IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 28th day of January 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 237/2021 (Filed on 11/10/2021)
Petitioner : Ancy Mary A.U.
W/o. Robin Mathew,
Kocherilpongampuzha house,
Nalunakkal P.O. Vakathanam,
Kottayam- Pin – 686538
(Adv. Jose Joseph K.)
Vs.
Opposite party : D.D.R.C. SRL Diagnostic Services
Ltd. Building No.12/1391-B,
Opposite General Hospital,
K.K. Road, Kottayam – 686002
Rep. by its Manager.
(Adv. Anil Kumar, Adv. Ranjit
Babu an Adv. Ligemol C. John)
O R D E R
Sri. Manulal V.S. President
Complaint is filed under Section 35 of Consumer Protection Act, 2019
The crux of the complaint is as follows.
The complainant and her husband are working as staff nurse in Aster Hospitals & Clinics, Oman. They have come over to Kerala to visit their parents. They have booked return ticket through Fayeda Travel and Tourism for going back on 24-09-2021 by Air-India Express at 8.05 A.M. The rate of ticket for them was 140 Oman rial equal to Rs.27,135/-. RTPCR test was to be taken within 48 hours before the journey and passengers whose test result was got negative alone were allowed to travel. The complainant and her husband approached the opposite party for the test on 22-09-2021. The sample was taken by 12 PM and the result was available by 3.20 AM on 23-09-2021. The result of the complainant was covid positive and that of her husband was negative. As the test result of the complainant was covid positive and her husband had primary contact with the complainant, they had decided to cancel the flight ticket and postpone the journey.
The complainant had no symptoms of covid. To check the veracity she underwent antigen test in Paret Mar Ivanios Hospital, Puthuppally on 23-09-2021 at 12.30 PM and the test result was negative. Further she underwent RTPCR test in Dianova Laboratories, Kottayam on 23-09-2021 at 5 PM and General Hospital, Kottayam on 24-09-2021 to rule out the possibility. The result of RTPCR in Dianova laboratories, Kottayam and General Hospital, Kottayam were covid negative. It is averred in the complaint that there is an irregularity and negligence on the part of the opposite party in conducting the RTPCR test of the complainant. The finding of the opposite party that the complainant was covid positive on 23-09-2021 is wrong. The act of the opposite party is dereliction of duty and unfair trade practice. The complainant and her husband could not travel as planned and they were compelled to book ticket at higher rate. The loss in the payment of ticket at 395 Oman rial is Rs.76,559/- and loss of salary of the complainant and her husband amounts to Rs.1,39,548/-. It is further averred in the complaint that the undue hardship and agony has been caused to the complainant by the act of the opposite parties and they are liable to be compensated for the same. Hence this complaint is filed by the complainant to direct the opposite party to pay Rs.2,18,307/- with interest of compensation of Rs.1,50,000/-.
Upon notice opposite party appeared before the Commission and filed version contenting as follows.
The reports released by the opposite party is correct and suffer from no irregularity or shortcoming. The complainant on the basis of surmises and conjectures and without any basis is claiming the report to be faulty.
The opposite party is a private limited company having its corporate office at DDRC SRL Tower, G-131, Panampipply Nagar, Ernakulum. The opposite party has a state of art mechanism and highly skilled pathologists/doctors to conduct pathological examinations including those conducted in respect of the complainant. Utmost skill and standard are needed in all examinations subject to inherent limitations which every pathological examination carries. All other parameters for samples were co-relating. The internal quality controls on the day of complainant’s test and previous day for the said parameters are well within the range. There are many reasons which could lead to variation in parametes for the same persons viz. depending on the time frame of collection of sample, method of collection, transportation, processing and reporting based on the equipment and kits used by performing lab.
