Haryana

Ambala

CC/37/2021

Rahul Sharma - Complainant(s)

Versus

Directorate Gen of Health Services - Opp.Party(s)

Pawan Yadav

20 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case No.	:	37 of 2021
Date of Institution	:	19.01.2021
Date of decision	:	20.12.2022

Rahul Sharma aged 26 years son of Shri Vinay Kumar Sharma, resident of House No. 334/35, Prem Nagar, Ambala City.

          ……. Complainant.

                                                Versus

1. Directorate General of Health Services, Government of Haryana, Sector-6, Panchkula.
2. CMO, Civil Hospital, Ambala City.
3. Dr.Gulnar, Medical Officer, Civil Hospital, Ambala City.                                                                               

….…. Opposite Parties

Before:         Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member.          

 

Present:      Shri Pawan Yadav, Advocate, counsel for the complainant.

                     Shri Pardeep Malik, Public Prosecutor for the OPs.                         

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

i) To compensate the complainant to the tune of Rs.1,50,000/- on account of loss of salary of two months, cancellation of Air and train tickets, Covid -19 Tests etc along with the interest @ 2% per month and future interest.

ii) To pay compensation/damages of Rs.2,00,000/- on account of mental agony, trauma and harassment suffered by the complainant.

iii) To pay the cost of litigation amounting to Rs. 33,000/-.

