State Consumer Disputes Redressal Commission
Challa Leela Kumari, W/O.Prathap ... vs Sri Sri Sri H.K.V.P.Babu Trust ... on 9 November, 2012
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. F.A.No. 80/2011 against C.C.No.05/2008, Dist. Forum, Guntur. Between: Challa Leela Kumari, W/o.Prathap Reddy, R/o.Nallapadu (Vill) Guntur Rural ( M.D.) Guntur District. Appellant/ Complainant And 1. Sri Sri Sri H.K.V.P.Babu Trust Hospital, Sri Kali Gardens, Guntur District , Pin: 522 508. 2. Dr.Swarnamukhi, Practising Doctor in Sri Sri Sri H.K.V.P.Babu Trust Hospital, Sri Kali Gardens, Guntur District, Pin : 522 508. 3. M.Prameela, Technician in the Lab of Sri Sri Sri H.K.V.P.Babu Trust Hospital, Sri Kali Gardens, Guntur District, Pin : 522 508. Respondents/ Opp.parties Counsel for the Appellant : M/s. V.N.Anagani Counsel for the respondents : M/s.A.Alavender Goud. QUORUM: SMT.M.SHREESHA, HONBLE MEMBER
AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
FRIDAY, THE NINTH DAY OF NOVEMBER, TWO THOUSAND TWELVE.
Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** This appeal is directed against the order dt.20.2.2010 of the District Forum, Guntur made in C.C.No.5/2008 filed by the complainant claiming a sum of Rs.4 lakhs towards compensation from opposite parties on the ground of wrong diagnosis of HIV test as positive.
The brief case of the complainant is that she was suffering from stomach ache, as such she consulted a physician by name Dr.Vandanapu Laxman, Naveen Hospital, Kothapet, Guntur on 13.5.2005 and he has prescribed some medicines . After two months, the complainant again visited the said hospital on 13.7.2005 as she was not fully recovered from her pain in the stomach and the doctor advised her to undergo some tests like blood, urine and further, prescribed medicines. As she was not getting any relief, the complainant approached the hospital of opposite party no.1 namely Sri Sri Sri H.K.V.P.Babu Trust Hospital, Sri Kali Gardens, Guntur, Opposite party no.2 Dr.Swarnamukhi, who is working in the said hospital has prescribed some tests namely blood, urine and bio-chemical tests. Accordingly, she underwent tests in the laboratory of opposite party no.1 hospital under the supervision of Lab Technician M.Prameela, opposite party no.3 on 5.1.2006. After conducting the tests, the complainant was furnished reports, which have shown HIV positive. On seeing the same, the complainant was shocked, surprised and crying.
She has revealed the said fact to her husband, who suspected her character. The complainant has also suspected the character of her husband. Both the complainant and her husband came under depression and lost hopes on their lives. On the night of the same day, they wanted to commit suicide, but due to intervention of neighbors and relatives, they did not make such attempt, as they have advised them to undergo similar tests once again in other labs. On the very next day i.e. on 6.1.2006 both the complainant and her husband underwent tests in Dinesh Diagnostic Laboratory, Rajas Gardens and also Bharathi Lab, Kothapet, Guntur, the reports revealed that HIV I negative and HIVII negative. On seeing the said reports, the complainant and her husband felt happy and rushed to the hospital of opposite parties and questioned about giving wrong report and the opposite party gave evasive reply on giving wrong report. Due to their negligence, the complainant and her husband suffered physically and mentally and financially which amounts to deficiency in service on their part. Hence the complaint.
Resisting the complaint, opposite party no.1 has filed its version which is adopted by opposite parties 2 and 3. They denied the material allegations made in the complaint. They admitted that the complainant was examined by opposite party no.2 and advised to undergo clinical tests like blood test, urine test etc. for the purpose of proper diagnosis. They also admitted that the complainant underwent the tests suggested by opposite party no.2 with opposite party no.3, the lab technician in the same hospital. The test reports were furnished by opposite party no.3 on 5.1.2006. They denied that the complainant and her husband came to the opposite parties and quested about the reports given by them being wrong.
The opposite parties submitted that the hospital is committed to the service of mankind, without any profit motive. The patients from various parts of the country come to the hospital and benefit by benevolent, diligent, careful and blissful treatment given by reputed, highly qualified and well experienced doctors and staff who render dedicated and gratuitous service to the patients. Only minimal charges will be collected from affluent towards surgeries, lab tests etc. which involve expenditure and the poor will be treated at free of cost without any discrimination of caste, creed, religion etc. The opposite parties have been rendering valuable, voluntary services to the patients. The hospital is maintaining all relevant registers with all details of OP Patient, in-patients etc., their diagnosis and treatment and case sheets etc. This opposite party further contended that the complainant came to the Ashram Hospital on 5.1.2006 with a complaint of pain in abdomen, recurrent mouth ulceration and other complaints. After due examination, the complainant was advised to undergo minimum relevant tests, after pre test counseling (PTC), but she was not forced to undergo tests.
After receipt of the lab results, she was asked to come next day along with her husband for repeat test of HIV, but she failed to come to the hospital next day, instead she went away with lab reports without consulting opposite party no.2. The complainant was also informed that there may be discrepancies in tests and hence tests have to be repeated before confirmation for the purpose of diagnosis. Opposite partyno.2 never confirmed the reports nor did she confirm the diagnosis. The complainant, having taken report from opposite party no.3, went away without consulting opposite party no.2 . The complainant is in possession of O.P. card given to her.
