Delhi District Court
Also At 107 vs The Union Of India on 28 August, 2017
IN THE COURT OF SH. PRITAM SINGH, ADJ-04, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
Civil Suit No. 8019/16
Shri Faizan (Minor)
S/o Sh. Naseem Ahmad
R/o 142, Prajapati Mohalla,
Tuglakabad, New Delhi.
Also at 107, Terhi Haraiya, Garhwa, PO
Tildug, Distt. Garhwa, Jharkhand. .......Plaintiff
Versus
1. The Union of India
Through Secretary (Health)
Ministry of Health & Family Welfare
Nirman Bhawan, New Delhi.
2. The Medical Superintendent
Safdarjung Hospital,
Ansari Nagar, New Delhi ........Defendants.
Date of institution of the suit : 22.07.2007
Date reserved for judgment : 22.08.2017
Date of pronouncement of judgment : 28.08.2017
Suit for damages
JUDGMENT
1. Firstly, it is important to mention that the plaintiff was ten years old at the time of filing of the instant suit and the suit was filed through his father Sh. Naseem Ahmad as his natural guardian. The father of the plaintiff was appointed as next friend/natural guardian of the plaintiff Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 1/21 vide order dated 12.12.2007 by the Hon'ble High Court of Delhi. The plaintiff also filed the instant suit as an indigent person and he was allowed to sue as an indigent person vide order dated 26.10.2009 by the Hon'ble High Court of Delhi.
2. The brief facts of the case are that the plaintiff belongs to a village near Garhwa, Jharkhand. The growth of the plaintiff was very slow when he was eight years of age, therefore, his father took him to R.I.M.S. (Hospital) at Ranchi, Jharkhand for his proper check-up and the Doctors at R.I.M.S failed to diagnose the ailment of the plaintiff. On the advice of the Doctors at R.I.M.S, Ranchi, the father of the plaintiff brought him to All India Institute of Medical Science (AIIMS) Delhi where some tests of the plaintiff were conducted. During his treatment at AIIMS, plaintiff was referred to the Safdarjung Hospital, defendant No.2 where a number of tests were conducted and his father was informed that blood was required for his further treatment. Since the father of the plaintiff was very poor person, therefore, he requested the concerned Doctor to provide blood to the plaintiff and blood was arranged for the plaintiff but despite that, the health of the plaintiff did not improve.
3. The plaintiff was found HIV positive, therefore, the plaintiff was directed to approach National HIV Reference Center of AIIMS where he was examined by the Doctors. The father of the plaintiff was informed Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 2/21 that the plaintiff required regular blood transfusion and he had to arrange the blood .
4. The plaintiff was discharged by the defendant No.2 hospital on 31.07.2006. The condition of the plaintiff not improved, therefore, he again turned up to the defendant No.2 hospital where he was denied treatment. The father of the plaintiff filed a writ petition No. 2346/2007 in the Hon'ble High Court of Delhi where the defendant No.2 admitted their mistake that they had administered blood to the plaintiff without proper test and it caused HIV positive to the plaintiff. The plaintiff again approached the defendant No.2 but the Doctors there neglected the plaintiff and he was discharged. It is further stated that due to the negligence of the Doctors at defendant No.2 hospital contaminated blood was transfused to the plaintiff, which resulted HIV positive to the plaintiff. The plaintiff had suffered not only loss of money but also mental and physical agony due to the negligence conduct of the Doctors of defendant No.2, therefore, both the defendants are liable to pay Rs. 30 lacs to the plaintiff as compensation. The Union of India through Secretary of Health was impleaded as defendant No.1 because defendant No.2 hospital works/comes under it.
5. A joint written statement was filed on behalf of both the defendants. It is stated that when the plaintiff approached the defendant Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 3/21 No.2 hospital, he was given proper treatment and his condition improved. It is further stated that the plaintiff is suffering from sickle anemia which is a cronic hereditary hemolytic anemia since birth and requires blood transfusion at regular intervals, which are life saving transfusions. The blood was transfused to the plaintiff on 31.07.2005, 01.08.2005, 07.09.2005, 24.09.2005 and 10.07.2006 but on each occasion, his status of HIV was negative. The defendant No.2 hospital followed all the procedures while transfusing the blood to the plaintiff.
