Kerala

Kannur

CC/246/2020

Shiju Komath - Complainant(s)

Versus

Dr,Sruthi.P,Pathalogist - Opp.Party(s)

Sunil Kumar.K.G

31 Mar 2023

ORDER

IN THE CONSUMER DISPUTES REDRESSAL FORUM
KANNUR
 
Complaint Case No. CC/246/2020
( Date of Filing : 28 Oct 2020 )
 
1. Shiju Komath
Aradhana,Thottaramba,Puliparamba,Thaliparamba.P.O,Kuppam,Thaliparamba,Kannur-670141.
2. Dhanya Shiju
W/o Shiju Komath,Aradhana,Thottaramba,Puliparamba,Thaliparamba.P.O,Kuppam,Thaliparamba,Kannur-670141.
3. Ameya.K
D/o Shiju Komath,Aradhana,Thottaramba,Puliparamba,Thaliparamba.P.O,Kuppam,Thaliparamba,Kannur-670141.
4. Arav Shiju
S/o Shiju Komath,Aradhana,Thottaramba,Puliparamba,Thaliparamba.P.O,Kuppam,Thaliparamba,Kannur-670141.
5. Lakshmanan.K
Aradhana,Thottaramba,Puliparamba,Thaliparamba.P.O,Kuppam,Thaliparamba,Kannur-670141.
6. Kamala.M.V
W/o Lakshmanan,Aradhana,Thottaramba,Puliparamba,Thaliparamba.P.O,Kuppam,Thaliparamba,Kannur-670141.
...........Complainant(s)
Versus
1. Dr,Sruthi.P,Pathalogist
Aster Mims Hospital,N.H By Pass,Chala,Chala.P.O,Kannur-670621.
2. Dr.M.Haneef
Nodal Officer,Aster Mims Hospital,N.H.Bypass,Chala,Chala.P.O,Kannur-670621.
3. Aster Mims Hospital
N.H.Bypass,Chala,Chala.P.O,Kannur-670621,Rep.by its Administrator.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MRS. RAVI SUSHA PRESIDENT
 HON'BLE MRS. Moly Kutty Mathew MEMBER
 HON'BLE MR. Sajeesh. K.P MEMBER
 
PRESENT:
 
Dated : 31 Mar 2023
Final Order / Judgement

SMT. RAVI SUSHA: PRESIDENT

Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019, seeking to get an order directing opposite parties to pay Rs.3,00,000/- to complainants towards compensation for the mental pain and agony suffered by them, to pay Rs.19,500/- the loss of income and also Rs.2,750/- towards the lab charge collected by opposite party.

            Brief facts of complainant’s case are that on 13/09/2020 the complainant No.4 Arav Shiju, a boy having 3 years of age, fell down from the house and immediately he was taken to Taliparamba Co-operative Hospital.  Subsequently on the same day he was referred to Aster MIMS Hospital, Kannur.  The complainant No.4          Arav shiju was admitted OP No.3 hospital and on the same day ie, on 13/09/2020  a Covid test was conducted and the result was positive.  He was discharged only on 14/09/2020 and an amount of Rs.6,540/- was collected by the OP No.3 as treatment expense. Out of this amount Rs.2,750/- was collected  as lab charges.  Moreover the OP No.3 informed the case that the complainant No.4 was a Covid positive patient to the Health and family Welfare Department, Kerala State.  Hence, in accordance with the Covid protocol all the Complainants were directed to observe Quarantine.  So the complainants were in quarantine at their residence till 28/09/2020.  Meanwhile the Health Department conducted a Covid test for all of the complainants except Arav Shiju and found that all are Covid Negative.  Lastly the health department tested the Nasopharyngeal Swab of Arav Shiju the complainant 4 on 24/09/2020 and it is found that he also covid negative.  Subsequently on 25/02/2020 another test-Rapid test for Covid -19 IgM and IgG  Antibodies-was conducted from Kerala medical Laboratory at Payyannur, a Maulti Speciality Medical Diagnostic Research Centre.  This institution after the detailed diagnosis it is found that Arav  Shiju is Covid negative.  As per the Rapid test for Cobvid-19 IgM and IgG Antibodies it is under stood that the complainant No.4 never suffered Covid 19.  It is submitted that while conducting the Covid test the OP No.4, Aster MIMS Hospital had not take little care or caution. The OP Nos 1 and 2 conducted the test irresponsibly and negligently and hence a false result was informed to the complainant No.1 as well as the Health Department.  All the OPs were irresponsible and negligent for diagnosing and treating the complainant No.4.  It is submitted that the complainant No.1 is a Goods Jeep driver earning Rs.1,500/- per day.  Since he was in quarantine from 14/09/2020 to 28/09/2020 he had lost his income of those periods since he was in quarantine.  The complaint No.1 lost Rs.19,500/- as the income from 14/09/2020 to 28/09/2020 only because of the OPs  negligent and false finding that his son Arav is a Covid 19 patient.  In addition to that all of the complainants constrained to live in quarantine for 14 days without any contact with anyone including the neighbors and relatives.  Hence the complainants suffered much mental pain and agony.  Therefore a lawyer notice was sent to the  OPs on 29/09/2020 directing the OPs jointly and severally pay Rs.3,00,000/- to the complainants as compensation for the mental pain and agony suffered by them, to pay Rs.19,500/- the loss of income to the complainant No.1.  It was also directed to the OP No.3 to pay Rs.2,750/- the lab charge collected by it, to the complainants No.1.  Even though the OPs received the notice, neither reply was sent nor any compensation amount paid.

