State Consumer Disputes Redressal Commission
Dr. (Mrs) Agnes, J.A.Laboratory, ... vs . Dhanalakshmi, W/O.Vijayaraghavan, ... on 19 December, 2011
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI (BENCH II) Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Judicial Member, Thiru.S.Sambandam, B.Sc., Member. F.A.No. 324/2010 [Against order in C.C.No.17/2004 on the file of the DCDRF, Thirunelveli] MONDAY, THE 19th DAY OF DECEMBER 2011. Dr. (Mrs) Agnes, J.A.Laboratory, Chatram Street, Trivandrum Road, Palayamkottai 627 002 .. Appellant/1st opposite party /Vs/ 1. Dhanalakshmi, W/o.Vijayaraghavan, Arumugapandi Compound Nadar 3rd Street, Eral, Tuticorin District .. 1st Respondent/Complainant 2. M/s.Biomerioux India Pvt. Ltd., D.45, Defence Colony, New Delhi 110 024. .. 2nd Respondent/2nd opposite party 3. Jenkins Fernandaz, S/o.Wilfred Fernandez, 25, Chatram Street, Palayamkottai, Tirunelveli 627 002. .. 3rd Respondent/3rd opposite party The appeal coming before us for hearing finally on 23.11.2011, upon hearing the arguments of complainant side and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for the Appellant/1st opposite party : M/s. S.William, Advocates. Counsel for the Respondents 1 & 3 : Called absent. Counsel for 2nd Respondent/ 2nd Opposite party : Absent. ORDER
A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER
1. The 1st opposite party is the appellant.
2. The complainant filed a complaint against the opposite parties 1 to 3 claiming direction for payment of compensation of Rs.5,00,000/- for mental agony caused to her due to carelessness, deficiency and negligence services in disclosing the wrong blood test result and for costs.
3. The complainant approached 1st opposite party for infertility treatment as she had not conceived even after so many years of marriage. The 1st opposite party as a doctor tested blood of the complainant in her own laboratory and gave a report dated 25.6.03 reflecting that the complainant is infected with HIV positive. The complainant was very much stunned and upset and confused regarding the same and on suspicion retested her blood. Once again at Lakshmi Hospital, Tirunelveli on 1.10.03 and also at Arathy advanced CT scan and MRI Diagnostic Centre, Tirunelveli on 13.11.03. Both institutions have given clear report that the complainant was not infected with HIV. Because of the wrong report given by the 1st opposite party turbulence arose in the complainants family and she was insulted humiliated and harassed by all and subjected to untold mental agony, cruelty. Hence the complainant come forward with the consumer complaint as above.
4. The 1st opposite party admitted the test done by her to the complainant in her written version as a routine course in the treatment and as per the test report received for 5 patients from the laboratory on 25.6.03 with the procedure followed and the report denoted that in the complainant case HIV was positive. After passing the report the complainant was asked to meet the opposite party after 15 days for confirmative test, but she did not turn up. Hence there was no deficiency on their part. Since the result of the test was delivered by the system supplied by the 2nd opposite party through the 3rd opposite party they were subsequently added as a party in this case. The 2nd opposite party set exparte. 3rd opposite party contended that the test was done on the basis of the system purchased from the 2nd opposite party and the delivered result was communicated to the customer and there cannot be any complaint against 3rd opposite party and the complainant has to undergo other confirmative tests as per the advise of the doctor and there is no case against 3rd opposite party.
5. Based on the both sides materials and after an enquiry the District Forum allowed the complaint against the 1st opposite party alone by directing the 1st opposite party to pay a sum of Rs.5,00,000/- as compensation for the mental agony and deficiency of service and Rs.5,000/- as costs.
6. Aggrieved by the order of the District Forum, the 1st opposite party come forward with this appeal and contended in the grounds of appeal among other things that the normal procedure for the blood test of the patient for kinds of infectious diseases like HIV, HBS, AG etc., as a preliminary screening test used to be done and accordingly the complainant was also tested and as per the lab report she was found with HIV positive which is to be confirmed with subsequent tests and for which the complainant did not turn up and because of non co-operation of the complainant further tests were not taken place and thereby the District Forum erroneously allowed the complaint.
7. While considering the grounds of appeal and contentions of the appellant in the absence of respondents 1 to 3 in this appeal remained absent and perused of the District Forums order it is the admitted case of both sides that the complainant had undergone blood tests with the 3rd opposite partys a laboratory run by 1st opposite party and the result of the blood test for the complainant was given as Exhibit A1 by finding that the complainant having HIV as positive. The complainant suspecting the result of the tests approached other two laboratories as per Exhibit A2 and A3 in which it is found the result for HIV non reactive that is she is not infected with the HIV. In those circumstances the 1st opposite party being the doctor who was consulted for the infertility by the complainant and under the treatment regarding blood test conducted the result was obtained as HIV positive which was contended by the 1st opposite party among 5 results were received for 5 patients complainants result was found to be HIV positive and this would be confirmed only by subsequent tests like by PCR or by viral culture test for confirming the test report for which complainant ought to have approached the 1st opposite party and without complying with the same and without following the procedure as advised by the doctor, the complainant cannot complained against them. Regarding this contention is concerned except the pleading there is no records to show that the complainant was advised to come for those steps after delivering the impugned blood test result to the complainant and also not proved that the complainant was aware to follow these procedures for confirmation. If really the 1st opposite party was interested with the complainant cares she should have withheld the result of the blood test which shows a serious nature of infection HIV positive and should have disclosed the result only after having confirmation tests to be followed as alleged by her.
8. In those circumstances the same was not followed and it was also not proved that the complainant was advised to have such follow up tests for confirmation.
If it was advised so she would not have gone for 2nd and 3rd tests with the other diagnostic centers to clarify the doubt for the infection of HIV. Hence we are of the view the 1st opposite party was in negligence and deficiency of service by disclosing the blood results without having any confirmation or affirmative tests in this regard, when the result being relates to a dreadful infectious and serious nature of disease considered among the public when it was disclosed would cause serious happenings with the family of the person concerned regarding social life moral life marriage status before the public etc., and all those things have happened in this case to the complainant and thereby the complainant was compelled to undergo such mental agony for which she must be suitably compensated. By considering all those things the District Forum allowed the complaint by awarding a sum of Rs.5,00,000/- as compensation. As far as the quantum of compensation is concerned we are of the view that it could be reduced to a reasonable extent as the 1st opposite party contended that the result was not manmade and it was a product of the modern automatic system through which feeding of the samples made and after analysis results are delivered through the sophisticated highly sensitive totally computerized closed system used by the 3rd opposite party imported from France sold by the 2nd opposite party.
In those circumstances since the 1st opposite party was found negligence only in delivering the result without having confirmation test, we are of the view that the compensation could be reduced to Rs.1,00,000/- alone which would meets the ends of justice and the appeal to be allowed only to that extent alone.
13. In the result, the appeal is allowed in part by modifying the order of the District Forum, Tirunelveli in C.C.17/2004 dated 19.4.2010 as follows :- (a) The order of the District Forum by directing the 1st opposite party to pay a sum of Rs.5,00,000/- as compensation for mental agony and deficiency of service to the complainant is hereby set side. (b) The 1st opposite party is directed to pay a sum of Rs.1,00,000/- only as compensation for mental agony and for deficiency of service caused to the complainant. (c) In other respects the order of the District Forum is hereby confirmed and (d) No order as to costs in this appeal.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING JUDICIAL MEMBER INDEX : YES / NO sg/B-II/aka//Medl