6. It is further stated that the handling of the blood and all other process inter alia donation, storage, testing, discarding of infected blood, issuance of blood from blood bank, blood transfusion etc. are done, according to the Standard Operating Procedure which are diligently followed by the defendant No.2 through its Doctors. It is further stated that the plaintiff received treatment including blood transfusion at various facilities including but not limited to All India Institute of Medical Science (AIIMS), R.I.M.S (Hospital) Ranchi amongst other places. The plaintiff approached the defendant No.2 hospital on 24.09.2005 and he was discharged on 25.09.2005. Thereafter, the plaintiff was admitted after a gap of about 10 months on 10.07.2006 and was discharged on 31.07.2007. The plaintiff being a patient of Sickle Cell Anemia required blood transfusion at regular intervals and he must necessarily have been given blood transfusion during the time period between 25.09.2005 to Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 4/21 10.07.2006. There is every likelihood that the plaintiff might have come in contact with infected HIV blood which thereafter caused infection to the plaintiff. The plaintiff deliberately failed to disclose the medical treatment that he must have received between 25.09.2005 to 10.07.2006. It is specifically denied that the defendant No.2 hospital has admitted their mistake by not filing the reply to the writ petition (c) No. 2346/2007. All other averments made in the plaint were denied.
7. Replication to the written statement was filed on behalf of the plaintiff. In the replication, the plaintiff has denied the averments made in the written statement and reiterated and affirmed the contents of the plaint.
8. From the pleadings of the parties, the following issues were framed on 11.02.2013:
ISSUES
1. Whether due to negligence on the part of the defendants, plaintiff contracted HIV (positive) AIDS? OPP
2. Whether the plaintiff was suffering from sickle cell anemia which is a chronic hereditary haemolytic anemia since birth and requiring blood transfusions at regular intervals? OPD
3. Whether plaintiff contracted HIV (positive) AIDS due to blood transfusion procedure undergone at defendant No.2? OPP
4. Whether suit is barred by Section 80 CPC? OPD
5. Relief.
Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 5/21
9. To prove its case, plaintiff examined PW-1 Sh. Naseem Ahmed and tendered his evidence by way of affidavit Ex. PW1/A. PW-1 also relied upon the following documents:
1. PW1/1 is the reporting proforma of the plaintiff dated 17.01.2006.
2. PW1/2 is the lab test report dated 05.09.2005.
3. PW1/3 is the report dated 21.07.2006.
4. PW1/4 is the discharge summary dated 31.07.2006.
5. Ex. PW1/5 is the discharge slip dated 20.08.2005.
6. PW1/6 is the test report of plaintiff dated 19.07.2006.
7. PW1/7 is the prescription of treatment of the plaintiff dated 05.09.2005.
8. PW1/8 is the request letter dated 09.08.2005.
9. PW1/9 is the details of the treatment of the plaintiff dated 31.07.2006.
10.PW1/10 is the copy of discharge summary dated 25.08.2005.
11.Ex.PW1/11 is the discharge summary dated 25.09.2005.
12. Discharge-summary thereby plaintiff was referred to R.I.M.S was exhibited as Ex. PW1/12 in the affidavit of the plaintiff but no such discharge-summary was filed on record. The plaintiff filed two original discharge-summaries from Page No. 4 to 6 and copy of discharge-summary from Page No. 7 to 8, as per list of documents filed on behalf of plaintiff.
Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 6/21
10. In defence, defendants have examined DW-1, Dr. K.C. Aggarwal and tendered his evidence by way of affidavit Ex. DW1/A. DW-2, Dr. Sunil Ranga and tendered his evidence by way of affidavit Ex. DW2/A.
11. Defendants relied upon the following documents:
1. Ex. DW1/1 to Ex. DW1/5 are the computerized copies of definitions and treatment of Sickle Cell Anemia.
2. Ex. DW1/6 to Ex. DW1/9 are the copies of lange textbook of current diagnosis and treatment of pediatrics, 22nd edition. No document as Ex. DW1/10 was on record at the time of tendering of document by DW-1.
3. Ex. DW1/11 is the details of plaintiff's admission in Safdarjung Hospital.
4. Ex. DW1/12 is the details of blood transfusion given to plaintiff (HIV testing status).
5. Mark 'A is the copy of details of blood transfusion given to plaintiff (HIV testing status).
6. Mark 'B is the copy of history sheet of plaintiff dated 10.07.2006.
7. Ex. DW1/15 is the copy of issue/transfusion report/reaction form dated 01.08.2005.
8. Ex. DW1/16 is the copy of issue/transfusion report/reaction form dated 07.09.2005.
9. Ex. DW1/17 is the copy of issue/transfusion report/reaction form dated 10.07.2006.
10. Ex.DW-2/1 (colly.) is details procedure of blood collection including testing of infection markers including HIV for blood transfusion up to issue of blood from Blood Bank. Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 7/21
11.Ex.DW-2/2 is Discard Register.