            The complainants, especially the complainant Nos 1 and 2 believed the advertisement of the OP No.3 in Newspapers and hence the complainant No.4 was taken to the OP NO.3 hospital. The negligent diagnosing of the OPs that the complainant No.4 was a covid patient is nothing but their deficiency in service obtained on behalf of the complainant NO.4.  Hence this complaint.            

After receiving notices OPs jointly filed version stating that complainants are not consumers as defined in section 2(7) of the Consumer protection Act 2019.  Complainant No.1 to 3, 5 and 6 did not buy any goods or hire any service for consideration from the OPs.  Conducting Covid test form the laboratory attached to a hospital by the qualified doctor will come under the definition of “Health Care”.  As per the newly introduced Consumer protection Act, health care is excluded from the definition of service.  So the service given by conducting truenat RTPCR test  from a laboratory by qualified person is not  a service as defined under the  consumer protection act and the complaint has to dismiss as not maintainable on that ground also.  The averment s in the compliant that on 13/09/2020, the complainant No.4 Arav a boy aged 3 years of age was referred from Taliparamba Co-operative Hospital as he had fell down from the house and he was admitted in the OP No.3 hospital and on the same day a Covid truenat RTPCR test was conducted and he was found as positive and he was discharged from the hospital on 14/09/2020 and amount was collected from the hospital for conducting truenat test and out of the amount collected, Rs.2,750/- was the lab charges and that the above OP informed the result of Covid test of Arav  to the health and  family welfare department, Kerala State are admitted by the above OPs.  It was as per the state guidelines that that the OPs informed about the detection of corona virus to the Kerala State Health and family welfare department.  Further contended that the OPs are not aware about the averment of complainant that after the covid test the OP NO.3 informed the complainant NO.1 and2 have a package of Rs.3,000/- per day for covid treatment and the complainant NO.4 could avail that facility.  As such the OP NO.3 admitted the complainant NO.4  in the hospital on 13/09/2020.  But on the very next day ie on 14/09/2020 the complainant NO.1 and 2 and one Baburaj who accompanied the complainant No.4 requested to discharge the complainant 4 from hospital.  The averment that initially the OP NO.3 was not ready to discharge the complainant NO.4.  Lastly the complainant NO.1,2 and the above said Baburaj demanded the compulsory discharge and lastly the OP No.3 discharged the complainant 4 from the hospital 14/09/2020 is not correct.  It is submitted that while conducting the Covid test the OP No.4, Aster MIMS Hospital had not take little care or caution, the OP Nos 1 and 2 conducted the test irresponsibly and negligently and hence a false result was informed to the complainant No.1  as well as the Health Department, all the OPs were irresponsible and negligent for diagnosing and treating the complainant NO.4 are denied OPs submits that on 13/09/2020, the complainant NO.4 Arav Shiju a boy aged 3 years was taken to the 3rd OP hospital as referred from the Taliparamba             Co-operative hospital due to the injury on head.  As the injury was on the head, the OP NO.3 hospital has to keep the complainant NO.4 under observation for a period of 24 hours.  As per the covid 19 protocol, any person coming to the hospital for admission has to undergo Covid 19 test.  Accordingly, on the same day truenat Beta Covid test was conducted and the result was found as 33.43 Egene positive and 31.5 Rd Rp was detected which shows tha the patient has positive Corona Virus.  Truenat RTPCR tests are the tests for the confirmation of covid 19 approved by ICMR.  Laboratory of the 3rd OP was recognized by the ICMR and the Govt. of Kerala.  As per the covid-19 protocols, if a person’s swab tested in the laboratory is found as positive for covid 19,  the same has to be uploaded to the ICMR Porta and Kerala State Health mon portal.  Immediately on ascertaining Covid 19 Virus, the OPs complied the above said protocol.  At that time, house isolation was permitted by the Kerala government for the Covid 19 patients who was having low Corona virus (a symptomatic patient).  Accordingly, as requested by   the persons accompanying the patient, the fourth complainant was discharged from the hospital on the next day.  The OPs never asked other complainants to go for quarantine.  If the complainant’s were not satisfied with the test conducted by the he OPs, they could have requested the government to conduct the test by the Govt. laboratory, which they can avail without paying any fee.  The approved laboratory permitted to conduct the covid test must have an MBBS doctor in the laboratory.  OPs No.1 is a pathologist who is in charge of the laboratory and OP No.2 is a Nodal officer of Covid 19 in the hospital having the qualification of MBBS, MD.  The OPs are not aware whether the health department has conducted covid test to all the complainants.  If antigen test was conducted, and it was found as negative that is not a guarantee that corona virus will not be present. The test requested to be conducted to ascertain Covid 19 virus is RTPCR test and not antigen test.  A person having corona Virus in high concentration in the swab only will be showing positive in antigen test.  In RTPCR test, the corona virus is whatever lower quality can be ascertained.  So if a person is having negative in antigen test is no guarantee that he is negative to covid 19.  Covid 19 antigen test after 10 days will be usually negative and is a discharge criteria as per govt. guidelines.  To ascertain the presence of corona virus     Covid- 19 IgM test has to be conducted after 14 days of becoming negative and IgG test has to be conducted after 21 days after becoming infected that too from reorganized laboratory.  To ascertain the presence of antibody antigen virus in this case antibody antigen test done on the 10th day will unlikely to show any antibody, corona-19 virus.  The OPs further says that the laboratory from where the complainants have conducted Covid-19 IGM and IgG test conducted ie, Kerala Medical Laboratory is not a laboratory recognized by the ICMR and the Govt.  of Kerala and the test conducted is not believed to be qualitative test as such it is unlikely to detect contents of Covid -19 virus.  It is submitted that the corona virus test was conducted from the t laboratory attached to the 3rd OP hospital by qualified persons under the supervision of qualified doctor and nodal officer.  The subsequent test alleged have to be made by the complainant after several days will not give any proof that the complainant No.4 does not have corona virus positive on the date of examination of the swab from the laboratory attached to 4th OP.  Complainants are not entitled to get any relief from the OPs.  Hence prayed for the dismissal of complaint.

