Tamil Nadu

South Chennai

CC/333/2007

Jifrik Ali - Complainant(s)

Versus

Dr.Hisamuddin Papa - Opp.Party(s)

M/s.N.Anandan

11 Dec 2017

ORDER

                                                                        Date of Filing :   25.06.2007

                                                                        Date of Order :   11.12.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.333/2007

MONDAY THIS 11^TH DAY OF DECEMBER 2017

Jifrik Ali,

S/o. Jafarullah Khan,

No.221, Margo Lane,

Alandur, Chennai 600 016.                           Complainant

 

                                        ..Vs..

1.  Dr. Misamuddin Papa,

Founder Director of Huma

Specialist Hospital & Research Centre,

No.786 (New No.420),

Anna Salai,

Nandanam, Chennai 600 036.

 

2. The Huma Specialist Hospital

& Research Centre,

Rep. by its Dr. Hisamuddin Papa,

No.786, (New NO.420)

Anna Salai,

Nanadanam, Chennai 600 036.                    Opposite parties.

 

Counsel for Complainant           :    M/s.  N. Anandan & another         

Counsel for opposite parties     :    M/s. M. Kesavan     

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.10,00,000/- as damages for great mental  agony and to pay cost of the complaint.

1. The averment of the complaint in brief are as follows:

         The complainant submit that  he got an offer of employment as Restaurant worker from one Ismail of Malaysia in April 2006.   The complainant was asked by the said Ismail to get medical fitness certificate from one of the hospitals recognized by the Government of Malaysia to enable him to get visa.    On 26.4.2006 the complainant went to the opposite parties hospital which is one of the recognized hospital and paid a sum of  Rs.2000/- towards fees for medical fitness certificate and after taking the blood sample and asked to come on the evening of 26.4.2006 to get the certificate.   On seeing the report which shows that the complainant was having HIV Positive.  Hence the complainant was very much shocked and distressed his relatives  also much more shocked after hearing the report of the complainant.   The complainant was totally disbursed and distressed.   The complainant further state that on the next day on 27.4.2006 the complainant approached to Kumaran Hospital for such tests.  After due examination the complainant was given certificate showing HIV Negative.   On 27.4.2006 the complainant undergone another tests with Aswene Soundara” Hospital and Research Centre in which also the report shows the HIV negative.   Thereafter the complainant undergone detailed examination and certificate from Voluntary Counseling and Testing Centre, National HIV Reference Laboratory Institute of Microbiology, Madras Medical College, Chennai-3 on 11.3.2008 showing HIV Negative.   Accordingly he issued legal notice dated 4.5.2006 claiming a sum of Rs.10,00,000/- towards damages.  The opposite parties sent a reply dated 12.6.2006 with false and imaginary contention for which due re-joinder send.   As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in the Written Version filed by the  opposite parties is  as follows:

      The  opposite parties deny each and every allegations except those that are specifically admitted herein.   The opposite party submit that 1^st opposite party is an experienced doctor by profession and also one of the Panel doctors of the Gulf Co-operation Council, (Governing Body that controls all the Ministries of Health of all the GCC Countries) and also for the Malasian Government for examining the persons who are selected for employment and visa.    Further the opposite parties state that after thoroughly ascertaining the quality of service, performance, quality of equipments, maintenance of records, maintenance of the Hospital, on detailed physical verification, inspection  and all other stipulations, the International Standard Organization has issued ISO certificate for the year 2000.    Further the opposite parties state that admittedly on 26.4.2006 the complainant approached the opposite parties for issuing Medical Fitness Certificate to go over to Malaysia.   Accordingly as per the guideline issued by the Health Ministry, Malaysian Government and after ascertaining his identity with his Indian Passport bearing No.E5754432, the opposite parties have meticulously conducted various medical tests and medical examinations.  Based on the results of the medical tests, medical reports and medical examinations conducted on the complainant, undoubtedly, the opposite parties came to understand that the complainant tested positive for HIV.   Further the opposite parties state that the complainant knowing pretty well that he was suffering from HIV positive in order to go abroad might have approached various hospitals for getting medical fitness certificate by setting up some other person to give blood sample.   Accordingly the complainant might have approached M/s. Kumaran Hospital and Research Centre, Chennai and also M/s. Aswene Soundra Hospital and Research Centre, Chennai 18 and obtained the alleged medical fitness certificate i.e. HIV Negative report.   Further the opposite parties state that the complainant with deliberate and ulterior intention to black mail, co-erse, to spoil the reputation and good will of the 1^st opposite party and his hospital  has lodged the above complaint without any basis.     Hence there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as her evidence and document Ex.A1 to Ex.A7  marked.  Proof affidavit of opposite parties filed and Ex.B1 to Ex.B4 marked on the side of the opposite parties.

4.   The points for the consideration is: 

Whether the complainant is entitled to a sum of Rs.10,00,000/- towards damages for mental agony with cost as prayed for?

