KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.24/2024

JUDGEMENT DATED: 16.10.2024

(Against the Order in C.C.No.18/2019 of CDRC, Ernakulam)

PRESENT:

APPELLANT:

                                                                (Party in person)

Vs.

RESPONDENT:

(by Adv. George Cherian Karippaparambil)

JUDGEMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  :  PRESIDENT

          The appellant is the complainant and the respondent is the opposite party in C.C.No.18/2019 on the files of the District Consumer Disputes Redressal Commission, Ernakulam (for short ‘the District Commission’).

          2.       The appellant got married on 19.01.2018.  On 24.01.2018, the appellant and her husband went to Ernakulam Medical Centre for treatment as she had bleeding and pain after her first intercourse.  The respondent instructed the appellant to conduct blood tests, including HIV antibody test.  Though the appellant was referred by the respondent for HIV test, her husband was not referred for HIV test.  The husband had also filed a petition for divorce.  The respondent had ruined the marital life and peace of the appellant and consequently, the respondent is liable to pay Rs.4,95,000/-(Four Lakhs Ninety Five Thousand only) to the appellant.

          3.       The respondent filed version opposing the contentions in the complaint.  The respondent admitted that the appellant, along with her husband, consulted the respondent on 24.01.2018 with a complaint of difficulty in intercourse.  The appellant and her husband informed the respondent that their marriage was on 19.01.2018 and that they were anxious to conceive soon because of their age.  The appellant informed the respondent that her LMP was on 14.01.2018.  A local examination was conducted.  However, the appellant did not allow vaginal examination.  There was 1⁰ perineal tear and inter gluteal region skin abrasion.  Since the appellant did not allow further examination, the respondent made a provisional diagnosis as Vaginismus.  The appellant was advised for examination under general anesthesia and hymenectomy if needed.  Some medicines were also given to the appellant.  The respondent also issued the referral form for ultra sound follicular study as the appellant and her husband were anxious to conceive soon because of their age. The respondent instructed to conduct blood tests, including HIV antibody test, as it is a condition precedent for surgical screening.  These aspects were explained to the appellant and her husband. The blood was given by her for the HIV antibody test. Thereafter, the appellant did not come for follow up action.

          4.       PW1 was examined and Exhibits A1 to A6 were marked for the appellant.  The respondent filed proof affidavit.  Exhibit B1 was marked for the respondent.  Exhibit C1 was also marked.  After evaluating the evidence, the District Commission dismissed the complaint, against which this appeal has been filed.

          5.       Heard the appellant in person and the learned counsel for the respondent. We also perused the records.

6.  The case of the appellant is that the appellant along with her husband approached the respondent for the treatment on 24.01.2018 as the appellant was having bleeding and pain after her first intercourse.  Then the respondent recommended for surgery.  The appellant would contend that after having intercourse by the appellant with her husband, there was no need to conduct any surgery as prescribed by the respondent.  The further contention of the appellant is that even though the appellant was directed to conduct HIV test, her husband was not required to do that.  Consequently, the husband of the appellant had filed Exhibit A2 petition for divorce before the Sub Court, Udumalpett.  The sum and substance of the contention of the appellant is that her marital life was ruined due to the act of the respondent.

          7.       The respondent, on the other hand, would contend that the appellant approached the respondent along with her husband with a complaint of bleeding and pain.  The respondent conducted a local examination.  However, the respondent was not allowed to conduct vaginal examination by the appellant.  Therefore, a provisional diagnosis was made by the respondent as Vaginismus.  The respondent also recommended hymenectomy, if needed. The blood tests, including HIV antibody test, had been prescribed by the respondent as part of the treatment.  Some medicines were also administered to the appellant for immediate pain relief.  The follicle study was also advised by the respondent as the appellant and her husband were anxious to conceive at the earliest.