At the evidence stage Pw1 to 3 including complainant were examined on the side of complainant  Ext.A1 to A7 series were marked.  All witnesses were subjected to            cross-examination for the OPs.  On the side of OPs, 1st OP has filed her chief affidavit and was examined as Dw1.  Ext.B1 and B2 were marked.  Dw1 was subjected to cross-examination for the complainant.

   Complainants case is that on 13/09/2020 the complainant NO.4 Arav Shiju, a boy having 3 years of age, fell down from the house and sustained a head injury and admitted in OP 3 hospital  and on the  same day ie; on 13/09/2020 a Covid test (Covid 19 Truenat RTPCR Test) was conducted and the result was positive.  He was discharged on 14/09/2020 and an amount of Rs.6540/- was collected by the OP3 as treatment expense.  Out of this amount Rs.2,750/- was collected as lab charges.  Moreover the OP3 informed the fact that the complainant NO.3 Arav Shiju was a Covid positive patient to the Health and family Welfare Department, Kerala State.  So the complainants were in quarantine at their residence till 28/09/2020.  Meanwhile the Health department conducted a Covid test for all of the complainants except Arav Shiju and found that all are Covid negative.  Lastly the health department tested the Nasopharyngeal Swab of Arav Shiju, the complainant No.4  on 24/09/2020 and it is found that he also Covid negative.  Subsequently on 25/02/2020 another test Rapid test for Covid 19 1gM and 1gG Antibodies was conducted from Kerala Medical laboratory at Payyannur, a Multi Speciality Medical Diagnostic Research centre.  This institution after the detailed diagnosis it is found the Arav Shiju is Covid negative. As per the Rapid test for Covid 19 1gM and 1gG Antibodies it is under stood that the complainant NO.4 Arav Shiju never suffered Covid 19.  Complainant alleged that while conducting the covid test the OP 4, Aster MIMS Hospital had not take little care for caution.  The OPs 1 and 2 conducted the test irresponsibly and negligently and hence a false result was informed to the complainant NO.1  as  well as the Health department.  All the OPs were irresponsible and negligent for diagnosing and treating the complainant 4.

On the other hand   OPs case that as per the Covid 19 protocol any person coming to the hospital for admission has to conduct Covid 19 test.  Accordingly when Arav Shiju was admitted in the hospital on 13/09/2020 his Trunat Beta Covid Test was conducted was positive with corona virus.  Further case of the OPs are that the laboratory of the OP3 was recognized by ICMR and Government of Kerala and as per Covid 19 Protocol, if a person’s swab was tested in the laboratory and it was found positive for Covid 19, the same as to be uploaded to ICMR portal and Kerala State Health Ministry Portal.  It is further submitted that the OP 1 is a pathologist who is in charge of the laboratory and OP NO.2 is a nodal officer of Covid 19 in the hospital having the qualification of MBBS and MD.  Further stated that Ext.A1 test report issued by the OPs are the correct report without any error and the report furnished by Kerala Medical Laboratory cannot be believed or no weight can be given to it since it is not a laboratory approved by ICMR and they are incompetent to conduct the test of Covid 19.

            Complainant’s main allegation is that OPs 1 and 2 done the test on the 4th complainant’s irresponsibly and negligently and hence a false result was informed to the 1st complainants.  According to complainant that is why OPs were not produced any of the records to prove that they conducted the covid test of complainant No.4 as per protocol.  According to complainant the test report of 4th  complainant Arav Shiju was changed.

            OPs replied during cross-examined that “sample collect  ചെയ്യുന്ന ബോട്ടിലില് പേര് മാറ്റം വന്നാല് result-ല് മാറ്റം വരാം അങ്ങനെ ആ മാറ്റംഞങ്ങളുടെ സ്ഥാപനത്തില് വന്നാലും result മാറാം.  അവിടെ നിന്ന് മാറിയാലും അത് identify ചെയ്യാന് ലെവല് ഓഫ് ക്രോസ് വെരിഫിക്കേഷന് ഉണ്ട്., identify ചെയ്യാന് ബോട്ടലില് ഒരു barcode ഒട്ടിച്ച് രോഗിയുടെ പേരും ആസറ്റര് ഐഡി എടുത്ത സമയം എല്ലാം sample-ല് ഉണ്ടാകും.  അതിന്റെ കൂടെ തന്നെ ടെസ്റ്റ് റിക്വസിഷന് ഫോറം with patient details, test requires അതുകൂടാതെ ഹോസ്പിറ്റലിന്റെ information സിസ്റ്റം വഴിയും നോക്കാം.  ഇത്രയും ക്രോസ് വേരിഫിക്കേഷന് കഴിഞ്ഞാണ് ഞങ്ങളുടെ കയ്യില് result എത്തുന്നത്.”  So there no possibility for changing the result as alleged by the complainant. 

            OPs contended that if the complainant is having a case that test report was changed, then it is the duty of the complainant to prove the same.  Simply taken a contention that there will be chances to change a report is not sufficient and that cannot be believed.

            Complainants have examined Pws 2 and 3 to prove this case.  Pw2 deposed that the result of covid test of compliant No.4 was +ve and complainants were in quarantine for 14 days.  His evidence does not shows that complainant No.4 was not covid positive.  Pw3 is the lab technician who has conducted  Rapid test for covid 19 of the Arav Shiju at  his lab Kerala Medical Laboratroy on 25/09/2020 ie after 12 days from A1 result and issued Ext.A4 certificate.  The result shows negative.  Complainant’s case is that since Ext.A4 shows negative, the child Arav never suffered covid 19.  Complainants have proved Ext.A4 certificate through Pw3.  OPs contended that Ext.A4  is not an evidence to show that complainant NO. 4 has not infected covid at the time of issuing Ext.A1 certificate by OP NO.3.  During cross-examination Pw3 deposed that he is a lab technician without have any other qualification and also deposed that in his lab, there was no microbiologist and Doctor having MBBS qualification.  Further stated that Ext.A4 result was not supervised by any microbiologist.

     OPs contended that a laboratory having a microbiologist only can conduct antibody test.  Further stated that for conducting Covid 19 test the mandatory requirements are that it has to be conducted from approved laboratory and  the microbiologist is necessary for conducting covid 19 test and the antibody test result must definitely supervised by a microbiologist.  Further stated that Ext.A4 is not an Antibody test, it is only a lab report of Covid 19 test.  OPs submitted that covid 19 test and antibody test are different.  OPs main contention is that though Ext.A4 report shows negative, that is not an evidence to show that complainant No.4 has not infected covid at the time of issuing Ext.A1 certificate by OP No.3.

