PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        This complaint is filed and registered on 25/09/2008 by the Complainant before this Forum in view of the order passed by the Hon’ble State Commission in Consumer Complaint No.162/2007 dtd.12/06/2008.  The said order is as under -

            Perused the claim. The claim preferred in the complaint is unnecessarily exaggerated. The genuine claim is below Rs.20 Lacs. We therefore, permit the Complainant to reduce the claim and file it in the appropriate District Consumer Forum.

                                                                        ORDER

1.      The complaint is returned forthwith to the Complainant to file it before the appropriate Forum.

2.      Complainant is permitted to file the Complainant within 4 weeks from today with the appropriate Forum.

3.      Liberty is granted to the Complainant to make suitable corrections in the complaint.   

4.      Complaint stands disposed of so far as this Commission is concerned.

              5.      Copies of the order be furnished to the parties.

2)        According to the Complainant, he is residing at the address given in the complaint. He is working as an industrial labourer. According to the Complainant, he was working as labourer at M/s. R.L. Stills, MIDC, Aurangabad as Crane Operator.  He applied to Modern Still Mills, Rusayal Saltanats of Oman.  The Complainant was selected and based upon his past experience and negotiations regarding monthly salary payable to the Complainant, the new employer of Saltanants of Oman offered job to the Complainant with salary of Rs.35,000/- p.m. The concerned agency who had appointed the Complainant for the abroad employment however, asked him to obtain medical fitness certificate from a qualified medical practitioner and directed the Complainant to visit the Opposite Party Doctor being their penal doctor. The Opposite Party was called upon to perform internal and external body examination as well as clinical and pathological test.  The Opposite Party accordingly carried out certain tests and report was made available to the concerned agency regarding the Complainant within a week time from the examination of the Complainant i.e. on 14/10/2005.  It is alleged that the Opposite Party issued the certificate mentioning that the Complainant is unfit for the employment offered and provided by Modern Still Mills, Saltanats of Oman for the reason H.I.V. reactive, T.P.H.A. reactive.  It is alleged that because of such certificate issued by the Opposite Party the Complainant lost the opportunity at given time.

3)        According to the Complainant, after receiving the certificate from the Opposite Party he returned back to his home but he failed to disclose the reasons certified by the Opposite Party to any of his family members on 24/10/2005.  The Complainant visited Government Medical Hospital, Aurangabad, but the test could not be completed in one day.  He again visited on 01/11/2005 and 02/11/2005 and found that he is not suffering from H.I.V. – AIDS.  He received the reports from the said hospital stating that he is not the patient of HIV Syndromes at all.  The Complainant also received the HIV non reactive test report on second time on 03/01/2006.  It is submitted that as per the usual practice the second confirmatory test was taken after 3 months gap.  The Complainant thereafter, approached to private hospital – Dr. Vijay Somani also on about 27/10/2005 who certified that the Complainant is not suffering from HIV Syndromes nor he is a patient of AIDS as was detected by the Opposite Party. 

 4)        According to the Complainant, the said mistake and mischief played by the Opposite Party was brought to the notice of the agent of the concerned agency of Staltanats of Oman who was to issue the final order to the Complainant.  The Complainant was then called at New Delhi and the agent directed the Complainant to visit Gulf Medical Centre and performed all the tests for verification of his health reports.  According to the Complainant, on 19/11/2005 for third time, all those checkup and blood testing were done at the said medical centre.  In the report of the medical centre it revealed that the Complainant is not suffering from any AIDS and physically and medically fit to go abroad to Oman countries .

 5)        It is alleged that as the Opposite Party had made the life of the Complainant restless for couple of weeks, the Complainant therefore, issued legal notice of demand on 03/12/2005 and also on 03/02/2006.  The said notices were not replied by the Opposite Party. According to the Complainant, because of the wrong certificate issued by the Opposite Party the Complainant was required to attend many hospitals and spent huge amount of Rs.82,500/-.  It is alleged that the Opposite Party had issued the medical certificate dtd.19/10/2005 without due diligence and skill.  According to the Complainant, living the patient in dark or in a confuse state of affairs is glaring deficiency in service on the part of the Opposite Party which deserves to be penalized.  The Complainant therefore, prayed that the Opposite Party be directed to make the payment of compensation of Rs.20 Lacs to the Complainant towards the mental and physical harassment sustained by him. 