Or

Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the father of the complainant had expired and due to this reason after completing his Diploma in Mechanical Engineering, the complainant was deputed as Business Development Executive in ALSHAL PURE DRINKING WATER LLC, Company situated at 29th St-A1, QUOZAIDUOZ, Industrial Area 4-Dubai, United Arab Emirates. After his selection, the complainant went to Dubai on 14th November, 2019 from India to join his job. The complainant had two years contract with the said company. The complainant was getting salary in Dubai currency, which is 2500 Dirham per month including all other allowances, incentives, gratuity etc. The salary in Indian currency of the complainant is Rs.55000/- per month. After one year, the complainant came back to India after taking leave from company, as his mother was ill. Since the complainant had an agreement/contract for two years, so the complainant prior to returning back home have to sign a bond with the company that he will return back within one month and in case, the complainant had not returned back within one month, then the complainant have to work for one month without pay. The complainant booked his tickets on 21.12.2020 from AIR India for departure on 06.01.2021 to Dubai and the cost of air tickets is Rs.9553.50 Ps which was debited from his account maintained with Axis Bank and the complainant also booked his tickets from Ambala to Delhi in Vande Bharat Express Train for 03.01.2021 and the fair ticket of the train is Rs. 650.50 P. Since due to Corona Pandemic, the complainant had to get his corona test prior to going to Dubai, so he went to the office of OP No.2 in Civil Hospital, Ambala City for corona Test and had paid Rs.900/- as Emergency fee for Test on 03.01.2021. Although the complainant was absolutely fine and have no symptoms, despite that the complainant got conducted his Covid Test just to follow up the protocol. On 04.01.2021, the complainant received his report and was shocked to know that his report was positive. OP No.3 told him to cancel his flight and take all precautions while sitting at home. The complainant and his family were in huge trauma due to hearing the news that the complainant was positive of Covid-19. Since the complainant had no symptoms, so he told. The OP No.3 to get his test again, for which they refused and start calling him to take of precautions etc and to cancel his tickets by threatening him not to put in danger the country and other people. The complainant went for another Covid Test on 5.1.2021 from KOS Diagnostic Lab, Cantt and received his report as Negative. When he showed that report to OPs No.2 and 3, then they told him for another test of Covid. The complainant went to Civil Hospital, Ambala Cantt on 06.01.2021 and again the complainant received his test report as Negative on 8.1.2021. The complainant had sent his first report of Civil Hospital, Ambala to his HR in Dubai and told to them that the complainant was positive of Covid, so they refused the complainant for joining his job in Dubai. After that the complainant apprized about other reports, but they did not agree. The complainant and his family members have suffered a lot of trauma and tension due to wrong Covid report given by OPs No.2 and 3 and due to that the complainant could not join his job at Dubai, which affected his job profile besides mental agony and financial loss. The complainant got served a Regd. Ad Legal notice upon the OPs through his counsel on 12.01.2021, calling upon them to compensate the complainant to the tune of Rs.1,50,000/-, on account of loss of salary of two months, Air and Train tickets cancel, Covid-19 Tests etc and also pay Rs.2,00,000/- on account of compensation for causing mental agony, trauma and harassment to the complainant, but to no avail. Hence, the present complaint.
3.            Upon notice, the OPs appeared and filed written version and raised preliminary objections with regard to maintainability, locus standi, bad for mis-joinder or non-joinder of necessary parties, not come with clean hands and concealed the true and material facts etc. On merits, it has been stated the test was performed according to the procedure set up by ICMR. The complainant booked his ticket for departure from India to Dubai on 06.01.2021, so he went to Civil Hospital Ambala city for his Covid test on dated 03-01-2021, the day when he had to go to Delhi from Ambala, which was performed as per ICMR Guide lines for International Travel (which is mandatory for International Travel) with his prior informed consent. It is not denied that his sample was received on 03-01-2021 with SRF ID: 0605800120021 and was processed at DML, Ambala on 03-01-2021 by RTPCR (QUALITATIVE) for Covid-19 by kit COVID Sure Multiplex Real-time test. The Report came positive on 04-01-2021 & the run was valid as per kits Specification and sample CT Values were ORF GENE: 33.55, EGene 34.04, ROX Gene 32.91. The complainant was rightly advised for Home isolation as per ICMR Guidelines-Annexure A-1. As per patient statement he did not have any symptoms and asked the Doctor to perform the test again and he was rightly denied to repeat the test, as single RTPCR test Positive report is considered confirmed, which is in line with the Advisory on Strategy for COVID-19 Testing in India Version VI, Dated 4th September 2020. So in order to contain the spread of infection during COVID-19 pandemic, the complainant was rightly advised to remain isolated in public interest. He defied the advice given by the Health Department and he went for repeat COVID-19 testing on 05-01-2021 which is violation of ICMR Guidelines, Epidemic Disease Act 1897 and Epidemic Disease Act Amendment 2020 and Disaster management Act 2005. There can be variation in evaluation of results based on technique of sample collection, different techniques of sample testing (RTPCR, Truenat, CBNAAT) and different kits used in sample testing. As the CT value of concerned sample was 33/34 which may be indicative of an early infection or a convalescent (Phase) of infection and after 24-36 hours of interval the test reports of these CT values can came negative due to variation in technique of sample collection, technique of sample testing and type of kit used. COVID 19 test was performed on the complainant as per ICMR Guidelines by well qualified/skilled team of Doctors with due care and caution. The District Molecular Lab established by Health Department Ambala is well established state of Art Lab having well qualified team of Doctors trained from PGI, Chandigarh, experienced Microbiologists and technical staff with professional skills, having quality checks done from ICMR by means of EQAS. District Molecular Lab has conducted around 5 Lakhs RTPCR tests from beginning of pandemic and establishment of Molecular Lab in May 2020. Rest of the averments of the complainant were denied by OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of Rohit son of Sh. Ravinder Kumar, Special Power of Attorney Holder of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-18 and closed the evidence on behalf of complainant. Authorized representative for the OPs tendered affidavit of Dr.Kuldeep Singh, CMO Ambala as Annexure OP-A and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the complainant and learned Public Prosecutor appeared on behalf of OPs and carefully gone through the case file.
6.           Learned counsel for the complainant submitted that in the first instance, by preparing wrong report by the OPs, showing the complainant as COVID positive and thereafter when he got his test conducted from KOS Diagnostic Lab, Cantt., wherein he was found COVID negative vide report dated 05.01.2021, Annexure C-3 and at the same time, when he again got his test from OPs on 05.01.2021 itself, then he was declared COVID negative vide report dated 08.01.2021, Annexure C-7,  the OPs are deficient in providing service, which resulted into huge financial loss to the complainant, because under those circumstances, he was not allowed to join his job in Dubai.  He contended with vehemence that even no symptoms of COVID were prevailing in the complainant, even then he was wrongly declared as Positive by OPs vide report dated 03.01.2021.
7.           On the contrary, the learned Public Prosecutor, who appeared on behalf of the OPs has submitted that the test of the complainant was conducted in accordance with the ICMR Guidelines. The CT value of concerned sample of the complainant was 33/34 which may be indicative of an early infection or a convalescent (Phase) of infection and after 24-36 hours of interval the test reports of these CT values can come negative. There is no medical negligence or deficiency in service on the part of the OPs.
8.           The question which falls for consideration is, as to whether, the complainant has been able to prove that there was any deficiency in providing service or medical negligence on the part of the OPs. It may be stated here that admittedly the first COVID test was got done by the  complainant from OPs No.1 and 2 on 03.01.2021, in which he was declared positive vide report dated 03.01.2021, Annexure C-3. However, the mere fact that no symptoms of COVID were prevailing in the complainant, when he went for COVID test on 03.01.2021 cannot be a sole basis to hold that his test cannot come Positive because we are not oblivious of the fact that during COVID pandemic most of asymptomatic patients having no symptom were the main source of carriage of infection in the country. Furthermore, as per the ICMR Guidelines, Annexure A-2, there can be a false-negative report for various reasons like sensitivity and specification of the KIT and the technique used for COVID Test. 
9.           It is also not out of place to mention here that  since admittedly the complainant was having no symptoms of COVID, as such, there  was a quite high possibility that he did not come to know about the date of infection in his body and  the date i.e. 03.01.2021 when he got his test conducted, the infection/virus in the body, might have already covered his infection period and was at the last stage, as a result of which, its CT value admittedly came 33/34 on 03.01.2021, which could have been indicative of an early infection or a convalescent (Phase) of infection and after 24-36 hours of interval, the test report of the  complainant came negative on 05.01.2021, when he again got himself tested. No cogent and convincing evidence against the OPs in the shape of any expert report of any qualified Doctor has been placed on record by the complainant to prove that there was any medical negligence on the part of the OPs, in any manner. If the infection period in the body of the complainant stood extinguished on 05.01.2021 and he was declared COVID negative by KOS Diagnostic Lab, Cantt. then the OPs cannot be held to be medical negligent in any manner. It is not the case of the complainant that he went for COVID test but the OPs refused to do so.  
10.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove his case, therefore, no relief can be given to him. Resultantly, this complaint stands dismissed with no order as to cost. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.        

Announced:- 20.12.2022.

 

                             (Ruby Sharma)                                  (Neena Sandhu)

                             Member                                                      President