National Consumer Disputes Redressal
Srl Limited & 3 Ors. vs Ashish Khandelwal on 6 February, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 712 OF 2019 (Against the Order dated 02/01/2019 in Appeal No. 871/2018 of the State Commission Rajasthan) 1. SRL LIMITED & 3 ORS. (FORMERLY KNOWN AS SUPER RELIGARE LABORATORIES LTD.) HAVING ITS REGISTERED OFFICE AT FORTIS HOSPITAL, SECTOR 62, PHASE III, MOHALI-160062 PUNJAB 2. SRL LTD. (FORMERLY KNOWN AS SUPER RELIGARE LABORATORIES LTD.) HAVING ONE OF ITS CLINICAL REFERENCE LABORTORY, PRIME SQUARE BUILDING, PLOT NO. 1, GAIWADI INDUSTRIAL ESTATE, SV ROAD, GOREGAON W, MUMBAI-440062 MAHARASHTRA 3. DR. SEEMA BHUTIA PATHOLOGIST SRL LTD. (FORMERLY KNOWN AS SUPER RELIGARE LABORATORIES LTD.) PATHOLOGIST AT A-430, MALVIYA NAGAR, JAIPUR RAJASTHAN 4. SRL LTD. (FORMERLY KNOWN AS SUPER RELIGARE LABORATORIES LTD.) THROUGH FRANCHISEE M/S. AAKRITI LABS PVT. LTD. THROUGH ITS DIRECTOR MR. AMIT BHARGAVA, HAVING REGISTERED OFFIE AT A-430, MALVIYA NAGAR JAIPUR RAJASTHAN ...........Petitioner(s) Versus 1. ASHISH KHANDELWAL S/O. SH. GHANESHYAM C/O. SHREE GANESH ENTERPRISES, NEAR GULKANDI DEVI SCHOOL, HINDAUN KARAULI ROAD, GANGAPUR CITY, SAWAI MADHOPUR, RAJASTHAN - 322201. DISTRICT-SAWAI MADHOPUR RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER For the Petitioner : Ms. M. Malika Chaudhuri, Advocate For the Respondent : Mr. S. N. Gupta 'Soorwal', Advocate Dated : 06 Feb 2023 ORDER
1. This revision petition has been filed under section 21(b) of The Consumer Protection Act, 1986 in challenge to the Order dated 02.01.2019 of the State Commission in appeal no. 871 of 2018 arising out of the Order dated 26.09.2018 of the District Commission in complaint no. 761 of 2012 (old no. 1168 of 2010).
2. We have heard the learned counsel for the petitioners (the 'diagnostic centre') and for the respondent (the 'complainant') and have perused the record including inter alia the Order dated 26.09.2018 of the District Commission, the impugned Order dated 02.01.2019 of the State Commission and the petition.
3. Brief facts, as evincing from the material on record, are that on 23.02.2010 the complainant got his semen tested from the revisionist diagnostic centre, which reported: 'VOLUME: 0.1 ml; SPERM COUNT: NO MOTILE OR DEAD SPERMATOZOA SEEN'. The complainant then got his semen tested on 03.03.2010 from another laboratory i.e. Jaipur X-Ray & Sonography Research Centre, which reported that 'Volume: 03 ml; Total sperm count: 68 million/ml'. Thereafter the complainant again got his semen tested from the diagnostic centre on 05.03.2010, which, this time, reported 'VOLUME: 1.0 SPERM COUNT: 90 mill/mL'. The reference range for sperm count was '20.0-150.0 mill/ml'.
The complainant's case is that in the first report dated 23.02.2010 the diagnostic centre erroneously reported that his semen contained no spermatozoa at all, which led to the inference that he was infertile and caused acute and unbridgeable misunderstanding with his wife and ultimately resulted in a divorce.
4. The contention of the learned counsel for the diagnostic centre is that the result of semen test depends upon the volume of the sample taken. In the first report the volume was only 0.1 ml and probably therefore it showed no presence of spermatozoa. In the subsequent two reports, one from another laboratory and one from the diagnostic centre itself, the volume was 3 ml and 1.0 ml and they thus showed presence of spermatozoa.
5. Learned counsel for the complainant contends that the first report was misleading and patently erroneous. There was no mention therein that its findings were dependent on the volume of the sample. The clear implication of the report, showing nil sperm count, was that the complainant was infertile. This however was totally belied by the subsequent two reports, both independently showing adequate sperm count sufficient for fertility. Learned counsel also dwells on the irredeemable implications of such false report, which obviously could, and did, follow in this case.
6. We note that nowhere in any of the reports there is a mention that the findings are dependent on the volume of the sample. Nor is any remark made in the first report to the effect that the volume was insufficient to serve its diagnostic purpose or to be treated as a reliable sample or that therefore the test ought to be undertaken again with sufficient sample volume. Pertinently, the spermatozoa count is given in unit of 'per milliliter'. As such the contentions on behalf of the diagnostic centre fail miserably.
7. The clear implication of the erroneous first report was that in the complete absence of spermatozoa count the complainant was dubbed infertile. That this was a patent error was clear from the subsequent two reports, including one from the same diagnostic centre itself, both of which reported spermatozoa count within the reference range meaning thereby that the complainant was in fact fertile.
8. The fact finding has been undertaken by the two fora below. They have returned concurrent findings. We do not find any palpable crucial error in appreciating the evidence by the two fora below, as may cause to require fresh de novo re-appreciation in revision. We also do not find any jurisdictional error, or legal principle ignored or erroneously ruled. The award made by the District Commission, as affirmed by the State Commission, too, appears just and equitable in the facts of the case. As such, we discern no good ground for interference in the exercise of the revisional jurisdiction of this Commission.
9. We would however like to go further into the patent error committed by the diagnostic centre in its first report and its implications on the complainant. We also note that no steps to inculcate systemic improvements for future seem to have been taken by the diagnostic centre to ensure that recurrence of such error in respect of other common consumers is minimised in future.
10. At this stage however learned counsel for the diagnostic centre submits that the diagnostic centre does not wish to press its revision petition. She also submits that the diagnostic centre will introspect on the error which occurred in the first report and imbibe systemic improvements for future. She further submits that the amount if any deposited with the District Commission in compliance of this Commission's Order dated 30.04.2019 along with interest if any accrued thereon may be forthwith released to the complainant and that the balance awarded amount will be made good by the diagnostic centre within 08 weeks from today. She requests that this case may not be treated as a precedent.
11. In the wake of the above submissions nothing further needs to be adjudicated and the instant r. p. no. 712 of 2019 stands dismissed.
The amount if any deposited by the diagnostic centre with the District Commission in compliance of this Commission's Order dated 30.04.2019 along with interest if any accrued thereon shall be forthwith released by the District Commission to the complainant as per the due procedure. The balance awarded amount shall be made good by the diagnostic centre within 08 weeks from today, failing which the District Commission shall undertake execution, for 'enforcement' and for 'penalty', as per the law.
The decision in this case shall not be treated as a precedent.
12. The Registry is requested to send a copy each of this Order to the parties and to their learned counsel as well as to the District Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.
...................... DINESH SINGH PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER