IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Monday the 20^th day of December, 2021.

                                      Filed on 08.09.2020

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)

In

CC/No.205/2020

between

Complainant:-                                                             Opposite parties:-

Miss. Anjali                                                    1.    The Managing  Director

D/o K.N.Madhu                                                      Medivision Scan & Diagnostic            

Sreevalsam                                                              Research Centre Pvt. ltd

Thalavady.P.o                                                         Medivision House, Sreekandath

Thalavady Village                                                   Raod, Ravipuram, Kochi

                                                                               Pin-682016

                                                                          2.        M/s Quality labs

                                                                               Govt Hospital Road,

                                                                               Thazakkara P.O,

                                                                               Mavelikkara-690101                                                                                                      (Adv. P.K.Mathew for Ops)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.35 of the Consumer Protection Act, 2019.

1.      Material averments briefly stated are as follows:-

Complainant is a B-tech degree holder and she obtained a call letter to appear for an interview of the AFSB Bangalore on 08.08.20 at 6.30 AM.  Accordingly she booked an air ticket with Air India flight on 07-08-20, 11.05 AM from Cochin to Mysore and the return ticket on 14-8-2020 at 8.55 AM from Mysore to Cochin.  Since covid negative certificate was necessary for the journey, on5-8-2020 at 3.45 PM she appeared at the laboratoryof 2^nd opposite party which is controlled by 1^st opposite party and gave a sample.  It was informed that the result will be given at 6.15 PM on 6-8-2020.  However in the records the time of sampling  is shown as 6.15 PM by mistake.  On 06-08-2020 at about 3.PM complainant’s brother and father reached the laboratory for getting the result and  at 10.30PM it was informed that the result cannot be given directly and that it will be informed to the health department.  However from the conversation of the 1^st opposite party complainant got an indication that the result is positive. Hence  complainant could not appear for the interview. 

2.      On 7-8-2020 at 10 o’clock it was informed to the complainant that she was covid positive from the health department and there after she was admitted at General hospital Alappuzha as inpatient and on examination it was revealed that she was never covidpositive and on 10-8-2020 she was discharged. 

3.      1^st opposite party is testing the samples taken by the 2^nd opposite parties.  The covid positive report was issued by the negligence of the opposite parties in taking samples and conducting examination of sample.  Due to their act complainant had to be admitted for 3 days in the government hospital and she was prevented from attending the interview.  Opposite parties had collected an amount of Rs.3,000/- for sample examination.  However they did not give the correct result which amounts to deficiency in service.  Hence the complaint is filed for realizing an amount of Rs.3,000/- which was collected as testing fee, Rs.2940/- being the fare of air ticket, Rs.10 lakhs for losing the job and Rs.1 lakh for mental agony.  Hence the complaint may be allowed and the opposite parties may be directed to pay an amount of Rs.11,05,940/-.

4.      Opposite parties filed a version mainly contenting as follows:-

The complaint is frivolous, vexatious, scandalous and is filed for abusing the process of this Commission and defaming and harassing the opposite parties.  Complainant is not a consumer of the opposite parties. 

5.      The sample was collected on 05-08-2020 at quality lab, Mavelikkara which is an authorized collection centre of 1^st opposite party and received at the PCR lab of medivision in Ernakulam on the same day maintaining coldchain.  RTPCR was done on 06-08-20 at 10 AM on the rotor gene Q PCR machine in the viroQ SARS-CoV2 kit from BAG diagnostics, Germany.  According to the graph obtained in the PCR machine it was positive for the confirmatory gene.  Positive control, internal control and no template control were satisfactory.  The test was repeated using a different kit standard M  nCoV real time detection kit from SD bio sensor,South Korea and again found to be positive.  No defects were detected during both runs.  As per both kits inserts, the sample was positive for covid 19 and the result was entered in the State portal without further delay.

