BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.228 of 2014

Date of Instt. 10.07.2014

Date of Decision :05.05.2015

Ramesh Chander Rekhi son of Late. Sh.Charn Das R/o 208/5, Central Town, Jalandhar-144001.

..........Complainant

Versus

1. M/s SRL Ltd, through its Managing Director/Chairman, Regd.Office:- Prime Square Building, Plot No.1, Gaiwadi Industrial Estate, S.V.Road, Goregaon West, Mumbai-400062.

2. M/s SRL Ltd, through Dr.GS Bhatnagar, Branch Lab, Near Beas Hospital, GT Road, Beas-143201 District Amritsar.

3. M/s Krishna Pat Lab through its Prop./Partner Dr.Puneet, Shop No.3, EG-45, Preet Nagar, Ladowali Road, Jalandhar-144001.

4. M/s The New India Assurance Co.Ltd, Regd.Office:- New India Assurance Building, 87, MG Road, Fort, Mumbai-400001, Branch Office, 2nd Floor, A Wing, D-3, District Center, Saket, New Delhi-110017.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.AK Walia Adv., counsel for complainant.

Sh.KC Malhotra Adv., counsel for OPs No.1 & 2.

Sh.Gagandeep Adv., counsel for OP No.3.

Sh.AK Arora Adv., counsel for OP No.4.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite parties on the averments that the opposite parties are engaged in the business of providing medical service with regards to the several test of blood, urine, stool etc to general public for consideration through out India and more particularly at Jalandhar. As per the opposite parties No.1 & 2 they are insured with the opposite party No.4 by purchasing insurance policy for professional indemnity insurance (medical establishment) policy No.9300003613020000004 for the period 7.7.2013 to 6.7.2014 issued by branch office of opposite party No.4. The complainant retired from group-B service from Bharat Sanchar Nigam Limited retired on 31.3.2010 on superannuation having spouse and two married daughters and married son enjoying retired life happily. The complainant on the advice of Dr.Sanjeev Kumar of Guru Teg Bahadur Charitable Hospital, Central Town, Jalandhar on 4.4.2014 visited the lab of opposite party No.3 for Anti-Cyclic Citrullinated Peptide (CCP) Antibodies, Serum and paid Rs.1780/- for the test. The opposite party No.3 after taking the sample for test sent the same for test to the opposite party No.2. The opposite party No.2 after test showed the result as 35.87, means high positive in its report dated 5.4.2014. On the receipt of report when the complainant consulted his Dr.Sanjeev Kumar, he warn the complainant that he is having a problem of Rheumatoid Arthritis. The complainant on coming to know that he has problem of Rheumatoid Arthritis as the opposite party No.2 have after test shown the result as 35.87-high per U/ml, means positive in its report dated 5.4.2014, the complainant was shocked mentally as this disease is mostly incurable disease. The complainant when could not digest about the report dated 5.4.2014 of the opposite party No.2 then the complainant called his son-in-law from Nawanshahar who is a doctor and after thorough checkup of the complainant, the son-in-law of the complainant advised the complainant to go for the rechecking/retesting about the Anti-Cyclic Citrullinated Peptide(CCP) Antibodies, Serum from some other lab. Thereafter, the complainant contacted Dr.Naveen Sharma, son-in-law of the complainant and he also advised the complainant to get retest of said Anti-Cyclic Citrullinated Peptide(CCP) Antibodies, Serum from an other lab other than the opposite parties No.1 and 2. The complainant then on 11.4.2014 went to the lab of M/s Path Corp Diagnostics Pvt Ltd at Jalandhar and the lab of M/s Path Corp Diagnostics Pvt Ltd at Jalandhar had drawn the specimen on 11.4.2014 and charged Rs.1950/- for Anti-Cyclic Citrullinated Peptide(CCP) Antibodies, Serum test. And after testing Anti-Cyclic Citrullinated Peptide(CCP) Antibodies, Serum the lab of M/s Path Corp Diagnostics Pvt Ltd at Jalandhar reported on 12.4.2014 as result 0.80 per U/ml which is negative. The complainant on the receipt of report dated 12.4.2014 of M/s Path Corp Diagnostics Pvt Ltd again consulted all i.e son-in-law, Dr.Sanjeev Kumar and Dr.Naveen Sharma and when all these told the complainant that there are no symptoms of Rheumatoid Arthritis. On coming to know that there is no symptoms of Rheumatoid Arthritis, the complainant and his family member felt relief. The complainant when felt some relief then on the advice of his son-in-law the complainant approached the opposite party No.3 and narrated the whole above facts to the opposite party No.3 and then the opposite party No.3 asked for third test of Anti-Cyclic Citrullinated Peptide(CCP) Antibodies of the complainant to make it sure and the opposite party No.3 on 28.4.2014 collected the serum and charged Rs.1400/- and this time sent the same for testing to the Dr.Lal Path Labs, Rama Mandi, Hoshiarpur Road, Jalandhar and Dr.Lal Path Labs, after testing prepared the report on 29.4.2014 and showed the result of test of Anti-Cyclic Citrullinated Peptide(CCP) Antibodies as 0.50 per U/ml which is also negative. Due to the wrong report dated 5.4.2014 by the opposite parties No.1 & 2 the complainant and all his family members remained in mental tension, mental agony, harassment etc from 5.4.2014 to 29.4.2014 as the disease Rheumatoid Arthritis is mostly incurable. On such like averments, the complainant has prayed for directing the opposite parties to pay him Rs.4,90,000/- as compensation.