          8.       In order to ascertain as to whether there was any fault on the part of the respondent in her treatment, an expert commissioner was appointed by the District Commission.  The expert commissioner filed Exhibit C1 report before the District Commission.  The expert commissioner was the Senior Consultant, Gynecology, General Hospital, Ernakulam.  As per Exhibit C1 report, the expert found that the case was assessed by the respondent with the relevant history of the appellant and other physical examination findings, including pain assessment.  Based on that, provisional diagnosis had been made as Vaginismus.  Blood investigations, including HIV antibody test, were suggested as part of the treatment plan.  As a measure for immediate pain relief, medicines and other supportive treatment advice were also given.  Considering the anxiety to conceive at the earliest, follicular study was also advised.  The expert further reported that Vaginismus is a painful spasm of the vagina during attempted coitus, which can be primary or secondary in nature. The primary vaginismus is not associated with any organic cause, but may be psychosexual in origin. The secondary vaginismus may be due to local painful lesions like vulvitis or narrow introitus.  For the effective treatment, psycho therapy was found to be essential for both partners. Surgery may be indicated if there is a tight hymen.  The expert opined from the treatment details found in the medical records that the respondent had followed standard procedure for the treatment of the appellant.  There is absolutely no material before this Commission inconsistent with or contrary to the finding in Exhibit C1 to indicate that the treatment given by the respondent was not in accordance with the standard procedure. In the said circumstances, we have no hesitation to hold that there is no deficiency in service on the part of the respondent in this regard. 

          9.       In Exhibit C1, the expert noted that for doing the HIV antibody test suggested by the respondent, the appellant’s consent with her signature was available in the medical records.  It was also noted from the medical records that on 24.01.2018, the husband of the appellant had requested to give complete details for consultation elsewhere.  Regarding the sharing of details to the husband of the appellant, it is stated in Exhibit C1 that as per clause 3.6 of the National HIV counselling and testing services guidelines issued by the National AIDS Control Organisation (NACO), the counsellor may share a person’s HIV test result with that person’s partner or partners. 

10.     It is also to be noted that the husband of the appellant was not in a strained relationship with the appellant when they met the respondent on 24.01.2018.  The respondent had issued the certificate only for further treatment of the appellant.  It is true that the date in the certificate was shown as 24.01.2018 even though the husband of the appellant requested treatment details on 21.03.2018.   The respondent, in her proof affidavit, clearly stated that it was only due to a mistake that the date was recorded as 24.01.2018 instead of 21.03.2018.  The appellant needed further treatment as per the findings of the respondent on 24.01.2018.  Therefore, when the husband of the appellant asked for the treatment details for further treatment, the treatment certificate was issued by the respondent.  A letter sent by the Indian Medical Association to the appellant was produced by the appellant before the District Commission. However, the said document was not marked. Though the said document was not marked, it can be used against the appellant, as it was a document produced by the appellant. The above said letter sent by the Indian Medical Association to the appellant would show that the appellant had given a complaint against her husband and the respondent before the Ethics Committee of the Indian Medical Association, Kerala State and the Indian Medical Association, Kerala State, after conducting the enquiry found that the difference in the date in the medical certificate was a clerical oversight from the side of the staff and that whatever had been done by the respondent was with good intention.  The Ethics Committee also did not find any ethics violation on her part.  In view of the above, the contention of the appellant that the date was put in the medical certificate by the respondent for the purpose of intentionally aiding the husband of the appellant cannot be sustained.  Exhibit A2 would show that the divorce petition was filed on the ground of cruelty.  The averments in Exhibit A2 do not contain anything with reference to the medical certificate issued by the respondent to the husband of the appellant. 

11.     It has been argued by the appellant that since the respondent did not enter in to the witness box, adverse inference had to be taken against the respondent.  It is borne out from the records that the respondent had already filed proof affidavit. However, the appellant did not request for the cross-examination of the respondent. This being the position, the contention in this regard cannot be accepted. That apart, since the respondent was not cross-examined, his evidence remains as unchallenged testimony. 

12.     Having gone through the relevant inputs, we are satisfied that the appellant could not bring forth anything to hold that there was any deficiency in service or unfair trade practice on the side of the respondent, as alleged by the appellant, entitling the appellant to get compensation from the respondent.  In the said circumstances, we find no reason to interfere with the order passed by the District Commission dismissing the complaint.

In the result, this appeal stands dismissed.  In the circumstances of the case, there is no order as to costs.

SL