Haryana

Kaithal

214/2

Pardeep Kumar - Complainant(s)

Versus

Uppal Clinical Leboratory - Opp.Party(s)

Sh.S.S Kundu

02 May 2024

ORDER

                     

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 214 of 2021.

                                                               Date of institution:   03.09.2021.

                                                               Date of decision:      02.05.2024.

 

Pardeep Kumar s/o Shri Jagdish Singh, aged 25 years, r/o VPO Chuharmajra, Tehsil Pundri, District Kaithal.

                                                                                      …Complainant.

                                                   Versus

 

1. Uppal Clinical Laboratory through its Proprietor Chirag Uppal, situated office at Opposite Dera Car Sewa Gurudwara, Kalandri Gate, Karnal.
2. Chirag Uppal, Proprietor of Uppal Clinical Laboratory, Opposite Dera Car Sewa Gurudwara, Kalandri Gate, Karnal.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

 

Present:       Shri S.S. Kundu, Advocate for the complainant.   

                   Shri Kabir Dhall, Advocate for the Opposite Parties.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT

                   Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019, against the OPs.

2.                It is alleged by the complainant that on 25.07.2021, he was not feeling well and was suffering from fever, so he visited Dr. Deepak Soni for his treatment, who referred him to OP No.1 for some blood as well as other medical tests. That he visited OPs and paid Rs.900/- for the tests and after that, OPs issued patient ID No.2742307 to him and within hour, OPs issued the medical test report to him. That after receiving the same, he went to the doctor on the same day for his treatment and after seeing the report, the doctor said to him that he is suffering from HIV and refused to treat him. That after coming to know this, darkness fell before his eyes and he felt that his life was over. That on the next day i.e. 26.07.2021, he visited Government Hospital, Kaithal and got conducted his HIV test, which was found negative. That thereafter, he took third opinion and again conduct his test from Immuno Biochemistry and in that report, also the HIV was negative. That due to false report of OPs, he felt mental agony, trauma, depression, which amounts to gross deficiency in service, on the part of OPs, constraining him, to file the present complaint, against the OPs, before this Commission.

3.             Upon notice of complaint, OPs appeared before this Commission and filed written statement, stating therein that OP No.2 is qualified laboratory technician and got conducted various tests. That the HIV test of complainant was conducted vide Standard Q HIV ½ Ab Test Kit of SB Biosensor which is a rapid, qualitative immunoassay to detect circulating antibodies against the HIV in human serum, plasma or whole blood. That the test is for invitro diagnostic use and is intended as an aid to early diagnosis of HIV infection. This is intended for professional use, only for an initial screening test. It is further relevant to mention here that test has three possible results that are:-

1. Non Reactive – The presence of only control line (C) within the result window indicates that the specimen is non reactive for the antibodies to HIC-1 and/or HIV-2.
2. Reactive –

1. The presence of two lines as control (C) and test line (1) within the result window indicates that the specimen is reactive for antibodies to HIV-1.
2. The presence of two lines as control line (C) and test line (2) within the result window indicates that the specimen is reactive for antibodies to HIV-2.
3. The presence of three lines as control line (C) and test line (1) and test line (2) within the result window indicates that the specimen is reactive for antibodies to HIV-2.

 

4.                That a further caution has been added with stated that there is an homology in the amino acid sequence between HIV-1 and HIV-2 due to which they have a cross reactivity of 30-70%. Hence, appearance of test lines for both HIV-1 and HIV-2 antibodies on the cassette does not necessarily imply co-infection from HIV-1 and HIV-2. To determine the virus type of diagnose a co-infection accurately a confirmatory test such as western Blot or PCR must be performed. That the complainant was duly explained all the aforesaid facts and he conducted the test after fully understanding its nature. That in the case of complainant the medical kit reflected the presence of two lines as control line (C) and test line (1) within the result window indicates that the specimen is reactive for antibodies to HIV-1. The OPs in order to rule out any ambiguity again conducted the result and the same result ensued. Accordingly, the complainant was informed about the result and further explained in simple understandable language that reactive result only means serum is reactive to Antibodies to HIV or similar to HIV antibodies and reactive does not mean positive. That complainant was well made aware that it was only a preliminary screening test and for proper and complete diagnosis, he should consult the doctor and undergo further investigations to confirm the result. That from para No.5 of the pleadings itself, it is very much clear that the complainant approached the concerned doctor and complainant further alleges that doctor stated that complainant is suffering from HIV. That the complainant has miserably failed to array the said doctor as party to this complaint, as such, complaint is liable to be dismissed.

5.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C6.

6.                On the other hand, OPs tendered into evidence affidavit Ex.RW1/A and documents Annexure R-1 to R-6.

7.                We have heard the learned counsel for the parties and perused the record carefully.

8.                Learned counsel for the complainant has argued that on 25.07.2021, the complainant was not feeling well and was suffering from fever, so he visited Dr. Deepak Soni for his treatment, who referred him to OP No.1 for some blood as well as other medical tests. He further argued that the complainant visited OPs and paid Rs.900/- for the tests and after that, OPs issued the medical test report to him. He further argued that after receiving the same, the complainant went to the doctor on the same day for his treatment and after seeing the report, the doctor said to him that he is suffering from HIV and refused to treat him. He further argued that after coming to know this, darkness fell before his eyes and he felt that his life was over. He further argued that on the next day i.e. 26.07.2021, the complainant visited Government Hospital, Kaithal and got conducted his HIV test, which was found negative. He further argued that thereafter, the complainant again conduct his test from Immuno Biochemistry and in that report, also the HIV was negative. He further argued that due to false report of OPs, the complainant felt mental agony, trauma, depression, which amounts to gross deficiency in service, on the part of OPs.    In order to support his above contentions, he placed reliance upon case law titled CPL Ashish Kumar Chauhan (Retd.) Vs. Commanding Officer & Ors., Civil Appeal No(s). 7175 of 2021, DOD 26.09.2023 (SC).