6)        The Opposite Party contested the claim by filing written statement. On the ground of limitation in view of the order of the Hon’ble State Commission and it requires elaborate evidence and therefore, cannot be tried by way of summery trial under the Consumer Protection Act (referred to as the Act). It is contended that the Complainant has deliberately suppressed relevant and material particulars.  Touching upon the facts and circumstances of the case, it is contended that the Complainant has deliberately not disclosed 1. HIV “Reactive” does not indicate that the patient is HIV Positive, 2. The Complainant had transfused blood in the past,  3. Test for Syphilis was also done and the same was also positive,  4. The Complainant withheld the fact that he had ulcer on his penis which is suggestive of sexually transmitted disease.  It is contended that the Complainant was having the right to immediately asked for a change of Doctor or a re-medical and the same would have been allowed by GAMCA/ Consulate, but he did not do so.  The Complainant has deliberately withheld the fact that though he was declared unfit on 19/10/2005, he was working at Oman from 20/01/06 i.e. within 2 months and 10 days of the report given by the Opposite Party.  It is contended that the Opposite Party had never proclaimed that the Complainant was suffering from AIDS.  The Complainant has come out with false allegations against the Opposite Party.  It is submitted that HIV reactive does not mean the person is suffering from AIDS.  It is contended that as the Complainant has not disclosed relevant information and come with falsehood for obtaining favourable order to him and therefore, the complaint should be dismissed with cost. 

 7)        According to the Opposite Party, the Complainant tried his level best to extort money from the Opposite Party and used pressurized tactic against the Opposite Party, but as the Opposite Party did not succumb to it as he did nothing wrong, the Complainant filed the present complaint.  It is submitted that the claim made in the complaint is vexatious and frivolous.  The complaint is not based on any cogent and valid document or opinion.  The complaint is therefore, liable to be dismissed under the provision of Sec.26 of the Act.

8)        It is contended that Fulara Medicheck Centre (FMC) is one of the best equipped and managed screening centre in the city.  The said clinic is headed by the Opposite Party. The test performed in FMC are of international quality. It is contended that the Opposite Party is expert in the field for which the Complainant was referred.  It is contended that on 19/10/05 the Complainant was declared unfit for the reasons (a) HIV reactive (b) TPHA reactive.  It is submitted that the Opposite Party informed the Complainant that repeat test needs to be performed on him 4-6 weeks later and confirmation has always got to be done by the Western Blot Test. 

9)        It is contended that the services rendered by the Opposite Party were neither deficient/substandard.  The Opposite Party was never negligent in rendering services and adopted unfair trade practices.  The Opposite Party never acted in a casual and routine manner.  The entire complaint is exaggerated, emotional, imaginary so as to influence this Forum and extract maximum monitory benefits.  It is submitted that though the Complainant declared unfit on 19/10/05, he was working in Oman from 20/01/06 i.e. within 2 months and 10 days of the report. It is submitted that the Opposite Party has never suggested that the Complainant was suffering from AIDS.  It is contended that HIV reactive does not mean that the patient was suffering from AIDS.  It is contended that as the Complainant joined the Oman Firm on 20/01/06 the loss sustained therefore, cannot be estimated in Lacs as claimed.  According to the Opposite Party, as there was no negligence, there was no question of paying any compensation as prayed.   It is submitted that the Opposite Party will file an expert opinion to prove that the Opposite Party has adhered to the standard treatment protocol as followed by the physicians anywhere in the world.  The Complainant has to prove that there was negligence and deficiency in service by the Opposite Party.  The Complainant merely made bald allegations against the Opposite Party.  He thus, prayed that the complaint be dismissed with cost.