2. Upon notice opposite parties appeared and filed their written replies. In its written reply, opposite parties No.1 and 2 pleaded that SRL Limited is a veritable pioneer of medical diagnostics in India both in the field of radiology and pathology. SRL's corporate office is situated at GP 26, Maruti Industrial Estate, Sector 18, Udyog Vihar, Gurgaon. SRL has a network of Reference Laboratories, Centres of Excellence, network laboratories (comprising lab medicine and imaging laboratories), Collection Centre and Wellness Centres, with a presence across over (400) cities/towns in India, having approx 275 network laboratories ( as on 31.10.2014) including 12 reference labs and 4 centre of excellence focused on Histopathology, Hematology, Molecular Biology and Cytogenetics) and a footprint spanning approx 1500 Collection Centres offering a comprehensive range of over 3500 diagnostic tests. Having put in place excellent systems and processes from day one, SRL has carefully and meticulously built a team of highly trained and dedicated medical and scientific staff who constitute back bone of its operations and ensure the highest quality of test results. Selection of equipment of technologies is a highly organized and focused exercise at SRL as the significance of the right choice of equipment and technology for performing a test can not be overemphasized. SRL is fully aware of the pre-analytic variable that can influence the results of tests performed. A lot of attention has also been paid in designing different type of containers used for transporting samples so that the right temperatures are maintained while the samples are in transit. Its strong logistic support and network ensure timely pick-up, transport and delivery of samples from the farthest corner of our country or abroad to the pre-designated laboratory for testing. Total interfacing of the laboratory equipment with a Centralized Laboratory Management System (CLIMS) interconnects laboratories at different locations across the country and enables accurate capturing of patient demography and other details, direct transmission of test results to the system in turn allows retrieval and printing of the results by the peripheral centres. On 4.4.2014, the sample of complainant was received by opposite party and registered under accession No.0010DN000712 for the requisite tests. The said sample of complainant was drawn and collected by opposite party No.3 and thereafter, forwarded to opposite party for testing. Opposite party hereby submits with this Forum in regard to the Phlebotomy Centre Agreement dated 17.4.2013 entered by and between SRL Limited (referred as OP herein) and Krishna Path Lab (referred as OP 3 herein) where all the responsibilities and onus of drawl and collection of sample of patients/customer is agreed by the said opposite party No.3. All the tests on the aforesaid sample were performed on high end equipments including the test of Anti CCP Antibodies which was performed on a fully automated system semi automated instruments of thermos fisher scientific and BIO RAD and the report was released once controls and calibrations are OK as per protocol. Further it is submitted that the on routine basis equipments are run for quality control tests and only after the equipments pass through the quality control process, the sample are run and reported through the said equipments which is a routine process in SRL Labs. Even sample of the equipment on run on 5.4.2014 was also OK. Further opposite party hereby also submits the copy of confirmatory test result report of the equipment for Anti CCP Antibodies report dated 5.4.2014 is annexed. It is made amply clear that the services rendered by opposite party and its doctors were neither deficient nor substandard and opposite party always did whatever was in the best interest of the patient. Opposite party and its doctors never acted in a casual and routine manner. Opposite is not aware of the fact that the complainant gave its samples to opposite party No.3 as the sample was not collected in the presence of the doctors of opposite party. Opposite party received the sample collected by opposite party No.3 on 4.4.2014 and issued the reports as per TAT on 5.4.2014. However, opposite party submits that the report dated 5.4.2014 was released by opposite party on the samples received from opposite party No.3. Opposite party submits that opposite party has given the report on the blood sample received from opposite party No.3 taking into consideration all reasonable skill and care as per standard medical ethical norms. Opposite party further submits that there is no any willful and deliberate negligence and deficiency on the part of opposite party. Furthermore, the complainant alleging the fact that he had to suffer mental and physical pain is vehemently denied and as per the legal interpretation and understanding of the opposite party, negligence can said to have occurred if there is some damage or injury caused to the person and where negligence caused but because of it no damage ensured, it will not qualify as actionable negligence ie. no compensation may be awarded. The complainant need to put strict proof for every rupee spent. Opposite party further denies the fact alleged by the complainant regarding report of another laboratories as opposite party is not aware of the facts and method of testing and the same are in the personal knowledge of the complainant and the said M/s Path Care Diagnostic Pvt Ltd and Dr.Lal Path Lab. The complainant was in due consultation with his doctor and any discussion and decision was to be taken by them only. Opposite party has processed the sample by a method that is universally accepted and provided the report to the complainant. Health care institutions can not be held negligent if they have practiced laboratory medicine by the standards established by their peers or if they have practiced the way standard textbooks require them to do. In the instant case opposite party and its doctors has practiced laboratory medicine exactly as required by the textbooks of pathology. Practicing in any other manner would be in violation of the standards established by the peers. Therefore what opposite party has done in the instant case can never be branded as negligence. It is further submitted that the monetary compensation sought is false, frivolous, exorbitant, unrealistic and motivated with greed cleverly engineered to try and extract an unconscionable bargain. They denied other material averments of the complainant.

