Rajni Shukla vs RAJENDRA KUMAR AGRAWAL

THE two appeals arise out of the order dated 27.6.2001 passed in Case No. 60/Forum/96 by the District Consumer Disputes Redressal Forum, Satna (for short the ''District Forum'') 1. THE complainants Smt. Rajni Shukla and her husband S.P. Shukla have filed Appeal No. 1054/2001 for enhancement of compensation from Rs. 43,000/- to Rs. one lakh while opposite party Nos. 1, 3 and 4 aggrieved of the order have filed Appeal No. 1055/2001 for settig aside the order of the District Forum.

FACTS of the case in brief are that the complainant Smt. Rajni Shukla and her husband S.P. Shukla filed a complaint before the District Forum on 24.6.1996 against the opposite party Rajendra Kumar Agrawal, Dinesh Kumar Agrawal, Smt. Usha Nair, Dr. S.P. Tiwari and the Collector, Satna stating therein that Rajendra Kumar Agrawal and Dinesh Kumar Agrawal are the Director and Proprietor of the Mani Pathology Clinic, Satna. They have neither registered this pathology clinic nor have obtained any licence to run this pathology clinic and Rajendra Kumar Agrawal and Dinesh Kumar Agrawal have no experience and are not qualified to run a pathology clinic as they do not have any degree or diploma in pathology. The complainant averred that on 14.3.1994 Dr. Smt. Rekha Tripathi advised urine test for pregnancy test. The complainant approached the said Mani Pathology Clinic for test of urine on 14.3.1994 at about 11.00 a.m. The said Mani Pathology Clinic gave a negative finding of pregnancy test. It is on the basis of this negative report, Dr. Smt. Rekha Tripathi and Dr. Mahendra Singh gave medicines which have resulted in the abortion and therefore D & C was done on 15.3.1994. The complainants, therefore, for the deficiency in medical service claimed compensation of Rs. 1,00,000/-. The District Forum after marshalling the evidence adduced found that the report given by the Mani Pathology Clinic was wrong as a result of which the direction of treatment was changed and the medicines given resulted abortion, therefore, the District Forum awarded a compensation of Rs. 40,000/- for mental and physical pain and agony and Rs. 1,000/- for medicines and Rs. 2,000 as costs of the proceedings, a total of Rs. 43,000/-.

Before dealing with the merits of the claim, it is necessary to deal with the issue of limitation raised by the opposite party No. 1 i.e. the Director of Mani Pathology Lab. From the record, it is evident that the District Forum considered the point of limitation and by an order dated 19.1.1998 condoned the delay under Section 24A of the Consumer Protection Act, 1986 (for short ''the Act'')

INITIALLY the complaint was dismissed by the District Forum vide order dated 27.6.2001 stating that the complex issues are involved in the complaint, which cannot be dealt with in summary jurisdiction. The complainant preferred an Appeal No. 206/98 against this order, wherein this Commission vide order dated 6.8.1999 set aside the order of the District Forum and remanded the case for decision on merits by the District Forum itself. The District Forum proceeded with the case and after giving opportunity to the parties to adduce evidence, decided the case. We find that so far as the point of limitation is concerned, the order of the District Forum of condoning delay under Section 24A of the Act is all right, therefore, the complaint was rightly admitted by the District Forum for hearing. To decide the appeals on merits, the following questions arise for our determination : (1) Whether the pathological clinic was running illegally without any licence or registration and had no trained staff of technicians ? (2) Whether the report given by the opposite party was wrong which resulted change in medicines? (3) Whether the opposite party can be held responsible for medical negligence ?

WE have gone through the evidence and documents filed before the District Forum. The complainant stressed on the point that the opposite party are running a pathology clinic without any registration or licence, therefore, they are working illegally. The complaint No. 2 drawn our attention to The Madhya Pradesh Upcharya Griha Tatha Rujopchar Sambandhi Sthapanaye (Registrikaran Tatha Anugyapan) Adhiniyam, 1973. He stressed this point that this clinic should have been registered under this Act and a licence should have been obtained. WE do not agree with this contention of the complainants because the Act, to which the complainant has drawn our attention pertains to regulations for controlling and suspension of running of nursing homes and clinical establishments. A perusal of the definitions given in the said Act under Section 2 wherein Section 2(a) "Clinical Establishment" means a medical laboratory, a physiotherapy establishment, a clinic, or an establishment analogous to any of them, by whatever name called. In Section 2(d) "Medical Laboratary" has been defined as "Medical Laboratory" means an establishment where, (i) biological, pathological, bacteriological, radiological, microscopic, chemical or other tests, examinations or analysis, or (ii) the preparation of cultures, vaccines, sera or other biological or bacteriological products, in connection with the diagnosis or treatment of diseases, are or is usually carried on. The definitions reveal that this Act is applicable on Clinical Establishments. The said Act was amended in the year 1995 by an amendment Act by which Section 4 of the said Act was amended. By this amendment in Section 4 such establishments have been exempted from registration and licensing where any Government Doctor is working or giving his services as a part-time employee. In the present case, we find from the complainant''s own version that Dr. S.P. Tiwari the opposite party No. 4 is a Government Doctor who was supervising the said pathology lab, therefore, according to the amended Section 4 of the Act, the registration and licensing of the Lab was not required. Here a special mention is also necessary, that in the complaint, the complainant has mentioned the said laboratory as Mani Pathology Clinic just only to bring this laboratory in the garb of pathology clinic so as to contend that the clinic is running without any registration receipt as well as in the proforma of the test report, name is printed as Mani Pathology Laboratory and not clinic, therefore, we find that the allegation of the complainant is baseless.