9.                 On the other hand, learned counsel for the OPs has argued that the HIV test of complainant was conducted vide Standard Q HIV ½ Ab Test Kit of SB Biosensor, which is a rapid, qualitative immunoassay to detect circulating antibodies against the HIV in human serum, plasma or whole blood. He further argued that the test is for invitro diagnostic use and is intended as an aid to early diagnosis of HIV infection. This is intended for professional use, only for an initial screening test. He further argued that in the case of complainant the medical kit reflected the presence of two lines as control line (C) and test line (1) within the result window indicates that the specimen is reactive for antibodies to HIV-1. He further argued that OPs in order to rule out any ambiguity again conducted the result and the same result ensued. Accordingly, the complainant was informed about the result and further explained in simple understandable language that reactive result only means serum is reactive to Antibodies to HIV or similar to HIV antibodies and reactive does not mean positive. He further argued that the complainant was well made aware that it was only a preliminary screening test and for proper and complete diagnosis, he should consult the doctor and undergo further investigations to confirm the result. He further argued that from para No.5 of the pleadings itself, it is very much clear that the complainant approached the concerned doctor and complainant further alleges that doctor stated that complainant is suffering from HIV. He further argued that hat the complainant has miserably failed to array the said doctor as party to this complaint, as such, complaint is liable to be dismissed. In order to support his above contentions, he placed reliance upon case law titled Jatinder Sharma Vs. Prime Diagnostic Centre & Heart, First Appeal No.354 of 2014, DOD 18.11.2014 (State Commission, UT, Chandigarh).

10.              From the submissions of the parties, the dispute between the parties, according to the complainant is that he got conducted his blood test from the OPs, wherein, his HIV-1 & HIV-2 was shown as “reactive” and to confirm the same, he got conducted his blood test from two other different laboratories, wherein, his HIV-1 & HIV-2 came “negative”. In order to support his above contentions, the complainant produced laboratory report dated 25.07.2021 and receipt of Rs.900/-, issued by OPs as Annexure C-1 and C-2 respectively, wherein, in Lab Report Annexure C-1, in column HIV I & II, there is mentioned “Reactive”.     The complainant also produced another Laboratory Report dated 26.07.2021 of Government Hospital, Kaithal as Annexure C-3 & C-4, wherein, his HIV-I & II was found as “Non Reactive”. The complainant further produced another test, issued by from Immuno Biochemistry, Kaithal as Annexure C-5, wherein, his (complainant) HIV I & II was again found “Negative”.

11.              Learned counsel for the complainant has submitted that due to false report of OPs Annexure C-1, the complainant felt mental agony, trauma, depression, which amounts to gross deficiency in service, on the part of OPs. But contrary to it, learned counsel for the OPs has contended that Annexure C-1 is only a preliminary screening test and for proper and complete diagnosis, the complainant should consult the doctor and undergo further investigations to confirm the result.

12.              From the above pleadings, we found that in Laboratory Report Annexure C-1, issued by OPs, HIV-1 & II of complainant was shown as “Reactive”, whereas, in another two reports of two different laboratories, the same was found “negative”. Meaning thereby, the report Annexure C-1, issued by the OPs was false one. However, it is pertinent to mention here that HIV is an incurable and fatal disease, and if a general person came to know that he/she is suffering from that incurable disease, then that person may go into depression/coma or his heart may also fail or he may think to spoil/end his life.

13.              In the case in hand, the OPs had issued false report to the complainant showing his HIV-1 & HIV-2 as reactive, due to which, the complainant might have felt huge mental agony, trauma and depression, which amounts to gross deficiency in service, on the part of OPs

14.              Now the question which arises for consideration is what should be the quantum of indemnification? In this regard, complainant is relying, on the judgment, passed by the Hon’ble Supreme Court of India, in the case titled CPL Ashish Kumar Chauhan (Retd.) Vs. Commanding Officer & Ors. (supra), wherein, the appellant Ashish Kumar Chauhan was diagnosed HIV Positive, due to the transfusion of virus infected blood, by the respondents, due to which, the appellant had suffered immense mental and physical pain and sufferings in the present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life, etc., for which, the Hon’ble Supreme Court has given direction to the respondents to pay compensation amount of Rs.1,54,73,000/- (Rupees one crore fifty four lakhs seventy three thousand only) to the complainant along with other various service benefits.

15.              The case of complainant is squarely covered under the aforesaid authority, being a case of medical negligence, wherein, due to false report of OPs, whereby, they shown HIV-1 & HIV-2 of complainant as “reactive”, due to which, the complainant might have suffered immense mental and physical pain and sufferings in the present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life, etc. So, keeping in view the ratio of case law, referred to above, in our view, if we direct the OPs to pay the compensation amount of Rs.50,000/- along with litigation expenses of Rs.5000/-, to the complainant, then it will suffice the purpose and ends of justice would be met. The case law, produced by the OPs, is not disputed, but the same is not applicable to the case in hand, being rested on different footings.

16.              In view of our above discussion, we accept the present complaint and direct the OPs to pay the compensation amount of Rs.50,000/- along with litigation expenses of Rs.5000/-, to the complainant, within a period of 45 days, from the date of this order, failing which, the total award amount shall carry interest @6% per annum, from the date of filing the present complaint, till its actual realization.

17.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.       

Announced in open Commission:

Dt.:02.05.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

Typed by: Sham Kalra, SSS.