3. In its separate written reply, opposite party No.3, inter-alia, pleaded that the answering opposite party collected the sample of the complainant and which was taken by the opposite party No.2 rider in acceptable condition according to company's protocol.

4. In its separate written reply, opposite party No.4 pleaded that the complainant is not the consumer of the answering opposite party and that being so that present complaint is liable to be dismissed against the answering opposite party. Without admitting any liability, it is submitted that the answering opposite party had issued professional indemnity insurance (medical establishment) policy bearing No.9300003613020000004 to SRL Ltd (PO 21860477), 2nd Floor, A Wing, D3 District Center Saket, Delhi for the period 7.7.2013 to midnight of 6.7.2014 subject to terms and conditions of the policy of insurance. The address of business premises of SRL Limited has been mentioned in the policy of insurance issued by the answering opposite party and the answering opposite party have not insured the premises of M/s SRL Limited detailed against the address of opposite parties No.1 & 2 and the answering opposite party is not liable to make payment of any compensation to the complainant. It denied other material averments of the complainant.

5. In support of his complaint, learned counsel for complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C6 and closed evidence.

6. On the other hand, learned counsel for opposite parties No.1 and 2 has tendered affidavits Ex.OP1&2/A and Ex.OP1&2/B alongwith copies of documents Ex.OP1&2/1 to Ex.OP1&2/4 and closed evidence. Further learned counsel for opposite party No.3 has tendered affidavit Ex.OP3/A and closed evidence. Further learned counsel for opposite party No.4 has tendered affidavit Ex.OP4/A alongwith copies of documents Ex.OP1 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of opposite parties No.1 & 2.