This opposite party further contended that the particulars of the claim are highly bloated up exaggerated and the claim made is clearly abuse of provisions of Act. This complaint is filed to make unlawful gain by threats of maligning the image of the philanthropic institution rendering service to one and all. Therefore the complaint is liable to be dismissed with costs.
During the course of enquiry, both sides have filed their affidavit evidence and got marked Exs.A1 to A8 and B1 and B2 respectively.
Upon hearing the counsel for both the parties and on consideration of material on record, the District Forum dismissed the complaint against opposite parties 1 and 2 and allowed the complaint, in part, directing the opposite party no.3 to pay compensation of Rs.10,000/- to the complainant along with legal expenses of Rs.1000/- and that the amounts ordered above shall be paid within a period of 6 weeks from the date of receipt of the copy of the order, failing which they shall carry interest at 9% p.a. till the date of realization.
Aggrieved by the said order, the complainant preferred the above appeal contending that the order of the District Forum is contrary to law, weight of evidence and probabilities of the case. That the District Forum failed to award adequate compensation inspite of fastening the liability on the third opposite party. That the District Forum ought to have awarded more compensation by appreciating the mental agony suffered by the appellant/complainant in practical manner. That the District Forum failed to appreciate the oral and documentary evidence and sorts of fraud played by some of the institutions under the guise of charitable institutions and that the rate of interest awarded by the District Forum is inadequate .Therefore, the appeal may be allowed and the impugned order may be modified enhancing the compensation awarded by the District Forum.
We heard the counsel for both the parties .
Now the point for consideration is whether the impugned order of the District Forum is vitiated by misappeciation of fact or law?
The complainant went to Ashram Hospital i.e. opposite party no.1 on 5.1.2006 with a complaint of pain in abdomen, after due examination by opposite party no.2, the complainant was advised to under go clinical tests for the purpose of proper diagnosis. Accordingly, the complainant underwent the tests suggested by opposite party no.2 with opposite party no.3, who is lab technician in the same hospital. After conducting the tests, opposite party no.3 handed over the test reports to the complainant on 5.1.2006. These facts are not in dispute. These facts are also proved by Exs.A5 and A6. The prior treatment of the complainant by Dr.V.Laxman of Naveen Hospital was also proved by Exs.A1 to A4 medical record. Ex.A6 report furnished to the complainant by opposite party no.3 shows that the test for HIV II is positive. The complainant underwent the tests for HIV in two laboratories where it is reported negative as per Exs.A7 and A8 reports. Therefore, Ex.A6 report proved to be false.
Opposite parties filed Ex.B1 O.P. chit, wherein it is recorded that HIV to be repeated and test to be conducted on husband of the complainant. Though, the complainant contended that the opposite parties have manipulated Ex.B1 O.P. chit, she did not file the original O.P. chit given to her. However, the above endorsement in Ex.B1 is contrary to the statement made by the opposite parties in their written version. In para 7 of the written version, it is stated After the receipt of the lab results, she was asked to come on the next day along with her husband for repeat test of HIV but she failed to come to the hospital next day instead, she went away with lab reports without consulting 2nd opposite party. She was also informed that there may be discrepancies in tests and hence tests have to be repeated before confirmation for the purpose of diagnosis.
These statements are contrary to the statement of the opposite parties that on receipt of the report from the lab, the patient was advised to come on next day along with her husband for repletion of test of HIV as the same is not confirmative. The opposite parties have not placed any material on record to show that opposite party no.3 has taken measures and precautions, which ought to have been taken for conducting the tests. The material on record established that Ex.A6 lab report issued by opposite party no.3 is wrong. Whenever the tests for HIV show positive results, there is every possibility to suspect the other spouse. The complainant had also undergone such type of agony, pain and suffering, along with her husband. The fact that they are subjected to shock and depression on seeing Ex.A6 cannot be denied. Therefore they have reacted to the advises of the neighbors and relatives in undergoing repeated tests, in two different laboratories on the very next day and came to know that HIV I & II are negative.
The District Forum has not given any reasons for exonerating the opposite parties from their liability.
The District Forum has not given any reasons for the finding that opposite parties 1 and 2 cannot be held liable for giving the report and committed any lapse or rendering deficiency in service. Opposite party no.3 is admittedly working in opposite party no.1 hospital. opposite party no.3 conducted these tests on the advise of opposite party no.2, who is also working in opposite party no.1 hospital. Under these circumstances, the District Forum ought to have held that opposite parties 1 and 2 are also vicariously liable for the acts of opposite party no.3. Therefore, we are of the view that opposite parties 1 and 2 are also liable along with opposite party no.3.
As seen from the impugned order, the District Forum directed opposite party no.3 to pay compensation of Rs.10,000/- to the complainant along with legal expenses of Rs.1000/-. Having regard to the situation, in which, the complainant was placed and the mental agony to which the complainant and her husband was subjected, we consider that the compensation awarded by the District Forum is not sufficient. In our considered view that a sum of Rs.25,000/- towards compensation will meet the ends of justice. We do not find that interest granted by the District Forum at 9% p.a. on the awarded amount is on lower side.
In the result, appeal is allowed in part.
Impugned order of the District Forum is set aside regarding the dismissal of the complaint against opposite parties 1 and 2. Order of the District Forum is modified directing opposite parties 1 to 3 jointly and severally to pay a sum of Rs.25,000/- to the complainant towards compensation, retaining the order of District Forum regarding awarding of interest and legal expenses. In view of the facts and circumstances of the case there shall be no order as to costs.
MEMBER MEMBER Pm* Dt.
9.11.2012