Ld Advocate for both sides are present. Judgement is ready. It is pronounced in open Commission in 4 pages 2 separate sheet of papers. 

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case are that the Complainant has a permanent residence within this jurisdiction. The Complainant is an Electrical Engineer and the Opposite Parties are Directors and Doctors of Unipath Speciality LabrotaryLtd.The Complainant is a permanent Employee of Power Research & Development Consultants Pvt. Ltd. Whose office is at Bengaluru, India. The employer of the Complainant decided to depute the complainant for the project for consultancy services to existing system and facility study at Dhaka, Bangladesh for which Air ticket from Kolkata to Dhaka was confirmed on 23^rd May 2022 in the name of the complainant for international journey and Hotel was booked at Dhaka. For such international Journey Covid test report was compulsory and for that reason the complainant tested Covid with the Opposite Parties through their Covid sample collector from Tamluk on 21^st May 2022 at 17:22 hrs and report was informed to the Complainant as “Positive” on the same day at 22.24 hrs which was tested by Opposite Party No.2 & 3 for which the complainant had to cancel the said Air Ticket Journey to Dhaka. The Opposite Parties took Rs. 500/- for the said test. Then the complainant again tested Covid on 22/05/2022 at Tamluk Auro MRI whose report was negative on 23.05.2022 at 17:55 hrs. For such wrong report of the Opposite Parties the Complainant did not avail of the said international Journey and said project work for 10 days for which the complainant had to face monetary loss of Rs. 40,000/- and the prestige of the complainant has been down before his employer for which the complainant has been suffering from mental agony for the medical negligence and wrong report for said Covid test. The cause of action of this case has been arose on and from 22.05.2022. Again on 15.06.2022 the Covid test of the Complainant was done at said Auro MRI Tamluk whose report was also negative. Therefore, the Complainant has prayed for directing the ops to pay a compensation of Rs. 3,00,000/- to the Complainant for such medical negligence and mental agony of the Complainant and for monetary loss, to pay a litigation cost of Rs. 20,000/- for conduct of this case, to grant other relief to the complainant which he may deem fit and proper.

The op-2 has contested the case by filing Written version against  the complaint. The ops 1 & 3 have preferred to see that the case be decided ex-parte against them. In the written version,the op-2 has  contended inter alia that save and except the statements which are the matters on record all other statements as made in para No. 7 & 8 of the claim application are very much denied & disputed. It is a fact the Nasopharyngeal swabs of the complainant SK Taaisin Ali on 21^st May, 2022 was collected at the Laboratory Unipath in Saltlake for testing of covid RTPCR ,the sample was tested and report was prepared on the same date and it was found positive (Annexure- I). Kolkata Unipath is an ICMR & NAB Approved Laboratory, it has been testing Covid RT-PCR since last 2 years and has been following all the guidelines laid down by Statutory Bodies, all the data of Run (Known as run files) are preserved in the system. After every Run the graph Lots of Run files are verified at 2 levels. The Specific Run file of SK Taasin Ali had very clear Graph plots with mentioned CT values of the Genes tested (ORF 1 ab) and (Ngene) Annexure- 2,3,4. There after QCS of the batch Run and Run file of the patent sample are found satisfactory. RNA Extract of all positive samples is preserved at 80 degree Celsius for 2 years for future reference. The Unipath has preserved SK Taaisin Ali’s sample adhering to mentioned protocol. After receiving the complaint the sample has been tested on 22.09.2022 (Annexure- 5 & 6)and had run the covid RT-PCR to verify the previous report. The result has come positive again with very close CT values to the released report on 21.05.2022. There was no negligence of O.P. No.2. No part of the claim application is to be deemed as admitted by the O.P save & except the statements which are specifically admitted herein. The amount stated in para No.9 is false, imaginary and excessive. There was no expert opinion provided with wherein it can be ascertained that O.P. No.1 has committed any negligence or O.P. No.-2 has provided any wrong report. According to the ops complaint is baseless, misconceived,devoid of merit and not maintainable ;it is liable to be dismissed.

Upon reading the complaint and written version and after having given thoughtful consideration to the arguments advanced by the Ld Counsel for the parties following points for determination are framed.

Points for determination are:                                                  

1.Is the case maintainable in its present form and in law?

2. Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

The bundle of facts of the case shows that indisputably complainant was given service by the ops by providing Covid-19/ RTPCR Test, however, the complainant has branded it as deficiency in service; as such the case is maintainable in its present form and in law.