The 1st plea raised by OPs is complainant No.1,2,3,5 and 6 are not consumers as defined under section 2(7) of the Consumer protection  Act 2019.  OPs pleaded that complainant 1,2,3,5 and 6 didn’t buy any goods or hire any service from the OPs, so they are not the beneficiaries for the services  obtained from the OPs.  Hence OPs 1,2,3,5 and 6 are not the consumer as defined under Consumer Protection Act hence they are not entitled to get any relief from the OPs.

            As far as 1st Plea is concerned, it is admitted that only complainant No.4 availed service from OPs and paid fee for the said service.  Complainants do not have a case that other complainants availed service from OP and paid consideration.  In this situation, without availing services and without any consideration, would not attract the provisions of the Consumer Protection Act.  A deficiency in service which hired on payment of consideration is actionable but one which has not been availed service and not paid any charges does not entitled the claimant to raise a consumer dispute.  Hence we are of the view that complainants 1,2,3,5 and 6 are not consumers as defined under Consumer Protection Act  and they are not entitled to get any relief from the OPs. The 1st plea is answered accordingly.

            Another plea raised by the OPs is that there was no deficiency in service on their part in testing the nasal swab of the complainant No.4 and the test report is correct.  According to OPs, the laboratory of OP No.3 is a lab having certificate issued by National Accreditation Board for Testing and calibration laboratories.  OPs produced the certificate of Accreditation, which was marked as Ext.B2.  OPs further contended that the test report of covid 19 Truenat RTPCR of the complainant NO.4(Ext.A1) was prepared by Dr.Sruthi P, the Pathologist attached to OP hospital and was checked and approved by Dr. M  Haneef Nodal officer attached to OP hospital.  The Pathologist who issued Ext.A1 certificate was examined as Dw1 deposed that the test was conducted by the machine called as Molbio Truauat Machine which will give a result of low level of Corna virus.  Further deposed that as per the protocol at that time, even if a low level of corona virus is detecting in a patient, the same has to be informed to the Health department and accordingly, the finding of covid 19 in complainant NO.4 was informed to Health Department.

            Complainant’s case is that Ext.A4 the Rapid test for covid 19 dated 25/09/2020 shows negative, which reveals that complainant NO.4 never suffered covid 19 and thus proved that Ext.A1 report of OPs is incorrect.

            The person who issued Ext.A4 was examined as Pw3.  OPs contended that since the laboratory of Pw3 is not approved by ICMR, the test report of covid 19 conducted at Pw3’s laboratory is not correct and it cannot be believed.  Pw3 admitted that his laboratory is not having doctors having degree of pathology and other MBBS doctors.  Here complainant’s case is that since Ext.A4 shows negative result, tested after 12 days from Ext.A1 the Complainant No.4 never suffered covid 19.  This fact should have been proved by Expert evidence.  Complainant should have proved that Ext.A4 report issued by Pw3 is an authentic document and Ext.A4 is sufficient to prove that the complainant NO.4 Arav Shiju never suffers Covid 19.  Mere allegation of complainant that Ext.A1 report of OPs is not correct is not sufficient.   Pw2 and Pw3 are not expert witness to establish the allegation of the complainant.  Further Covid 19 test and antibody test are different.

            From the above facts, without any expert opinion, we cannot come to a conclusion that Ext.A1 report is an incorrect report and from Ext.A4, the complainant No.4 never suffered Covid 19.  Hence we are of the view that complainant failed to prove deficiency in service on the part of opposite parties.

            In the result, complaint fails and hence the same is dismissed.  No order as to cost.

Exts

A1- Lab report from MIMS dated13/09/2020

A2- Bill issued from MIMS hospital  dated14/09/2020

A3- Discharge summary issued  from MIMS dated14/09/2020

A4(series)- Lab report issued Kerala lab Payyannur  (marked  subject  proof)

A5- Certificated issued by urban primary health center

A6- Lawyer notice

A7(series)- AD Card 3 in numbers

B1-Order issued by KeSCPCR

B2-Accrediation certificate

Pw1-Complainant

Pw2-Baburaj-Witness of complainant

Pw3- T A Rajeev-Witness of complainant

Dw1- OP1

      Sd/                                                                                  Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                           MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

 

 

Assistant Registrar  

 

 
 
[HON'BLE MRS. RAVI SUSHA]
PRESIDENT
 
 
[HON'BLE MRS. Moly Kutty Mathew]
MEMBER
 
 
[HON'BLE MR. Sajeesh. K.P]
MEMBER
 

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