12.Ex.DW-2/3 is Donation Card Register. (No document was tendered from Ex. DW2/4 to Ex. DW2/10 by DW-2)
13. Ex.DW-2/11 is Donation Procedure.
14.Ex.DW-2/12 is Blood discarding procedure and documentation.
15. Ex.DW-2/13 is procedure for accepting routine blood demand.
16. Ex.DW-2/14 is documentation from donor registration to collection of blood.
17. Ex.DW-2/15 is steps in issue of blood in emergency.
18. Ex.DW-2/16 is Blood bank and its labeling.
19. Ex.DW-2/17 is Annexure F Form.
20. Ex.DW-2/18 is Annexure F Form is in Hindi language.
21. Ex.DW-2/19 is copy of blank form of donors record.
22. Ex.DW-2/20 is copy of blank form of donor record.
23. Ex.DW-2/21 is copy of donors blood reports register.
24. Ex.DW-2/22 is copy of zonal blood testing record.
25. Ex.DW-2/23 is copy of stock register record.
26. Ex.DW-2/24 is Flag G Form.
27. Ex.DW-2/25 is Flag H, Report-HIV I & II (Elisa Screening).
28. Ex.DW-2/26 is copy of discard register.
29. Ex.DW-2/27 and DW-2/28, are Flag N, request for packed cells/whole blood /other for transfusion.
30. Ex.DW-2/29 is Issue/ Transfusion Report/ Reaction Form.
31. Ex.DW-2/30 to Ex.DW-2/34 are copies of donors blood grouping register.
32.Ex. DW-2/35 to Ex.DW-2/39 are copies of donors blood report register.
Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 8/21
12. Final arguments heard. Records perused and considered. Ld. Counsel for the plaintiff relied upon following rulings:
1. Care Hospital M/s. Quality Care India Ltd. vs. Vemuganti Venugopal Rao & Anr. F.A. No. 488/2013 date of decision: 22.09.2014 passed by State Consumer Disputes Redressal Commission; Hydrabad.
2. Master Akash vs. Ministry of Health & Family Government of India & Ors. Case No. 7/25, date of decision: 11.09.2012 passed by State Consumer Disputes Redressal Commission, Delhi.
13. Ld. Counsel for the defendants relied upon the following rulings:
1. Sanjay Kumar vs. DMC & Hospital, First Appeal No. 684/2005, date of decision: 08.05.2012 passed by State Consumer Disputes Redressal Commission, Punjab.
My findings on the issues are as follows:
14. Issue No.1 & 3 are almost similar, therefore, both the issues are decided jointly.
ISSUE No.1: Whether due to negligence on the part of the defendants, plaintiff contracted HIV (positive) AIDS? OPP ISSUE No. 3: Whether plaintiff contracted HIV (positive) AIDS due to blood transfusion procedure undergone at defendant No.2? OPP Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 9/21
15. PW-1 Sh. Naseem Ahmed deposed that as the growth of the plaintiff was very slow, he took him at R.I.M.S (Hospital) at Ranchi, Jharkhand but the health of the plaintiff did not improve, therefore, he took the plaintiff at AIIMS, Delhi where various tests of the plaintiff were conducted. Thereafter, he was advised to take the plaintiff to the Safdarjung Hospital, defendant No.2 for his treatment and various tests of the plaintiff were conducted by the doctors at defendant No.2 hospital. After the medical test of the plaintiff, the doctors at defendant No.2 Hospital informed him that the plaintiff was suffering from HIV. The Doctors at defendant No.2 hospital also examined him and his wife but they both were found HIV negative. PW-1 further deposed that the plaintiff got infection of HIV during the test conducted at defendant No.2 hospital and appeared before the Medical Superintendent of defendant No.2 and requested him for further treatment of the plaintiff but the same was denied. The plaintiff was discharged from the defendant No.2 hospital on 31.07.2006. PW-1 further deposed that he had filed a writ petition (WP) No. 2346/2007 and the defendants had admitted their mistake that the blood was transmitted to the plaintiff without proper tests and care due to which plaintiff got HIV infection. PW-1 further deposed that after discharge from the defendant No.2 hospital, he took the plaintiff to the R.I.M.S, Ranchi where the Doctors declared that the plaintiff was suffering from incurable disease.
Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 10/21
16. PW-1 deposed in his cross-examination that he came to know about the illness of the plaintiff for the first time in 2004 when plaintiff was about four-five years old. The doctors at R.I.M.S (Hospital), Ranchi failed to diagnose the plaintiff and advised him to take the plaintiff to AIIMS for treatment. PW-1 further deposed that he brought the plaintiff first time to the AIIMS in the month of March or April, 2005. The plaintiff had undergone laboratory tests for about 2-3 months at AIIMS and he was informed that the plaintiff was having deficiency of calcium and formation of blood. The treatment at AIIMS continued for a total period of about four months. PW-1 further deposed that one night, he brought the plaintiff to the AIIMS at about 1:00 a.m., but he was told that there was no vacant bed and he could take the plaintiff to the Safdarjung Hospital, defendant No.2. PW-1 admitted that the treatment of the plaintiff started from August/September 2005 at the defendant No.2 hospital and remained admitted for four months. PW-1 further deposed that he was informed at the end of November or December 2005 that the plaintiff was suffering from HIV positive and he was discharged by the defendant No.2 hospital. PW-1 further deposed that the blood was transmitted to the plaintiff on 31.07.2005, 01.08.2005, 07.09.2005 and 24.09.2005 at defendant No.2 hospital. After that, the plaintiff was not transmitted blood at the Safdarjung Hospital much less on 10.07.2006. PW-1 denied the suggestion that the plaintiff got HIV positive infection Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 11/21 as he was transmitted blood from some other agency where he got HIV positive infection.
17. It is not in dispute that when the plaintiff first time approached the defendant No.2 hospital, he was not suffering from HIV positive. It is also not in dispute that blood was transfused to the plaintiff on 31.07.2005, 01.08.2005, 07.09.2005 and 24.09.2005 at defendant No.2 hospital and thereafter the blood was not transfused to the plaintiff at the defendant No.2 hospital till 10.07.2006. PW-1 deposed that he was informed in the month of November/December 2005 that the plaintiff was suffering from HIV positive. The burden is upon the plaintiff to prove that he was transmitted infected blood at the defendant No.2 hospital on 24.09.2005 or before that. PW-1 in his entire affidavit for evidence Ex. PW1/1 has not stated that in which month of the year 2005, he was first time informed that the plaintiff had got HIV positive infection. PW-1 has deposed in Para 4 of his affidavit Ex. PW1/A that the Doctors at the Safdarjung Hospital at the time of discharge of the plaintiff disclosed that the plaintiff was suffering from HIV. PW-1 further deposed in Para 6 of his affidavit that different tests were conducted at AIIMS and plaintiff was referred to National HIV Reference Center at AIIMS and there the plaintiff was further examined and the copy of his examination report Ex. PW1/8. PW-1 deposed in Para 7 of his affidavit that he was advised to go to Safdarjung Hospital for proper treatment and ultimately he took the Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 12/21 plaintiff to the Safdarjung Hospital and it was disclosed after different tests that the plaintiff was suffering from HIV.
18. The above deposition of PW-1 is vague. On the one hand, he deposed that the Doctors at the defendant No.2 hospital at the time of discharge of the plaintiff disclosed that he was suffering from HIV but no date of intimation is mentioned. Thereafter, he took the plaintiff to the AIIMS where tests of the plaintiff were conducted and the plaintiff was referred to National HIV Reference Center at AIIMS. PW-1 further deposed that he was further advised to go to Safdarjung Hospital for proper treatment and when tests were conducted at Safdarjung Hospital, it was disclosed that the plaintiff was suffering from HIV. From the above deposition of the PW-1, it appears that he was informed twice by the defendant No.2 hospital that the plaintiff was suffering from HIV once before the plaintiff was referred to National HIV Reference Center at AIIMS and once thereafter.