6.      In certain cases some patients become negative after 48 hours.  There are several variables involved like quality of sample, timing of sample collection, limited sensitivity of the test, fall in viral load and varied limits of detection of different PCR kits.  Hence we assert and believe that we had issued the correct report based on the graphs obtained.  Final result is to be issued from the health department and the laboratory cannot do that.  The allegation that there is mistake in the report is false.  There is no dereliction of service from the part of opposite parties.The examination conducted by the opposite parties is as per the prescribed medical protocol.  There is no mistake at all.  Hence there was no deficiency of service for dereliction of duty.  Complainant has no cause of action and she is not entitled to get any relief as prayed for.  The allegation that complainant lost her job due to the deficiency of service is false.  The compensation claimed is highly exorbitant.  Complainant has not made any complaint before the health department.  Billing is online and billing formalities was complied at 5.30 PM and hence there is no delay in sampling.  If a complaint was made the sample could have been kept intact by the health department who is the custodian of the sample.  Hence it is prayed that the complaint may be dismissed with compensatory cost.

7.      On the above pleadings following points were raised for consideration :-

1. Whether there is any deficiency of service on the part of the opposite parties?
2. Whether there is any defect in examining the sample by the opposite parties.
3. Whether the complainant is entitled to realize an amount of Rs.3,000/- which was collected as the fee for RTPCR?
4. Whether the complainant is entitled to realize an amount of Rs.2,940/- being the air fare as prayed for?
5. Whether the complainant is entitled to realize an amount of Rs.10,00,000/- as compensation for losing the job as prayed for?
6. Whether the complainant is entitled to realize an amount of Rs.1,00,000/- as compensation on account of mental agony?
7. Reliefs and cost?

8.      Evidence in this case consists of the oral evidence of PW1 and Exts.A1 series, A2 series A3 series A4 series and A5 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B6 from the side of opposite parties.

9. Point No.1 to 6

PW1 is the complainant.  She filed an affidavit in tune with the complaint and marked Ext.A1 series, A2 series, A3 series, A4 series and A5.  During cross examination Ext.B1, B1 (a) and B2 were marked.

10.    RW1 is the deputy quality manager of 1^stopposite party. He filed an affidavit in tune with the version and marked Ext.B3 to B6.

 11.   As per Ext. A5 call up letter PW1, the complainant  Mis. Anjali   had to appear for an interview before the Air force  Selection Board(AFSB), Mysore on 8/8/2020  and the  time of reporting was 6.30.AM.  She  took Ext.A1 Air ticket from M/s Air India  to travel on 7/8/2020 from Kochi (COK) to Mysore (MOQ) and return journey on 14/8/2020 from Mysore to Kochi.  Since Covid-19 test was mandatory,  as per Ext.A1 (d) receipt on 5/8/2020 she gave a sample at the 2^nd opposite party M/s Quality Labs and paid an amount of Rs.3000/- for RTPCR test.   Test was done at the 1^st opposite party M/s Medivision scan and diagnosis Research Centre Pvt. Ltd, Kochi.  Though it was informed that the result will be given on the next day when her brother and father approached 2^nd opposite party it was informed that they cannot disclose result and  it will be informed  from the Health Department of Kerala.  However from the  conversation   they understood that  she is Covid Positive. Accordingly she was admitted at the  General Hospital Alappuzha as per Ext.A4  discharge summary on 7/8/2020 and  discharged on 10/8/2020. RTPCR was done at General Hospital, Alappuzha on 8/8/2020 and the result was negative.   Now the complaint is filed by PW1 on an allegation that the  test conducted by 1^st opposite party lab was erroneous and so she was unable to attend the interview.  She is  claiming an amount of Rs.3000/- being the  fee paid for RTPCR Test, Rs. 2940/- being the  amount of Plane Ticket.  Rs. 10 Lakh  on account of losing the job,  since she was unable to participate the interview and Rs. 1 lakh as compensation for mental agony  (Total Rs.11,05,940/-).  To prove the case complainant got examined as PW1 and marked Ext.A1 series, A2 series, A3 series, A4 series and A5.   Opposite parties filed a joint version denying the averments in the complaint. According to them,  RTPCR test was conducted by experienced technicians with kits of international standard and there was no defect from their part.  It was also contended that since the 1^st result was Covid Positive a 2^nd test was conducted to confirm the same.  They also  contended that as per  the norms issued by the  health department of Kerala result  cannot be disclosed to the patients and it can be uploaded only in the portal.   The Deputy Quality Manager of  1^st opposite party was examined as RW1 and Ext.B1 to B6 were marked from their side. 