The complainant and her husband approached the opposite party for test on 22-09-2021 by 12.00 PM and the sample of the complainant was taken and the result was obtained by 3.20 AM on 23-09-2021 after receiving Rs.500/- for each test. The opposite party or the staff of the opposite party had never behaved rudely and arrogantly towards the complainant and her husband at any point of time. It is to be noted that it has been observed that a cohort of patients were intermittent negative PCR test too. It may happen when the viral concentration in the provided specimen becomes low or is around detection limit of RTPCR test. As per ICMR communication, as CT value of cutoff of <35 with a good sigmoidal RTPCR curve is considered as positive. Every test are done with stringent NABL accredited quality standards, RTPCR test area also conducted strictly following the guidelines and protocol of ICMR, Department of Health Research Ministry of Health and Family Welfare Government of India and also with the time to time regulation issued by Government of Kerala. Moreover the government of India in accordance with ICMR guidelines is conducting a quality assurance program wherein the opposite parties sending five positive and five negative samples to National Institute of Virology. It is submitted by this opposite party that till this date the opposite party has never received any bad or negative remarks from the concerned department. The kits used for testing is CE/IVD marked and is of superior quality. So false reporting chances are negligible. As per the guidelines issued by the concerned statutory bodies, the duration of viral RNA detection shedding has been observed for as long as 104 days. The guidelines of government of Kerala dated 19-11-2020 with regard to the test in patient states that a subset of a patient has intermittent negative PCR test when the virus concentration in sample material becomes low or is beyond the detection limit of test. There was no deficiency or service and unfair trade practice on the part of the opposite parties. Hence the complaint is liable to be dismissed.
Evidence part of this case consists of deposition of Pw1 and Dw1. Ext.A1 to A11 were marked from the side of complainant. No documentary evidence from the side of opposite parties.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
- Whether there is any deficiency in service on the part of the opposite parties?
- If so, what are the reliefs?
For the sake of convenience, we would like to consider Point No.1 and 2 together.
Point No.1 and 2.
The specific case of the complainant is that the complainant and her husband who were working as staff nurse in Aster Hospital, Oman have came to Kerala. The complainant and her husband approached the opposite party for
RTPCR test on 22-09-2021. It is proved by Ext.A1 series that the complainant had paid Rs.500/- each for the covid 19 RTPCR test to the opposite parties on 22-09-2021. There is no dispute on the fact that as per test conducted by the opposite parties, the complainant was covid positive on 23-09-2021 and her husband was covid negative on the same day. Ext.A2 is the test result issued by the opposite party to the complainant. According to the complainant, as per the guidelines issued by DGCA, the passengers were not allowed to travel in the Air craft without RTPCR negative result within 48 hours of the journey.
Since the complainant had no symptoms of covid, according to her to check the veracity of test result issued by the opposite party, she underwent antigen test in Paret Mar Ivanious Hospital, Puthuppally on 23-09-2021. Ext.A3 is the test result issued by Paret Mar Ivanios Hosptial, Puthuppally. On going through the Ext.A3, we can see that when a covid antigen test done, the complainant was negative on 23-09-2021. It is proved by the Ext.A4 that in order to ascertain the veracity of result in Ext.A2 and A3, she again approached Dianova Laboratory, Kottayam for further covid test. Ext.A4 proves that the RTPCR test result showed that the complainant was covid negative on 24-09-2021 at 8.37 AM. Ext.A5 proves that further the complainant underwent RTPCR test in General Hospital, Kottayam on 24-09-2021. Ext.A5 proves that on 24-09-21 also the complainant was covid negative.
The complaint was resisted by the opposite parties by saying that lot of patients have been tested negative in RTPCR test though they have symptoms of covid and vice-versa. It may happen when viral concentration in the provided specimen becomes low or is beyond the detection limit of RTPCR test. Dw1 who is the medical practioner, Grace Hospital, Aymanam deposed that an accuracy and finality of RTPCR test with viral load to maximum in 3-5 days is 90%. He further deposed that the 10% of persons with no symptom may be positive. He further deposed that generally covid symptom may last 14 days. Though the possibilities contented that as per the ICMR communication, as CT value cutof <35 with age good sigmoidal RTPCR curve is considered as positive. In Ext.A2, the opposite party did not disclose about the viral concentration of the complainant. Dw1 deposed before the Commission that if the serum sample taken for RTPCR test is misplaced, the result may vary. He further deposed during the cross examination that if the viral concentration is less it can be detected in RTPCR test and the viral load will be there in patients body up to 7th day. Thus we cannot accept the contention of the opposite party is that the RTPCR test done at Paret Mar Ivanios Hospital, Puthuppally and Dianova lab, Kottayam and district hospital, Kottayam became negative due to low viral concentration in the body of the complainant. It is evident from the available evidence that the opposite parties are negligent in conducting the RTPCR test of the complainant with utmost caution and care and the act of the opposite party amounts to deficiency in service.