19. The blood was transmitted to the plaintiff on 24.09.2009 and he was discharged on 25.09.2009 vide discharge-summary Ex. PW1/11. In the discharge-summary Ex.PW1/11, there is no mentioning of HIV positive. Thus, the plaintiff was not detected HIV positive till 25.09.2005. Thereafter, the plaintiff again visited the defendant No.2 hospital on 10.07.2006 i.e after about nine and half months. When the Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 13/21 tests were conducted, the plaintiff was found suffering from HIV positive. The plaintiff has not filed any document to show that he visited the defendant No.2 hospital between 25.09.2005 to 10.07.2006, but PW-1 deposed in his cross-examination that he was informed in the month of October/November 2005 that plaintiff was suffering from HIV positive. Neither in the plaint nor in the affidavit of PW-1, it was stated in which particular month, the plaintiff/his father was first time informed by the defendant No.2 hospital that the plaintiff was suffering from HIV positive. In the absence of any document to show that the plaintiff had visited the defendant No.2 hospital in the month of October/November 2005 nor in the plaint or in the affidavit for evidence Ex. PW1/A was mentioned, the month in which the plaintiff/his father first time was intimated by the defendant No.2 hospital that the plaintiff was suffering from HIV positive, clearly established that the plaintiff had not visited the defendant No.2 hospital in the month of October/November 2005 and in order to improve their case, PW-1 deposed in his cross-examination that he was informed first time in the month of October/November 2005 that the plaintiff was suffering from HIV positive.
20. PW-1 has admitted in his cross-examination that the blood was transmitted to the plaintiff on 31.07.2005, 01.08.2005, 07.09.2005 and 24.09.2005. Thus within the span of two months, four times the blood was transmitted to the plaintiff. It shows that the plaintiff was in need of Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 14/21 blood transfusion at least once in a month. The plaintiff was discharged on 25.09.2005, thereafter, he again visited the defendant No.2 hospital on 10.07.2006 i.e after more than nine and half months. According to the plaintiff, he was never transmitted blood between 25.09.2005 till 10.07.2006. It is difficult to believe that when in the month of August & September 2005, the plaintiff was in need of blood transfusion four times, survived without a single blood transfusion for more than nine and half months. This shows that the plea of the plaintiff that he got HIV positive from the infected blood transmitted to him by the Doctors of defendant No.2 hospital, is not tenable. The plaintiff must have got blood transfusion from any other clinic/hospital because due to lack of blood transfusion, the plaintiff could not have survived. Even when the plaintiff visited the defendant No.2 hospital on 10.07.2006, blood was transmitted to the plaintiff.
21. Ld. Counsel for the plaintiff submitted that the plaintiff was neither suffering from Sickle Cell Anemia nor required blood transfusion but despite that blood was transfused to him and it shows negligence on the part of the doctors of the defendant No.2 hospital. This plea has no substance because the plaintiff has not filed any document to show that he was not suffering from the disease of Sickle Cell Anemia. Neither any medical report of the plaintiff was filed nor any doctor was examined. On the other hand, the defendants have filed the pages of text books Ex. Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 15/21 DW1/6 to Ex. DW1/9 and also copies of definitions and treatment of Sickle Cell Anemia Ex. DW1/1 to DW1/5 which show that the plaintiff was suffering from Sickle Cell Anemia and he was in acute need of blood transfusion, therefore, blood was transfused to him. Ld. Counsel for the plaintiff further submitted that the doctors at the defendant No.2 hospital had not tested the blood as per the required standard, before transfusion of blood to the plaintiff and due to which infected blood was transmitted to the plaintiff. This submission of Ld. Counsel for the plaintiff has no merit because it is only apprehension of the plaintiff that he was transmitted infected blood at the defendant No.2 hospital. The plaintiff has not filed any document to establish that he was transmitted infected blood at the defendant No.2 hospital. On the other hand, the defendants proved Ex.DW2/1 (Colly) which provides the detail procedures of blood collection including testing of infection markers such as HIV upto the issuance of blood from the blood bank. The defendants have also relied upon the discard register Ex. DW2/2 and donation card register Ex. DW2/3. The defendants have also filed and relied upon the donation procedure Ex. DW2/11 and blood discarding procedure and documentation Ex. DW2/12. The documents from Ex. DW2/1 to Ex. DW2/39 disclose the entire procedure from blood collection to blood donation and there is hardly any lacuna in the entire process to show the negligent on the part of the defendant No.2 hospital. The rulings relied Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 16/21 upon by Ld. Counsel for the plaintiff are not of any help to the plaintiff. In both the rulings, Master Akash vs. Ministry of Health & Family Government of India & Ors. (supra) and Care Hospital M/s. Quality Care India Ltd. vs. Vemuganti Venugopal Rao & Anr. (supra), the respective Hon'ble State Consumer Disputes Redressal Commission have observed that before transfusion of the blood to a patient, screening for HIV should be made and if it is done then there is no medical negligence. The defendants have filed the copies of donors blood grouping register Ex. DW2/30 to Ex. DW2/34 and copies of donors blood report register Ex. DW2/35 to Ex. DW2/39 for the relevant period and it shows that the HIV status of the donors was negative. Mark 'A' i.e the details of the blood transfusion given to the plaintiff also shows that the status of the blood transmitted to the plaintiff was negative. Therefore, it is established that the doctors at defendant No.2 hospital had carried out the screening for HIV of the blood transmitted to the plaintiff. It was observed in Sanjay Kumar vs. DMC & Hospital (supra), "Since the appellant has failed to prove the medical record of his medical treatment for the period from 02.11.2002 to 28.01.2003, therefore, it could be possible that the appellant developed HIV during his medical treatment in this period."
