VIJAYAN vs Sam Sahayadas

IN this revision petition there is challenge to order dated 22.2.2012 passed by State Consumer Disputes Redressal Commission, Chennai (for short, ''State Commission '') in FA no.439 of 2010 confirming the order dated 28.1.2010, passed by District Consumer Disputes Redressal Forum, Nagercoil (for short, ''District Forum '').

BRIEF facts are that petitioner/complainant had gone to the hospital of the respondent/opposite party on 23.11.2006, since he was having fever and vomiting. He was admitted, as inpatient and respondent conducted many tests, including the blood test. The blood test revealed "HIV positive ", whereas report received from Vivek Laboratory revealed as "HIV negative ". After the report, respondent against the medical ethics, called petitioner ''s wife, as well as father-in-law and informed them, as if, the petitioner was suffering from HIV and even advising them to go for divorce, as well as to prefer police complaint. Because of this advice, petitioner ''s wife as well as father-in-law left the hospital thereby respondent has committed deficiency in service and has shattered the family life of the petitioner also. The subsequent report also revealed, that petitioner is not suffering from any HIV. Thus, by the above conduct of the respondent, petitioner suffered mental agony, physical suffering, which cannot be measured in terms of money. However, petitioner restrict his claim for compensation to Rs.10 lakhs. In its written version respondent has stated that it had exercised reasonable care and never breached any of the duties expected from a prudent doctor. Hence, he has not committed any negligence or deficiency in service. Respondent after clinically examining the petitioner regarding fever, mouth ulcer, vomiting and diarrhea for six days, advised the petitioner to have different types of blood tests, for diagnosing the illness. The initial basic screening test called slide test or card test, showed as positive and doubting the same, it may be false or it cannot be true positive, second sample was taken and sent to Vivek Lab and Hitech Diagnostic Centre and the report revealed "HIV Negative ". The reference was made by the treating doctor about the HIV infection only, and no finding has been given, as if, the petitioner was suffering from HIV.

It is further stated that respondent never told, that petitioner was suffering from Aids to the wife or father-in-law and never advised them to prefer police complaint or to take divorce. As a prudent doctor, genuinely to ascertain the real cause for the problem, he conducted tests and advised the petitioner to go for another test which cannot be treated as negligence or deficiency as the case may be.

The District Forum finding no fault in the treatment given by the respondent, dismissed the complaint Aggrieved by order of the District Forum, petitioner filed an appeal which was dismissed by the impugned order.

IT is contended by learned counsel for the petitioner that while under the treatment of the respondent, petitioner had to face family problems, which was based on the report testing the petitioner as HIV positive from the respondent ''s laboratory. Moreover, if respondent has not informed the petitioner ''s family that petitioner was suffering from HIV infection, then there was no possibility of them coming to know of the same. This disclosure by the respondent to them, amounted to dereliction of duty and deficiency in service. IT is also contended that if obtaining of consent was mandatory, the non-pleading of the same would not absolve the respondent from establishing that proper consent had been obtained from the petitioner for conducting the HIV test. Impugned order, under these circumstances, liable to be set aside. District Forum, in its order with regard to the deficiency has observed ; "When analyzing all this put together as per the petitioners case, there is no adequate proof to show that there is any defect in the service rendered by the respondent. Further, as per the petitioner ''s averments, there has been no substantial proof on the petitioners side other than his wife to establish that there has been defects in the treatment given to him and the tests performed on him, and no specialists have been examined on his side. But, three specialists other than the respondent have been examined on the respondents side. While perusing on the basis of the statements of the three specialists it has been clearly stated that there is no defect in the treatment given to the petitioner or the tests that has been done. Further, in the documents submitted by the petitioner to the District Collector, the District Collector had forwarded the same to the Tamilnadu Medical Council to enquiry and ascertain as to whether there has been any flaw in the treatment given to the petitioner or tests performed on him and the council had perused the documents filed by the petitioner and had given its conclusive finding that there has been no mistake on the part of the respondent and also on perusing on the basis of Ex.P.20 it is seen that there has been no flaw in the service rendered by the respondent. As far as the petitioners case is concerned the petitioner having stated that there is flaw on the part of the doctor in making a wrong diagnosis stating that the petitioner has been affected by HIV disease and upon perusing the documents Ex.R4, 5, 6, 7, 8, 9, 10, 11, 12 respectively, it is seen that news has been published in the dailies and weekly magazine to show that the petitioner is suffering from HIV. It is not the respondent who has furnished information to the papers. It has been stated that there is mistake on the part of the respondent and news has been flashed in the said papers. Therefore, as stated by the respondent the averment made by the respondent that in order to initiate against the respondent, the petitioner himself has given this advertisement and also before perusing Ex.R.16 put forth, all hungee slide agitation had been staged by the Communist Congress party for this petitioner, the reason being that wrong treatment has been metted out to the petitioner which was seen from the bit notice published. Hence, the averment made by the respondent that all these advertisement has been made on the request of the petitioner cannot be rejected. As it has already been mentioned in the previous pars, and from the findings arrived at that there has been no defect in the service rendered by the respondent, it is the petitioner who has on his own accord advertised in the papers and bit notices and that the respondent has not made any advertisement to hurt the petitioner stating that he is suffering from AIDS, and therefore, there is no insufficient service on the part of the respondent and this has been confirmed through the evidence and documents on the side of the respondent. "

