KUNDAN KUMAR KUMAI

This is an application under section 35 of the Consumer Protection Act, 2019.

Brief facts of the complainant’s case are that, as the wife of the complainant was about to deliver a child, she had been admitted at the North Bengal Medical College & Hospital and on 04/4/2022 at 6:02 PM, a girl child had been born, whom they had named “Ayushi Saha”. The daughter of the complainant had remained admitted at SNCU department under the NBMC&H and had been discharged, on 18/04/2022, whereas the wife of the complainant had been discharged on 19/04/22. The proforma OP no.1, had advised the complainant, to bring her daughter, after a few days, for some tests. Accordingly, on 27/4/22 the complainant and his wife took their daughter, to proforma OP no.1 and the daughter had been admitted for some tests. At the time of discharge, the complainant had been advised to consult with some pediatric cardiologist. The complainant had then contacted with proforma op no.2, on 10/5/22 at Arogya Niketan Nursing Home & Maternity Home, Khalpara, Siliguri. The proforma op no.2, was a doctor from Delhi, who visited Siliguri for just one day in a month, at the above nursing home.

After examining the daughter of the complainant, he prescribed blood test “Alpha Glucosidose Level”, which was done for Pompe disease. The proforma op no.2, had stated that, should the report be positive, there was treatment and to send the test report to him by a WhatsApp, the number of which could be found in the prescription and for this reason the complainant would need to take his daughter to AIMS, Delhi. The proforma op no.2, had also stated that the test was not done locally everywhere and needed to go to the big laboratories like SRL Diagnostics or Thyrocare or Dr. Lal Path Labs.

Finally on receiving confirmation, the complainant along with his wife and daughter, went to the OP Lab on 14/05/22. At the Lab. 10 ml blood, was withdrawn from the daughter of the complainant and despite objection, the wife had accompanied her child, when the blood had been withdrawn. An amount of Rs.2450/- only, had been charged for the test and the OP Lab had assured that the report would be available, within the next 4-5 days.

Even after waiting for 5-6 days, when the complainant did not receive any report, he called the OP Lab, who then informed that the report, would be sent to his registered mobile no. Even on 20/05/22, when the complainant, did not receive any report, he went to the op lab physically, but was treated with very bad behavior and again told that the report would be sent to the registered mobile no. On 21/05/22, the complainant, had called the Customer Care No. (011-49885050) of the OP Lab, who asked for the test no. and which had been provided by the complainant as Lab no. 323477527, but on checking, the Customer Care intimated, that there was no such registration. On the very date, the complainant, along with the landlord and the wife of the landlord, had gone to the OP Lab, who informed that they had sent e-mail and had received reply stating that the blood sample needed to be given again. On further enquiry, the OP Lab informed that the blood sample had been sent to Delhi.

The complainant had then threatened, that if the report was not received by 22/05/22, he would initiate appropriate legal action against the OP Lab. On 22/05/22, at about 1 PM the op lab, had called the complainant stating, that the report could not be given, as the earlier test had been blocked.

Due to lack of report, no further treatment could be done and the condition of the daughter of the complainant deteriorated and had been admitted under the NICU department of the proforma no.1, on 23/05/22 and finally she expired on 25/05/22 at the proforma op no.1 hospital. For such casual insensitive and negligent approach by the op lab, the complainant was forced to file this complaint with necessary prayers. Hence this case.

The OP Lab appeared to contest this claim, by filing written version, wherein they have stated that the complainant, has filed this complaint merely to extract unreasonable demands and that, there had been no negligence or deficiency of service on their part. They have further stated, that due to a technical glitch the sample of the complainant’s daughter, could not be tested and on being aware of the said technical glitch informed the complainant about the same and offered a full refund and the technical glitch had been beyond the control of the OP Lab for which no negligence or deficiency of service could be attributed.

They have also stated that the complainant’s daughter, had been born with a congenital heart disease and in all likelihood Pompe disease and had mentioned the reasons for such disease and the types of the disease.

It is further mentioned that the complainant had concealed the fact, that the OP lab had intimated of the test being blocked due to technical glitch and on being aware as suggested, the test needed to be done immediately. Moreover, the complainant had also concealed the fact, that the daughter of the complainant was suffering from an underlying congenital heart disease, which was rare genetic and often treated in case of new born babies. Furthermore, the non-testing of the blood sample, could not be the reason for the death, of the complainant’s daughter and therefore, the OP Lab should not be held liable, for the unfortunate demise of the complainant’s daughter and prayed for dismissal of the complaint. Principle of the observation in Polemis and another and Furness, Withy & Co. Ltd. (1921) 3 KB 560 had been relied upon. In this regard, it needs to be mentioned that the written version had been filed after the stipulated 45 days and the same had been condoned and the OP Lab had been allowed to give evidence.

