DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Thursday the 21st day of October 2021
CC No. 603/2015
Complainant
Asha Nair.K.N
Aiswarya House
Thamarassery (P.O). Calicut.
(By Adv.Anila.K.N)
Opposite Party
Mananging Director
Sudharma Speciality Laboratory
SRS Building, Near WC Building
Karadi, Thamarassery, Calicut.
(Adv. Tomy John Vettath)
ORDER
By Sri. V. BALAKRISHNAN. V – MEMBER .
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant, in brief, is as follows:
On 25/09/2015 the complainant approached Dr. C. Mohanan, Prasanthi Clinic, Thamarassery as she was tired and not feeling well. After examination, the doctor advised to check triglycerides level. Accordingly on 26/09/2015, she approached the opposite party and conducted lipid profile test and also urine test. The report received on the same day disclosed that the triglycerides level was 529 mg / dl. On 28/09/2015, she consulted Dr.R.D.Vijayakumar MBBS, MS, at Kunnamangalam, who was a professor in surgery in KMCT Medical college, Kozhikode. After examination and considering the lab report, the doctor informed that the triglycerides level was very high and there was chance of clotting of the blood and medicines were prescribed including aspirin. But on consuming the medicine, she fell down unconscious and suffered injury and was taken to the MIMS hospital, Kozhikode on 30.09.2015. Dr.Abdulla Cheriyakkat of MIMS hospital advised a new lipid profile test and urine test. Accordingly on 01/10/2015 the tests were conducted in the MIMS hospital. The test result revealed that the triglycerides level was only 128 mg / dl. The doctor advised rest for two weeks and prescribed medicines. The doctor informed her that the dizziness and vomiting was due to the intake of medicines to lower the level of triglycerides. The doctor also informed her that the lab report of the opposite party was wrong and that during the span of five days the level of triglycerides will not come down even if medicines are consumed. The lab test was conducted by the opposite party with inexperienced lab technicians who have no professional knowledge. There was gross deficiency in service on the part of the opposite party. All the unwanted sufferings and expenses were due to the wrong lab report given by the opposite party. Hence the complainant seeks realisation of compensation to the tune of Rs. 5 lakhs from the opposite party.
3. The opposite party filed version wherein the disputed lab report is admitted. According to the opposite party, the lab report is true and correct. The test is being conducted using modern equipments with expert staff. There was no laches, negligence or deficiency of service on the part of the opposite party. The 2nd lab report is incorrect and the sufferings of the complainant were due to the negligence of the doctor who prescribed high dose medicines to the complainant. In the lab report of the opposite party, it is stated that the serum is highly lipaemic, which affirms the high triglycerides level. Intake of fatty food can temporarily boost triglycerides level in blood and decrease after a few hours or days. The complainant consulted a surgeon instead of the doctor who advised lipid profile test. The dizziness and other complications were only because of the high dose of medicine carelessly prescribed by the said doctor. There was no deficiency of service on the part of the opposite party. It is, therefore, prayed to dismiss the complaint.
4 . The points that arise for determination in this case are:
(1) Whether there was any deficiency of service from the
part of the opposite party, as alleged ?
(2) Whether the claim for compensation is allowable? If so,
What is the quantum?
(3) Reliefs and costs.
5. Evidence consists of the oral evidence of PW1 to PW3 and Exhibits A1 to A7 on the side of the complainant. No evidence was let in by the opposite party.
6. Heard both sides. Brief argument note is filed by the opposite party.
7. Points 1 and 2 : These points can be considered together for the sake of convenience. The complainant is seeking compensation from the opposite party for her the unwanted sufferings and expenses due to the wrong lab report given by the opposite party. In order to substantiate her case, the complainant examined three witnessness as PW1 to PW3 and produced and marked 7 documents as Exts.A1 to A7. PW1 is none other than the complainant. PW1 has filed proof affidavit and deposed in terms of the averments in the complaint. PW2 is Dr. Vijayakumar who was consulted by the complainant with the lab report issued by the opposite party. PW3 is Dr. Thulaseedharan, who is the Head of the Department of General Medicine, Government Medical College, Kozhikode. Ext.A1 is the medical prescription of Prasanthi clinic, Thamarassery to conduct triglycerides test, Ext. A2 is the test report of Sudharma Speciality laboratory, Thamarassery, Ext.A3 is the medical prescription of the Dr. R.D. Vijayakumar, Ext.A4 is the outpatient bill, Ext. A5 is the test report and Ext. A6 and A7 are the prescriptions of the MIMS hospital, Kozhikode.