10)      The Complainant has filed rejoinder affidavit and written argument. The Opposite Party has filed his affidavit in evidence and also the affidavit and expert opinion of Dr. Satish Wadhwa and written argument.  We heard the Ld.Advocate for the Complainant Shri. Jayant Chitnis and the Power of Attorney and Representative of the Opposite Party Prof. Gopinath Shenoy.

11)      The contention raised by the Opposite Party on the point of limitation in view of the order passed by the Hon’ble State Commission that the complaint was required to be filed within 4 weeks from the date of said order i.e. 12/06/08 is now no more required to be considered as this Forum vide order dtd.06/08/09 condoned the delay of 50 days and the complaint proceeded further.  The another contention raised by the Opposite Party that the controversy/dispute raised in the complaint requires elaborate evidence and therefore, the same cannot be tried by summary trial under the Act also cannot be accepted in view number of decisions of the Hon’ble National Commission and the Hon’ble Supreme Court in which it is held that the matters of medical negligence and deficiency in services as regards substandard services in medical field can be tried by the Consumer Forum.    

12)      While considering the rival contentions raised by both the parties in this complaint on merits it is necessary to be taken into consideration that the Opposite Party by certificate dtd.19/10/05 declared the Complainant unfit for Oman for the following reasons- “Blood HIV Reactive”.  It is an admitted fact that thereafter, the Complainant approached Government Hospital, Aurangabad on 24/10/05.  The copy of the case paper and the symptoms and results recorded by the said hospital is placed on record by the Complainant at page 23 of the complaint.  From the said case paper it appears that in the said hospital the Complainant narrated the history of Blood Transfusion 8-10 years back.  He denied history of exposure.  He admitted Penile Ulcer 15 days back.  From the case paper it appears that HIV Test was done at Maharashtra State Aids Control Society i.e. Voluntary, Counseling and Testing Centre of Government Medical College, Aurangabad on 26/10/05 and as per the said report on the case paper it is noted that HIV Test done at GMCH and is Non Reactive.  It also appears that the Complainant thereafter, again undergone such tests on 03/01/06 in the said AIDS Control Society and report was received as HIV Non Reactive.  Thereafter, he again undergone such tests at Gulf Medical Centre, New Delhi on 19/11/05 and he was found normal in view of the medical examination and laboratory investigation.  It is also an admitted fact that the Complainant thereafter, joined the firm of Oman on 20/01/06 who offered job opportunity vide letter dtd.25/09/05.  The Complainant has specifically admitted that he was there upto 31/05/08 in his complaint and rejoinder.