12.    From Ext.A5 Call up letter it can be seen that PW1 was to  attend an interview before the  AFSB Mysore on 8/8/2020 at 6.30.AM.   Ext.A1 shows that  she had booked a ticket on 7/8/2020 from Kochi to Mysore to attend the interview and a return ticket was booked for 14/8/2020.  The  allegation of PW1 is that since the test conducted by the 1^st  opposite party using the sample taken by the 2^nd opposite party was erroneous.   On the basis of the test conducted  by the 1^st opposite party PW1 was admitted at General Hospital Alappuzha on  7/8/2020 and discharged on 10/8/2020. RTPCR was done on 8/8/2020 at the  General Hospital, Alappuzha   and the result was negative and  she was adviced home quarantine for 14 days.  Though PW1 had a case in her complaint as  well as in the chief affidavit that on 5/8/2020 she presented at the 2^nd opposite party for taking sample at 3.45.PM and the sample was taken only  at 6.15PM, during cross examination PW1 stated that she reported at the 2^nd opposite party lab at 5.35PM and sample was taken immediately.  Billing was online.  Ext.A1(d) is the bill dtd. 5/8/2020.  So such an allegation was negatived during the cross examination of PW1.  The 2^nd allegation is that though it was informed that result will be given on the next day inspite of visit by her brother and her father result was not disclosed to them and she came to know about the result through the Health Department.  During cross examination of PW1 Ext.B1, B1(a) and B2 were marked.  Ext.B1 is the test report of Pw1. From Ext.B1 it is seen that the sample was collected on 5/8/2020 at 5.35PM and it reached the laboratory on the same day at 7.55PM.   Testing was done on 7/8/2020 and the result was Covid Positive.  Ext.B2 is a non disclosure agreement on RTPCR test for Covid-19 executed by the lab in charge of 1st opposite party.  The terms of Ext.B2 will show that the result will be declared to the patient and her treating physician only after approval from the authorized personal from the department of Health and Family welfare Kerala.   So opposite parties cannot be blamed for not disclosing the   result of the test to the complainant and her relatives, in view of Ext.B2 undertaking.  As per Ext.B1 it can be seen that  though sample was taken on 5/8/2020,  test was conducted on 7/8/2020 by which the result was positive. However from Ext. A4  it is seen that the result of RTPCR shown on 8/8/2020 was negative.  So it can be seen that there is a difference of 3 days between the  1^st sampling  conducted by 1^st opposite party and the 2^nd sampling conducted at the General Hospital, Alappuzha. (5/8/2020 and 8/8/2020).  As rightly pointed out by the learned counsel appearing for the opposite parties  one who is positive can become negative  within one or two days.  As in this case when the sample was collected on 5/8/2020. PW1 was found Covid Positive where as when the sample was collected on 8/8/2020 the result was negative.  So it cannot be concluded that the test conducted by the 1^st opposite party is erroneous.  Opposite parties have produced Ext.B4 and B5 run file to prove the result of the test.  Further as rightly pointed out by the learned counsel appearing for the opposite parties PW1 did not make any complaint before the health department.  It was pointed out that the sample will be kept for 2 weeks and if there is any complaint it will be tested again.  Since in this case there was no complaint to the government 3^rd testing was not done. At the laboratory they will conduct the 1^st test and if it is  Covid Positive  the 2^nd test will be conducted to confirm the same.   Here in this case also from the oral evidence of Rw1 it is seen that 2^nd test was conducted to confirm the result.  The  learned counsel appearing for the  complainant relying upon the cross examination of RW1 pointed out that he is not  even aware of the technical   terms of the Coivd test.  From the proof affidavit it is noticed that  Pw1 is the Deputy Quality Manager and Senior Micro biologist of the 1^st opposite party.  The cross  examination  revealed that he is Msc.Medical Micro biology and so there is no reason to doubt about the  qualification of RW1 to conduct the testing.   As discussed earlier since the sampling was done on  5/8/2020 by 2^nd opposite party and the  2^nd  sampling was done at General Hospital on 8/8/2020 there may be difference in the  result due to the  lapse of three days. 

