| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.31/2015 Sh. Amit Jain B, 2/4, Safdarjung Enclave, New Delhi- 110029 ….Complainant Versus Dr. Dangs Lab Pvt. Ltd. D-1, Hauz Khas, New Delhi- 110016 ….Opposite Party Date of Institution : 28.01.2015 Date of Order : 16.11.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER President: Ms. Monika A Srivastava - The present complaint has been filed against a pathological laboratory -Dr. Dang’s Lab Pvt. Ltd, wherein it is prayed that OP should tender an apology for giving inaccurate reports; pay a penalty of Rs. 15,00,000/-; refund a sum of Rs.9,220/- spent by complainant for getting the test from another competent lab; refund a sum of Rs. 8,300/- spent towards availing the services of OP for getting the test done; and a sum of Rs. 1000/- is claimed as litigation expenses.
- The complainant has stated that he got an Anti-Tissue Transglutaminase Antibody (IGA) (hereinafter referred to as Test) conducted at the lab of OP on 20.09.2014, whose result was received on 23.09.2014. The test report indicated that level of complainant was 54.19 U/ml as against the normal level of less than 20 U/ml.
- Considering the report issued by OP was a deviation from normal levels, the complainant was advised to undergo confirmatory Biopsy and a Gastro-Duodenoscopy test. The complainant underwent these tests and got a repeat of Anti-Tissue Transglutaminase Antibody (IGA) from a lab known as SRL Diagnostic situated at Fortis Flt Lt RajanDhall Hospital, Vasant Kunj. The sample was taken on 01.10.2014 and the report was submitted on 03.10.2014. The test report issued by SRL Diagnostic indicated the level 3.76 U/ml, which is within the prescribed range, as against 54.19 U/ml issued by OP.
- At the request of complainant, the OP carried out a repeat Test on 21.10.2015free of cost, which report indicated the level at 29.80 U/ml. The complainant thus submits that there is a wide mismatch between the reports issued by OP and SRL diagnostic and is indicative of casual and negligent approach of OP, which has caused mental distress to the complainant.
- OP, in its written statement denies any casualness in its approach and reiterates that its reports are accurate. It is submitted that it conducted the test as recommended by the treating doctor. It is submitted that OP conducts the test by using a kit manufactured by reputed manufacturer named Euroimmum which is a respected German company and matches the global standards.
- It is further submitted that test conducted by OP is a screening test and not a diagnostic test. A screening test detects potential disease indicators whereas a diagnostic establishes presence/absence of disease. A positive screening test indicates suspicion of disease while positive diagnostic test leads to a definite diagnosis.
- It is further stated that the kit used for this kind of test could be either highly sensitive or highly specific. The kit used in test conducted by OP is highly sensitive which detects even mild form of disease, however on account of its high sensitivity, it may produce false positives. However, the highly specific test may miss mild forms of disease, but positive results are considered reliable evidence of disease.
- It is also stated that the complainant was recommended by the treating doctor for duodenal biopsy and gastro-dudenoscopy even after the test results for TG-2/TTG had been conducted at SRL Diagnostics gave the report as 3.769 on 01.10.2014 therefore, TG-2 is merely a screening test and not diagnostic.
- It is stated that the complainant has not provided the specification of the kit used by SRL Diagnostic therefore it is not known if the kit used by SRL diagnostic was more specific or more sensitive. The details of manufacturer or its reputation is also not disclosed by the complainant.
- It is submitted that the reports issued by OP and SRL Diagnostic are not comparable. There is difference in kit used by both the labs which is evident from the varied reference range of both the tests. The kit used by OP considered a report negative when the level is less than 20.0 U/ml, whereas kit used by SRL Diagnostic considered a report negative when the value is less than 12.
- To alleviate the misapprehension of the complainant, the OP conducted a repeat test on 21.10.2014 whose result indicated level at 29.80 U/ml. It is further submitted the variation in two tests carried out by OP on 20.09.2014 and 21.10.2014 may be caused by several factors including medication, dietary changes, lack of intake of gluten etc.
- Complainant filed a replication reiterating their averments in the complaint and denying what was stated by the OP. The parties have filed respective evidence and written submissions.
- It is argued on behalf of OP that burden of proving/establishing any kind of negligence/deficiency of services is upon the complainant, who has not been able to make out any case against OP. It is stated that merely stating that report of OP is inaccurate in not sufficient to establish the averments of the complainant. It is further stated that issue in hand is highly technical and neither any expert evidence has been led by the complainant nor any medical literature has been produced to substantiate allegations. It is also challenged that the reports issued by SRL Diagnostic cannot be proved in the absence of evidence by the doctors who prepared the report. It is also argued that complaint is bad for non-joinder of necessary parties being SRL Diagnostic and Fortis Flt Lt RajanDhall Hospital, Vasant Kunj.
- This Commission has gone through the material on record filed by the parties. It is not disputed by the OP that they have issued test reports which indicated the level at 54.19 U/ml and 29.80 U/ml in its report dated 23.09.2014 and 21.10.2015 respectively.
- This Commission does not agree with the contention of the OP that the report issued by SRL Diagnostic is not proved for two reasons, firstly that principles of Indian Evidence Act 1872 do not strictly apply to proceedings under Consumer Protection Act 2019 and secondly, the complainant being the recipient of the report, can prove the report. This Commission, therefore, has considered the report issued by SRL Diagnostic which indicated the level at 3.76 U/ml. This Commission rejects the contention that the present complaint is bad in law for non-joinder of SRL Diagnostic and Fortis Hospital for the reasons no relief is claimed against them. The complaint was only against the report issued by OP.
- No doubt, reports issued by OP and SRL Diagnostic are diametrically opposite. The report issued by OP indicates a positive result whereas the report of SRL Diagnostic is negative. This Commission is of the view that merely the presence of divergent reports with a competent lab does not indicate that OP was negligent in performance of its duties. Particularly when the OP had categorically stated its kit was highly sensitive which detects even mild form of disease and the details of manufacturer or nature of kit used by SRL Diagnostic is not known.
- The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following:
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.The Rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side. Therefore, the initial burden of proof of deficiency in service was on the complainant, but having failed to prove that the result of the sample retained by the Appellant at the time of consignment was materially different than what was certified by the Appellant, the burden of proof would not shift on the Appellant. Thus, the Commission has erred in law to draw adverse inference against the Appellant.” - The Complainant has failed to provide any material to indicate that the process of test used by OP was inaccurate or the kit used by OP was of inferior quality. This Commission therefore accepts the argument of OP that complainant has failed to prove any negligence/deficiency in service.
- The Complaint is accordingly dismissed.
File be consigned to the record room. Order be uploaded on the website. Parties be provided copy of the order as per rules. | |