13)      Prof. Shenoy for Opposite Party made submission that the later investigation particularly the case paper placed on record by the Complainant of Government Medical College, Aurangabad at Page 23 of the complaint also suggest that the Complainant was suffering from an ulcer on his penis and also received blood transfusions.  He made submission that normally penile ulcer are a result of sexual intercourse with a person infected with venereal disease.  He submitted that as per the medical science usually it suggest syphilis and such persons are also highly prone to get infected with HIV Virus.  He made submission that in view of the aforesaid documents in the instant case the Complainant had penile ulcer is brought on record by the document placed on record by the Complainant himself.  He also submitted that as per the medical science syphilis is a sexually transmitted disease and is seen when there is sex with commercial sex workers.  He thus, submitted that ulcer on penis is a common manifestation.  Therefore, TPH Test may reactive as the case with the Complainant.  He further submitted that Blood Transfusion is known case whereby HIV Virus can be transmitted.  In this case also the Complainant received blood transfusion in the past.  He submitted that, if the serum sample test “Reactive” once by a system of “Elisa (Enzyme Linked Immunosorbent Assay) which is the commonest test to detect HIV antibodies such type of test upon receiving test report as reacting is required to be repeated by a different system in order to confirm the diagnosis after about 4-6 weeks.  He also made submission that if the test is reactive a second time the sample is to be taken up for supplemental tests to confirm the diagnosis and western blot is to be done to confirm the diagnosis.  He made submission that thus, HIV Reactive does not mean that the patient is suffering from AIDS and if the reports show that the test is reactive then repeat test needs to be done after around 4-6 weeks to confirm the status.  He made submission that Elisa HIV Test is mere screening test and cannot be singularly considered.  He also pointed out that even in the test carried out by the Complainant on 26/10/2005 at the laboratory Voluntary Counseling and Testing Centre of Maharashtra State AIDS Control Society at Aurangabad and the report of which is placed on record at Page 25 it is suggested that repeat testing after 3 months and accordingly after about 8 weeks the Complainant as per Report Act Page 26 obtained from the same laboratory repeated the test on 03/01/06.  He also made submission that the screening tests give false positive and false negative results.  In support of his submission he relied the expert opinion placed on record by the Opposite Party of Dr. Satish Wadhwa who is practicing as Venerealogist at BYL Nair Charitable Hospital, Mumbai.  He made submission that as opined by him the Opposite Party on the basis of the Elisa HIV Test found that the Complainant was HIV and TPHA Reactive and  declared the Complainant as unfit and the same cannot be considered as conclusive test. Shri. Shenoy made submission that as per the requirements provided by the Executive Board of Health Minister Council for G.C.C. placed on record with the written statement at Page 86 & 87, the diagnosis of venereal diseases is required to be specifically noted as the expatriate must be free from any science or clinical manifestation of venereal disease or clinically or serologically TPHA or VDR-ve. As per the requirement mentioned on page 87 in serology (a) it must be sure that expatriate is free from HIV infection; Elisa Test must be non reactive, Shri. Shenoy representing the Opposite Party thus, submitted that there is no negligence or deficiency in the services rendered by the laboratory of the Opposite Party has the state–of–art equipment and medical personals are managing it.  He made submission that the best of the diagnostic kits and reagents are used.  He further submitted that the reports cross checked and then sent to the authorities by the Opposite Party.  He also drew the attention to the directions given by Executive Board of the Health Ministers Council of G.C.C. States to health centers to abide by in Article 9 wherein it is mentioned that complete privacy shall be respected for the results of all examinations, which shall be protected against the disclosure, and sent in a sealed envelop to the requesting department of embassy against attested signature of an authorized individual in the health centre which are placed on record at Page 73 of the written statement. Shri. Shenoy further submitted that as the HIV was reactive the Complainant was informed that the test was to be run after 4-6 week and if reactive again was to be confirmed by a Western Blot Test.  The Complainant was also explained by the Opposite Party that what was conducted was only a screening test.  He thus, submitted that the Opposite Party had mentioned in his certificate dtd.19/10/2005 what was found in Elisa HIV Test and that too as per the requirements of Health Minister for Council for G.C.C. States at Page 86 & 87 filed with written statement.  According to Shri. Shenoy, the services rendered by the Opposite Party were not sub standard and he had followed each and every requirement while providing faire and proper report in the case of the Complainant.  He made submission that the expert Dr. Wadhawa in his affidavit has specifically after scrutinizing the report and the documents had also opined that the Opposite Party at no point of time had deviated from the established line of treatment and had followed the practice and procedure as laid down by the peers established in the test books.

14)      In view of the aforesaid facts and upon going through the documents and submissions of the representative of Opposite Party Shri. Shenoy and Shri. Chitnis, Advocate for the Complainant, we find that the Opposite Party cannot be held negligent or guilty of rendering sub standard services in the case of the Complainant.  We are of the view that whatever laboratory results the Opposite Party received from the Elisa HIV Test which is a mere screening test and has given his opinion and certificate to the authorities concerned as per the requirement as pointed above on Page 73, 86 & 87 filed with the written statement. The submission made by Shri. Shenoy in view of the observations of the Hon’ble Supreme Court in the case of Kusum V/s. Batra Hospital, 2010 (4) Mh.L.J., Page 541, (1)  A medical practitioner would be liable only where this conduct fell below that of the standards of a reasonably competent practitioner in his field. (2) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.  In the present case upon going through the principles which are laid down by the Hon’ble Supreme Court in para 94 of the said judgment we hold that the Complainant has failed to make out any case of medical negligence and substandard services against the Opposite Party.