State Commission while affirming the findings of the District Forum has observed ; "10. In this case, unfortunately when the treatment was going on, family problem crept in, media poked its nose and the political party intervened, causing problem in the family, unwantonly, for which, if the doctor was the cause, we can find fault and if the doctor was not the cause, whereas either the media or the political party taken the case on its own, based upon screening test, which is not ultimate result, we feel, doctor cannot be faulted, he should be relieved. Realizing this alone, we feel, a complaint was preferred, as it, the doctor called the wife and father-in-law of the complainant, informed the HIV positive, for which, we do not have any materials except the uncorroborated, disputed, challenged version of the complainant, which was appreciately considered by District Forum not warranting any interference. It further observed ; "13 Our meticulous reading of the complaint, as well as the Proof Affidavit does not disclose, anything about the non-obtaining of the consent, before taking the blood for HIV test. The entire complaint would go to show, that the opposite party had conducted test including blood test, how different report had shown different result, which alone is described as insufficiency service rendered by the opposite party. As said above, on the basis of the test report, HIV positive, the doctor has not left there and in fact as prudent doctor, he attempt to clarify, by having another test, being interest in the patient, to rule out the possibility of HIV infection, that action on the part of the opposite party cannot be dereliction in service. There is no material, that the opposite party obtained the blood of the complainant ''s wife and sent it for AIDS test, which is also faulted as dereliction of duty. If the complainant had pleaded, the doctor had committed negligence in not obtaining the consent, to test the blood for HIV, then there would have been an opportunity for the opposite party to raise the Counter-plea and therefore, when that was not raised, there is no mention about the consent also in the written version, which cannot be faulted. Even in the appeal memorandum also, the plea of consent, not taken, not raised. Thus, in the absence of any plea regarding the consent not taken by the opposite party, the opposite party is not entitled to answer the same and that act cannot be raised before this Commission/Appellate Authority, being a new plea on fact. If the complainant had pleaded, there would have been a defence and if that defence is not permissible, we would have awarded compensation for committing negligence, in sense not obtaining the consent, for which, we have no opportunity, in this case and this plea is not available as per the above settled position of law. For these reasons, the appeal is devoid of merits and the same is liable to be dismissed. "

IT is an admitted case of the petitioner that due to fever and vomiting, he had gone to the respondent hospital and where he has got admitted as indoor patient. During the course of treatment, many tests including blood test were conducted and as per petitioner ''s own case, one of the blood sample was sent to the laboratory attached to the hospital while other blood sample to Vivek Laborator. The sending of blood samples to two different labs itself goes to show that the intention of the respondent was bonafide and he wanted to have two separate independent reports about the petitioner ''s blood samples. Since, the initial basic screening test done in the hospital was found to be positive, which could be false positive or true positive, in these circumstances, by no stretch of imagination, it can be said that respondent was negligent in taking the blood sample and sending the same to two different labs. It has also come on record that respondent had examined three specialists, who have clearly stated that there is no defect in the treatment given to the petitioner or the tests that has been done in the present case. Moreover, it has also come on record that the documents submitted by the petitioner to the District Collector who had forwarded the same to the Tamilnadu Medical Council, for enquiry and to ascertain as to whether there has been any flaw in the treatment given to the petitioner or tests performed on him, the Medical Council gave its conclusive findings that there has been no mistake on the part of the respondent. District Forum has also based its finding on Ex.P.20, which is the report of Tamilnadu Medical Council. Looking from any angle, I do not find any medical negligence or deficiency in giving treatment to the petitioner, on the part of the respondent.

Under Section 21 of the Consumer Protection Act, 1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. There is no illegality or material irregularity on the part of the State Commission in this case.

IT is well settled that under Section 21 (b) of the Consumer Protection Act, 1986, scope of revisional jurisdiction is very limited. Hon ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. "

THUS, no jurisdictional or legal error has been shown to call for interference in the exercise of powers under Section 21 (b) of the Consumer Protection Act, 1986. Since, the Fora below have given detailed and reasoned order, which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. THUS, present petition is hereby, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only). Petitioner is directed to deposit the cost of Rs.5,000/-, by way of demand draft in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

Pending application also stands dismissed.

LIST on 30.10.2012 for compliance.