The complainant and the OP Lab were examined and cross-examined.

Decision with reasons

At the very outset, it needs to be mentioned that the only issue in dispute is whether the OP Lab should be held liable for the death, of the daughter of the complainant by the non-preparation of the report, from the blood sample taken from the daughter of the complainant.

Ld. Advocate for the complainant had retired, at the time of final hearing and only the written notes/arguments, which had been filed at the time final hearing, was lying in the record and the complainant in person had made submission, to support the facts of the case.  In the written argument also, it is mentioned that the OP Lab had been responsible for the lack of treatment, of the daughter of the complainant, which resulted in the death of the daughter of the complainant and therefore, the prayer made in the complaint ought to be allowed.

Ld. Advocate on behalf of the OP Lab, had on the other hand submitted that, due to mere technical glitch, the blood sample of the daughter of the complainant could not be tested and for which reason, the OP Lab should not be held responsible. It is also argued, that such failure on the part of the op lab was not the reason for the death of the daughter of the complainant, as the infant was already afflicted by Pompe disease, which was rare and genetical disease and fatal in case of new born babies and prayed for dismissal of the complaint. He has relied in the judgement passed in Ravneet Singh Bagga Vs. K L M Royal Dutch Airlines (2000) 1/SCC/66 and followed in SGS India Ltd. Vs. Dolphin International Ltd. (2021) SCC online SC 879 passed by the Hon’ble Supreme Court.

The birth of the infant/daughter, of the complainant in the proforma no.1 hospital, is not disputed and the fact, that she had been examined by proforma op no.2 is also well established by the existence of the prescription dated 10/05/22 (Annexure 14). The fact, the deceased daughter, was suffering from severe hypertrophy, arising out of Pompe disease, is also established from the above prescription. The fact that she had been advised “Alpha Glucosidose Level” test is also established and not disputed. In fact, the deposit of blood sample, on 14/05/22, is also established vide cash receipt (Annexure 15).

The fact that the test report from such blood sample was not made available by the OP Lab is also not disputed. The only question is whether the OP Lab’s reason, of a technical glitch for the non-testing of the blood sample of the deceased, daughter of the complainant can be accepted or not. In this regard, the blood sample had been withdrawn from the infant/daughter on 14/05/22 and the test report was expected within 4-5 days, in the registered mobile of the complainant, but even, after the passage of more than 4-5 days, the blood report was not made available to the complainant and therefore the insensitivity and negligence on the part of the OP Lab starts. The OP Lab, had all along stated that the technical glitch, being the reason for the non-availability of the report of the blood sample, but, apart from the bald statement, there is no evidence forthcoming from the OP Lab, in support of their contention. Whether there was technical glitch or otherwise is not made known to this Commission, when easily the print-out of such technical glitch and even expert evidence could have been made available.   But, the OP Lab from the very beginning, had merely harped on the technical glitch issue. On the other hand, the condition of the daughter of the complainant was also serious in nature as the OP Lab had themselves taken the effort to point out that seriousness, for which reason, they cannot blame the complainant for non-disclosure of the disease, as the issue was something that involved the non-delivery of the report. Does it mean, had the disease made known, the OP Lab, would have shown extra effort to deliver the report, thereby indicating, that negligence was done, for this reason.

 The doctor from Delhi, proforma OP No.2, had himself pointed out to the phone number on the prescription, indicating that the report be transmitted immediately, so the further course of action could be advised, indicating the urgency of the situation and the seriousness and gravity of the disease, but the failure of the OP Lab to test the blood sample dashed all hopes and within a few days the infant child succumbed to her diseases. Under the circumstance, the complainant had been able to point out the negligence of the OP Lab, contributing to the death of the child, without any timely treatment. As a result, the citations relied on by the OP Lab, also do not come to their rescue. Hence, the complainant has been able to prove the case in his favour.

However, even though the pain and anxiety caused by the death of your own blood cannot be measured in terms of money, but in order to compensate the death of the infant child, an amount of Rs.20,00,000 would be sufficient.

Under the circumstance the instant case succeeds

                                                                           It is therefore

                                                                               Ordered

That the instant case be and the same is allowed on contest with costs.

The OP Labs are directed to pay the above amount of Rs.20,00,000 to the complainant within 45 days, from the date of receipt of this order, failing which interest @ 9% per annum would be levied upon the above amount till realization.

Copy of this order be sent to the parties free of cost.