DURING the course of proceedings before the District Forum, the Chief Medical Officer, Satna was also impleaded as a party. The Chief Medical Officer, in his affidavit has stated that such type of pathology laboratary are not required to be registered under the said Act and there is no provision to take any licence. The opposite party No. 3 Smt. Usha Nair has also filed an affidavit stating that she has passed Diploma in Medical Laboratory Technology in the year 1983-84 from Board of Bharat Clinical Laboratory and obtained first division in this Diploma and she is also registered as a Laboratory Assistant under Bharat Clinical Laboratory (Blood Bank and Institute of Pathology) Palai, Kerala State, South India. The opposite party No. 4 Dr. S. P. Tiwari, is a Government Doctor in Government Hospital, Satna. All this evidence lead to the conclusion that the opposite party Nos. 1 and 2 are running a pathology laboratory which does not require registration or licence. They have trained staff and a qualified Doctor who is M.B.B.S. and M.D. in Pathology who used to supervise the laboratory.

IT takes us to the main allegation of the complainants that the Pathology Laboratory gave a wrong report about pregnancy which resulted change in direction of medicines and consequently it led to abortion. On perusal of the record we find that complainant Smt. Rajni Shukla in her affidavit dated 30.8.1997 has stated that Dr. Smt. Rekha Tripathi had examined her and found that she has pregnancy of about two months. In para 5 of her affidavit she has stated that sometimes while going up and coming down on the staircase or on lifting some weight there was some pain in abdomen and waist for which treatment was given on 8.3.1994 and 13.3.1994. She further stated that in the intervening night of 13.3.1994 and 14.3.1994 at about 1.30 a.m. she had pain and at about 3.30 a.m. i.e. on 14.3.1994 she was admitted in the hospital. The Duty Doctors prescribed some medicines for confirming the pregnancy and advised urine test for pregnany test. From the prescription dated 14.3.1994 (Exhibit A5) filed it is evident that the complainant, Smt. Rajni Shukla, was admitted in the Maternity Home wherein in the said prescription the Doctor recorded that she was admitted for Missed Abortion. It is also clear that Dr. Smt. Rekha Tripathi advised urine test for pregnancy test and for which the urine was taken to the laboratory at about 11.00 a.m. by husband of Smt. Rajni Shukla. Because it was a case of "Missed Abortion", the pathological test of the urine was found to be negative for pregnancy. To corroborate this statement, the opposite party has drawn our attention to a book on pathology namely Colour Atlas of Pathology by Dr. Frainy E. Palia and Dr. Pradip J. Mehta 1982 Edition Published by Palia Family Trust, 23, Volkart House, 63, West Field Estate, Bhulabhai Desai Road, Bombay-400 026 in which at Page 96 under the caption "Detection of Pregnancy" it is mentioned that some time false negative results especially if drugs are being excreted in the urine are obtained which we quote : Pregnancy testing is on the basis of the quantity of human chorionic gonadotrophin (H.C.G.) formed by the trophoblastic cells beginning about ten days after conception with a rapid rise at about five weeks gestation i.e. after the last menstrual period. Initially bioassays involving animals were undertaken e.g. Aschhiem and Zondek test, Fried man and Galli Mannini tests. However, these are considered laborious, time consuming and give false negative results especially if drugs or proteins are being excreted in the urine. Bioassays therefore have been discarded from routine use.

The opposite party Nos. 1, 3 and 4 have also drawn our attention that if early i.e. first urine is not taken, there are chances of coming negative results. This means that this case was of a Missed Pregnancy in the intervening night of 13.3.1994 and 14.3.1994 and this urine was given for test at about 11.00 a.m. on 14.3.1994, therefore, it cannot be said that the opposite party Nos. 1, 3 and 4 has given a wrong report because after missed pregnancy the urine definitely gives a negative results by the test of the urine and generally negative, hence the allegation of the complainant is baseless.

FROM the above discussion we find that the complainant. Smt. Rajni Shukla was admitted in the intervening night of 13.3.1994 and 14.3.1994 at about 1.30 a.m. and she was diagnosed as a case of "Missed Abortion". In the Medical Book, Text Book of Obstetrics by D.C. Dutta Reprint Edition 1990 in Chapter 15 Haemorrhage in Early Pregnancy at Page 179 "Missed Abortion" is defined as, "When the foetusis dead and retained inside the uterus for more than four weeks, it is called missed abortion." Hence, in the present case, when the complainant No. 2 was already diagnosed as a case of "Missed Abortion" then it is baseless to say that due to wrong report direction of medicines changed which resulted in abortion. In fact, it was already a case of missed abortion and might there have been some portion of the foetus remained in the uterus for which Dilation and Curettage (D & C) was done, hence, the administration of wrong treatment on the basis of wrong report cannot be attributed for the missed abortion. To conclude, we find that the opposite party i.e. Mani Pathology Laboratory cannot be held negligent in giving negative report of pregnancy. We, therefore, do not agree with the finding recorded by the District Forum that due to wrong report, the direction of change in medicines abortion took place and for that complainant is entitled to compensation.

IN view of the above the complainants are not entitled to any relief as there is no negligence on the part of the opposite party. In the result, Appeal No. 1054/2001 filed by the complainant is dismissed and the Appeal No. 1055/2001 filed by the opposite parties are allowed. The order of the District Forum is set aside and the complaint is dismissed with no order as to costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with record of the case. Appeals allowed.