Ext.A6 proves that the complainant had booked return ticket to Oman through Fayeda travel and tourism by Air India Express on 24-09-21. Ext.A1 further proves that the complainant had paid Rs.140 Oman rial towards the travel expense to Fayeda travel and tourism. Ext.A8, which is the copy of ticket issued by Air India Express proves that the complainant had booked an Air ticket for herself and her husband Robin Mathew by flight No.IX-443 of the Air India Express, it is scheduled to be departed from Kochi to Muscat on 24-09-2021 by 8.5 AM. Thus it is mandatory as per the DGCA guidelines prevailing at that time that the RTPCR test are to be taken within 48 hrs before journey and passengers whose test result was negative alone were allowed to travel. Thus the complainant and her husband were bound to prove RTPCR test negative result which is obtained within 48 hours before 8 am on 24-09-2021. It is proved by Ext.A4, that the complainant reported for the RTPCR test at 5.00 pm on 23-09-2021 and the result was prepared at 8.30 AM on 24-09-2021 and Ext.A5 proved that the complainant reported for the test at 2.47 pm on 24-09-2021 and the result was approved at 9.33 pm on the same day. Thus it is proved by Ext.A4 and A5, the complainant could not travel by using Ext.A8 Airline ticket on 24-09-2021 as per the direction of DGCA. Though she had conducted an antigen test on 23-09-2021, the person who possess a covid negative antigen test result was not allowed to travel abroad as per the direction of DGCA during that time. Further we are of the opinion that the contention of the opposite party is that the complainant delayed the travel without using the result of the 2nd test result would not sustain. As per the guidelines of the government of India and other authorities, the person proved covid positive and the person who had primary contact with the covid positive persons had to undergo quarantine for 14 days. Thus the issuance of Ext.A2 wrong covid positive certificate to the complainant would lead to the mandatory quarantine for complainant and her husband. This caused much mental agony and financial loss to the complainant. Though the complainant produced Ext.A10 wage slip of the complainant to prove for her and her husband’s salary, on perusal of Ext.A10 documents, we can see that this was the pay slip for the month of August 2021. The complainant did not produce any evidence to prove that she had lost her salary for the period from 24-09-2021 to 15-10-2021, the date on which she and her husband returned to Oman.
No doubt due to the negligence, inadequacy and imperfection in service, which is rendered by the opposite party to the complainant had caused much mental agony and financial loss to the complainant. For which the complainant is liable to be compensated.
On the evaluation of above discussion we are of the opinion that the complainant succeeded to prove her case and the complaint is to be allowed. Thus we allow the complaint and pass the following Orders.
- We hereby direct the opposite parties to pay Rs.27,135/-, which is equivalent to 140 Oman rial as the cost of Air ticket incurred by the complainant for the journey on 24-09-2021.
- We hereby direct the opposite party to pay Rs.50,000/- as compensation for the deficiency in service and unfair trade practice.
The Order shall be complied within 30 days from the date of receipt of copy of this Order. If not complied as directed, the award amounts will carry 9% interest from the date of Order till realization
Pronounced in the Open Commission on this the 28th day of January, 2023
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Mathew Varghese
Witness from the side of opposite party
Dw1 – Dr. P.R.. Kumar
Exhibits marked from the side of complainant
A1 – Receipt in the name of Ancy Mary dtd.22-09-21 issued by opposite party
A1(a) - Receipt in the name of Robin Mathew dtd.22-09-21 issued by opposite
party
A2 – Test result issued by opposite party
A3 – Lab result dtd.23-09-21 by Paret Mar Ivanios Hospital
A4 – Lab result dtd.24-09-21 by Dianova laboratories
A5 –Copy of test result dtd.24-09-21 by General Hospital
A6- Copy of tax invoice No.SIHO2118596 issued by Fayeda Travel & Tourism
A7 – Copy of tax invoice No.SIHO2124126 issued by Fayeda Traves & Tourism
A8 – Copy of flight ticket dtd.24-09-21 in the name of complainant
A9 – Copy of flight ticket dtd.15-10-21 in the name of complainant
A10- Copy of payslip for the month of August 2021 (Employee code 140515)
A11- Power of attorney
Exhibits from the side of opposite party
Nil
By Order
Sd/-
Assistant Registrar