8. It is well settled that in consumer complaints, the onus to prove the deficiency in service is on the complainant. This has been reiterated by the Hon’ble Apex Court in SGS India Vs Dolphin International Ltd – LL 2021 SC 544. At the very outset, it may be noted that there is absolutely no evidence to show that the test is done in the 1st opposite party lab by inexperienced or unqualified staff. Nothing is produced by the complainant to prove such an allegation. There is no case for the complainant that the opposite party is not conducting the test with the aid of modern equipments. Equally, there is no evidence that the equipments in the lab are not well maintained or they are inaccurate.
9. Admittedly, the complainant at first approached Dr. C. Mohanan with complaints of weakness and dizziness and the doctor after clinical examination advised triglycerides test as per Ext.A1. Probably such a test was prescribed for the complainant since the doctor suspected increase in the level of triglycerides. The test was done in the opposite party lab. Ext. A2 is the test result. As per Ext. A2 the triglycerides level was 589 mg/dl. It is specified in the lipid profile test that ‘Serum Highly Lipaemic’. The finding that the serum is highly lipaemic prima facie justifies Ext.A2 report. PW3, who is an expert in this field, has stated that the serum becomes lipaemic when triglycerides level is high. In Ext.A5 report there is no remarks that the serum is highly lipaemic. It is true that as per Ext.A5 report the triglycerides level is 128 mg/dl. No witness is examined to prove Ext.A5. The doctor of the MIMS hospital who acted upon Ext.A5 and prescribed medicines is not examined by the complainant. It is deposed by PW3 that triglycerides can temporarily boost high immediately depending on the food consumed. In Harvard Health Publications- Harvad Medical School-it is stated that “After an especially fatty meal, triglycerides can be so abundant that they give the blood a milky tint. Within a few hours after a meal, triglycerides have mostly cleared out of the blood stream”. Merely because Ext.A5 report shows triglycerides level as 128 mg/dl only that does not automatically means that Ext. A2 is incorrect. PW3 is unable to say which report is correct. PW3 has deposed that he cannot say for certain as to whether Ext.A2 or A5 is the accurate one. Ext.A5 shows that the triglycerides level is 128 mg/dl and other lipid levels are also normal. If that be so, what was the reason for her fatigue and weakness which prompted her to consult Dr. C. Mohanan of Prasanthi clinic ?. What was the reason for such symptoms at that time is to be explained by the complainant. Similarly, why the doctor in the MIMS hospital advised two weeks rest and prescribed medicines also remains to be explained by the complainant.
10. It was contended that the triglycerides level will not come down from 529 mg / dl to 128 mg / dl by medication for 5 days as in this case. PW3 is of the opinion that the triglycerides level will not come down to such a level by medication for a few days. But as far as the case in hand is concerned, there is no evidence as to which lab report is the correct one.
11. The definite case of the opposite party is that the difficulties and sufferings of the complainant were due to the high dose of medicine prescribed by PW2, who is a surgeon. PW3 has categorically deposed that if a patient consults him with a Ext. A2 showing triglycerides level at 529 mg / dl, he would prescribe medicines only after thorough examination and tests to rule out any other medical conditions to boost the triglycerides level and the prescribe medicines only after considering the family history and background of the patient, otherwise he would advise food control and physical exercise. As per Ext.A3 aspirin is prescribed for the complainant. But PW3 has opined that usually aspirin is prescribed only when the patient had a history of stroke or heart attack. Admittedly the complainant in this case has no such history. The learned counsel for the complainant submitted that the aforesaid statements and opinion of PW3, who is an expert points to the fact that the complainant’s case is more probable.
12. To sum up, this commission is of the view that no negligence or latches on the part of the opposite party could be established in this case. The complainant could not prove that there was deficiency of service on part of the opposite party as alleged and consequently she is not entitled to claim any compensation from the opposite party. Points found accordingly.
13. Point No.3 :
In view of the findings on the above points, the complainant is not entitled to the relief sought for and the complaint is only to be dismissed.
In the result, the complaint is dismissed. However, no order as to costs.
Dictated to the Confidential Assistant, transcribed by her and corrected by me and pronounced in the open commission on this the 21st day of October 2021.
Date of Filing: 21/11/2015. Sd/-
PRESIDENT
Sd/-
MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of the is the medical prescription of
Prasanthi clinic, Thamarassery
Ext. A2 – Copy of the test report of Sudharma Speciality Laboratory
Ext.A3 - Copy of the medical prescription of the Dr. R.D. Vijayakumar, Ext.A4 - Copy of the outpatient bill
Ext. A5 – Copy of the test report
Ext. A6 and A7 are the prescriptions of the MIMS hospital, Kozhikode.
Exhibits for the Opposite Party
Nil –
Witnesses for the Complainant
PW1 – Asha Nair.K.N. (Complainant)
PW2 – Dr. Vijayakumar
PW3 – Dr. Thulaseedharan
Sd/-
PRESIDENT
Sd/-
MEMBER
Forwarded/By order
Senior Superintendent