8. It is not disputed that the complainant got performed the test of Anti CCP Antibodies, Serum from opposite party No.2. The sample was collected by opposite party no.3 and sent to opposite party No.2 for testing. Opposite party No.3 is collecting agent or centre of opposite parties No.1 and 2. In its written reply opposite party No.3 has pleaded in para 5 on merits that it collected the sample of the complainant and which was taken by the opposite party No.2 rider in acceptable condition according to company's protocol. So the sample drawn by opposite party No.3 was received by opposite party No.2. The position of opposite party No.3 is that of an agent of opposite parties No.1 and 2. After the above said test the opposite party laboratory gave report Ex.C3 mentioning the result as 35.87 with reference range of less then or equal to 15 as negative and greater than 15 as positive. The said report is Ex.C3. However, after receiving the above said report showing that complainant was having Rheumatoid Arthritis as the result was 35.87, the complainant again got performed the same test after seven days from Path Corp.Diagnostics Pvt Ltd and said lab gave the report with result of 0.80 with reference range of 0.0 to 5.0. So this report was negative and the result of the test meant that complainant was not having Rheumatoid Arthritis. However to be sure, the complainant again got the same test performed from Lal Path Lab, Jalandhar who gave its report on 29.4.2014 showing the result as less than 0.50 with reference range of less then 5.00. This report also was negative meaning that the complainant was not having any Rheumatoid Arthritis. The report given by opposite party No.2 showing the result of the test 35.87 can not be reconciled with other two reports Ex.C4 and Ex.C6. There is great variation in the result reported by opposite party No.2 as compared to the reports Ex.C4 and C6. There is nothing on record to come to the conclusion that the reports Ex.C4 and Ex.C6 are wrong in any manner. Counsel for the opposite parties No.1 and 2 contended that method adopted by other two labs might be different. He further contended that the result of report can get biased because of various factors such as acute viral infections (e.g.EBV, HIV etc) and some atypical bacterial (Q Fever) infections and further even some of the drugs which patient might have taken in the recent past can lead to false test reports. He further contended that even the time period of 10 days in getting investigation repeated may give different result particularly when the patient may be continuing/discontinuing the medicines already taken by him. We have carefully considered the contentions advanced by learned counsel for opposite parties No.1 & 2. The other laboratories might have used different method or kits to perform the test but there can not be a huge variation in the result of the test. There is nothing on record to come to the conclusion that complainant was suffering from acute viral infections (e.g. EBV, HIV etc) or some atypical bacterial (Q Fever) at time of giving sample. The second test was got performed by the complainant after seven days of the report Ex.C3 given by opposite part No.2 lab. Even if the complainant has taken medication for the above said disease, the result can not very to such an extent during a short span of time i.e seven days. Moreover, there is nothing on record to come to the conclusion that complainant started taking the treatment of Rheumatoid Arthritis after receiving the first report. In the present case there is no need of any expert evidence. The above mentioned reports per-se proves that the report given by opposite party No.2 was wrong. This wrong report might be result of using same expired chemical or regent while performing the test or it might be due to some negligence of the person performing the test. This wrong report Ex.C3 led the complainant to get the same test performed from above said other two labs and to incur expenses on the same. The above said wrong report must have also caused mental tension to the complainant. So in the above circumstances, we have no hesitation to hold that opposite parties No.1 and 2 are guilty of deficiency in service while performing the above said test. We do not find any convenience reason to accept the report in question i.e Ex.C3 to be result of correctly performed test. The test of this test was more than double the normal reference range and whereas the report Ex.C4 was quite on low side of the reference range of 0.5 and further whereas report Ex.C6 was also about 1/10th of the reference range of 5.00. So the report in question prima-facie appears to be wrong one. It constitute deficiency in service on the part of opposite parties No.1 and 2 to the complainant. The agreement, if any between the opposite parties No.1 and 2 and that of opposite party No.3 is of no consequence and is not binding upon the complainant. So far as opposite party No.4 is concerned, counsel for the opposite party No.4 contended that the opposite party No.4 has not insured the premises of M/s SRL Limited details against the address of opposite parties No.1 and 2 and they have issued professional policy to SRL Limited District Centre Saket Delhi and as such it is not liable to make payment of compensation to the complainant. This dispute between the opposite party No.4 and opposite parties No.1 and 2 is not required to be decided in the present complaint as complainant is not consumer of opposite party No.4.

9. In view of above discussion, the present complaint is accepted against the opposite parties No.1 and 2 and they are directed to pay Rs.25000/- to the complainant in lump sum on account of compensation and litigation expenses within one month from the date of receipt of copy of this order failing which it shall be liable to pay interest @ 9% per annum after the expiry of said period of one month till the date of payment. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

05.05.2015 Member Member President