15)      The similar type of case of medical negligence – clinical laboratory – wrong diagnosis has been decided by the Rajasthan State Consumer Commission in the case of Virendra Mahla V/s. Sushil Kumar, reported in II 2008 CPJ 547, wherein the Hon’ble State Commission by referring the observations made in the Harrison’s Book of Principles of Internal Medicines observed as under –

                        “We may conclude that the results may vary from test to test.  Even persons showing positive HIV in screening test may not be positive in the confirmative test.  It was found that only 10% of EIA positive individuals are subsequently confirm to have HIV infection.  It has also been mentioned that if one suspected of having HIV based upon positive or inconclusive EIA result must have the result confirmed with the most specific Assay which is known as the WB method.”

            In view of the above observations the Hon’ble State Commission held that the Appellants not guilty for any negligence on their part and therefore, order of the District Forum sicker dtd.02/01/04 was set aside.  Therefore, we feel that though subsequent reports placed on record by the Complainant showing HIV Non Reactive and the Complainant was asked by the Opposite Party that the repeat test needs to be performed on him 4-6 weeks later and confirmation has always got to be done by Western Blot Test and the Complainant thereafter repeated the tests as per above requirement and in such test it was found that the Complainant is HIV Non Reactive.  As noted above in the Harrison’s book also it is clarified that the result may vary from test to test and as such, in our view the report which was given about the Complainant by the Opposite Party dtd.19/10/05 was never conclusive report as the results were not confirmed by more specific Assay which is known as the Western Blot Method.  In our view the submissions made by the Advocate for the Complainant Shri. Jayant Chitnis and the allegations made in the complaint against the Opposite Party are devoid of merits.

16)      It is also pertinent to note that the appointment order placed on record at Page 32 issued in favour of the Complainant by Modern Still Mills, dtd.25/09/2005 states the appointment of the Complainant would be for the period of 2 years from the date of joining.  The Complainant admittedly worked at Saltanats of Oman from 20/01/06 to 31/05/08 that means he worked there for more than 2 years though he was appointed for 2 years. The Complainant got knowledge that he is HIV Non Reactive immediately on 26/10/05 as per the laboratory report of Aurangabad at Page 25 i.e. within 7-8 days after the report forwarded by the Opposite Party to the concerned authority which was going to appoint the Complainant at Oman.  The Opposite Party in its certificate has specifically held the Complainant unfit as per G.C.C. criteria and later on also explained the Complainant to repeat the test after 4-6 weeks as Elisa was the commonest test and it was conducted to detect HIV antibodies.  It is also pertinent to note that the Opposite Party never declared that the Complainant is suffering from HIV or AIDS.  The allegations made in the complaint to that effect are totally baseless.  The Complainant has claimed that he has incurred an amount of Rs.80,000/- towards medical expenses and medical charges, however, the Complainant has not produced any documentary evidence to prove the said expenditure.  The compensation claimed by the Complainant payable to his wife on account of mental and physical sufferance to the tune of Rs.10 Lacs and payable to his two sons for the reason that they did suffer and were stunned on account of the so called disease suffered by the Complainant and the hardships sustained on their part to the tune of Rs.3 Lacs each in our view is not at all corroborated or proved by the Complainant.  In our view the claim made by the Complainant as above itself on their behalf is not maintainable.  We hold that whatever claim made in the complaint against the Opposite Party is not just and proper on any count and thus, the complaint is liable to be dismissed.  In the result the following order is passed -

O R D E R

i.                    Complaint No.185/2008 is dismissed with no order as to cost.

        ii.                  Certified copies of this order be furnished to the parties.