13.    PW1  is claiming an amount of Rs.3000/- being the fees paid by her for conducting the test.  Ext.A1 (d) is the receipt issued by the 2^nd opposite party on 5/8/2020 when Rs. 3000/- was collected.  PW1 has no case that testing was not done by the opposite parties.  During the said period the prescribed fee was  Rs. 3000/-  and since testing was done PW1 is not entitled to get the said amount.  Secondly PW1 is claiming an amount of Rs.2940/- being the fare paid for Air Ticket.  As per circular dtd. 7/10/2020 of Director General of Civil Aviation New Delhi.  “ all the  airlines were directed to return  the fee to the passengers who booked ticket during lockdown period or to extend this journey”  It was on the basis of the direction of  Hon’ble Supreme Court in writ petition  seen No.570 of 2020, 595 of 2020 and 952 of 2020 in Pravasi Legal cell and others  Vs.  Union of India and Others.  dtd. 1-10-2020. According to  PW1 since amount was less than  Rs.3000/- it was not refunded.  But either in the circular of  DGCA or the direction of Hon’ble Supreme Court it is not specified that  if the amount is less than  three thousand it is not refundable.

14.    Though Pw1 stated that she had to take another ticket  for attending the postponed interview  she has not produced any ticket  to prove the same.

15.    PW1 is claiming   an amount of Rs. 10 lakh on account of missing the interview.  But the cross examination of PW1 itself shows that her claim is not genuine.  PW1 stated that when she informed the AFSB, Mysore that she is Covid positive the interview was postponed for 3 weeks.  Though she stated that due to the test result she could not participate the interview it was postponed for  3 weeks and later she participated in the interview but the case is that  she could not perform well in the interview.  Opposite parties cannot be blamed for that and she herself had to take the responsibility.  In said circumstances PW1 is not entitled to claim for Rs. 10 lakhs from the opposite parties on a contention that she was unable to attend the interview. 

16.    Finally she is claiming an amount of Rs.1 lakh on account of compensation for mental agony. As discussed earlier sampling was done on 5/8/2020 and the test was conducted on 7/8/2020, by which it was found that PW1 is Covid Positive. However when the test was conducted   using the sample collected on 8/8/2020 she was found covid negative.  Since there was a gap of three days from the  1^st sampling and 2^nd sampling she might have been relieved of her disease within 3 days especially,  PW1 is aged about 24 yrs. If she is not having any other complications, she may recover immediately from Covid-19.  So the  opposite parties cannot be blamed and there is no question of mental agony occurring to PW1.  The oral evidence of RW1 coupled with documents produced shows that when during the  1^st time  it was found that PW1 was Covid positive they conducted  a  2^nd  test and it was also found Covid  positive  and thereafter the result was  uploaded in the portal.  Further as discussed earlier if PW1 had  a genuine complaint  she could immediately  reported the matter to the government and so a 3^rd testing using the sample taken on 5/8/2020 could have been done. Since  the sample will be kept only for 2 weeks it was not possible at a later stage.  In said circumstances  we are of the opinion that complainant is not entitled for any compensation since she cannot attribute  any deficiency of service on the part of opposite parties as alleged.    In said circumstances complainant is not entitled  for any relief as claimed and so these points are found against the complainant.

17.    Point No.7:-

          In the result complaint is dismissed.  Parties are directed to bear their respective cost.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 20^th     day of December, 2021.    

                                                              Sd/-Sri.S.Santhosh Kumar(President)

                          Sd/-Smt.  C.K.Lekhamma (Member)

Appendix:-Evidence of the complainant:-

PW1                    -        Anjali (complainant)

Ext.A1series        -        Air Tickets & Bill

Ext.A2series        -        Covid Test reports

Ext.A3series        -        Covid Test Results  dtd. 17/8/2020

Ext.A4series        -        Discharge Summary

Ext.A5                -        Call up letter

Evidence of the opposite parties:-              

RW1                     -        Anuroop.S (Opposite party )

Ext.B1&B1 (a)      -        Test Report

Ext.B2                  -        Non Disclosure Agreement on RTPCR test

Ext.B3                  -        Quantitation Analysis      

Ext.B4                  -        Quantitation Analysis

Ext.B5                  -        Referral Form for Covid-19

Ext.B6                  -        Details of Name and Barcode

///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                Assistant Registrar

Typed by:- Br/-

Compared by:-