FACTS Having been aggrieved against Opposite Party No. 1, this complaint was filed by the complainant thereby making some allegations that for issuing false diagnostic report causing immense mental pressure and therefore, prayed for several reliefs including a refund of the cost of test, damages and cost of litigation. According to complainant, on 28/05/2019 he got H.S.V (Herpes Simplex Virus) test popularly known as S.T.D (Sexually Transmitted Disease) test from Opposite Party No. 1 and paid charges for the test. On 31/05/2019 he got the full report containing H.S.V virus antibody though, he was never diagnosed with such virus by any medical practitioner and he never underwent any such treatment for the same disease in the past. So, he alleged that there might be a change of blood sample for report alteration as well as evidence or the complete report is false. The said report caused tremendous mental agony and pain and for which he became traumatized. Thereafter, following the advice of the members of his family in order to verify the veracity of the said test report by Opposite Party No. 1, he on 12/01/2021 again made a similar test from Opposite Party No. 2 and the report issued by Opposite Party No. 2 was found to be normal, nothing unnatural was there. Hence, this complaint and prayer for reliefs. Both the Opposite Parties contested the case by filing their respective written version and evidence claiming the instant case not being maintainable. Opposite Party No. 1 in their written version claimed the complaint not being maintainable which is barred by law of limitation. They further contended that the instant case which involves complicated question of facts and law cannot be adjudicated in a summary trial. They also claimed that a negative result does not exclude the possibility of exposure for infection with HIV- 1 or 2. They claimed for dismissal of the instant case. Besides filing evidence by the parties, complainant filed mainly the copies of the two test reports issued by both the Opposite Parties. The points for consideration are- - Is the instant complaint maintainable?
- Is the complainant entitled to relief (s) as prayed for?
FINDINGS Point No. 1: We have gone through the evidence and other materials on record. Complainant claimed the cause of action of this complaint arose on 31/05/2019 when he got the report from Opposite Party No. 1 which according to him, was a false one. He filed this case on 24/06/2021 after a lapse of two years. Though according to Section 69 of the Consumer Protection Act, 2019, the complaint has to be lodged within 2 years from the date of cause of action, we find that in the year 2020-21 there was lockdown due to Covid-19 pandemic during which the Commission like other institutions could not function and following the direction of the Hon’ble Apex Court, the said period during lockdown when the parties could not lodge any complaint or suit, the period to initiate action was extended. Considering the same, we find the instant case is maintainable. Point No. 2: In his written argument, complainant submitted that he suffered immense mental agony and pain because of the wrong report issued by the Opposite Parties. He further claimed that there was no bar code of sample collection container being given by Opposite Party No. 1. He further claimed that the Opposite Party No. 1 could not write down his name properly which gives a presumption of the fact that the report was incorrect. On the other hand, Opposite Party No. 1 claimed that there were no laches or negligence in preparing the test report of the complainant on 31/05/2019 pursuant to the collecting of sample from the complainant. According to them, H.S.V is a common infection that causes herpes in various parts of the body. But it most commonly affects the genitals or mouth. H.S.V-1 which is known as oral herpes usually cause cold sores and blisters near the mouth and face and it is transmitted through kissing or sharing drinking glasses and utensils with a person who has H.S.V infection. H.S.V- 2 is responsible for causing genital herpes which is generally transmitted through sexual contact. Both the H.S.Vs do not always cause symptoms and people may not know whether they have infection or not. It was further stated that the test results determine whether one has contacted an H.S.V infection. If there are antibodies to H.S.V, the test will be positive even if the persons do not currently show any symptoms. Opposite Party No. 1 further contended that in the test report issued by them, it was clearly mentioned to ascertain the veracity of the report (1) equivocal results do not rule out the possibility of chlamycial infection and retesting is recommended after 7 days, (2) results must be correlated with clinical findings and other diagnostic investigations. They alleged that the complainant did not retest after seven days to become rest assured about the report. It was further contended by the Opposite Party No. 1 that in the realm of medical science it is not possible to compare the results and test reports based on blood samples drawn at different points of time, processed under different conditions and by different methods as laboratories use different methods to process samples. According to them also, a negative result does not exclude the possibility of exposure or infection with H.I.V-1 or 2. It was further argued on behalf of the Opposite Parties that in cases of medical negligence, the standard of proving negligence is higher than in ordinary cases. It has also been held that medical negligence is not a matter of perception but a matter of proof as decided by the Hon’ble National Consumer Disputes Redressal Commission in a decision reported in 2011 (3) C.P.R 478 N.C. Now what we find on perusing the materials on record that complainant claimed to have obtained blood test report on 31/05/2019 from Opposite Party No. 1 which revealed that he had tested H.I.V positive or H.I.V virus antibodies. Naturally, he became extremely worried. Subsequently, he got another test report from Opposite Party No. 2 on 15/11/2021 and this time according to him, the report was found normal and nothing unnatural was there. So, by filing this complaint he claimed compensation against Opposite Party No. 1 for his immense mental sufferings during the intervening period of the two test reports. But on perusal of the materials on record, we are not satisfied with the contention of the complainant for reasons as stated below; First of all, complainant got his first test report from Opposite Party No. 1 on 31/05/2019. The second report was obtained from Opposite Party No. 2 on 15/11/2021 i.e. after about more than one and a half years from the first report. He claimed to have immensely suffered on getting the first report. If that be so, then why he tried to obtain the second report after a gap of one and a half years. Usually, what happens in such circumstances for a man of reasonable prudence when he finds the first test report showing a positive report of H.I.V, in order to be sure, he immediately thereafter or so willing to obtain a second test report from any other renowned pathological laboratory of his confidence so that he can follow up a course of proper treatment. But here, the complainant’s case is found to be the other way round. This came to us as something absurd. His claim of lockdown due to Covid-19 being the possible reason for not getting a second test before cannot cut much ice as the institutions providing medical service remained functional during the period of lockdown. Secondly, the first test report revealed the name of a referral doctor, Dr. N. Sharma whereas no prescription of any treatment was produced by him. In this connection, the complainant claimed as we find from his petition of complaint that he got the medical test from Opposite Party No. 1 out of suspicion. If that be so, then was there any anxiety in his mind that such a disease might have attacked him and so, he thought himself appropriate to get a test report. If that is accepted then how he remained non-challant though claimed to have suffered mentally, without consulting a doctor for resuming treatment after he got his report from the Opposite Party No. 1 and instead waited for long one and a half years only to see a second test report. This is highly unusual and not absolutely comes in the normal behavioral approach of a human being. We have already pointed out that not a single prescription of treatment for any period either prior to or subsequent to his obtaining first report from Opposite Party No. 1. Thirdly, in the first test report, he was advised specifically to get another test after 7 days for retesting but he did not bother to follow the same by obtaining another test report from Opposite Party No. 1 or from any other institute and then one fine morning after almost one and a half years, he woke up from his slumber and rushed to Opposite Party No. 2 to get another test report. Fourthly, the complainant failed to examine any expert in the field to extract his opinion in support of his claim. In the written argument filed on behalf of him, it has been expressed that the second report i.e. the test report obtained from Opposite Party No. 2 is also confusing. So, if the complainant himself is not fully satisfied with the second report obtained from Opposite Party No. 2, how he can raise complaint against the report of Opposite Party No. 1 on the basis of the said report. So, in view of our aforesaid discussion as made above in the facts and circumstances of the case, we are of the view that complainant is not entitled to get any relief (s). Therefore, the instant case is liable to be dismissed. Accordingly, it is ORDERED That the instant case be and the same is dismissed on contest. No order as to costs. | 