22. In view of the above discussions, I decide the issue No.1 & 3 in favour of the defendants and against the plaintiff.
Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 17/21 ISSUE No.2: Whether the plaintiff was suffering from sickle cell anemia which is a chronic hereditary haemolytic anemia since birth and requiring blood transfusions at regular intervals? OPD
23. DW-1, Dr. K.C. Aggarwal deposed that the plaintiff was a known case of Sickle Cell Anemia which is a chronic hereditary haemolytic anemia since birth and required blood transfusion at regular intervals of time which are life saving transfusions. DW-2, Dr. Sunil Ranga has also supported the deposition of DW-1 and the case of the defendants. From the discharge summary dated 25.09.2009 Ex. PW1/11, it is proved that the plaintiff was/is suffering from sickle cell anemia. The plaintiff failed to rebut that he was not suffering from sickle cell anemia. In fact, it is the case of the plaintiff that he was having a very slow growth since the age of 4/5 years but the Doctors at R.I.M.S (hospital) at Ranchi could not diagnose his illness and asked him to visit AIIMS. Whether the plaintiff is/was suffering from Sickle Cell Anemia or not, only the expert Doctors of this field can verify. The plaintiff has not got examined any Doctor, who can contradict that the plaintiff was not suffering from Sickle Cell Anemia. It is also an admitted case of the plaintiff that on 31.07.2005, 01.08.2005, 07.09.2005, 24.09.2005 and 10.07.2006, the blood was transmitted to him and even no replacement of blood was provided by the plaintiff. Transmission of blood four times within a span of two months from 31.07.2005 to 24.09.2005 self explanatory that the plaintiff required Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 18/21 blood transfusion at regular intervals. The defendant No.2 is a government hospital and it does not provide blood on mere asking by patient. It has been observed that a government hospitals generally ask the patients to provide replacement of blood, transmitted to a patient. However, in the case in hand, the defendant No.2 hospital provided blood four times to the plaintiff even without replacement that proved that the plaintiff was in dire need of blood transfusion, otherwise, he could not survive. Hence, the issue No.2 is decided in favour of the defendants and against the plaintiff.
ISSUE No.4: Whether suit is barred by Section 80 CPC? OPD
24. The plaintiff has filed the instant suit against the Government of India through Secretary of Health, defendant No.1 and Medical Superintendent, Safdarjung Hospital, New Delhi, defendant No.2. Section 80 CPC provides that no suit shall be instituted against the Government or against the Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to the such Government or Public Officer. Admittedly, no notice was given under Section 80 CPC to either of the defendants. In the case in hand, the plaintiff was minor at the time of filing of the suit and also moved an application seeking permission to sue as an indigent person. Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 19/21 An inquiry was conducted and it was found that the father of the plaintiff is a very poor person and not in a position to bear the litigation expenses, therefore, vide order dated 26.10.2009, the plaintiff was allowed to sue as an indigent person.
25. Sub Section (2) of Section 80 CPC provides that a suit may be instituted with the leave of the court, without serving notice as required by Sub Section (1) but the court shall not grant relief in the suit except after giving to the Government or Public Officer a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.
26. As discussed above, the plaintiff was not only a very poor person but also suffering from HIV positive at the time of filing of the suit. Therefore, considering the urgent nature of the suit, the requirement of giving notice under Section 80 (1) CPC to the defendants, is dispensed with under Sub Section (2) of Section 80 CPC. Hence, this issue is decided in favour of the plaintiff and against the defendants. Relief
27. As per my findings on the issues No.1 & 3, the plaintiff failed to prove his case. Hence, the suit of the plaintiff is dismissed.
28. No order as to cost.
Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 20/21
29. Decree-sheet be prepared, accordingly.
30. File be consigned to the Record Room.
Announced in the open court. (PRITAM SINGH)
Dated: 28.08.2017 ADJ-04 (South)
Saket Courts/New Delhi
Civil Suit No. 8019/16 Sh. Faizan (Minor) vs. The Union of India & Anr. 21/21