 

5. ON POINT:

         

          Both parties filed their written arguments.    Perused the records (viz) complaint, written version, proof affidavit and documents.  The complainant pleaded in the complaint and contended that he had an offer of employment as Restaurant worker from one Ismail of Malaysia in April 2006.   But he has not produced any record.  The complainant was asked by the said Ismail to get medical fitness certificate from one of the hospitals recognized by the Government of Malaysia to enable him to get visa.    On 26.4.2006 the complainant went to  the opposite parties hospital which is one of the recognized hospital and paid a sum of  Rs.2000/- towards fees for medical fitness certificate and after taking the blood sample, the opposite party  asked to come in the evening of 26.4.2006 to get the certificate.   On seeing the report which shows that  the complainant was having HIV Positive as per Ex.A1.  Hence the complainant was very much shocked and distressed. His relatives  also much more shocked after hearing the report of the complainant.   The complainant was totally disbursed and distressed.   The complainant further contended that on the next day on 27.4.2006 he went to Kumaran Hospital for such tests as per Ex.A2.  After due examination the complainant was given certificate Ex.A2 show HIV Negative.   On 27.4.2006 the complainant undergone another tests with Aswene Soundara” Hospital and Research Centre in which also the report shows the HIV negative.   Thereafter the complainant undergone detailed examination and certificate from Voluntary Counseling and Testing Centre, National HIV Reference Laboratory Institute of Microbiology, Madras Medical College, Chennai-3 on 11.3.2008 showing HIV Negative vide Ex.A7.  The complainant further contended that the service rendered by the opposite parties itself very clear deficiency in diagnosing and testing due to the negligence of the opposite parties.  The complainant could not send the certificate to Malaysia and get the visa; thereby the complainant lost the attractive job with the salary of Rs.20,000/- p.m.  besides the loss of Rs.45,000/- paid towards visa.  But the complainant has not produced any document to show the salary or payment towards visa; etc.,    He issued legal notice Ex.A4 dated 4.5.2006 claiming a sum of Rs.10,00,000/- towards damages.  The opposite parties sent a reply dated 12.6.2006 with false and imaginary contention for which due re-joinder Ex.A6 also sent and filed this complaint claiming compensation.  But the complainant has not proved the huge claim of Rs.10,00,000/- as compensation.  

6.     The contention of the opposite parties is that the 1^st opposite party is an experienced doctor by profession and also one of the Panel doctors of the Gulf Co-operation Council, (Governing Body that controls all the Ministries of Health of all the GCC Countries) and also for the Malasian Government for examining the persons who are selected for employment and visa.    Further the contention of the opposite parties is that after thoroughly ascertaining the quality of service, performance, quality of equipments, maintenance of records, maintenance of the Hospital, on detailed physical verification, inspection  and all other stipulations, the International Standard Organization has issued ISO certificate for the year 2000.   Hence the alleged question of deficiency and lack of services is unwarranted.   But the opposite parties has not produced any record to prove that.    Further the contention of the opposite parties is that admittedly on 26.4.2006 the complainant approached the opposite parties for issuing Medical Fitness Certificate to go over to Malaysia.   Accordingly as per the guidelines issued by the Health Ministry, Malaysian Government and after ascertaining his identity with his Indian Passport bearing No.E5754432, the opposite parties have meticulously conducted various medical tests and medical examinations.  Based on the results of the medical tests, medical reports and medical examinations conducted on the complainant, undoubtedly, the opposite parties came to understand that the complainant tested positive for HIV.   Ex.A1 is the certificate issued by the opposite parties.    Further the contention of the opposite parties is that the complainant knowing pretty well that he was suffering from HIV positive in order to go abroad might have approached various hospitals for getting medical fitness certificate by setting up some other person to give blood sample,   accordingly the complainant might have approached M/s. Kumaran Hospital and Research Centre, Chennai and also M/s. Aswene Soundra Hosptial and Research Centre, Chennai 18 and obtained the alleged medical fitness certificate i.e. HIV Negative report.   But the opposite parties has not taken any steps to prove the alleged contention of setting up some other person to give blood sample.   Hence the above contents cannot be accepted. Further the contention of the opposite parties is that the complainant with deliberate and ulterior intention to black mail, co-erse, to spoil the reputation and good will of the 1^st opposite party and his hospital  has lodged the above complaint without any basis cannot be accepted, since the complainant produced HIV negative certificate from Kumaran Hospital, M/s. Aswene Soundra Hosptial and HIV Research Centre, Chennai 18 as per Ex.A7.  Further the contention of the opposite parties is that the compensation claimed by the complainant is exorbitant and imaginary and without any basis.   On the basis of the test report alone the opposite parties issued certificate showing HIV positive.  The complainant has not produced any test report except the certificate.  But it is very clear from the certificates including HIV Research Centre  which shows that the complainant have HIV negative.   Therefore the opposite parties have committed deficiency in service.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 and 2 are jointly and severally liable to  pay a sum of Rs.50,000/- towards reasonable compensation  for mental agony with cost of Rs.5,000/- and the points are answered accordingly.

In the result the complaint is allowed in part.  The opposite parties 1 and 2 are jointly and severally liable to  pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards reasonable compensation  for mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.  

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

 

Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 11^th day  of  December  2017.  

 MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1   26.4.2006 - Copy of certificate issued by the opp. parties.

Ex.A2  27.4.2006  - Copy of certificate issued by Kumaran Hospital

Ex.A3  28.4.2006  - Copy of certificate issued by Aswene Soundara Hospital,

                              And Research Centre.

 

Ex.A4  4.5.2006    - Copy of legal notice.

Ex.A5  12.7.2006  - Copy of reply notice.

 

Ex.A6  10.7.2006  - Copy of rejoinder sent by the complainant’s counsel.

 

Ex.A7 11.3.2008   Copy of certificate issued by Voluntary Counseling and

                               Testing Centre National HIV Reference Laboratory Institute

                               of Microbiology, M.M. College, Chennai.

 

Opposite parties side document: -

Ex.B1 26.4.2006  - Copy of certificate issued by the opposite party.

Ex.B2  4.5.2006    - Copy of legal notice.

Ex.B3  12.6.2006  - Copy of reply notice.

Ex.B4                 - Copy of Postal Ack. Cards.     

 

MEMBER-I                        MEMBER-II                             PRESIDENT.