common order in the aforesaid manner.