Now, on careful analysis and evaluation of the materials on record, it appears that the complainant has alleged that the complainant tested Covid with the Opposite Parties through their Covid sample collector from Tamluk on 21^st May 2022 at 17:22 hrs and report was given to the Complainant as “Positive” on the same day at 22.24 hrs which was tested by Opposite Party No.2 & 3 for which the complainant had to cancel the Air Ticket for Journey to Dhaka. The Opposite Parties took Rs. 500/- for the said test. Then the complainant again tested Covid on 22/05/2022 at TamlukAuro MRI whose report was negative on 23.05.2022 at 17:55 hrs. For such wrong report of the Opposite Parties the Complainant did not avail of the said international Journey and project work for 10 days for which the complainant had to face monetary loss of Rs. 40,000/- and the prestige of the complainant has gone down before his employer for which the complainant has been suffering from mental agony for the medical negligence and wrong report for said Covid test.

 On the  other hand, it was contended by the op-2 that Nasopharyngeal swabs of the complainant SK Taaisin Ali was collected on 21^st May, 2022 at the Laboratory Unipath in Saltlake for testing of covid RTPCR ,the sample was tested and report was prepared on the same date and it was found positive (Annexure- I). Kolkata Unipath is an ICMR & NAB Approved Laboratory, it has been testing Covid RT-PCR since last 2 years and has been following all the guidelines laid down by Statutory Bodies, all the data of Run (Known as run files) are preserved in the system. After every Run the graph Lots of Run files are verified at 2 levels. The Specific Run file of SK Taasin Ali had very clear Graph plots with mentioned CT values of the Genes tested (ORF 1 ab) and (Ngene) Annexure- 2,3,4. There after QCS of the batch Run and Run file of the patent sample are found satisfactory. RNA Extract of all positive samples is preserved at 80 degree Celsius for 2 years for future reference. The Unipath has preserved SK Taaisin Ali’s sample adhering to mentioned protocol. After receiving the complaint the sample has been tested on 22.09.2022 (Annexure- 5 & 6) and had run the covid RT-PCR to verify the previous report. The result has come positive again with very close CT values to the released report on 21.05.2022. It has been asserted that there was no negligence of O.P. No.2.

Now, it is the onus on the part of the complainant to prove its case what he has alleged against the ops. The complainant has failed to substantiate on which grounds he came to a conclusion to the effect that the report as Positiveprepared on the RTPCR test conducted by the ops were not proper or the test done at Tamluk Auro MRI whose report was negative was genuine or proper. In the theory of probability both the reports may be true or false or either of the report may be true or false. The test reports may vary depending upon the key procedure followed by the respective laboratory.It was observed that in such kind of tests persons who repeatedly test positive with rapid antigen tests despite concurrent negative molecular tests  this infrequent phenomenon occurs predominantly among persons with autoimmune disorders. Different resultsof tests may come from different samples collected within 48 hours depending on different scientific phenomenon. Only an expert can detect the said phenomenon responsible for different test results. In such a situation, it is the burden of the complainant to arrange for expert opinion, the complainant has not brought on record any such expert opinion to prove its allegations. The complainant has not been able to rebut the assertion of the ops to the effect that the Specific Run file of SK Tasin Ali had very clear Graph plots with mentioned CT values of the Genes tested (ORF 1 ab) and (Ngene) Annexure- 2,3,4. There after QCS of the batch Run and Run file of the patent sample are found satisfactory. RNA Extract of all positive samples is preserved at 80 degree Celsius for 2 years for future reference. The Unipath has preserved SK Taaisin Ali’s sample adhering to mentioned protocol. After receiving the complaint the sample has been tested on 22.09.2022 (Annexure- 5 & 6) and had run the covid RT-PCR to verify the previous report. The result has come positive again with very close CT values to the released report on 21.05.2022. There was no negligence of O.P. No.2.It is evident that the ops have seriously dealt with complainant of the complainant by doing the re-test of the sampleon 22.09.2022 (Annexure- 5 & 6) and had run the covid RT-PCR to verify the previous report. From our above observation, it is very much clear that complainant has failed to bring home any element of deficiency of service as alleged against the ops. Thus, the complainant is not entitled to get any relief in this case.

Both the points are decided accordingly.

Thus, the case does not succeed.

Hence, it is

O R D E R E D

That CC/104 of 2022 be and the same is dismissed on contest against the op-2 and dismissed ex-parte against the ops 1 & 3.No order as to costs is passed.

Let a copy of the judgment be supplied to the complainant and the op-2 free  of cost.